Lords Sitting of 22 March 1983

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Southwell.

Nuclear Installations' Safety Record
Lord Orr-Ewing: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many serious incidents, likely to cause a significant health hazard, have occurred at nuclear installations since 1979.
The Parliamentary Under-Secretary of State, Department of Energy (The Earl of Avon): My Lords, no serious incidents, as defined in the Nuclear Installations (Dangerous Occurrences) Regulations 1965, have occurred at nuclear installations in the United Kingdom since 1979. Indeed, none has occurred since the regulations were drawn up in 1965.
Lord Orr-Ewing: My Lords, will my noble friend accept that those figures are extremely satisfactory, and does it not suggest that those who campaign against nuclear power stations are either ill-informed or deeply prejudiced? Is my noble friend able to tell the House whether minor incidents are large in number, and are they falling in a satisfactory manner?
The Earl of Avon: My Lords, the figures that we have for incidents generally, reported since 1977, started in 1977 with 69 and have gradually declined since 1978 until they reached a figure of 11 in 1982.
Viscount St. Davids: My Lords, will the noble Earl confirm that the amount of radiation emitted by these installations is comparatively small and is, strangely enough, less than that produced by the fumes from the burning of coal?
The Earl of Avon: My Lords, the noble Viscount—as so often—is ahead of me with his comparisons, but I can confirm the former part of his question.
Lord Davies of Leek: My Lords, we thank the noble Earl for his answers. Will he confirm that the Irish Sea is now one of the most radioactive seas and already it is affecting the fish? That is a scientific fact. Can it be denied?
The Earl of Avon: My Lords, the noble Lord, Lord Davies of Leek, asks whether it can be denied. I
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certainly cannot deny it. But if he likes to put down the question at another time I shall endeavour to answer it properly.
Lord Leatherland: My Lords, will the Minister also tell us whether the state of the Irish Sea will cause any harm to the women bathers from Blackpool?
The Earl of Avon: My Lords, we are straying a little from the subject matter. If the noble Lord would like to talk about wave power, I shall happily answer him.
Lord Orr-Ewing: My Lords, will my noble friend, in view of the Answer that he gave to my original Question, make sure that the Government continue with pressure to plan, develop and produce nuclear power stations? Is he also aware that one of the reasons why French energy is so much cheaper than British energy is because they rely not only on their hydroelectric generation, which is a geographical fact, but very largely on nuclear power stations, which are much cheaper in supplying power to industry and to homes?
The Earl of Avon: My Lords, I agree with my noble friend that that is indeed one of the factors why French electricity prices are more reasonable than our own. I should add that the Government consider that safety is of paramount importance and the nuclear industry has an excellent safety record. The United Kingdom now has a quarter of a century of safe nuclear power and in over 300 reactors has accumulated years of experience in operating commercial nuclear power stations.
Lord Blyton: My Lords, is the Minister aware that any argument for nuclear power stations means the destruction of the coal industry and that there is 350 years of coal under our feet? Is the policy to destroy the coal industry in favour of nuclear energy?
The Earl of Avon: No, my Lords, it is not. I am afraid that I cannot agree with the noble Lord's hypothesis.
Lord Ezra: My Lords, may I ask the noble Lord the Minister whether, in reference to the cheapness of French electricity, he could indicate to us what are the losses made by the French electricity industry compared with the profits made by the British electricity industry?
The Earl of Avon: My Lords, once again I think that we are straying a little from the subject matter and I have not tried to extrapolate the EDF's finances over the past year.

Accused Persons: Newspaper Photographs
2.41 p.m.
Lord McCluskey: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the Lord Advocate is prepared to issue guidance to the

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publishers of newspapers circulating in Scotland as to the risks they will run if, between the dates of arrest and trial, they publish photographs of persons accused of serious crimes, allegedly committed in Scotland.
The Lord Advocate (Lord Mackay of Clashfern): My Lords, while I have made it clear to newspaper editors and others that I am always willing to discuss the subject of what may properly be published in relation to cases being investigated or prosecuted, I do not consider it appropriate that I should issue guidance to newspaper publishers on the subject of contempt proceedings arising out of the publication of a photograph of an accused.
Lord McCluskey: My Lords, I thank the noble and learned Lord for that reply. May I ask him whether he agrees with me that the clear and unambiguous line which he has taken on this matter, not only today but especially in his Written Answer to my Question of 9th March, is likely to give satisfaction? This is not only to those who fear that the law in Scotland is in some danger of becoming obscure and uncertain in its application, but also to those of us who were afraid that by stages we might approach a situation, which is perhaps threatened in England, in which pre-trial publicity might prejudice the outcome of important criminal trials in Scotland.
Lord Mackay of Clashfern: My Lords, I am very grateful to the noble and learned Lord for what he has just said so far as Scotland is concerned.
Lord McCluskey: My Lords, has the noble and learned Lord nothing to say to the House about the situation in England, given that recently, well before any criminal trial, there have been published in national newspapers circulating in England photographs of an accused person fully identifiable and handcuffed to two detectives? Is that a matter which he can view from the Front Bench with satisfaction?
Lord Mackay of Clashfern: My Lords, as the noble and learned Lord well knows, my responsibilities relate to Scotland and I am not aware of the detailed circumstances of the case to which he refers. I am sure he must agree that the best judgment I can exercise upon it is to make no comment upon that particular matter.
Lord Morris: My Lords, is my noble and learned friend aware, as I am sure he is, that pre-trial publicity can be of the greatest importance in certain cases in establishing the innocence of an accused person?
Lord Mackay of Clashfern: My Lords, I am not at all certain that I can agree with that as a general proposition. Indeed, I think the progress of the law in England suggests that the view in this country would accord with my own, because the amount of pre-trial pub-licity has, I think, gradually been reduced.

Cruise Missiles: Dual Control
2.44 p.m.
Lord Kennet: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what would be the cost to the United Kingdom of a small British double-key custodial force to ensure dual control of the United States cruise missiles which may have to be stationed in this country, analogous to the United States custodial force which ensured dual control of the Thor missiles which were stationed here around 1960.
The Minister of State, Foreign and Commonwealth Office (Lord Belstead): My Lords, the United States custodial force for the Thor missiles which were stationed in this country was provided for the custody of the nuclear warheads which remained in full United States ownership. The cruise missiles force to be based in this country will be owned and operated entirely by the United States. Ownership of the warheads cannot, by international treaty and United States national law, be transferred to the United Kingdom. The question of a United Kingdom custodial force for the warhead does not therefore arise.
Lord Kennet: My Lords, I am grateful to the noble Lord for his Answer, but I wonder whether he could give us another answer which is more closely related to the Question: namely, the cost to the United Kingdom of a custodial force to give us a physical dual-key arrangement in connection with the United States missiles?
Lord Belstead: My Lords, I cannot give an answer in cost terms to the question which the noble Lord asks because the noble Lord asked about a system analogous to the one which the Americans had when Thor was in use; and that was the Question to which my Answer was directed. However, if what the noble Lord means is: would the United Kingdom Government put a figure on the cost to the United Kingdom of providing the missile while the United States retained the warhead of cruise?, then the answer has been given in another place and it is: capital, £1 billion.
Lord Bishopston: My Lords, does the Minister agree with the Prime Minister, who I believe has said quite clearly that there is dual control and we need have no worries, or with the Defence Secretary's fairly recent remark that £1 billion would be concerned? If this is a joint effort, surely there is no justification for one ally to pay another ally this enormous amount of money. Will the noble Lord also agree that there is a growing amount of concern on all sides in both Houses of Parliament regarding the need for control jointly by both powers?
Lord Belstead: My Lords, I absolutely acknowledge that there is concern on this most important subject. There is not a difference of view between my right honourable friends the Prime Minister and the Foreign

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and Commonwealth Secretary on the existing system of joint decision, which has been in existence since the time of the Labour Government in the early 1950s. Both my right honourable friends, so far as that is concerned, have made it clear that they are satisfied that our arrangements are adequate and workable.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that a growing number of people regard the cruise missile as increasing the threat of extinction rather than as being a means of defence? In the circumstances, would it not be better if it were not deployed at all?
Lord Belstead: My Lords, cruise is a second-strike weapon. That should give comfort to the people of Europe.
Lord Cledwyn of Penrhos: My Lords, do the Government regard joint decision as equivalent to dual control?
Lord Belstead: No, my Lords.
Lord Mayhew: My Lords, would the noble Lord say whether the billion pounds is simply an estimate made by the British Government or whether it is an estimate agreed between the two Governments?
Lord Belstead: I am sorry, my Lords; would the noble Lord repeat the question?
Lord Mayhew: My Lords, is this billion pounds simply an estimate by the United Kingdom Government, or has it been agreed between the two Governments?
Lord Belstead: My Lords, in the House estimate made by the Ministry of Defence it is capital costs.
Lord Kennet: My Lords, would the noble Lord not agree that it is most desirable that in answering Questions in this House the Government should avoid the least suspicion of quibbling? Would he accept that the probable cost of the kind of dual-key arrangement which he knows quite well I am talking about might be somewhere between £100,000 and £200,000 a year?
Lord Belstead: My Lords, I most certainly do not accept that. I answered the noble Lord's Question originally, and I thought I answered it rather well.
Lord Gladwyn: My Lords, if I heard the noble Lord right, he said that the cruise missile was a second-strike weapon. Does that mean it could never be used on a first strike?
Lord Belstead: My Lords, no politician would ever use "never"; but the noble Lord knows the performance of cruise. Its performance is consonant with its being a second-strike weapon.

Trident 2 Missiles
2.49 p.m.
Lord Kennet: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the decision of the United States Defence Department to add $88 million to the United States Navy's fiscal 1984 budget request in order to develop a new ballistic re-entry vehicle for the Trident 2 submarine-launched ballistic missile, with a higher nuclear warhead yield, affects their plans to purchase Trident 2 missiles from the United States; and if so how; and whether the proposed British warhead for Trident 2 missiles in the hands of the Royal Navy will be superior or inferior in performance and yield to the proposed new American warhead.
Lord Belstead: My Lords, the decision of the United States Department of Defence to seek funds for the development of a new ballistic re-entry vehicle for Trident with a higher yield warhead does not change the plans of Her Majesty's Government to purchase Trident 2 missiles. The British warhead for Trident is being designed to meet the United Kingdom deterrent requirements, and the question whether it is superior or inferior to any future United States warhead development does not arise.
Lord Kennet: My Lords, would the noble Lord accept that I am most grateful to him for a very clear answer in this case?
Lord Belstead: My Lords, I am most grateful to the noble Lord.
Lord Bishopston: My Lords, will the Minister accept that, with the escalating costs of even bigger and better—if "better" is the right word to use—weapons, which can be far more devastating, the Trident 2, which the Government seem to be so keen on, will be out of date? In view of the fact that Trident 2 will cost about £10 billion, is he aware of the widespread fears on all sides that this amount of money for this nuclear potential may mean that we are not equipped adequately in the conventional role, and that, in the event of an emergency, we shall go nuclear before anything else?
Lord Belstead: My Lords, I must say that that is the first time I have heard from the Labour Front Bench in either House a case being made that we should do more in the nuclear field over the next 15 to 20 years than the present Government are intending to do. But I believe that the present Government's plans are right. We are intending to maintain our independent nuclear deterrent which will be effective, while, at the same time, continuing to spend considerable sums upon our conventional forces.
Lord Bishopston: My Lords, may I make it clear to the Minister that I was not advocating a better weapon than the one which the Government propose. I was

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questioning even the decision of the Government to have the Trident, which, apart from other factors, has the enormous cost of £10 billion, and which may create other dangers with our conventional capability. I am certainly not justifying either.
Lord Belstead: My Lords, the answer to that is that it is a question of time-scale; that it is necessary to up-date our independent deterrent. This is what we believe Trident will do, and we think it will be an effective weapon for the 1990s.
Lord Jenkins of Putney: My Lords, do the Government not realise that the case for Trident has in fact, evaporated? Will they not listen to the noble and gallant Lord, Lord Carver, who described it as being of no bloody use?
Lord Belstead: My Lords, if the noble Lord thinks that the case for Trident has evaporated, why are the Russians so eager to count the British and the French independent deterrents in the bilateral arms talks which they are undertaking with the United States?
Viscount Trenchard: My Lords, would my noble friend agree that the last estimate that the Government made in relation to Trident was £7,500 million, and not £10,000 million as stated by the noble Lord opposite? Further, would my noble friend remind the House that that is to be spread over a period of over 15 years and constitutes approximately 3 per cent. of our defence budget?
Lord Belstead: My Lords, I am most grateful to my noble friend Lord Trenchard for both of the points which he has made in that supplementary question.
Lord Avebury: My Lords, if the Government are so keen on excluding the British nuclear deterrent from the negotiations which are now going on in Geneva, would the noble Lord say whether there are any circumstances in which the United Kingdom might bring this force into the equation and agree to scrap it as part of a balanced force reduction on both sides?
Lord Belstead: My Lords, I think that the Government have on several occasions made their position clear on that point.
Lord Hill-Norton: My Lords, is the noble Lord aware that the six former Chiefs of the Defence Staff still living, apart from the noble and gallant Lord, Lord Carver, have all stated publicly and repeatedly that they warmly disagree with him?
Lord Belstead: But, my Lords, the chiefs concerned are not the Government of this country, who have to look forward not only to the time of the period of office of this Government, but also to the periods of office of Governments to come. The Government have made it clear repeatedly, again and again, that we believe, along with the French Government, that it is necessary for the defence of Europe, and indeed of the free world, that we retain our independent nuclear deterrent.
Lord Hill-Norton: My Lords, I think that the noble Lord the Minister misunderstood my question. The point I was trying to make was that the views of the noble and gallant Lord, Lord Carver, which are so frequently prayed in aid by the noble Lord, Lord Jenkins, are disagreed with by all the other former Chiefs of the Defence Staff still alive.
Lord Belstead: My Lords, I am grateful to the noble and gallant Lord—far more grateful than I thought I was when he asked his question originally.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that it is not, in fact, customary for Ministers to ask questions of Opposition Back-Benchers? But since he has done so, I will tell him that the reason why the Soviet Union—
Noble Lords: Order!
Lord Jenkins of Putney: My Lords, I was asked a question. Is the Minister aware that the reason why the Soviet Union obviously want to include all weapons systems in any negotiations is that these weapons systems are targeted upon them? Just as we want to include weapons which are targeted upon us, so, obviously, they want to include weapons systems which are targeted upon the Soviet Union.
Lord Belstead: My Lords, the noble Lord's information about the real reasons of the Russians is ahead of mine.

Business
Viscount Long: My Lords, it may be for the convenience of the House if I announce that dinner will be available this evening at the usual time for a Tuesday of 7.30 p.m.
Licensing (Occasional Permissions) Bill
Brought from the Commons; read a first time, and to be printed.

Conwy Tunnel (Supplementary Powers) Bill
2.55 p.m.
Lord Lucas of Chilworth: My Lords, on behalf of my noble friend the Lord Privy Seal, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Lucas of Chilworth.)
Baroness White: My Lords, before I turn to the subject of the Conwy Tunnel (Supplementary Powers) Bill, perhaps I might be permitted to refer to the loss that we have suffered through the death last weekend of our Welsh spokesman in another place, Mr. Alec Jones. This, added to the death of the Parliamentary Secretary for Wales, on the Government side, and to that of the chairman of our Welsh Development

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Agency, which is the major instrument for public works in the Principality, means that within three weeks we have lost three of our leading public figures in Wales, all of them in their fifties. I thought it would be only appropriate, this being the first Welsh business that we have had, to mention that fact and to express our distress and sense of loss.
If I may now turn to this short and, on the whole, very welcome Bill, there are one or two points which ought to be made before it leaves your Lordships' House. I think it would be fair to say that there are no objections to the Bill itself. The objections which had been raised locally have, I understand, now been resolved. The one remaining concern with which I am acquainted is a very natural one, and that is that this major construction exercise in North Wales, which is expected to last some four to five years, shall rely, so far as it is at all possible, upon labour from the locality. North Wales has suffered grievously in the last few years from industrial decline, and, although it is at the edge of the historic holiday area of Wales, nevertheless it is within travelling distance of areas which have lost their industrial enterprises, and we hope very much that this will be taken into account in the arrangements made for the construction work in the area.
But further than that, I hope very much that we may be able to receive some assurance from the Minister, to whom the matter has been mentioned, that, in addition to the construction of the tunnel, full account is already being taken of the other cognate and related works which are needed, if we are to receive the full benefit from this entirely desirable enterprise. I was myself very much concerned in the whole exercise of changing the mind of the Secretary of State for Wales, who originally thought he wanted a fourth bridge in parallel with the three existing bridges, one of which, at least, disfigures the Conwy estuary. The one constructed by Telford, and the other constructed by Stephenson, might be regarded as historic ornaments, but not, I fear, the rather mediocre construction of 1959.
But valuable though it is to have the tunnel construction, which is broadly welcomed, and for which this Bill makes provision, its value will be very greatly reduced for the historic city of Conwy itself, although it will be of great value to the holiday areas to the west and to those proceeding to Snowdonia, unless other undertakings are realised which will protect Conwy, which is designated an area of special conservation value. It is a mediaeval walled town, almost complete. We lack, I fear, the colour and the sunshine of Carcassonne, but our walls are a good deal more authentic than some of those and they are adjacent to one of the most splendid historic castles in the whole Kingdom. It is an architectural triumph. It is also, historically, one of the leading monuments in Europe and of international standing.
It is of the utmost importance that when one is securing a better traffic flow to Llandudno and other resorts to the west one should pay the fullest possible attention to maximising the benefits for the town of Conwy itself. The tunnel enables through traffic to by-pass this precious monument, but unless further steps are taken, on traffic management and car parking in particular, the town itself, although it will certainly
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be relieved of a good deal of through traffic, will not realise its full potential as a quite splendid example of almost unspoiled mediaeval architecture.
It is for this reason that those of us who advocated the tunnel in the first place also have both hopes and apprehensions about the other arrangements which may be made. From the exit of the tunnel to what is now called the North Wales expressway—not a term I myself particularly like: possibly my noble friend Lord Cledwyn of Penrhos can turn it into more musical Welsh—there is a slipway which will bring the traffic across the estuary and then hack towards the northwest entrance in the great wall through which pedestrians can pass with ease, but only if adequate provision is made for them to park their vehicles on the outside of the walls. This will be a very expensive project. I am concerned that the Government should recognise the international status of Conwy. I doubt whether the district or, in this case, the county council would undertake works on the kind of scale which will be needed if one is to maximise the advantages of this alternative entry to the town.
If one is going to see Conwy as it should be seen, it is also essential that there should be a degree of pedestrianisation of the main street. If one entered from the north-west instead of from the south-east, which one does at present, one would then have a magnificent, almost processional way from the gate down the main street to the great castle below. I believe that this is of very considerable importance if one is to maximise the value of the tunnel approach, by contrast with the original bridge proposal. I shall not weary your Lordships with the details. Those who know Conwy know exactly what I mean. Therefore I ask noble Lords to take my word for it that unless great care is taken over traffic management and car parking one will lose a good deal of the value for Conwy itself of the construction with which this Bill is concerned.
I am really saying, through the noble Lord the Minister to his right honourable friend the Secretary of State for Wales, that the Government should recognise that this is an internaional situation and not one for which local authorities, unaided, should be expected to take full financial responsibility. It is a situation where one has something which should be safeguarded by the fullest and most imaginative treatment of the totality of the scheme, not merely the construction of the tunnel, which in itself we fully welcome.
3.5 P. M.
Lord Cledwyn of Penrhos: My Lords, I join with my noble friend in saying how very greatly we shall miss Alec Jones who was held in such high regard and affection in Wales and, indeed, in the House of Commons, where his services were so much appreciated on all sides of the House. His contribution to Welsh public life over the last 20 years or so has been significant. We sympathise with his wife in her bereavement.
We are grateful to my noble friend for raising these questions about the Conwy Tunnel (Supplementary Powers) Bill. Some of the matters which my noble friend raised were referred to during the Second Reading debate which, because of other commitments, she was unable to attend. The point about local

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unemployment and the need for work was stressed at that stage. We were glad to receive the assurance of the noble Baroness the Leader of the House who replied on that occasion that strenuous efforts were being made to ensure that the builders, and any subcontractors, would use local labour, wherever possible. We also urged that the Government should look at the Dinorwic hydro-electric scheme as an example of a case where over 2,000 men were employed and the locality was able to find well over 80 per cent. of the workforce. Those men are now available. Because of the rundown of the construction of the hydro-electric scheme they are unemployed. We all hope that new opportunities will arise here for those men.
My noble friend was also right to remind us that Aberconwy Castle is concerned, because of the inevitable problems that will arise during the four years of construction. As my noble friend has reminded the House, we are considering a walled town and castle of outstanding historic importance. I should remind the House that 1983 is designated in Wales as the Year of the Castle. Certainly we have a duty to preserve our castles. I agree with what my noble friend said about making part of Conwy a pedestrian area. I do not propose to make the rest of this speech in Welsh, as my noble friend suggested, however interesting that might be. My noble friend Lord PrysDavies took the Oath in Welsh recently and I shall be content with that for the time being. But pedestrianisation of an area of Conwy would be extremely helpful. It is also interesting to learn that the advisory committee has met only twice since 1976. In view of this major scheme, that seems to me to be quite remarkable. Perhaps the noble Lord can tell us why the committee has not been so active as it might have been.
I agree also with what my noble friend said about parking facilities. I know Conwy very well indeed. I know that the need to plan parking facilities with the utmost care is vital in the interests not only of the residents of Conwy but of the enormous numbers of people who come to Conwy for tourist purposes during the summer months. The A55 is one of the most important roads in Wales. Parking facilities are, therefore, of the first importance. I hope that the scheme will now go forward speedily and successfully.
3.9 p.m.
Lord Lucas of Chilworth: My Lords, we all share the sorrow expressed by the noble Baroness, Lady White, at the sad news of the death over the week-end of Mr. Alec Jones. As the noble Lord the Leader of the Opposition has said, he played a most valuable part in the life of Wales and will be sorely missed by his friends.
I now turn to the Bill before us. It might be as well if I reminded noble Lords that we have to take into account a number of factors. Certainly to make the best use of the improvements which the Government are making to this strategic A55 trunk road it is necessary for the local authorities to make their own arrangements to gain maximum benefit for their localities. In the context of the scheme that is the subject of this Bill, Gwynedd County Council and Aberconwy Borough Council have jointly produced a
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local plan that takes account of the changes resulting from the scheme. The needs of the tourist industry have figured large in the planning process because it is so vital to the area, and recognised as being such. For example, I understand that among the traffic management schemes which are being contemplated there is certainly a new car park proposed for construction in Conwy.
Another feature of the proposals for dealing with the traffic is the proposed Llandudno Link Road. Noble Lords will understand if I pass no comment on this matter, because my right honourable friend the Secretary of State for Wales has to act in a quasi-judicial capacity in confirming or otherwise the compulsory purchase order and side roads order promoted by the local highway authority. I can say in general terms, however, that the local authorities have already demonstrated an awareness to do what is necessary to complement the Secretary of State's improvement works in the interest of their areas. I myself can recall having been stationed at Bangor, unhappily many years ago. I recall the area as being one of very great beauty and charm. There is no doubt that the Welsh Office and my right honourable friend will have the general significance of the area well in mind when discussing this matter with the local authorities.
With regard to the pedestrianisation of Conwy, to which both the noble Lord, Lord Cledwyn of Penrhos, and the noble Baroness referred, this matter has to be treated most sympathetically. The environment of the ancient town of Conwy, with its magnificent castle and town walls, to which the noble Lords, the Leader of the Opposition and Lord Hooson, referred eloquently at Second Reading, will benefit enormously when this scheme has been completed, by allowing through traffic to by-pass the town. It is estimated that the town will be relieved of more than 60 per cent. of its traffic in consequence. In such circumstances, the conditions for pedestrians will be significantly improved and the possibility of pedestrianisation, or other ways of giving pedestrians greater priority, come to mind. Such proposals are obviously for consideration by the local authorities in the first instance. I understand that Aberconwy Borough Council is very conscious of the need to plan ahead for the situation when the tunnel is completed, at which time I hope—and I am sure that all noble Lords hope—that the numbers of tourists and visitors to Conwy may be even greater than those coming to the town at the moment.
This development provides a unique opportunity for all the bodies concerned—not least central Government—and the points that have been made this afternoon will of course be taken into account in all the considerations. The noble Baroness made a particular point with regard to local labour. We have had debates quite frequently in your Lordships' House—even last night—with regard to the employment situation. Clause 17 of the Bill gives encouragement for the use of local labour in the construction works, and my noble friend the Lord Privy Seal made a particular point of this during the course of the Second Reading. I am happy that the Bill has been given a very favourable reception in both Houses. The improvement scheme that this Bill will enable has been widely welcomed, both because it will remove a bottleneck to trunk road traffic and because it is an

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imaginative solution which will preserve and enhance the environment of the ancient town of Conwy. Incidentally, it will be the first time that a road tunnel of the immersed tube type has been constructed in this country and I know that the project will attract a great deal of interest.
As noble Lords are aware, a number of features of this Bill reflect various points put to the Welsh Office in consultation with the statutory authorities and with local bodies having an interest in the scheme. I know that the Welsh Office will continue to liaise very closely with all parties to ensure that the work is carried out with as little disruption as possible in the area, and will lead to the satisfactory conclusion of a matter which has been long outstanding.
On Question, Bill read a third time, and passed.

British Fishing Boats Bill
3.15 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Restrictions on fishing, etc., by British fishing boats]:
Lord John-Mackie Lord John-Mackie moved the amendment:
Page 2, line 34, at end insert ("; and no such order shall be made before the expiration of three months from the passing of this Act.").
The noble Lord said: In moving this amendment to the Bill, I should first like to apologise for the noble Lord, Lord Saint Oswald, who has his name down to this amendment, not being here. He has a longstanding Territorial Army engagement. We all know of his interest in that and I believe we can excuse him for not being here; I hope that I can put the case as well as he would have done.
We put down this amendment because, taking a look at the history of this matter, these boats started coming to this country and being registered under a flag of convenience, in May 1980, nearly three years ago. In that time, a considerable business has been built up in the south-west of this country in particular, and in the south-west of Wales as well—particularly at Milford Haven. This business has helped southwestern boats and the businesses connected with fishing to a considerable extent.
I do not wish to delay the House long by detailing at length the help that has been given because I did so at Second Reading. But, quite frankly, if one looks at this situation one finds that it is almost equal to foreign investment. Not very long ago, I listened to the chairman of the Conservative Party defending foreign investment very well, and saying that it was something we should encourage as it brought aid to this country and often did more good than home investment. I
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should just like to make the point that this is foreign investment of a kind, and that the party of the noble Lord responsible for this Bill gives its blessing to this kind of aid. I believe therefore that this should be given some consideration, even though "quota hopping" and anything else that breaks the spirit of the law on fishing requires to be put right by legislation; the Government have brought in this Bill to do just that, and I am perfectly agreeable that it should be done.
Frankly, I have doubts about much of the propaganda floating about on both sides about the situation in the fishing industry. It is very difficult to get at the exact position in the fishing industry. I have done quite a bit of research into this matter, and the more research I do the more mixed up I become. But there is something to be said for giving more time to these people, and I shall come to that particular point in a moment.
One must give consideration to stopping such a large operation. It is indeed a large operation, with something like 57 boats operating. They have been established for three years, as I said earlier, and now we shall be stopping them more or less overnight—and the Government want this Bill through quickly. I gather that the Bill will be finished at the beginning of April, and in my opinion there could be many injustices caused by doing that. After all, a lot of British people are involved and a lot of British capital. Probably a lot of jobs will be at risk if something is not allowed to be done by more time being given.
When I look at the retirement of Mr. Austin Laing, which was reported in the Fishing News International, I recall that anybody who knew Mr. Laing knows how much he did for the deep sea fishing industry. When he says that in 1973–74 there were 600 deep water vessels in British and Scottish owned trawler fleets, and goes on to say, "Now I doubt if they can muster much more than 50 active trawlers", one can see what has happened in the British fishing industry. I would have thought that here was a chance to augment those 50, if, given time, they could comply with the conditions of this Bill and the conditions of the order; it is a chance to replace a lot of that fleet that has been lost. Of course, as we know, in two years' time Spain will be a member of the EEC anyway. I would have thought that this was a chance not to be missed, if these people were given time to adjust themselves to the new conditions of this Bill.
Quite frankly, I feel that this order, coming out so quickly after the Bill passes, is almost like retrospective legislation. I would say also that the whole thing is rather like import control, and I do not think the party opposite believes in import control. That is what it amounts to in some ways. I would say, therefore, that they should be given time, either to comply with the new legislation—which will not be easy because, fishing having got so much in the doldrums, it is not easy to get British or EEC fishermen to man these boats—or to be able to phase themselves out of the business in some sort of order.
The noble Lord, Lord Saint Oswald, wanted to put down an amendment to delay for six months or even a year. We argued quite a while about what would be the best way to do it. I wanted to maintain our promise

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from this side of the House that we would not delay the Bill. So I suggested that three months, although a very short time, might be something that the Government could accept; it is not long to delay this to give these business people some chance to adjust to the new law. I feel that three months is not at all an unreasonable time to wait before the order is laid. Quite frankly, I think it is elementary British justice to do this, and think it would do us a lot of good if we accepted this amendment. I beg to move.
Lord Campbell of Croy: The amendment which the noble Lord, Lord John-Mackie, has moved would have the effect of delaying an order laid under this Bill for three months, and I would ask, what will this achieve? I doubt whether it will do very much good for those for whom the noble Lord, Lord John-Mackie, has been pleading the case. When the expected order comes into effect, whether in April or in May, as I certainly hope, or three months later, these ex-Spanish boats will have to modify their fishing plans. They have already had plenty of time in which to prepare for this, as I will explain.
The noble Lord, Lord John-Mackie, when he was speaking at Second Reading, stated, at column 671, that the boats based on Milford Haven, about which he was speaking—I believe there are eight—now spend about half their time fishing in the Bay of Biscay in what he described as the high seas and therefore international waters. So in future they will have to spend more time fishing in such areas. That part of their operations will not be affected by the order the Government contemplate. These fishing boats, of which there are at least 60 now registered in ports around the United Kingdom, including Scotland, are not being denied all fishing opportunities.
No one can claim that this Bill and the subsequent order are unexpected. Those who have entered into these arrangements since about 1980 have done so with their eyes open. If they have not, they have been totally insensitive or ignorant about the British fishing industry. They must have known that operations of this kind, with a brass plate in the United Kingdom, a British skipper and mate simply to meet the requirements of registration, would be stopped at any moment while the negotiations within the EEC were going on, and would certainly be stopped once agreement on a new fisheries policy had been reached. That, of course, occurred in January, but could have occurred at any time during the previous year.
Of course, I sympathise with what the noble Lord has said about providing some employment at Milford Haven. That is a particular case that he has taken up because he has been provided with facts and figures. But he did say, again on Second Reading, that there were no suitable United Kingdom fishermen there except some who were too old for the job. They were not available. Neither were there fishing boats there which could do the job. So there were neither the men nor the boats on the spot at Milford Haven. In contrast, at a number of traditional fishing ports round our coasts there is spare capacity; United Kingdom boats are under-used and British fishermen are underemployed. The reasons for this the Committee will know. There are quotas, there are bans on fishing for certain species at various times of the year in certain
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areas, for good reasons, because of the strain there has been on fishing stocks and the scarcity of fish. Above all, the 200-mile limit adopted internationally in 1976 has meant that all of Europe's fishing fleets are having to concentrate on waters near Europe, instead of, particularly where the British are concerned, fishing in traditional waters distant from this country and off the shores of other countries. In the past that was where most of our fish were caught.
In that connection, I would like to refer to what the noble Lord has just said about Mr. Austin Laing. I, having been involved, not in the fishing industry itself, but in its interests for nearly 30 years, of course knew Mr. Laing well. But he was in the Trawlers Federation until recently, until the 1976 extension to 200 miles meant that the various parts of the industry had to come together. So when he spoke about 600 trawlers in the past and very few now, it illustrates what I have just been saying, that it was our distant water fleet which was very much reduced as a result of these international trends. I think the noble Lord fell into the trap of thinking that every fishing boat is a trawler. That is not so. Of course, a trawler is a fishing boat.
Lord John-Mackie: May I say to the noble Lord that I was brought up in Aberdeen.
Lord Campbell of Croy: It certainly sounded as if he had fallen into that trap, because he quoted Mr. Laing as talking about trawlers, which of course was his business. But of course the inshore fleet, the fleet fishing in European waters now, is made up not only of trawlers but seine netters, herring boats, and other kinds of fishing boats as well. It is because of the very trend to which Mr. Austin Laing referred, the fact that our distant water fleet has been so much reduced, that there is unemployment in our fishing fleet as a whole, and many of those men have had to turn to the inshore fleet and fishing in those waters which are the EEC pond.
It has been abundantly clear to all who are in touch with sea fisheries that the situation was going to change as I have described. Indeed, your Lordships' Select Committee on the European Communities studied fisheries in 1980, and in its report entitled The EEC Fisheries Policy, published in the autumn of 1980, it reached certain conclusions. I remember this because I was a member of the sub-committee which went into this matter and also spoke in the subsequent debate in the House.
In its conclusions our Select Committee stated in the autumn of 1980 that the United Kingdom fishing industry was in grave difficulties, mainly because of the loss of catching opportunities. It also stated that in the necessary reconstruction of the United Kingdom fishing industry controlled entry to the industry was essential, because of the limited opportunities available in the foreseeable future. All this, therefore, was public knowledge in 1980. Our committee was by no means the only voice expressing these facts and conclusions. It should have been known in Milford Haven as elsewhere. Surely any additional employment in fishing should, if possible, be steered to ports where there are already British fishermen needing that employment.
The noble Lord, Lord John-Mackie, again at

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Second Reading, said that at Milford Haven they were having to train young men to become fishermen or bring them from other ports, and in those cases they did not stay for very long. This really does not make sense when trained United Kingdom fishermen in other ports, with their boats, are having to make do on United Kingdom quotas—those same quotas which are being eroded by these ex-Spanish boats. The additional employment required at Milford Haven, I would suggest, would be more appropriately used in other industries or services, but not in the fishing industry.
I hope the Government will not accept this amendment. Those who are operating businesses based on ex-Spanish boats must have known that it would end abruptly. If not, they have less intelligence or knowledge of the fishing industry than I credit them with. They should have had alternative fishing plans all ready to turn to, once they were to be stopped, and rightly stopped, from catching part of the United Kingdom quotas allotted within the EEC fishery limits. The health and the future of the bona fide United Kingdom fishing industry must be our first priority, where the catching opportunities in home waters are now so restricted.
3.34 p.m.
Baroness Hornsby-Smith: I should like to agree with everything that my noble friend Lord Campbell of Croy has said and assure him that we have fishermen available in the south-west who would be very happy to take out some of their laid-up trawlers. On the face of it this amendment appears to be one of tolerant reason, but on the basis of information which, quite honestly, has poured in to me over the weekend from Milford Haven and from very distinguished members of the EEC Fisheries Committee—including Mr. Battersley, who has recently come back from Spain, where he was discussing fishing in advance of the Spaniards coming into the Common Market, so I think we can take it that my information is up to date—I believe that this three months' delay is one of the most ingenious proposals that has been deployed for the Spanish ships in this whole exercise.
The United Kingdom quota for hake is just under 4,000 tonnes, and now is the season for fishing hake. If there is a three months' reprieve, the bulk of the hake fishing quota for the year will be taken up by these Spanish boats. They will reap rich pickings during the next three months, and our quota of hake for the year will be substantially taken up. Further, I am informed that fishing for hake does not provide an exclusive catch. In catching hake, one also picks up two and a half to three times as much other fish taken in the nets, all of which deprives the United Kingdom fishermen of still more of their quotas.
I understand that, according to the EEC, the Spaniards have between 120 and 140 boats licensed under the general fishing regulations. These 60 boats registered as British are over and above that number, and they are taking up our quotas of fish which are registered against the United Kingdom.
During the Second Reading debate it was alleged that the Spaniards provided considerable employment. The container trucks operated by these
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companies out of Milford Haven, and some from Plymouth and other south-western ports, to transport the fish over the Channel, are Spanish-registered trucks. They are driven by Spanish drivers: and the back-street office run by one of these syndicates in Milford Haven is manned by Spaniards. There is not much United Kingdom employment in that. Apart from the British skipper and mate, who are the cover for the British registration, the skilled crew is Spanish. But recently, since this matter was raised in this House last autumn, they have been taking on not local unemployed trawlermen but Job Opportunity lads, on a wholly casual basis and with no real fishing experience.
Finally, one has heard of "having your cake and eating it". If your Lordships will forgive me, I think this is the most important and revealing point of the lot—the Spanish origin and ownership of these trawlers. The duty on fish imported into Spain is 18 per cent., yet these so-called British trawlers, which should be paying that duty, are admitted to Spanish ports and charged no duty as the Spanish customs recognise these boats for what they are—Spanish trawlers.
Similarly, the Spanish trucks have their paper work done by the Spaniards in the English office. They take their catches from Britain with documents prepared by Spaniards, and they sail through Spanish customs on the border, duty free. The Spaniards cannot have their cake and eat it too. If these are British boats, they should be paying the 18 per cent. duty. They have themselves acknowledged, by not charging duty, that they do not regard these Spanish boats as United Kingdom registered.
Having taken the major part of the hake catch, plus the additional fish caught, which lessens the EEC quota of fish allocated to the United Kingdom, and having evaded the levies and landing charges which are the basic income of our inshore ports, these owners, by going in duty-free, are undercutting the local Spanish fishermen. It was ironic to have read to me a news cutting from Bilbao about the local fishermen there complaining bitterly about the advantages of loans to buy the boats and grants to pay for British registration which have been provided by the Spanish Government, and the advantages given to these boats over the inshore fishermen of Bilbao.
There is a lot of money in this poaching. The exercise was originally started up in the Channel Islands some years ago, about 1977. It proved so lucrative that it was extended to the United Kingdom, with the disastrous results that my noble friend and others have outlined. They are now beginning to invade Irish fishing waters, and the Eire Minister of Fisheries has recently announced that he is considering action similar to our own.
These trawlers are landing in Spain about 100 tonnes of fish a day from United Kingdom waters; over the year, possibly 24,000 to 30,000 tonnes of hake and other fish. This poached trade is estimated to be worth £7 million. To allow this practice to continue in a prime fishing season, such as this period of three months, is to make a nonsense of the EEC quota system. It deprives our own fishermen of catches rightfully theirs and our needy fishing ports of their

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main income from landing charges. Still further, it deprives the British housewife of the opportunity of cheaper fish, which only comes with good catches. If we are to have any consideration for our hard-pressed fishermen, I beg your Lordships to oppose this amendment.
3.40 p.m.
Earl Ferrers: I must say that when I first saw this amendment had been tabled I was querulous of the seemingly unholy alliance between the noble Lord, Lord John-Mackie, on the Opposition Front Bench and my noble friend Lord Saint Oswald from the Benches behind me. The amendment did come as something of a surprise.
I thought that the speech of the noble Lord, Lord John-Mackie, was very reasonable in tone but astonishing, if I may say so with the greatest of respect, for its naiveté. My noble friend Lady Hornsby-Smith has explained what happens with the so-called ex-Spanish vessels which catch fish and take the catch over to Spain where it is landed in the Spanish ports free of duty, against which our own fishermen have no such facility. She is quite right. Although the Spanish vessels are now registered in the United Kingdom, the Spanish authorities still treat them as Spanish for the purpose of import duties. The fish they land in Spain is not liable to the import duty which is paid by genuine British vessels making landings in Spain. As an example, for fresh and chilled hake these duties are 5 pesetas per kilogram, from March to August each year, while for frozen hake the duties which our fishermen suffer, but which these ex-Spanish vessels do not suffer, are 23 per cent. of the value of the catch.
The debates in both Houses of Parliament have shown that there is a widespread condemnation of the activities of these ex-Spanish operators, and there has been a genuine recognition that the Government are right to take urgent action to deal with the problem. I explained on Second Reading that it has taken some 10 years of difficult and frustrating negotiations to achieve a common fisheries policy which, among other things, has provided the United Kingdom fishing industry with the certainty that quotas of various species are theirs for the taking.
Now what happens is that we have a group of people who have found a way of circumventing these arrangements by exploiting a loophole in the system. The agreement between the European Community and Spain was carefully drawn up and it provides quite deliberately for the fishing opportunities of vessels from Spain to be degressive—in other words, to get less. In 1978 there were 240 of those vessels. In 1982 they were down to 130. That is the reason why these operators have re-registered as British. It enables them to fish the quotas which ought rightly to be reserved for the genuine United Kingdom fishing industry.
The noble Lord, Lord John-Mackie, calls this foreign investment. I do not consider that to be foreign investment. He says that they are very large businesses. He is quite right. But what are those large businesses? They are large businesses basically of Spanish boats fishing in British waters and masquerading under the British name by having some brass plate companies. Everything that the noble Lord, Lord John-Mackie,
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said was, in fact, an argument in favour of the Bill and against his amendment.
These people are catching a very valuable species of fish which is of considerable interest to our local catchers, and if they are permitted to continue that fishing their landings will count against our quota under the common fisheries policy, provided those landings are reported. If the catches are not reported, frankly this means that the species is being plundered and not conserved. Either way, it is totally unsatisfactory.
What we are talking about here is not a change of Government policy. We are simply seeking to tighten a loophole. In any area of life or organisation if a loophole is found which enables people to defy the clear intention of legislation and of Government policy, it is the Government's duty to close the loophole as quickly as possible. Those who try to profit from a loophole are in a high risk business. They are playing for high stakes and they know that when their loophole is closed down, as well it may be, they will suffer. They are in no position to complain when that loophole is closed down.
I find it extraordinary that the noble Lord, Lord John-Mackie, should say, "Yes, but let us close the loophole down a little bit slower, and let them have three months in which to close down this high risk business in which they are engaged." The noble Lord, Lord John-Mackie, says that we should give these operators time to adjust, and his amendment suggests another three months. I can assure the noble Lord that these people have had time. The main English managers, as my noble friend Lord Campbell of Croy said, were warned towards the end of last year of the Government's intentions and had been given a clear indication of the proposed crewing requirements early in January. They have already had time. They have had three months. But what has happened? Nothing. They have not taken advantage of that three months. Furthermore, 10 more vessels are now either going through the re-registration procedure or have made clear their intention to do so. They are, of course, acting entirely within existing law, but they are exploiting it. The Government are quite right to ensure that that exploitation ceases as soon as possible.
My noble friend Lady Hornsby-Smith referred to the problem of hake. Perhaps I may tell your Lordships that in 1982 about 3,300 tonnes were landed in the United Kingdom, largely by bona fide United Kingdom vessels, admittedly mainly as a by-catch from other fisheries. Only 200 to 300 tonnes were landed in the South-West, with the bulk coming from Scotland. We were informed that 1,100 tonnes were landed in Spain by the ex-foreign vessels. In our view it is highly likely that they landed much larger quantities which were never declared. On present estimates and based on the actual discharges by these vessels, it is assessed that a typical ex-Spanish vessel would have landed about 230 stones of hake per week. This produces a catch per year for 60 such vessels of some 4,600 tonnes, assuming that they performed equally with no laying up. It is considered that a catch of at least this magnitude was likely to have been achieved by the ex-Spanish vessels in 1982, giving an overall real catch during this year of at least 7,900

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tonnes, which is 4,100 tonnes above our quota of 3,800 tonnes and more than double what should be the quota from those areas.
I just ask this of the noble Lord, Lord John-Mackie. Does he really want, with his amendment, to aid, succour and to help those who are working and making a substantial living, sometimes, as my noble friend Lady Hornsby-Smith said, by employing three skippers; who know that they are doing so against the spirit of the common fisheries policy, against the interests of the United Kingdom fishermen, against the conservation of the United Kingdom and Community stocks of fish, and who are taking British fish either against our United Kingdom quota or in supplement to it by going undisclosed? Or would he prefer to support the United Kingdom fishermen? The noble Lord, Lord John-Mackie, said, in his own words, that he wants elementary British justice. Therefore, I hope that your Lordships will reject his amendment.
3.49 p.m.
Lord John-Mackie: We have had three speeches, and 60 or 70 per cent. of what was said by the three people who have spoken were Second Reading speeches. The amendment is purely and simply an amendment, as the noble Earl, Lord Ferrers, has just said, to provide elementary British justice to these people who have been allowed to go on for three years in this business and have wasted a lot of money et cetera.
May I deal with one or two points that were made. The noble Lord, Lord Campbell of Croy, the noble Earl, Lord Ferrers, and also, I think, the noble Baroness, Lady Hornsby-Smith, mentioned that the action that is being taken was not unexpected and that these people have had plenty of warning. I am not sure about that. How many of us really anticipate what any Government will do, what an order will be about, and one thing and another? I doubt very much whether one can say, until a Bill is passed or an order laid, exactly what will happen.
The business of the brass plate was quoted by the three speakers. All I would say is that I have been in touch with a firm in Milford Haven which runs these boats. I have not taken only their word for it; I have quizzed people in the area by telephone. This is a firm which has been there for many, many years. It was run by the present owner's father and grandfather. It is certainly not a brass plate operation at all. I think it is a little unfair to cite this brass plate business as if it were used all the time.
The noble Baroness, Lady Hornsby-Smith, and the noble Earl, Lord Ferrers, mentioned that the amendment that the noble Lord, Lord Saint Oswald, and I put down was an ingenious proposal. I am not quite sure what an "unholy alliance" between two noble Lords is. I may have it explained to me some day. All I can say is that the "unholy alliance" sat at a table out there and discussed the subject. We were in touch with nobody. I did not fix the date of this Bill, neither did Lord Saint Oswald. The fact that it has come today and that there are three months of the fishing season to go is purely coincidental. I thank the noble Baroness very much indeed for the compliment
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of suggesting that I am ingenious. That is how it was done. There was no question of thinking of the three months of the fishing season.
Baroness Hornsby-Smith: If the noble Lord reads my speech he will find that I said that the Spaniards had been ingenious. I was not casting any reflection on the noble Lord at all.
Lord John-Mackie: I am sorry about that; I thought that I was getting a compliment for being ingenious. But the noble Baroness must have thought that the Spaniards had got at me in some way or another. I do not know. But that is how the amendment was agreed upon, and there was no question of anybody getting at us with ingenious ideas or anything else.
I do not think that I shall go into all the arguments which were put on Second Reading. Our amendment is simply to provide that there should not be urgent action. I have already said that the matter has been going on for three years, and we thought another three months was not unreasonable. That is all that the amendment is doing. I would make the point—and the noble Lord stressed it very much—that there should be justice to British fishermen. All three Members who spoke went on about this. If they read my Second Reading speech they will see that I was in favour of the Bill. I interrupted the noble Lord and said I did not condone what was happening. In my short speech today I again said that quota hopping or anything else which breaks the spirit of the law requires to be put right by legislation. I agree with all that. If noble Lords had just listened carefully to what I said, they could have missed out all their Second Reading stuff and just dealt with the point whether we should give these people another three months (a) to comply with the regulations or (b) to phase out their business in reasonable time. However, I know when I am beaten.
Lord Campbell of Croy: It looks as if the noble Lord is about to withdraw the amendment, a course which I welcome. As it is a Committee stage I have another opportunity of speaking. I wish simply to deal with the point which the noble Lord made concerning what I said. I spoke at a little length today because I thought that it was important to make it absolutely clear why the people who are acting in this way with these ex-Spanish boats have had plenty of notice. They have known since they started that at any moment their operations would be stopped by the British Government. But in case it seems that I have not made that clear, even in the amount of time that I used today, I should like to reply to what the noble Lord has just said.
I would point out that they could not have failed, even if they had not seen the publicity, such as it was (and it was quite good for our Chamber) when the EEC Select Committee Fisheries Report came out in the autumn of 1980, to have seen the publicity in all the media concerning the negotiations to reach a new fisheries policy which were going on within the EEC and in which Britain was much involved over the last two years. Could they have thought that the United Kingdom was negotiating so hard in order to obtain a large quota for ex-Spanish fishing boats? Of course

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not. They must have known that as soon as those negotiations were ended and quotas and other arrangements had been won for the bona fide British fishing fleet, then these operations by Spanish boats would come to an end.
Lord John-Mackie: I take the noble Lord's point that this has been going on, but, as I said earlier, it is quite amazing how one thinks that things will come out differently in the end. I have not done any research, but I would bet anything that if one did research, not only on fishing but on a whole host of things on which legislation has come along, one would find that the matter had been known for a long time and very little action had been taken. I see the noble Lord, Lord Mackay of Clashfern, smiling as if I am right there. Very little action is taken until the legislation actually comes through. However, as I was saying, I know when I am beaten. Regretfully, I withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clauses 2 to 11 agreed to.
House resumed: Bill reported without amendment; report received.

Marriage Bill [H.L.]
3.57 p.m.
Lord Glenarthur: My Lords, on behalf of my noble friend Lord Elton, I beg to move that this Bill be now read a third time. In doing so, I should like to express my personal thanks to your Lordships for the courteous way in which our explanations of the complexities of this Bill were received, and my thanks also on behalf of the Government to those of your Lordships whose constructive comments and support for the principles of the Bill we much appreciate. Perhaps I may briefly mention in particular the noble Lord, Lord Mishcon, and the right reverend Prelate the Bishop of Derby, who made such helpful contributions to our debates and were generous enough to withdraw an amendment in the light of assurances from the Government to clarify a point of principle.
Although our discussions have largely centred on prisoners, I think that in sending this Bill to another place we can feel particular satisfaction that we have taken action to benefit a small, underprivileged section of the community—those who are disabled and housebound—so that they may enjoy a right that the rest of us perhaps take for granted. My Lords, I beg to move.
Moved, That the Bill be now read a third time.—(Lord Glenarthur.)
Lord Mishcon: My Lords, I am sure that the whole House will be grateful to the noble Lord for the way in which this Bill has gone through its various stages up till this one in your Lordships' House. I personally,
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and I believe that the right reverend Prelate would agree with me—and he will have an opportunity of saying so if he so desires—very, very much appreciated the way in which the matter that concerned both of us and many of your Lordships in regard to prisons and marriages was dealt with after a lot of patient consideration by the Government. I personally feel very delighted with the outcome of this matter, and I am sure that we all wish the Bill well in its further passage.
The Lord Bishop of Rochester: My Lords, in the absence of my right reverend friend the Bishop of Derby, I should like to speak from these Benches and to associate ourselves with what the noble Lord, Lord Mishcon, has just said. First, I should like to express our very special thanks to the noble Lord for the way in which he has carried the Bill through the House, and not least for the assurance which he gave us in response to the amendment moved by the right reverend Prelate the Bishop of Derby, without which I think he would have been quite unable to withdraw the amendment. It was a matter about which we knew those who served in Her Majesty's prisons as chaplains to feel very strongly. However, with the assurance that the governors will be given a firmer voice on that matter, we were very happy to withdraw the amendment. I hope, too, that the Bill will now go forward and become law before long.
Baroness Macleod of Borve: My Lords, as one who took a very minor part in the Bill, I should like to express to my noble friend the Minister how much I and many of my noble friends appreciate the way in which he has conducted this matter. Those of us who know quite a bit about the old people, the disabled, the prisoners, the psychiatric cases and the people who are unable to get either to a registry office or to a church, appreciate that with the passage of the Bill those people will be able to be married in their homes or in the place in which they reside. I personally feel that this is one of the most humane Bills that I have ever witnessed being passed in your Lordships' House in the 12 years that I have had the honour of being a Member. I certainly join with other noble Lords in wishing it a speedy passage through the other House.
Lady Saltoun: My Lords, I, too, should like to wish the Bill a speedy passage through the other House because I am so glad to think that at last the poor underprivileged English are to be equal to those of us who live in Scotland, who have always been able to get married in our own homes.
Lord Glenarthur: My Lords, I am grateful to all those who have spoken for the kind remarks that they have made.
On Question, Bill read a third time, and passed, and sent to the Commons.

Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Bill
4.4 p.m.
Lord Mackay of Clashfern: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Mackay of Clashfern.)
On Question, Motion agreed to.
House in Committee accordingly.
[The BARONESS WOOTTON OF ABINGER in the Chair.]
Clause 1 [Sheriffs to have jurisdiction in respect of actions for divorce]:
Lord Wilson of Langside Lord Wilson of Langside moved Amendment No. 1:
Leave out Clause 1 and insert the following new clause—
("Actions for divorce to be competent in sheriff court.
1. From and after the coming into force of these provisions actions of divorce shall be competent only in the sheriff court.")
The noble and learned Lord said: The clause as it stands confers jurisdiction in divorce on the sheriff court concurrent with the existing jurisdiction in such actions of the Court of Session. The amendment would have the effect of giving such jurisdiction exclusively to the sheriff court. I present this amendment in the meantime purely as a probing amendment because I think that there are two quite important matters upon which the Committee is entitled to enlightenment from the Government before approving the clause.
First, why did the Government reject the recommendation of the Royal Commission that divorce should fall within the privative jurisdiction of the sheriff court? I emphasise that I am not suggesting or even implying that the Government should have accepted that particular recommendation. A good deal was said on this matter in the other place and it was also touched upon by the noble and learned Lord on Second Reading. But I am bound to say that I did not find anything that was said in this context particularly impressive.
The Committee in considering this matter is entitled to know whether the decision to opt for concurrent jurisdiction derived to any extent from the representations which were made against the proposals from the Scottish Bench and Bar and from the Society of Solicitors in the Supreme Courts in Scotland, all of whom I understand were consulted on this proposal. The Committee is also entitled to know whether or not as regards the decision derived from such representations, the Government entertained any doubts as to the ability of the sheriff court to cope with this business. It is, of course, clear that certain difficulties will arise. Difficulties always arise in a changeover of this kind. But if they have no such doubts as to the ability of the sheriff court, as matters stand, to deal with the matter, then of course it is very difficult to understand why the Court of Session should have any locus in the matter at all. If of course they have any such doubts, then obviously a whole host of other questions would arise. Those are the first matters upon which the Committee is entitled to some enlightenment.
Secondly—and in my view this is relevant—how do the Government presently see the future of our, in some ways, slightly quaint and not very logical and not
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very rational system of concurrent jurisdiction under which litigants in divorce actions will now be able to choose to which tribunal they should go?—as they already can of course in the vast bulk of litigation where the jurisdiction between the sheriff court and the Court of Session is concurrent. They can choose whether to proceed in the supreme Scottish civil court—the Court of Session—sitting in Edinburgh where only counsel have a right of audience, or whether to proceed in their local court, the sheriff court, where parties may be represented either by counsel or by solicitors and where, if things are as they ought to be, the whole business will be a bit less expensive in time and in money and the quality of justice will be conducted in perhaps an ambience of slightly less formal dignity but will nevertheless match the needs of the situation.
I described this concurrent jurisdiction as being quaint and a little illogical and perhaps irrational. I did not mean to suggest that because of that we ought to destroy it. Life is full of paradoxes and one of them is that when things like this have become a part of the native traditions and sometimes work very well and do no harm, then there is no reason why they should be changed. This system was perhaps devised by men wiser than ourselves. It has worked well and is very much a part of a system in which there is a great national pride. Nevertheless, I think we should know the Government's attitude towards this system for the future and whether they envisage, as the Royal Commission suggested they should, a further committee of inquiry to look into the whole question of the jurisdiction and procedure of the sheriff' courts, or whether perhaps they envisage splitting the jurisdiction rather than leaving it concurrent.
These matters are important, and I think it is important that the Government should think about them because some of the defects from which the system presently suffers, of course, derive from the circumstance that on matters of this sort Governments were disinclined to look ahead and to probe into them and, for one reason or another, politicians were reluctant to press Governments to do just that. It is to seek the Government's views primarily on these two aspects that I put down this amendment. I beg to move.
Lord Hughes: I do not think that it would be improper for me to make a comment at this stage. At first glance it would seem that what the noble and learned Lord, Lord Wilson of Langside, has proposed is very much in line with the recommendations of the Royal Commission. In fact, it goes further, because the Royal Commission recommended that the sheriff court should be the only court of first instance in these matters. That was contained in our Recommendations Nos. 1 and 2. In Recommendation No. 2 on divorce we said that the sheriff court should have exclusive jurisdiction as a court of first instance. Then we made a third recommendation in which we said:
"A sheriff on cause shown by the parties or of his own accord should have power to remit divorce actions to the outer house of the Court of Session".
I shall perhaps return to that on a later amendment which is to be moved by my noble and learned friend Lord McCluskey.

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Although I chaired the Royal Commission, I am not a lawyer and I am not absolutely certain whether I am interpreting the amendment of the noble and learned Lord, Lord Wilson of Langside, properly. But if I am, then I fear that if the sheriff court is to be the only court, there would not be an opportunity for the sheriff to remit any matter to the Court of Session. That, I think, would be against the principles which the commission found almost unanimously.
I do not want to have to say this over and over again, but at this first opportunity I think I should emphasise that there were 15 members of the Royal Commission, 11 of whom were not legal people, but four of whom were. Only two of the 15—both of whom were legal people—had objections to any aspect of our recommendations on divorce. Therefore, I think it would be quite wrong if I did not say that in some of these matters it would be of great astonishment to my former colleagues on the Royal Commission if they found me, in this Committee, going against the recommendations to which I was a party. If I were to support this very simple amendment of the noble and learned Lord, Lord Wilson of Langside, I think that I would certainly be going against our Recommendation No. 3.
Lord Wilson of Langside: In order to avoid unnecessary discussion on the matter, perhaps I could make it clear that I am guilty of not having made myself clear either in the drafting of the amendment or in what I said. By the amendment I merely envisage that at first instance the sheriff court should have jurisdiction in divorce.
Lord Hughes: I am grateful to the noble and learned Lord for that explanation, but I still think that that is not what his amendment does.
Lord McCluskey: Perhaps I may address myself to the amendment as worded. At the moment I shall not take up your Lordships' time on the question of the concurrent jurisdiction of the Court of Session and the sheriff court, which is a point which I think we can discuss in relation to later amendments. I hope that the Government will not accept this particular amendment, as put forward by the noble and learned Lord, Lord Wilson of Langside. It enshrines a somewhat difficult proposition and one which I would find unacceptable; namely, that no action of divorce—however complicated the issues it raises, whatever the sums of money involved, whatever the wishes of the parties—should be allowed to proceed in the Court of Session.
In my view the Court of Session is rather better equipped than the sheriff court to decide very difficult questions of law. No one suggests that it is slow in dealing with divorces, and I do not think that the Government would want to interfere with the right of parties to choose to go to the Court of Session, if that is a choice which they want to exercise in favour of going to the Court of Session. If the real point lying behind it is that the Legal Aid Fund should not be required to subsidise those who want to choose the Court of Session, then I think that is much more easy to accept, and I think that that would be covered by Amendment No. 11, which stands in the name of the
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noble and learned Lord, Lord Wilson of Langside. I can express my views on that when we reach it.
There is one point—and it may be that this is not the appropriate time for the noble and learned Lord the Lord Advocate to deal with it—that I hope he will manage to deal with in the course of the debates. It is that one of the reasons why divorce is to be made competent in the sheriff court is in order to reduce the cost of divorce proceedings. That is a legitimate aim. But having regard to the figures on the cost of divorce, which were put before the House at Second Reading, which are fairly high for divorce in the Court of Session, my own inquiries lead me to believe that the cost of counsel in the Court of Session is very small indeed in relation to that figure of the order of £500.
I wonder just how much would be saved by the elimination of counsel from divorce cases, because the work which counsel does in the Court of Session will, in fact, have to be done by someone else in the sheriff court, and no doubt a proper charge will be allowable for that. So I am not at all clear that very much will be saved simply by taking counsel out of divorce cases. Of course, one would hope that there should be a saving by being able to cut out an Edinburgh correspondent for divorces that come from outside Edinburgh, but again one does not know how much that will be. I hope that the noble and learned Lord the Lord Advocate will take either this or a later opportunity to give us the answers to these questions. But, for the reasons that I have given, I would hope that the noble and learned Lord the Lord Advocate will resist this particular amendment.
Lord Ross of Marnock: Before my noble and learned friend sits down, I think I can agree with him in relation to undefended cases, and the simpler cases in respect of which counsel's fees would not be very great. However, let us take the more celebrated cases and the ones which he cited, which should go before the Court of Session. Is he suggesting with regard to those, which may raise difficult questions of law and so on, that the fees will be equally small?
Lord McCluskey: The answer to that is that if, in fact, you have a defended action which raises very difficult questions, then you will find that many solicitors will, in fact, want to instruct counsel even in the sheriff court to deal with those cases, and the fees chargeable by counsel for appearing in the sheriff court would be the same as or similar to those that they would charge in the Court of Session. Therefore, if you have difficult questions which warrant the employment of counsel, it seems to me that that employment has to be paid for, whether the action is conducted in the sheriff court or in the Court of Session.
Lord Mackay of Clashfern: Perhaps I could begin by acknowledging, as I hope I have done in the past, the work of the Royal Commission in this area presided over by the noble Lord, Lord Hughes. I think it would be right for me to say that, in putting forward this Bill, we have been very much indebted to them for the work that they have done, and we have tried to follow what they have suggested in so far as we discerned that it was necesary to do so to get the benefits that they had in mind. The recommendation, as the noble Lord,

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Lord Hughes, pointed out, was not a recommendation that the sheriff court should have exclusive jurisdiction at first instance, but included the power in certain cases for the sheriff to remit to the outer house of the Court of Session so that the outer house would deal with the matter as the court of first instance.
It is plain that the amendment of the noble and learned Lord, Lord Wilson of Langside, does not permit that, whatever be his intention. I think that the wording of the amendment does not permit that, but apart from that perhaps one could consider this matter as one of principle. As has been pointed out, on the basic areas on which they have jurisdiction, the Court of Session and the sheriff court in Scotland for many generations have had concurrent jurisdictions, so that there is nothing novel about that. The basic need that the Royal Commission saw was for parties to be able to have their divorces dealt with in a local sheriff court. It seems to us that that can be achieved by giving the sheriff court jurisdiction, and there is no need to cut out completely the jurisdiction of the Court of Session in order to achieve these aims. Then of course we have the power to remit from the sheriff court to the Court of Session in suitable cases, and no doubt we shall look at matters connected with that in more detail in relation to a later amendment.
Of course, it is obvious that if the Government consult after a Royal Commission report they take account of the views of the consultees, but if the suggestion is that our decision on this matter was unduly influenced by the views of the Scottish Bench, the Scottish Bar, or the SSC society I have to say no to that. We approached this matter trying to do what we thought was the right thing, and we felt that one could best achieve the results which the Royal Commission wanted by making the proposal which we have made without cutting out the Court of Session altogether.
We were not influenced by any feeling that the sheriff court could not handle the matters which they would have to handle, but we were aware of the feeling, which the Royal Commission shared—as the noble Lord, Lord Hughes, has explained—that there might be some cases of divorce which ought to be heard in the Court of Session, and we felt it right to leave to parties this choice. We saw no good reason why this particular choice should be cut out against the general background which I have described.
The situation so far as the sheriff court is concerned for the future was raised by the noble and learned Lord, Lord Wilson of Langside. He referred to the quaint situation, which is certainly a long-established situation, of both the sheriff court and the Court of Session having large areas of jurisdiction in common. We have sought as a Government to deal with that to some extent by the powers to remit from the sheriff court to the Court of Session which were conferred upon the sheriff court by Section 16 of the miscellaneous provisions Act 1980 putting a new power in Section 37 of the Sheriff Courts (Scotland) Act 1971. It seemed to us that this was the best way of arranging for some passage between the sheriff court and the Court of Session of some cases, and the same sort of provision is made in relation to divorce.
It was in the light of these considerations that the
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Government came to the conclusion which they did, and in my view it is a reasonable conclusion which seems to have commended itself generally to those who have commented on this Bill. Certainly I would wish to repudiate any idea that the Government were unduly influenced by the views of any particular party that they consulted. I hope that in the light of these explanations the noble and learned Lord will feel able to withdraw his amendment.
Lord Ross of Marnock: I am only a simple layman. I have heard my noble friend Lord Hughes in respect of the recommendation of the Royal Commission. I have heard the Lord Advocate, who is usually very plain and straightforward. Is he telling me that what the Government are doing is what the Royal Commission advised?
Lord Mackay of Clashfern: No, not exactly. What I am saying is that the benefits—
Lord Ross of Marnock: It is not a case of, "Not exactly". I can understand, "No"; and if it is, "No" I would be happy if the noble and learned Lord stopped at that.
Lord Mackay of Clashfern: Delighted as I always am to make the noble Lord happy—and I have learned that it is a wise thing to do if I possibly can—I think in fairness to myself I have to add the explanation that we came as near to what the Royal Commission proposed as we thought the circumstances justified. We sought to get all the benefits of which they spoke without any particular disadvantage, and of course as time goes on situations could change. The Royal Commission did not say in what stages, or in what way, their recommendations should be implemented. We are certainly not precluding for all time the possibility that matters could develop even closer to the Royal Commission's recommendation.
Lord Hughes: May I be made certain of what the noble and learned Lord has in mind? I think he and the noble and learned Lord, Lord McCluskey, used the words "the parties". Does this mean that in the ordinary course of events the sheriff court would be the one which was most likely to be used in divorce actions once this comes into operation, but that if both parties wished to to go to the Court of Session that could be done under the proposals of the Bill?
The Royal Commission put the onus on the sheriff. They said that the sheriff could remit a case to the Court of Session on cause shown. Presumably it might be that if both parties said to him, "We want it to go to the Court of Session", he would accept that as being sufficient cause, but as I understand it, and as we certainly meant it, it would only go in these cases if both parties asked. Is that what the Government's proposals will mean? To put it another way, one party cannot insist on it going to the Court of Session against the will of the other.
Lord Mackay of Clashfern: If the pursuer decides to raise the action in the Court of Session then the action is competent in the Court of Session, but I think the realities of the situation are that a pursuer would need to be persuaded that that was something in the

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pursuer's interest. It very much depends on the way in which the cost structure will develop as between the sheriff court and the Court of Session. The noble and learned Lord, Lord McCluskey, pointed out that counsel's fees in the simple action are a very small proportion of the total payments that are made in such an action at the present moment. But of course that may depend a bit on the nature of the action, as the noble Lord, Lord Ross of Marnock, said.
The situation, as I see it, is that it will very much depend on how these fee structures develop whether it will be in the interests of a person, say in Glasgow or Kilmarnock, going to the Court of Session in Edinburgh rather than their local sheriff court. It is certainly conceivable that there might be advantages for them in doing that. The choice will be the choice of the pursuer in the court to which the pursuer goes, and there is of course the possibility that if the pursuer goes to the sheriff court the sheriff may think it right to remit the case to the Court of Session.
Lord Ross of Marnock: Since the Lord Advocate has mentioned Kilmarnock, in which I once had a constituency interest, can he tell me what conceivable advantage there could be in someone bypassing the sheriff court, and the local solicitor employing an agent and also a counsel in Edinburgh? What could be the advantages? I am prepared to be persuaded.
Lord Mackay of Clashfern: The person in Kilmarnock, I am assuming, would go to his or her local solicitor, who, naturally—this is one's experience—would suggest the local sheriff court, unless there were some good reason that he saw for not doing that.
Lord Ross of Marnock: The noble and learned Lord was talking about the simple kind of matter to which my noble and learned friend Lord McCluskey had referred, cases where counsels' fees were not very great; indeed, he was talking about the cheapest possible form of divorce today. It is in that context that I want to know how there could be advantage, from the point of view of going to Edinburgh, in employing both another agent and counsel.
Lord Mackay of Clashfern: That is the question I was trying to answer. The solicitor in Kilmarnock would be unlikely to suggest going to the Court of Session unless he saw a special reason for doing so. Even in a simple case there might be a reason for doing so. For example, it could happen that at the particular time, work in Kilmarnock of other kinds was so great that one had to wait a long time, in which case the solicitor might, if his client was in a great hurry, suggest going to the Court of Session, where the procedure has become very streamlined. I could think of other examples but perhaps it is not worth wearying your Lordships with other possibilities.
Lord Wilson of Langside: I am grateful to the Lord Advocate for his explanation of the matters I raised. I will not delay the Committee further; we have already taken 26 minutes on this first amendment. I apologise again for the drafting of my amendment, which perhaps resulted in our discussion going wider than I had envisaged. But I was concerned, having read all the debates in the other place and listened carefully to
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what had been said here, in that the matters I raised had not been explained as fully as they should have been. The history of the concurrent jurisdiction arrangement derives largely from the 1907 Act. If one reads the report of the Royal Commission on the Court of Session in 1927 and the report of the Grant Committee in that context, one appreciates that there is an issue about which the Government should be thinking, and I was anxious to find out what the Government's thinking in this context was. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.33 p.m.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord McCluskey: Everyone recognises that the effect of Clause 1 in giving jurisdiction to the sheriff court is to transfer much of the work from the Court of Session to the sheriff court. There are 10,000 to 11,000 divorces a year in the Court of Session and everyone envisages that the bulk of those cases will in future be entertained in the sheriff court, and it may be that the legal aid regulations will be of such a character that it will be difficult for people to go to the Court of Session with legal aid.
Accordingly, it is likely that about 10,000 divorces a year which are now heard in the Court of Session will no longer be heard there. The effect of that will be to lose income to the members of the Bar and to Edinburgh solicitors. That is a feature which is welcome to many, and it is not one of which one can complain. However, it undoubtedly has an effect on the whole question of the shared jursidiction of the two courts, a matter about which the noble Earl, Lord Selkirk, and the noble and learned Lord, Lord Wilson of Langside, expressed concern on Second Reading.
Unless there were to be some compensating transfer of jurisdiction in the other direction, the Court of Session would be likely to suffer from this loss of income. I calculate that about one-eighth of the income of the Bar will disappear as a result of the provisions in Clause 1. Is that a bad thing? No doubt some would say no. But it would be a bad thing if it fatally weakened or badly injured the Court of Session, which is uniquely able to deal with certain questions, and it would be a tragedy of no small proportions if the Court of Session were badly damaged by this substantial transfer of work and loss of income to those who work within the Court of Session.
The sheriff court system is simply not capable, in my view, of performing the work done by the Court of Session in a great many fields. No one who has practised in both courts could doubt that proposition. Accordingly, if this measure damages the Court of Session, it must be greeted with a considerable degree of reluctance. The Lord Advocate and Lord Wilson on Second Reading both said that the question of jurisdiction between the two courts deserved examination but that that would take a long time. I agree that it would, but do the Government intend to embark on that exercise? Does the Lord Advocate hold out any hope that this vitally important question of the concurrent or overlapping jurisdiction—and the other question of

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making the best use of the unique facilities of the Court of Session—will be looked at in the future by the Government? Are they to be studied and is the Lord Advocate minded that this question should be considered, for example, by the Scottish Law Commission?
Lord Hughes: Further to the remarks of my noble and learned friend Lord McCluskey, I would draw the Committee's attention to another recommendation of the Royal Commission which appears in our Chapter 14, where we said on the subject of civil procedure and jurisdiction:
"A committee should be appointed by the Secretary of State for Scotland, after consultation with the Lord President of the Court of Session, to review the structures, jurisdiction and procedures of the civil courts of Scotland".
We commented in the body of our report on the difficulties of concurrent jurisdiction, and it was obvious from what we heard in evidence that it was not a planned thing; it was just the way it happened that changes took place. There is, therefore, no consistent pattern of division between the courts.
In the course of receiving evidence, suggestions were made by one Edinburgh Member of Parliament, now a Member of Her Majesty's Government, for certain reallocations in respect of civil procedures as between the two courts. We did not, however, feel that our remit was such that we could go into that in any detail and make recommendations, other than the fact that the matter was of such a complex nature that it should be looked into. Looking at our recommendations, we might have made them better—in view of what has been said today and at other stage of the Bill—if we had added the word "urgently" to our recommendation for the appointment. It is obvious that it is not a matter which could be decided in weeks or months; It would take a long time to produce something really workable. I hope the Lord Advocate may be able to give some succour to my noble and learned friend Lord McCluskey by saying that the Government intend to take action on the Commission's recommendation No. 14(1).
The Earl of Selkirk: One has the general impression from this part of the Bill that the object is to save Government money. Is that really the object, or is it to obtain justice as the parties want? Bearing that in mind, the question is whether the legal aid system will be so adjusted that it will be impossible to employ counsel either in the sheriff court or, if permission is given, in the Court of Session. I have an amendment down on that very point. Is that the way it will be organised? Very substantial economic problems arise from the situation, and they affect what I believe we all want to see; namely, a strong Court of Session, supported by a strong Bar. If that is not the case, it will cut fairly deeply into part of the whole system of justice in Scotland. I wonder whether the noble and learned Lord can say whether legal aid is to be so framed that counsel cannot be engaged.
Lord Ross of Marnock: I should apologise to the noble and learned Lord the Lord Advocate and to your Lordships for the fact that I was not present at
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Second Reading. For once in a while I was ill, and I think that that was about the first time that I missed a Scottish Bill in the four years that I have been a Member of your Lordships' House. I should like to say that I approve of Clause 1. I think that it is a step in the right direction—a sensible step. What many people seem to have failed to realise is the change in public attitude to divorce and, secondly, the change being reflected in the law relating to divorce. I do not necessarily approve of that. I wish that without making any change in the attitude to divorce, we could take some action that would mean that people would enter upon marriage with a little more thought and would not at the first quarrel turn to an easy divorce.
However, we must take things as they are, and the big change that is taking place means that there are 10,000 divorces a year in Scotland of all places! There is also less complexity than there used to be in the law of divorce. There may be the odd case in which there is some complexity, but in general the whole process of law has been changed so as to make divorce much simpler. I see no reason at all why every divorce action should go to the Court of Session. The noble Earl, Lord Selkirk, spoke about the sheriff court. Counsel is not needed in the sheriff court, but there must be counsel in the Court of Session, no matter how simple the case, and even if it is undefended. If all divorce actions must go to the Court of Session, where there must be counsel and an agent, the actions are bound to be more expensive, as indeed they are.
I hope that the noble and learned Lord will look again at the question that was intended to be raised by the noble and learned Lord, Lord Wilson of Langside—it is a pity that the wording was not as clear as it might have been—because I would tend to support him. I understand that the rules are to be laid down by the Government, or the courts—I do not know which—and that it will be free to the pursuer to opt for the Court of Session. That might be most unfair to the defendant in a particular case, depending on what agreement has been reached in relation to costs and the rest.
We see here a reflection of the whole change in the attitude to the law. It is not a question of being unfair to Scottish law, or to Scottish lawyers or advocates. What we want is fairness to the Scottish people. Why, if there is no difficulty in relation to the two parties concerned, should someone living in Kilmarnock who wants a marriage dissolved have to go to Edinburgh when the action could be heard in Kilmarnock?
Somebody spoke about the question of privacy. I do not see where privacy arises. In Scotland we used to be very concerned about the publicity given to marriage. Even today where there is to be a marriage in a registry office a notice has to be placed outside, and people have to be informed. Forthcoming marriages used to be declared in our churches, so that anyone with an objection, anyone who knew of a bar or an impediment to a particular marriage, could object. Parishes were regarded as spheres of community knowledge, and it was right that it should be known if people proposed to get married. I do not see any objection to divorce being done locally, so that people should know about it. I think that from the point of view of the community it is probably essential that divorces should take place locally, rather than the

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cases going to Edinburgh. It has been suggested that a case should go to Edinburgh, so that local people will not know about it, but I think that it should be known about locally.
I approve of Clause 1, so far as it goes. I should have liked to see more clearly stated whether there is any limitation and, if so, what the limitation is in relation to the jurisdiction involving either the sheriff court or the Court of Session. In the last parliamentary Session we spent a lot of time—and I am glad to see the noble Lord, Lord Stodart of Leaston, in his place—dealing with a special Bill on concurrency of powers relating to local government, in order to try to get rid of the difficulties and unfairnesses which would arise. But here we are applauding concurrency. I do not think that concurrency is necessarily a good thing. The position should be clear cut in relation to the powers, and to my mind it should be left to the court, rather than to an individual pursuer, to determine whether an action should go to the Court of Session or to the sheriff.
Lord Mackay of Clashfern: First, I shold like to deal with the question which my noble friend Lord Selkirk raised. The idea that the primary purpose of the clause is to save money is not an idea that I at all share. The primary purpose of the clause is to give effect to the need, which the Royal Commission saw, for sheriff courts to have jurisdiction in divorce cases, and in that connection the considerations to which the noble Lord, Lord Ross of Marnock, has just adverted are very strong. It seems right—not altogether from a point of money—that the sheriff court should have jurisdiction to deal with divorce cases, and that is the reason why we have proposed the clause. I should be the last to have any part in any change which damaged the institution of marriage, or its permanency. I do not think that the clause does that. It merely provides a procedure for dealing with the dovorce law as it is. There is no change proposed in the substantive law of divorce.
With regard to the jurisdiction of the various courts, as the noble Lord, Lord Hughes, has reminded us, in Chapter 14 the Royal Commission suggested the appointment of a committee to look into the matter. I think that it would be fair to say that there were a considerable number of suggestions for committees and the like, and I can certainly see that there is scope for some inquiry into this question. However, matters have to take priority according to the way that one sees priorities overall.
In 1980 what was in my view a very important step was taken to deal with the question by providing for the possibility of remit from the sheriff court to the Court of Session, and I believe that it would be very useful to see how that works. I say that because one of the great difficulties in sorting out an age-old concurrence—the noble Lord referred to the difficulty in connection with the 1973 Act in regard to local government, but here we have a very much longer concurrence—is to set out criteria by which what has been concurrent in the past shall be divided out: it is extremely difficult. This method of judging particular cases and allowing of a remit is a way of dealing with the matter case by case, and, as experience of it is
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gained, it may be possible to develop more objective criteria. But we believe that, at least for the present, a very considerable step forward has been taken by allowing this method. It has not yet been much used, but I hope that, as the situation develops, it may be seen to be more useful. I trust that your Lordships' Committee will allow Clause 1 to stand part of the Bill.
Clause 1 agreed to.
4.50 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 2:
After Clause 1, insert the following new clause:
("Divorce: List of persons to report to court.
. In section 11 of the Matrimonial Proceedings (Children) Act 1958, after subsection (1A) there shall be inserted—
"(1B) It shall be lawful for the Lords of Council and Session from time to time to prepare a list of persons suitable to be appointed by any court before which an action for divorce is pending to report to the court on any matter which is or may be relevant to any decision which the court is required to make, or is considering making, and which would have the effect of regulating, whether ad interim or otherwise, any matter which in that action could be made the subject of an order, including an order for interdict or interim interdict, under section 5 of the Divorce (Scotland) Act 1976, section 9 of the Conjugal Rights (Scotland) Amendment Act 1861, or Part II of the Matrimonial Proceedings (Children) Act 1958, and the court may appoint any person whose name appears on such list to report to the court upon any such matter.".")
The noble and learned Lord said: This amendment deals with a very small and special point. Clause 1, as we have already recognised, will effectively transfer a lot of the business of the Court of Session to the sheriff court. That will have the effect to which I have referred of a loss of work and a loss of income to advocates. That in itself would not matter provided, as I said, that the Court of Session is not seriously damaged by that loss. The type of work to be lost, however, includes not only the drafting of the necessary summons or minutes, affidavits and so on, or revising of affidavits and the work involved in the incidental procedure which takes place in all these cases, but a third category of work that I want to mention particularly, and that is the preparation of reports for the judges regarding custody, interim aliment, and access to children. This amendment is concerned purely with that particular matter. I put down a Written Question and the noble and learned Lord the Lord Advocate answered it on 17th February and disclosed that during 1982 there were 397 occasions when a judge called for a report in relation to the care and upbringing of a child who was the child of parties who were involved in an action of divorce. Out of the 397 cases 174 were cases in which members of the Faculty of Advocates were appointed by the court to make this report.
The great bulk of these reports were then prepared by women members of the Faculty of Advocates who were appointed for that purpose by the particular judge. I have always regretted the fact that women who come to the Bar in Scotland—and I suspect it is true in England as well—have great difficulty in getting work to enable them to survive at the Bar for long enough to make their mark. There is a serious prejudice: one cannot put one's finger on it very readily, but it is there. This particular kind of work, reporting on these matters, while not ideal, nonetheless enables some of the women members to survive long enough to prove their worth in the more ordinary work.
Secondly, quite apart from that factor, there must be cases in which it is of great value to the court to know that it can appoint as a reporter on a matter of this kind somebody who is totally independent, as a member of the Bar can be and perhaps a local solicitor cannot. A member of the Bar is geographically independent and professionally independent. In my view, it would encourage the appointment of such people in suitable cases if the Lord President and his colleagues were to prepare a list of persons whom they deemed to be suitable to do this kind of work. In cases, whether they were Court of Session cases or sheriff court cases, where the judge in question wanted someone whose independence was absolutely guaranteed or wanted someone who was making not purely a factual inquiry, which can be made by a social worker, but an inquiry which involves real judgment as to disputes of fact between the parties, a person whose name had been approved by the Lord President could be selected from the list.
Under my amendment that list would not be exclusive. In other words, the judge would not have to take a person from that list but the list would be there and it would encourage the appointment of people. It would draw the attention of sheriffs and judges of the Court of Session in divorce cases to the availability of people on the list to do the rather special reports where it was decided that some degree of independence, including geographical independence, was desired. That is all I seek to achieve in this amendment. The clause as drafted is not, as it were, mandatory; it does not require the sheriff or the judge to appoint a particular person; he can go outside the list. I have no doubt that the drafting is imperfect but I wonder whether the Government are agreeable to the principle. I spoke to the Lord President of the Court of Session and he gave me to understand—although at that time I had not drafted the particular amendment—that he would not be averse to providing such a list to be available to judges to consider selecting a person for this kind of work. I wonder whether the Government can give any advice as to whether or not that principle is acceptable. I beg to move.
Lord Mackay of Clashfern: There are a number of matters about this clause which I could deal with. However, I wonder whether I can make a suggestion to the noble and learned Lord regarding the way in which this matter might be dealt with. I suggest that it might be dealt with by my undertaking to invite the Faculty of Advocates and the Law Society of Scotland to prepare a list of those who would be willing to undertake this work. I would undertake that if such a list was provided, the Scottish Courts Administration would circulate the list to sheriff clerks for the information of sheriffs and the judges of the Court of Session. These lists would of course require to be updated from time to time. If that meets the point that the noble and learned Lord is making to his satisfaction then perhaps we need not trouble about the detail of the particular amendment.
Lord Hughes: I am not certain whether what has been suggested will be suitable to the noble and learned Lord, Lord McCluskey; but I say right away that it would not be suitable to me. In the first instance, one aspect of the matter which very much concerned
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the Royal Commission was the interest of children. May I revert to what was said by the noble Earl, Lord Selkirk, regarding what were the Government's objectives in bringing Clause 1 forward? Was it just to save money? In the Royal Commission's report we pointed out that if this were done there would be a considerable amount of money saved. But we regarded that as a bonus. Our first consideration was applying the law in the best possible way in the interests of those who came before the court. As I mentioned at Second Reading, we were much influenced by the advice which was given to us by one of Her Majesty's judges in Scotland who had the experience of administering divorce law in the Court of Session. He found that the arrangements for looking after the interests of children were so defective that in many cases, because of the lack of machinery, he could not be satisfied that at the end of the day he had been able to do the best that was possible. He did the best that he could see. No judge could do more than that.
In one of our recommendations we said that in every divorce action, defended as well as undefended, where children under the age of 16 were involved, the case should be referred by the court to the appropriate reporter to the children's panel for special reports on custody arrangements. I appreciate that that is only one aspect of the matters to which my noble and learned friend's amendment could refer. But one aspect I dislike intensely. In the first instance, he did not exclude social workers, but he said that there were matters on which social workers were not necessarily the best judges. I accept that there must be cases like that. I would put the other side of the coin and say that there will be quite a number of matters where no advocate or solicitor is necessarily the best judge. I do not object to lists being prepared, but those on them should not be exclusively legal people. I should certainly want to see some advantage being taken of the recommendations regarding the reporters to children's panels.
The children's panels are one aspect of law in which Scotland is leading the world, as my noble friend Lord Ross of Marnock has found. People are coming from all over the world to see the way in which this particular system is operated. I happen to be one of the Members of this House who is a representative to the Council of Europe. A former Member of the present Government, Sir Russell Fairgrieve, is a substitute member there and he has recently raised in the Council of Europe the question of the children's panel system in Scotland. Information should be given so that the other 20 countries of the Council of Europe see the advantages of this type of machinery.
It was because from the evidence we were so impressed by the way in which the courts could be helped by the children's panel that we made that recommendation. I think it would be quite wrong if I let the matter rest and only advocates and solicitors were going to be involved. I would not regard this as being put in, and I do not think it is being put in, as a substitute form of employment for legal people who might otherwise be displaced. I think it is quite evident from what my noble and learned friend said that that was not what he had in mind; but it is the sort of conclusion which the outside public could perhaps jump to. If the list is sufficiently wide, then I think it could serve a very useful purpose.
Lord Drumalbyn: Before my noble and learned friend replies, may I say that I find myself in great sympathy with what the noble Lord, Lord Hughes, has said. He said specifically that this was just one of the matters that would have to be considered. Would not another matter be the consideration of these people on the list, if I may put it that way, so far as conciliation is concerned? It might also be a useful role for them to play and of course this would no doubt add to the costs. But if we are seeking justice and what one might almost call social justice and also seeking to maintain—I was going to say the sanctity of marriage, this would be an important aspect of what those on the list might be asked to do, would it not?
Lord McCluskey: I wonder if I may just come back to say that no doubt it is my fault for not making the matter plainer, but I was trying to be brief. I agree with everything that my noble friend Lord Hughes has said in substance. I am not suggesting that a list should be drawn up and only those on the list should be appointed. I am not suggesting that, and in fact even at the present time in the Court of Session where the judges may appoint any member of the Bar or anybody else, the majority of those who are appointed are not members of the Bar. I envisage a special kind of case where one is not simply looking at what one might call the facts—because the facts are sometimes rather complicated and difficult—but at questions of judgment where the parties may be in conflict about why the marriage broke up, how the children of the marriage were treated and so on. That is the kind of case which someone of a more judicial temperament is better able to resolve, possibly, than a social worker who has other skills and other experience. I only wanted to make it possible for the courts to appoint people when in effect they want that kind of judgment upon disputed questions of fact.
The other point is that the question I asked of the Lord Advocate in writing last month related to the regulation of matters ad interim. That simply means that while matters are before the court, and before the court makes the final decision regarding custody of the children, what the amount of alimony is to be or what access is to be allowed to the children by one party or the other—while matters are at that stage and not finally regulated, the court often has to deal with extremely anxious, difficult and painful questions as to where the children will be during the Christmas holidays and which parent the children will live with. That is the kind of question on which the court has sought the advice of people who are solicitors or social workers and in some cases advocates, who should make an inquiry and offer a judgment, which the court may or may not choose to accept.
I merely want that situation to be continued. I do not want to say a word against social workers. I should like to think that I give as much support to the children's panels as even my noble friend Lord Hughes. I think that is a marvellous system and that other countries ought to be copying it; but they are already heavily overburdened and whether they are competent to make judgments when the facts are in dispute regarding the kinds of matters that come before the court, I am not so certain. I simply want to make it possible for persons of independent standing
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to be appointed by the court. That is the sole purpose and, to answer the question of the noble and learned Lord the Lord Advocate, I should be very happy if he were to proceed along the lines that he indicated, which are not contrary to what the noble Lord, Lord Hughes, has suggested.
Lord Mackay of Clashfern: I want to make it clear that I understood the noble and learned Lord, Lord McCluskey, to be dealing only with legally-qualified people so far as this list is concerned, because he is suggesting it is the court which puts the list together. It has been said, and certainly I agree, that the majority of the reports that are obtained are obtained from social workers. I would expect that to continue. In view of what the noble Lord, Lord Hughes, has said, perhaps I should remind your Lordships that the Government have set up a detailed study into this matter. The Central Research Unit of the Scottish Office is undertaking a research project which deals with the exercise by the court of their functions in relation to the welfare and custody of children in divorce actions.
The aims of this research are threefold. They are, first, to establish factual information on the way in which the court looks after the welfare of children involved in divorce actions; secondly, to identify the contents of reports called for by the court on children involved in divorce actions and the way in which the information is presented; and, thirdly, to examine the documented circumstances of cases where reports were called for by the court and to identify cases where additional information might have been helpful. These are the sorts of case to which the noble Lord, Lord Hughes, referred. I hope that this research will enable us to develop along the lines which were concerning the Royal Commission, but this particular list we are talking of this afternoon would make it clear that it was not being suggested that these were the only people who could be appointed. If particular skills were being looked for, these particular named persons would be available to undertake that work.
Lord Ross of Marnock: Am I to understand that the substance of what my noble and learned friend Lord McCluskey has said is being accepted by the Government and, instead of being done by statute, it is going to be done under existing powers by the Scottish courts administration? They are going to do it?
Lord Mackay of Clashfern: The Lords of Council and Session will not be involved in approving any particular list of names of people available, but those names will be circulated to the sheriffs and judges by the Scottish Courts Administration. They would be receiving these lists from the Scottish Faculty of Advocates and the Law Society of Scotland.
Lord Ross of Marnock: The point I am seeking to make is that Parliament would know nothing more about it. That regulation does not require to come to Parliament at all. I think Parliament likes to know exactly what power it is giving to courts and to administrations. It may well be they already have this power and we are, as it were, remoulding or formalising it in a particular way at the will of Parliament as a result of what is being suggested. But thereafter would Parliament see this new regulation?
Lord Mackay of Clashfern: It is not really a regulation; it is just a list of people who are willing to do the work. If Parliament wants to see the list there is absolutely no reason in the world why a list should not be put into the Libraries of both Houses, if that was wanted. It is just a list of names of people who are willing to undertake this work, provided by the bodies I have mentioned. There is no reason why it should not be available to anybody who wants to see it.
Lord Ross of Marnock: I think what Parliament would like to know is not only the names of the people but the actual nature of the work they are doing.
Lord McCluskey: I am sorry the noble Lord, Lord Ross, is puzzled by what the noble and learned Lord the Lord Advocate has mentioned. All that I was after—and I understand that the Lord Advocate is offering no more—is that in cases where a judge, whether he be a judge of the Court of Session or of the sheriff court, feels that questions of custody, access and so on, cannot properly be investigated by a social worker or someone else that he knows and he wants to go to an independent person to get a judgment which will assist him in making up his own mind, there will be available to him a list of persons. That is all.
The sheriff does not have to ask his clerk: "Who shall we get to do this because the case is too notorious and it cannot be a local person, and we do not want a social worker because the character of the case to be investigated is one which requires skills which that social worker does not possess? Who shall we go to?" He simply goes to the list, if that is the kind of person he wants. He is not obliged to take anyone from the list but the list would carry some authority because the list will have been drawn up by responsible people such as the noble and learned Lord the Lord Advocate mentioned. That is the sole purpose of it. I am perfectly happy with what has been said by the noble and learned Lord, the Lord Advocate, and I am sorry if what I have said has caused some confusion among those on the Benches beside me. But I beg leave to withdraw—
Lord Hughes: Before my noble and learned friend withdraws the amendment, I rather take it from what he said—and I hope that I am not taking more than he meant—that the normal procedure would be that the court would ask for the social worker. But, if they thought it was a case where the social worker was not going to be the best person, or the best qualified person, then the court would proceed to this list of other qualified people. If that is what he is saying, it is a certain source of consolation to me. If it is not, then I am afraid that I should like to come back to this at a later stage.
Lord McCluskey: That is exactly what I am saying. I am saying no more than that. It is simply that, when a judge wants to know "Who can I get to do this?" and he is looking for a lawyer, he goes to a list of names and says, "I can appoint that person." But if a sheriff—and I suppose that this will be true in five cases out of six—wants a local solicitor or, more likely, the social work department to look into the circumstances, he will do what the Court of Session judges now do in the majority of cases and appoint someone from the social
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work department. I can give my noble friend Lord Hughes the assurance that he seeks. I beg leave to withdraw the amendment.
Lord Fraser of Tullybelton: I wonder whether I may give my support to the proposal which has been made by the noble and learned Lord, Lord McCluskey, and, I gather, agreed to by the noble and learned Lord, the Lord Advocate. I am probably the only person in the Chamber who has been in the position of a judge wanting advice from a reporter, or some such person, in dealing with cases of children. As the noble and learned Lord, Lord McCluskey said, they are often quite urgent with the school holidays coming up and so on, and it is very useful to know to whom you can go. In my day, you asked your clerk and, if he happened to see a young member of the Bar at the back of the Court who was not employed, he would call "Mister So-and-So" or, more likely, "Miss So-and-So". That is all right, but it is not a very satisfactory system.
As I understand the proposal, it is simply to regularise the system by having a list of people properly proposed by the suitable bodies, to whom a judge could look when he wanted a report of this sort, but it would not exclude resort to social workers in suitable cases. If I may respectfully say so, it seems to me an extremely reasonable and proper proposal, which would not need any regulation or change of law. It is simply a rather more formal way of doing what is done at present in perhaps too informal a way.
Lord McCluskey: I am indebted to the noble and learned Lord, Lord Fraser, and I make my third and, I hope, my final attempt to withdraw this amendment.
Amendment, by leave, withdrawn.
5.13 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 3:
After Clause I, insert the following new clause:
("Transfer of actions from sheriff court to Court of Session.
.—(1) In an action to which this section applies the defender or respondent may, by motion entrolled at any time between the service of the initial writ or petition and the eighth day after the closing of the record, request the sheriff to transfer the action to the Court of Session for all further procedure, and the sheriff shall, if the motion be unopposed, and may, if it be opposed, transfer the action to the Court of Session by causing all papers lodged in the sheriff court in such action to be transmitted to the Principal Clerk of Session, and the Court of Session shall thereafter entertain such action as if it had been raised in the Court of Session.
(2) In considering whether or not to exercise his discretion to transfer an action to the Court of Session the sheriff shall have regard to—

(a) the value of the cause,

(b) the complexity of the questions apparently at issue in the proceedings,

(c) the possibility that the result of the action may in law or in fact affect the rights and obligations of persons other than parties to the action,

(d) the fact that the action appears to raise questions which have been, or are, similar to questions which have been decided in different ways by different Sheriffs,

(e) the fact that the case appears to raise difficult questions of law or of mixed fact and law, and

(f) any other material consideration.

(3) If the Sheriff refuses such motion the defenders or respondents may enrol the same motion for determination by a single judge of the Court of Session by such summary procedure as is prescribed by Act of Sederunt, and the judge of the Court of Session may grant the motion and cause the action to be

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transferred to the Court of Session which shall thereafter entertain such action as if it had been raised in the Court of Session.
(4) This section applies to such class or classes of action, of whatever character, as the Lord Advocate may by order prescribe.
(5) An order under subsection (4) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble and learned Lord said: I shall deal with this amendment very shortly, because it has been pointed out to me by the House authorities that it may be irrelevant to the Bill. Of course, I was conscious of that when I drafted it, and that is why I put down Amendments Nos. 16 and 20 to alter both the short and long Titles to the Bill, so as to make it relevant. If those amendments were agreed to by your Lordships, then I think that this amendment would become relevant.
I put it down simply to draw specific attention to the fact—and I have spoken about this before—that the Bill enlarges the jurisdiction of the sheriff court and transfers work. We have spoken on a number of occasions, including today, about the problem of distributing the work between the two sets of courts. No doubt the most important considerations are the expense to the public and the wishes of the public, but they also include the character of the cause which is to be litigated.
At the present time, the position is this—and my noble friend Lord Ross of Marnock took this from the noble and learned Lord the Lord Advocate earlier. It is the pursuer, and the pursuer alone, who chooses which court the action shall be raised in, subject to the general law about exclusive jurisdication in one or two types of case. The pursuer alone chooses the court which the action shall be raised in, and until the amendment was made in 1980, to which I shall refer in a moment, the judges had very little control over the kind of cases that came before them.
A judge at the Court of Session cannot say, when he first sees a case appearing on his roll, "This case is very trivial; it should not be dealt with in this court at this expense". He cannot send it away. Equally, a sheriff having a case before him ,cannot very well say, "This action ought really to have been raised in the Court of Session". So what I seek to do by this amendment is to give the defender a say in matters, so that the defender would be able, in effect, to ask the sheriff to transfer a case to the Court of Session. He would have to have regard to the matters which I list in subsection (2), but the sheriff could then transfer the case. If the sheriff declined to do so, then the defender could make the same request to a judge of the Court of Session.
The noble and learned Lord the Lord Advocate has drawn our attention to the amendment which was made by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, which by Section 16 put a new subsection into Section 37 of the Sheriff Courts (Scotland) Act 1971, which provides that a sheriff may,
"on the motion of any of the parties to the cause, if he is of the opinion that the importance or difficulty of the cause make it appropriate to do so, remit the cause to the Court of Session".
Accordingly, my amendment goes a little further than that, but perhaps not very much further.
The position is—and I think that the noble and learned Lord the Lord Advocate will be able to confirm this—that very little use has been made of the
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amendment enacted in 1980. I regret that, and I hope that by raising this matter in this form and by the speech which the noble and learned Lord the Lord Advocate will no doubt make, referring to the amendment made in 1980, attention will be drawn to that provision and sheriffs will be encouraged to use it.
The other point is that if the defender in a sheriff court action asks the sheriff to transfer the action to the Court of Session and the sheriff declines to do so, then the defender can appeal to the Court of Session. But that is an elaborate appeal, as I understand it, to the inner house of the Court of Session to be determined by three judges, and it seems to me to be a mightily over-heavy piece of machinery to be used for that purpose. One advantage of my scheme is that it would simply be done by enrolling a motion to be heard by one judge of the Court of Session, and, accordingly, the matter could be simplified.
So my primary intentions are, first, to draw attention to the facility which exists, but which has been neglected and hardly used hitherto; and, secondly, to invite the Government to consider whether or not they might make it more easy for this matter to be dealt with on appeal in a very summary fashion, instead of by the elaborate procedure of appeal to the Court of Session which exists under the 1980 Act. I beg to move.
Lord Wilson of Langside: I assume that the noble and learned Lord will not press this amendment and that, in any event, the Government would not accept it if it were pressed. It would be a most inappropriate provision, which would increase the pitfalls that beset litigants faced with the misfortune of having to go to law—because going to law is a misfortune. But just as going to war is a misfortune, it is sometimes an unavoidable one. I should have thought that the present provision, to which the noble and learned Lord referred, adequately meets the needs of the situation. This proposal would increase the difficulty for pursuers, particularly—and I am a little surprised that it came from the Front Bench of the Labour Party—if powerful defenders want the process in the sheriff court, which is the cheaper and, usually, the quicker court, to be transferred to another court. I should have thought that that was quite inappropriate.
Lord Mackay of Clashfern: I am very happy to draw attention to the amendment which was made in 1980 to Section 37 of the Sheriff Courts (Scotland) Act 1971, which permits the parties to move the sheriff, or the sheriff of his own accord to decide what should happen in relation to a case of this sort. In any ordinary case, Section 37 allows a sheriff to remit to the Court of Session on the motion of any party to the cause if he is of the opinion that the issues raised are of sufficient importance and difficulty to make it appropriate to do so. As the noble and learned Lord has said, his decision on a motion of this kind may be appealed to the Court of Session.
A sheriff can also remit of his own accord in any action in relation to the custody or adoption of a child. Paragraph 12 of Schedule 1 to the Bill enables him to do so in relation to divorce actions also. So the basic matter to which the noble and learned Lord has referred is covered by a provision which is already in

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existence. So far as the procedure on appeal to the Court of Session is concerned, the noble and learned Lord is suggesting that it might be simplified. That matter would be within the power of the Court of Session, if they wished to do so. I will certainly draw the attention of the Lord President to what the noble and learned Lord has said so that the matter can be further considered.
Lord McCluskey: I do not want to press the amendment. I am happy to accept what the Lord Advocate has said: that he will take the matter of appeal a little further. So far as the noble and learned Lord, Lord Wilson of Langside, is concerned, if he looks at the amendment contained in the 1980 Act he will find that the great substance of my amendment is covered by it. It has not been very much used, but in cases of the kind to which I refer in subsection (2) of the proposed new clause—for example, cases where there have been different decisions on similar questions by different sheriffs—it is desirable to have any particular case referred to the Court of Session for a more authoritative decision, otherwise in the same type of case there will be one result in Kilmarnock and a different result in Airdrie. It is for these reasons that I wanted to draw attention to the existing provision and to the more summary procedure which might be introduced. I am happy that the latter part will be dealt with. I hope that by moving the amendment I shall have drawn the attention of sheriffs and practitioners to the existence of an amendment which went through in 1980 but which, as I say, has been much under-used. In the circumstances, I beg your Lordships' leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Rule requiring corroboration not to apply in certain undefended actions for divorce]:
5.24 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 4:
Page 2, line 1, leave out from beginning to ("the") in line 5 and insert ("In any action to which this section applies").
The noble and learned Lord said: I beg to move Amendment No. 4. At the same time perhaps I may discuss Amendment No. 5. Again I shall deal shortly with this amendment because it is purely a drafting matter. If noble Lords have a copy of the Bill and look at Clause 2(1), they will see that it begins with these five lines:
"Any rule of law whereby in any proceedings evidence tending to establish any fact, unless it is corroborated by other evidence, is not to be taken as sufficient proof of that fact shall cease to have effect in relation to any action to which this section applies, and, accordingly, in any such action".
All those words are, in my view, quite unnecessary. They are all contained in the last seven words of the same subsection:
"notwithstanding that the evidence is not corroborated".
It seems to me, as a matter of simplicity and brevity, that one does not need most of the first five lines. I have therefore invited the Government to consider, in Amendments Nos. 4 and 5, two ways whereby the clause might be simplified. I have no doubt that the Lord Advocate will tell the Committee that the language here is taken from Section 9 of the Law
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Reform (Miscellaneous Provisions) (Scotland) Act 1968. That is indeed where the language comes from. In my view, however, that is not a very good reason for repeating the language. As noble Lords will see, in the Scottish Law Commission Memorandum No. 46 they say that there has been some judicial disagreement on the effect of Section 9 of the 1968 Act. If the judges do not know what that section means, it seems to be a shame that one should repeat its wording in a 1983 Bill. That alone is a good reason for looking again at the question. If one looks at it again, I am sure that one will find there is a much simpler way of putting the point which is made here. Therefore, in the interests of simplicity, brevity and the avoidance of the pitfalls of the Section 9 wording, I beg to move Amendment No. 4.
Lord Mackay of Clashfern: As the noble and learned Lord has said, this is entirely a drafting matter. What we have done is to use the language of Section 9(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. The date is of course of some importance, although the noble Lord, Lord Ross of Marnock, seems to have left his place. The wording of that section has been the subject of judicial scrutiny and decision. It is true that there has been some judicial disagreement as to its effect, but that has now been settled. The judges have decided what the effect should be. The mere fact that there is disagreement does not necessarily mean that both were wrong or that there is anything particularly wrong with the clause. The clause emphasises both the positive and the negative side of the matter. We feel it would be unwise, when we want to get exactly the same result as in Section 9(2), to go for different words. If one goes for different words it is assumed that one is attempting a different result. Accordingly, at the present time we would say that the words of Section 9(2), which we followed, should be followed again.
As the noble and learned Lord has pointed out, the Scottish Law Commission is considering this area. Any proposals which they may put in their report on this matter would be taken into account by the Government when that report is available. In the meantime, however, it seems to us best to adhere to the words which have already been the subject of judicial determination.
Lord McCluskey: I am certainly not very happy with that answer. The judges have disagreed about the effect of the section. The Lord Advocate believes that the disagreements have been resolved. That is not my reading of the judgments on the meaning of the section. The other point is that Section 9(2) of the 1968 Act was designed to allow a pursuer who was claiming damages in a personal injury case to be entitled to succeed, even though he could not find a corroborating witness. I had the case of a man who was injured while working inside a long metal tube. There could be no possibility of corroboration as to the circumstances in which he came to be injured. It was that kind of case which the Legislature had in mind. Those were defended cases. Here we are talking about a class of undefended case. It does not seem to me that one is talking about repeating the Section 9(2) provision; one is just entitling the court to proceed upon uncorroborated evidence. I see no particular

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reason for following a precedent which, for the reasons I have given, is a bad precedent. However, the Government seem to have set their face against simplicity and brevity. It is not for me, therefore, to become unduly complicated in telling them that they should not do so. Therefore I shall sit down. I beg your Lordships' leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
5.29 p.m.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 6:
Page 2, line 11, after ("Advocate") insert ("after consultation with the Lord President of the Court of Session").
The noble Earl said: I do not want to make too much fuss about this change in the law of evidence, but it is one which is very important. I should like to read what the law has been for 300 years. This is from our great institutional writer, Stair:
"One witness cannot make sufficient provation; whatsoever be the quality or veracity of that witness … One witness may concur with other evidence to make up provation, though it be not sufficient alone".
That has been broken, as the noble and learned Lord said, in the 1968 Act. It has now been broken for a second time. My anxiety is that there will be slippage. There always is slippage once one starts on such a course; it goes further and further. It is proper to say that it woud be very unwise to allow it. We have a well-established system on this basis, although I know that divorce actions are rather peculiar. But who are we to tell what the future may hold?
He is taking on powers here. Clause 2(2) states:
"This section applies to such class or classes of undefended actions for divorce".
That is the beginning of the subsection, but that could be the basis of a further development. I sought to place a degree of restriction on what the Lord Advocate can do—and it is that he should consult the Lord President of the court. I hope that my noble and learned friend will say that he can do so. I hope he will make it clear that Lord Advocates should always do this. After all, it is the practice of the court that matters and it is the Lord President who should know more about that than any other person. I am concerned not about the way in which matters stand at the present time because I do not think that it is wrong in itself that they have peculiar effects. But I am concerned that this should not be a staging post for further developments which I believe should be approached only with the greatest care. I beg to move.
Lord McCluskey: I rise to support the noble Earl, Lord Selkirk, in this matter and I do so for one particular reason. In the Official Report of the debate at Second Reading (col. 835), the noble and learned Lord the Lord Advocate said:
"In the light of experience of its operation, the clause will then enable consideration to be given to extending it to other classes of case".
The question I ask is, whose experience is the noble Lord talking of? The Lord Advocate, as Lord Advocate, has no experience of divorce in the sheriff courts. The Solicitor General has no experience of divorce in the sheriff courts. The Crown Agents have no such experience, because all their consideration is
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given to matters of crime. Neither has the Procurator Fiscal. The Lord Advocate's department, happily ensconced in London, has absolutely no knowledge whatsoever as to what happens in any court in Scotland. Accordingly, the experience referred to by the noble and learned Lord the Lord Advocate as shedding light on the operation must be at second hand.
Whose experience is it? It must be the experience of the Scottish Courts Administration. That is a body which itself has very limited and second-hand experience. In effect, the Lord Advocate's judgment in the light of experience will be based on what is reported to him third-hand, as it were, by the Scottish Courts Administration, unless he consults the judges. In my view, that is the reason why the amendment proposed by the noble Earl, Lord Selkirk, is absolutely sound.
It may be that the noble Earl should have gone further and required the Lord Advocate to consult not just the Lord President but the sheriff principals as well, because they will know how the matter is operating in the sheriff courts. I hope that, prompted by this amendment, the noble and learned Lord the Lord Advocate will be able to tell us that he will not act without first consulting both the Lord President, to ascertain the views of the judges, and the sheriff principals, to ascertain their views, because it would be a pity if the experience of which the noble and learned Lord the Lord Advocate spoke at Second Reading were to be experience derived solely from the Scottish Courts Administration.
Lord Hughes: I shall be surprised if the noble and learned Lord, the Lord Advocate, does not tell us that on a matter of this kind he will obviously have consultations. I personally have no objection to the amendment's being accepted, comforted by the fact that from all past experience, when Governments and Ministers have been obliged to consult people on various matters, it has not followed that they have been compelled to act. The noble Earl is not asking that the Lord Advocate shall act only with the assent or concurrence of the Lord President but that he should consult him. I am quite certain that such consultation is the normal procedure in matters of this kind.
With regard to the point about change not having taken place in this field for 300 years, that does not surprise me. We all know that in matters of law, change proceeds very slowly indeed. Some practices in which changes are still necessary go back even longer than 300 years, I have no doubt. I am reminded of something that was said during the sitting of the Royal Commission, when we were dealing with changes which were necessary. One of our number—and it would not be fair to say who it was, but some of your noble Lords who are legal people will know who said it—noted that one Scottish judge had commented that a change for the better was a contradiction in terms, and I believe that view has animated the law for all these 300 years.
Lord Wilson of Langside: I do not wish to take up the Committee's time unnecessarily. There may have been times when the relationship between the Lord Advocate and the Lord President of the day have been

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somewhat strained, but even then it would have been quite unthinkable that, in a matter of this kind, the Lord Advocate would not consult the Lord President, who would in turn consult all the judges.
Lord Mackay of Clashfern: In my experience it would be utterly unthinkable to propose any order of this kind without consulting the Lord President. It is fair to say that I am privileged to consult the Lord President on a great number of matters in which there is no statutory requirement for me to do so. Statutory requirements to consult the Lord President involve the Court of Session's interest in the registers of Scotland; that is rather a special field. Otherwise, these matters proceed on understanding, and I can certainly undertake for myself that I will always consult the Lord President in relation to matters of this sort. And once the sheriff courts also become involved in this matter, I would expect that the sheriff principals' experience will be extremely important.
The experience to which I referred at Second Reading was the experience gained by those who operated the system, and the Lord Advocate's responsibility would be to find out what that experience was. One way in which he would do so would be by consulting those who deal with this matter and who are responsible for it. So I say to my noble friend Lord Selkirk that I have certainly consulted the Lord President and I undertake to do so. I believe that this particular provision is of such a kind that no one in the office of Lord Advocate—however much he wanted to go ahead on his own—could do this without consulting the Lord President.
The Lord President has been very fully consulted about the order I shall be proposing to make assuming this Bill receives Royal Assent. I shall be proposing to make an order under this clause specifying that corroborated evidence will not be necessary in divorce actions but for which the simplified Cowie procedures are available, and the Lord President agrees to this. Indeed, it would not be too much to say that the need for this particular provision arose out of the consideration given to the matter when the Cowie Committee was set up. I hope that my noble friend will feel able to withdraw his amendment in the light of these assurances. I may say that I have asked the Lord President about this and he has authorised me to say that he agrees it would be better left as it is, in case it would cast doubts on the consultation arrangement in other matters where no statutory provision exists.
The Earl of Selkirk: I am extremely grateful to my noble and learned friend for the very forthright statement that he has made, which covers the major issue I had in mind. This is the sort of matter that is of a somewhat fundamental character, and in the remote, almost inconceivable situation in which the noble Lord, Lord Hughes' is concerned with a criminal court, it is possible that he will be grateful to me for drawing attention to this. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.38 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 7:
Page 2, line 17, leave out subsection (4) and insert—
("(4) No order shall be made under this section unless a draft of
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it has been laid before Parliament and approved by a resolution of each House of Parliament.").
The noble and learned Lord said: Some of the matters which were in my mind when I put down this amendment have been discussed and dealt with in the speech just delivered by the noble and learned Lord, the Lord Advocate. May I just remind the Committee of one point? The clause we have here is, as we have been told, modelled on Section 9(2) of the 1968 Act, When that Act was a Bill in this House, your Lordships found that the intention at that particular time was to remove the need for corroboration from a much wider class of case than the classes of case to which the section ultimately applied. Your Lordships' House decided to amend the original Bill and to restrict the effect of Section 9(2) to actions of damages for personal injury only. On that occasion there was show of your Lordships' concern that we should not lightly abandon long-standing rules of evidence, and that is just the point that the noble Earl, Lord Selkirk, has raised with the previous amendments.
By contrast with Section 9, however, which told us exactly what was being done, by defining precisely to which classes that section applied—that was done within the section itself—this clause does not do so. It allows the Lord Advocate—who will no doubt consult, as he has told us he will do—to make this section apply to particular classes of case, and there is no supervision by Parliament. All I want is that the Lord Advocate, after the consultation that is spoken of, should then come back to Parliament—and it need not take long because these matters can be put through very quickly—and he can then explain what he is doing and why he is doing it, what experience has justified the change and what the results of his consultation have been. I would have thought that was a fairly modest request to make when one is interfering with the law of evidence, albeit only in one general type of case, the divorce case. It is for that reason I put down the amendment. I beg to move.
Lord Mackay of Clashfern: I would suggest to your Lordships that the clause as drafted gives a sufficient protection for the rights of Parliament in this matter. The order would relate solely to the class or classes of undefended divorce actions in which corroboration may not be required. It would not appear to me that affirmative resolution procedure is appropriate to that. If any Member of your Lordships' House or Member of the other place had any doubt about the propriety of the order they could readily raise it under our provisions, and I would hope that the Lord Advocate would be able to satisfy Members of both Houses without the necessity of taking up parliamentary time on it. It appears to us that this sort of provision is in line with the general practice which your Lordships' House has followed in orders of this kind. In the light of that explanation, I would hope that the noble Lord would feel able to withdraw this amendment.
Lord McCluskey: Yes, I do feel able to withdraw it, and with your Lordships' leave, will do so.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2 shall stand part of the Bill?
Lord McCloskey: On this Question, I want to make just two brief points. First of all, at Second Reading I referred to this clause as an example of the Government by-passing the Scottish Law Commission; I pointed out that the Scottish Law Commission is currently considering the law of evidence and is going to make recommendations, and I regretted the fact that this change was being made in advance of those recommendations. However, I do not repeat that point, because the Government are entitled to proceed in this way if they choose to do so.
I referred to what I called a much worse example of by-passing the Scottish Law Commission on the question of Clause 53 of the Police and Criminal Evidence Bill. I said I would come to that on another day. It looks as if I have been deprived of that other day, because the Lord Advocate has demonstrated his wisdom and he seems to have abandoned Clause 53 of that Bill. So I can only offer my congratulations on that.
One last point I want to make is that this clause appears to me not to deal with divorce jurisdiction, not to deal with court fees and not to deal with legal aid, but to deal with evidence. Accordingly, one would have thought that that ought to be in the Title of the Bill. I have an amendment down, No. 17, which is to raise that particular point, but it may be that the Lord Advocate could enable me to withdraw that particular amendment if he took this opportunity to explain why he has a clause about evidence in a Bill which does not refer to it in the Short Title. I beg to move—no, I am sorry; I do not beg to move.
Lord Mackay of Clashfern: I am glad to accept the congratulations with regard to a matter in another Bill. We considered all the representations, including those made to us by the noble and learned Lord, and decided that it was right not to press that Clause 53 of that Bill should apply to Scotland. That matter is still under discussion in another place, so anything we say is entirely tentative.
So far as this particular matter is concerned the evidential requirement is in a peculiar situation in this case in that it restricts the jurisdiction of the court to grant a divorce. The court is not entitled to grant a divorce unless sufficient evidence is before it. So its jurisdiction is to that extent restricted. This, although it is a matter of evidence, is a matter also that enlarges the jurisdiction of the court to pronounce a decree in actions of divorce where the evidence is not sufficient in the sense of the previous law. So that I would think that the use of the phrase "divorce jurisdiction" in the Short Title is an adequate description of it.
The Earl of Selkirk: I wonder if I could ask the noble and learned Lord a question. This amendment raises the question of informing the other party in regard to the affidavit. Are there any rules about the time period within which that affidavit should be made available to the other party? It does seem to me important, because a witness you can cross-examine but an affidavit you cannot. There may be rules on it. Perhaps my noble friend could tell us.
Lord McCluskey: I am afraid that by referring to matters rather wider than the Question that Clause 2
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stand part, I misled the noble Earl into thinking that I was dealing with an amendment. I am coming to the affidavit in a moment. It was my fault because I said, mistakenly, "I beg to move"; I apologise for that.
Clause 2 agreed to.
5.46 p.m.
Lord McCluskey Lord McCluskey moved Amentment No. 8:
After Clause 2, insert the following new clause:
("Affidavit procedure.
.—(1) For the purposes of any proceedings in Court, whether civil or criminal, an affidavit purporting to be signed by any person who is a competent witness in such proceedings shall be sufficient evidence of any fact or other matter narrated in the affidavit.
(2) Subsection (1) above shall not apply to an affidavit—

(a) unless a copy has been served on all other parties to the proceedings not less than 14 days before the hearing of evidence begins at any trial, proof or hearing in such proceedings; or

(b) when any other party to the proceedings, not less than six days before such trial, proof of hearing, or by such later time as the Court may in special circumstances allow, has served notice upon the party serving such copy affidavit, that such other party challenges the fact or matter, or any part of it, narrated in such affidavit.

(3) A copy of an affidavit signed in accordance with subsection (1) above may either be personally served on the other party, or his known solicitor, or be sent to him by registered post or by the recorded delivery service; and a written execution purporting to be signed by the person who served such a copy affidavit together with, where appropriate, a post office receipt for the relative registered or recorded delivery letter shall be sufficient evidence of service of such a copy.
(4) In making any award of expenses against any party in any proceedings the court shall have regard to the extent to which the parties availed themselves of the provisions of this section and if satisfied that by the use of affidavit procedure the cost of the proceedings could have been reduced may, in exercising its discretion on expenses, take account of the conduct of any party either in failing to use of such procedure or in effectively preventing its use by any other party.").
The noble and learned Lord said: I will again deal with this fairly briefly for the same reasons as I gave in relation to Amendment No. 3, namely, that as the Bill stands, and looking at the Short and Long Titles, this amendment would be irrelevant. Recognising that, I put down other amendments to cure that situation.
I do not think this amendment is perfectly drafted. I do not think it is the job of Members of this Committee to attempt to be perfect draftsmen; that is the job of the Government draftsman. So I apologise if that is so, but I will not apologise again in relation to the other amendments. This amendment is intended for a particular purpose. My view of this Bill is that it is largely motivated—I do not say wholly motivated, but largely motivated—by a desire to save money and to save the waste of time and resources. I applaud the desire to make these savings. I believe that there are many other ways in which within the court system in Scotland we could save time and save money. This is one suggestion which I put forward just to illustrate that there are many matters that might be considered.
In our criminal procedure we now have, as a result of the Criminal Justice (Scotland) Act 1980, a clause, Clause 26, about routine evidence, which enables matters which are regarded as relatively routine to be proved by the lodging in effect of a certificate. That is a valuable measure, albeit it is not hugely important, because it saves the time of witnesses, especially forensic scientists and forensic pathologists, and possibly policemen and other people

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who are in a position to certify certain things as facts. It also saves the time of the court, which does not have to hear the witnesses but can take the facts as established by the certificate. And of course it saves the time of practitioners and it saves the time of jurors. So the routine evidence provision of the Criminal Justice (Scotland) Act is a valuable one. It was in the Bill which we introduced when I was holding office as Solicitor-General for Scotland, and it was enacted in 1980.
What I want to suggest is that that kind of provision can be extended. At the moment parties can agree, whether in a civil or a criminal cause, that a particular state of facts exists and therefore for the purposes of that action that state of facts is held to exist. But very commonly they do not agree, and it is a pity they do not, because one could save an awful lot of time in court if the two parties got their heads together beforehand and agreed what they were in dispute about and agreed that the other matters should be put into a joint minute. What I am trying to do here is to encourage the parties to reach agreement in effect, and that is done by this particular mechanism, the mechanism taken from Section 26 of the Criminal Justice (Scotland) Act 1980.
It allows one party to prepare an affidavit containing the evidence on a particular fact and that affidavit would be served upon the other party or parties to the action, and, provided they did not object then, the facts contained in the affidavit would be deemed to be facts for the purposes of the particular case. Of course, if any other party disputed any fact narrated in the affidavit, then under subsection (2)(b) he simply serves a counter notice challenging the fact of the matter narrated in the affidavit and that is the end of it. The affidavit disappears as if it had never been prepared.
What I am endeavouring to do is not to deprive the court of evidence on matters which might be in dispute: I am endeavouring to make it more likely that one party which wants to reach agreement can take the initiative by means of the affidavit procedure and thus avoid wasting the time of the witnesses, of the court and of the practitioners themselves. I believe that a procedure of this kind would encourage the parties to discuss the evidence earlier to narrow the areas of dispute. It will encourage the exchange of precognitions, for example, in criminal cases.
Let me give the classic example. In criminal cases where someone has been killed or badly injured as a result of alleged assault, it is very common to bring to court two ambulance drivers to prove that he was taken from the scene of the crime to the Glasgow Victoria Infirmary, or whatever it may be. One ought to be able very simply to put the evidence of the ambulance drivers into an affidavit and the Crown would serve that affidavit on the defence. It could be said that the court was not bothered about the ambulance drivers and there was no question to raise and it would be accepted. It merely makes it easier to reach agreement.
This procedure would apply not just to ambulance drivers but it would apply to many policemen. It would apply to the policemen who took photographs, the policemen who picked up objects at the scene of the crime, the policemen who made plans showing the
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measurements at scenes of accidents, and so on. It would apply to people who keep records relating to motor cars, to drugs, to firearms, to fingerprints and even to the contents of what was shown on the BBC or ITV on a particular evening—a question which often arises in courts when people say they were sitting at home watching "Coronation Street" or whatever it was when they were supposed to be out murdering their fellow citizens. These matters can thus be put before the court simply by means of an affidavit. Indeed, even more serious matters can go into an affidavit, if they are not matters which are in dispute. If the question in dispute is a narrow one all the other questions ought to be capable of being put in.
As I say, I am not compelling anyone to do this. I am merely encouraging it. I hope that the Government will see some way to encourage this kind of move, and maybe the best way to encourage it would be to accept my amendment. Accordingly, I beg to move.
Lord Mackay of Clashfern: As the noble and learned Lord was waxing eloquent on his amendment I was beginning to wonder whether I was wrong to take the decision I referred to about Clause 53 of the other Bill. However, in relation to criminal matters the noble and learned Lord has referred to a fairly recent provision extending the law in this direction for routine evidence. I feel it would not be right to go along with this proposal in relation to criminal matters at this stage.
In civil matters, in the Court of Session and the sheriff court, the court has power, if it wishes and it thinks it right, to make rules in accordance with the provisions of this amendment. I suggest to the noble and learned Lord that that is the way to proceed if he wishes this matter to be pursued. I would suggest that that is the way in which it can be pursued. There is also sitting the Cowie Committee on Criminal Procedure, which would, no doubt, also be interested in the matter. I am happy to draw to the attention of these various bodies the amendment that the noble and learned Lord has proposed. I would not have thought it right at this stage on this Bill, particularly with the Law Commission dealing with these very matters, to accept the present amendment, although I very much applaud and appreciate the sentiment with which it has been moved and put forward.
Lord McCluskey: For the reasons that the Lord Advocate has given, and because he has undertaken to draw the attention of the other bodies to the idea behind this, as well as because it is irrelevant to the Bill as presently drafted, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Power of Secretary of State to make provision about fees etc. in relation to legal aid]:
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 9:
Page 2, line 27, after ("and solicitors") insert ("including the period within which payment should be made").
The noble Earl said: We now come to the next stage of the Bill in which the Secretary of State takes over the control of legal aid. In Clause 3—amending Section 14

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of the Legal Aid (Scotland) Act with Section 14A—he is given powers to do this. There are a number of powers, some of which are mentioned in other amendments.
In the course of the Committee stage in the other place some really disgraceful examples were given of the long-term delay in ordinary legal aid being paid. People mentioned lengths of time such as seven years before they were paid. Someone else talked about 20 years. I do not know how far that is true, but there seems to be general agreement that delays in legal aid in civil actions, as opposed to criminal actions, can go on for a long time. It depends how soon solicitors make up their accounts, how soon they put them together and a variety of other factors. What I am asking in the amendment is: will the Secretary of State undertake, among his other duties—it is not mentioned here—control of the period during which payment should be made? This is a simple point. Is the Secretary of State, in the powers he is given, given adequate power to see that the payment is timeously made? That is all I am asking in this amendment and I should be glad if my noble and learned friend will make the position quite clear. I beg to move.
Lord McCloskey: Perhaps I may support this again fairly briefly. When I was Solicitor-General for Scotland in 1978 and had not been in private practice for a number of years, I received a fee payable in guineas dating from some imprecise time before decimalisation. It was probably about 10 years since I had earned the money and it was worth only a fraction of what I would have received had I received it promptly. In those days the salary of a Solicitor-General was so small that it was gratefully received, albeit 10 years late.
The legal aid practitioners already suffer deductions from the normal fees that they would earn in private practice, and under the Bill, and the regulations to be made under it, I have no doubt they will find that the full rates will not be paid for legal aid work in the future. On top of that, it seems a pity that they should have to wait while the bureaucracy slowly grinds its way through the perusal of accounts, the assessment of accounts, taxation and the ultimate review of the taxation before reaching the happy day of payment. This applies even more, oddly enough, to counsel than to solicitors, because counsel in at least some of these cases have to wait until the solicitor chooses to put in his account before the taxation review procedure starts. It can take a long time.
The Lord Advocate will tell us that a number of strides have been made forward recently, partly because of what was said by Lord James Douglas-Hamilton in another place, but I hope he will be able to give encouragement to practitioners that they will not have to wait years for the payment of their fees.
Lord Wilson of Langside: I also support this amendment. The examples to which the noble Earl referred were quite disgraceful and no doubt we could all, from our own experience, give other illustrations of the same sort of thing. I recall that when I went to the Bar as a very young man the practice was to pay one when one was briefed. Apparently we have moved a long way from that time. It is a great pity that we
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should have to legislate to achieve a proper arrangement for the payment of fees, but from the examples given in the debates in the other place it may be that something of that kind is necessary.
Lord Campbell of Alloway: Perhaps your Lordships will permit me to say that this problem exists on this side of the Border as well as north of the Border. However, the recent arrangements that have been made this side of the Border without any form of statutory effect have begun to work extremely satisfactorily: that is, an arrangement made between the Bar and the solicitors. There is also a scheme devised by my right honourable and learned friend the Solicitor-General to get part payment of fees, which is already operating. I thought that if your Lordships allowed me to intervene that might be of interest, because although I am not a Scots lawyer I am a Scot, and to at least advert to the fact that there is another way that is beginning to work here remarkably satisfactorily.
Lord Mackay of Clashfern: I understand that at least some of the illustrations given both here and in another place relate not necessarily to legal aid but to the ordinary methods by which these litigations are funded. For example, I am not sure whether the welcome addition to the income of the noble and learned Lord, Lord McCluskey, in 1978 was from Her Majesty's Government in another guise or from some private litigant. But the problem also exists in private litigation.
The first point I must make is that technically this amendment is not necessary because the specific provision which it makes can be secured without such a reference under the wide terms of the introduction to Section 14A and of paragraph (g). However, I do not want to leave it at that. I certainly agree with my noble friend's point that it is extremely desirable that those who have acted on behalf of legally aided clients should not have to wait for a disproportionate period of time before receiving payment for those services. The best means of achieving reasonably prompt payment will be considered as part of the review of fees which the Government intend to undertake. With these powers the Secretary of State intends to examine this matter as a practical matter in considerable depth. I can assure my noble friend without hesitation or qualification that this particular aspect of the matter will be examined.
Conditions in relation to the manner, timing and amount of payment may be prescribed in the regulations. I believe one of the difficulties has been the time taken for those who are entitled to payment to make their claim. Some people take quite a long time to put in their account, and it will certainly be possible to stipulate that fees due to a solicitor may be abated if accounts are not submitted within a certain period from the end of the court proceedings or the completion of the case. That will be a fairly strong compulsitor to put in the claim within a reasonable time. I understand that the great majority of accounts are rendered within nine months of the case being completed and it is only a minority of accounts that are delayed beyond that period. My understanding is that there is very little delay from the time of the accounts going in and the actual payment, unless a

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special problem of taxation is involved.
Already a scheme for payments on account to counsel in criminal cases has been introduced in Scotland and a scheme similar to that to which my noble friend Lord Campbell of Alloway referred as having been devised by my right honourable and learned friend the Solicitor-General for England and Wales has also applied in Scotland for interim payments in certain civil legal aid cases to solicitors and, through them, to counsel.
In any arrangements for payment of accounts it is desirable to ensure that these are made only where there is a clear justification and where any undue increase in administrative effort—for example, in the scrutiny of accounts—would not be involved. If these accounts have to be examined more than once administrative difficulties are created.
I think it is also true to say that the Faculty of Advocates, with the Law Society, has considerably advanced in relation to arrangements in cases other than legally aided cases for staged payments. I understand that that has been advanced some distance. Obviously that will contribute towards assisting in the problem generally. I hope that my noble friend, in the light of the assurances I am able to give that the matter will be considered and dealt with, and that we have the power under the existing draft to do so, will feel able to withdraw his amendment.
Lord Ross of Marnock: I think we are all grateful to the noble Earl for having raised this point and opening up an area of very considerable concern. I was wondering if the same laxity and the same delays apply to the contribution made by clients to their part of the legal aid costs, outwith the legal aid. As the Lord Advocate will know, assessment is made of the likely costs and assessment is made of the contribution that the client will have to make towards these costs, taking into account the legal aid aspect. Are they subject to the same delay? Are they given the same freedom to wait for as many years as my noble friend had to wait for his fee? I doubt it very much. In fact, it is done in a very different style.
A friend of mine told me about a client of his who had applied for a divorce. I think it started with an initial application to the solicitor about 22 months ago. An assessment was made of what she would have to contribute. It was as much as she could pay right away so arrangements were made to pay by instalments. She paid her full instalment by, I believe, December. She was still waiting for the divorce proceedings to go to court when she received a letter to say that, owing to changes in proceedings, the application would need to be done under the new system. All the money that she had paid was frustrated and not paid back. But under the new and cheaper system she would not be entitled to legal aid so she would need to make that on her own.
People wonder why I get suspicious of lawyers. In this case there are no children under the age of 16 and the case is undefended. I believe that the office of the Lord Advocate will be hearing about it, if it has not already done so. I had hoped that by this time a letter would have come forward from which I could read details of the case to the House. It seems that there is
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less laxity there. If the client is expected to pay up then why not in relation to the person entitled for work done in the courts? Even to suggest that it is nine months before payment is made is unsatisfactory.
When I hear about the state and conditions of some of our younger advocates in Edinburgh, which is a terrible thing to be allowed to go on, I can understand the sympathy that my noble friend Lord McCluskey has towards this amendment which was put forward so well by the noble Earl, Lord Selkirk. Is this dealt with in a different way?
The Earl of Selkirk: I am grateful to my noble and learned friend for what he said and I think he has brought out what I hoped might be the case—that the Secretary of State will make such provision as seems to him appropriate in respect of fees. Therefore, if the fees are not paid properly it is because the Secretary of State has not thought it appropriate. In other words, he carries a clear responsibility to see that the fees are paid appropriately, and that is exactly what I thought might be the case, but I proposed the words in my amendment to make sure. My noble and learned friend took up the point that my noble friend Lord Campbell of Alloway made about part payment. He mentioned criminal cases; he did not mention civil cases. That is the point which is really worrying at the present time. I only hope that he will be able to include that when the arrangements are made.
Lord Mackay of Clashfern: If I did not, it is my fault. The arrangements which my noble friend Lord Campbell of Alloway referred to, operating south of the Border, have been mirrored by arrangements north of the Border in relation to payments on account in civil legal aid cases.
The Earl of Selkirk: I am grateful to my noble and learned friend. I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
6.10 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 10:
Page 2, line 36, at end insert—
("( ) prescribed, either specifically or otherwise, rates or scales of payment of fees and outlays allowable and the conditions under which such fees and outlays may be allowed in respect of actions for divorce raised in the Court of Session").
The noble and learned Lord said: I beg leave to move Amendment No. 10. This amendment, I think, touches some of the same ground as is covered by Amendment No. 11, standing in the name of the noble and learned Lord, Lord Wilson of Langside. My purpose is really to try to get from the Government a very straight answer to a simple question. Is it the intention of the Secretary of State, while legal aid continues to be granted in divorce cases, to permit persons to obtain legal aid in order to raise an action of divorce in the Court of Session? The second question is this. At the present time, as I understand it, in order to get legal aid to raise an action in the Court of Session, whatever its character, one has to apply to the Supreme Court Committee. If that is right, will the Supreme Court Committee be able to grant legal aid in divorce cases, or will its capacity to do so be fettered in some way by the regulations, and, if so, in what way?
The third point that I want to make is that I entirely support what I believe to be the thinking behind Amendment No. 11, in the name of the noble and learned Lord, Lord Wilson of Langside, and that is that if legal aid continues to be granted in divorce actions, as no doubt it will be for some time, the legal aid fund should not have to pay more simply because the action is raised in the Court of Session than it would have to pay if the action were brought in the sheriff court. Therefore, I should simply like the Lord Advocate to answer the questions I have asked, if I may ask him to do so, and tell us whether or not the regulations that are proposed to be made here will somehow enable the legal aid fund to be protected from parties who choose to litigate in the Court of Session at greater expense. In other words, will the regulations enable parties to litigate in the Court of Session but at no greater expense than the cost that would fall upon public funds if the action were raised in the sheriff court? I beg to move.
The Earl of Selkirk: I have a somewhat simpler amendment, Amendment No. 12, but perhaps it would be convenient if I were to make my observations at this time. The noble and learned Lord, Lord McCluskey, has really raised a fundamental point in this issue. It has long been the practice, as has indeed already been said, that litigant pursuers can select the court to which they want to go. I think this is extremely important. If someone loses an action and says, "Oh, if only I had brought it in another court I might have won", he may be quite wrong, but the importance is that he should be reasonably satisfied that he has made the selection and that he has lost, or whatever the case may be.
The noble Lord, Lord Ross of Marnock, was saying that this should be made by the sheriff or the court. I do not think that that would give the same satisfaction at all.
Lord Ross of Marnock: I did not say that. It was the Royal Commission on Legal Services in Scotland.
The Earl of Selkirk: I apologise to the noble Lord. I think it is important that whoever is the pursuer should be perfectly free to choose the court, for good or bad, which he thinks can resolve the problem he has.
The question is widely canvassed today that under legal aid no counsel will be able to be employed in divorce cases. Is that so, or is that not the case? People may want to go to the Court of Session for many reasons: complexity, personal choice, a hunch, or something of this sort. It may be an inadequate reason, but they want to go. They may say, "If I only go to the sheriff court, it may not be so satisfactory". I am not saying whether that is right or wrong. I am asking whether they will be free to exercise their right, long established, of choosing the court they should go to, or is the whole body of legal aid going to prevent them from going to any court except that selected by someone else? This is a fundamental point. I would be grateful if my noble and learned friend could tell me that.
Lord Mackay of Clashfern: Concurrent jurisdiction is not a new phenomenon so far as Scotland is concerned, as we have heard, and therefore the legal aid system has had to cope with this. My understanding of the position is that, where the matter which is the subject of a legal aid application is a matter where there is concurrent jurisdiction, legally aided parties do not have a complete freedom of choice. They have a right to apply in the case of the Court of Session to the appropriate legal aid committee for legal aid, which is the Supreme Court Committee, but they cannot expect the Supreme Court Committee to grant legal aid for a Court of Session action when it would be heard more cheaply, conveniently and appropriately in the sheriff court.
Similar considerations may be expected to apply in divorce actions. Legal aid expenditure in Scotland during the current financial year will exceed £30 million. It would not be fair to expect the taxpayer to give money to allow assisted persons to opt for unnecessary and expensive departures from normal practice. The legal aid authorities have a responsibility to ensure economical arrangements consonant with the interests of justice and of the applicant. Precisely what may happen as between the Court of Session and the sheriff court will depend a great deal on the nature of the scale of fees which it is possible to prescribe for legal aid matters in the Court of Session. Certainly the Secretary of State intends to prescribe fees for the Court of Session in the way that this amendment has in mind.
The question of the amount of these fees will depend on negotiation. The results, I hope, will not be to create too much disparity between the one court and the other, but a great deal depends upon what those who practise in the Court of Session, whether as counsel or solicitors, are able to offer in the way of economical terms. I would think that it is quite a useful thing to have some degree of competition in this matter. One's experience is that when the possibility of competition emerges there is sometimes less pressure for higher fees than otherwise there would be. This is an area where some possibility of competition exists. The answer to the question asked of me by my noble friend Lord Selkirk is that the position will be the same in principle as it is just now where concurrent jurisdiction is concerned in legally aided cases.
The noble and learned Lord, Lord McCluskey, asked me something further. I would simply say that whether it will be possible to go to the Court of Session will, as I say, depend upon the scale of fees which it is possible to negotiate there, but the Secretary of State has every intention of arranging a scale of fees for this work in the Court of Session, as in the sheriff court. It may be possible that the scale of fees might be the same, for all one can tell. There may be a possibility that the people in the Court of Session would be able to agree to terms of that kind, for all I know. If that were the case, it would greatly simplify the question for the Supreme Court Committee. I think that I have answered the matters which have been put to me, and I hope that in the light of these answers the noble and learned Lord will feel able to withdraw his amendment.
Lord Hughes: I think in this matter the Secretary of State has some very useful ammunition at his disposal in discussing these fees. One of the arguments which was advanced before the Bill came before the House and which has been advanced since it came before the House is that there is no real reason—this has been put forward by those who have practised and hope to continue to practise in the Court of Session—to believe that procedures will be any cheaper in the sheriff court than they would be for a similar action being raised in the Court of Session. So the Secretary of State will certainly be able to give these people the opportunity of proving the correctness of their case by adjusting the fees accordingly.
Lord Mackay of Clashfern: I am obliged to the noble Lord. It had not escaped my right honourable friend's attention that he has a certain ammunition of that character available.
Lord McCluskey: What the noble and learned Lord Advocate is saying to us is that it is up to the Faculty of Advocates to fix a price for their "wares", so to speak, that will enable them to go to the Supreme Court Committee and say, "You can properly, having a proper regard for the need to protect public funds, allow people to come to the Court of Session". I entirely support that and I hope that the Faculty of Advocates will pay particular attention to what the Lord Advocate has said. The Lord Advocate said that they may even be able to agree upon the same scale of fees. I should hope that at a minimum they would be able to agree upon the same scale. It may even be, oddly enough, that counsel will be able to charge less than solicitors would charge for doing certain work because counsel, unlike solicitors, do not have staff to hire and fire, or premises to warm and insure, and accordingly they really ought to be able to compete. I believe—and I am glad to hear that the Lord Advocate is really on the same side as I am on this point—that it is up to the Faculty of Advocates to look closely at what they can do and compete for the business. If the beneficiary of that is public funds, so much the better. However, with those observations I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.22 p.m.
Lord Wilson of Langside Lord Wilson of Langside moved Amendment No. 11:
Page 2, line 36, at end insert—
("( ) entitle parties seeking legal aid in consistorial actions in the Court of Session to the benefit of legal aid for such an action within the limits of the total fees allowable for such an action in the sheriff court;
( ) entitle solicitors to exercise a discretion to instruct counsel in any action in the sheriff court, provided that the total liability of the legal aid fund for such an action does not exceed the liability it would have incurred had the action proceeded without the involvement of counsel;")
The noble and learned Lord said: I beg to move Amendment No. 11. In my view, the terms of this amendment are self-explanatory in the light of the discussion we have already had on Lord McCluskey's Amendment No. 10, and it covers somewhat similar ground to that of Amendment No. 12, which is to follow. The first part of the amendment seeks to entitle
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parties seeking legal aid in the Court of Session to the benefit of legal aid there within the limits of the total fees allowable for such an action in the lower court. The second part of the amendment seeks to provide for the situation in the sheriff court and to allow for the instruction of counsel to be covered by legal aid there. The business of the instruction of counsel in the sheriff court is quite important to the successful working of that court. One of the difficulties which the busier courts have—and this is not to cast any kind of aspersion on the solicitor pleader—is that they have the benefit of counsel pleading less often than would be disirable. The second part of this amendment is designed, perhaps, to meet that particular difficulty to some extent. I beg to move.
Lord McCluskey: So far as the first paragraph is concerned I have nothing to add that I have not already said in relation to my own amendment. So far as the second part is concerned, may I respectfully say that I agree entirely with this idea. At present your Lordships should know that a solicitor who obtains the benefit of legal aid for his client is entitled to claim a fee from the legal aid fund for spending the day in court on behalf of his client; but he is not allowed to claim that fee or any part of it if, instead of going himself, he chooses to instruct counsel. In other words, counsel's fees in the sheriff court in legal aid cases are payable if, and only if, the appropriate legal aid committee has expressly sanctioned the employment of counsel.
That, from one point of view, is rather unfortunate. A solicitor who has the benefit of legal aid and knows exactly what fee he would get for appearing in court one feels ought to be able to say, "I cannot be there for that day", for whatever reason—"because I am ill", or "because I am in another court" or something of that kind—"but I should like counsel to be there in my place and counsel can have the whole of my fee", or "half of my fee", or whatever arrangement may be reached between him and counsel. But that simply cannot be done. As I understand the purpose of the second part of this amendment, it would allow that to be done without any penalty to public funds, because the amount would not be increased.
There is, however, one objection which I have heard and which I ought to ventilate, and it is this. At the moment there are a number of firms of solicitors practising in Scotland who have a good name among those unfortunate enough to be routinely charged with the commission of crimes. They enjoy that good name because these people feel and have learned on previous occasions while in detention of their excellent service. Accordingly, what happens is that when persons are arrested most of them will demand the services of one or two firms of solicitors who are well known to them. The result is that these firms could really represent almost everybody who is charged with the crimes of murder, arson, rape and treason—indeed, all serious crimes—if they had the facilities; but because they cannot appear in all 44 sheriff courts of Scotland on the same day they are obliged to leave some of the crumbs to fall off the table, and other solicitors get some work.
If this measure were introduced, why, counsel could then be employed; and Mr. Joe Betrami, to name but

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one, could appear via counsel in about 40 courts on the same occasion; and all the one-man and two-man firms which at the moment are existing on the crumbs which fall from his particular table, would find themselves out of business. So while I rather approve of the idea as contained in this particular amendment, it is one that ought not to go through without due consultation with the solicitors' interests. Apart from that, I would give it my support.
Lord Mackay of Clashfern: As regards the first part of this amendment, its precise effect would depend on the nature of the arrangements that we discussed under the last amendment. For example, if the fee scale for a divorce in the Court of Session were the same as the fee scale for a divorce in the sheriff court, I think that the particular problem to which this part of the amendment addresses itself would not arise. If, on the other hand, it happens that it is more expensive to go to the Court of Session in a particular case, this part of the amendment appears to be contemplating that the legal aid fund would be responsible for the part which is equal to the amount that one would pay in the sheriff court and the balance would be paid presumably out of the person's own pocket. This is a kind of supplementation of the legal aid fund which has sometimes been described as "topping up". Such "topping up" has been resisted by successive Governments and is contrary to Section 2(6) of the Legal Aid (Scotland) Act 1967.
An obvious fundamental objection is that if a person is able to provide money to pay for increased costs, he should either not be eligible for legal aid or be able to pay a much larger contribution. Moreover, it would be unreasonable if the legally aided client could force the other party, whether legally aided or not, to incur the increased costs of a Court of Session action, because, as the noble and learned Lord knows, the person who is legally aided attracts a certain amount of protection from costs awarded against him. There are also practical objections to such a development. For example, the lawyer concerned might be tempted to press for payment of additional fees as a priority, and therefore ahead of any legal aid contribution which is collected by the Law Society. One might say, "You are going to pay the extra yourself. I will have that first", and then go on to the contributions to which the noble Lord, Lord Ross of Marnock, referred earlier. If clients have the means to top up, it is surely conceivable for them to dig a little deeper and pay the whole cost.
So in principle, as I say, successive Governments have resisted this topping up, and I hope that your Lordships will not feel that it would be right to accept this part of the amendment if it had that effect. Of course, as I said at the outset, it does not necessarily have that effect; much depends on the nature of the underlying financial arrangements.
As regards the second point of this amendment, I know of no provision in the primary legislation which would prevent this. The only thing that prevents it at the moment is the legal aid scheme. The scheme would require modification to enable solicitors to employ counsel without the prior consent of the appropriate committee on the basis that the total liability of the legal aid fund is not thereby increased. Amendment of these schemes is a matter for the Law
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Society of Scotland, subject to the approval of the Secretary of State under Section 8 of the Legal Aid (Scotland) Act 1967. No additional powers are needed, and any necessary changes in the fee structure could be made under the existing terms of Clause 3. Thus the effect of this amendment would be secured without specific provision in the Bill.
There are difficulties of the kind to which the noble and learned Lord, Lord McCluskey, referred in this matter. I, personally, think that this is a change which would be desirable, and I hope that in the negotiations it may prove possible for this particular matter to be resolved. As regards the second part of the amendment, it is not necessary in primary legislation to do this, and I hope that in due course it will be reached by negotiation.
Lord Wilson of Langside: I am most grateful to the noble and learned Lord the Lord Advocate, and in the light of what he has said I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved.]
6.32 p.m.
On Question, Whether Clause 3 shall be agreed to?
Lord McCluskey: Briefly, I should like to say a few words about this clause. In my view, the purpose of Clause 3 must be to enable the Secretary of State to reduce the fees payable in legal aid cases. I do not necessarily mean that he will take the present rates and cut them by half, by a third, or by whatever, but I think that he will certainly use his new power to make the fees in legal aid cases less by comparison with fees in private cases.
I should simply like to ask the noble and learned Lord the Lord Advocate whether he can give the Committee any idea as to what percentage or fraction of the normal fee he would expect the Secretary of State to be allowing in legal aid cases. To put it another way, how much more will the lawyer acting for the defending insurance company get than the lawyer acting for the unemployed person or widow of the man killed by the insured driver? That is something which I would hope he will be able to tell us.
I should also like him to explain how he justifies the principle of paying one side substantially less than the other. I think that the Secretary of State, observing that the cost of legal aid has gone up so much over the years, simply wants to take the power away from those who presently have it. I think that the Government's argument could not be more pithily put than it was by Mr. Cameron Miller at a Bar dinner on Friday night singing a ditty about legal aid which ended with the lines:
"For those dispensing legal aid
Are also members of the trade".
Those happy days are about to come to an end, and those dispensing legal aid are to be faceless civil servants with perhaps only the patchiest understanding of what real litigation is truly about.
The final point is that negotiations about this matter have already begun and, for example, there has been produced to the Faculty of Advocates a scale of fees

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which is based upon the English situation. The English fee system is entirely different from the Scottish fee system, and if the noble and learned Lord the Lord Advocate is to announce today that we in Scotland are at last to be paid as much as the colleagues of the noble Lord, Lord Campbell of Alloway, are paid in England, then far from that achieving a saving in public funds, in terms of my public hat, I fear that it will produce a great increase in the expenditure of public funds.
The draft that was produced to the Faculty of Advocates was based upon the English legal aid system. For example, it took into account a brief fee, which we in Scotland do not receive but would be happy to receive. If it is the Secretary of State's intention to give us all a brief fee, then the Government will be cheered to the echo at the next Bar dinner, despite the inability to continue to sing ditties like the one I have just quoted. We shall, no doubt, have other ditties which will recognise and salute their achievement. I beg to move—no; I beg the apology of the Committee for always moving things that I should not be moving.
Lord Mackay of Clashfern: I hope that your Lordships will agree that Clause 3 should stand part of the Bill. The ultimate result of the negotiations, which the noble and learned Lord has referred to as having begun, it would be very imprudent for me to try to forecast.I think that his second question arises only on the assumption that one has answered the first one in a certain way. So I think that disposes of both his questions.
If I am right in understanding that he says that the negotiations have started with the English scales being proposed to the faculty, and if the English scales are so much above that which the faculty is accustomed to receiving already, the negotiations may not last very long. But I suspect that it is not quite as simple as that, and the Secretary of State will certainly take into account what the Faculty of Advocates and the solicitors have to say in trying to come to a conclusion on this matter.
It is the Secretary of State's intention to try to examine the justification for the fees as deeply as he can and to arrive at a reasonable fee for the work done on the basis of the best information available. I hope your Lordships will agree that Clause 3 should stand part of the Bill.
Perhaps I should make just one other comment. One of the important purposes of the Secretary of State being given this power is that the constitutional position should be that the person responsible for the payment should have a responsibility for the negotiations. Up till now the Lord President of the Court of Session has been in a most invidious position in that he has had to have regard in some way to the policy of getting the money, because he cannot produce all the fees out of his own pocket, although he has the responsibility for regulating them. The constitutional position will be much better when the person who has the responsibility for providing the money has the responsibility for fixing or regulating the fees.
Lord McCluskey: I do not think that the noble and learned Lord the Lord Advocate specifically dealt with
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one point on which I would ask him to address the Committee. If in fact the end result, even of the negotiations, be that the practitioner on legal aid earns for a particular piece of work two-thirds or one-half of what the private practitioner will earn for similar work on the other side in the same case, that is a development which could have the kind of consequence that I am sure he would deplore; namely, that there will be a tendency for the better lawyers not to do legal aid work. The people who are in benefit of legal aid and who would, therefore, be receiving the advice and assistance of the less able lawyers, are of course the poor and the underprivileged. If you are entitled to legal aid these days, you have to be exceedingly poor and underprivileged. If these people are not to receive the benefit of the best legal aid advice, that is a very unfortunate result. So can the noble and learned Lord the Lord Advocate explain whether or not it is the intention of the Secretary of State to give full weight to and take proper account of the fees which may be eligible from clients who are not on legal aid, whether it be the Government themselves, insurance companies or whatever?
Lord Ross of Marnock: Before the noble and learned Lord the Lord Advocate replies to that, has my noble and learned friend read the Second Reading speeches that were delivered when we introduced legal aid? I was there, and I believe I even made a speech. I can remember the great panegyrics about the great traditions of the legal profession in Scotland, where they saw that eveyone was defended and where the best lawyers worked for nothing. Now he tells us that even if they are to get legal aid, if they do not get enough they will not work for legal aid fees. I do not believe that. I still hold to the great traditions of the legal profession in Scotland, which saw to it that people were defended adequately and that able lawyers did not run away from what were their legal obligations in respect of the poor.
Lord Wilson of Langside: I must say that I had resisted the temptation to say what the noble Lord, Lord Ross of Marnock, has said, but I find some aspects of what the noble and learned Lord, Lord McCluskey, has said in this matter about the attitude of the profession depressing. I do not think that it is well founded. At this late hour, and because the House has other business, I will say only on this aspect of the matter, though I would happily develop on it on another occasion, that I entirely agree with the sentiments expressed by the noble Lord, Lord Ross of Marnock.
Lord McCluskey: I constantly seem to be annoying people sitting behind me or beside me, which is unfortunate. It is my misfortune to have to come here and tell your Lordships the truth. We did have an excellent tradition in Scotland, which was referred to no doubt in appropriate terms way back in 1949 in the legal aid debates, when I was not interested in these matters. That was a tradition that nobody appeared in the High Court without the representation of counsel: but in those days before legal aid, which counsel went?
I can remember the Lord Advocate and I as very young people who did not quite know which door took you into the court and which into the public lavatory.

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In that court it did not make too much difference because of the decor! I can remember him and me turning up—and this was a High Court case of great importance, with three accused—and we stood outside the court with "Have wig and will appear" looks on our faces. Out came the Clerk of Court and said, "There are three men here. I want one of you to defend two, and the other to defend the one". The Lord Advocate got the two and I got the one. We picked up the indictment, and, having got it the right way up, we went into court to appear on behalf of these people. The Lord Advocate's clients were extremely fortunate, because the Crown in that case had served a list of previous convictions for his Client A on Client B, and had served the list of previous convictions appropriate to B upon A, with the result that the Lord Advocate was able to persuade the judge that they were both to be treated as first offenders.
It so happens that in that particular case the two gentlemen concerned were given the best of service by an excellent advocate. But that was the system. If you had nothing else to do you went to Glasgow with your wig and gown on and the Clerk of Court summoned you in. That is the system which we have happily abolished. I hope I am wrong in thinking that there will be a drift away, but even Scottish lawyers are economic men, and, if there are better pickings on the private side of the fence, then in all honesty I have to say that not I, but they, will go for the private pickings, and over a period of time that could be unfortunate.
Lord Fraser of Tullybelton: I think that the noble and learned Lord, Lord McCluskey, is being a trifle cynical in his description of what went on in his young days. It was true that the young advocates did a lot of the work, but when there was an important case—particularly in murder trials—they always obtained the assistance of a senior and experienced counsel who was there to give his services free. That was a well-known practice. It is a little unrealistic to look back to those days. I do not know the number of criminal prosecutions or civil litigation actions in those days compared to now, but it was enormously less. It is one thing to carry a free system of legal aid on the shoulders of the legal profession when there are few cases, and quite another thing with the enormous number of cases that we now have.
When the legal aid system was introduced in the way that the noble Lord, Lord Ross of Marnock, mentioned, my recollection—I am open to correction—is that the fees were then only 85 per cent. of the normal fees. The fees on legal aid were 85 per cent. It was accepted as a general practice partly because of a sense of duty—not entirely—and nearly all members of the Faculty of Advocates put themselves on the list as being available to work for legal aid fees. There may have been a few who did not, but very few. That was accepted as a public duty. I would imagine that that is still the case.
If the fees are fixed at a level not too far below the normal fees, I should think that the likelihood is that that system would continue. If the legal aid fees were cut down to half the ordinary fees, that might break down, and you cannot blame people if you go that far. I should have thought that the noble and learned Lord, Lord McCluskey, was unduly cynical in his outlook on the position. If we got the fees fixed as a prevailing
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practice at about 85 per cent. of the normal fees, the system would probably continue, and all the lawyers, good and not so good, would make themselves available on the legal aid system as they have done hitherto.
Lord Hughes: The noble and learned Lord, Lord Fraser, has referred to the 85 per cent. At one point he talked about normal fees, and at another point I think he talked about the ordinary fees. My noble and learned friend Lord McCluskey mentioned the fees that might be paid on the private side. Surely in arriving at what is a normal or an ordinary fee one does not necessarily take into account the very high fees which may be earned by certain people. It is well known that not everybody in the profession commands the same fees in the private market as everybody else.
Presumably there is some system perhaps of leaving out those poor people at the bottom who take a ridiculously low fee—if there is such a person—and those people at the top who command, and get, a ridiculously high fee, so that some sort of an average comes out which can be regarded as the norm for the purposes of comparison with the legal aid fee.
Lord Wilson of Langside: I think that the noble and learned Lord, Lord Fraser of Tullybelton, really brought the matter into a better perspective than before. He was right when he spoke about what happened in 1949 so far as civil legal aid was concerned, and the attitude of the profession then towards it. But it is relevant to point out that the position under criminal legal aid is somewhat different, because that was not introduced until October 1964.
My impression was that the fees which were then fixed under the criminal legal aid scheme were substantially higher than those which would have been paid by what you might call the private criminal. That is where the trouble with which we have had to deal is concerned. I have seen in my time accounts for criminal legal aid work which made my hair stand on end—and I had hair at that time! This is a matter which must be got into perspective so far as criminal legal aid is concerned. The civil problem was an entirely different one, and we ought not to lose sight of that.
Clause 3 agreed to.
6.48 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 13:
After Clause 3, insert the following new clause:
("Taxation of defence accounts.
. In prescribing general principles in accordance with paragraph (d) of section 14A of the Legal Aid (Scotland) Act 1967, the Secretary of State may direct those responsible for the assessment and taxation of fees and outlays or for the review of such assessment or taxation after criminal trials on indictment, in considering the fees and outlays allowable to the defence in respect of precognoscing witnesses on the Crown List, to have regard to the fact that the prosecutor has, in any particular case, supplied to the solictor acting for the defence a copy of any statement of precognition of any witness whom the Crown intends to adduce:
Provided that the Secretary of State shall direct those responsible for such assessment, taxation or review not to have regard to such fact unless—

(a) the prosecutor has suplied such copy statement of precognition within 48 hours of the service of the indictment, and

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(b) the trial judge has ruled, on the motion of the prosecutor made at the conclusion of the trial, that it was unnecessary for the defence to precognosce separately the witnesses whose copy statement or precognition was so supplied.")

The noble and learned Lord said: I beg to move Amendment No. 13. I am afraid that I am riding a hobby horse in proposing this particular amendment. I have on a number of occasions, both in the House and elsewhere, advocated that one way to save time and money in the conduct of criminal trials in Scotland is for the Crown to make available to the defence copies of the statements of the witnesses that the Crown intends to lead at the trial.
The witnesses really fall into two categories. There are essentially professional witnesses like policemen, forensic scientists, photographers, and people of that kind, who are, in effect, paid by the state in order to do their work, and they provide statements. Then there are the lay witnesses. So far as the professional witnesses are concerned, as I said in connection with an earlier amendment, some at least of those witnesses are witnesses whose evidence will not be in dispute. It should be possible for the Crown, by providing the defence with copies of their statements, to enable the defence to say, "We do not need to precognosce and take a statement from this witness".
To encourage the Lord Advocate to press ahead with his present steps to bring about something like that, I have tabled the amendment, which happens to be designed so as to contain a sanction: if the defence have been faced with a statement which shows that the witness is entirely formal, or will be giving evidence on a matter which will not be in dispute, then if the defence choose to incur the expense, on legal aid, of precognoscing or taking a statement from that witness, the trial judge (who would be the person knowledgeable about what the true situation is) can rule at the end of the trial that it was unnecessary for the defence to precognosce that witness—he would not do so, of course, without strong grounds—and if he so ruled, it would be possible for those responsible for the assessment of the taxation of fees to disallow the fee for the precognoscing of that witness. The idea is, therefore, simple. It encourages the saving of money and it is intended to give a boost to the Lord Advocate's declared intention—it was declared, for example, in yesterday's Scotsman—to reduce the cost of criminal trials.
Lord Mackay of Clashfern: I am grateful to the noble and learned Lord, Lord McCluskey, for this suggestion, and it is one which we will consider further in relation to the study of what can be done in the way of handing out precognitions. One aspect of it is worthy of note and is new to me, and that is involving the prosecutor in matters connected with the legal aid system. So far, that has not happened, and my impression is that it would be undesirable, but that is a minor part of this proposal. I would certainly mean to have this in mind when we are studying further the possibility of handing out Crown precognitions more generally. On occasion it has happened that Crown precognitions have been handed out, but experience has not always been that the trial has thereby been greatly shortened, but we are not particularly discouraged by that experience. Our intention is to consult on
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the matter of what could be done in this area as soon as other tasks enable us to do that. I hope that, in the light of that explanation, the noble and learned Lord will withdraw the amendment.
Lord McCluskey: I am sure the Lord Advocate is doing what can be done here and I hope his efforts will be crowned with success. I appreciate the point that the prosecutor should not be involved with legal aid, but I am anxious to ensure that the Lord Advocate and his prosecutors do what they can to render it unnecessary for the defence to burden legal aid with the expense of precognoscing witnesses whose evidence is entirely formal. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.54 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 14:
After Clause 3, insert the following new clause:
("Written submissions.
. In any proceedings in any court in which the parties are at issue over any question, including any question of law, relevancy, competency or procedure, arising in the litigation, being a question which the court could competently be invited to decide after hearing oral submissions thereon from the parties or their representatives, the parties may by joint motion invite the court to decide the question on the basis of written submissions (lodged in a form prescribed by the appropriate rule-making body), and the court shall be free to do so and, if it does so, shall decide the question within 21 days unless, within that period, the court requires the written submissions to be amplified or clarified and for that purpose puts the case out on a "By Order" roll for oral submissions.").
The noble and learned Lord said: This new clause has the sidenote "Written submissions". In courts in Scotland virtually every question which has to be decided at present is decided by the judge after hearing oral submissions by the parties if the question is in dispute. I suppose there are procedural rules which would allow what the new clause is designed to achieve—namely, that the parties should make written submissions to the court—but if there are, they are certainly not used.
I have direct experience of being involved in cases, and of observing other cases, in which the parties—having arranged for a date to appear before the court and argue a question of law, or some other question—turn up and, no sooner has the argument begun, or perhaps even before it has begun, they manage to get together and discover that they have no real argument. The court having met to consider the matter, it rises, it does not sit, the parties depart and a great deal of time is wasted. It may be that the parties have sat in court for hours waiting to get in to begin the argument, only to find once they have started that they do not have a real argument.
It should be possible for busy practitioners—or, indeed, for any practitioners—to agree on either side of a case that they would like the court to decide the question on the basis of written submissions. I have no doubt that the noble and learned Lord, Lord Fraser, can confirm that the written case which Members of the House of Lords, sitting as a court, receive is of considerable assistance to them in understanding and focusing on the issues before the court. When the question is a relatively simple and compact one, it must be possible for the parties to agree to put their arguments before the court in written form.
I do not want to make it compulsory on anyone. The only compulsory part of the proposed new clause is that if the parties themselves agree to make written submissions to the court, then the court must decide the question within 21 days. There is no magic about that time, but one has heard of cases, some of them quite shocking, where, in relatively simple matters, the judge has retired to consider the question and months—in some cases more than a year—have elapsed before he has decided the question. Therefore, if the parties want a quick decision and they do not want to be exposed to the vagaries of waiting their turn to get a diet before the court, they could adopt this procedure. It would save money, it would save the time of the court and the time of practitioners and it might even be of assistance to the judges when they see with some clarity what the written submission is. I beg to move.
Lord Mackay of Clashfern: It may be doubtful whether the proposed new clause comes within the scope of the Bill, but I should be happy to deal with it in the way I have suggested dealing with some similar matters, and that is to bring it to the attention of the appropriate rule-making bodies. I would think it perfectly competent to do already what the noble and learned Lord is suggesting. If he wished to suggest in a case he was in that, instead of having the privilege of addressing the court, it would be done on paper, the court could do that. I do not know whether he has tried and failed or whether this is his first suggestion of it here. In any case, I feel satisfied that it is the sort of suggestion that is best dealt with by the courts, who have power to deal with it in this way already if they wish to, and I shall bring it to their attention.
Everything the noble and learned Lord said about the amendment—indeed, about some of the others we have discussed—suggests that the great way to save court time and the time of others affected by court proceedings is for the parties to get together earlier so that they may discuss the case and see what is between them in the way of controversial matter. That is what I have been trying to bring to the attention of the profession in Scotland in relation to criminal prosecutions more or less since I took office, and I only hope that that advice will be heeded. I hope that, with that assurance, the noble and learned Lord will feel able to withdraw the amendment.
Lord Wilson of Langside: Would the noble and learned Lord agree that we need less rules to provide for the saving of time and speeding up of procedures and more encouragment given to the profession to use the provisions that exist? We have in all our courts a host of provisions designed to save time. The difficulty is getting the profession to use them.
Lord Mackey of Clashfern: If the noble and learned Lord has any suggestions as to how we could overcome the difficulty, I, for one, should be very glad to hear them.
Lord McCluskey: The purpose of the new clause was to encourage parties to use this type of procedure. The Lord Advocate tells me that I can now agree to put in written submissions in place of oral
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submissions. I wonder whether he can point to some rule of court where that is specifically allowed. It may well be possible—I do not know—but it is certainly never in fact done. All I am concerned about is that if such a provision is put into the statute, or even if the court can be persuaded to insert an express provision in the rules of court, parties will see it, and if it is given sufficient publicity through the ordinary learned journals of the profession, parties will be able to employ it. I want to give that kind of encouragement to this type of procedure. I should have thought that if could be done, the court might consider making a new rule of court governing such procedure, and a similar rule would apply in the sheriff court.
I agree with the Lord Advocate that it is desirable that the parties should get together early, but it is a pious hope if one simply gives lectures to the profession in general, saying, "Get together early". It is necessary to provide, set up, and publish machinery, preferably with a sanction on expenses of the kind that I tried to write into some of my other amendments. If one does that, one will begin to make progress. However, I am content that the matter should be taken forward in the way that the Lord Advocate has suggested in his reply, and accordingly I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Power of Secretary of State to regulate court fees]:
Lord McCluskey Lord McCluskey moved Amendment No. 15:
Page 4, leave out lines 26 to 29 and insert—
("(4) No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.")
The noble and learned Lord said: Your Lordships' Committee will be glad to hear that this is the last amendment of any substance. Clause 4 is concerned with what are known as the fee fund dues, which are sums of money paid by the litigants into court for the privilege of proceeding with the litigation. In 1949, when I was an apprentice, and in the other place my noble friend Lord Ross of Marnock was addressing himself to questions of legal aid, a summons was raised in the Court of Session and a fee of £1 was paid. Now I think that one pays £28 for the privilege. So there has been a very considerable increase. But even only 10 years ago the cost of signeting a summons—the amount of fee fund dues—was but £4; so it has gone up sevenfold in 10 years. That applies also to virtually all the other fee fund dues.
The fee fund dues are quite simply a tax upon litigation. The money contributed by the litigants in this way does not, of course, meet the cost of running the courts. I do not know where the money goes; presumably straight into the Exchequer. The increases that have taken place in the last 10 years have been very substantial indeed. I have mentioned that in relation to a summons the figure has gone up from £4 to £28, which is very substantial. In the case of a petition presented to the court—against, for example, the return of a Member of Parliament for a constituency—that charge, too, was £4 in 1973, and is now £28. So there seems to have been a general sevenfold increase over a period of 10 years.
The clause gives power to the Secretary of State to make increases, and from what was said in the first Standing Scottish Committee it appears that he intends to use that power. As I read it—though I may be quite wrong, because I do not pretend properly to have understood what was said—the Secretary of State intends to achieve quite considerable increases over the next four or five years, and I suspect that in about three years' time the cost of signeting a summons will be in the order of £50 or £55.
In my submission Parliament should have the final say upon tax increases—and these are tax increases. Parliament should be very concerned to ensure that this form of taxation does not rise so much that it stops people litigating, even when they believe that they have a just cause. In any event, the Government's intentions in this matter are very unclear, from what was said in the other place, and I should like the Lord Advocate to clarify them. Accordingly, I have put down the amendment, and I hope that it is an appropriate vehicle by which the Lord Advocate can explain the position. Having regard to what he said in relation to an earlier amendment of mine, I do not think that in due course I ought to press the present amendment, but perhaps the Lord Advocate will explain what is the position in relation to the questions that I have mentioned. I beg to move.
Lord Mackay of Clashfern: With regard to this particular amendment, I would suggest that the provision in the Bill for negative procedure is appropriate. The right of Parliament to take cognisance of what the Secretary of State is proposing and to take the final decision upon it is preserved by that procedure. So far as the exercise of the power is concerned, I do not think that I can add anything to what was said in the other place in relation to the intention. The position is that the Secretary of State is asking Parliament for this power, and he will not use it except in a situation in which when he adopts the negative procedure he is subject to parliamentary scrutiny. I have no doubt that his proposals in relation to any particular change will be the subject of consultation before he proceeds. I believe that it would not be right at the moment for me to try to forecast with any degree of precision what would be the result of the exercise of the power if Parliament gives it to the Secretary of State.
Lord McCluskey: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clauses 5 and 6 agreed to.
Clause 7 [Citation, commencement and extent]:
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 16:
Page 5, line 1, at end insert ("Evidence, Procedure").
The noble and learned Lord said: As I previously explained, this amendment was designed to enable me, without offending the Committee, to make certain proposals regarding amendments relating to other parts of the Bill. In the event those amendments have
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not been insisted upon, and therefore it is unnecessary for me to move Amendment No. 16.
[Amendment No. 16 not moved.]
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 17:
Page 5, line 1, at end insert ("Evidence").
The noble and learned Lord said: On an earlier occasion the Lord Advocate was kind enough to explain why the word "evidence" was not included in the Title. I am not sure that I agree with that explanation, but I do not ask him to repeat it. Accordingly, I do not propose to move this amendment.
[Amendment No. 17 not moved.]
[Amendment No. 18 not moved.]
7.9 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 19:
Page 5, line 12, at end insert—
("Provided, however, that no order made under this subsection appointing a day for section 1 of this Act to come into force shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.").
The noble and learned Lord said: This amendment reflects my concern, and that of many people, that the sheriff courts will not in fact be able to handle divorce cases efficiently from the day that the Government currently have in mind. I believe that the Government have in mind that divorce actions should be competent in the sheriff court from about 1st January 1984, but no doubt the Lord Advocate will correct me if I am wrong.
I do not doubt, and never have doubted, that, with the additional sheriffs and additional staff that they are to have, the sheriff courts will themselves be able to handle the divorces. They will be able to receive the affidavits, the summonses, and the appropriate papers, consider them, and decide whether to grant decrees of divorce. But what I believe has been neglected in much of the consideration is the fact that all divorce actions which involve children or money bring in their train considerable incidental procedure. That incidental procedure is very time-consuming in the open court itself. It takes the time of the sheriff and it delays the start of other business.
I am concerned that in the consideration that I have seen reflected in the public debates on this Bill attention has not been properly given to the effect upon the ordinary working of the sheriff court of the transfer to that court of the incidental business which comes in the wake of divorce cases. Accordingly, the purpose of this amendment is to enable the Committee to be satisfied before Clause 1 is brought into force that the Government have taken proper steps not just to look after the divorces themselves but to look after the incidental procedure. I beg to move.
Lord Mackay of Clashfern: We have endeavoured to take account of the incidental business—very important business—that will be generated by the transfer to the sheriff court of a number of divorce actions. As I say, I do not think that there is anything further that we can do until the matter is really ready to start. I do not see how this particular amendment could assist in that process. The method of dealing

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with the matter provided in Clause 1 makes it possible for people, if anything should go wrong—which we do not anticipate for a moment—to have the option of the Court of Session. I said earlier in answer to the noble Lord, Lord Ross, that if there was a particular delay in one sheriff court it would be possible in that case to have the alternative. But I do not anticipate that as likely.
However, we have done our best to satisfy ourselves that this will work when it goes ahead. I do not believe that introducing another procedure will advance the matter. I hope that, in the light of these explanations, the noble and learned Lord will feel able not to press this amendment.
Lord McCluskey: The noble and learned Lord the Lord Advocate says that he does not see how this particular amendment could assist. But, of course, I do not believe that the amendment of the Bill would assist him to get matters right. What I am suggesting is that because there are real grounds for concern that the sheriff courts will not be able to handle this business from the day to be appointed, and because there may be serious interference with the rest of their business, then it appears to me that it would be sensible for an amendment of this kind to be made so that the Government can explain to your Lordships that all these difficulties have been overcome. However, I do not propose to press the matter at this time of night. Accordingly, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Schedules 1 and 2 agreed to.
In the Title:
[Amendment No. 20 not moved.]
House resumed: Bill reported without amendment: Report received.

Prison Conditions
7.15 p.m.
Lord Kagan Lord Kagan rose to ask Her Majesty's Government what steps are contemplated to improve conditions in Her Majesty's prisons following the resignation of the governor of Wormwood Scrubs Prison.
The noble Lord said: I beg leave to ask the Question standing in my name on the Order Paper. The governor of Wormwood Scrubs lifted the lid of his dustbin and looked out to tell the nation of the unacceptable face of our prison system and the utter impossibility of carrying out successfully the tasks assigned to it. The urgent necessity to improve the system is not in dispute. It is generally accepted. Many well-intentioned people say that the only answer to the problems is to pour more resources, and more and more taxpayers' money, into the service. I disagree with that totally. I suggest to your Lordships that not more but less money should be spent; but that money should be spent more prudently, more effectively and more imaginatively. This would be of benefit to the prison population, to the prison service and to the taxpayers.
To achieve this a fundamental and radical reappraisal is required. The problems of the prison service are not unlike those in major industries and organisations. The people inside are not always in the best position to identify their problems or, indeed, to arrive at solutions. Often outside expertise has to be called in—often with successful results.
The prison directorate and governors are too concerned with the day-to-day management to apply themselves to a reappraisal. Yet to impose on the prison service an independent outside organisation to effect a reappraisal would be extremely difficult, if at all possible. In the absence of this option, this task could and should be undertaken by the Prison Inspectorate. The Prison Inspectorate has an unrestricted statutory right to information as to all that happens in the system. This access is particularly vital in dealing with a service where information is jealously and sometimes over-zealously guarded.,
The Prison Inspectorate could invite outside expert help and advice. They might even wish to co-opt an Ian MacGregor, and should such intervention result in prison closures it would not be lamented on either side of your Lordships' House. Indeed, had Mr. Ian MacGregor been invited not to go underground but to go inside, the nation might well have benefited.
The most intractable problem that the service faces is gross over-crowding. On that there is no disagreement. There are 45,000 prisoners at a total cost of over £450 million. That is an average of £10,000 per prisoner per annum. There are 90 prisoners per 100,000 inhabitants in England and Wales. The cost per prisoner, depending on the prison is between £8,000 and £20,000 per head per annum. Yet even by Victorian standards conditions in most prisons are disgraceful. They are degrading to both prisoners and prison staff. A governor referred to it as a human dustbin—and the governor resigned.
Is this state of affairs inevitable? Is it incapable of solution? Is it the same in all countries? Is it the same with our European partners? No, my Lords, it is not. Holland is the country closest to us in character, tradition and culture. It is a constitutional monarchy, a democracy, an industrial and trading nation. Its dense population is diverse in ethnic origin and religion. It is catholic and protestant, black and white; an ex-colonial power with a legacy of immigration, colour, race and drug problems. It even has terrorism,
So what of it? Compared with our 90 prisoners per 100,000 inhabitants, 94 prisoners per 100,000 inhabitants in Scotland and 162 prisoners per 100,000 inhabitants in Northern Ireland, Holland has a mere 23 prisoners per 100,000 inhabitants. Southern Ireland, too, has only 35 prisoners per 100,000 inhabitants. And is its record in law and order worse than ours? It is not. So where is the difference? Are we to assume that there is an inherent hidden delinquency in the British people, or is it more likely that the penal system and judicial sentencing policies are different and better?
The difference, in my opinion, is rooted in its history. Holland—and Norway, for that matter—suffered under Hitler's jackboot. Their best sons were imprisoned. To live in honour meant disobeying the dictator's laws. Prison then was a danger, but never

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a shame. Dutch and Norwegian judges will not incarcerate people unless they are guilty of gross violence and are a danger to society.
Have they got it right? Should we not study their penal system and observe their approach? If it is deemed right for us to seek guidance from America for industrial problems where they perform better, is it not right for us to seek guidance from our European partners for social problems where they perform better? The problem is soluble. Holland has proved it, Norway has proved it and Southern Ireland has proved it. Surely we can do it, too. I hope that your Lordships will forgive me for being short at this late hour, and I thank you.
7.22 p.m.
Baroness Macleod of Borve: My Lords, the noble Lord, Lord Kagan, has brought this subject of the prisons once more before your Lordships' House. I can assure him that all parts of your Lordships' House are worried about the overcrowding in prisons. Indeed, we have been very worried about that problem for very many years and all parts of your Lordships' House have expressed concern over the last 10 years. It is a problem which has, as all noble Lords will know, been with us for a very long time and it has been a source of deep protestations and deep concern to every Govenment for the last 10 years. Indeed, when Mr. Jenkins was Home Secretary from 1974 to 1976 in the last Labour Government, nothing effective was done to alleviate the worsening situation—worsening, because the level of crime was already escalating. Mr. Rees followed him as Home Secretary and in 1978, although warned then of the total breakdown in the prison service, he established an inquiry under Mr. Justice May, instead of starting the lengthy process of building new prisons.
Overcrowding must be set in the context of increasing crime. A very great deal has been done recently by all those who administer justice to shorten the duration of a prison sentence and to try to find other ways of dealing with offenders. But when it comes to crimes of violence and other serious offences, I must confess that I am not one of those who would advocate lenient sentences.
To show how crime has increased in the last 10 years, these few figures may be of interest to your Lordships this evening. In 1971, 32,553 people were sentenced to immediate imprisonment. In 1981, 10 years later, the figure had risen to 52,000 people who were sentenced to immediate imprisonment. From 1971 to 1981 crime has nearly doubled. From 1,665,000 serious offences recorded by the police in 1971, in 1981 the figure is nearly 3 million. The prison population in 1971 was 39,708 on an average day. In 1981, that prison population had grown to 43,311.
This Government have tackled the difficult problem by providing 1,000 extra staff in the last two years. My right honourable friend the Home Secretary has also embarked on the largest prison construction programme for many years. He has initiated a programme of starting two new prisons every two years; in other words, he will build eight new prisons in the next four years. But, already, 1,100 new places should be created in this financial year. However, the
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basic truth is that the prison population is determined by the number of offenders with which the courts have to deal, and, until those who commit serious crimes realise that their destiny may well be an uncomfortable and overcrowded prison, we are likely to have an escalation of crime.
7.27 p.m.
Lord Soper: My Lords, in the absence of the noble Lord, Lord Hunt, next on the list of speakers, I presume that I must continue. I remember the opportunities that have come our way in your Lordships' House over many years now of taking part in this kind of discussion. I welcome this further opportunity and am grateful for the introduction that we have already received from both previous speakers regarding the nature of the issue with which we are concerned.
I must begin with a recollection. I first became a chaplain at Pentonville prison practically 50 years ago. The conditions today are worse, not better, than they were then. There have been improvements in the structure; there have been improvements in many of the block prisons in the ways in which prisoners are segregated and desegregated. But, as the noble Baroness who preceded me has said so trenchantly, the over-arching problem is the problem of overcrowding, and nothing produces such a sordid reaction as the kind of overcrowding of which many of your Lordships may only have heard. Those of us who have seen it and tasted it know of the acrid condition which it produces, to say nothing of those more sinister and perhaps not so much advertised problems of sex.
It is an insult to anybody, whatever he has done, that he should be incarcerated for many years, for many hours of every day, among those who may be better or worse than he is, but who are forced upon him in the crowded conditions of cells which were intended to house one person and now in many prisons are required to house three. For obvious reasons, three is a preferable number to two. In my judgment, this is a problem which requires the most urgent attention.
It seems to me that the fine words which on both sides of the House have been in advocation of a better system have fallen very largely on unproductive ground. It is in that context that, far from spending the time of this debate in chiding the Government, I should prefer to try to say something about some of the propositions which to me seem viable. Having had a talk with the noble Lord, Lord Hunt, I think I can without impertinence refer to at least two of the problems to which he was going to address himself, had he been here.
One of them is the problem of young people, particularly very young people, who have not as yet been convicted, who are held in prison for long periods and who are subject to contamination in situations in which there is more opportunity for congregation among prisoners than there was when I started as a chaplain. There is no doubt whatsoever, in my judgment, that the overcrowding is at its worst when it introduces young and susceptible potential prisoners and people who later are not going to be convicted at all. It is with regard to this immediate problem that I believe a number of suggestions can profitably be made. Here are some of them.

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There is urgent need to keep out of prison many of those who now serve time in prison, whether or not they are guilty. It should not be beyond the wit of any administration to call into contribution a great many voluntary organisations, such as the West London Mission, to which I was attached for many years. A bail system could be established under which a great many of these fellows and, indeed, girls who now languish in prison before they are even brought to trial could have the opportunity at least to keep in contact with the real world and free from the contamination of older "lags" in places like Pentonville. But as the noble Baroness said with equal effectiveness, the overcrowding in prisons could be reduced immediately if there were a reduction in the number of criminals who are expected now to be overcrowded in those particular institutions. I want to refer to two.
As a child, I was educated in what was called the nonconformist ethic. One aspect of it was that it was highly dangerous not to be at work. In fact, work was regarded almost as a virtue in itself. The other side of the coin (I am not so addicted to that doctrine of work as perhaps once I was) was the copybook maxim that Satan finds work for idle hands to do. Your Lordships will allow somebody wearing the collar I do to pause for a moment to indicate how general is that statement. I often wonder how true to principle I should remain if I were compelled to live in a world in which I had nothing to give and nobody wanted me. That is a much more deleterious and dangerous condition than even the condition in which you have nothing to get.
The deterioration in the moral fibre of young people is not something which we should immediately regard as an indication of a deterioration generally in the "sin rate" of the modern world. I am not surprised that so many of them resort to forms of violence, because they have nothing better to do and have acquired a way of life which has nothing to contribute to their own well-being and everything to contribute if they can only get hold of the money which is denied to them as the reward of their proper labour and usefulness. It has been demonstrated beyond doubt that, where this condition of unemployment continues to rise, the rate of delinquency, particularly among young people, tends to rise with it.
I remember the noble and learned Lord, Lord Gardiner, many years ago saying in the course of another debate on this particular issue that one of the ways in which one could reduce the incidence of crime was to multiply the number of policemen on the beat. It is almost too simplistic but it is a great truth that many crimes are committed because the opportunity is flaunted in the face of those who might be inclined to commit those crimes. A larger number of policemen, not necessarily in Panda cars but on the beat, would, I am sure, reduce the incidence of crime among those who take the opportunity to get away with it in circumstances in which the chance of being caught is remote.
I refer now to another issue. I hope I do not bang the drum of temperance too loudly, but I am quite convinced that if we could reduce the intake of alcohol we should reduce the incidence of crime. There are far too many outlets for the use of the alcoholic opportunity. It is a vastly greater problem than the
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many people who prefer to persuade themselves that it is not would acknowledge. If I may, I shall draw for a moment on experience over many years of trying to care for alcoholics. An alcoholic is one who has a drink problem. To endeavour carefully to segregate those who are alcoholics from those who are heavy drinkers is a fruitless task. But what is beyond doubt is that more crimes are committed in the intermediate stage between sobriety and drunkenness than are probably undertaken in almost any other condition. The proliferation of opportunities in stores and so forth to obtain a permanent supply of alcohol, to be taken whenever you like, not only explains the behaviour on terraces at football matches but also explains a great deal of the crime which would not be committed if those who perpetrate it were not partially at least under the influence of alcohol.
But the overall regard which I believe is imperative today is to look far more clearly and definitely at the system itself. I do not believe in the prison system. I know that it will take a very great deal of courage, enterprise and administration to put something better in its place, but, unless we are prepared to regard the present system as something which should be replaced, we shall not, I think, profit even by the most eloquent and practical suggestions which may arise from debates of this nature.
I still am in touch regularly with those who suffer from the effects of a world which is tempting and in which they fail. I am not sentimental enough to think that they should be excused thereby, but I am, I hope, realistic enough to believe that, after the comparative failure of attempts to remediate this present situation, it should in the presence of the fact that we are now in an intolerable situation of overcrowding, be as urgent for us to be prepared to spend the requisite money and expertise as it was when they flowed so freely when the Falklands issue was at stake, and that it ought to be regarded as just as urgent as the issue which sent our ships so far afield. I believe that it is. For that particular reason I am grateful for this added opportunity. I earnestly hope that the Government will be prepared to provide more practical and immediate answers to some of the questions which I have raised.
7.40 p.m.
The Earl of Longford: My Lords, I rise with particular pleasure to support the Question introduced by my noble friend Lord Kagan, who spoke effectively if briefly. His speech was followed with purpose by two established favourites of your Lordships' House—the noble Baroness, Lady Macleod of Borve, and my noble friend Lord Soper. Of my noble friend Lord Kagan I will say only that which was said by Macaulay of Warren Hastings:
"He has been tried by both extremes of fortune and never disturbed by either".
I am very glad that in this House we should have a debate initiated by someone who has the kind of experience of this system that has so far been denied to most of your Lordships. I think it would also be helpful if we had a representative here, as a Member of your Lordships' House, a person who is or has been a prison officer, and perhaps that also will come about. Also, why should we not have a prison governor or an ex-prison governor as a Member of your Lordships' House?

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Prison governors, as I have pointed out before now, are notoriously denied any substantial recognition. Why should we not see ennobled someone like the Reverend Peter Timms; a prison officer himself in the first place, and then a prison governor at Maidstone and other prisons, and now a Methodist minister and director of the Christian Prison Fellowship, which is beginning to make a real impact in most of our prisons? He tells me that Christian influence is steadily working and that Christian interest in prisons is steadily growing. That is certainly as it should be. If anybody asks, "Why a Methodist minister when there are so many other denominations?" I should have thought that the best of all possible precedents had been created by my noble friend Lord Soper.
Like other noble Lords, I have visited many prisons over the years. In recent weeks I have visited Durham, Long Lartin, Gartree, Brixton, Pentonville, Wormwood Scrubs and Holloway prisons. In the time available, I must not fail to pay tribute to the devotion of many members of the prison service at all levels. I shall be sharply critical in what I say about the system and, like my noble friend, Lord Soper, I do not believe in the prison system as we know it. But I do not wish to seem to be too lacking in generosity or genuine respect for that which is done by the staff at all levels.
I could use up my ration of time—although I cannot promise to be quite so brief as the first two speakers—in many ways. I could speak at great length, as I have before, about life prisoners. However, I am glad to think that the All Party Penal Affairs Group recently set up a sub-committee to investigate the whole problem of life prisoners and so I shall not say any more about that subject today. I could talk about the treatment—I am afraid that I must call it the maltreatment—of Irish prisoners, which is a point that a number of noble Lords raised in this House recently. On that occasion, I was sorry that the noble Lord, Lord Elton, proved somewhat misinformed about one particular Irish prisoner. I have no doubt that in time to come, because he is the most sensitive of men, the noble Lord will wish to put that right. I will just say to the noble Lord, Lord Elton, in case I do not mention him again and deal only with the issues, that I have the highest possible regard for him and know that he has his heart and soul in the search for a right solution to these painful problems.
I looked up to see when it was that we had the very first debate in this House on prisons, to the best of my knowledge. It was in 1955. Lord Templewood, a former Conservative Home Secretary and at that time president of the Howard League for Penal Reform, used some words which have stayed in my memory and which I have confirmed:
"We know what ought to be done but we do not do it".
He said that when there were 21,000 people in prison. Now there are more than twice as many. We can take it, therefore, that we did not heed the advice of Lord Templewood in 1955, because the situation has grown a great deal worse in the quarter of a century that has followed.
The report of the chief inspector of prisons about conditions in Brixton is typical of much official and unofficial comment. It seems that the chief inspector conducted his survey a little while ago but his report
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has only just been published. He writes:
"We do not believe that the conditions under which prisoners at Brixton are detained meet the European standard minimum rules that deprivation of liberty shall be effected in material and moral conditions which show respect for human dignity".
That is one of the many sharp comments which have come from official or semi-official quarters.
We are all aware of the utter dissatisfaction of the governor of Wormwood Scrubs, one of our principal prisons, about the whole prison situation. I have laid stress on his remarks more than once in this House, and now he has resigned and my noble friend Lord Kagan has initiated this debate. I do not wish to incriminate any prison officer from governor grade downwards now serving, but one does not need to visit many prisons to be aware that views similar to those of Mr. McCarthy, the former governor of Wormwood Scrubs, are widely held.
How far is it true today, in so far as it was ever true, that, in Lord Templewood's words, we know what ought to be done? In so far as it is true, what is standing in the way of our doing it? I believe we can all agree that there is gross overcrowding, to use the phrase employed by my noble friend Lord Kagan. When we try to decide what steps ought to be taken to remedy that horrifying situation, we find differences of emphasis or even of principle. It is Home Office policy, I assume, to fight for greater resources—and penal reformers, to use a generic term, are behind the Home Office in that. But there is a reluctance in the Home Office, for which Ministers of the day must take ultimate responsibility, to push ahead with alternative remedies—including much more liberal use of parole than the present system allows. The presence of the noble Lord, Lord Windlesham, who is chairman of the Parole Board, raises our hopes.
One way of remedying overcrowding is to build more prisons. That appears to be the Home Office's preference and I am not sure that it is not also the preference of the noble Baroness, Lady Macleod of Borve. Penal reformers, on the other hand, have pointed out repeatedly in this House that we must reduce the numbers in prisons rather than build more prisons. We urge this on not only social but also economic grounds. A substantial increase in the number of probation officers will be necessary under any policy of alternative remedies, whatever form they take, but there would be an immense saving overall. I will not go into the finances of that, but nobody in his right sense will doubt it.
This was one important issue on which penal reformers and Home Office Ministers seemed two years ago, perhaps, to have come close together for the first time. We gained the impression from various utterances that the Home Secretary and his officials had come to recognise that too many people are sent to prison who need not be sent there. They seem to have come to recognise that prison sentences in this country are too severe compared with those of our neighbours—a point made by my noble friend Lord Kagan.
When one says that sentences are too severe, one does not mean that they have emerged by chance, like a spell of bad weather, with no human beings responsible. One means that sentences which are too severe are being passed by our much respected judges.

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I hear and have learnt from experience that one must be careful. No one wishes to interfere with that which is called the independence of the judiciary, or called by others judicial discretion. Of course, it would be quite wrong for the Home Secretary to direct a judge regarding the sentence given in a particular case. But the judicial sentencing policy as a whole, which is so severe in this country compared with other comparable countries, is made up of countless individual decisions. How do we set out to influence sentencing policy as a whole, how can we move it in a more enlightened direction without individual interference? In the time available I am not going into that question in detail tonight.
Two years ago it seemed that the Home Secretary regarded himself, on behalf of the Government, as having not only a right but a duty to seek to influence the judiciary in the direction of shorter sentences. But what occurred in the event? To quote the Guardian:
"We have seen the Home Secretary move towards decisive action to reduce the number of prisoners, only to back away again, away from the bared teeth of his party's prejudices and from the hostility of the judges."
Those were the measured words of the Guardian recently and they are more eloquent than any words of mine are likely to be, but I would agree with their gist.
To return once more to the quotation from Lord Templewood:
"How far is it prudent to say that we"
—that is to say, the enlightened public for whom Lord Templewood appeared to be speaking—
"know what ought to be done about our sentencing policy, about the need for shorter sentences."
This is crucial, this question of whether we do know, taking anyone who is seriously involved, bringing their opinions together; this question is crucial. Is there a consensus on this question? Personally I am convinced that it will never be dealt with satisfactorily until the judges are ready to leave their pedestal and join in discussions with those who are equally expert but come to these matters from a different angle of experience.
Take one small illustration of what I have in mind. We have had endless debates on penal reform in the last quarter of a century. The contributions from judges here in this House could be numbered on the fingers of one hand. The dichotomy between those who pass the sentences and the rest of the community who devote a large part of their lives to penal matters is responsible for a large part of the mess we are in, for the confusion of mind that distinguishes the discussion of the whole subject. This dichotomy could be remedied, and the fact that it could be remedied points the way to a better future.
Before I close I should like to deal less sharply with what is really a still more fundamental issue. Some of your Lordships may have listened to a programme on Channel 4 recently in which the subject of prisons was discussed under the heading of "The Bankrupt Estate" by many persons of all kinds, including our revered Lord Chancellor. I should say, in passing, that there was an earlier programme on life prisoners, which was quite superb. This other programme, while more controversial, was well worth watching. There was, I
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think, general agreement among the speakers—though I do not think the Lord Chancellor, who took a short part in the debate, pronounced on this particular point—that there is now total bewilderment about the purpose of imprisonment. That means that there appears to be a situation today that would not have been at all true when we began these debates in this House. That I find as a I go round the prisons is true of the prison services at all levels: the same total bewilderment prevails as to what the object is of the whole thing. I am afraid that the May Committee, which performed in other respects a most valuable service, was not of much help with its ambiguous reference to "humane containment", a phrase which I should hope will be plunged into oblivion.
Twenty years ago I published a small book called The Idea of Punishment. Following fairly conventional lines, I distinguished in a just punishment the elements of deterrence, prevention, retribution and reform. I also mentioned reparation. If I were rewriting that book today I would say more about reparation, but I would still say that the elements mentioned must be the primary constituents of a just punishment. But how far today should I be entitled to say that reform of the prisoner in prison is still a recognised element in our penal system? The prison rule No. 1 still runs:
"The purpose of the treatment and training of convicted prisoners shall be to help them to lead a good and useful life."
But how far is that now being pronounced tongue in cheek? How far has it all become one vast humbug? I would be sorry to think that this is so; if it is so, it is not through the turpitude of any one individual or the failure of any one Government. We seem to have slipped into this situation, this moral vacuum, through not knowing what aim we are supposed to be pursuing.
The idea that prison could be used for the reforming of prisoners has its own dangers. On balance, as most of us have always known, from the point of view of the individual prisoner prison is more likely to do more harm than good, though that is not a necessary outcome. That should not preclude the unceasing duty of all concerned to try to make sure that it will do as little harm as possible to these fellow humans whom we hold at our mercy as a result of their wrongdoing. Once we abandon a moral purpose in prisons we finally discredit the prisons and ourselves.
No regeneration will be effected without the cordial support of the prison officers, about whom I believe Lord Mishcon may be saying some pertinent words. That opens up the whole question of how prison officers can be offered a more constructive role. When a quarter of a century ago, I began the debate, in which Lord Templewood spoke, I ended by expressing a passionate hope that prison officers would become much more like social workers and less like turnkeys. Well, one cannot say that that has happened. We are all aware that the subject is fraught with many complexities, but I am sure that that way of looking at it still contains the root of the matter.
7.57 p.m.
Lord Hunt: My Lords, I rise to ask to speak by leave of your Lordships, and in the same breath to offer profound apologies. I heard various forecasts of the time that this Unstarred Question debate would begin;

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nine o'clock was the first forecast, and some time after eight o'clock was the best forecast I could obtain. I therefore dallied over the coffee, and I am most apologetic, particularly to the noble Lord, Lord Kagan, to the noble Baroness and the noble Lord, Lord Soper, whose addresses I have not heard. I have read the speech of the opener of the debate with great interest, and I have listened with no less interest to Lord Longford.
Lord Kagan is aware that I had told him that I thought it was premature to discuss this question so soon after the Government had told us so much about their intentions during the passage of the Criminal Justice Bill. I should have liked to await the Second Report of the Chief Inspector of Prisons, which Sir James Hennesy told me last week would be published very shortly. But, having said that, the actions by prison officers in something like six or seven establishments in recent weeks, the reported subject for debate at the POA conference in May, whatever one may think of those actions and that resolution, are all aimed at expressing the concern of prison officers about the conditions in prisons and at bringing pressure on the Government. It gives point to our discussion this evening.
What is more, I firmly believe that it is vitally important to create more public awareness and concern about our penal policy in general, its costs and its consequences. Here I should like to put in a very good word for the Prison Reform Trust and for the bulletin Keep Out for doing exactly that. I feel that the Home Office deserves a pat on the back for the extent to which it has enabled members of the public and Members of both Houses to know more than we used to do about what goes on within prison walls. Yesterday I was in Pentonville and was reminded once again, whatever has been said this evening about the prison officers and prison service, how much we, as a nation, owe to the prison service. If it was not for its skill, its caring and dedication to the job it is doing—a frightfully difficult job—the problems in our prisons, the crisis in our prisons, would have assumed far greater proportions than it has so far.
As regards the social and financial costs, some colleagues of mine on the penal affairs group and I visited Holland and Belgium two weeks ago and we gained the impression there that those countries give far more serious consideration to those factors than we do over here. The penal affairs group will be making some suggestions to the Home Secretary quite shortly.
Lord Kagan's Question relates, as we all know, to conditions in local prisons. I recently visited Reading prison. It has not been highlighted to the same extent as Oxford, the "Scrubs", Strangeways and Winson Green, yet I found the conditions there just about as serious. On the day of my visit there were 326 prisoners for a prison whose certified normal accommodation is 177; 108 of those, a third, were being accommodated three to a cell, and rather more than a third, 145—this makes my point—were not yet sentenced prisoners. Most of them were unconvicted, awaiting trial, and some of them were waiting up to 14 months to come to trial. As happens elsewhere, this situation creates, as it did at Reading, the usual knock-on effect, escort and court duties by prison staff providing an insufficient staff in the prison to man the
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workshops and to supervise recreational activities. Most prisoners, as your Lordships know only too well, are spending 23 hours of the day in their cells or on their landings.
The noble Earl, Lord Longford, mentioned Brixton and the chief inspectors' report on Brixton dated September 1981. It is two years since I visited Brixton and I should be very interested to know the situation today. At that time all but 100 of the 900 inmates were unsentenced, most of them unconvicted prisoners on remand. Over 40 per cent. of those, we were told, subsequently did not, in the event, receive prison sentences. The average waiting time in London prisons at that time was nearly five months and visiting conditions were what I should call Dickensian, while the staff quarters for the prison staff and the officers' mess left a great deal to be desired.
I have given notice to the noble Lord the Minister of the questions that I should like to put to the Government in this area. They are these: What reductions have taken place in Brixton in regard to the numbers held at three to a cell, and what prospects are there at Reading of a reduction in the numbers held at three to a cell there? What improvements have taken place at Brixton and what prospects are there at Reading prison in regard to more work and recreation for more prisoners? I imagine that this is tied to the planned increase in the establishment of prison staff. My third question is: Has the visiting block, the staff quarters and officers' mess been reconstructed, and are they in use? What improvement has there been in the waiting time for remand prisoners in London and nationally? My final question in this area, as we all know that the number of remands in custody has risen steeply since 1979, is whether the Minister could give us some figures of the present situation.
I hope Lord Kagan will deem it as lying within the ambit of his Question if I refer to the detention of juveniles in adult prisons. He will remember, no doubt, that this was the subject of very concerned discussion during the Criminal Justice Bill. My information is that during 1982 there was a daily average of about 100 juveniles and young offenders who were being held in adult prisons. Most of them were so detained on certificates of unruliness. The use of those certificates for that purpose was condemned by the House of Commons Expenditure Committee as long ago as 1975 and the Government of that day stated their intention to phase them out. Here we are, seven or eight years on, and I gather they are still being used. I may be wrong and I should like to be corrected.
My questions to the Government regarding the custody of young offenders and juveniles in custody of any kind are these: How many young persons under 17 are now detained in adult establishments? What reduction in the figure can the Government forecast for the end of 1983, by which time the courts will have had ample time to make use of the new youth custody order? As regards the present detention centre regimes, when can we expect the findings of the Home Office research into the so-called short, sharp, shock treatment which was initiated some time ago at four establishments? In reminding your Lordships that during the Committee stage of the Criminal Justice Bill there was much concern about the number of boys who were undergoing that treatment and who were

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manifestly unsuited for it and had to be transferred elsewhere, my fourth question to the Government is: Has the Home Office rectified that very unsatisfactory state of affairs?
My final question, of which I did not give the Minister notice, though I am sure he is prepared for it, is: Could he tell us when we may expect the code of standards for prisons which he referred to during the Committee stage of the Bill on 22nd June last year? I have used Lord Kagan's Question as an omnibus for a number of more particular questions. I very much hope that the Minister will be able to give us the answers this evening.
I should like to conclude with four points which bear on the reduction of the pressures which are directly the cause of the appalling conditions in our local prisons. The first and most obvious is that the commission of crime is related to unemployment. This may well have been said and I apologise if it has been said before. There is ample documentation to indicate this. It does not excuse lawlessness—I stress that—but the public needs to be aware that this is just one more side effect of the Government's policy not to give a higher priority in the shorter term to reducing unemployment. My second point is that evidence has emerged to explode the myth that the British public are more punitive-minded than their fellow Europeans. The Dutch, for example have been mentioned this evening by the noble Lord, Lord Kagan. Holland has a population of one-third of ours but only one-twelfth of the numbers of people in any form of custody.
It is claimed that our penal laws and their interpretation by the judges reflect public opinion. It has even been suggested that the courts should lead public opinion, which I find quite preposterous. But however that may be, the indication that public opinion is not reflected and certainly not being led by the courts is welcome and should surely form the basis for a more enlightened penal policy. It is very much to be hoped that the courts will respond accordingly, especially in regard to young offenders. I can assure your Lordships from personal witness that there is no lack of public-spirited ordinary citizens who are prepared to play their part.
My third point is that increasing resort to non-custodial alternatives, community-based alternatives, postulates an increase in the probation service. The Government's planned increase in that service by 150 officers, or 3 per cent., between now and 1984–85, compared with an increase of over 1,000 prison officers or a 5 per cent. increase in the same period, hardly squares with the Home Secretary's wish to shift the balance from custodial to non-custodial measures. I am not suggesting for a moment that the prison service does not require that increase; I know that it does. I am merely comparing the relative ratios.
My fourth and last point is that I understand that the Home Secretary is contemplating lowering the threshold for parole from 12 months to nine months. My information is that this would bring a further 4,500 prisoners into consideration, of whom perhaps as many as 3,000 might expect to be released to continue their sentence in the community. I am sure that those
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figures are correct because I have them from the noble Lord, Lord Windlesham, himself, and my guess from those figures is that on any one day the reduction in the prison population might be as many as 1,000. I should like to be corrected on that, but, if that is so, it hardly makes a significant impact on the excess of 6,000 places by which prisons are overcrowded.
I reserved that point until the last because I have long been persuaded since my days on the Parole Board of the principle of a two-stage determinate sentence whenever prison is inevitable, subject to judicial discretion. I believe that the correct answer to the question of the noble Lord, Lord Kagan, must lie primarily in fewer and shorter sentences with more, and more varied, alternatives in the community with the co-operation of the community. I should like to predict, and I certainly hope, that this will be the shape of things to come.
8.10 p.m.
Lord Mishcon: My Lords, I am sure that we need not apologise to ourselves, even if the hour be rather late, that once again we are debating conditions in our prisons. I say that because without any doubt at all this is a matter of great concern to Parliament and to the country as a whole.
My noble friend, Lord Longford, in the course of his address quoted Prison Rule No. 1. He quoted it as follows:
"The purpose of the treatment and training of convicted persons shall be to encourage and assist them to lead a good and useful life".
We are entitled to look at what is happening, quite apart from the question of the conditions in prisons and possibly, in some measure, because of them. Of those under 21 who are imprisoned, over two-thirds are convicted of another offence within two years. Of those over 21, about half are reconvicted within two years. That is hardly a method of reform, But having said that—and we have said it in our debates before—the terrible quandary is still there. Measures have been suggested by which the prison population can be reduced, and every single one of them ought to be looked at with the greatest of care because of the shocking overcrowding and inhuman conditions that subsist.
The terrible thing is that if one is faced with the question of what to do with those who are a danger to the community, who have been convicted of crimes of violence and from whom the public are entitled to be protected, one continues with the debate, but one does not reach an answer. For so many, of course, community service and the expansion of it is an answer. For so many, the expansion of the probation service, to which the noble Lord, Lord Hunt referred, is an answer.
May I say, in parenthesis, how sorry I was to read in The Times this morning, that the Probation Officers' Association intend to have some measure of protest at the way in which the Government have, at this stage of all stages, decided to reduce the salary that is paid to trainees in the probation service and have done so on the rather extraordinary ground that there are so many young people who are prepared to enter the service as trainees that one can presumably pay a lower salary and still get people into the service. That is not a great

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inducement, one would have thought, to the best of our young people and the properly ambitious young people who are instilled with the right ideas and who might enter the probation service.
Having said that, there is not the slightest political point in what I am saying, and I know that the noble Baroness, Lady Macleod of Borve, will forgive me if I say that it does no good in these debates to refer to the inactivity of one Government and the too slow—but, nevertheless, it is activity—actions of another Government, There is not a single Government, Labour or Conservative, that has been able to grapple with this terrible problem in a really constructive way. All of us stand before the country in not quite the whitest of white sheets.
Therefore, I shall not deal with a repetition of the debates we have had before and the measures that we have previously tried to put before the Government, in all honesty. I want to deal with another aspect which I must introduce by saying that I am a partner in a firm of lawyers who have advised the Prison Officers' Association for many years. I make it clear at once that I do not speak, and I am not authorised to speak, on their behalf on these matters but my experience as their legal adviser has given me certain matters of fact which I think it would be useful for your Lordships to know about because in this debate we are dealing with conditions in prisons.
There are those who, day-to-day, not for the period of a sentence, work in those prisons in the very conditions that we have been hearing about. I quote from the report on the prison at Wormwood Scrubs, which is the very prison mentioned in the Motion we are debating. I refer to Paragraph 1.16, which reads:
"Wormwood Scrubs is a prey to the same ills as beset most of our large Victorian prisons. It contains too many prisoners in a manner which would have been unacceptable to the Victorians, and the facilities at its disposal are quite inadequate. The régime is constricted because, for various reasons, staff are not available at the right times in sufficient quantities".
It is a question of staff in pretty wretched conditions.
We have been listening to what the Governor of the Wormwood Scrubs prison said before he resigned his office. It may be a little relevant to listen to what his successor, who has not been there very long, has also said in his new capacity as the governor of Wormwood Scrubs prison. Quite recently, he stated:
"Wormwood Scrubs is understaffed. Its 321 discipline officers are 75 short as against establishment. What is really needed is an extra 25, indeed, over establishment to run the prison properly".
I quote him from the Daily Telegraph of 23rd February 1983.
"I do not believe the public understands the nature of this work, nor the unremitting pressures which bear down on those who have to spend 24 hours a day, seven days a week, 365 days a year working and living in a prison".
Brixton Prison has been quoted in this debate. I wonder if your Lordships will allow me to read a very short extract from the Chief Inspector of Prisons' report on Brixton, at page 5, paragraph 1.08:
"We have said above that prisoners are having to live in unacceptable conditions. It follows that staff are having to work in unacceptable conditions. It is intolerable that 80 men should have to share one lavatory, and it is also intolerable that a landing officer should have to get 80 men through the morning routine in such circumstances. In fact, it is the staff attitude and the staff/inmate relationship, which makes these conditions bearable".
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Then if I may quote a tribute:
"We found great good humour, a relaxed approach and a complete lack of tension throughout the establishment".
Quite apart from the question of the conditions and the fact that vacancies exist in every grade, and quite apart from the increase to which the noble Baroness referred of just over 1,000 in the number of prison officers at the present moment, the view is taken that the service is still short of 2,500 prison officers, without taking into account specialist staff shortages. What about the working conditions in the prisons that we ought to be thinking about? Authorised staffing levels are set on the basis of prison officers working an average of 10 hours' overtime per week. To ensure even then that establishments function, other institutions are called upon to provide a high level of detached duty. Those establishments in turn of course have to close shops and work Sunday overtime.
I want, if I may, to turn just for a moment to another aspect which has not been dealt with at all tonight and that is the dignity of work even inside a prison. It was absolutely right that two of the speakers drew our attention to the matter; first of all it was the noble Lord, Lord Soper, and then Lord Hunt, who had not had the benefit of listening to Lord Soper's speech. We have heard about the effect of unemployment outside the prisons which may lead people to be inmates of prisons. What of the conditions in regard to work and the dignity of it and some sort of preparation for the world outside within prisons?
Here may I be allowed to quote from page 30 of the report of Her Majesty's Chief Inspector of Prisons for England and Wales of 1981? It is a very important matter that we are dealing with and this is something that could be remedied. I am reading from paragraph 4.21 to start with. This is what it says:
"We have already recorded the very limited extent to which the time of inmates was occupied in the local prisons we inspected. The element in the régime which was most substantially lacking was, without a doubt, work. The industrial provision was extremely poor, and those workshops that existed operated for very few hours, and as a result the remaining activities were very thinly spread".
Higher up on the same page this is what the Chief Inspector had to say. I am reading it because it is a constructive matter on which something can and should be done. The report says:
"in general, it is better to use limited funds to establish several low capital cost, relatively labour-intensive industries capable of adapting to meet a varied market, rather than one or two prestigious and capital-intensive industries which may have the potential to generate substantial revenue but which are susceptible to fluctuations in the market and employ few inmates. This difference of approach may well arise from a view of industrial provision on the part of the Prison Department as a means primarily to recoup money using inmate labour, rather than as a means of providing employment for inmates with the generation of revenue as an important but secondary aim. We appreciate the financial pressures which would lead to such a view but we do not think that the establishment of capital-intensive industries is necessarily consistent with the pursuit of a full working day".
In order to deal with work and in order to supervise work it is obviously necessary to have the right type of officer in the prisons. In view of the conditions that we have heard of, quite apart from their being dreadful for the prisoners—and I emphasise, if I may be allowed to do so, everything that has been said tonight and on previous occasions in that regard—what sort of future recruitment of prison officers shall we get since these are the conditions in which they are expected to work?

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Without the right type of prison officer there will be no proper reform of our prisons, which are at the moment in a pretty dreadful and shocking state.
8.27 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, the noble Lord, Lord Kagan, has provided an occasion for a debate that has prompted in me, at least, an interesting reflection. Almost the first duty I undertook on being appointed as a Minister in the Home Office was to come to this House and reply to a debate on a Motion of, I think, the noble Earl, Lord Longford, drawing attention to the conditions of the prison service in England and Wales. I then embarked upon a triple process which I have never since abandoned and on the three aspects of which I seem to have made very unequal progress. The three functions were to reveal the full extent of the shortcomings of the provision for prisoners which we as a Government had inherited in 1979, to illustrate the difficulties which we encountered in running that system, and to make clear the full and considerable extent of the endeavours we are taking to remedy its deficiency.
It now seems to me that I have succeeded pretty well in revealing the shortcomings and illustrating the difficulties, but that I have been remarkably unsuccessful in drawing your Lordships' attention to what we have undertaken, are undertaking and are committed to undertake in dealing with them. That process—the process of remedy—is a continuous one. We had embarked upon it long before the resignation of the former governor of Wormwood Scrubs and we shall still be engaged upon it long after he and I and the noble Lord, Lord Kagan, and everybody else in this House, are forgotten. That is the extent of both the defects and the remedy.
A first requirement for providing any remedy is, of course, that the defects shall be publicly known and publicly understood. Far from attempting to disguise them, we have taken action to increase public awareness. We have improved the opportunities for the press and broadcasters to go into Prison Department establishments and we have encouraged a more open attitude generally on the part of staff in all parts of the prison system. The fruits of that policy have been evident in this debate.
We have concentrated on providing hard, quantified, factual information wherever possible, so that the public may form its own opinion of the conditions we are faced by. Emotive phrases may be more easily convertible into instant headlines, but facts are what serve the public interest best.
At a time of financial restraint, we have significantly increased expenditure on the prison system. The Government's plans for spending on prisons in the period up to 1985–86 were given in the Public Expenditure White Paper (Cmnd. 8789). Capital expenditure in cash terms will have more than doubled between 1979–80 and the coming financial year, 1983–84. Current expenditure will have increased by almost the same proportion. The Government's plans for 1984–85 and 1985–86 contain provision for yet further substantial increases, and capital and current expenditure combined are
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planned to increase by over £100 million, from £500 million in 1982–83 to £610 million in 1985–86.
The planning figures for the years beyond 1983–84 are, of course, open to revision, as all such figures must be. But they are a clear indication of the Government's commitment to a sustained programme of increased resources for the prison service, and whatever solution we arrive at, in whatever philosophic context, those resources are going to be necessary. We are doing this at time when the Government's most concentrated efforts are reserved for the reduction of public expenditure. The programme is a large one in any terms. In comparative terms it gives the absolute lie to any one who claims that we either do not care about prison conditions or that we are prepared to do nothing about them.
A major part of this very considerable effort is going into the prison building programme. I agree with the noble Lord, Lord Soper, that it would be nice if there were fewer prisoners and if fewer prisons were therefore needed. But we actually have to have a means of achieving that result before we say that what we already have, cramped, crowded and antiquated as it is, is enough and that the resources ought to be diverted elsewhere.
At present, certified normal accommodation is about 38,000, and the prison population is in excess of 44,000. In consequence, thousands of prisoners are held two or three to a cell. Our response to that has been to arrange a programme of two building starts for new prisons each year, as my noble friend was kind enough to point out. Expenditure on that programme is planned to rise from about £20 million in 1983–84 to £40 million in 1986–87. As a result of new building and refurbishment, and better use of accommodation, some 2,000 additional prison places have become available over the last two years. Over the next four years, the building programme should produce a further 3,000 new places.
Buildings are important, but the fundamental quality of any prison system, as many noble Lords have pointed out this evening, lies not in its buildings but in the men and, indeed, the women who staff it. Here, too, we have been vigorous in tackling the problems. At the beginning of 1979 there were 15,714 prison officers in post. By April 1984 we are providing for 18,064. That is a total increase of 2,351, or 15 per cent., in five years. I hope that the noble Lord, Lord Mishcon, will recall that as he points out the shortfall from what is ideal that still persists. Once more, that would be a substantial programme in any terms, In comparative terms it is impressive, for it is taking place at a time of substantial reductions in the Civil Service as a whole. Our prison staff are our most vital resource. That is why we are concentrating not only on making good the staff shortages which exist, but also on searching for ways of using the staff we have as efficiently as possible.
I am glad to take this opportunity to pay tribute to the men and women who staff our prisons. The task is usually a thankless one, yet it makes great demands on the character of those who perform it and is not always without its danger. Last year 23 prison officers were personally commended by the Home Secretary for exceptional conduct. A further 58 received official recognition for meritorious conduct beyond the call of

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duty. For the first time the entire staff of a prison—Wakefield—were commended following the fighting of a serious fire and the evacuation of the prison.
The stress on the prison staff is not always as dramatic as that. It can be more long-drawn and harder to bear. I should like to put a word in also for all the individual members of the prison staff of our country's prison system who, day in and day out, retain a patient and understanding relationship with a shifting and often shiftless population which is very difficult to get on with. Indeed, I sometimes wonder whether in these debates we pay adequate attention to the professionalism of prison officers and to the effort that goes into providing them with relevant training. Prison conditions are vitally affected by the relationships between inmates and prison officers. Certainly the May Report expressed sympathy with the aspiration of many prison officers to involve themselves in a wider range of duties related to the care of inmates. Equally, however, the committee pointed out that an extension of the prison officer's role is dependent on prison officers themselves being prepared to consider realistically the best ways in which their existing manpower can be used.
The noble Earl, Lord Longford, was anxious for the social work aspects of prison officer's work (if I can so express it) to be extended. I can reassure him that it has been the policy of the Prison Department, under successive Governments, indeed, and for many years, that prison officers should be more actively involved in work which is concerned with the social and welfare needs of prisoners. I presume that that also is something which the noble Lord, Lord Kagan, would endorse. It enables probation staff in penal establishments to concentrate more on work for which they have special skills and training.
The Social Work in Prisons scheme was launched in 1977. It had the agreement of the trade unions of both the prison service and the probation service. It enabled governors and chief probation officers to reappraise, in consultation with their staffs, their working methods (within existing manpower resources), and to plan together the reorganisation of welfare work, so that prison officers could play a fuller part in social work with prisoners. Initially, five establishments were involved. They were Coldingley, Exeter, Featherstone, Kirkham and Wakefield. But the continuing constraints on manpower resources have meant that progress has been slower than originally hoped. However, that is not to say that no progress has been made. Three further establishments are now participating in the formal scheme. These are Maidstone, Nottingham and Swinfen Hall; and other establishments have developed their own schemes, to suit the needs of their own particular establishment, with prison officers and probation officers participating in shared working.
I must here refer to the use of volunteers by the probation service. Volunteers play a most important role in the assistance they are able to give to probation officers in their work with prisoners. We do not record in the Home Office the number of volunteers who assist the probation service, but a survey was made two years ago, and from that we estimated that 7,000
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volunteers assist the probation service and that as many as half of these are doing work connected with prisoners or their families. Perhaps the most valuable work a volunteer does is to befriend the prisoner by regular visiting; to help him or her with specific problems, especially those to do with his family; and generally to keep him in touch with the outside community.
I cannot recite all the ways in which volunteers are engaged with offenders, but your Lordships should know that they cover a great variety of activities. Within many prisons volunteers run groups with a range of purposes such as alcohol education, job finding and developing social and life skills. Many families of prisoners appreciate the help volunteers give in providing and managing overnight accommodation near prisons for them, in organising transport to prisons for visiting relatives, and in running a creche. Other volunteers run groups for prisoners' wives. We are, indeed, grateful to these volunteers who do such valuable work and give so freely of their time without payment.
I should not like to leave the subject of voluntary effort without taking this opportunity also to pay tribute to the very great public service given both by prison visitors generally and by those who serve as chairmen or members of boards of visitors. Their continuing and close concern with the problems of individual establishments are an invaluable contribution to the well-being of the service as a whole.
I have spoken of the way in which we have increased the resources available to the prison service and of how we are seeking to deploy them more efficiently. I have spoken of the use to which both staff and volunteers are putting those resources and I now turn to what we are doing about the sheer size of the prison population, which hangs over the whole issue like a black cloud. As the noble Lord, Lord Hunt, has said, one of the most serious features of the problem of overcrowding is the level of the remand population. The problem here is most acute in relation to the Crown Court. Because of the high priority given to this question by my noble and learned friend the Lord Chancellor, average waiting times for trial in the Crown Court fell between 1979 and 1982. Thus, in the last quarter of 1982 the average waiting time for trial in the Crown Court for offenders in custody at the time of coming to trial was around 10 weeks nationally and 15 weeks in London, as compared with figures of around 12 weeks and 21 weeks respectively for the comparable quarter in 1979.
It has to be said, however, that in 1982 there was an increase of no less than 12 per cent. in the work coming to the Crown Court. Despite the fact that the court dealt with 4,000 more cases than in the previous year, this has meant that the gradual reduction in backlogs and waiting times has, for the present, ceased. This is, of course, a matter for concern and my noble and learned friend will continue to do all he can to seek further improvements in the situation.
As noble Lord after noble Lord has pointed out, the size of the prison population is determined by the courts. Fundamental to the Government's approach to penal policy is the principle of an independent judiciary with sole responsibility for sentencing decisions in individual cases. I do not know whether that sole responsibility amounts to being on what the

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noble Earl, Lord Longford, calls a pedestal, but I must say that it is our responsibility, as the executive, to provide prison accommodation for those offenders whom the courts deprive of their liberty. But that does not mean that prison overcrowding and the often appalling conditions which result are factors which the courts should not take into account in exercising their responsibility.
It is reassuring therefore, that the courts are aware of the problem of prison overcrowding. The avowed policy of the courts, under the guidance of the Lord Chief Justice, is that custodial sentences should be imposed only where there is no alternative and that they should be as short as possible. Since the Court of Appeal gave a lead in this direction, the average length of Crown Court sentence has been reduced by two months. That alone would have reduced our prison population by 2,000 to 3,000, were it not more than balanced by the continuing increase in the number of offenders coming before the courts for sentence. Over that number they have no control. For our part, we have sought to reduce the strain of sheer numbers on the system by the provisions of last Session's Criminal Justice Act.
The Act strengthens and reinforces the powers of the courts in imposing non-custodial disposals, such as the probation order and the supervision order. Under its provisions, community service orders will soon be available for 16-year-olds. The status of another important non-custodial sentence—the compensation order—is increased, and courts will now be able to make such an order as a sentence in its own right. I shall not spend too long on that because your Lordships went over the whole ground of the Act so very recently, and most noble Lords in this Chamber actually took part in the debates on it.
Your Lordships will recall that it was almost exactly a year ago that the Government implemented Section 47 of the Criminal Law Act 1977, which empowers the courts to suspend part of a prison sentence. We took this step in the firm belief that the partly suspended sentence represents a means of enabling the courts to reduce effective sentence lengths in appropriate cases at their own discretion. That is the intention behind the provision, and I ought to emphasise that it should not be used to offer a "taste of imprisonment"—a point stressed in the helpful guidelines on the use of the power set out by the Lord Chief Justice in Regina v. Clarke soon after the implementation of the provision.
Our latest figures show that by the end of 1982 the number of offenders being received into prison who could have received a partly suspended sentence and had done so was about 10 per cent. Since then (on 31st January) we have also implemented Section 30 of the Criminal Justice Act 1982. That further enhances the effectiveness of the partly suspended sentence by amending Section 47 of the Criminal Law Act 1977 to widen the sentence range to which it applies and to increase the flexibility with which the courts are able to make use of it.
The Earl of Longford: My Lords, is the noble Lord leaving the matter of the judges?
Lord Elton: My Lords, I was thinking of coming back to them. Perhaps when the noble Earl hears my return, he will decide whether, in fact, it will satisfy what he has in mind. I was going to leave a good deal else, because the evening draws on.
The noble Lord, Lord Hunt, referred to conditions in local prisons and especially to Reading and Brixton. On 13th February—which is the latest available date—206 inmates at Brixton were held two in a cell, and 282 were held three in a cell. At Reading, 198 were two in a cell and 81 were three in a cell. The pressure on such prisons continues to be very great and I am afraid that I cannot hold out hope of early relief either on the degree of overcrowding or on the amount of time prisoners have to spend in their cells.
However, I am able to inform your Lordships that improved visiting facilities are included in alterations to the gate complex, which will be completed shortly. The noble Lord, Lord Hunt, also asked whether new staff quarters at Brixton had been completed, but I am informed that none is under construction at Brixton.
I now turn to the subject of young prisoners under the age of 17—to whom both the noble Lord, Lord Hunt, and the noble and reverend Lord, Lord Soper, referred—who, because of the difficulties they present, sometimes have to be detained in adult establishments. On 30th November 1982—again the latest available date—71 young offenders, sentenced and unsentenced, were held in this way. Under the youth custody provisions those subject to sentence of youth custody will go initially to the establishments which serve the courts—that is to say, local prisons and remand centres—for assessment and allocation. But we will make this process as quick as is consistent with taking the proper decisions, and we currently expect that there will probably be about 30 juveniles undergoing allocation at any one time. That is fairly similar to the current numbers of sentenced juveniles who are at present held in this way.
The noble Lord, Lord Hunt, once more raised the question—and it was referred to elsewhere—of whether, and if so by how much, we could reduce the level of the prison population by allowing prisoners to qualify earlier than at present for release on parole. I have already told your Lordships that we are closely interested in this question. It is being carefully examined, and if your Lordships think that that examination is taking longer than your Lordships might expect, I have to say that the issues raised are also larger and more complex than you might expect. The administrative implications are considerable and very far from cheap, and we have to take a very careful view before we decide to what, if anything, we can commit ourselves. However, this matter does have my close interest and—which matters a great deal more—the close interest also of my right honourable friend; and we shall come to a conclusion as soon as possible.
We recognise the importance of prison industries. I can assure your Lordships that the industries I have seen are not capital-intensive, and the occupation of prisoners is a very important concern, and where I have seen it, labour has been used lavishly. But I will take note of the reference which the noble Lord made to the last report to come out.

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The noble Lord, Lord Kagan, urged on the Government an outside consultancy on the grounds that an outside view would be the more objective than any other. He will know, of course, that, following my right honourable friend's initiative, the Prison Inspectorate is independent of the Prison Department and that Her Majesty's Chief Inspector of Prisons is appointed under Royal Warrant. He will observe that the reports of the inspectorate, which are now published, are very far from flattering and complimentary. The noble Earl, Lord Longford, and others have given quotations which made that abundantly clear. I shall certainly consider the international comparisons made by the noble Lord, Lord Kagan, with interest, though it is the attention of the courts, rather than that of the Government, that no doubt he will wish to draw to it because of their critical influence on the number of prisoners. But I should tell him that the Home Office has sponsored a research project which will provide a thorough review of the penal system in Holland, which has also attracted our interest, and we shall study that with great care.
The noble and reverend Lord, Lord Soper, recognised the necessary imperfections of an imperfect world and he commended one step at least that we have taken—an increase in the number of constables on the beat. He will doubtless know that the strength of the police in England and Wales has been increased by more than 9,000 policemen, and he may draw comfort from the fact that a thousand officers have been redeployed to street duties, which is something I think he would applaud.
We are faced with what the noble Lord, Lord Mishcon, called a terrible quandary, and what I regard as, at the best, a poignant conundrum. We have to deal with the world as it is: a fallen world; a world redeemable but not anxious to be redeemed; a world that has drifted away from the nonconformist and, indeed, the conformist ethic so notably illustrated by the noble Lord, Lord Soper, and the right reverend Prelate earlier. It is a world in which the great majority pay their taxes, stay out of trouble, and expect to be protected.
My noble friend Lady Macleod was absolutely right to point out that society demands to be protected. If the noble Lord, Lord Hunt, feels that we are wrong in this and that the judiciary, removed from their pedestal by the noble Earl, Lord Longford, should be persuaded that we are wrong, then the machinery of Parliament and democracy are there for him to use to that end. The noble Lord, Lord Kagan, is in fact using them for that purpose tonight, and the judges can hear from their pedestal. However, until the day that the flow of crime and of convictions diminishes we are going to go on being faced by this same poignant conundrum, eloquently illustrated in this debate by quotations from serving prison officers.
I am glad that your Lordships recognise the problem. I am glad that the noble Lord, Lord Mishcon, recognises the joint responsibility of many preceding Governments. It is a problem of daunting complexity and size. Your Lordships want a solution. It will not be available overnight. Most of what is
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available can necessarily amount to little more than a palliative in the short and, indeed, in the medium term.
This evening's debate has served to remind us all of the enormous difficulty of running a prison service for the size of population with which the courts have presented us in prison buildings of the antiquity and decrepitude of those we have inherited, and without making demands on the public purse far in excess of what those who stay out of prison and pay for them would regard as in any way acceptable. Caught up in that problem are not only junior Ministers at the Home Office, not only the civil service and prisoners, but also the staff of our prisons who, under great strain, do a quite remarkably commendable job, and that is what I should like to leave in your Lordships' minds tonight.

Ashridge (Bonar Law Memorial) Trust Bill
Brought from the Commons; read a first time, and referred to the Examiners.
House adjourned at eight minutes before nine o'clock.