Lords Sitting of 27 October 1983

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Norwich.
The Lords following took and subscribed the Oath or made the solemn Affirmation:
Anthony Perrinott Lysberg Lord Barber
Simon Charles Henry Marquess of Reading

Royal Assent
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Act:
Lloyds Bowmaker Act.

Nationalised Industry Consumer Councils: Guidelines
3.6 p.m.
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government on what date they received the proposals of the chairmen of consumer councils for operating guidelines concerning nationalised industry consumer councils; and whether they will now give priority to a debate in Parliament for these proposals to be discussed.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): My Lords, we are considering proposals which were received from all the national councils between 21st June and the 18th of this month. Discussions will be necessary with the councils and others concerned before the guidelines can be finalised. Any debate in the meantime is of course a matter for the usual channels.
Baroness Burton of Coventry: My Lords, in thanking the noble Lord for at least a little progress on this particular question, may I ask whether he realises that, if we go back only to the time of the general election, it is some four months since this matter was first raised? Will he agree that since at the moment there is much concern about consumer representation in the nationalised industries and about their prices, it is important that we have a debate as soon as possible, and can he say whether this might be at all likely before the Christmas Recess?
Lord Belstead: My Lords, this is a matter for the usual channels, but I shall most certainly draw the attention of my noble friend the Chief Whip to what the noble Baroness has said.
Baroness Elliot of Harwood: My Lords, may I say that there are an enormous number of people who are deeply concerned about this question of the consumer councils, more particularly because we want to get as many sales as we possibly can for everybody who is producing goods? Consumers are therefore vital. I hope that the noble Lord will do his best as quickly as possible so that there is further development and discussion on this vital matter.
Lord Belstead: My Lords, there is nothing between my noble friend and the Government on this matter. The Government feel very strongly indeed that the function of the consumer councils to monitor what is going on in the nationalised industries needs to be strengthened and placed on a more formal basis. That was one of the reasons why we got in touch with the chairmen of the councils. Having said that, I shall draw to the attention of my noble friend the Chief Whip what my noble friend Lady Elliot has also said.
Baroness Burton of Coventry: My Lords, may we feel that the Minister will be able to give his blessing to what he is going to say to the Chief Whip? Does he realise that on 30th June the Leader of the House tried to give the House information to the effect that consumer affairs had not been downgraded by the lack of appointment of a Minister of State—I am not mentioning the noble Lord—to deal with these matters? Does he not agree that if we could have a debate on them, it would at least show that the Government had not downgraded consumer affairs, and if I put down a Question before the Christmas Recess, will the noble Lord feel able to give us a date when we can have a debate?
Lord Belstead: My Lords, I can only repeat that this is a matter for the usual channels, but the noble Baroness is very persuasive and I shall do my best.
Lord Cledwyn of Penrhos: My Lords, now that the Government are proposing to privatise (as they say) large segments of publicly-owned industries, is the noble Lord satisfied that there will be comparable protection for the consumer under the new dispensation?
Lord Belstead: My Lords, I think that there is no better protection for the consumer than to subject the nationalised industries to market forces. But, having said that, the whole point of this Question which I am being asked is that the Government recognise that there are nationalised industries which will remain monopolies, and it is they which need to have an eye kept on them to see that they look after consumers' affairs. It was for that reason that we got in touch with the chairmen of the consumer councils, and that is why we believe there ought to be guidelines.
Lord Beswick: My Lords, does not the Minister realise that, when the process of handing over the present publicly-owned companies to private ownership is continued, there will still be an element of monopoly and the protection of the consumer will still be needed?
Lord Belstead: Yes, precisely, my Lords; with respect, I think that that is what I have just said. That

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is why the functions of the consumer councils are important, and that is why this matter is uppermost in the minds of the two noble Baronesses who have asked me questions today.
Lord Beswick: With respect, my Lords, the noble Lord said exactly the opposite. He said that when the public industries become privately owned they will he subjected to market forces. That will not be the fact. In the greater part of the cases there will still be monopolies, and any idea that market forces are going to protect the consumer is quite outside the real world.
Lord Belstead: My Lords, perhaps we ought to look at the Hansard record, but I think that I dealt with what the noble Lord, Lord Beswick, is saying in the second part of the answer which I gave to his noble friend Lord Cledwyn.

Building Society Funds and Mortgage Rates
3.11 p.m.
Lord Diamond: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what discussions the Government have had with either the building societies or the Bank of England in the current financial year either with regard to the latter's new policy of assisting building societies to borrow funds in the City of London or with regard to building society mortgage rates generally.
The Chancellor of the Duchy of Lancaster (Lord Cockfield): My Lords, the Government have accepted the arguments put forward by the building societies that they should be able to supplement their traditional sources of finance by borrowing on a limited scale from the wholesale money markets. Legislation was accordingly introduced in the Finance Act 1983 to allow the payment of interest gross on certificates of deposit, and it is intended to make similar provision in respect of time deposits. These arrangements have featured in discussions between the Government, the Bank of England and the building societies. From time to time other matters of general interest, including mortgage rates, are also discussed, but this is on the basis that it is not the Government's policy to interfere in commercial decisions.
Lord Diamond: My Lords, I am grateful to the noble Lord for that very full and revealing Answer. May I welcome him back to the Treasury Bench, as it were, in dealing with Treasury Questions. In view of his last remarks, has his attention been drawn to a statement in The Times in July that the success of the building societies in raising new funds under powers to which the noble Lord has just referred owed much to the backing given by the Governor of the Bank of England on the assumption that he was doing so because of the interest of the Government in mortgage rates and mortgage queues? If that report is correct, does it not indicate that at all events the City takes it that, although the policy of the Government may be not to wish to interfere in market forces, indirectly they are doing so?
Lord Cockfield: My Lords, what in fact we are doing is not interfering with market forces but removing some of the obstacles to the free play of market forces. Because of certain tax limitations, the building societies were restricted in the sources of finance that they could have. The purpose of the amendment in the 1983 Finance Act was to enable them to tap a wider source of money and of savings. I would very much hope that this would be of benefit both to savers in the building societies and to house purchasers.
Lord Diamond: My Lords, may I pursue the matter with one further question? I understand that point, and I have no criticism whatever to offer of what the noble Lord has said, but may I ask him a direct question to clarify the matter? Did the Governor back the request for funds by the building societies at the behest of the Chancellor, the Treasury or the Government?
Lord Cockfield: My Lords, the noble Lord will realise that it would not be right for me to enter into the details of discussions that took place. I stated very clearly in the reply that I gave that the Government had accepted the argument put forward by the building societies. I have no reason to suppose that the move was not also welcomed by the Bank of England, which in fact acts for certain of the building societies in these matters.
Lord Hankey: My Lords, are the Government aware that the Governor of the Bank of England directly encouraged the building societies to raise funds in the market over 3½ years ago at a meeting in, I think, Eastbourne?
Lord Cockfield: My Lords, the noble Lord is perfectly correct; the Governor of the Bank of England did make a speech some years ago. I cannot from memory recall the exact date. In that speech he advocated that building societies should be given the facility to tap a wider source of savings, and this is what has now been done. I think, frankly, without going into details of what may have been said by participants to discussions, it is a move that has been generally welcomed as helpful.
Lord Bruce of Donington: My Lords, will the noble Lord in any event agree that one of the most constructive things that the Government can do at the present time, in consultation with the Bank of England, is to make a significant reduction in the present absurdly high rates of interest?
Lord Cockfield: My Lords, as the noble Lord will be aware, rates of interest have come down by seven percentage points since they reached their peak and now stand at their lowest level for five and a half years.

Commission for Racial Equality
3.16 p.m.
Lord Belhaven and Stenton: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in the interest of cutting state expenditure and improving race relations, they will abolish the Commission for Racial Equality.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, no. The Government do not think that this would serve the interests of good race relations.
Lord Belhaven and Stenton: My Lords, I thank my noble friend for that reply, which is in the short form that seems to have become usual since we resumed on Monday. Do Her Majesty's Government accept the recommendation of the commission that mandatory ethnic records should be kept by all firms? If so, does this include records of people of English, Scottish, Irish, Welsh and Jewish race? What will be the position of people of mixed race—people who, like some cousins of mine, have an English father and a Chinese mother? Can my noble friend estimate what the cost of these proposals will be, first, to the taxpayer, and, secondly, to industry?
Lord Elton: My Lords, under the Race Relations Act 1976 the commission has a duty to submit to the Home Secretary proposals for amending the Act when it thinks this necessary. The commission has recently published a consultative paper covering a number of proposals on which it has invited public comment. When the commission puts firm proposals to the Home Secretary they will be considered most carefully, but I cannot indicate now what his response might be.
Baroness Gaitskell: My Lords, if we are really serious about improving race relations, is it not the last thing that we should do, to abolish the Commission for Racial Equality? Is the noble Lord aware that this is our most important task in the country at the moment?
Lord Elton: My Lords, race relations are important and, as I say, we are not considering abolishing the commission.
Lord Renton: My Lords, while agreeing with my noble friend that the commission should not be abolished, can he answer the question of my noble friend Lord Belhaven and Stenton about the cost of the commission?
Lord Elton: My Lords, in the financial year 1982–83 the cost to the Exchequer of maintaining the commission was about £8.3 million. Some £2.2 million of that sum was in support of local community race relations councils. In the current year the commission's grant will enable it to continue its activities at broadly the same level.
Lord Brockway: My Lords, I welcome the Minister's original Answer, but would he not agree that despite its restricted functions the commission has contributed greatly to racial equality in public places, in housing and in employment, particularly in the large industries?
Lord Elton: My Lords, those are, indeed, the aims of the commission, and I am grateful for the noble Lord's recognition of its achievements. I believe that under the new chairmanship it will continue to improve on its performance.

Further and Adult Education
3.21 p.m.
Baroness David: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they will make a Statement on The Legal Basis of Further Education and a successor body to the Advisory Council for Adult and Continuing Education.
The Earl of Swinton: My Lords, on the first part of the Question, my right honourable friend believes that priority should be given to the increased efficiency and effectiveness of the further education system, notably in the case of advanced further education through the work of the National Advisory Body. Other measures are being directed to non-advanced further education. Against this changing background consideration will continue to be given to The Legal Basis of Further Education, and local education authorities are free to propose modifications to their existing schemes of further education if they consider this necessary.
As regards the second half of this Question, the advisory council was appointed by the Government of the day for a limited term only, and the present Government have already made it clear that they would not be extending the term of appointment. My right honourable friend is considering how developments in this field of adult education can best be achieved within the current financial constraints, but at present he is not persuaded of the case for a new body to undertake developmental studies.
Baroness David: My Lords, I thank the Minister for that very full reply, but it leaves a good many questions unanswered. The Legal Basis of Further Education demanded legislation to clarify a lot of unclear areas of the law of the Education Act, and I do not believe that the Answer which the noble Earl has just given really deals with that question. As regards the advisory council, is the Minister aware that this very day the council finishes its work, that it is the end of six years of real commitment—voluntary commitment—by members of the council? Are the Government and the Minister aware that those working in adult and continuing education feel very distressed and, indeed, insulted that a great deal of the work that has been going on—for example, the Continuing Education from Policies to Practice, one of ACACE's documents, and Education for Unemployed Adults—has been waiting for a year or 18 months on the desk of the Secretary of State? Will the Minister please inform the Secretary of State that there is great distress among all those working in this field that so little interest appears to be taken in it, or that there is so little realisation of the commitment which has been given, voluntarily in the case of the council?
The Earl of Swinton: My Lords, I find it difficult at all times to answer the noble Baroness because she puts a lot of questions at once. Indeed, on this occasion her original Question is really two questions in one, anyway, but I shall do my best to answer. As regards the illegality of parts of further education, only the courts can say definitely whether or not a thing is illegal. Any local authority which considers that its scheme of further education made under Section 42 of the 1944 Act is now unsatisfactory may propose modifications to the Secretary of State. This has always been the position, and remains so.
I should like to join with the noble Baroness, Lady David, in paying tribute to ACACE, and I can confirm that this is its last day. The Government and many other people are well aware of the important work that it has done. But the council itself was in fact an advisory body, and it produced many reports embodying a great wealth of wisdom and advice. It is now for the bodies concerned to take account of the various recommendations. There is no point in carrying on with a body that is there purely to advise. I think that now is the time for action.
Lord Kilmarnock: My Lords, does the noble Earl recall the Answer that he gave to my Unstarred Question on this very subject on 28th March 1983, in which he said, at column 1448:
"Experience suggests that some of the most successful development agencies have been those with more clearly and specifically directed remits, often over a fairly narrow range of priority areas"?
Would he not agree that there is a clear implication here that the Government had in mind some replacement for the ACACE, and is he now seriously telling the House that the Government will take no action whatever to promote adult and continuing education?
The Earl of Swinton: No, my Lords, that is certainly not what I said, and I hope that when the noble Lord reads Hansard he will see that that was not what I said. What can be done depends to some extent on the resources available, and that, as noble Lords will be aware, is currently under discussion. The Government hope that it might be possible for the National Institute for Adult Continuing Education to take on a rather more prominent role in advising central Government and local authorities. My right honourable friend the Secretary of State is also considering what other developments might be encouraged.
Baroness Jeger: My Lords, can the Minister say what consideration the Government are giving to the legal rights to further education of children and young people who were the subject of special orders under the Education Act 1981 because of mental and physical handicap, and who may need specialist assistance in pursuing their rights to further education?
The Earl of Swinton: My Lords, I think I shall have to write to the noble Baroness on that particular point. There are at the moment a few appeals from parents of handicapped children in front of my right honourable friend, who is considering them very carefully.
Lord McIntosh of Haringey: My Lords, when the Minister says that the National Institute for Adult
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Continuing Education is to take over some of the functions of ACACE, will he acknowledge that ACACE was set up six years ago because of the inadequacy of existing institutions to fulfil the role which ACACE has so splendidly fulfilled over these six years? Will he tell the House, and will the Government tell the country, what action will be taken about the positive and urgent recommendations of ACACE, rather than just putting it on to the back burner in the way the Government have?
The Earl of Swinton: No, my Lords, I do not think that I said that. I said that my right honourable friend is considering the possibility of this being one of the solutions.
Baroness David: My Lords, as regards that point, is the Minister aware that, according to The Times Higher Educational Supplement last Friday, the National Institute for Adult Continuing Education seemed very uncertain about what it could do and what it was expected to do, and has made absolutely no plans at all at the moment because it does not know what its budget would be if it were given a further job?
The Earl of Swinton: My Lords, these are all matters that are being looked at.

Cable and Wireless: Privatisation
The Earl of Swinton: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Cockfield will, with the leave of the House, repeat a Statement that is to be made in another place on Cable and Wireless.

Business of the House
3.28 p.m.
Lord Belstead: My Lords, on behalf of my noble friend the Lord President, I beg to move the Motion standing in his name on the Order Paper.
Moved, That Standing Order 37 be dispensed with on Tuesday next to allow the Motion in the name of the Baroness Young to be taken before the Motion to approve the Civil Defence (General Local Authority Functions) Regulations 1983 in the name of the Lord Elton.—(Lord Belstead.)
On Question, Motion agreed to.

Agricultural Holdings Bill [H.L.]
Lord Belstead: My Lords, I beg to introduce a Bill to amend the law with respect to agricultural holdings. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Belstead.)
On Question, Bill read a first time, and to be printed.

Lotteries (Amendment) Bill [H.L.]
Lord Irving of Dartford: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Irving of Dartford.)
On Question, Motion agreed to.

Occupiers' Liability Bill [H.L.]
3.30 p.m.
The Lord Chancellor: 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.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Duty of occupier to persons other than his visitors]:
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 1:
Page 1, line 10, after ("danger") insert ("(of which the occupier knows or ought to know)").
The noble Lord said: With the Committee's permission, I should like to say a few words on all five amendments tabled in my name and the names of my noble friends.
Amendment No. 5: Page 2, line 26, at end insert—
("( ) No duty is owed by virtue of this section by an occupier of premises to any person who is on those premises having committed or with the intention of committing there a criminal offence of which that person is capable of being convicted.").
Amendment No. 6: Clause 2: Page 3, line 1, after ("recreational") insert ("or educational").
Amendment No. 7: Page 3, line 3, after ("occupier") insert ("(whether the occupier makes a charge for such access or not) ").
Amendment No. 8: Page 3, line 5, leave out ("the business purposes") and insert ("a substantial business purpose").
These amendments are all designed to further the objective of this Bill that my noble and learned friend has brought before the House today, which is to give more access to the countryside. As my noble and learned friend knows only too well, these amendments have been vigorously pursued and supported by farming organisations, in particular the National Farmers' Union and the Country Landowners' Association. If there are some tiny legal difficulties or drafting problems in these amendments, I am sure that my noble and learned friend, together with my noble friend Lord Renton, will be able to sort them out, for at the end of the day our objectives are the same—easier access to the countryside.
I hope that my noble and learned friend realises just how grateful I and the organisations are to him for bringing forward this Bill and for the help that he has given us in getting it here. Similarly, I hope that my
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noble and learned friend realises that the farmers have made a great effort to bring it here and, for a change, we would not mind a little credit, as we have been in some quite unfair hot water just lately.
Amendment No. 1 makes it clear that if an occupier did not know of a danger, he cannot be liable for it. Frankly, in my layman's world, I thought that that would be so anyway, but apparently it is not. As the Bill is drafted, you can still possibly be blamed for something that is there, even though you did not know it was there.
I realise that this amendment may have a similar effect to Amendment No. 3 in the name of my noble and learned friend, and I await with interest his comments on this. However, I hope that my noble and learned friend will prefer my amendment to his, perhaps in his place in the Bill. I beg to move.
Lord Renton: I rise very briefly to support my noble friend Lord Stanley of Alderley on this matter. It may well be that Amendment No. 1 has the same effect as, and overlaps with, the amendment of my noble and learned friend the Lord Chancellor, Amendment No. 3. But, for the sake of clarity and removal of doubt in subsection (1) of Clause 1, I think it might be an advantage to have my noble friend's amendment as well. I do not think that any harm could be done. It is rather interesting that subsection (1) comes as near as the parliamentary draftsman ever gets to a purpose clause, because in that subsection he explains the intentions of the remaining subsections of Clause 1. In doing so it might be an advantage to have it made clear that, with regard to the danger, the liability arises only when the occupier knows, or ought to know, of it.
The Lord Chancellor: It is, of course, true that I have a good deal of sympathy with the spirit of the amendment and I have tried to give effect to it in my Amendment No. 3. I shall be speaking to that at greater length when I move it. But it is both my view and that of the Government that Amendment No. 1 is in the wrong place. If we were to have both, I think that my noble friend Lord Renton would be the first to complain, because there would be different words to say the same thing in different places. I am sure that this is the wrong place.
There is also another defect in the draftsmanship of this amendment; I think that my noble friend Lord Stanley called it a tiny legal difficulty, and it may be. But although my father used the phrase "ought to know" in Addie v. Dumbreck, I think that he was speaking perhaps a little popularly. The draftsman tells me that there is not really a duty to know things and the phrase "ought to know" is not an appropriate one for this statute.
I shall come to my own amendment when we reach it. In the meantime, I hope that my noble friend Lord Stanley will accept that I am accepting the spirit of his amendment and the principle of his amendment. Therefore, there is no really substantial difference between us.
The Earl of Caithness: I am grateful to my noble and learned friend the Lord Chancellor for bringing forward his own amendment. I am advised that it is probably in a better position in the Bill than our

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amendment. However, I am concerned about the definition and how the relative words in his amendment will be interpreted. The advantage, as I am led to believe—and I am no legal expert—of the words "ought to be" is that there is a much better safeguard than with the word "reasonable" when there is an uninvited visitor on the land. For example, if one takes the case of a fence round a pothole which has been there for 10 years and which has been vandalised once, I am informed that if our amendment is carried the landlord or occupier will be better protected than he would be in the case of my noble and learned friend's amendment where the word "reasonable" is used, because, the fence having been vandalised once, it might be argued by a clever barrister or solicitor that it was reasonable to expect it to be vandalised again.
Lord Mishcon: It is a pleasant stage in legal evolution when the language of the son improves upon that of the learned father. If I may say so with great deference, as has been rightly pointed out by the noble and learned Lord, the words "ought to know" would have a vagueness in law—an uncertainty in law—and, indeed, have no proper place in a statute. On this side we welcome the spirit of this amendment in the same way as has the noble and learned Lord. We await with interest his explanation of Amendment No. 3, which, upon the face of it, we also support.
Lord Graham of Edmonton: Could we be told a little more clearly what I understood the noble and learned Lord, the Lord Chancellor to say, that in effect there is a better way of saying, and a better place in which to say it, that which appears in Amendment No. 1? If the sense of Amendment No. 1 is to be taken into account when Amendment No. 3 is moved, that seems to be a reasonable thing to do. The Co-operative Wholesale Society, which is the largest farmer in the land, certainly welcomes Amendment No. 1. I would imagine that, provided the words used later have the same effect as the words in Amendment No. 1, although perhaps in a tidier way, that would also meet their wishes.
Lord Campbell of Alloway: If one were to import Amendment No. 1 and Amendment No. 3, one gets the possibility of a situation where there could be a distinction between "has reasonable grounds to believe" and "ought to know". It may be difficult to envisage this in the abstract, but once one gets to a court of law almost anything can happen, and in my submission it is undesirable. As my noble and learned friend the Lord Chancellor suggested, it is perhaps erroneous drafting.
Lord McCluskey: May I, with all the impartiality of a Scots lawyer, suggest to the Committee that the noble and learned Lord the Lord Chancellor is absolutely right about the placing of the matter? The answer I am sure he would give is that in the first subsection one is simply concerned to say that the rules enacted by this section take the place of other rules, and the proper place to put the content, as it were, and the ambit of the duty is where the Lord Chancellor chooses to put it.
However, having offered him that little comfort from my impartial position, perhaps I may go on to
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suggest—and I shall be surprised if the noble Lord, Lord Renton, does not support me in this—that the words "ought to know" are just the kind of words that the Government ought to be putting into a statute so that the judges can interpret them in the light of the circumstances before them. They are nice general words. They seem to mean something to the common man in the tradition of the common law well known to the judges, and one would have thought that the Lord Chancellor was putting the wrong words in the right place, and that this amendment was putting the right words in the wrong place.
Lord Edmund-Davies: I venture to support the opposition of the noble and learned Lord the Lord Chancellor on the simple ground, which can be shortly stated, that subsection (1) is dealing with the ambit of the rules. When you get, on the other hand, to subsection (3) you have the nature of the duty. That I should have thought, with profound respect to those who speak for the first amendment, is the proper place to put it. The point has to be covered. It is an important point. However, it is best dealt with, in my respectful judgment, in the place which the noble and learned Lord suggests.
The Lord Chancellor: There has been a variety of opinions. The noble Lord, Lord Graham, put it very neatly. I agreed with the noble and learned Lord, Lord McCluskey, in the first of his observations and not in the second, and I agreed with my noble and learned friend on the Cross-Benches, and that is where I stand.
Lord Renton: I wonder whether it would help still further to improve the amity which is prevailing in this discussion if I say that I now also agree with my noble and learned friend the Lord Chancellor.
Lord Stanley of Alderley: I am very pleased that my noble and learned friend accepts the principle of the amendment, which is all that I am particularly concerned about, as I told him earlier on. I am not able to master the intricacies of these legal points. I accept, however, that the place for this amendment is probably where the noble and learned Lord has suggested, and I await with great interest what he says on Amendment 3, because honestly I do not think that I ought to know which is the correct wording—"ought" or "has reasonable grounds". I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
3.43 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 2, line 1, leave out ("persons other than his visitors") and insert ("another (not being his visitor)")
The noble and learned Lord said: Perhaps I may speak also to Amendment No. 4, which is associated with this amendment.
Amendment No. 4: Page 2, line 10, leave out ("them") and insert ("the other")
It is rather an esoteric draftsman's point, but I shall try to explain it as briefly as I may. The subsection to which the amendment applies deals with the duty of an occupier of premises towards persons other than his visitors, and that is a category which embraces, if that

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is the right verb, a wide variety of uninvited guests. It would include, for instance, those who come like thieves in the night, and, at the other extreme, children innocently trespassing on the land. The occupier may see them and do his best to protect them from dangers. He may see them but decide to do nothing, or he may be blissfully unaware of their presence there at all.
Clearly the duty owed by the occupier will vary greatly from one category of visitor to the other, and this is made clear by subsection (4) of this clause. But the use of the plural "persons" in subsection (3) might, I am advised, induce the courts to construe the subsection as if the same duty were owed by the occupier to all his uninvited guests. The purpose of this amendment, therefore, is to take out the plural and insert the singular, and that is all it does.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 2, line 4, leave out paragraph (a) and insert—

("(a) he is aware of the danger or has reasonable grounds for being aware of it;

(aa) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case whether the other has lawful authority for being in the vicinity or not); and")

The noble and learned Lord said: Now we come to the amendment which is intended to give effect to the purpose which my noble friend Lord Stanley of Alderley had in moving the first amendment. It really arises out of an exchange which I had with my noble friend Lord Gisborough on the Second Reading debate. He asked then that light be shed on this concept of danger. Would an occupier, he asked, be liable if he did not know the danger? I was grateful to him then and remain grateful to him for drawing the point to my attention.
The existing law is not entirely clear as to whether actual knowledge of a danger is necessary, or whether a lesser degree of knowledge might be sufficient to render the occupier liable. We have been thinking about this, and it would be unfortunate to allow this ambiguity to remain. Without some clarification, the Bill might be construed as creating a new duty in respect of any danger on the land, even one of which the occupier could not reasonably be aware, and that is not the Government's intention.
In moving this amendment, I must appear to some extent with a little blush on my cheek, because, having heard the debate on the first amendment, I find myself a little uneasy about the actual words I have chosen in this one. The doubt which has arisen in my mind was not exactly expressed in the first debate but it arises really in this way: how can you have reasonable grounds for being aware? This is the question which flitted across my mind. Probably there is a difficulty there. It might be that the courts would apply a purely subjective test when an objective test of what is reasonable is what is intended. However, what I shall do, with the permission of the Committee, is to move this amendment, which I think would do, into the Bill and I will have second thoughts about the phraseology before Report. I beg to move.
Lord Mishcon: The Committee will be grateful, as always, not only for the noble and learned Lord's lucidity but also for his frankness when on his feet. However, I am going to try to persuade the noble and learned Lord that the language employed in this amendment is correct and that it does not need any alteration. I am merely voicing this view in order that it may be considered—I have no doubt with a complete lack of respect!—when the matter comes to be decided.
The amendment specifically does not repeat the word "know". Nor does it use the words "to be aware". The draftsman has in my view cleverly and properly used the word "believe", and not "know" or "be aware", as the noble and learned Lord said when he was speaking to the amendment. I think that "believe" is exactly the right word. Has the occupier reasonable grounds to believe, to think that there is in fact a danger which does exist? I would have ventured to suggest, as it is going to be considered, that the word "believe" gets the noble and learned Lord off the horns of the dilemma that he thought he might be on.
Lord Renton: May I express a different view? Mankind is endlessly torn about differences of opinion as to belief, but knowledge is something that can be ascertained. Also where there is plainly a duty of care, the simple word "ought" used by the greatly loved father of my noble and learned friend in Addie v. Dumbreck is a word which stood the test of time for many years. I venture to ask my noble and learned friend to indulge in a further exercise of filial piety and consider whether it might be wise to revert to the old expression "knows, or ought to know" in his further consideration of this matter.
Lord McCluskey: I am not in the least surprised that the noble Lord, Lord Renton, made that point. I foreshadowed that he would. I support him on it. Surely the position is that instead of going off to the strange phrases of "reasonable grounds" and "believe" and the philosophical and metaphysical complications that arise from the use of them, we should simply go back to the words that generations of English and Scots lawyers have become familiar with. It is the judges who will have to apply these words and they know what they mean. It took many decades before the English realised the terrible mess they had got their law of occupiers' liability into, and in the statute of 1957 they went back towards the old Scottish rules which prevailed before the House of Lords imposed English law upon Scotland for some decades.
Surely the House ought to support me in this and the noble and learned Lord the Lord Chancellor ought to bring his customary humility to his reconsideration of the matter and take the advice of the noble Lord, Lord Renton: discard these long and complicated words and do what he ought to do.
The Lord Chancellor: That is very kind of the noble and learned Lord; but in the earlier part of this week, oddly enough, I was sitting in a Scottish appeal on the Occupiers' Liability (Scotland) Act 1960. Having heard the noble and learned Lord, I am bound to point out to him that the Scottish Act does not follow his advice.

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However, I stick to what I said about "ought", but I have difficulty in endorsing my own words (for which I take full responsibility of course) in paragraph (a) of my amendment. That uses the word "aware" and does, with respect to the noble Lord, Lord Mishcon, say "has reasonable grounds for being aware". It is that phrase, not the use of the word "believe" in paragraph (aa), which gives me a slight queasiness when I read it. I do not say that they are wrong, but I give notice to the Committee that I shall be thinking of the words deeply between now and Report stage.
Lord McCluskey: The noble and learned Lord has misunderstood me. The Scots law was perfectly all right until the English House of Lords imposed an English structure upon it. The result was that we had to legislate to change it, and Parliament in 1960 got it wrong. That is why the statute is so difficult for the noble and learned Lord to understand when he hears the Scottish appeal. We ought to go back to the simplicity of 19th century Scotland by using words we ought to know.
The Lord Chancellor: The Scots are very keen on importing moral duties into most things; but the fact remains, in spite of what the noble and learned Lord has said, that when Parliament revised the law of Scotland it did not take the noble and learned Lord's advice.
Lord Coleraine: I should like to suggest another reason why my noble and learned friend might take away the words "reasonable grounds" and think again about them. It seems to me that "reasonable grounds" are what an occupier of land might have to show if he was defending some form of action against an entrant, but not what an entrant should have to show an occupier.
Lord Graham of Edmonton: May I be quite clear as to the purport of the words of the noble and learned Lord the Lord Chancellor? In asking the Committee to accept his Amendment No. 3, he is advising us that perhaps on second reflection, possibly at Report stage, he will come back with a revision of Amendment No. 3. That will provide the noble and learned Lord with an opportunity for reflection, and it will also provide those outside the House with an opportunity of looking at the words which will now stand part of the Bill. In that case, I am perfectly satisfied with the Lord Chancellor's intention.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
[Printed earlier.]
The noble and learned Lord said: I have already spoken to this amendment, and therefore I beg to move.
On Question, amendment agreed to.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No.5:
[Printed earlier.]
The noble Lord said: This amendment deals with a problem which upsets occupiers. At the moment a trespasser can sue an occupier for occupiers' liability
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even though the trespasser had trespassed with intent. Indeed, he may have committed a criminal offence such as arson, theft or even assault. This seems illogical and I have to tell the noble Lord, Lord Mishcon, that I am afraid I was not privy to his conversations in Antrim. I realise that there is the odd problem with children and with those committing minor offences for which the occupier should be responsible. I hope that this amendment has been drafted in order to deal with these problems and have them in mind. I hope therefore that my noble and learned friend, as he did on the previous amendments, will again help me. I beg to move.
Lord Renton: I wish strongly to support my noble friend Lord Stanley of Alderley on this matter. It seems to me that unless this amendment, or something to the same effect, is introduced into Clause 1 we shall have great uncertainty, we shall have confusion and we could have serious injustice. Those people who occupy land and want to be reasonable occupiers in allowing reasonable access to people—I am thinking especially of those who might be tempted to close existing rights of way or perhaps open-mindedly be willing to create new rights of way—will be very much afraid of adopting what I call a liberal attitude in this matter.
I hope that my noble and learned friend, if he is not accepting the amendment—I have no idea what he intends to say to your Lordships—will give it sympathetic consideration. I remind him that it is carefully drafted—I draw attention to the words "capable of being convicted"—in such a way as excluding from its scope people who do not have the capacity to be convicted of crimes. This applies specially to children under 10 who have no such capacity; but in the case of children between 10 and 14 years we have to bear in mind that there is a capacity only if the children knew that they were doing wrong in trespassing and in what they were doing.
I seriously urge my noble and learned friend that there is a real problem here, not an easy one to overcome I must confess from the legal point of view, but one which I hope will be the cause of his giving it sympathetic consideration.
Lord Campbell of Alloway: This is a moderate amendment designed essentially to protect the interests of children. To save taking up any further time, for the reasons that have been advanced by my noble friend Lord Renton, I most seriously support the amendment.
Lord McCluskey: I wonder whether I may ask the noble and learned Lord the Lord Chancellor about this amendment. Am I not right in thinking that if this amendment were allowed it would be a substantial retrograde step? Historically in England some duty was always owed to whoever came on the premises, however malevolent his intention or however criminal the means by which he got there. One could not set a mantrap for him. If I am reading this correctly—and I may not be—the effect would be that one could set traps for people who criminally entered upon premises. That surely would be a retrograde step. Am I wrong about that?
Lord Renton: With the greatest respect to the noble and learned Lord, surely if by statute a landlord or occupier is forbidden to set a trap—as, for example, the mantraps which were forbidden by legislation 150 years ago—there is nothing in the amendment which would legalise the use of such traps, deprive anybody who was injured by them of a cause of action or prevent him from being prosecuted.
Lord McCluskey: I was intending to use the word "trap" in the sense in which judges have used it in the past—any kind of a trap at all, and not a man trap necessarily, for the trespasser upon the premises.
Lord Renton: I hope I may be allowed to come back on this. I was born in a house alongside which a river flowed and separated the house from the garden. We had a bridge from the house into the garden over the river. The only time we ever had a burglar—and, strangely enough, it was a woman burglar—was one who tried to approach the house not knowing that the river was there. She came at night, and the first that we knew of her intent to burgle the house were cries of, "Help me, help me!" from the river. There was a sudden drop to the river on the side furthest from the house, and it would have been quite extraordinary if my father had been exposed to an action in tort by that lady who might have complained that there should have been some way of protecting her from falling into the river. So when we are talking of traps we have to think of the reality of the ordinary situation, such as the one I have described.
Lord Campbell of Alloway: Surely the noble Lord, Lord McCluskey, used the expression "setting a trap". If that was the expression he used, clearly it is not within the possibility or province, under general law, for people who have premises to set traps. As I understand it, nothing in my noble friend's proposed amendment is designed to alter that situation and to enable traps to be set.
Lord Edmund-Davies: I seek information from those who are proposing this amendment. A licensee goes on to premises, and he enters the premises for wholly innocent purposes falling within the ambit of the licence. Then, there, he is tempted by the luscious apples on an overhanging branch, and he steals half a dozen of them. Let us postulate also that he is a person of mature years. He has undoubtedly committed the crime of theft. Is that to say that the suggested amendment means that no duty is owed to him under the section at all, no matter how grave the danger?
The Lord Chancellor: I am afraid that I must tell my noble friend and his supporters that whatever is good in this clause is already contained in subsection (4) of the clause, and anything which is not contained in subsection (4) of the clause is not good. The reason which I give is almost exactly, and I think (although I have not got his elegance of phrase) would be exactly, what my noble and learned friend on the Cross-Benches has just said. This amendment, if it were passed per incuriam by this Committee, would overturn almost the whole of the law which it is the purpose of the Bill to introduce. Again obviously I take off my hat to Addie v. Dumbreck for reasons to which
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I have already referred, in spite of the displeasure of the noble and learned Lord opposite. But, in fact, it would revert to Addie v. Dumbreck. As the purpose of this Bill is to lay its ghost for ever, I am a little surprised that my noble friends with legal qualifications should seek to pursue it.
Of course, the truth about this matter is this. Subsection (4) says that the duty is in every case,
"to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned".
As I ventured to point out, perhaps half-humorously, on Second Reading, if you poke your head out of your bedroom window one night and see a burglar coming up a ladder towards your first floor, and the ladder is carefully placed on your drive, it is probable that a wise judge, after scratching his head, would not think it was reasonable to compel you to say, "Forgive me, but the third rung as you approach my window-sill is slightly defective". This, I think, is the sort of thing which a court can master after a lifetime's experience of the law.
But in a sense this really goes back to spring guns and man traps, although in Addie v. Dumbreck my father was very careful to exclude spring guns and man traps from his purview. What the amendment really says is that if a person is on premises having committed an offence—which would be the case to which my noble and learned friend on the Cross-Benches referred—or with the intention of committing a criminal offence, no duty is owed to him at all by virtue of the Bill. That is what it is saying.
I ask the lawyer's question (it was asked once before by Lord Atkin, and earlier still by a lawyer who had an even better capacity to answer it than I): Who is my neighbour? That was Lord Atkin's question, and it was asked before; but nobody ever said in reply that you owe no duty at all to the trespasser. This is the proposition that we are asked to accept; and it is not true. You do owe a duty to the trespasser. It is the duty, as I suggest, to take such precautions as are reasonable in the circumstances of his trespass. That is right and anything else, I think, is wrong.
I revert—because I have already spoken on an earlier amendment to something which fell from the noble and learned Lord. Lord McCluskey—to Scottish law, which I was considering judicially in the earlier part of this week. When Parliament came to revise the law of duty towards trespassers, among others, in Scotland, in order to get rid of Addie v. Dumbreck it first of all used a form of words—and I have the words here—which mutatis mutandis is identical with the form of words in the Bill as drafted. That is the law of Scotland in this day, having been introduced through Parliament in 1960. The only trivial variation from the form of words used in the Bill as drafted was that it covered other damage besides personal injury; and in this Bill we are talking about personal injury.
I should be very sorry indeed to accept an amendment which went back to categorisation (albeit they are different categories from those sanctified by my father in Addie v. Dumbreck) and very sorry to go backwardsand create a situation in which the law of England and the law of Scotland, in two comparatively recent statutes, were different from one another in a vital respect. With those words I must say, quite

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frankly, that I have not the same sympathy with this amendment, or even its purpose, as I had towards an earlier amendment proposed by my noble friend and his associates.
Lord Mishcon: I wonder whether I may intervene for a moment to mention a further difficulty which seems to me to arise out of this amendment, apart from those to which the noble and learned Lord has drawn our attention. He gave the example on Second Reading, and repeated it today, of the gentleman climbing the ladder, and the obligation to draw his attention to a defective third rung. This amendment presupposes that the proprietor of the land or house in question is judge and jury, and that he is able to call upon his own judgment to decide, at a time when he either ought to warn (in the language of the noble and learned Lord) or ought not to warn, whether the person concerned is intending to commit a crime, or has committed one. It is at that stage, and not after the verdict of the judge and jury, that the vital decision has to be taken. If I may say so, this is a most unrealistic amendment and one that would presume the proprietor of the land to possess knowledge which only the Almighty ought to have in the circumstances.
Lord Renton: The real case that my noble and learned friend the Lord Chancellor has made against this amendment is that the circumstances which could arise under it and which are envisaged by those of us who have moved it can be satisfactorily dealt with always by Clause 1(4). I say to my noble and learned friend, with great respect, that if that is so there will be a number of cases fought in the courts, and perhaps going right up to the House of Lords, in order to decide whether the person who was trespassing and had a criminal purpose, as, for example, in the simple case of the stealing of apples, or the burglar climbing up the ladder, was covered by subsection (4) with all clarity or not. The courts may disagree, in the great multiplicity of circumstances that might arise; and I would have thought that while we were legislating on this matter we should try to put it beyond doubt.
At Second Reading, in col. 743, on 12th July 1983, my noble and learned friend, replying to the debate, said this:
"I hope that this Bill will clarify the law rather than create a revolutionary change in it".
We are not asking for a revolutionary change, and if our amendment gave the impression that we were doing so, then that is our fault and it is to be regretted. But I still say that unless we have something like this we shall have uncertainty, confusion and possibly injustice. Therefore, having listened carefully to what my noble and learned friend says, and to other speeches in this debate, I hope that we shall not regard this matter as closed now if my noble friend Lord Stanley of Alderley decides to withdraw his amendment—as he may well wish to do—and that we may consider the matter further between now and the Report stage.
The Lord Chancellor: I am anxious not to repeat myself, but I would urge my noble friend Lord Renton perhaps to think again about this. The law of Scotland, which was imposed by Parliament in 1960, has worked perfectly well for 23 years without any of the
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difficulties which he envisages having arisen. That gives it a prima facie case for careful consideration, and it is in the Bill. Secondly, take the case of my noble and learned friend on the Cross-Benches: if a man steals apples on your land, is it really to be said in a Christian country that you do not owe him any duty? I will not stand for that.
Lord Renton: With respect, I did not say that.
Lord Stanley of Alderley: I, too, was somewhat worried by the noble and learned Lord's ladder story on Second Reading. Before withdrawing this amendment, let me say that I hope that my noble and learned friend will give it some thought between now and the Report stage. As I understand it, minor offences such as the stealing of apples would be covered by the Theft Act, as would be for instance, stealing mushrooms or wild flowers—although wild flowers, I suspect, would be covered under the Wildlife and Countryside Act.
I am not entirely happy, as a layman, about the criminal who trespasses and the occupier's legal liability towards him, or about the defective ladder or in fact the carelessly-left hole and how liable I am, as an occupier, to a criminal. However, having listened very carefully to speeches made by noble Lords throughout the Committee, I can only hope that if I come up before a court my noble and learned friend the Lord Chancellor will be there and will take a similar view that I do not have to tell the chap that the third rung is defective. I hope no other court would disagree with that view. I am afraid that I am still somewhat unhappy, but I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 1, as amended, agreed to.
The Earl of Swinton: I beg to move that the House do now resume for the Statement.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

Cable and Wireless: Privatisation
4.15 p.m.
Lord Cockfield: My Lords, with the permission of the House, I will repeat a Statement made by my honourable friend the Financial Secretary to the Treasury in another place. The Statement reads as follows:
"With permission, Mr. Speaker, I will make a Statement.
"As part of its continuing programme of privatisation, the Government are now considering disposal of a further tranche of their shareholding in Cable and Wireless plc during the current financial year.
"The Government renounced control over the company in October 1981 following the sale to the public of some 133 million shares. The Government's shareholding has since been diluted to some 45 per cent. of the company's issued equity

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as a result of an issue of new shares by the company in March 1983.
"The Government have in mind a sale of approximately half their present shareholding through an offer for sale to the public. The precise timing and amount will be subject to market conditions. Parliamentary approval for the expenditure will be sought in a new Vote which will be presented to the House in due course. Pending that approval, the necessary costs of preparation for the sale will be met by repayable advances from the Contingencies Fund.
"The directors of Cable and Wireless are recommending shareholders to agree to the issue to the Government of a special share which will enable the Government, irrespective of their own shareholding, to ensure the continuance of those provisions of the company's articles of association that limit the shareholdings of individuals and parties acting in concert to not more than 15 per cent. of the issued ordinary share capital. The Government will vote their shareholding in favour of this proposition".
My Lords, that concludes the Statement.
Lord Bruce of Donington: My Lords, the House will be very gateful to the noble Lord for repeating the Statement, which indeed seems to have been anticipated in the columns of today's Guardian and Daily Telegraph. The most remarkable thing about this Statement is that it really gives no reason for the sale taking place, other than as part of a continuing programmes of privatisation. But the principal purpose of privatisation as put forward by the Government from time to time has been to restore industry, or sections of it, into private hands and to remove sections of it from what has sometimes been described as "the dead hand of the state". However, that has already been done. In 1981 the Government parted with 51 per cent. of their interest in Cable and Wireless, so presumably all that transpires as a result of the particular transaction which is envisaged in the Statement is merely the raising of more money.
It would have been helpful if the noble Lord had indicated for what purpose the proceeds of the sale are to be used. I have been carefully through the accounts of Cable and Wireless plc for the last two or three years. They seem to be doing remarkably well. Their profit record is very good, their turnover is going up, and last year the Government themselves received, on the basis of their reduced holding, approximately £10 ½ million after tax, which was not really a bad return for the amount of investment which they had retained.
It is all very well to think that the country is to be indefinitely mesmerised by the calls for privatisation carried out for the ostensible reasons of restoration of competition, effciency, enthusiasm, initiative, drive and so on. It is getting a little thin. Here it is anticipated to dispose of a futher half of the Government's present holding. May I suggest to the noble Lord that it is not always good housekeeping—a word to which Her Majesty's Government pay very great regard—to eat the seed corn, more particularly in circumstances such as this.
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The shares have been quoted in the current year as high as 383p each. They have gone as low as 250p, and today's quote on the Stock Exchange is some 265p. At what price do the Government propose to sell, and do they consider that competitive conditions enabling the best possible price are likely to arise during the current financial year? The fact of the matter is that the Government are desperate to raise money from any source, and when getting that money they propose to take the unsound way of dealing with it: by using it as ordinary income and spending it as part of the normal process of Government expenditure. This is not very sound. I should have thought that it would have been far better for the Government to content themselves with retaining their existing holding.
We note that pending approval—which will of course be necessary in this case—the necessary costs of preparation for the sale will be met by repayable advances from the contingency fund. I am sure that the House would be interested to know just what these costs of preparation comprise. Will the noble Lord give us some indication of what the costs of preparation comprise, and an approximate idea of how much these costs of preparation will be?
So far as the conclusion of the Statement is concerned, of course we entirely support the intention of the issue to the Government of a special share. The purpose of this is well-known: it will enable the Government in certain circumstances affecting what they conceive to be the national interest to exercise their one special share by way of majority over all the existing shareholders. This is a very sensible precaution. I hope that the noble Lord may be able to enlighten the House a little further in response to the questions which I have ventured to put to him.
Lord Diamond: My Lords, may I, too, say how grateful we are—it is very important that this should continue to be the case—for repeating the Statement made in another place, thereby enabling this House to participate in important discussions of this kind. May I ask the noble Lord three questions? First, approximately—I know that he cannot give me a precise figure—how much do the Government expect to raise net out of this sale? Secondly, is he able to give an assurance that this money, being from a sale of national assets, will be earmarked exclusively for capital purposes? Thirdly, will he help me with the irreconcilable statements made in the first and second paragraphs?
The second paragraph of the Statement refers to the "continuing programme of privatisation". The third paragraph refers to the Government's having renounced control. If it is correct that the Government have renounced control, then surely, as the noble Lord, Lord Bruce of Donington, said, it cannot be right to say that the purpose of this sale of a further tranche of a minority holding is in pursuance of a programme of privatisation.
Is it not the case that it is in pursuance of a programme of misleading the electorate at the time of the General Election? At the time of the General Election, statements were made about public expenditure which have since been shown to be less than the whole truth. Is it not the case that this money is required because the Government were not prepared

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to make adequate provision for increases in demandled expenditure? If they made adequate provision they could not make the reductions in taxation without wrecking the whole of their financial policy which formed the content of a Bill which the Government introduced immediately before the General Election. Do not these points that I am making hang together?
Lord Cockfield: My Lords, may I start with the points raised by the noble Lord, Lord Bruce of Donington, although to some considerable degree they were also reflected in what the noble Lord, Lord Diamond, said. There is of course a clear conflict of political philosophy between those of us on these Benches and noble Lords on the Benches opposite. We have discussed these matters on many occasions in the past and we shall no doubt go on discussing them.
But may I start by making this point? When one refers to privatising a company, it does not mean that one sells only 40, 50 or 60 per cent. or any other specific percentage of the capital of that company. What is important is that control of the company passes into the private sector, which suggests a minimum of 50 per cent. But there is a great deal to be said for selling 100 per cent. and getting it out of the public sector altogether. That is the real answer, both to the broad political point raised by the noble Lord, Lord Bruce of Donington, and in effect also to the third of the points raised by the noble Lord, Lord Diamond.
This is an act of privatisation, and where there is no national interest involved there is no reason whatever—I am not speaking specifically about Cable and Wireless, because both noble Lords widened the discussion beyond that—why in many of these instances the state should retain any shareholding at all. Therefore, the proposed sale of approximately one-half of the shareholding remaining with the Government is a perfectly legitimate further step forward in the programme of privatisation.
The success of that programme is amply illustrated by the point raised by the noble Lord, Lord Bruce of Donington, himself; namely, that since control of the company passed to the private sector the company has in fact flourished very much indeed. Of course, a sale of this kind does raise money for the Exchequer and that is one of the reasons for making the sale. This was brought out very clearly, for example, in the statement made by my right honourable friend the Chancellor of the Exchequer in July when he said there would be additional asset sales. This is one of them.
The noble Lord, Lord Bruce of Donington, asked: at what price will the Government sell? That price can be fixed only at the time that the Government are ready to make the offer for sale. But information of this kind is market sensitive and it is not possible at this stage to go further than that. Our aim will be to secure a fair value for the shares in the light of the market conditions then prevailing.
The noble Lord, Lord Diamond, also asked how much money did the Government expect to receive. Here again I can only give him illustrative figures. If, for example, the Government sold 100 million shares, which is approximately one-half of their present holding, at the current market price, which the noble
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Lord correctly quoted as 265p, it would raise £265 million, less expenses. The noble Lord, Lord Diamond, also asked what the expenses would amount to. I am not in a position to answer that question at the moment because the expenses will depend to a considerable measure on the method of sale which is undertaken, including whether or not it is underwritten; but as money must be spent before the Vote can be made in another place to cover the expenditure, it is necessary to charge any costs incurred ad interim against the contingency fund.
The noble Lord, Lord Diamond, also asked for an assurance that the money would be earmarked for capital purposes. I give him no such assurance. The money which reaches the coffers of the Exchequer is not categorised as income or as capital. There is a very large capital element in the expenditure incurred by the Government on the other side of the account, but it is not the practice to hypothecate individual receipts of moneys, as to whether they are going out for one purpose rather than for another. But there is, as the noble Lord will see from the annual public expenditure paper, a very large volume of capital expenditure which goes on every year.
The noble Lord, Lord Bruce of Donington, suggested that this was an unsound way of running our finances. This is not the position at all. We have a very substantial public sector borrowing requirement which has to be met either by taxation or by borrowing. If either the noble Lord, Lord Bruce of Donington, or the party of which the noble Lord, Lord Diamond, is a member were in office, that borrowing requirement would be a very great deal bigger than it is at present. The use of moneys derived in this way as part of the finance to meet that borrowing requirement is a perfectly legitimate procedure.
Lord Beswick: My Lords, the noble Lord, Lord Cockfield, spoke about the advantages which will accrue from this disposal of public assets. Can he give us just one example of how there will be some advantage in managerial efficiency: whether there will be benefits to the consumer from selling off this additional package of shares? Secondly, when the Government have disposed of—some people would use the term "flogged"—these public assets, may I ask the noble Lord to indicate how the Government then propose to meet the shortfall between revenue and expenditure?
Lord Cockfield: My Lords, so far as the first part of the noble Lord's question is concerned, as a distinguished former chairman of a nationalised industry he will be aware of the continual complaints made by the nationalised industries about Treasury involvement in their affairs and about the Government's sitting on their backs. Nothing could be better from the point of view of running an efficient business than that the Government should not be involved in that business and that the management of the business should be free to conduct it in the best commercial manner. The success of this policy is shown by the very success of Cable and Wireless itself since it was privatised. I am sure that it will continue along this road of success.
The noble Lord raised a second point which I suspect was more rhetorical than anything else. He

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asked: how would the Government meet their borrowing requirements after they had "flogged" these assets? I believe that was the word he used. The answer to his question is perfectly simple. It is part of the Government's policy to reduce the size of the public sector borrowing requirement. One of the major ways of doing this is by restraining the rise in public expenditure, and I hope very much that we shall have the noble Lord's support for those measures.
Lord Beswick: My Lords, if I may press the noble Lord on this matter, is he seriously telling the House that there will be less Treasury intervention when the shareholding is 21 per cent. than when it was 42 per cent.?
Lord Cockfield: My Lords, the important point is that the Government should no longer be in control of the company. It is even more important that the Government should not be involved in it at all. The Government are not an investment trust. It is not the function of Government to be holding investments in companies. The function of the Government is to govern the country, a job which they are doing with very great success, as underlined by the results of the General Election in June. The right thing is for the private sector to run industry and business efficiently and profitably.
Lord Bruce of Donington: My Lords, may I press the noble Lord to answer one question which I put to him but which he did not answer. I asked for estimates of the cost of preparation. The noble Lord must have had some figure in mind, otherwise he would not have found it necessary to say that advances would be made from the contingency fund. Quite clearly they must be significant. Can the noble Lord not give any indication as to what these costs of preparation are, as distinct from the actual costs incurred at the time of the offer for sale, whatever they may be? What are these costs of preparation, and approximately how much are they?
Lord Cockfield: My Lords, I thought I had very fully answered the noble Lord's question. A wide range of costs is involved. There is the cost, for example, of advice tendered to the Government and advice taken by the Government. There are other preparatory costs involved in the preparation of documents, the circulation of documents, the insertion of advertisements. There is the cost of the actual issue itself—the underwriting costs and so on. It is impossible at this particular point to say just at what point in the chain of the incurring of those costs the appropriate Vote will be passed. It is not possible at this stage therefore to say how much of the total expenditure will be charged against the contingency fund and how much of it therefore will come after the date when the Vote has been passed in another place. Purely by way of illustration, the cost incurred when the first sale of shares in Cable and Wireless was made was £7 million, but that of course included the cost of underwriting, which is a substantial part of the total.

Occupiers' Liability Bill [H.L.]
4.40 p.m.
House again in Committee.
Clause 2 [Visitors using premises for recreation: modification of Unfair Contract Terms Act 1977]:
Lord Mottistone Lord Mottistone moved Amendment No. 6:
[Printed earlier.]
The noble Lord said: In moving this amendment I am advised by the Confederation of British Industry that this takes us into an industrial scene rather than into the agricultural one we have had so far. The amendment consists of two words, and I shall be intrigued to see whether noble Lords learned in the law will be able to confuse us as much as they have done on earlier amendments despite the simple wording that is involved.
Amendment No. 6 is designed to remove any doubt whether educational visits—for example, to study geology in quarries—are covered by the provisions of Clause 2. Access is likely to be denied to students if the law does not reassure occupiers on this point. The minerals industry, for instance, is already increasingly chary of admitting students to sites of particular geological interest. If this clause specifies recreational purposes without mentioning also educational purposes, education will suffer.
Students come in various shapes and sizes. Some are from local schools, some are geologists on advance courses, some are even members of conferences studying the problems of waste disposal. Inquiries in the industry show a modest, steady flow of student visits with a peak around Easter for university field trips. There is no doubt that if industry is not reassured on this point, students will find it more difficult to obtain field experience and their education will suffer.
As well as these points, which are made principally by those who have the responsibility for the ownership of quarries, I am advised by the National Farmers' Union that there is an interest in this area by farmers. I am also advised by the Youth Hostels Association that they support this amendment, certainly in principle, in order to encourage access for educational purposes in outdoor pursuits and field studies. They go on to say that, in expressing support for the acceptance by the public of reasonable risks in exchange for a right of access, they must emphasise that safety advice and guidance off hostel premises will continue to be given a high priority in the interests of members—particularly of young people.
I believe there is a good justification for this amendment. It seems to me that to limit this particular section of the Bill to recreational purposes only would be unnecessarily limiting. The educational aspects are important and need this amendment in order that people will be encouraged to give the facilities required. I beg to move.
Lord Renton: May I just state the position that arises with naturalists' trusts—of which there are a number all over the country—who arrange nature trails, sometimes on their own properties when they have open days, and sometimes on other people's property

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by arrangement with the occupier. These nature trails take people through woods, over marshes, and all over the place. It would be a very great encouragement to occupiers to co-operate if they found that, for example, they would not be held liable if they had not marked all the rabbit holes or some drop over a stream for which they would otherwise be made liable.
I remember one very serious case when, alas, a death occurred. It involved a pond that was completely covered by waterweed—so much so that a child could not distinguish the pond from the land. Sometimes waterweed can grow very fast, and if it is in a remote corner of a property, the owner may not even know that the pond has been covered by waterweed. In those circumstances, it would be wrong for the position not to be covered by the kind of amendment which my noble friend Lord Mottistone has suggested, and which I should like to support.
The Lord Chancellor: My noble friend, in moving this amendment, complained that he had been confused by what I had said in the past. For fear of confusing him still further, I will simply say that I accept this amendment.
Lord Mishcon: We on this side are delighted that the noble and learned Lord has accepted this amendment.
Lord Mottistone: In making my opening remarks, I was not casting aspersions against my noble and learned friend the Lord Chancellor; I was casting them over the many legal luminaries who were confusing us from all sides of the Committee on the earlier amendment. On the whole, my noble and learned friend was clearer than many of the others. I thank him greatly for accepting the amendment.
On Question, amendment agreed to.
4.46 p.m.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 7:
[Printed earlier.]
The noble Lord said: With the Committee's permission, I will speak also to Amendment No. 8. [Printed earlier.]
These amendments clarify the position referred to in Second Reading by the noble Lords, Lord Mishcon and Lord Gisborough, and by my noble and learned friend the Lord Chancellor. The purpose of these two amendments is to make it possible for an occupier to make a small charge for access or, indeed, recreation. It is not intended to exempt the occupier who conducts recreation as a business. The problem occurs when it is difficult for the occupier to protect his legal rights without making a charge.
For instance, it may be impossible to close a gate once a year in a part or on a moor, or to put up a notice. A small charge would protect the occupier from granting a permanent right. I hope my noble and learned friend will agree that this amendment would encourage occupiers to grant access to the public, and, further to my noble friend's remarks on Second Reading, simply as a matter of neighbourliness and goodwill.
I read with interest the Law Society's letter to the noble Lord, Lord Mishcon, printed in the Official Report for the Second Reading on 12th July (col. 725). It seemed to me to recommend a harder line than that proposed in my amendment. Once again, I feel sure from the remarks made by my noble and learned friend at Second Reading that I will have his sympathy. I hope he will be able to accept this amendment or one similar to it. The matter certainly needs clarification. For instance, would an "honesty box" on the premises make the occupier liable as a business premises? Surely not. I beg to move.
Lord Mishcon: I wonder if it would be for the convenience of the Committee if in joining in the debate on this amendment I spoke to my amendment, Amendment No. 9? The Committee will therefore be spared another speech. The subject matter is the same. My amendment is intended purely and simply as a probing amendment—and I wish to make that quite clear to the Committee. As the noble Lord who has just spoken made clear, the Law Society, among many other organisations, is very worried at the complete lack of definition of the term "business purposes". It is no good, if I may say so in all frankness to the Committee, saying that the courts are very wide in their understanding and very wise in their judgment in the use of words, and therefore could easily ascertain, if a case came before them, whether the case came within the meaning of the words contained at lines 4 and 5 on page 3, that the granting of access,
"for the purposes concerned falls within the business purposes of the occupier".
"Business purposes of the occupier"? The occupier may be a limited company. Are the purposes to be gleaned by the court from the very wide objects clauses that occur so often in a memorandum of association? Is the court to take evidence of what was the actual business carried on, irrespective of what the objects of the company are as set out in the memorandum? What does constitute a business? The noble Lord, Lord Stanley, has drawn attention—as I wanted to do in my probing amendment—to this question: do you, for example, if you make a charge to somebody who asks for access to your land, carry on a business when you make that charge merely one that covers you for expenses? And what are the expenses? Are they the expenses generally for carrying on your land? What is the quantum that has to be divided among the numerous people who may ask for access? Is it to be an estimate in regard to those expenses accompanied by an estimate of the number of people who in a year might ask for access? Do you try to find that notional number and use that as a dividing factor into what you think are the overheads? If the overheads are chargeable, as the court might hold, to other business interests of the occupier, does he fall foul of these words?
The Law Society did make representations to the Lord Chancellor's Department. Those representations were greeted with the courtesy always extended by that department, and the answer was that more confusion might be caused by endeavouring to define business purposes than would be caused by leaving these words as they are. Again I say, with great respect, that that is not good enough. People do not want to be forced into

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an action at law. People want to know when a Bill is passed by Parliament where they stand. Advisers want to be able to tell them. Have you got to insure against these risks? You may fall foul of this Act and be caught for a liability if you do not.
I say quite frankly, as a humble practitioner of the law, that I would have to go into very detailed investigation before I could advise the person who came to me as to whether or not the making of some charge, any kind of charge—an example is the box that was mentioned by the noble Lord, Lord Stanley, that stands at the gate where you contribute what you like if you are granted access to the premises—makes him liable under this Bill. That was the reason for my probing amendment. I feel, if I may say so with respect, that the noble and learned Lord ought to give much closer attention to the use of these words "business purposes", and not merely—I hesitate to use the phrase "fob off" the Committee because the noble and learned Lord is not capable of doing any such thing—but I do feel that the Committee must, in exercise of its duty, ask the noble and learned Lord to come at some stage of this Bill—I would hope it would be the next stage—with an effort to define what business purposes are. If that cannot be done, it may be neccessary to put specifically in the Bill whether or not certain circumstances will amount to a business purpose, and whether, for example, the making of any charge on a certain basis will exempt the proprietor of the land or will not exempt the proprietor of the land from liability under this Bill. As I said, I will not be making a further speech, but I hope your Lordships will now realise why I put down the amendment.
Lord Renton: The noble Lord made it clear that his was a probing amendment, and I have regarded my noble friends' two amendments, to which I let my name be added, as probing amendments also. As the noble Lord, Lord Mishcon, has pointed out, this is a rather difficult matter. So many different circumstances can arise, and we have to be very careful indeed that we do not discourage, for example, the riparian owners of water where there is fishing and angling from allowing angling clubs to go on the land. Sometimes it is necessary to incur modest expense to enable people to have access to the land for the purpose of angling. You may have to put up a fence when there are cattle about to prevent the anglers being disturbed by the cattle. Yet nobody would say that the letting of the angling right to the members of the angling clubs was a business. It is not intended to be profit-making. Therefore, we do need to make sure that in circumstances like that, and other circumstances mentioned by the noble Lord, there is not a discouragement to the use of the land.
If I may add one postscript to the noble Lord's speech, one of his noble friends mentioned earlier in the debate that the largest landowners were the Co-operative Societies. It surprised me very much, but they are very considerable landowners. Their business is the business of supplying the public with various things. Farming is an ancillary business. Yet if they are letting people on to the land for recreational or educational purposes it could not be said that doing so was part of the Co-operative Wholesale or Retail
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Societies' business or part of their farming business. So this matter does need consideration, and perhaps at a later stage my noble friend may feel that some simple amendment to this clause would help everybody.
The Earl of Caithness: The case has been very well put. I would merely add that, as an advisor to occupiers of land, both commercial and agricultural premises, there is no doubt what one's advice must be under the current law. If you cannot let somebody on free and you have to make some sort of charge, do not prevent them from coming on. This is not something one is keen to see continue, particularly in view of the last amendment of my noble friend Lord Mottistone, which was to add the word "educational". Even if it is for educational purposes, if there is a charge, I understand that it would put the occupier in an invidious position. I look forward very much to hearing the thoughts of my noble and learned friend on our amendments.
The Lord Chancellor: The one amendment to which the noble Lord, Lord Mishcon, has spoken and the two to which my noble friends have spoken, move, as it were, in the opposite direction from one another, but they do, I think, suffer from a common defect. I think both really overlook the context in which the clause which they seek to amend exists. This arises in the present Bill out of the anxiety which was felt by certain occupiers that they would not be able to exclude from liability risks by reason of the terms of the Unfair Contract Terms Act 1977, which, incidentally, I supported when I was sitting on the Bench opposite.
Having got that clearly in mind, I turn now to the noble Lord, Lord Mishcon, and say that the words "business purposes" were taken straight out of that Act when it was proposed by the Government of which he was such an ardent and distinguished supporter. I think it is a pretty good phrase. I supported it at the time and I support it now. It was not thought in the much wider context of the Unfair Contract Terms Act that the phrase needed so much explanation as the noble Lord seems, by his probing amendment, to think it requires when I in my modest little way insert a very tiny amendment in order to help the occupiers of land who allow people on to their land other than for the purposes of business. The expression "a business" and therefore by implication "business purposes" has been the subject of considerable judicial authority. I would rather not try to pontificate about that because if I spoke impromptu on this rather wide and thorny subject I should get into rather deep water, but I think it is fairly well established.
Only the other day I was reading the prints of one of the Halsbury Laws of England articles under the new title of Trade and Industry, when I looked into the question of what "business" meant. It covers a very wide range of activities. The authorities are perfectly well assembled, I think, under the existing article, but certainly in the article where it comes out of the replacement volume. However, I should not like to pontificate about that.
If there is anything I want to add, I should like to think about it and obtain advice and I will write to the noble Lord. However, I do not know that there will be, because this is only an amendment to an Act which

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already uses the phrase, and a very small peripheral amendment at that.
Turning to the two amendments of my noble friends, I think that they, too, have forgotten that what we are doing is to make a concession to occupiers so that they will in some circumstances be freed from an obligation under which they now are by reason of the Unfair Contract Terms Act. Therefore, much of what was said—that occupiers are entitled to have their minds completely set at rest—should be seen in the light of the fact that we are enlarging their freedom of action which was previously constrained or would have been constrained.
Of the two amendments proposed, the first deals with the same point which was contained in the amendment of the noble Lord, Lord Mishcon, about whether or not a charge is conclusive of the liability being a business liability or the liability being incurred for the business purpose. My answer both to the noble Lord, Lord Mishcon, and to my noble friends is that a charge is relevant but not conclusive. It is relevant because obviously the ordinary purpose for which one charges money for entering on to land or carrying on activities on it is likely to be a business purpose. But that is not necessarily so. I am not quite sure what an honesty box is because if one does not make a charge I do not see how it can be dishonest not to pay one on the part of the entrant. But it may well be that there is an esoteric meaning to "honesty box" which covers that situation where no charge is made but the man feels dishonest if he does not put money into the box. My answer is that the payment of money is relevant to considering whether the purpose is a "business purpose", but it is not necessarily conclusive.
I understand that it has been seriously suggested—although I think it is a little fanciful myself—that one reason for making a charge is to stop a right of way from being set up. I am not sure that I go along with that anxiety but it is perfectly possible and if that were the only purpose of charging I suppose it would not be a business purpose.
The converse, which my noble friends seek to introduce with their second amendment, is open to rather more serious objections. In Amendment No. 8 they want to insert "a substantial business purpose" in place of "the business purposes". That is open to more serious objections. I can conceive of people being unclear about the meaning of "business purposes" although I am not sure how many people, properly advised, would be unclear. But when the words "a substantial business purpose" are inserted into a Bill I begin to reach for my six-shooter. I can conceive of an endless tide of disputes and litigation arising. There are serious objections to "a substantial business purpose".
I hope that I have answered the first part when I say that, in my judgment, payment of money is obviously a relevant factor but not necessarily a conclusive factor. If I may look into the Law Society's point more closely, and I think I can expatiate or correct anything I have said, I will be only too happy to do so.
Lord Mishcon: I am more than grateful to the noble and learned Lord for his very courteous and gracious remarks. It may help if I were to amplify just a little in view of what the noble and learned Lord has said. It is
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one thing, with respect, to have in an Act of Parliament which deals with broad commercial considerations and with a whole gamut of businesses, whether or not under the Act one should say that if one puts conditions in a contract which is obviously a commercial contract they are to be deemed effectual or ineffectual as a result of their fairness or unfairness. I at once concede that when one is dealing with such a broad panorama one obviously must use broad words such as "business purposes". But when one comes to legislate for an exception and one, therefore, casts one's gaze very narrowly on one aspect of user, and that is the user of land whether it be for recreational or educational purposes, at that stage one is required—if I may say so very humbly—as a legislator to concentrate one's gaze much more closely and to say, "I am looking at only one aspect; one type of permission to occupy, and that is the occupation of land". Then, of course, one is called upon as a legislator to say what one means by "business purposes" in regard to that limited user.
I can imagine—and no one has a greater imagination or experience in regard to these matters than the noble and learned Lord—what will be the effect of quoting him in a court of law as saying—and I took down his words very carefully:
"A charge is relevant but not conclusive".
I can imagine, if I may again say with all humility, the learned judge saying, "What a helpful expression. It does nothing for me. It tells me that it is relevant. It tells me it is not conclusive. Now what am I to find? Am I to find that a very large charge is carrying on a business? Have I to decide that a moderate charge is possibly carrying on a business, and a small charge is not carrying on a business at all? This Act is silent and the legislators ought to have known better".
Having ventured to presume to be a judge in these circumstances, I know that the Committee can, having regard to the helpful words of the noble and learned Lord, leave him to consider what has been said in this debate on what are admitted to be probing amendments and to come out, with his usual wisdom, on Report with a solution to our problems.
Lord Stanley of Alderley: I made an initial remark about little legal problems of drafting, but I now feel that they are somewhat more than little. Nevertheless I am very grateful for the attention, which I appreciate is constructive, given by noble Lords in trying to clarify the position. My worry is still that if any charge is made, does the occupier become liable, and I understand from my noble and learned friend that the answer is yes, maybe. My noble and learned friend says that I am asking too much. Having obtained a concession, which I accept, under the Unfair Contract Terms Act 1977, yes, I am now asking for another one.
I would put my noble and learned friend right on the question regarding the honesty box, if I may, as a matter of technicality. It is quite common to have a box at the beginning of one's path or gate, inviting people to put something in it towards the upkeep of the path, or whatever it is. I think that that is what I am trying to say about the honesty box—
The Lord Chancellor: Charity box.
Lord Stanley of Alderley: We have it also for charity. We also have it for the RNLI and other organisations. They do rather better than ours for our own cases.
My noble and learned friend says that a charge may make the occupier liable and it is in the hands of the court. I understand that. I accept the point he makes that he will look at the matter again. I should like him to look in particular at my Amendment No. 7, which might help the courts a little. With regard to my Amendment No. 8, without being too flippant, I should like to say that perhaps the word "insubstantial", or some such word, might be better than "substantial". But I am sure that my noble and learned friend can think of a word that would satisfy what we are all trying to get at. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
Clause 2, as amended, agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with the amendments.

Merchant Shipping (Miscellaneous Provisions) Bill [H.L.]
5.13 p.m.
Lord Lucas of Chilworth: 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 Lucas of Chilworth.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord Derwent in the Chair.]
Clause 1 [Improvement notices]:
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Underhill: I wish to raise one or two questions on the Bill, and the first relates to Clause 1(3). The question also has some bearing on Clauses 2 and 4. I think noble Lords will agree that at Second Reading the Minister stated quite clearly that this was very much a technical Bill, and I am grateful for the Notes on Clauses, which have been prepared by the department, a copy of which the Minister has supplied to me. I have found them very useful. I should like to refer to the last sentence of paragraph 6 of the Notes on Clauses dealing with subsection (3) of the clause. I shall read the sentence:
"If the nature of the risk or the future pattern of voyages calls for remedial action to be taken in less than 21 days, it will be necessary to proceed instead by way of serving a Prohibition Notice under Clause 2 which is not subject to specific time-limit constraints".
However, when I refer to Clause 2, which deals with prohibition notices, I find that subsection (1) provides that such notices may be served where there is risk of,
"serious personal injury…or serious pollution".
This point is further dealt with in paragraph 4 of the Notes on Clauses relating to Clause 2(1). It states:
"On the other hand, prohibition notices may only be issued where there is a risk of serious personal injury or serious pollution of
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navigable water. In other words, unlike improvement notices, this Clause provides power first and foremost to deal with serious situations in whatever circumstances they occur, rather than to secure remedy of contraventions by other means than prosecution".
I must go into a little detail in asking this question so that noble Lords can see precisely what I have in mind. At Second Reading the noble Lord, Lord Lucas, stated, as reported at col. 1376 of the Official Report:
"but because prohibition notices deal with more serious risks, a reference to an arbitrator does not automaticaly suspend the effect of the notices".
At that time I expressed pleasure that the Minister had made that statement because it concerned a point about which I was going to ask him.
I turn to the point that I now wish to ask. In view of the qualifications which are laid down in Clause 2(1) regarding the circumstances in which a prohibition notice may be issued, what effect does that have on the provision contained in Clause 1(3)? It may be that there are important and serious matters requiring attention, but which do not fall within the two particular categories mentioned in relation to the prohibition notices. Are there any provisions within the Bill to deal with this situation and the general statement made by the Minister at Second Reading?
Lord Lucas of Chilworth: I am very glad that the noble Lord, Lord Underhill, has raised this point. I think that there is probably a confusion here. The time limit with regard to notices is the minimum period in which an aggrieved person may give notice of going to arbitration. On the other hand, in the case of a likely dangerous occurrence in respect of which an improvement notice has been issued it could be that following discussion and arrangement the inspector may give an extended period of time, so that the matter would not necessarily have to go to arbitration.
One envisages a position whereby a notice is served and in order to delay proceedings an aggrieved person who is less than reputable may say, "I am going to arbitration". On the other hand, a more reputable person may say, "It is all very well, but I cannot get this work done within three or four days before which I am sailing. I won't be back again for 28 days, 36 days, or perhaps two months, but of course I shall attend to it when I get back". The inspector decides that this is quite feasible, the owner is quite reputable, and he says, "All right, I will extend the notice for a period longer than 21 days", and a further inspection in either a United Kingdom port or another port may take place. That is really the fundamental point here.
Lord Underhill: I am grateful to the Minister for that explanation, and I shall read carefully in Hansard what he has said. However, I should like to ask the Minister whether he will take advice on what he has said as to whether or not some provision of that kind should be written into the Bill, or whether he is satisfied that the provisions cover the point.
Lord Lucas of Chilworth: Of course I can give the noble Lord an assurance that we shall look further at the detailed point which he makes. If we find ourselves lacking, we shall certainly do something about it.
Clause 1 agreed to.
Clause 2 [Prohibition Notices]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 1:
Page 2, line 16, leave out ("or hovercraft").
The noble Lord said: It may be for the convenience of the Committee if I also speak on this amendment to Amendments Nos. 2, 5, 6, 7, 8, 9 and 10.
Amendment No. 2: Page 2, line 22, leave out ("or hovercraft").
Amendment No. 5: After Clause 8, insert the following new clause:—Application to hovercraft.
(" . The enactments with respect to which provision may be made by Order in Council in pursuance of section 1(1)(h) of the Hovercraft Act 1968 shall include this Part of this Act.")
Amendment No. 6: Page 9, line 1, leave out subsection (3).
Amendment No. 7: Page 9, line 5, leave out ("Subsections (1) and (3)") and insert ("Subsection (1)")
Amendment No. 8: Page 9, line 24, at end insert—
(" ( ) Any reference in this Act to any provision of those Acts does not, where that provision has been applied to hovercraft by virtue of section 1(1)(h) of the Hovercraft Act 1968, include a reference to it as so applied.")
Amendment No. 9: Page 10, leave out line 23.
Amendment No. 10: Line 3, leave out ("and hovercraft")
This is a group of technical amendments, all confined to the application of the Bill to hovercraft. I assure your Lordships that the amendments have no effect whatever on the scope for the issue of either improvement or prohibition notices. You will recall, as indeed the noble Lord, Lord Underhill, reminded us, that at Second Reading we spent some time dealing with Part I of the Bill which makes the provision for the service of these two notices. These notices correspond broadly to those which may be served under Sections 21, 22 and 23 of the Health and Safety at Work etc. Act. The series of amendments delete all reference to hovercraft in Clause 2, Schedule 1 and the Long Title. Instead, the new Clause 8 that is the subject of Amendment No. 5 makes provision for the power to issue notices to be applied to hovercraft by an Order in Council which would be made under Section 1(1)(h) of the Hovercraft Act 1968.
Amendments Nos. 6, 7 and 8, again all applying to hovercraft, are amendment to Clauses 11 and 13 dealing with hovercraft. Despite the earlier amendments, Section 20(2) of the Interpretation Act 1978 and orders made under Section 1(1) (h) of the Hovercraft Act would still apply some parts of the Bill automatically to hovercraft. The new subsection to Clause 13 provides specifically that references to the various Acts included in Schedule 1 do not include a reference to those provisions as applied to hovercraft. Subsection (3) to Clause 11, however, and the reference therein to subsection (4) which obtains are deleted because subsection (3) which applies only to Part II of the Bill is a similar provision to the new subsection in Clause 13 which applies to the whole Bill.
I regret very much that this is a series of numbers and cross-references. I return to where I started by saying that they are technical amendments. They remove, in part, reference to hovercraft which are a separate and distinct kind of vehicle and which are covered by other enactments. It follows that matters can then be tied together in Part I and Part II of the
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Bill. I hope that with this, my best non-technical explanation of a number of technical amendments, your Lordships will accept the amendments. I beg to move.
Lord Underhill: My understanding of what the Minister says is that, while we are deleting various references to hovercraft, it is nevertheless the case that by the proposed new clause after Clause 8 references to hovercraft will still be made but under regulations under the 1968 Act. That being so, can the Minister say why it is necessary or desirable to remove the reference in the Long Title to hovercraft? The Long Title refers to statutory provisions relating to the safety of ships and hovercraft and other matters. If regulations will still be issued on hovercraft under the new clause to go in after Clause 8, it should surely still remain in the Long Title. I gather from what the Minister says that, although we are deleting certain parts, there will still be the health and safety conditions relating to hovercraft, which all of us desire.
Lord Lucas of Chilworth: I think the answer is that because hovercraft are a separate type of vehicle, the provisions to take care of this enactment come under their own Act to which these provisions will then apply.
On Question, amendment agreed to.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 2:
[Printed earlier.]
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 agreed to.
Clause 4 [Reference of notices to arbitration]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 3:
Page 4, line 17, at end insert—
("( ) Where any reference under this section involves the consideration by the arbitrator of the effects of any particular activities or state of affairs on the health or safety of any persons, he shall not on that reference make any decision such as is mentioned in subsection (3)(a) or (b) above except after—

(a) in the case of an improvement notice, affording an opportunity of making oral representations to him with respect to those effects to a member of any such panel of representatives of maritime trade unions as may be appointed by the Secretary of State for the purposes of this subsection; or

(b) in the case of a prohibition notice. affording an opportunity of making such representations to him to either—

(i) a representative of a trade union representing persons whose interests it appears to him that the notice was designed to safeguard, or

(ii) a member of any such panel as is referred to in paragraph (a) above,
as he thinks appropriate; and

(c) (in either case) considering any representations made to him in pursuance of paragraph (a) or (b) above.")

The noble Lord said: This amendment to Clause 4 is rather easier to explain. The purpose is to require an arbitrator to give a right of hearing to a trade union representative before modifying or setting aside an improvement or prohibition notice either of which may affect the health or safety of persons. The right would not apply to a notice not affecting the health or safety of persons, for example, in the case of marine pollution.
The person affected by a notice will not be a party to the reference to arbitration as the Bill now stands. It is right that the interests of that person should be seen to be put to the arbitrator before a notice is set aside. We thought it appropriate that a trade union representative should exercise this right.
Your Lordships will probably recall that when we discussed this Bill previously—it was many weeks ago—I attempted to describe the relationship of a health and safety at work tribunal that includes the right of a person to be heard, normally and usually by the trade union. But this Bill does not give an equal provision although the provisions of the Health and Safety at Work etc. Act are encompassed in Part I of the Bill.
We regard the injection of the general trade union viewpoint as much more important than the view of any particular trade union. The arbitrator can accordingly meet the obligation by offering a hearing to a member of a panel of maritime trade union representatives appointed by the Secretary of State. In the case of a prohibition notice, where it is more likely that a particular person at risk will be identifiable, the arbitrator can alternatively offer the right to a representative of the trade union representing that person. So in general terms we have sombody from the trade unions and in particular instances a representative of a particular trade union.
One of the advantages of arbitration is that it usually produces quick decisions. The more witnesses heard, the greater the chance of delay, and the length of the hearing is affected. So under this provision the arbitrator is not obliged to hear a trade union representative before affirming a notice. A reference of an improvement notice to arbitration suspends the notice until a decision is announced; the reference of a prohibition notice, however, does not suspend that notice unless, on application the arbitrator so decides.
There are no fixed rules for arbitration. Paragraph (c) of this clause does, however, require the arbitrator to take into account in reaching his decision any representations made by a trade union representative who is granted the right of hearing, which I have already described. As I have said, the real purpose of this amendment is to relate to trade union representation at tribunal hearings for Health and Safety at Work etc. Act provisions because there is no parallel in the Merchant Shipping Acts. I beg to move Amendment No. 3.
Lord Underhill: We naturally welcome what the Minister has said about the provision in this amendment for the representation of a trade union or a trade union representative. I should like to ask whether, in framing the nature of the amendments, the fact that the Secretary of State will have the power to select whom he wishes from the panel of trade union representatives is a matter that has been discussed with the trade unions concerned before the amendment was prepared.
Lord Lucas of Chilworth: No, in fact it has not been discussed with the trade unions. However, it was felt that, as it was the Health and Safety Executive who pressed for the inclusion of this provision, and since
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they were in constant touch with the trade unions by virtue of trade union representation in their matters, it was not necessary. If the noble Lord has any strong feeling about this matter I can of course go back to it, but, since we are applying similar provisions and then similar representation, I would hardly anticipate that there would be any disagreement.
On Question, amendment agreed to. Clause 4, as amended, agreed to.
Clause 5 [Compensation in connection with invalid prohibition notices]:
5.33 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 4:
Page 5, line 18, leave out from ("above") to end of line 24 and insert ("in the case of any prohibition notice unless the direction given in pursuance of section 2(3)(d) above expressly prohibited the departure of the ship to which the notice relates (and for this purpose the fact that any such prohibition was not to apply in certain circumstances shall be disregarded).").
The noble Lord said: This seeks to remove any doubt that there might be about the circumstances in which the Secretary of State will be liable to pay compensation in respect of loss suffered as a result of the incorrect issue of a prohibition notice or the unreasonable inclusion of a direction in the notice.
The amendment restricts liability to compensation to cases where the prohibition notice includes a direction expressly prohibiting the departure of a ship. This is because the intention was to restrict liability to compensation to cases where a notice has precisely the same effect as a detention order made under the Merchant Shipping Acts—basically the 1894 Act, but of course subsequent Acts further define this—which gives rise to a liability to compensation for unreasonable use. The Bill which we are now discussing was not intended to provide for compensation where, for example, a notice stopped the loading and unloading operation but did not prevent the departure of the ship even though it might make that departure uneconomic or even require the use of alternative equipment.
It might be as well at this point if I emphasise, as I did on Second Reading, that marine surveyors approach their work with a good deal of care and there is a very good accord and very good relations between the shipping industry and surveyors. One would not anticipate any difficulty in this matter. The amendment seeks to ensure that there is complete understanding. The amendment is designed to remove any doubt about the circumstances in which the Secretary of State will be liable to pay compensation as a result of an invalid issue of a notice. Unless the noble Lord, Lord Underhill, has any particular question, I do not think that I can add to my explanation. My Lords, I beg to move.
On Question, amendment agreed to.
Clause 5, as amended, agreed to.
Clauses 6 to 8 agreed to.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 5:
[Printed earlier.]
The noble Lord said: I spoke to this amendment when we began our proceedings. I beg to move.
On Question, amendment agreed to. Clauses 9 and 10 agreed to.
Clause 11 [Ascertainment of limitation tonnage]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 6:
[Printed earlier.]
On Question, amendment agreed to.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 7:
[Printed earlier.]
On Question, amendment agreed to.
On Question, Whether Clause 11, as amended, shall stand part of the Bill?
5.39 p.m.
Lord Underhill: This is the second clause upon which I said that I had questions to ask the Minister. Clause 11 amends legislation by introducing a new definition of "limitation tonnage". Again I found the Notes on Clauses dealing with Part II extremely helpful; they certainly threw some light on what is a very complicated and technical matter. However, they include an explanation of problems that might arise if there was immediate implementation of the 1969 tonnage convention and they set out transitional arrangements. I should like to ask the Minister where in the Bill there is any provision for these transitional arrangements.
Then I find that paragraph 8 of the notes dealing with Part II reads as follows:
"Notwithstanding the above transitional arrangements, it has been confirmed in discussions in the International Maritime Organisation that the tonnage to be used in calculating limitation amounts under both the 1957 Limitation Convention and the 1969 Civil Liability Convention will continue to be the tonnage as originally defined, and that introduction of a new limitation tonnage based on the 1969 Tonnage Convention for limitation purposes will await entry into force of revised conventions".
My second question is this. Where in the Bill is there any provision for this? In fact, lacking legal knowledge, we might have had our legal luminaries present for this particular Bill as well as the previous one. Where is there mention of transitional arrangements, where is there provision for what I have just quoted, or are these matters covered in other legislation apart from the Bill which is now before us?
Lord Lucas of Chilworth: I am grateful to the noble Lord, Lord Underhill, for advising me that he might very well raise this matter. However, I cannot thank him for inviting our legal luminaries to help the Committee because if they did I think that we might be here a long time. I am no lawyer, but I think that I can explain this comparatively simply. The transitional arrangements to which the noble Lord refers are those arrangements under the 1969 convention for the physical measurement of ships. This measurement is required for such purposes as harbour dues, port dues, pilotage fees—the day-to-day needs relative to a ship, including where it goes and, obviously, from where it has come.
In the 1969 convention there is a transitional period of 12 years under which the various measurements are acceptable. I think that there is perhaps some confusion in the Notes to which the noble Lord referred, in that the transitional arrangements are those contained within the convention. Therefore, it would not be appropriate for domestic legislation to
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embrace any specific transition. United Kingdom law provides for acceptance of the convention.
As regards limitation tonnage to which the noble Lord referred, this deals specifically with liability. In fact, I could embark on a very long explanation about this, which is both technical and legal. However, it might be more helpful to the Committee if I say that the question that might arise under the matter of limited tonnage dealing with liability is very rarely called into play. In fact, I understand that about a score of cases have come before the courts in the last 10 years. Therefore, it has not been thought that transitional arrangements in this regard have been necessary. I can assure the noble Lord, Lord Underhill, that shipping interests have been consulted on this question of limitation tonnage, and they do not regard the proposals as imposing a burden on the industry.
Future legislation might very well provide for further regulations with regard to oil pollution in implementing the Civil Liability Convention. However, I think that I could best serve the Committee, and indeed the noble Lord, Lord Underhill, by sending him the rather long three-page explanation of why this transitional arrangement is not necessary, and the existing provisions. However, if the Committee want me to go further into the matter this afternoon, of course I shall be perfectly happy to do so. But I can give the noble Lord an assurance that the industry is perfectly happy, and that there are very few cases which have occurred over the last 10 years. I shall send him a further and more detailed explanation and no doubt he will invite me to comment before we reach the next stage of the Bill, if that is necessary.
Lord Underhill: I am grateful to the noble Lord. Clause 11, as amended, agreed to.
Clause 12 agreed to.
Clause 13 [Citation, construction, repeals, commencement and extent]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 8:
[Printed earlier.]
On Question, amendment agreed to.
Clause 13, as amended, agreed to.
Schedule 1 [Relevant statutory provisions for the purposes of Part I]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 9:
[Printed earlier.]
The noble Lord said: I spoke to this amendment in dealing with Amendment No. 1 and the other series of amendments. I beg to move.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Remaining Schedule agreed to.
In the Title:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 10:
[Printed earlier.]
The noble Lord said: I gave the Committee an explanation of this amendment when I dealt with this very large, long group of amendments all dealing with hovercraft. I do not ithink that I can add anything to that. I beg to move.
On Question, amendment agreed to.
The Title, as amended, agreed to.
House resumed: Bill reported with the amendments.

British Museum Act 1963 (Amendment)Bill [H.L.]
5.49 p.m.
Lord Jenkins of Putney: My Lords, I beg to move that this Bill be now read a second time. A little time ago—indeed, it seems quite a long time ago—on another measure the noble Lord, Lord Cockfield, was enunciating from the Government Front Bench the general proposition, to which the Government are devoted, that wherever possible powers shall be exercised by bodies other than the Government. As this is a measure which seeks to do just that, I am hopeful for a smile from the Government Front Bench from the noble Earl, Lord Gowrie, in accordance with the views expressed by his colleague on the previous measure. I see that we have a smile to start with; let us hope that it will continue throughout the proceedings.
This Bill seeks to amend the British Museum Act 1963 to extend the powers of the trustees of the British Museum so that international resolutions and obligations may be complied with. In pursuance of that object it amends Section 5 of the Act—which deals with the question of disposal of objects—to extend the powers of the trustees in this fashion. It adds an additional power to dispose of an object; that is to say, let it go from the collection, if—and I quote from the Bill—
"in the opinion of the Trustees it is desirable that, in fulfilment of international obligations, an object shall be returned to its country of origin".
It gives the trustees this extra responsibility.
Section 5 of the Act lays down the existing powers of the trustees in relation to disposal of objects. They may dispose of a duplicate. Now with modern methods of reproduction an object can be produced which only an expert can distinguish from the original. Therefore, one might say that they could reproduce the Elgin Marbles, and then send either the original or the reproduction to Greece, or perhaps some of each and no one would know—but I would wager that there would be an unholy row, so that is really no solution.
It works, however, in the case of the famous head of Queen Nefertiti, which is exchanged regularly between Berlin and Cairo, and substituted when absent by a reproduction. Even to carry out such an exchange convincingly the trustees would need to have the
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power to do it, whether or not they exercised it. Whether they exercised it fully, partially, or not at all they would need to have that power, and it is precisely that power which at the moment they do not possess. This Bill is intended to give them that power.
At present the trustees can only dispose of old printed matter of which they hold a copy. They also dispose of coins, although there may be some slight doubt as to whether they are in breach of the law in doing so. But they may dispose of nothing else other than objects unfit to be retained in their collection. They are hardly trustees at all in this respect, but mere appointees of the Government. This Bill frees the trustees. It gives them extra dignity and extra responsibility. That is why I originally wanted to call it the British Museum Trustees Liberation Bill, but I was told that a less dramatic title might be more appropriate, and so it is the rather prosaic measure now before us, but the contents are the same.
It may be argued in this discussion that the trustees do not want to be liberated. Certainly the director, Dr. Wilson, might perhaps be described as an old lag who clings to his legislative prisonwalls and dreads the fresh air of freedom. When he was before the Public Accounts Committee two years ago he brandished his shackles. Before the Public Accounts Committee on 18th March 1981, Dr. Wilson said:
"We are strictly forbidden by Act of Parliament from disposing of anything but duplicate material".
He was pressed a little by a member of the committee:
"Is it that Act of Parliament which prevents the Elgin marbles from being restored to Greece'?"
Dr. Wilson answered:
"I do not know whether it is that Act of Parliament".
He said:
"I think the answer is that it is a very useful thing in our negotiations with foreign countries".
One can understand that, but it might be thought that it is not particularly noble.
In the post-war years, if I may fill a little background, newly independent and liberated countries developed an understandable passion to establish, or to re-establish, their own cultural heritage. But it was not until 1976 that the United Nations Educational, Scientific and Cultural Organisation decided to set up an inter-governmental committee to seek ways and means of restoring cultural property to countries of origin.
In 1977 UNESCO appealed to the International Council of Museums to help in the task. An ICOM sub-committee examined the subject exhaustively, and referred to,
"The reassembly of dispersed heritage through restitution or return of objects which are of major importance for the cultural identity and history of countries having been deprived thereof"—
and those words are extremely important, because I think they remove the fears which have been expressed that once one returns one thing one has to return everything. It applies only to objects which are of
"major importance for the cultural identity and history of countries having been deprived thereof [which] is now considered to be an ethical principle recognised and affirmed by the major international organisations. This principle will soon become an element in the jus cogens of international relations".
That is not a body which knows nothing about it. It is the International Council of Museums. It is they

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who are saying, "We think that this is right. These adjustments must be made. This restoration, this redistribution, this return must be carried out".
In 1979 the General Assembly of the United Nations gave the go ahead to UNESCO, and in the following year the inter-governmental committee held its first session. In 1981 the General Assembly received a UNESCO report that the work was actively in hand. The convention prohibiting illicit traffic in cultural property has now been ratified by 50 countries, and a beginning was being made in trying to create a more informed public. Among other things, the committee approved the return to Yemen by the Wellcome Institute of London of a collection of archaeological items. The committee also recognised the importance of adequate museum facilities in countries requesting the return of cultural property.
Historically, although plunder has commonly been practised it has often been condemned right from Polybius through Cicero, Charlemagne and Richelieu right up to Napoleon, who broke the generally good record of the French, who were forced at the Congress of Vienna to put into effect a massive restitution. This policy was also enforced against Germany in both world wars. In 1943 the declaration included not only plunder but "apparently legal transactions".
It is important to emphasise that we are not here concerned with things which have been stolen, although we are able to say that we alone of all countries have never plundered another country in the course of our history. In the natural course of events of course we have, but many of the objects we now possess have been legitimately acquired. Sometimes they have been partly legitimately acquired. Therefore, we are not concerned only with plunder, and certainly we are not concerned with plunder if we are thinking at the moment of the Elgin Marbles. But Britain, not having been conquered and occupied since 1066, has never been the subject of compulsory restitution. Therefore, we probably have more objects from other parts of the world than any other country.
Recent developments include, as I have said, an agreement for the celebrated masterpiece, the head of Queen Nefertiti, to be shown in turn in Berlin and Cairo, and for reproductions to replace it while it is away. The efforts of Nigeria to secure the return of the famous Benin works from Britain and elsewhere have been less successful. Similarly, while some important pieces have been returned to Sri Lanka, much of the cultural heritage of that country remains in London and in other Western capitals. Australia, on the other hand, has returned many works to Papua New Guinea and other Pacific islands; Belgium has concluded a restitution agreement with Zaire, which includes generous aid; Holland has made similar arrangements with Indonesia, and France with India and Thailand. In the United States individual agreements have been made by United States museums with Latin American countries for the restitution and exchange of objects.
In all this Britain has given the impression of dragging her feet, to say the least, and the Greek Government's request for the return of the Elgin Marbles should be seen against this background. One of our problems is that the fact that the British Museum can return nothing has set the general pattern
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for us. Other museums, which are not under a similar prohibition, are disposed to take their pattern and their behaviour in this matter from our premier museum—I hardly dare call it that, but I will risk it.
What, then, should we do? It is not enough to say that the whole world can come to Britain and see its heritage cared for here, nor even to plead that, but for our ancestors, these precious objects might not now exist, though that may be true. If our Crown Jewels were located in a Greek or Sri Lankan museum gratitude would not be the first emotion to surge into British breasts. We should not be greatly mollified to be told that we could always pop over to have a look. "What we have we hold" was never a particularly noble sentiment and it is time that our authorities caught up with the more outstanding and generous attitude that many other countries are showing. Arguments about title are internationally discredited in a world in which the "haves" are generally behaving deplorably towards the "have-nots". Restitution of cultural property would feed no starving children, but it might point the way, for, as Oscar Wilde said, "life imitates art".
On 2nd August this year The Times reported:
"The International Council of Museums yesterday passed a resolution supporting the claim by the Greek Government for the return of the Elgin Marbles, which are in the British Museum.
"At its conference at the Barbican Centre in London, the council called for the return of cultural property to its countries of origin.
"Although no specific names or examples were mentioned in the gneral resolution, Dr. Yannis Tzedakis, director of the Department of Antiquities at the Ministry of Culture in Athens, described the decision as a 'moral victory for us'."
The resolution was one of the few that were put to the conference which was attended by nearly 1,000 museum representatives from all over the world. It was the only one that generated any considerable discussion. When the vote was taken it was carried nemine contradicente, but the British representatives were among a handful who abstained. There were no votes against.
In spite of that this is not a Bill to return the Elgin Marbles to Greece. It is, perhaps, an enabling Bill. The standing of the Anglo-Saxon countries is not as high as it might be in the rest of the world. Here is an opportunity for us to abandon the role of international Scrooge. I ask your Lordships to give the Bill a Second Reading. Noble Lords may wish to discuss it further in the later stages of the Bill. Some may wish to strengthen it; others might wish to weaken it, but I ask your Lordships to give it a chance; and I beg to move.
Moved, That the Bill be now read a second time.—(Lord Jenkins of Putney.)
6.6 p.m.
Lord Nugent of Guildford Lord Nugent of Guildford rose to move, as an amendment to the motion, That the Bill be now read a second time, to leave out ("now") and insert at the end ("this day six months"),
The noble lord said: My Lords, I beg to move the amendment in my name on the Order Paper. I begin by explaining to the noble Lord, Lord Jenkins of Putney, as he well knows, that the procedural device of an amendment in this form is no disrespect to him. Indeed, I have listened to his speech with great interest.

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I congratulate him on the wide research he has made and the convincing manner in which he has put it to the House.
The Bill is of such simplicity. It is a Bill simply to give power to the British Museum trustees to return such objects as they think desirable to the countries of origin. It might be convenient to your Lordships if we were to deal with the main issue today. The matter has been discussed for some months now and there is some anxiety hanging over the trustees of the British Museum as to whether the Bill might proceed and go on the statute book. It would be the best thing for the trustees and the British Museum if that anxiety could be settled tonight, one way or the other.
I do not propose to take up more than one or two of the many important points which the noble Lord made. I am sure that the trustees, some of whom are noble Lords who will speak in the debate, will deal with such points as that which the noble Lord cleverly made about the exchange arrangements between Berlin and Cairo which the Germans have for the bust of Nefertiti, which sound very attractive. However there are considerable technical problems involved in moving these very precious objects of sculpture about from one part of the world to another, which might be seen as very objectionable. I shall do no more than say that I hope that noble Lords will feel it is reasonable, in view of the simplicity of the Bill, that we should try to deal with it tonight.
First, from myself and possibly from every noble Lord in the House, there is a great deal of sympathy for the Greek Government and people. Those of us who visit the country on holiday, and many noble Lords who had the advantage of a classical education, will know the sad history of Greece in latter centuries; how many of her treasures have been lost. One has to do no more than sail in a cruise ship along the Mediterranean coast of Turkey to see the remains of the magnificent Greek cities in the hands of Turkey and not in Greek possession. One feels great sympathy with the Greeks in their efforts to try to recover some of their great heritage. We acknowledge our debt to classical Greek culture, learning and art in the wonderful heritage they left for the world.
It is against that background that one looks at a measure such as this to see just what it would mean and whether it would be possible to do what the noble Lord's Bill asks for, to enable the Elgin Marbles, particularly, to be returned.
I shall make a short speech because no one wants long ones at this time of night. First I should like to deal with the legal ownership. The noble Lord wisely did not touch on that, but for the interest of the general public it should be set squarely on the record that Lord Elgin acquired the Marbles in the first place entirely legally. At that time, the Greek nation was part of the Ottoman Empire. Therefore, the Greeks were under the rule of the Turkish Government and the Turkish authorities ruled everything in Athens. It was from them that Lord Elgin obtained the necessary licence to acquire the Marbles. Lord Elgin shipped them to England. He sold them to the British Government, who gave them to the British Museum and, as a matter of historical interest, the House of Commons set up a
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Select Committee in 1816 to investigate the acquisition of the Marbles and found that they had indeed been legitimately acquired. They advised the Government to pay Lord Elgin £35,000 for them—which is about half of what it had cost him to ship them to England, and he was very considerably out of pocket on it. But the point of it is that the legal ownership is beyond all doubt.
My Lords, I turn to the morality of the acquisition and the custody of the Elgin Marbles. The first point that must be made is that Lord Elgin's motive was, without any doubt, the preservation of the Elgin Marbles. In 1800, the Parthenon was a ruin. It had been mainly wrecked in the engagement by the Venetian Navy against the Ottoman Empire in 1687, when a shell hit the Parthenon, which was being used as a gunpowder magazine, and the whole thing was blown up. Nothing had been done to it since. The Turkish garrison occupied the Acropolis and the Marbles lay about and were completely unprotected. It was freely used by the Turks as a quarry for building materials, so that if Lord Elgin had not acquired the Marbles they might very well not exist at all today; and, if they did exist there would not be very much of them. So it is really a matter of fact that the Marbles exist today, and in good condition, because Lord Elgin rescued them from their precarious situation, since when the British Museum has cared for them with expert care for nearly two centuries.
In this context, there are two further points that I should make. The British Museum's conservation laboratory is foremost in the world in its techniques of protecting these ancient treasures against adverse environments and has played a major part in conserving the condition of the Elgin Marbles so significantly better than the Marbles which remain on the Acropolis. The second point that I must make—and it is really the main one; and I am sure that the trustees will refer to it—is the case for the existence of the great international museums. There are not many of them either in Europe or in America. They display works of art and learning and objects of archaeological interest collected from all over the world. There are very few such museums and galleries, as I say, and they perform a service to mankind of enlightenment and enjoyment of inestimable value.
In this context the British Museum is outstanding. Its exhibits are superbly shown, the Elgin Marbles in particular in the Duveen Gallery. They can be seen freely throughout the year and they are available at all times. It is a fact that the British Museum's collection of works of art and learning spans not only the geography of the world but literally the millennia of human civilisation, so that the scope for research work on art and matters of learning and for education, both directly and for comparative purposes, which is a vital aspect of it, is of unique value and is drawn upon by schools and students who come not only from here at home but from all over the world to study them.
All this would be set at risk if the British Museum were given the power to dispose of its major treasures like the Elgin Marbles. Here is my last point on this. If they had such a power, if the Elgin Marbles went back to Athens, that would be a precedent. Who would follow? Nobody can say how many other requests that they

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would have from all over the world, and, in the process, this marvellous collection, which performs such a great service for the community as a whole, international as well as national, would be progressively dismantled—a loss which would be unsustainable. In passing, I should like to pay my tribute to the trustees, both the present and the past, for the really marvellous job they have done over the years and centuries in looking after their treasures in the way they do.
My Lords, I turn to my conclusion. I was going to mention the difficulty of the mechanics of dealing with other applications but I think that would really be inappropriate now. I have not argued that the rights of property are sacred and immutable. I am not one of those who thinks so and I think that between individuals we are free to give our property away if we feel like it; and occasionally there are acts of spontaneous generosity between individuals which I think are entirely praiseworthy. But the perspective changes in the case of a great national institution like the British Museum which has a responsibility to the general public, international as well as national. They cannot give away their treasures without injury to the viewing and studying public; and this is their trusteeship. Their long record of custody and conservation since the beginning of the century has provided education and enjoyment to millions of people of all nationalities. This must weigh heavily in the balance in favour of their continuing trusteeship. I would say that the balance of the moral argument is against disposal and therefore I invite noble Lords to support my amendment and reject the Bill. I beg to move the amendment standing my name.
Moved, as an amendment to the Motion, That the Bill be now read a second time, to leave out ("now") and insert at the end ("this day six months").—(Lord Nugent of Guildford.)
6.18 p. m.
Lord Trend: My Lords, I realise that somebody who has spent the greater part of his professional life as virtually a Trappist has to seek a more than usual measure of indulgence when addressing your Lordships for the first time. I shall try not to detain the House for very long. I also realise that I must not be unduly controversial. I hope that your Lordships will forgive me if the odd note of controversy does creep in now and then because, speaking as the chairman of the trustees of the British Museum, I can hardly wholeheartedly commend the noble Lord's Bill; but I am very grateful to him nevertheless for giving me the chance to put on record the view of the trustees about this Bill.
It is of course that they oppose it and they oppose it because they regard it as potentially damaging, perhaps irreparably damaging, to their main function as they see it, the function of maintaining and enhancing a great universal museum—one of the greatest, if not the greatest, of the universal museums of the world. I emphasise the word "universal" because, although I think that there is no dispute about the excellence and the international reputation of the various individual collections in the museum—the Egyptian antiquities, the Classical antiquities, the mediaeval and modern collections, and so forth—and
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although they have to be administered for obvious practical reasons as largely separate or self-contained collections, nevertheless the museum is more than the sum of those individual collections. It aims to present an integrated picture of the stages in the development of various civilisations of the world and their indebtedness one to another, and it has the kind of physical integrity which comes from that kind of concept of human history.
It is that concept, the integrity of the museum, of which the trustees are proud to be custodians. They bring to their task considerable qualifications of their own and I am very happy and very proud to be able to pay a tribute to them. They bring expert knowledge of their various fields of scholarship, great enthusiasm and great devotion to the public service of the museum. And there is one other thing, which I think is more important than all, and that is the kind of independent critical judgment which you can only form when you are not under any kind of extraneous pressure, when your judgment owes nothing to any other consideration save your own duty to do your best for the institution that you serve.
In that sense, the trustees, too, have their integrity—an integrity of purpose which is in a sense the obverse of the physical integrity of the museum. They are two sides of the one coin. But of course the integrity of purpose of the trustees is dependent, and critically dependent, on the legal provision which for more than 200 years has prohibited them from permanently disposing of any of the objects in their care except exact replicas. It is that provision which for more than two centuries has preserved them from the random caprice of aesthetic taste, of fashion, moralistic judgments and—even more important—the fluctuations of political pressure, unpredictable, random and varying from day to day. Without that protection the trustees could not maintain the integrity of the museum; and if the integrity of the British Museum goes what will happen to other great collections in this country? I beg your Lordships to remember that it is no use saying that it is only in the most exceptional circumstances that the trustees would be expected to avail themselves of this new discretion that this Bill would give them. As we all know, it is the exception which proves the rule, and under the pressure of being proved the rule can break.
It seems particularly unfortunate and particularly untimely that this proposal should be made at this moment, just when the pressure for what is called the restitution of cultural objects is beginning to mount once again and when we have just had the latest example in the demand now officially made by the Greek Government for the return of the sculptures from the Parthenon which we popularly know as the Elgin Marbles.
The Elgin Marbles are I suppose one of the best known, the greatest and most widely loved of all the treasures in the museum; and in so far as they exemplify in a unique way the aesthetic genius of classical antiquity to which all subsequent civilisations have owed so much, one might have thought that it was particularly appropriate that they should be accommodated in a museum devoted to the history of humankind, in a gallery specially built for them and specially equipped to maintain the right conditions for

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their conservation, and in a museum where, together with many other treasures, they are available without charge seven days a week, 52 weeks in the year to over 3 million visitors a year coming from all quarters of the globe and extending from, at one extreme, the scholar anxious to verify some abstruse academic point, to—at the other extreme—the ordinary member of the public anxious simply to know a little more about the roots from which he sprang and to gain pleasure and enjoyment in doing so.
Are we really to put all those treasures at risk? If so, why? The Bill, I see, speaks of "international obligations". It is not for me to comment on that point but I would only say that I am not conscious of any obligation accepted by Her Majesty's Government which would be binding on the trustees in this sense. On the contrary, so far as I know, the Government have always said that it is the maintenance of the great international collections of the world which does most to promote cultural understanding, and I hope they will continue to say so.
No, my Lords, I think it is something rather different which underlies this Bill. I think it is a feeling—not easy to define but one which we all recognise—that in some mysterious way the great cultural objects of the world belong, necessarily and properly, where they began. I think that the imagination—at least my imagination—boggles if I contemplate the probable practical results if that kind of historicism were pressed to its logical conclusion. But whatever one thinks of the practical consequences, the argument seems to me to ignore the changes which history itself has wrought since the objects began their life—changes in the territorial boundaries of the countries concerned, in the ethnic composition of their populations and in the whole concept of legal entitlement and ownership. You cannot unravel history in that way with any prospect of a result which would be accepted as just and right.
But the argument seems to me to ignore something else even more fundamental. It ignores the whole ethos of the British Museum and the spirit in which its trustees administer it. It is I think a little ironical that if I search round for words in which to summarise that ethos I cannot think of any words better than those which Pericles himself used, just about the time when the sculptures were newly shown on the Acropolis, when he reminded the Athenians in his great funeral oration that they should not grieve for their dead too deeply because the whole world is the tomb of famous men.
I think perhaps the words are timely to remind us that there is a sense in which the British Museum is a microcosm of the whole world, and its great collections certainly recognise no arbitrary boundaries of time and space in their homage to the great achievements of the human spirit. It is for that reason that the trustees would regard it as nothing less than a betrayal of their trust to create a precedent for the piecemeal dismemberment of their collection, and it is for that reason that I must hope very much that your Lordships will reject the Bill.
6.30 p.m.
Viscount Eccles: My Lords, as a former chairman of the trustees of the British Museum, I have an interest to declare and I am very glad of it, because it enables me to say with special warmth to the noble Lord, Lord Trend, that we found his speech moving and entirely convincing. The noble Lord described himself as a Trappist. He was secretary of the Cabinet when I had the honour of sitting there. He was not always a Trappist. But he rendered great service to his country in administration, afterwards at Lincoln College and at the British Museum. For all those reasons, we do not wish him to look upon himself as a Trappist, but to come here rather more often and make many more speeches like he made today.
I had some part in Section 5 of the 1963 Act and the restrictions on the disposal of the objects were very strictly drawn under the leadership of the late Lord Crawford and Balcarres. I think it is true to say that at that time and ever since the trustees have accepted those restrictions as something which, as the noble Lord, Lord Trend, himself said, define the character of their trust.
I shall not add anything to the story of the Elgin Marbles, nor will I follow the noble Lord, Lord Jenkins, in his reference to the resolutions of UNESCO, which is the most wasteful and sloppy agency of the United Nations. I would rather direct my few remarks to the general question: should claims for the return of objects of art put forward by an international body, or for that matter by anybody else, be encouraged? Should there be some rule or convention which might lead to the success of such claims? No one would make such claims for music or literature. Mozart or Homer can be printed, translated and performed everywhere and anywhere. Ah! but it is said that the visual arts are different because they are physical objects. They can be in only one place at one time.
As your Lordships will have observed in the nursery, when children snatch each other's toys the change of ownership gives rise to strong feelings; and in the field which we are discussing these feelings are now sometimes of a rousing political nature. When that happens, reason flies out of the window and it is very easy to forget that the place where a great work of art is kept is less important than its careful preservation, its accessibility to a wide public and its immortal power to elevate the human spirit.
The popular campaigns which lie behind the Bill now before us are quite new. In classical times, it was taken for granted that the great works of Greece should be exported to Rome and the rest of the empire. In the Middle Ages, bishops and princes vied with each other to secure the best works of art from all Europe. The Church at that time recognised art as the most powerful communicator of her message and art was also seen, and it still is, to be an unrivalled source of prestige. The power to communicate and to glorify accounts for the continuing universal appeal of great works of art.
When I go round the Greek and Roman galleries at the British Museum I am always amazed at the way in which visitors, who appear not to know a single word of each other's language, are moved by the same work

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of art and in the same way. You can feel that you belong—all of you—to one world and that is what art can do. As has been said, because art has this dual power of communicating and glorifying, one understands the distress of a country on losing objects which have meant much to it in its history. But all countries have histories. The rise and fall of empires fashions the rhythm of civilisation. Works of art always have moved and always will move, in step with that rhythm. It is not a crime that each succeeding centre of power should be passionate to possess rare and beautiful objects. Indeed, had this acquisitive instinct not been continually at work at different times and in different places, many a great painting or statue would have been lost, thrown on the scrap heap or damaged beyond recognition.
Your Lordships know that great collections are formed by great wealth,and wealth does not stay in the same place. Over the centuries, power has moved broadly speaking, from East to West, from Asia through Europe across the Channel to Great Britain and on over the Atlantic to North America, and there is no reason to suppose that the movement will stop there. The fact is that the tides of history are irreversible.
I ask your Lordships to consider for a moment a famous example in Europe—the still glorious but dilapidated city of Venice, once the Queen of the Sea. In the 9th century, the Venetians deliberately stole the body of St. Mark from Alexandria. Having secured their patron saint, they proceeded to loot or otherwise acquire from Byzantium marble lions, bronze horses and all kinds of precious stones and metals; and, let us be honest, none of us has ever deplored that great tale of smash and grab. We have never said that it was a blot on the history of mankind. Why now, then, should we approve if Egypt were to ask for the return of the saint's bones, or ought we go to UNESCO and make speeches, hands on hearts, asking the Turks to send an enchantress to Venice to plead for the return of the bronze horses?
The fact of the matter is that the movement of wealth from one country to another is something to be accepted with fewer regrets because it gives expression to the universality of art. It proves what all artists have said, that art knows no national boundaries. They have always wanted to learn from the art of all continents and all ages. Henry Moore tells us that as a young man he greatly profited from the study of Cycladic figures in the British Museum. If those figures had never been allowed out of Greece, he might never have seen them. Today we are proud that his works, inspired in many instances by the Greek examples, are treasured and collected all round the world. I hope that the time will never come when we ask for them back.
I am urging your Lordships to think of works of art as messengers of civilisation and friendship. Those great objectives, as we all know, are promoted when men and women can move about the world freely, getting to know each other and sharing each other's traditions and culture. It should be the same with works of art, for they are the expression of human personality. They extend our knowledge of each other and they bring us together. Passports, visas, export licences are the insignia of a divided world. This Bill is
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reactionary because it would hold up the march of civilisation, which none of us can hope to do.
No doubt from time to time we can do a little to alter for the better the course of human affairs; but neither priests nor princes nor parliaments can ever diminish the universal appeal of art. Like others, I salute the ancient Greeks for their wonderful history, but the Greeks of the 20th century should know that we, too, have a history. Part of our history is expressed in our admiration for their art. We should not open the door to political campaigns for the return of works fairly acquired and now splendidly cared for. I hope your Lordships will support the amendment so ably moved by my noble friend who sits next to me.
6.42 p.m.
Lord Adrian: My Lords, first I should very much like to thank the noble Lord, Lord Trend, and to congratulate him upon his splendid maiden speech. It was everything that we might have expected—and which I most certainly expected, having sat with very great enjoyment under his wise chairmanship of the British Museum Trustees. We are very lucky to have had the benefit of his speech this evening. I am sure that I express the view of the whole House when I say that we would wish to hear him again very soon. That he has chosen this debate in which to break his vow of silence indicates the seriousness of the issues that we are discussing.
Like several noble Lords who have spoken this evening and who are to speak, I have to declare at the outset that I am a trustee of the British Museum. I am appointed so, not by the Government—and therefore am not a Government lackey—but by the Royal Society. But that in itself is a limitation, for I fear that I shall not be able to beguile your Lordships with a learned speech, of the kind we have already heard. Nevertheless, I wish to say that I do not propose to support the Bill which is before the House, and I very much hope that the amendment to it will be supported.
I cannot attempt to repeat what has been said already, although it is obvious that I agree very largely with it. At this stage I merely wish to put on record my surprise that so very major a change in the nation's policy towards the great treasures of which it finds itself guardian should have been put in train with apparently so little consultaion. It is perhaps the more surprising that these proposals come to us from the noble Lord, Lord Jenkins of Putney, who was himself at one time responsible for our national museums as Minister for the Arts, even though he has spoken so persuasively of his wider sympathies.
As has been said, for nearly 230 years—and the position was confirmed in the 1963 Bill—it was the nation's policy that objects in the British Museum were vested in the trustees, and the trustees were quite explicitly denied the right to give away the objects in their trust. Now the trustees are to be invited to give them away when they feel like it and in accordance with international obligations—obligations, presumably, to be entered into by the Foreign Office. From being charged with the care of the nation's treasures we are being asked to become brokers in the international goodwill trade.

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Whether we like it or not, if such is the nation's decision we shall, of course, have to implement it, but it seems to me that the trustees should be given more guidance as to how they should carry out this task of sending back so many of the finest things in the museum. Are we, for instance, to be encouraged to give away an object which comes to the museum as a specific bequest from a generous benefactor? Are we to give away an object which has been allotted to the museum in lieu of capital taxes? May we give away, if we think fit, an object whose purchase has been greatly assisted by the National Heritage Fund? Has the Treasury anything to say about the proposal to give away objects purchased with taxpayers' money, let alone with a special parliamentary grant? What shall we do if two nations claim the same object? One might, for instance, suggest sculpture imported from Italy but made in a Greek colony there. Are Hellenistic sculptures from Asia Minor to go to Greece or to Turkey?
The complexities inherent in what has become known as the return of cultural heritage are enormous. As has been mentioned, pressure on museums for return is undoubtedly mounting in UNESCO and in many countries. It seems to me that the present position of the British Museum is clear and that such returns are at the moment outside the law. The nation, through Parliament, may decide otherwise, but I do not believe it should do so without very carefully considering the consequences and the complexities. Until that has been done we should not encourage the pillaging of the world's great museums.
This brief but, for all its brevity, mischievous Bill would do just that and I hope that your Lordships will not give it your support.
6.47 p.m.
Lord Windlesham: My Lords, my lack of enthusiasm for this Bill has been mitigated only by the fact that it has given us the opportunity to hear the maiden speech of the noble Lord, Lord Trend. In his speech he displayed those qualities of wisdom and experience which have been so conspicuous to those who have worked with him at various times in his distinguished public career. I, like the noble Lord, Lord Adrian, share the privilege of serving under Lord Trend's chairmanship as a trustee of the British Museum. It is for that reason that I intervene, quite briefly, in the debate this evening.
I should like to say—and I believe this view will be shared by my present colleagues as well as by past trustees—that I have found it to be a most rewarding experience to be a trustee of the British Museum. Despite its outward appearance, the British Museum is not just a showcase for the display of an immense and varied collection of works of art and antiquity, gathered from all over the world. It is all that, and it is the aim to attract as many visitors as possible. Last year there were over 3 million visitors in total. The museum is open seven days a week, access is free, and great efforts are made to display the objects in the museum's collection in the most effective way and to make them known as widely as possible.
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However, the museum is also a place of learning. It is a place where knowledge is acquired and where knowledge is disseminated: about how people lived in the past; what their values were; how cultures arose and declined. There is a universal quality to this learning, this tradition of enlightenment—the word used by my noble friend Lord Nugent of Guildford—which matches the contents of the collections upon which it is based. The two together do have an integrity. The expression of the noble Lord, Lord Trend, was exactly the right one. There is an integrity about the collection and the tradition of learning. The whole is greater than the individual parts.
For centuries, the British Museum has been a universal institution of the front rank and one in which successive generations have taken great pride. Moreover, it has been a peculiarly British growth, different from comparable institutions in other parts of the world, where indeed there are comparable institutions. It is a public institution funded out of general taxation, but it is not controlled by Ministers or by Whitehall departments. On the contrary, it is controlled by independent trustees; some appointed by the Prime Minister, some appointed by learned societies, and some co-opted by the trustees themselves—each of whom has a recognisable obligation to do what he believes is in the best interests of the museum.
It is not always as easy as it may sound to withstand pressures on any institution, and the British Museum is no exception. There will invariably be political or other pressures on the contents of the collection; pressures towards disposal for reasons which seem compelling to those who put them forward. Restitution is the pressure today. If I may say so, I thought that the noble Lord, Lord Jenkins of Putney, spoke eloquently and put the case as effectively as it is possible to put it in favour of restitution. It is a case I do not accept, for reasons similar to those advanced by my noble friend Lord Eccles. But restitution is undoubtedly the pressure of today.
At other times pressures may exist to sell some parts of the collection. When money is short and is needed for buildings, maintenance or other purposes, voices may be raised to dispose of some objects which do not seem so important, and which may not be on public display. It is said they could be sold for large sums of money to be used for the purposes of the museum. Sometimes there may be pressures for objects to be given away for the purposes of the state. There are even voices heard from time to time in favour of destroying objects because they are regarded as being offensive to fashionable sentiment or opinion.
Against all these pressures, the trustees have since 1753 been protected by legislation which has prohibited them from permanently disposing of any objects in the collection, with one or two minor exceptions which have been mentioned already in this debate. That provision was re-enacted in the British Museum Act 1963. My noble friend Lord Eccles told us that some thought was given to this provision at the time, but it was concluded that it was an essential provision. Thus Parliament decided 20 years ago that this legislation was needed for the continued protection of the contents of the museum.

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I fear that if this short amending Bill were to reach the statute book it would erode an essential provision which exists for the protection, maintenance and good health of the British Museum. Thus I do not feel able to support the Bill. My noble friend Lord Nugent of Guildford in his amendment adopted an approach which is entirely proper for this House to follow.
There is no point in having a Committee stage of a one clause Bill with a single objective. Either the House agrees with the aim of the noble Lord, Lord Jenkins of Putney, or it does not. If it does not, it should vote for the amendment proposed by my noble friend Lord Nugent of Guildford as I intend to do. Those who agree with the noble Lord, Lord Jenkins of Putney, will vote against the amendment, and that will be the end of it. For this reason I agree with my noble friend Lord Nugent of Guildford that it is desirable to dispose of this issue by a vote this evening.
6.55 p.m.
Lord Donaldson of Kingsbridge: My Lords, I thought that the exposition of the trustees would be so well informed, so interesting and so moving, that it would not be necessary for me to add to it. I did make some notes, but they would not have enabled me to make comments so elegant as those we have already heard, and so I have thrown them away. I wish to make only two points. First, I believe it is desirable that someone who is not a trustee should speak as well in opposition to this Bill. I am by nature a consumer of art rather than an artist or a collector. Up until the age of about 68, that was all that I had ever been. Then I suddenly found myself in the important and interesting position of being an administrator who could hurt or help the arts. Obviously, I tried to help them.
One of the most agreeable and, to me, rather new elements I encountered was my position as the main administrator outside the trustees of the national institutions, whose business it was to know them, know about them, to go to them frequently to have meals with them, and to talk with them. I can only say that after three years I had totally fallen in love with them. I could not let this Bill be discussed in your Lordships' House without getting up and saying, from a very ignorant and rather philistine position, which is mine, how profoundly I disagree with this Bill, if only because there is not a single director or trustee of any national institution who does agree with it.
As someone who was in a sense their spokesman for quite a long time I felt that I had to speak for them now. I shall speak for them in only two ways. The first will be by saying that nobody could have spoken for them more eloquently, elegantly, or movingly than the noble Lord, Lord Trend. We have all said so and we all think so. I only hope that he can be persuaded to speak again—but not, I hope, against an attack on his museum. I do not want to add to the various artistic and historical arguments which have been ably made, but my second point is rather different, it relates to an adjective used by the noble Lord, Lord Trend, when he said that this Bill was "untimely". When one is faced with a demand of a fundamental kind, and when one knows that the people concerned in that demand are passionately opposed to it, and when one knows that
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there has been no thorough discussion in this country as to whether the demand should be considered or not, then it is totally untimely to prejudge the issue by putting a key into a lock and opening a door.
My own view is not as extreme as that of some directors and trustees. My own view is that there must be in time certain occasions when the nation—not the museum—will say, "This demand from someone whose possession we have had for a long time is something we could reasonably meet". But I would wish for there to be national legislation on each occasion. It must be kept difficult, and there can be no question of opening the door so that this can be done at the whim of a future director, who might be sentimental, foolish, fashionable, or this, that or the other. Why should we give anyone that power? My view is that the law should remain as it is and that, if the nation ever decides that restitution of this kind should be made, such restitution should be the result of special legislation. I shall oppose this Bill by supporting the amendment.
7 p.m.
Lord Strabolgi: My Lords, I agree with the noble Lord, Lord Donaldson of Kingsbridge, that the law should really be left as it is and that these decisions should not be left to individual directors. I know this does not affect the British Museum, but I should not think there would be very many Victorian paintings left in our museums and galleries if the directors had been allowed to dispose of them in the 1930s, when in may cases the frames were worth more than the paintings. When I went to the Getty Museum this summer in California I found the most popular painting of all was an Alma-Tadema called "Spring"; a beautiful painting it is too, and that is the most popular painting in the whole of the museum. So the wheel always come full circle and it always will.
We are grateful to my noble friend for introducing this Private Member's Bill for the main reason I think that it has led to an interesting debate, and it has also provided an opportunity for the noble Lord, Lord Trend, to make, if I may say so, a most eloquent, lucid and moving maiden speech. I hope we shall have the pleasure of hearing from the noble Lord on many other occasions.
The Bill seeks to allow the trustees to return an object from the British Museum to its country of origin in fulfilment of what are described as international obligations, although this is not defined in the Bill. The Bill refers only to the British Museum and not to any other institution in the United Kingdom.
This may or may not be a laudable aim; I do not know; but I wonder if it is practicable or even desirable. Works of art have often changed hands, many times through the centuries as a result of wars and social upheavals, and indeed works of art have passed through many countries. Mention was made today by the noble Viscount, Lord Eccles, of the four bronze horses in Venice. I do not know which is their country of origin.They are Hellenistic, as has been pointed out; they have nothing to do with the Ottoman Empire, but they came from Byzantium. They have been in Italy for several hundred years. Do they belong

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to Italy, to Greece or to Turkey? I do not know and nor does anybody else.
As well as works of art from other continents, many European works of art are dispersed. One thinks of all those divided Renaissance altar pieces, the left-hand wing in one country, the right-hand wing in another, the central panel somewhere else, the predella panels scattered all over the place. Should they all be joined together, and in each case which country has the stronger claim? I do not know. There are often advantages in dispersal, too, as works of art have always exerted a tremendous cultural influence on other civilisations and countries through their circulation. As the leader of the British delegation to the UNESCO World Conference in Mexico said last year: "The maintenance of the great international collections with all their facilities for research and conservation is the right way to increase cultural understanding". With those words I fully agree.
The passing of this Bill would open the way for demands for the return of material from the British Museum—and from the British Museum alone, not from any other museum—that has been acquired over many years, and it could lead, as the noble Lord, Lord Trend, has said, to the eventual destruction of this great cultural institution. I would have thought that the provisions of this Bill would profoundly affect in particular the British Museum's Museum of Mankind that the noble Viscount, Lord Eccles, had so much to do with setting up. I should imagine this ethnographical museum would be greatly affected if there were many demands for the return of much of the material. This would be a great loss to education, as the museum plays a leading role in teaching us all, adults and children alike, about other races and countries. I remember some of the important exhibitions that have been mounted there from the museum's collections, where the objects are shown against simulated natural backgrounds.
As the noble Lord, Lord Nugent of Guildford, has said, it is clear that Lord Elgin's action saved the Parthenon Marbles. They had been much vandalised in the early Middle Ages when it was turned into a church, and then later on when it became a mosque. I understand he was so shocked by their condition that he decided to remove them. If they were to be returned to Athens in the future they would need to be kept in a museum under controlled atmospheric conditions, as in London, to protect them from the pollution in the atmosphere. So far we have heard of no plans to build such a museum in Athens. The Greek Minister of Culture has said she would like to have one, but it does not seem to have got any further than this. The idea that the marbles are going to be put back on the Parthenon is, of course, a romantic and naïve fantasy. They would go from one museum to another.
On the other hand, we understand the deep emotion—and I thought this was not sufficiently understood today in this debate, if I may say so— with which the Greeks today regard the Parthenon, and we know what an inspiration it was to them during the last war, when, as our allies, they were driving back Mussolini's armies so valiantly, and later suffering under Nazi occupation. I hope one day there may be
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a solution which could be acceptable to both Britain and Greece.
My Lords, I do not know whether there will be a Division tonight or what the noble Lord, Lord Nugent, will decide to do with his amendment. I do not agree, if I may say so, with the noble Lord, Lord Windlesham, about a Committe stage. Although the Bill is short, we have had quite a full Committee stage on short Bills before, and I think there would be advantages in discussing this in depth. I do not know what the noble Lord will do, or even what my noble friend will decide to do. All I can say is that from these Benches there is no Labour policy about this; there would be a free vote and my colleagues would be entitled to vote in any way they wished.
7.8 p.m.
The Minister of State, Privy Council Office, and Minister for the Arts (The Earl of Gowrie): My Lords, I certainly believe that this debate has been well worth while in order to listen to the maiden speech of the noble Lord, Lord Trend. When I was a young man, a distinguished figure, but not of the same sex as the noble Lord, Lord Trend, wrote a book called, I Leap over the Wall. I do hope that the noble Lord will continue to leap over the wall of his Trappist Monastery and treat us many times to the kind of cogency and wisdom we heard tonight. It is of course a convention in your Lordships' House to congratulate maiden speakers, but I can only say from the heart that that was the most distinguished such speech I have heard in recent years.
My Lords, I listened with great care and interest, of course, to the speech of the noble Lord, Lord Jenkins. As one would expect from the noble Lord personally, and from a former holder of the office of Arts Minister, he spoke very eloquently, but in my view—perhaps a prejudiced one in favour of Arts Ministers—his eloquence did not conceal a confusion of intent and a misunderstanding of the historic functions and purposes of the British Museum collection. Perhaps I may deal first with the matter of intention. The Bill would give very ill-defined and also very wide powers to the trustees of the British Museum. They would be powers in respect of unspecified and undefined international obligations which it would be left to the trustees to interpret. This is not a proper function for the trustees, and we all know the pressure they would soon face for so-called international obligations, as defined by other people, to be honoured.
The powers proposed for the trustees, moreover, are emphatically not ones they have sought. The noble Lord, Lord Trend, reminded us of that, and all other noble Lords who have spoken holding positions as trustees have reminded us of the fact as well. Indeed, we have been reminded that these proposed powers would run contrary to the purposes of the museum as an institution to preserve and make available to the whole world the heritage of man's past. The present powers of the trustees—that is to say, Section 5(1) of the 1963 Act—require them not to dispose of objects except in certain very limited and narrowly defined circumstances: for instance, where there are duplicates or the objects are of no value to the museum or, in the case of printed matter after 1850, where this can be

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photocopied. This, surely, is a correct interpretation of the conservancy role of a great institution.
The Government are aware of no general wish to change these existing powers and they do not propose to seek authority from Parliament to do so. Moreover, in the Government's view, the trustees already have international obligations which they have fulfilled since the British Museum's inception as one of the world's great museums and these international obligations do reside in their existing powers. These are the true and real responsibilities of the museum to make its outstanding collection, one of the very greatest in the world, freely available for public viewing, research and scholarship. I could not countenance a new obligation which would potentially and substantially diminish that collection and thus the museum's ability to fulfil these same responsibilities.
Having dealt with the intention of the Bill, I now come quickly to the broader question of the desirability of a Bill on the lines suggested by the noble Lord. Lord Jenkins. Should the collection be subject to claims from other countries for the return of objects when requested, on the ground that there is some so-called international obligation to do so even although those objects were legally acquired? Let us be in no doubt about the consequences. It would open the door to a flood of claims for the return of cultural property to other countries on grounds that item after item was an inalienable component, as it would be called, of their cultural or historic heritage, often dating back to a period of years or centuries before the country in question might have existed in its present form.
I do so agree with what my noble friend Lord Nugent of Guildford said on this and, once again, with the noble Lord, Lord Trend, when he said that the museum is more than the sum of its individual collections. The effect would not be confined to giving back one or two items or one or two pieces. We should be encouraging the dismantling of an incomparable collection—and not merely the collection of the British Museum but those of other museums for which similar treatment would be proposed; and not merely museums in this country but museums throughout the whole world. There would be the nightmarish or farcical set of competitive bids to which my noble friend Lord Eccles, in a speech both trenchant and moving, rightly drew attention. There would be the legal and political jungle vividly painted by the noble Lord, Lord Adrian, and endorsed from the Labour Front Bench by the noble Lord, Lord Strabolgi.
It would be quite contrary to the policies of this Government to require or expect the independent trustees of the British Museum to act in the manner suggested. The museum is an important part of our national heritage and also a visible manifestation of the cultural heritage of mankind. As I have said precisely because it is a rich and comprehensive repository of archives, such collections are held in trust not just for this country but for the whole international community. I make no apology for saying that they are held in trust for this country first and they are held in trust, as my noble friend Lord Windlesham told us, against the vagaries of sentiment or fashion.
In sum, therefore, the fact that the Government oppose amending the powers of the British Museum
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does not, of course, mean that we preclude useful discussion between the museum and other countries on various forms of international co-operation. This has always gone on and it will continue to go on. The record of the British Museum in helping to preserve the Hellenic heritage which underlies so much of Western civilisation—again, my noble friend Lord Eccles made this point—is, of course, a very proud one. It is, therefore, unnecessary to suggest that there should be new powers to undermine that record. It is inherently undesirable and a contradiction of the general powers of the trustees to give them any new power to return objects to countries of origin. This is the wrong approach to the complex problem of the best way of ensuring that the world as a whole benefits from the great works of art, culture and history. Surely the right way is to maintain the role of the institutions which safeguard those works of art and at the same time offer their own skills of conservation and research in co-operation with museums abroad. That has been the tradition of the British Museum all along and it is one that this Government fully intend to allow to continue.
I enjoy listening to the noble Lord, Lord Jenkins. He can frequently bring, as he suggested, a smile to my face even if it is on occasion only the smile on the face of the tiger defending its young. All speakers in this debate have been against the noble Lord and I do hope that your Lordships will support my noble friend Lord Nugent of Guildford if this goes to a Division and that this misconceived and, indeed, mischievous Bill will be given a quiet burial tonight.
7.18 p.m.
Lord Jenkins of Putney: My Lords, the distinction of the speakers in this debate has only been exceeded by their unanimity. However, it is to be reflected that unanimity is not the same thing as rectitude and this I think has been abundantly made clear in the course of this debate. Not of course that I do not believe that each speaker from his very profound knowledge and deep conviction is not absolutely satisfied that he has been uttering the milk of truth this evening in exactly the same manner as I am equally convinced that I have been doing precisely the same thing but from a different direction.
The noble Earl, Lord Gowrie, in referring to the intention of the Bill says that he does not like the wording. I should have thought his proper course is to support the Second Reading and amend the Bill in Committee if that is his only complaint. I think it is worth recalling that most other trustees in the world enjoy powers which the British Museum trustees are most anxious to have. It is always possible, since I think I happen to be right although being the odd man out, that they might be right in being the odd man out. But I suggest to your Lordships that there is an element of doubt in that conviction.
If the view that I am advocating could be shaken it would have been shaken by the noble Lord, Lord Trend. I join in the congratulations which have been delivered to him for a most distinguished maiden speech. He rightly said that it is not customary to be terribly controversial in a maiden speech. He is correct, and I thought that he expressed himself very properly and in no way exceeded the proper balance

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appropriate to a maiden speech. In return I am sure he will not mind me saying that I felt he defined the word "integrity" a little too tightly for this Chamber. The integrity of the museum is important and I can understand that to him it is absolutely paramount. But the integrity of this country in the world is more important and it is that integrity which is in charge of your Lordships and it is that integrity which is being challenged in the world today.
I notice that hardly a speaker referred to the position that this country is being regarded, as I said earlier, as a Scrooge of the international museums world. May I remind the noble Viscount, Lord Eccles, that, it is not only UNESCO which is concerned with this matter. The meeting which took place in the Barbican was a meeting of the International Council of Museums. What was the position of our people there? They did not vote against the resolution, which I shall place in the Library, in case noble Lords have not seen it. The resolution advocates precisely the kind of position that I have been advocating in my speech, and it is unanimous in the museum world. Our people did not have the integrity to vote against it. They abstained because they knew that in that context they would have been the odd men out as much as I have been the odd man out in this debate.
That is the position that we are in, and in my view it is not a position in which it is healthy for this country to occupy in the museum world. There is a movement all over the globe for countries which have acquired precious objects from different parts of the world to think kindly of those countries from which the objects have been taken.
Noble Lords are saying that we will not even take the minor step of allowing the trustees of the British Museum the power to make their own decisions on this point. They insist upon maintaining a legislative position in which they are unable to adopt that wider integrity, which I suggest is as much their duty as anyone else's. We must not confine ourselves. We, are, if I may suggest it, excessively inclined to be insular in this matter.
I do not think that at this stage your Lordships will want me to comment on the various speeches which have been made. They were all in their different ways speeches delivered from knowledge. I believe that there is no real need for the trustees to be anxious. No compulsion is placed upon them by this measure. No slur has been cast by me, nor is it in my mind, as regards the activities of Lord Elgin. This is not a Bill which places upon the trustees of the British Museum a duty to do any of the things which my noble friend Lord Strabolgi in the course of his speech suggested that they might be doing. It is simply a Bill which enables the trustees to do what they want to do. But the trustees say, "No, we want the law of the land to prevent us from doing what most trustees in any other part of the world are entirely free to do."
Can we not trust the trustees to continue to operate in practice the kind of sentiments which they have been showering upon us this evening? I think it wrong that they should be legislatively prevented; and of course it is always possible that a future board of trustees might take a different view. At present that would not be possible.
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The noble Viscount, Lord Eccles, suggested that there is not, and never has been, a case for the restitution of objects. I think that he has forgotten Polybius; Right from the beginning restitution has always gone hand in hand with acquisition. Let him look at Cicero, and he will find that the restitution of objects taken from different parts of the world has cultural value and a background equal to that of acquisition and display. I have quotations here, but I am not going to trouble the house with them at this time of night.
During the course of the debate we have almost been asked to believe that the retention of the Marbles will increase our friendship with the Greeks. Of course it will not. We should at least be able to be prepared to talk on the subject, and the iniquity of the current situation is that the legal position prevents the trustees from having any effective discussion on the issue. They can say, and do say, "There is nothing that we can do about it. We are prevented by law". So what is the use of talking to them when the law says that they must not do it?
What the Bill seeks to do for the trustees is to give them a degree of flexibility, and I believe that in the course of giving them that flexibility it gives them additional dignity and in no way detracts from them. The Bill is certainly not an attack on the British Museum. It is nothing of the sort; on the contrary. I should hardly wish to attack an institution which is responsible as much as any other for my own education.
In no other country in the world is there legislation to prevent museum trustees from using their own judgment; and that is what we have all these years insisted upon doing. That is what we are doing. We call them trustees, but we do not trust them; and they do not seem to want to be trusted.
I must wind up. I was just a little surprised to see the delaying amendment in the name of the noble Lord, Lord Nugent of Guildford. If this were a Bill to return the Elgin Marbles to Greece, if that is what it said, one could understand the case for an amendment of this kind. Although I believe it to be a strong case, it is certainly a matter of controversy, as has been made clear to the House tonight. The view might reasonably be taken that a period should elapse for further discussion before proceeding to Second Reading. But the Bill proposes no such thing. It simply removes an impediment. It proposes to trust the British Museum trustees, and the trustees have made it absolutely clear to us all tonight that they have not the slightest intention whatever of returning the Marbles to Greece. Certainly there would be no change on that while the existing trustees remain.
What they would not be able to say after the passage of the Bill is that they would love to conform to the developing and now generally accepted international practice; that they would like to go along with the views of international gatherings where at present they are in a minority of one, but unhappily they are prevented from doing so because of this wicked Act. That position would be removed from them, and in removing it we should reduce the sum total of British hypocrisy by a small measure.
The Bill is a step to that end. What the trustees would have to say after the passage of the Bill would simply be, "We are not going to return your Marbles because we do not think it right to do so." That is all

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that they would have to say. As I say, the Bill would make it possible for a future group of trustees to take a different view; no more than that.
Finally, I would urge the noble Lord, Lord Nugent, not to press his amendment, for what the Bill does is to take nothing away from the trustees; on the contrary, it expands their powers. At present they are not trusted enough. If they happen to think that an international resolution is right and they decide to vote for it, they are unable to act in accordance with their vote. If there is a single object in the museum that they would like to return to the country of origin, they have no power to do so.
In this day and age that cannot be right. I urge your Lordships when the matter goes to the vote to come in the Lobby and to exert your right, and indeed your duty, to consider yourselves the guardians of the integrity of this country in the international field, and not to take the narrow view which has been urged upon you with such eloquence and such distinction.
Lord Nugent of Guildford: My Lords, in speaking to my amendment in reply I should first like to congratulate the noble Lord, Lord Trend, on a maiden speech of such impressive authority and such very great interest. I think that to all of us and indeed to the noble Lord, Lord Jenkins, as well—but certainly to all supporters of the amendment who spoke—the noble Lord, Lord Trend, really did define the theme of the British Museum trustees, which is to defend the integrity of the museum. It is that integrity which makes the whole so much greater than the individual collections which the trustees, and I hope noble Lords generally, will agree should be preserved and which the Bill would inevitably progressively destroy.
I acknowledge the strength of the appeal and the sentiment of the noble Lord, Lord Jenkins of Putney. I congratulate him on his romantic heart. We have all been arguing the most rational arguments and he has developed, with great skill, the irrational ones that do touch the heart. Undoubtedly the Greeks feel very strongly, but when the noble Lord says that the trustees ought to have this additional power so that they could use their judgment over what they would part with and what they would keep, he, as an expert politician, knows as well as I do myself that these decisions really are political.
On the tapis now is a formal request from the Greek Government. So what can the trustees do except take a decision, if they have to, in a political context? It is surely wiser, in the interests of the British Museum, with its great responsibility, not just to us in this country, but with its worldwide responsibility to humanity, to defend it against pressures that really would become irresistible at times. We would thus preserve the integrity of this wonderful museum for the benefit of all.
I am sorry that I must disagree with the noble Lord, Lord Strabolgi, who asked me not to propose my amendment, which, if carried, would stop the Committee stage. I feel that the issue is a simple one. I beg to move the amendment.
7.32 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 49. Not-Contents, 11.

Division No. 1

CONTENTS

Adrian, L.

Harvington, L.

Ampthill, L.

Hylton-Foster, B.

Aylestone, L.

Kilmarnock, L.

Barrington, V.

Kinnaird, L.

Belstead, L.

Long, V.

Blake, L.

Lucas of Chilworth, L.

Brougham and Vaux, L.

Lyell, L.

Cathcart, E.

Marley, L.

Cowley, E.

Mayhew, L.

De La Warr, E.

Milverton, L

Denham, L.

Monson, L.

Diamond, L.

Nugent of Guildford, L. [Teller.]

Donaldson of Kingsbridge, L.

Eccles, V.

Redesdale, L.

Elgin and Kincardine, E.

Rodney, L.

Elliot of Harwood, B.

St. Aldwyn, E.

Gainford, L.

Skelmersdale, L.

Garner, L.

Stanley of Alderley, L.

Glanusk, L.

Strathclyde, L.

Glenkinglas, L.

Thomas of Swynnerton, L.

Gowrie, E.

Trend, L.

Greenway, L.

Vaizey, L.

Haig, E.

Windlesham, L. [Teller.]

Hailsham of Saint Marylebone, L.

Winterbottom, L.

Wynford, L.

Hanson, L.

NOT-CONTENTS

Bishopston, L.

Pitt of Hampstead, L.

Fitt, L.

Ponsonby of Shulbrede, L.

Jenkins of Putney, L.

Stoddart of Swindon, L. [Teller.]

Kilbracken, L. [Teller.]

Kirkhill, L.

Stone, L.

McCluskey, L.

Underbill, L.

Resolved in the affirmative, and amendment agreed to accordingly.
House adjourned at twenty minutes before eight o'clock.