Lords Sitting of 3 April 1984

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

Agricultural Land Reclamation
Lord John-Mackie: My Lords, I beg leave to ask the Question standing in my name on the Order Paper, which, unfortunately, has been rather overtaken by events.
The Question was as follows:
To ask Her Majesty's Government what is their policy on the cutting down of woodland and reclaiming the land for agriculture, and whether they agree that this should receive assistance under the Business Expansion Scheme.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): My Lords, there is a presumption against large-scale felling of woodlands to make land available for agricultural use. When application is made for the necessary felling licence, the commission consults the agriculture department and, as appropriate, the local planning authority and other statutory authorities before reaching a decision. As the noble Lord has said he is aware, my right honourable friend the Chancellor of the Exchequer, in his recent Budget, proposes to exclude farming as a qualifying trade under the Business Expansion Scheme.
Lord John-Mackie: My Lords, I thank the noble Lord for his reply, which I anticipated. Is he aware that one can still buy forestry land where there are trees under a certain size which have been put there at public expense, grub them up and put the land back to agriculture, thereby tremendously increasing the value of the land and almost certainly getting drainage grants, and so on? Is that not something which should be stopped when we have a surplus of cereals and a very large sufficiency—somewhere in the region of £4,000 million—in wood and wood products?
Lord Belstead: My Lords, I agree with the general thrust of the noble Lord's question, but the rules are very tight. Depending on the reason for felling, a licence must be issued for trees of a diameter of more than 10 to 15 centimetres. The rules are drawn very tightly indeed.
Lord Somers: My Lords, does the noble Lord agree that timber is a form of agriculture and that we are becoming dangerously short of wooded land?
Lord Belstead: My Lords, the Forestry Commission undertook a census a little while ago, and I am glad to say that that showed that the area of broad-leafed woods has not declined since the war, although there may have been changes in species. So far as replanting for broad leaves is concerned, some higher rates of grant are available. The noble Lord may be interested
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to know that the the Forestry Commission has advised me that its estimate is that the planting of broad-leafed woodland in the past five years or so has trebled.
Lord Melchett: My Lords, while welcoming the end of the abuse of the Business Expansion Scheme by the Government, may I ask the noble Lord to say whether the presumption that he mentioned against the widespread clearance of woodland for agriculture would be absolute in the case of the clearance of ancient woodland, bearing in mind the recommendation of your Lordships' Select Committee on Science and Technology that the losses of ancient woodland have been so severe in the period since the war that no more should be destroyed for any reason whatsoever?
Lord Belstead: My Lords, I have not said that, and I do not say it now. The noble Lord may be interested in the fact that the Nature Conservancy Council is drawing up a list of ancient woodland sites and is to discuss their management with local Forestry Commission conservancy officers. I join in the sentiments of the noble Lord by saying that I am very glad that that is being done. I think that he has every right to express his concern, but I do not go as far as he has asked me to go.
Lord Leatherland: My Lords, can the Minister give us an assurance—I hope he can—that there is no plan by the Government or by anyone else to cut down Epping Forest? I have an interest to declare as it is at the bottom of my garden.
Lord Belstead: My Lords, I know of the noble Lord's interest. I respect it, and I agree with it.
Lord Melchett: My Lords, as the noble Lord relied on the Forestry Commission census, which suggested that the area of deciduous woodland in this country had not decreased since the war, may I ask him whether he is aware of the very widespread criticism of the basis on which that survey was conducted, and in particular of the criticism which suggests that the Forestry Commission excluded large areas of very small woodland from the figures with which it was comparing its more recent work, and that on that basis the survey is completely worthless?
Lord Belstead: My Lords, I have confidence in the work of the Forestry Commission.

Sealink: Privatisation
2.41 p.m.
Lord Underhill: 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 progress is being made to privatise Sealink Ferries; whether a bid by a consortium led by National Freight for £100 million is under consideration; and what Sealink's pre-tax profits were last year.
Lord Lucas of Chilworth: My Lords, as my honourable friend the Parliamentary Under-Secretary

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of State for Transport said in another place yesterday, the British Railways Board recently announced its intention of selling the whole of its interest in Sealink UK Ltd. and of selling the company as an entity. The board's merchant bankers, Morgan Grenfell and Co. Ltd., wrote on 19th March to potential purchasers seeking expressions of interest in the company. Formal bids have not yet been requested, and so none is under consideration at present. Sealink earned a profit before interest and tax of £12·8 million for the year to 31st December 1983, compared to £2·9 million for the preceding year.
Lord Underhill: My Lords, I thank the noble Lord the Minister for that Answer. May I ask him whether he agrees that the profits he has just announced reflect considerable credit on this nationalised undertaking and the workers within it? Will he say whether it is a fact that the Secretary of State directed the British Railways Board to dispose of the Sealink ferry fleet and the harbours? Do I understand from the Minister that the ferry fleet and the harbours will be sold as one unit? Is there any reason why the British Railways Board is not retaining an interest in this profitable company?
Lord Lucas of Chilworth: My Lords, I agree with the noble Lord, Lord Underhill, with regard to his comments about the improved profitability, which does credit to those concerned with the undertaking. So far as his question with regard to the Secretary of State's direction is concerned, the noble Lord will recall that in 1980 the privatisation of some aspects of the British Railways Board's holdings was discussed and agreed with the board. It is the board itself which has decided that now is the time to dispose of those assets.
I think the noble Lord's third supplementary question was with regard to whether Sealink would be sold as a whole. It is the intention that the company will be sold as a whole, and that is what Morgan Grenfell have set out in their letter. Lastly, the noble Lord asked me whether the British Railways Board would retain any holding, and the answer is, "No".
The Earl of Halsbury: My Lords, can the noble Lord tell the House what was the £12·8 million profit to which he referred? Was it return on the capital employed in the business?
Lord Lucas of Chilworth: My Lords, I very much regret that I cannot do that—my ability at mental arithmetic is not that good—but I can certainly let the noble Earl know that. It may help him to know that in the British Railways Board's public relations press release of Monday 19th March they said that at 31st December 1983 the net assets of Sealink UK, adjusted to reflect the valuation of Sealink UK's land, buildings and fixed plant at 30th September 1983, amounted to £127.8 million, after adding to shareholders' funds an amount due to the British Railways Board on inter-company account of £48.5 million, and £26 million nominal of 9¾ per cent. unsecured loan stock of Sealink UK held by the British Railways Board.
Lord Cledwyn of Penrhos: My Lords, given that this is an efficient and profitable public undertaking, could
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the noble Lord say what is the Government's motivation in wishing to sell it? Secondly, is he aware that the lack of information that has been made public has caused a great deal of anxiety and concern, especially among those who are employed in British Rail ports throughout the country? Will he give a clear undertaking that, as soon as possible, the Government or British Rail will publish a document, in the form of a White Paper or some other Paper, which makes the intentions clear?
Further, when the noble Lord states that the undertaking is to be sold as one entity, would he indicate to the House precisely what this means? Are the ports to be sold? Are the installations to be sold; or are the ships only to be sold? Is it possible that at the end of the day it may be split, so that the Welsh ports, for example, of Fishguard and Holyhead will be sold separately? Is he aware that the lack of information on this subject is really a public scandal at the present time?
Lord Lucas of Chilworth: My Lords, the noble Lord the Leader of the Opposition asks a number of questions. I hope that I shall be able to deal with all of them in the order in which he asked them. The motivation for the sale of Sealink UK Limited is that we believe that Sealink will benefit from the stimulus of private sector status and access to private capital. It will then be able to engage more effectively in the business in which it is engaged. He suggested that there had been a lack of information. I cannot agree with him, in so far as there have been a number of reports and press releases from my department which have set out the intention to privatise—an ugly word but one which we all understand—Sealink UK Limited. Therefore, there is no scandal and no question that information has not been made available.
Baroness Gaitskell: There is.
Lord Lucas of Chilworth: I repeat there is no scandal attached to the information which we have given with regard to the sale of Sealink UK. The noble Lord asked me whether I would give an undertaking that the proposals for the sale should be made widely known. I can give no greater undertaking than to answer his questions this afternoon. I believe that that should be an undertaking on its own. It will be sold.
So far as the Welsh ports are concerned, we consider that Sealink UK Limited is a complete unit and there is no intention of selling parts of it. The letter that Morgan Grenfell Limited sent out on 19th March, to which I referred in my original Answer, makes it quite plain to any would-be purchaser that it is the entire company in its entirety—ships, buildings, plant, ports and any other assets which the company hold at the time of sale—that is to be disposed of.
The Earl of Lauderdale: My Lords, could my noble friend just clear up one point about this? Is it not the case that whoever buys Sealink will then be free to dispose of whatever assets seem to be surplus to its operations?
Lord Lucas of Chilworth: My Lords, within certain constraints that may be true, but it is fair to say that, since British Railways have a particular interest, in

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that they have connecting services and so on and they also have contractual obligations with Sealink, it would no doubt be in their best interests to ensure that a would-be purchaser would not do what my noble friend suggests. Indeed, since the Secretary of State has to give final approval, he will certainly have the national interest at heart.
Viscount St. Davids: My Lords, would the noble Lord not agree that the first effect of selling off any profitable part of a nationalised industry is to cause greater losses to that nationalised industry? Would he not agree that a secondary effect of that is to cause a greater industrial activity of the part sold off, almost invariably with larger profits? Would the noble Lord not agree that the final effect is to cause a greater industrial activity in the total affairs of this country and therefore to profit us all?
Lord Lucas of Chilworth: My Lords, since the noble Viscount's three questions are hypothetical in so far as Sealink is concerned. I regret that I am not able to help him in answering them.
Lord Underhill: My Lords, in considering the bids that may be presented, is it the intention of the Government to secure from any of those whose bids may be successful an undertaking that they will not dispose of any part of the ferry fleet and harbours once they have acquired them? Can the noble Lord explain what he means by stimulus of capital, seeing that in 1983 the profits were four-and-a-half times the profits of 1982 and that the return on assets is nearly 10 per cent. and on turnover is 5 per cent., which is most creditable compared with many other companies?
Lord Lucas of Chilworth: My Lords, price will be an important factor in the sale of Sealink, but British Rail also have in mind the continuing commercial links. Since the seven harbours which the company owns will need to be retained in order that the 24 services which are undertaken by its 37 ships are integral, it seems hardly likely that bits will be chopped out; otherwise the company would not be as viable as it now is.
I am quite sure that the noble Lord, Lord Underhill, understands exactly what we mean when we say that the company will improve under the impetus of the private sector rather than the public sector and will in itself attract private capital. The fact that it has made £12.8 million before interest and tax is creditable. We believe that it can do even better in the private sector.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that if the sale is subject to all kinds of conditions as suggested in the last supplementary question, they will not get their price, and then there would be criticism about not getting the price? As regards the profit, the fact that a business is good at the moment does not mean that it could not be made better. Is my noble friend aware that when set alongside the capital value of the assets as he has explained them, the profits that he has announced this afternoon are not very good and leave considerable room for improvement?
Lord Derwent: My Lords, is it not rather unfortunate that we have had to listen to five major speeches at Question Time on one Question?
Lord Harmar-Nicholls: The noble Lord has not answered my question.
Lord Lucas of Chilworth: So far as the questions of my noble friend Lord Harmar-Nicholls are concerned, I think that the best I can do for your Lordships is to say, yes, I agree with nearly all that he has suggested. There is certainly room for improvement in almost any company. We believe that the sale will give the company a greater impetus for improvement and indeed will provide a greater impetus for its staff, as was evidenced when Associated British Ports and the National Freight Corporation were both privatised; both have moved to greater successes.
Lord Leatherland: My Lords, may I ask whether when the undertaking is sold the jobs of the employees will be safeguarded?
Lord Lucas of Chilworth: My Lords, any prospective purchaser will have to have regard to the conditions of employment of the 9,400 employees.
Lord Leatherland: My Lords, does the Minister therefore mean—
Noble Lords: Next Question!
Lord Leatherland: My Lords, I am asking the Minister whether by that answer he means that some of these people will be sacked—
Noble Lords: Next Question!
Lord Leatherland:—and noble Lords must not try to muzzle me!
Lord Lucas of Chilworth: My Lords, I can give no undertaking as to what the owner of any company might do. But certainly the present employees of Sealink have conditions of employment and contracts of employment, and it will be up to any prospective purchaser to have regard to that when he makes a bid—if he makes one.

Wildlife and Countryside Act: Compensation Payments
2.55 p.m.
Lord Chelwood: 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 in how many cases and at what capital cost (including as a lump sum pledged annual payments) landowners or tenants have been paid compensation for not carrying out farming operations judged inconsistent with the scientific or amenity value of land and what changes they have in mind to reduce this cost.
Lord Skelmersdale: My Lords, I must apologise for the length of this Answer. The Nature Conservancy

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Council has entered into 84 agreements with landlords or tenants relating to constraints on fanning or forestry operations since the passage of the Wildlife and Countryside Act 1981. The capital cost of these agreements was £315,079; periodical payments amounting to a further £36,431 per annum were made, with a net present value of approximately £241,118 capitalised over the lifetime of the agreements.
Comparable information on management agreements reached by local authorities is generally not available. However, a special fund held by the Countryside Commission was made available in 1983–84 to assist the first-year costs of agreements entered into by National Park authorities, and I am advised that the commission has made payments, mostly of a capital nature, of £57,350 from this fund in respect of a total of six agreements.
The Government will keep under review the workings of the 1981 Act, including the terms of the financial guidelines which relate to payments under management agreements of this kind.
Lord Chelwood: My Lords, is my noble friend going far enough? Is not the Treasury in a very embarrassing position here, being required to pay out very large sums of money in grants and subsidies to encourage farmers to grow, for example, cereals, partly because of the common agricultural policy, with the only alternative being to pay quite large sums of money to the same people for not growing cereals? Is that not a pretty ridiculous situation which really requires urgent attention? May I ask my noble friend whether Her Majesty's Government will look at the compensation provisions of the Wildlife and Countryside Act as a matter of urgency to try to ensure that they do not get into the same kind of ridiculous muddle which resulted from the planning Acts of 1947?
Lord Skelmersdale: My Lords, I think it would be premature to draw the conclusion, as my noble friend has done, that the Act is too expensive to operate. There is no general evidence of extravagant demands for management agreements, but naturally the Government will keep the costs of such compensation under close review. There has never been a case of a management agreement failing through lack of funds.
With regard to the first point that my noble friend made, this is a matter which will continually exercise the minds of my right honourable friends the Secretary of State for the Environment and the Minister of Agriculture. But I should point out that the financial guidelines are based on the fact that fanners should not lose out in financial terms by not farming in certain areas in the way they prefer. In short, that means a loss of profits basis; and the calculation of such profits includes compensation for any MAFF capital grants forgone.
Baroness Birk: My Lords, is the Minister aware that there is widespread concern in the country that inadequate attention is being paid to the integration of environmental policy with agriculture policy, and can he give us some information on what steps are being taken by the Government to improve this? Is he further aware that, as it now stands, the Act is of no
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assistance to local authorities in protecting their landscapes, since they are quite unable to bear the financial burden? Does the noble Lord know that Suffolk County Council has calculated that it would cost it £375,000 a year to protect just two grassland valleys and one coastal heath? Will he agree that the financial burden on local authorities—the squeeze—is going to get worse and worse and they will be able to afford to spend less and less on protecting the countryside?
Lord Skelmersdale: My Lords, I think, and I am surprised by it since the noble Baroness was involved in the passing of the Act in this House and I was not—
Baroness Birk: No, I was not.
Lord Skelmersdale: My Lords, the noble Baroness says she was not. But she was certainly aware of what was going on at that time. The whole basis of the Act is not that one should seek to conserve everything. The Act covers those areas which have been identified by the Nature Conservancy Council as areas of special scientific interest. There is no doubt that over a period of years changes will occur in the countryside through normal changes in fanning practices. There is no way, with the best will in the world, that this can or should be stopped.
Lord Winstanley: My Lords, is the noble Lord in a position to say how much compensation has been paid out to farmers or landowners to compensate them for not doing things that they never had the remotest intention of doing in the first place? Does he agree that giving a grant to persuade a farmer to do something is a simple and straightforward matter, but that giving compensation to dissuade him from certain action is much more complex? In that connection, can the noble Lord say in how many cases, if any, where there have been negotiations between a farmer and the department concerned for compensation in this area, the department has called the landowner's bluff, and what has been the result?
Lord Skelmersdale: My Lords, I have no information about what might be called the "try-on" underlying the noble Lord's question. Of course, we look to the bodies offering agreements to satisfy themselves that the planned operation is a genuine proposal. They will be in the best position to make such judgments in the light of their local knowledge as and when occasion demands. If false claims were made to any great extent, the total amount payable for compensation would become so great that the Government would have to consider statutory controls. This would be totally counter-productive to fanners' interests generally and, I suggest, to the interests of conservation, too.
The Earl of Onslow: My Lords, can my noble friend tell us what is the highest payment to an individual farmer per year? It is reputed to have been a figure of £20,400 a year paid to a certain gentleman. Secondly, can my noble friend say how many times the Ministry of Agriculture or the Department of the Environment has refrained from objecting to the application of grant

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on conservation grounds because they think that they would not have got the money for a management agreement?
Lord Skelmersdale: My Lords, as I said, up to the present, there has never been a management agreement refused on financial grounds. As regards the two specific questions that my noble friend asked me, I am afraid that I cannot answer without notice.
Lord Hunt: My Lords, is the noble Lord aware that in a number of instances, notably in Halvergate Marsh in the Broads and also in the North York Moors National Park where farmers have been refused Ministry of Agriculture grants on environmental or military grounds, farmers have nonetheless declined compensation available under a management agreement and have gone ahead with development for agricultural purposes to the detriment of the environ-ment or the amenity concerned? Does this not reveal a weakness—
Lord Denham: Question.
Lord Hunt: Would the noble Lord not agree that this reveals a weakness in the Wildlife and Countryside Act where there are no fallback powers of last resort to prevent such a development taking place?
Lord Skelmersdale: My Lords, I am afraid that I must correct the noble Lord. There is, indeed, a fallback power in the Wildlife and Countryside Act. This is the so-called Section 29 Order that has been used in three cases since the Act came into force. So far as the North York Moors National Park is concerned, I do not know the details, but I would suspect that in the cases that the noble Lord has mentioned they are not covered by a site of special scientific interest.
Lord Melchett: My Lords, is the noble Lord aware that the only people in this House when the Wildlife and Countryside Act was being debated who appeared unaware of the appalling problems to which it would lead were those speaking on his Front Bench on behalf of the Ministry of Agriculture? Is he aware that everyone else criticised the Bill on exactly these grounds from all sides of the House? Secondly, can the noble Lord say why the Government have set their face so firmly against implementing the guidance side of the common agricultural policy in ways that it is implemented in other European countries to make extensive systems of agriculture more profitable and thus reduce the cost of these compensation handouts?
Lord Skelmersdale: My Lords, I do not think that the cost around which discussion seems to have revolved this afternoon really enters into it. The Government are prepared and have been prepared to make the funds available for the management agreements. So far as the CAP goes, there is no doubt in my mind that the high return for crops sometimes resulting from the CAP is obviously a factor in the equation. But the indexation provisions of the financial guidelines provide that, if the sales value of the new crop reduces, then so will the compensation payable. In any event, the important point to
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remember is that the land would not have suffered change of use because, by very definition, the fact that compensation payments have been made means that there is no change of use.
Lord Glenkinglas: My Lords, does my noble friend not agree that, while he says that the cost is not important, there have been cases where considerable sums of money have been spent for people not to do things which were, in fact, impossible to do, and they have had that information before they claimed the cost?
Lord Skelmersdale: My Lords, if that is so, I should like to look closely at proof of it. As I said in reply to an earlier supplementary, I have no evidence that that is correct.
Lord John-Mackie: My Lords, I am glad that I gave way to the noble Lord, Lord Glenkinglas, because he has made a real point. Is the Minister aware that I took down the sums of money involved. Can he say how many acres these sums affect? Is he aware that the publicity that this situation has received has led people to look and see whether they have anything that could come under this category? If he wants instances, I can give a personal one. A neighbour asked me why I did not apply to grub up scrub woodlands next to Epping Forest in an area of outstanding beauty and make a claim. Is he aware that I know of two other cases along the same lines? It is definitely time that the Government took this matter seriously. I wish to preserve these areas, but the Minister must look at the matter carefully.
The Lord President of the Council (Viscount Whitelaw): My Lords, I fully understand the emotions aroused by this question and this particular problem. I could perhaps give some instances myself which might match those of the noble Lord, Lord John-Mackie. But that would not help the business of the House. We have taken 30 minutes on three Questions. I would ask noble Lords whether we may continue now with business because Questions have been taking a long time.

Supplementary Benefit Appeal Tribunals: Composition
3.8 p.m.
Lord Dean of Beswick: 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 is their present policy on the appointment of trade union representatives to supplementary benefit appeal tribunals and other such bodies.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, at present, one of the members of a supplementary benefit appeal tribunal is a trade union representative. Clause 9 of the Health and Social Security Bill now in another place proposes that members of the new social security appeal

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tribunals should be drawn from a single panel representative of people living and working in the area. We hope that trades unions will continue to be well represented on the panel of members.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that reply, and in order to assist the House I shall be brief. Can the noble Lord give an undertaking that the trade union movement will receive deep and sympathetic consideration in future proposals by way of their retaining rights that have been granted in the past by successive Governments regarding this matter?
Lord Glenarthur: My Lords, of course representation by trade union members is important: but so also is flexibility to overcome delays that have been caused by the shortage of trade union members in some cases. The new legislation should give sufficient flexibility to avoid these problems in the future.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lady Young will, with the leave of the House, repeat in the form of a Statement an Answer to be made to a Private Notice Question in another place on the British hostages in Angola.
It may be for the convenience of the House if I announce that dinner will be available at the usual time of 7.30 this evening.

Rating and Valuation (Amendment) (Scotland) Bill
Brought from the Commons; read a first time, and to be printed.

Urban Parishes Bill [H.L.]
Lord McIntosh of Haringey: My Lords, I beg to introduce a Bill to facilitate the creation of parishes in urban areas. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time—(Lord McIntosh of Haringey.)
On Question, Bill read a first time, and to be printed.

Public Health (Control of Disease) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.
County Courts Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

London Docklands Railway Bill
3.12 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move that the Bill be now read a third time.
Moved, That the Bill be now read a third time—(Lord Aberdare.)
The Earl of Kinnoull: My Lords, I should like briefly to intervene at this stage to draw attention to the Special Report from the Select Committee on this Bill on the question of petitioners' costs. I say at once that 1 am grateful to the noble Earl, Lord Listowel, the chairman of that Committee, for making available that report even if I did not agree with the committee's decision.
It all arose from an application by the petitioners, Trinity House and Tower Hill Trust, for the costs of fighting their case—an environmental battle—against London Transport which had amounted to the staggering sum of £35,000. It proved a victory, I am glad to say, in preserving one of London's oldest and historic landmarks—a victory, indeed, for the public good but a pyrrhic victory in terms of the crippling costs.
Certain noble Lords—particularly the noble Lord, Lord Beswick, who I know has been following this Bill with his usual parliamentary care—have been following the Bill's progress. The issue of the ticket hall proposal, at Tower Hill Underground, which was the nub of the problem in this contested case, was of course only a small part of the major Bill which concerned the new rail link between London Docks and the City. The ticket hall proposal came under Clause 16 of the original Bill with powers of compulsory purchase and powers as regards planning consent for the new building.
I hope that the House will not mind my recalling briefly what happened. Just prior to the deposit of the Bill London Transport had cursory consultations with the local planning authority as to the design of this ticket hall. No consultation whatever was held with the landowners involved—Trinity House—despite the fact that as a body they have been trustees of that historic site for over 200 years. In fact, Trinity House only heard about the proposal a month after the Bill was deposited. They were appalled at the insensitive design, but the question that arose was how were they effectively to fight the proposal, particularly as London Transport showed no remorse or any desire to redesign this ticket hall. Trinity House decided, on advice—and I think that they were absolutely right—that they could not simply say, "We do not like this proposal". That is not enough in today's techniques of opposing effectively planning proposals. It would have been all too easy if they had said that, but it would also have been all too easy for London Transport to claim that the technical operational and cost constraints made their proposal—that is Scheme 1—the only sensible answer.
Trinity House took it upon themselves to appoint immediately an independent consultant to advise them and, indeed, to devise a credible alternative proposal that would have a minimum impact environ-mentally. It was produced in two months and it was

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rejected by London Transport four months later on the grounds of cost and operational problems. But it achieved its goal, because what happened then was that London Transport instructed another independent consultant, at a cost we do not know, who came up with Scheme 3. Scheme 3, with certain modifications, met the approval of Trinity House, the Governor of Tower, the local planning authority and no doubt many other amenity bodies, and was generally acceptable. It was a victory for sensitive and responsible planning, achieved for the public good but, as I have said already, at very great personal cost to Trinity House.
But the cost did not stop there, because London Transport then discovered that Scheme 3 went outside the limits of deviation of the original Bill and so they sought leave of the Select Committee to strike out this entire clause and so promote an entirely new Bill for this purpose. Because of all this additional work the Trinity House parliamentary agents sought a contribution directly from London Transport, and they sought £10,000 which was roughly a third of their costs. The reply eventually came that London Transport would offer an ex gratia payment of £2,000, but subject to Trinity House not seeking costs from the Select Committee.
The transcript of the proceedings of that Select Committee, which I have studied very carefully, showed that the petitioners put forward two arguments to the committee to support why they considered that they had been put to unreasonable cost by the promoters to defend their rights. The first was that there had been no prior consultations which they claimed—a claim I think I would support—could have avoided a great deal of abortive costs. I must say that I found that argument compelling in those special circumstances and was disappointed, frankly, that the Select Committee's report did not even refer to this question of prior consultation. No doubt the noble Earl, Lord Listowel, will deal with that later on.
The second argument that they put forward—and this is to me even more compelling—was that the promoters, having withdrawn part of a Bill and promoted another Bill, of course incurred abortive costs, and indeed unreasonable cost to those who were fighting the case. No reference was made to that in the Select Committee's report either. Instead, I humbly suggest that the report seemed to concentrate on the engineers' costs for Scheme 2 of £8,000 which had been incurred by the petitioners, but forgot completely to highlight—and I particularly say this to the noble Lord, Lord Foot—the fact that there had been legal costs of £21,000 which had grown and grown as the promoters came up with Scheme 3 and then the new Bill.
But perhaps the most disappointing aspect, and what I think seems to be patently unfair, is the £2,000 ex gratia payment offered to the petitioners by the promoters. During the proceedings of the Select Committee the noble Lord, Lord Foot, at the very end of the proceedings, on page 43, asked: "Is it"—that is, the offer—"still on?" The reply was:
"I am instructed it lapsed on its non-acceptance, but we are prepared to make the offer again; so again it is an open and standing offer upon those terms, of course".
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I suspect that none of the Members of the Select Committee really understood what "upon those terms" meant because, of course, they did not have the terms before them. I suspect that they thought, as I thought when I read it, that that offer in fact still stood. I am sad to say that I understand that it does not still stand, and indeed that London Transport have withdrawn it. What I suspect the reply really meant was that if the petitioners' parliamentary agent sat down immediately at the very end of the proceedings, then he would get his £2,000—not a wholly reasonable situation. On reflection, I would hope that the noble Earl, Lord Listowel, as chairman of that committee, might feel able to approach London Transport to see whether they would reconsider settling the sum with the petitioners, and so gain some good will out of this matter.
Of course, I accept the Select Committee's decision on this matter of not seeking a recommitment. But I suspect that if they had been given a freer rein, other than the constraints of Section 1 of the old 1865 Parliamentary Costs Act, a different decision would have been made. In my experience this is the second Bill in recent times that has disturbed me due to the lack of flexibility that committees have in awarding costs to petitioners. I cite the Shrewsbury Bill.
I believe that the time has come for the Chairman of Committees to look into this question of costs on Private Bills. Clearly, the 1865 Act is demonstrably too rigid and restrictive to meet modern-day needs. I would humbly suggest to my noble friend either that Section 1 of this Act should be repealed and the matter of costs becomes added to the standing orders of the House, or that Section 1 is amended to give greater flexibility to Select Committees to award costs. I believe that this Bill has demonstrated that need.
3.22 p.m.
Lord Foot: My Lords, I have a great deal of sympathy with the words that have fallen from the lips of the noble Earl. In my view, the decision that was made in this case on the matter of costs raises a question of general importance and one of particular importance about the procedures which are followed before Select Committees. Very briefly, I should like to recite the history of the matter slightly differently from the way is which the noble Earl recited it but I hope not distorting it in any way. It went like this.
The London Transport Executive promoted this Bill in order that they might be empowered to build a railway from the Docklands up towards the City. The terminus at the western end of the railway was to be in the neighbourhood of Tower Hill. In my view the noble Earl, Lord Kinnoull, is quite right when he said on 15th December 1983 in this House on Second Reading (at col. 352 of Hansard) that that site in the neighbourhood of Tower Hill is:
"Perhaps one of the most historical and environmentally sensitive landmarks in London".
The noble Lord is quite right in saying that, as soon as the petitioners became apprised of what was about to happen, they immediately took action, and commissioned a report from a firm of engineers putting forward an alternative scheme to the one which had been put forward under the Bill by the London Transport Executive.

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That scheme was evolved and was presented for consideration to the London Transport Executive, and after a period of time the executive indicated that it was unacceptable to them and they then proceeded to evolve a third scheme of their own. As a result, the detrimental effects that would have flowed from their original plan were averted. I think that the noble Earl agrees that the plan which eventually emerged was a vast improvement upon what had gone before, not only from the point of view of the petitioners in protecting their own properties, but also from the public's point of view in preserving the splendour of the environment.
Therefore, the situation was that, as a direct result of the second scheme evolved and produced by the petitioners, the Bill was amended and we were eventually faced with a very much more attractive proposition than we had been faced with in the first place. I think that it can be perfectly rightly said that the petitioners' opposition and the scheme which they persuaded the promoters to adopt resulted in radically altering the original plan, with the result that, in my view, the petitioners not only took proper steps to protect their own properties, but in forcing through the third scheme—which was so much more attractive—they performed a very useful public service.
Unhappily, however, when it came to the question of whether there was to be an order for costs against the promoters and in favour of the petitioners to compensate them in some way for the expense to which they had been put in putting forward their opposition, because of the terms of Section 1 of the 1865 Act—which is the Act of Parliament which governs this matter—we on the committee felt that we could not accede to the petitioners' request. The reason for that is that Section 1 of the 1865 Act provides in these very restrictive terms that:
"a petitioner shall be entitled to recover costs from the promoters"—
and I omit the matters which do not here apply—
"When the committee … strike out or alter any provision of such Bill for the protection of such petitioner, and further unanimously report, with respect to any or all of the petitioners against the Bill, that such petitioner or petitioners has or have been"—
and here are the important words—
"unreasonably or vexatiously subjected to expense.".
So if the petitioners in this instance were to persuade the Committee to grant them an order for costs against the promoters, it was incumbent upon them to persuade the Committee that the promoters, the London Transport Executive, had indeed unreason-ably made them subjected to expense.
After considering the whole matter, we came to the conclusion that we should not go so far as that, and on that account we were precluded from making an order for costs. I agree with the noble Earl that it is high time we took another look at Section 1, because I know of no other jurisdiction or tribunal before which it is necessary for a person seeking costs to establish so restrictive a condition as that. That was an Act of 1865 and it is still the law which prevails in the procedures of Select Committees today. It is high time that another look was taken at that because the views about when costs are properly payable have undergone a
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very considerable change and alteration in the 120 years that have since passed.
There is another objection to this particular section which seems to me to reduce the matter almost to absurdity. As I said just now, it is provided that before a committee can order that costs shall be paid to petitioners, they must unanimously report that in their view the promoters have unreasonably or vexatiously made the petitioners subject to expense. On the face of it that seems to me to be quite ludicrous. If there must be unanimity, and if a Select Committee consists of five Members of this House with four of them in favour of awarding costs and one of them against, then they are not unanimous. As a result, it inevitably follows that the decision of the minority of one prevails over the decision of the majority of four.
That question did not arise in this case, may I say, because, rightly or wrongly, we were unanimous in the view that we took; but I pray that in aid of the argument that we ought to take another look at this extraordinary Act of Parliament in order that there may be some relaxation in the restictive provisions, but above all that this requirement of unanimity may be struck out from the test and from the Act. Therefore, I share the anxieties that have been expressed by the noble Earl, and I hope that as a result of this Bill we shall—and I hope with not too long a delay—set up some inquiry (I am not sure what the organisation should be) to see whether this is not indeed today in need of amendment.
3.32 p.m.
Lord Beswick: My Lords, I think that the House has reason to be grateful to the noble Lord, Lord Foot, for the constructive way in which he has followed what the noble Earl, Lord Kinnoull, has said. There is a case here for looking again at this 1865 Act, now 120 years old. There are certain factors that are different today as compared with those days in the middle of the last century. I feel that there has been injustice caused in recent months, or, I might say, in recent weeks, because a fortnight ago the Shrewsbury Bill fell by the wayside in the other place, but the Shrewsbury Football Club is still left with substantial costs to meet.
I felt when I read the Select Committee's report that any Select Committee that was chaired by my noble friend Lord Listowel would have looked at this issue carefully, and after listening to what has been said by the noble Lord, Lord Foot, I am quite convinced that they did consider what could be done but felt hampered by the provisions of the 1865 Act. At the same time, I am bound to say that London Transport did produce a Bill in November 1982, but it was not until December 1982 that the landowners, the charity concerned, heard about the terms of that Bill.
There are many people, including myself, who would think that that was unreasonable behaviour. I should like to have a situation in which the promoter of a Bill is encouraged, possibly by the question of costs being awarded later, to engage in consultation with interests concerned before a Bill is drafted and placed before the House. In view of what the noble Lord, Lord Foot, has said, I do not propose to say very much more. I hope that the noble Lord, Lord Aberdare, will be able to tell us that there will be some

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consideration by the appropriate people of this 1865 Act.
I make just one other point about the case of this particular charity. My understanding is that as a consequence of the amendment to the original Bill there is another Bill which will come before another Select Committee. I wonder whether it would be possible for that Select Committee to look again at the issue of the costs which have fallen upon the charity concerned. My own feeling in this, which I put before the House, is that instead of the overriding Act requiring a petitioner to prove that it has been unreasonably and vexatiously treated, surely it would be preferable if the Select Committee had to consider whether it was fair and reasonable to award costs in all the circumstances.
If it was looked at from that point of view I am quite certain that in this particular case, and possibly in the case of the Shrewsbury Town Bill, we should have had a different decision taken by the relevant Select Committee. I say again that I hope that the noble Lord, Lord Aberdare, can assure us that, using his authority, he will ensure that this question of amendment of the 1865 Act will be looked at.
The Earl of Listowel: My Lords, as your Lordships have shown considerable interest in this private Bill both in speeches on Second Reading and again this afternoon, it might be appropriate if I, as chairman of the Select Committee to which the Bill was referred, were to say something about the report and particu-larly about the costs incurred by two of the petitioners, the Tower Hill Trust and Trinity House. I should also like to say something about consultation, as that is a matter raised by speakers this afternoon.
So far as this matter of prior consultation is concerned, I would remind your Lordships that the promoters of a private Bill are under no obligation under our Standing Orders to consult interested parties, though it may of course be to their mutual advantage to do so. The committee on this Bill were told that in their case, owing to the urgency of the railway works, consultations were limited, but they were carried out to some extent both with the GLC and with Tower Hamlets, the responsible local authorities.
These consultations included discussion of the scheme for the first Bill, to which subsequently the petitioners objected on amenity grounds. At this stage, of course, the question of the charities incurring unreasonable expenses did not arise. The noble Earl, Lord Kinnoull, and my noble friend Lord Beswick both argued very persuasively indeed about the possible desirability of prior consultation.
The difficulty about this procedure would have been that, if the two charities concerned, Trinity House and the Tower Hill Trust, had been consulted and had there been this wider measure of consultation, it could not have been limited to them. It would have been necessary to extend it to all the interests—landowners, businesses—affected by the construction of this railway. This would have resulted in a long delay in the start of the railway works. I need hardly remind your Lordships that the development of the dockland area depends on the construction of this railway.
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I shall not weary the House with the history of the Bill except to show why the negotiations leading up to the final Bill took a long time and were, therefore, extremely expensive. Briefly, the petitioners objected to the first Bill on the ground of the visual impact of an enlarged and unsightly ticket office at Tower Hill station. At the same time they instructed their engineers to submit an alternative scheme for the ticket hall, and this scheme they submitted to the promoters. It was objected to by the promoters, as the noble Lord, Lord Foot, pointed out, mainly on the grounds of operation and cost.
The promoters then put up a third scheme which had the general approval of the petitioners because it dropped the proposal for the extended ticket hall at Tower Hill station. The petitioners had at this stage won their amenity battle and would normally have withdrawn their petition against the Bill, in which case of course the expenses would have been much lower. But as they wanted to apply to the committee for their costs they left the petition on foot to enable them to make application for costs under the Parliamentary Costs Act 1865.
This brings us to the nub of the argument for the committee's decision about costs. The important point is that any committee considering application by a petitioner for costs must do so within the narrow limits of the wording of Section 1 of the 1865 Act. This lays down that costs can only be awarded if a committee reports unanimously. These are the key words. I think they were quoted by the noble Lord, Lord Foot, but as they are the key to the whole position I should like to quote them again:
"that such petitioner or petitioners has or have been unreasonably or vexatiously subjected to expense in defending his or their rights proposed to be interfered with by the Bill".
A committee therefore has no discretion in the matter of costs. Wherever its sympathies may lie it is tied hand and foot by the terms of the Act.
The Select Committee heard the parties relating the whole history of the lengthy negotiations in which the petitioners had been involved and they learnt about the very substantial sum involved in the costs—a total of about £35,000, of which about £8,000 represented charges made for the preparation of the second scheme. The question that the committee had to decide at the end of the proceedings was whether the petitioners could be said to have been unreasonably subjected to all or part of these costs by the conduct of the promoters during the negotiations. They decided (and this was in the report) that, while appreciating the anxiety of the petitioners to protect the site—I may say in passing that I entirely agree, and I think your Lordships would, with the description of this site by the noble Earl, Lord Kinnoull, as,
"perhaps one of the most important historical and environmentally sensitive landmarks in London"—[Official Report, 15/12/83; col. 352.]—
the petitioners were on no occasion unreasonably subjected to expense, bearing in mind the nature of the negotiations, which were necessarily lengthy, nor were the petitioners unreasonably subjected to the expense incurred in the preparation of the second scheme, as it was not essential, not indispensable, to their opposition to the Bill. Their objective had been

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achieved when the promoters decided to abandon the first scheme.
Your Lordships usually have confidence in the decisions of your Select Committees because they have had the advantage of hearing counsel for the parties and also any witnesses which the parties may have wished to call: a procedure that enables the committee to reach its conclusions having heard the fullest possible statement of all the arguments.
3.43 p.m.
Lord Murton of Lindisfarne: My Lords, having had some experience of Private Bill procedure in another place, may I trespass upon your patience for a few minutes in defence of the Parliamentary Costs Act 1865? I should not wish to talk about the decisions reached by the Select Committee except to say that I entirely endorse the decisions taken, but may I suggest that if the Act of 1865 were to be altered the only way in which it could be done would be that costs should, in legal language, "follow the event"—I believe that that is how it is put—which is the rule applicable to ordinary litigation.
Under that rule, a successful petitioner would be entitled to his costs as a matter of course, unless his conduct clearly had made that result unjust. Presumably a successful petitioner would have to be defined to include one who had persuaded the promoters voluntarily to seek the committee's leave to withdraw the provision in the Bill to which there had been objection taken. As a possible corollary, no doubt, the promoters of a Bill could become entitled to an award of costs against unsuccessful petitioners.
Parliamentary agents generally, who are the persons with the greatest knowledge of Private Bill procedure, regard the present Act as satisfactory. In fact, far from it having been proved unsatisfactory, the same principles have been adopted in the operation of ministerial practice on compulsory purchase orders under the Acquisition of Land Act 1981.
Where a local inquiry is held, Section 250(5) of the Local Government Act 1972 comes into play. By that subsection the Minister is empowered to make orders:
"as to the costs of the parties at the inquiry and as to the parties by whom the costs are to be paid".
In the ministerial circular entitled Housing and Local Government Circular No. 73/65: The Award of Costs of Statutory Inquiries, the following criterion is adopted as a rule of general application for the award of costs. I quote:
"Costs should normally be awarded against a party who behaves unreasonably, vexatiously or frivolously".
This criterion was taken from "A Report of the Council on Tribunals on the Award of Costs at Statutory Inquiries". This criterion is very much akin to that in Section 1 of the Parliamentary Costs Act 1865, by which a parliamentary committee is empowered to award costs to a petitioner who has been unreasonably or vexatiously subjected to expense in defending his rights.
Both the Act of 1865 and the ministerial circular 73/65 contain criteria which are far and away from the practice in ordinary litigation, where, as I have already mentioned, in all but exceptional cases costs are awarded as a matter of course to the successful party
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under the practice known as "costs following the event".
I would suggest that the reason for this difference in approach on the award of costs is that Private Bills, like compulsory purchase orders, deal with matters of public importance and where the public interest often conflicts, unavoidably, with private interests.
In my view it is important that promoters of a Bill should not be deterred from ventilating arguments in support of their case by the fear that if a view different from their own should prevail before a Select Committee they would be made liable for costs, however reasonably they had behaved in presenting their case. In my view it would indeed be unfortunate if promoters of Private Bills were to be deterred by such a fear, as this would tend to discourage conflicts between public and private interests being brought before Select Committees for the specific purpose of arbitration. For this reason, I would defend the Act of 1865 as it now stands.
Earl Fortescue: My Lords, I was a member of the Select Committee and I entirely agree with its conclusions, as I also agree with what the noble Lord, Lord Foot, and the noble Earl. Lord Listowel, said today.
The Select Committee was bound by the Parliamentary Costs Act 1865 and not by any standing order. I now speak as an individual. I am not a lawyer and I hope that I will be forgiven if my legal jargon is faulty. I am very doubtful now whether Section 1 of the Parliamentary Costs Act is equitable. In this matter the petitioners won their point. If this matter had been the subject of litigation in a court of law the costs might have been awarded against the London Transport Executive. The question of unreason-ableness or vexation would not have arisen. Under the 1865 Act I suggest that only the rich can afford to petition against a Private Bill, whereas in a court of law someone of modest means can hope to recover his costs if he wins his case. If his means are very modest, he may even get legal aid. For these reasons I suggest that after 119 years the Parliamentary Costs Act might well be amended.
Lord Teviot: My Lords, I had absolutely no intention of speaking and I agree with the findings of the Select Committee absolutely, but this is rather a sour note at the beginning of an important Bill. I feel that, after having settled the matter of the ticket office and everything else, one wishes the progress of the development of London Docklands and everything that goes with it well in the future.
Lord Aberdare: My Lords, I am grateful to all of your Lordships who have taken part in this short but interesting debate. It would be quite improper for me to comment on the decision taken by the Select Committee. The Select Committee was most ably chaired by my predecessor, the noble Earl, Lord Listowel, and we have also heard from the noble Lord, Lord Foot, and the noble Earl, Lord Fortescue, who were members of that committee. I am sure that the whole House will feel that we should support their findings. However, the main thrust of the debate has really been on the subject of the 1865 Act which

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influenced their decision. I have been asked, particularly by the noble Lord, Lord Beswick, if I would have a look at this Act. I certainly will, and I will take into consideration everything that has been said this afternoon. I think that it may not be quite as easy as it appears on the surface. The noble Lord, Lord Murton, made it clear that it is not quite unique, that this kind of procedure also applies in the case of compulsory purchase orders, and he also instanced some of the possible disadvantages of changing the Act and going nearer towards the procedure which takes place in the courts.
The other point is that, whereas most of the proceedings of Private Bills are regulated by standing order, this, exceptionally, is regulated by legislation, the Parliamentary Costs Act 1865, and therefore to make any change would require legislation. But, having said that, I will certainly take into account everything that has been said. I will have discussions with those who deal with this matter in the other place whose consent obviously also would be required, and I will see if anything emerges from those consultations.
Lord Beswick: My Lords, before the noble Lord sits down, would he say something about the point of the committee before which the second Bill has to go? Would that committee be competent to reconsider the question of costs?
Lord Aberdare: My Lords, there is no reason why any Select Committee should not consider the matter of costs, but again within the ambit of the 1865 Act.
On Question, Bill read a third time, and passed, and returned to the Commons with the amendments.

Angola: British Hostages
3.52 p.m.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, with the leave of the House, I shall now repeat the Answer which has been given to a Private Notice Question in another place on the British hostages in Angola. The Answer is as follows:
"Our interest in this matter is a humanitarian one. We wish to see the British hostages released as quickly as possible. Consistent with our normal position on hostage-taking, we are quite happy to speak to anyone if that is what is required to secure their release and are already in touch".
Lord Cledwyn of Penrhos: My Lords, may I thank the noble Baroness for repeating that Answer, and may I further ask her a few questions? Can she say how many Britons are now resident in Angola and how many in Unita-held territory? Can she say what arrangements are being made to ensure their safety, and can she further say how the hostages are being treated and whether we are able to monitor their welfare either through the Red Cross or in some other way? Given that the hostages have been in captivity for five weeks, is the noble Baroness aware that we welcome this more constructive attitude by her department during the past 48 hours? Is she able to say
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why the Government did not take some steps to secure the release of the hostages rather sooner? Finally, are the Government able to contact Unita without difficulty?
Lord Gladwyn: My Lords, I should like to associate myself with what the noble Lord has just said. In the event that Mr. Savimbi, who, I understand, is holding these hostages, would say that our intervention on behalf of the hostages constitutes some form of recognition, the Government should firmly repudiate any such suggestion, since my understanding is that nothing of the sort arises in the event. But I imagine that out of the release of the hostages he would try to make such political capital as he can. I hope that the Government will be able to resist that.
Baroness Young: My Lords, I should like to thank both the noble Lord, Lord Cledwyn, and the noble Lord, Lord Gladwyn, for their reception of this Answer. The noble Lord, Lord Cledwyn, asked me how many British citizens are resident in Angola. I understand that there are about 200 British citizens in Cabinda, north of Angola. There are, of course, a number of missionaries, as well. In Luanda there are 60 to 70 British citizens. He asked me how the hostages are. I am glad to say that all are reported to be in good health. He also asked why we had taken no steps sooner to do anything about the situation. I should like to make it plain that since the seizure of the hostages we have been making representations through the International Committee of the Red Cross to try to get their release. Dr. Savimbi said that he would not indicate terms until their arrival at base camp. They have now arrived and we are trying urgently to clarify Dr. Savimbi's position.
A Unita representative today discussed the position with a Foreign and Commonwealth Office official and we hope to get an authoritative reaction very soon. I hope that what I have said will also answer the questions of the noble Lord, Lord Gladwyn; but I should like to make it quite clear that the contact with Unita is not a recognition of Unita. The contact is purely on humanitarian grounds. It follows our standard practice in these situations.
Lord Lloyd of Kilgerran: My Lords, may I ask the noble Baroness the Minister about the last phrase in her repetition of the Answer? She said that she was "in touch". Can she tell the House with whom she is in touch and in what circumstances?
Baroness Young: My Lords, I hope that what I have said—that a Unita representative had discussed the position with a Foreign and Commonwealth official—makes this quite clear.

Repatriation of Prisoners Bill [H.L.]
3.57 p.m.
Report received.
Clause 1 [Issue of warrant for transfer]:
The Parliamentary Under-Secretary of State, Home Office (Lord Elton)The Parliamentary Under-Secretary of State, Home Office (Lord Elton) moved Amendment No. 1:
Page 1, line 5, at beginning insert— ("Subject to the following provisions of this section,").
The noble Lord said: My Lords, it may be for your Lordships' convenience if, in moving this amendment, I speak also to Amendments Nos. 3, 4 and 21.
Amendment No. 3: Page 2, line 1, leave out ("may") and insert ("shall").
Amendment No. 4: Page 2, line 2, at end insert—
(" (1A) The Secretary of State shall not issue a warrant under this Act, and if he has issued one, shall revoke it, in any case where after the duty under subsection (1) above has arisen and before the transfer in question takes place circumstances arise, or are brought to the Secretary of State's attention, which in his opinion make it inappropriate that the transfer should take place.").
Amendment No. 21: Page 8, line 1, after ("above") insert ("or in a case falling within section 1(1 A) above").
Your Lordships will recall that at the Committee stage on 5 th March I undertook to consider whether the Secretary of State's discretion to issue a warrant, once the three essential conditions specified in paragraphs (a), (b) and (c) had been met, could be changed to a suitably qualified obligation. I mentioned some examples of circumstances in which the Secretary of State might have cause to change his mind and not issue a warrant after having given his consent to a transfer. One example was where a prisoner to whose transfer the Secretary of State had agreed committed another offence for which he would need to stand trial. It would clearly be inappropriate for the transfer to proceed in such circumstances. The question of transfer would need to be suspended until after completion of the further proceedings.
The noble Lord, Lord Mishcon, suggested that the issue of a warrant could be made mandatory with the qualification, "unless there is some intervening material circumstance". That is at col. 26 of the Official Report of that day. The noble Viscount, Lord Hanworth, suggested the qualification, "unless new circumstances arise". That is two columns later in the Official Report. The noble Lords, Lord Avebury and Lord Melchett, (at columns 27 and 28) suggested that the qualifications should be more explicit.
Having considered this matter very carefully, we have come to the conclusion that it would be reasonable that the Secretary of State should normally have a duty to issue a warrant once the three conditions in paragraphs (a), (b) and (c) of subsection (1) had been met. Amendment 3, accordingly, changes the discretion to a duty by substituting the word "shall" for the word "may". I pause to nod at that stately admission. May I say, as I said at the last stage, that debates about "may" and "shall" in your Lordships' House are always of the greatest interest. Precedent suggests, and learned advice endorses, that very often they mean the same thing. But I am told that in this case those of your Lordships who doubted that can be satisfied—and that is our proposal.
As was accepted, however, by your Lordships at Committee stage, this duty needs to be suitably qualified. We do not consider it prudent to make this qualification too specific as unforeseen circumstances might arise in practice where issue of a warrant would be inappropriate. The qualification in the proposed new subsection (l)(a) in Amendment No. 4 is therefore in general terms. It is intended to cover not only some event or circumstance which occurs after the Secretary of State has agreed to a transfer in accordance with Clause 1(1)(b) but also any pre-existing Bill which comes to the attention of the
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Secretary of State after he has agreed to the transfer but before the transfer has taken place; for example, the emergence of evidence that the prisoner concerned had been involved in some earlier serious criminal offence. Since it is possible that the circumstances affecting the Secretary of State's agreement to a transfer may come to his attention after he has issued a warrant but before transfer has taken place, the new subsection (1)(a) provides also for the revocation of the warrant in that event.
Amendments Nos. 1 and 21 are consequential upon the two substantive amendments. I believe this group of amendments satisfactorily meets the concern expressed at the Committee stage, and I beg to move.
Lord Mishcon: My Lords, I was the one who dared to suggest that "may" be altered to "shall" and, as a result of that daring, I had the treat that I always enjoy; that is, a dialogue with the noble and learned Lord, who will always teach me law and do it with great grace. On that occasion we wondered whether the provision should not be clearly mandatory so that there it was beyond any peradventure and without any necessary reference to the books to which the noble and learned Lord, Lord Denning, referred.
I am very glad that the Minister has clarified the matter by bringing forward these amendments at Report stage. He has done so with his usual care and consideration with regard to any matter which is debated in your Lordships' House on Bills of which he is in charge, and I am grateful to him.
Lord Denning: My Lords, I should like just to endorse the approval for the amendment. "Shall" and "may" are used interchangeably. Often "may" means "shall" or "shall" means "may". Now, by reason of these amendments, we get any ambiguity cleared up and everything now seems to be most satisfactory.
On Question, amendment agreed to.
4.4 p.m.
Lord Elton Lord Elton moved Amendment No. 2:
Page 1, line 15, leave out paragraph (c) and insert— ("(c) the prisoner has consented to being transferred in accordance with those arrangements,").
The noble Lord said: My Lords, in speaking to this amendment, with your Lordships' leave, I will speak also to Amendment No. 7.
Amendment No. 7: Page 2, line 13, at end insert—
("( ) The Secretary of State shall not issue a warrant under this Act unless he is satisfied that the consent given for the purposes of subsection (l)(c) above was given in a manner authorised by the international arrangements in accordance with which the prisoner is to be transferred and was so given either—

(a) by the prisoner himself; or

(b) in circumstances where it appears to the Secretary of State inappropriate by reason of the physical or mental condition or the youth of the prisoner for the prisoner to act for himself, by a person appearing to the Secretary of State to be an appropriate person to have acted on the prisoner's behalf.").

At Committee stage I readily agreed to consider introducing a Government amendment making subsection (l)(c) of Clause 1 more explicit as regards the circumstances in which consent to transfer might be given on behalf of a prisoner. I explained that consent by parents on behalf of young children would need to be provided for. The circumstances in which the giving of consent on behalf of a prisoner might very

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rarely be justified will be where the Secretary of State considers the prisoner incapable of deciding for himself because of mental disorder, because of physical disability or because of his young age. The new subsection (2B) proposed in Amendment No. 7 accordingly states this explicitly.
We have also taken the opportunity to guard against a possible lacuna in the operation of the provisions of the Bill. While the rights of parents to take decisions on behalf of their children, at least up to the age of consent, are well established, there is no recognised procedure in law for decisions of this sort to be taken on behalf of those whose mental or physical condition is impaired. We have concluded, therefore, that the most appropriate solution is for the Secretary of State to have power, on the very rare occasions when this may be necessary, to authorise a person to act on the prisoner's behalf. Amendment No. 7 accordingly provides the Secretary of State with the power needed for this purpose, and Amendment No. 2 is consequential upon it. These amendments clarify in two important respects the necessary provision in the Bill for consent to be given on a prisoner's behalf. I beg to move.
Lord Mishcon: My Lords, if I may remind the House, at Committee stage I mentioned the grave concern of the National Association for Mental Health in regard to those who were suffering from some form of mental disorder. Their concern was two-fold: first, who would be consenting on their behalf, and was there provision in the Bill for persons to act on their behalf, for such consent? That has now been answered by the noble Lord the Minister in his Amendment No. 7. It is clear that the Secretary of State can appoint such a person, and the power is now given.
However, perhaps I may also remind the House that there was a second matter of concern which I expressed at the same time—and again it was the concern of the association: that nothing was laid down in this Bill, and nothing had been said about what the procedure would be if it were to be outside the Bill, as to the guidance the Secretary of State would require—and one would have thought that necessarily it would need to be medical guidance—on whether it was in the medical interests of the patient that there should be this transfer. Of course, there is a procedure under the Mental Health Act 1983, which applies in rather different circumstances.
The noble Lord the Minister promised that he would consider that second matter as well and I know the House will allow me to read a very short extract from a letter that he was good enough to send me, only so that it appears on the record and that the procedure is abundantly clear. In the course of that letter, which is dated 2nd April 1984, the Minister said this:
"What we have in mind, therefore, is that if a case of this sort should arise we should adhere as closely as possible to the procedure which Parliament had laid down in the Mental Health Act 1983 for the removal abroad of alien mental patients. This would entail the Secretary of State being satisfied that transfer was in the patient's best interest and that proper arrangements had been made for the transfer and for his care or treatment in the other country. It would be outside the formal remit of a mental health review tribunal to advise on such a case but the intention would be to seek the views of a panel of experts constituted in exactly the same way as a mental health review tribunal and consisting of persons who sit on such tribunals".
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I am sure that the society I mentioned to your Lordships will be very grateful for that statement which was contained in the Minister's letter and which makes quite clear the procedure which will be adopted in protection of mental patients from abroad who will be transferred from this country.
Lord Donaldson of Kingsbridge: My Lords, we are grateful to the noble Lord for introducing this amendment, which I think covers the situation as well as can be done. I am a little worried about one thing: the expression "mental or physical condition". Supposing somebody is a very disturbed character, as some are apt to be, and is absolutely determined not to be brought back, but comes under this definition of being mentally or physically incapable of making proper decisions. In such a case can the Secretary of State overrule his determination not to be brought back, and bring him back? This is an awkward question and I ask it because I think we ought to face it. These cases are so marginal, but we shall get cases of this kind and it is at least as well to ventilate the situation.
Lord Avebury: My Lords, I, too, am very grateful to the Minister for the care with which he has considered the points that were raised at Committee stage, not just on his amendment but on all the cases where he agreed to look at what was suggested by your Lordships in Committee. We are most impressed with the work that he has been doing, and are grateful to him for the attention that he has paid to the points that we raised. On this one, I am very happy about the way that it is expressed, except that I think, following what the noble Lord, Lord Mishcon, has said, it might have been a good idea if there had been some link between this Bill and the Mental Health Act 1983.
The wording which was in the Minister's letter that the noble Lord. Lord Mishcon, read out sounded to me very like Section 90 of the Mental Health Act 1959, which I think was transferred intact into the 1983 Act. That provides, as the Minister's letter said, that proper arrangements have to be made for the care and treatment of a patient in his country of origin if he is to be sent overseas. The Minister has said that he would adhere to that provision and that, obviously, in the case of British patients being brought back from special hospitals overseas to equivalent institutions in this country, that would apply also. So I am suggesting for further consideration when the Bill reaches another place that it might be an idea, in the case of these psychiatric patients, to make it explicit on the face of the Bill that the arrangements mentioned in the 1983 Act will be followed.
Lord Melchett: My Lords, may I echo what the noble Lord, Lord Avebury, has said about the lengths to which the Minister has gone to meet a number of points made at Committee stage? It might be worth mentioning that Amendment No. 11, which is in the names of the noble Lord. Lord Donaldson, and others, including myself, will clearly be withdrawn as it is identical to Amendment No. 7, to which the noble Lord is now talking, which shows the lengths to which he has gone to pre-empt the suggestions made by noble Lords in Committee.

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For my part, I am inclined to think that the wording in the noble Lord's Amendment No. 7 is right, because it seems to me that in the circumstances that we are talking about there will be quite a variety of cases—albeit a very small number of cases—where people are not in a position to exercise a judgment and to make a decision. There will be cases where people are so physically ill, for example, as opposed to being mentally ill, that they are not able to exercise a decision, and where it would be right for the Secretary of State to recognise somebody else, a relative in this country, as being in a position to take a decision for them. So for my part, I am not really persuaded that it is necessary to go beyond the terms of the amendment, and I am very grateful to the noble Lord.
Lord Elton: My Lords, I am grateful for the gracious way in which all noble Lords have received our efforts to meet your Lordships' wishes. If I may very briefly, with your Lordships' leave, address the three points raised, I would say to the noble Lord, Lord Donaldson, that if the prisoner or patient in question was incapable of making a rational decision, the Secretary of State would be empowered to overrule him. The delicacy of the issue is on the judgment, not so much of whether he should come back but of whether or not he is capable of a rational decision.
That leads me to the noble Lords, Lord Avebury and Lord Melchett, and, in view of the late stage and the clarity with which they have expressed their views, the best thing I can do is simply to undertake to draw what they have said to the eye of my honourable friend before this Bill goes to another place, and that I freely do.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 3:
[Printed earlier: col. 609.]
The noble Lord said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 4:
[Printed earlier: col. 609.]
The noble Lord said: My Lords, on the same grounds, I beg to move. On Question, amendment agreed to.
Lord Avebury Lord Avebury moved Amendment No. 5:
Page 2, line 6, after ("citizen") insert ("or had indefinite leave to remain in the United Kingdom and had been ordinarily resident in the United Kingdom at any time in the two years preceding his conviction for the offence for which he was imprisoned;")
The noble Lord said: My Lords, I have to begin with an apology to the Minister and to your Lordships for the fact that all the amendments that are tabled in the names of myself and my noble friends have a star against them. We were working rather against the clock because, as the noble Lord realises, we saw the Government's amendments only on Thursday, and we were not able to consult with our advisers until the week-end and to draft our own amendments, in the light of what had already been tabled by the Government, until yesterday afternoon. So I apologise
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to your Lordships for the lateness with which we have been able to act in this matter.
The first amendment in our names is a follow-up to one that we moved in Committee, when we were discussing the circumstances in which the Secretary of State would exercise his discretion to issue a warrant under Clause l(2)(b) of the Bill to provide for the transfer of a person having close ties with the United Kingdom back to this country. The Minister has since then been good enough to write to me explaining what he has in mind.
He said, first, that in some cases a person will continue to qualify for entry in the capacity in which he was originally given an indefinite leave to remain, and the examples that he mentioned are those of a wife or a dependent child of a man who has settled here. He said that in those cases the fact that he or she has been absent for more than two years will not prejudice the entitlement to return. The question that occurs to me there is this. If the person was originally entitled to enter as a dependent child but, when he comes to the end of the sentence, he is, with the efflux of time, over the age of 18, will the Secretary of State invariably exercise his discretion to allow him to re-enter? As the noble Lord will recall, there have been one or two cases of that kind, where a person was below the age of 18 when he or she was sentenced overseas but where, at the end of the two years, he or she was above that age and would not therefore have been entitled to enter, if an application had been made in respect of him or her, as a dependent child of a person settled in the United Kingdom at the end of that period.
The second question that arose in my mind on this passage in the Minister's letter was whether a spouse would always be given leave to re-enter even if, as a result of the separation caused by his serving a sentence of imprisonment abroad, the marriage had broken down, as very often happens with people serving sentences in the United Kingdom. If a person who has entered the United Kingdom perfectly legitimately as a spouse, and who has been given indefinite leave to remain, is then sentenced overseas and perhaps serves two to three years there, and if in the meanwhile the spouse in the United Kingdom has brought an action for divorce because of the separation and strain that that imposes on the marriage, would the person who had been granted indefinite leave to remain be admitted at the end of a period of more than two years?
In general, it would be a good idea to say in advance whether particular categories of people would be re-admitted, rather than leave it entirely to the Secretary of State's discretion. This amendment is an attempt to define a group which would have to be re-admitted, while still leaving the Secretary of State to exercise his discretion in respect of all other categories of persons.
The thinking behind the amendment is that if the person had not been in custody at the end of the two years' absence from the United Kingdom, then he would have been able to come back here and exercise his entitlement to return and he could be prevented from doing so only as a result of his imprisonment. Clearly, if at the end of the imprisonment he is denied the right to come back here, then this would be to punish him a second time, because without that imprisonment he would have returned to the United

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Kingdom and taken up residence here in the normal way. I hope, therefore, that the noble Lord the Minister will agree to this very minor, as I see it, amendment, which would normally be in conformity with the way in which the Secretary of State will exercise his discretion anyway. I beg to move.
4.20 p.m.
Lord Elton: My Lords, I am grateful to the noble Lord, Lord Avebury, for his preface to the amendment. While I accept that the star appearing against an amendment on a Marshalled List is not usually a merit star, I ought to tell your Lordships that as we tabled amendments a day later than I normally set as the minimum and as I was also visiting various prisons away from London at the end of last week, I was unable to sign the letter which had been prepared for me to send to the noble Lord, Lord Avebury, and to other noble Lords. Therefore I have no grounds for complaint, although the lateness of the tabling has caused us a certain amount of distress. I hope therefore that your Lordships will be indulgent of any defects in the replies that they receive as a result.
As the noble Lord, Lord Avebury, said, I have written to him about the exercise of the Secretary of State's discretion to admit to the United Kingdom persons who are not British citizens. In that letter I confirmed what I said at the Committee stage, that decisions about the repatriation of prisoners who are subject to immigration control will include consideration of whether it would be in accordance with immigration policy to admit them. I emphasise that it would, in our view, be quite wrong if the arrangements for repatriation provided for in the Bill were to be operated so as to allow people to enter this country who would not qualify if they had not been convicted of a crime. At the same time, where persons have close ties with the United Kingdom I should expect that in many cases they would be admissible under our immigration policy.
As I said before, I can give no blanket assurance about the admission of all persons who previously had indefinite leave to enter the United Kingdom and who had been in prison abroad for more than two years. The decision in any individual case would depend on whether the person's return would be consistent with normal immigration policy and would vary from case to case. There should be no difficulty about persons who would qualify for entry in the capacity in which they were originally given indefinite leave to enter—for instance, where the person is the wife or dependent child of a man settled here. In those cases, the person's entitlement to enter the United Kingdom will not be prejudiced by the fact that he has been absent from the United Kingdom for more than two years. In certain other cases, a person may qualify for entry on the ground that he has lived here for most of his life. Paragraph 57 of the immigration rules applies here.
Another ground would be that he is a Commonwealth citizen who was settled here on 1st January 1973 and has been settled in the United Kingdom for the last two years. Otherwise, the only provision under which a person may qualify to return is paragraph 56 of the immigration rules, which states that the person must not have been absent from the
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United Kingdom for more than two years. This rule is intended to preserve the rights of entry of people who maintain close links with this country, and in general we are not prepared to set aside the two-year limit. An exception may occasionally be made where a person's absence was caused by circumstances beyond his control, but the fact that a person commits a crime which leads to his being imprisoned would not on its own normally be regarded as a sufficient ground for making an exception. In looking at any individual case, consideration will be given to the nature of the offence and how long the person has been absent before he commits it.
I should add that persons who have been convicted of certain serious crimes abroad may be debarred from returning, even where they would otherwise qualify for entry under the immigration rules. Paragraph 83 of the rules provides that such persons must be refused leave to enter unless there are strong compassionate grounds for admitting them. There are exceptions in respect of the wife or child under 18 of a man settled here, or of a Commonwealth citizen who was settled here on 1st January 1973. These exceptions would no doubt apply in some of the cases about which the noble Lord was particularly concerned. In reaching a decision on whether such a person could be repatriated under the Bill, it would be necessary to consider also whether there were strong compassionate grounds, or whether any of the exceptions applied.
I now turn to the noble Lord's amendment. Its effect is to extend the scope of Clause 1(2)(a) to include certain people who are not British citizens. At present, Clause l(2)(a) applies only to British citizens. People who are not British citizens may be repatriated under the powers in Clause 1(2)(b), but this is subject to their having close ties with the United Kingdom and only if the Secretary of State judges it appropriate. It is right to distinguish between British citizens and others in the way that the Bill now does and to make the transfer of non-British citizens discretionary. A person who is a British citizen has an absolute right to entry to this country. He is not subject to immigration control. If a British citizen wishes to serve his sentence in this country, then prima facie he ought to be transferred here, but the same cannot be said of people who are not British citizens.
The category of people referred to in the noble Lord's amendment who have had indefinite leave to remain here and who have been ordinarily resident here do not have an absolute right of entry to this country. They are subject to the Immigration Act and the immigration rules. The present position under the rules is that a person who has indefinite leave to remain may be readmitted to this country provided that he is absent for less than two years. His entry is still conditional on certain other requirements in the immigration rules, including a rule which prohibits the entry of anyone who has committed a serious offence, unless there are strong compassionate grounds otherwise.
The amendment would thus pick out as a special category for entry some people who would not qualify for entry under the immigration rules approved by Parliament. As I have already said, it is not intended that the Bill should enable a person to be repatriated who would not qualify for entry under normal

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immigration policy. We do not think that this Bill should be used as a means of changing the immigration rules, which this amendment would, perhaps as a by-product, do. That question should be addressed in its proper context, and that context is not this Bill. The Bill is not intended to alter the immigration rules or the immigration status of those whom it affects. As drafted, the Bill is consistent with that principle. It allows people who are not British citizens to be repatriated if they have close ties and the Secretary of State thinks it appropriate. We do not think it is necessary or appropriate to go further, and I am sorry that it has taken me so long to state that simple fact.
Lord Melchett: My Lords, it seems to me that the Government are making a bit of a meal of this. I do not say that simply because of the length of time it took the noble Lord to say that he did not approve of the amendment. For a start, whether the amendment is in the Bill or not, the Secretary of State still has the discretion to accept a prisoner back to this country or to refuse the transfer of the prisoner. That discretion is absolute. If, for example, a person is a convicted terrorist and the Government decide that his transfer back to this country is undesirable, whether he is a British citizen or someone who has indefinite leave to remain in the United Kingdom, the Government, as the amendment says, are still free to refuse him. That is why the Government are making a bit of a meal of it. It does not make that much difference to the Government's powers. It seems to me that the Government, in suspecting the motives of those who have put their names to this amendment—as I thought was the implication of the noble Lord's reply in believing that this is an attempt to change the immigration rules—have missed a point which would have been helpful to them.
I tried to follow the point the noble Lord was making, and it seemed to me that the Government, if the amendment is not accepted, will have to look behind the offence for which somebody has been convicted abroad, if it has prevented them from returning to the United Kingdom for two years, and will have to decide whether they committed the offence, whether they were reasonably convicted of it and whether the offence they have been convicted of would or would not be an offence in this country. That involves the Government in making a number of judgments about the criminal jurisdiction or some other form of jurisdiction (because we know that there may be other than criminal jurisdiction in other states), and deciding whether that person was properly charged, whether they had a reasonable hearing, and so on, in order to reach a judgment about whether they had a reasonable excuse for remaining out of the country, while in gaol abroad, for the period that they did.
Therefore it seems to me that the Government are introducing many unnecessary and difficult complications into the decision-making process, which this amendment would have allowed them to avoid in most cases. Therefore I hope that the noble Lord will try to look at the amendment on its merits in terms of this legislation and the process that the Government need to go through to implement it in particular cases and not be quite so concerned as it
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seemed to me that the noble Lord was about the possible implications of what is clearly a very sensitive matter in his mind—namely, the immigration rules.
Lord Denning: My Lords, I hope your Lordships will not accept this amendment. It is perfectly clear that in the ordinary way a British citizen has a right to come to this country—but as to a person who is not a British citizen, he is subject to the immigration rules. I should have thought that the immigration rules which we have often had to consider can be applied to this particular case and considered without any of the complications of this amendment. I would ask your Lordships to reject it.
Lord Avebury: My Lords, we are talking about people who have close ties with the United Kingdom and not about just any old foreigner who wishes to come back and serve the rest of his or her sentence in the United Kingdom. As the noble Lord, Lord Elton, is no doubt aware, some cases have already been submitted to his colleague Mr. David Waddington of people who did remain overseas for more than two years because they were serving sentences of imprisonment there. The Minister was good enough to exercise his discretion in their favour and to readmit them, notwithstanding the fact that they did not qualify as returning residents under paragraph 56 of the rules, as the Minister has said.
All I am trying to do with this amendment is to limit the exercise of discretion in a manner that conforms with the way in which the Home Office is already behaving. It has become the practice, as I see it, that minors who are Commonwealth citizens, having spent most of their lives in the United Kingdom with their parents, and having entered as dependants when they were very young, and who are convicted of offences overseas while in their teens, for example, are normally readmitted even if they have spent more than two years overseas. If that is the practice, then the Minister is not giving anything away by agreeing to the limits on discretion which are suggested in this amendment.
If I may say so also, in spite of the fact that the Minister explained very carefully what his reaction was to the amendment we moved in Committee, he did not address himself specifically to the two questions I asked in my introductory speech. The first was, what would happen normally in the case of children who are minors when they reach the age of 18 while overseas, and who therefore no longer qualify as dependants in their own right? Secondly, what would happen in respect of spouses whose marriages foundered while they were serving sentences of imprisonment overseas because of the separation or for other reasons; would they be entitled to readmission? We cannot really pursue these details at this late stage on Report, but I would request the noble Lord the Minister to put these matters before his colleagues in another place, so as to make sure that they are properly considered before this Bill gets there. Perhaps further thought may be given to them in the Home Office, with a view to specifying more exactly the circumstances in which this discretion would then be exercised.
Lord Elton: My Lords, with the leave of the House, I will be very brief because the noble Lord has, I believe, given a signal that he will allow this matter to be re-addressed in another place, and so I will not delay your Lordships. I just ought to say that I entirely take what I suppose was the drafting point of the noble Lord, Lord Melchett, in respect of the discretion remaining in subsection (2)(b). I thought it important to address the principle in the amendment, which was, I thought, to seek to bring about the position to which I addressed myself.
I should re-emphasise that if I were to give an answer in concrete terms to the two instances which the noble Lord, Lord Avebury, has brought forward (or to any other instances) I should be removing a discretion and giving an advantage—if the answer were to be, "Yes, there is to be a waiver on these occasions"—beyond that which other people in similar circumstances would have. It would also be entrenching a right to return to this country which I believe ought not be entrenched when one remembers that one is talking about people who, having been accepted for residence here, have gone away and committed a crime in another country and been imprisoned for it. Imprisonment is usually the fault of the prisoner. That does change circumstances and it is right that the Secretary of State ought to be in a position to review those circumstances when the prisoner asks for the right to come back again. I thought that I ought to put that on the record so that the noble Lord would not let this matter go to another place under a misapprehension about what I consider the Government's position to be.
Lord Avebury: My Lords, obviously I am not entirely happy with the Minister's reply. It is a matter that ought to be pursued in another place and therefore, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.35 p.m.
Lord Elton Lord Elton moved Amendment No. 6:
Page 2. line 13, at end insert—
("(2A) The Secretary of State shall not issue a warrant under this Act, other than one superseding an earlier warrant, unless he is satisfied that all reasonable steps have been taken to inform the prisoner in writing in his own language—

(a) of the substance, so far as relevant to the prisoner's case, of the international arrangements in accordance with which it is proposed to transfer him,

(b) of the effect in relation to the prisoner of the warrant which it is proposed to issue in respect of him under this Act,

(c) in the case of a transfer out of the United Kingdom, of the effect in relation to the prisoner of so much of the law of the country or territory to which he is to be transferred as has effect with respect to transfers under those arrangements, and

(d) of the powers of the Secretary of State under section 6 of this Act;

and, the Secretary of State shall not issue a warrant superseding an earlier warrant under this Act unless he is satisfied that all reasonable steps were taken so to inform the prisoner in relation to the earlier warrant before the earlier warrant was issued.")

The noble Lord said: My Lords, it may be for your Lordships' convenience if I speak also to Amendment No. 20:
Amendment No. 20: Clause 6, page 7, line 43, at beginning insert ("Subject to section 1 (2A) above,")
The proposed new subsection (2A) of Clause 1 is intended to give effect to three undertakings which I gave at Committee stage. The noble Lord, Lord Mishcon, proposed an amendment relating to the provision of information for prisoners in writing, in their own language, to help them decide whether to consent to transfer. I explained why we did not consider it appropriate to include certain of the items of information included in that amendment. In accepting the principle behind the amendment, I indicated that the Government amendment I should be proposing would be of a somewhat narrower scope. Our officials have since discussed this matter with officials of the National Council for the Welfare of Prisoners Abroad. I hope that this amendment will cover the items which it is generally agreed are practicable for inclusion in the proposed requirement.
Paragraph (a) of the proposed new subsection provides for prisoners to be informed of the substance of the relevant international agreements. This provision is in terms similar to the obligation imposed on sentencing states by Article 4 of the Council of Europe's convention on the transfer of sentenced persons. Your Lordships will wish to know that the Council of Europe is likely, later this year, to publish as a formal recommendation to governments of member states a standard text for the purpose of giving effect to this obligation.
The intention will be that each country which ratines the convention should deposit with the Council of Europe secretariat an authoritative translation of this standard text in its own language, modified as each country may consider appropriate. The secretariat will then copy each version of the standard text to the other countries which ratify the convention, so that each country will be able to provide prisoners who are nationals of other participating countries with information on the substance of the convention in their own language.
The United Kingdom, for instance, should receive in due course appropriate versions of the text for issue to prisoners of French, German, Italian, Spanish and other nationalities. This should be a very useful arrangement for ensuring that prisoners are reliably informed about the convention. I should in fairness add that it was the United Kingdom which suggested the arrangement and provided the initial draft of the standard text during the negotiations which led to the convention. I do not doubt that this will make some of your Lordships read that text with very close and critical attention.
Paragraph (b) of the proposed new subsection (2A) provides for the prisoner to be informed of the effect of the United Kingdom warrant which would be issued if he were to be transferred. It applies to both inward and outward transfers but its main relevance is to transfers to the United Kingdom from abroad. Information as to the effect of the warrant for inward transfers would include the type of custodial regime under which the prisoner would be detained; an indication of the maximum term to be served on transfer to the United Kingdom; and details of arrangements for remission and parole. Paragraph (c) relates to information to be provided to nationals of other countries who are eligible for transfer from the United Kingdom. The information should generally be on similar terms to

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that provided for British nationals abroad under (b), but the Secretary of State will have to rely on the authorities of other countries for the provision of authoritative information in each case.
The second undertaking to which subsection (2A) is intended to give effect is that which I gave to the noble Lord, Lord Avebury, in the context of his Amendment No. 67 at Committee stage. That proposed extending Clause 6 to preclude the issuing of a new warrant to correct erroneous material information given to the prisoner prior to his consenting to transfer.
Amendment No. 20 to Clause 6 makes it clear that a warrant may be issued in substitution for a revoked warrant only in accordance with the new subsection (2 A) of Clause 1. Thus a warrant superseding an earlier one may be issued only if the Secretary of State is satisfied that, before that earlier warrant was issued, the prisoner had been informed of the effect in relation to him of that earlier warrant. As I have already indicated, in the case of a transfer into the United Kingdom from abroad, the Secretary of State could not be satisfied that all reasonable steps had been taken to enable the prisoner to give a fully informed consent unless the prisoner had been given correct information concerning the length of the term he would have to serve and the provisions which exist for that term to be reduced by remission or parole.
If a warrant were issued following the consent of the prisoner in the light of the information he had been given, a superseding warrant would be possible only to the extent that it, too, reflected that information. In other words, if the earlier warrant proved to be defective because it was at variance with the material information given to the prisoner before its issue, the final words of subsection (2A) would prevent its being superseded by a fresh warrant which likewise failed to accord with that material information.
The third undertaking was also given to the noble Lord, Lord Avebury, after he had proposed Amendment No. 66 at the Committee stage to prevent the Secretary of State issuing a new warrant containing provisions less favourable than those in the original warrant unless this was provided for in the original warrant and in the relevant international arrangements. Paragraph (d) of the proposed subsection (2A), and the words of the amendment which follow it, ensure that a warrant substituting less favourable terms will be possible only if, as required by paragraph (d), the prisoner has been made aware before he consented to the issue of the original warrant of that possibility and of the circumstances in which it would be possible in his case to act under Clause 6.
I have spoken again at some length on this amendment as it embraces a number of important matters about which considerable concern was expressed at the Committee stage. I hope that your Lordships will agree that it deals adequately with these matters. I beg to move.
Lord Mishcon: My Lords, I think that it will be for the convenience of the House if such debate as takes place on this amendment also takes place on Amendments Nos. 8 and 9.
Amendment No. 8: Page 2, line 13, at end insert—

(" ( ) The Secretary of State shall not issue a warrant under this Act, other than one superseding an earlier warrant, unless the
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prisoner before consenting to the proposed transfer was informed in writing in his own language—

(a) of the substance, so far as relevant to the prisoner's case, of the international arrangements in accordance with which it is proposed to transfer him;

(b) of the effect in relation to the prisoner of the warrant which it is proposed to issue in respect of him under this Act, including where possible details of his earliest possible release date and the provisions regarding remission and parole that would apply to him; and

(c) of the powers of the Secretary of State under section 6 of this Act;

Secretary of State shall not issue a warrant superseding an earlier warrant under this Act unless the prisoner was so informed in relation to the earlier warrant before the warrant was issued.").

Amendment No. 9: Page 2, line 13, at end insert—
(" ( ) The Secretary of State shall not issue a warrant under this Act other than one superseding an earlier warrant, unless he is satisfied that all reasonable steps have been taken to inform the prisoner in writing in his own language in the case of a transfer out of the United Kingdom, of the effect in relation to the prisoner of so much of the law of the country or territory to which he is to be transferred as has effect with respect to transfers under those arrangements, and, the Secretary' of State shall not issue a warrant superseding an earlier warrant under this Act unless he is satisfied that all reasonable steps were taken to inform the prisoner in relation to the earlier warrant before the warrant was issued.").
I propose to deal with Amendment No. 8 and I have no doubt that the noble Lord, Lord Donaldson, will follow me in regard to Amendment No. 9.
At the Committee stage, what we wanted to secure by an amendment which we then put down was that "consent" truly meant consent. That implies that the party who gives the consent really knows all the material facts that he needs to know to make up his mind whether he agrees or disagrees with the transfer. After saying that there were some difficulties in his path in regard to the amendment that was then put down and in complying with some of the particulars in the amendment, the noble Lord the Minister at column 17 said this:
"That said"—
that is the part that deals with the difficulties—
"we recognise the justice of the principle behind this amendment, and, what is more, we sympathise with it".—[Official Report, 5/3/84; col. 17.]
The noble Lord carried through his sympathy not just mentally and in his heart but by putting down this amendment. We are grateful to him for that. Your Lordships may therefore think that it is possibly somewhat ungracious that we do not immediately rise to say how happy we are with it and that we accept it. But there is a reason, and it is not an ungracious one.
If your Lordships will be good enough to turn to Amendment No. 8, you will find that it follows, word for word (I think I am correct in saying), the amendment which your Lordships have just listened to and which was moved by the noble Lord the Minister—that is, until one gets to the last part of paragraph (b). Your Lordships will see in the third line these words occurring:
"including where possible details of his earliest possible releae date and the provisions regarding remission and parole that would apply to him".
That is possibly the most material consideration for any prisoner—to be told what would be his earliest possible release date if he came back to the United Kingdom, and indeed if he were going elsewhere from the United Kingdom, and what provisions regarding

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remission and parole would apply to him if he changed his country of imprisonment.
The words "where possible" are put in on purpose. It was very well realised that, to take, for example, a prisoner who has a life sentence, it is quite impossible to give the information as to when he will be released. As your Lordships know, in this country that depends on many considerations—on the discretion of the Secretary of State and matters of that kind—so the words "where possible" cover such a contingency.
This is a very material matter. I repeat that it is possibly one of the most material matters that the prisoner ought to have before him before he is asked to give his consent. Otherwise, in my respectful submission, "consent" does not mean consent at all.
Those who drew up this amendment were very considerate to the Government. They said, "Possibly you have gone too far in putting into one amendment and one clause provisions that relate to transfer in and transfer out", so there is a separate amendment put down in the name of the noble Lord, Lord Donaldson, and others, and I am happy to be associated with it. That is Amendment No. 9. It puts rather less of a duty upon the Secretary of State in relation to the matters dealt with. As I have said, the noble Lord, Lord Donaldson, will be dealing with that matter. I am content, for my part, to ask your Lordships to prefer Amendments Nos. 8 and 9 to the amendment now before you only because it omits the very words which I think are so important in regard to a prisoner's rights before he consents.
Lord Donaldson of Kingsbridge: My Lords, between them, Amendments No. 8 and 9 are really an amendment to Amendment No. 6. I do not think that I have anything to add to what the noble Lord said from the Labour Front Bench. If Amendment No. 8 were accepted, then you need Amendment No. 9; if Amendment No. 8 is not accepted, you do not need Amendment No. 9. There is nothing particular in it beyond that. In many ways we could have done this simply by having an amendment to Amendment No. 6, but that is not a very graceful way of doing it and it was thought that this was a better way.
Lord Denning: My Lords, I should have thought that Amendment No. 8 was unnecessary, because the words in Amendment No. 6 are:
"the effect in relation to the prisoner of the warrant".
The term "the effect" includes not only the immediate matter but also, I should have thought, details, where possible, of the release, and so forth, and parole. It would seem to me that the existing words in the proposed Amendment No. 6 would cover the position sufficiently without making it, in effect, mandatory, as in Amendment No. 8. In other words, I would support Amendment No. 6.
Lord Avebury: My Lords, I am most grateful to the noble Lord the Minister for the careful way in which he considered Amendments Nos. 66 and 67 which we moved at the Committee stage and for the way in which he has embodied them in his amendment. That part of it is extremely satisfactory to me, if I may say so, and I hope to my noble friends as well.
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With regard to what the noble and learned Lord, Lord Denning, said, we listen to him with enormous respect, and if he says that the wording in the Minister's amendment gives us what we want, we should be content to leave it at that. However, I should like to be assured that in the case of transfers inwards an effort is made to give the prisoners this vital information. As the noble Lord, Lord Mishcon, says, anybody who has spent time in prison knows that it is of absolutely critical importance to the whole way of life and the whole thinking of a person in custody. He is constantly working out how many weeks or months he has left to serve. He wants to know what would be the earliest date that he can get out, if he earns full remission and if he qualifies for parole, and what changes there will be in the length of the sentence according to the way in which these factors operate. If subparagraph (b) of the Minister's amendment means that he can invariably be given this information, then obviously it would be very reassuring. But one would like to see it written into the face of the Bill rather than be left to be implied by the word "effect". I do hope that some clarification can be given, if not on the face of the Bill, by the Minister being very specific in the reply he now makes.
4.50 p.m.
Lord Elton: My Lords, I am indebted to the noble and learned Lord, Lord Denning, because other noble Lords are prepared to accept from him phrases which apparently they do not accept from me. May I just repeat what I said when I introduced this amendment? Of course I spoke at some length and attention may have wandered but I will re-read one sentence:
"As I have already indicated, in the case of a transfer into the United Kingdom from abroad, the Secretary of State could not be satisfied that all reasonable steps had been taken to enable the prisoner to give a fully informed consent unless the prisoner had been given correct information concerning the length of the term he would have to serve and the provisions which exist for that term to be reduced by remission or parole.".
The emphasis was different and so indeed was the authority of the voice behind that, but the message was the same. I hope your Lordships will be content with our amendment.
Lord Mishcon: My Lords, I am not quite sure that I am in order, but having said that I was going to speak to Amendments Nos. 8 and 9 and certainly to No. 8 in the debate on Amendment No. 6, can I spare your Lordships another speech and another moving of Amendment No. 8 by replying now on this amendment—and, I assure your Lordships, doing it very shortly?
Of course I heard what the noble Lord the Minister said, and it will be on the record. That is where it stays. Not all your Lordships' debates are read with the avidity outside as they are by your Lordships who may be reading your own speeches in the Official Report. We are dealing with an Act of Parliament and I shall always bow, as I have said before in the course of my remarks today, to the learning of the noble and learned Lord, who I regard very much when I hear him talk law as my teacher, as I have also said before, and I am glad to be the pupil.
But pupils nowadays have the right to turn round to their teachers and debate with them. I would merely

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say to the noble and learned Lord that the words here are "the effect" and there can be an argument as to what "the effect" includes. The noble Lord the Minister says in his remarks—and he had to say this so that we knew what he meant by the words "the effect"—that of course this would include giving particulars of the sentences and the remission.
What is the point of leaving matters to doubt, especially when this Act of ours will be read in other countries with whom we will have an agreement? Why should it not say what the Minister says it means and which the noble and learned Lord says it means? Why should it not spell it out? It is just two more sentences on the statute book, but it removes a doubt. What a cheap cost that is for removing a doubt and for letting all the countries who might see this Act know exactly what we mean and exactly what the duties are.
I hope that the noble Lord the Minister, having acknowledged that these are essential things for the prisoner to know, and having seen in the amendment the words "where possible", will, with his grace and the charm that we have all got used to in this House, say that upon reconsideration he can admit these words so that there is no longer any doubt, and all of us will go away happy; and prisoners, who may have the benefit of this amendment, will be grateful.
Lord Melchett: My Lords, I wonder whether I can just add to what my noble friend has said. It does seem to me that there is rather more room for doubt about the meaning of the word "effect" than the noble and learned Lord, Lord Denning, and the noble Lord the Minister have suggested. After all, the effect of the warrant is to transfer the prisoner back to this country. We are talking about prisoners coming back here. It is surely the effect of other legislation, the legislation governing parole, remission of sentence and so on, which will affect the length of the sentence. I am not a lawyer and I do not think any of us are likely to be sitting in the court which may be called upon to decide this matter. It will not be done, as all of us know, with any reference to what is said in debates in your Lordships' House: it will be done solely by reference to what is said on the face of the Bill. It does seem to me that there is at least ground for argument for saying that the effect of the warrant is to transfer the person back here and it is the effect of the other legislation, which may change in the course of the person's imprisonment abroad or other changes that may be made, which will affect the earliest possible release date.
I urge the noble Lord to have one more look at this and to take some further advice before we reach the Third Reading of the Bill in this House. As has been said by my noble friend with great emphasis—and I think quite rightly—this is the one bit of information which it is vital for a person to have when they are imprisoned or incarcerated abroad, in order to make a sensible judgment about whether or not a transfer is in their interests. It is this, above all else, which they need to know.
May I make the point to the noble Lord, as he has said it in an earlier debate, that not all these people will be imprisoned for things that we consider are criminal offences. Some of them may well be incarcerated for things that they did which we fully support and which
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have the full support of Her Majesty's Government, or for things which we believe it is quite wrong for anybody to be incarcerated for. So we are not talking in this Bill only about people who have committed crimes in the terms which we understand it, which have been sentenced by due process of law in terms which we understand, and which are held in custody on any grounds which we in this country would think are justified. I hope all of us will bear that thought in mind when discussing the provisions of the legislation.
Lord Elton: My Lords, I am not sure whether our rules of order normally permit your Lordships to give me leave to speak three times but we are speaking to three amendments so perhaps you will be indulgent. May I say to the noble Lord, Lord Mishcon, that I do believe that the amendment which we have before us in my name will have the effect that he wants. He would like to see it spelt out so that he who runs may read and he who runs abroad may read.
I do not have a definite objection in principle to incorporating the words that he wants in the Bill. I strongly suspect we shall get into very deep water when we look at it—as we shall—when it comes to defining things like remission and parole. I may be wrong on this, but I want to make it clear that I think that what appears to be quite simple to achieve in drafting terms may be quite difficult. Therefore, when I say that we will look at this, I would not want your Lordships to think that I was lightly assuming responsibility for finding a niche in the Bill for the terms that the noble Lord has put in his amendment because I think we may find that the terms would require definition somewhere in the Bill, and I think that we could find that that would be quite a difficult thing to do. But I have listened carefully to what your Lordships have said. I recognise your reasons for wanting something on these lines and I will do what it seems to me proper to do in that respect.
Before I sit down, may I say that I of course accept what the noble Lord. Lord Melchett, quite rightly reminded your Lordships of—and reminded me of, indeed—that whereas most prisoners are in prison for their own fault, the fault is not always something that would appear to be a fault to us in this country, and we need to remember where our sympathies sometimes lie.
Lord Mishcon: My Lords, I am most grateful.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 7:
[Printed earlier: col. 610.]
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 2. I beg to move.
Lord Donaldson of Kingsbridge: My Lords, as I have down Amendment No. 11, which is in exactly the same words, I shall without further elaboration support this amendment.
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 8:
[Printed earlier: col. 621.]
The noble Lord said: My Lords, in the light of the remarks to which we have just listened, I do not propose to move this amendment.
[Amendment No. 8 not moved.]
[Amendment No. 9 not moved.]
5.1 p.m.
Lord Avebury Lord Avebury moved Amendment No. 10:
Page 2, line 13, at end insert—
("(2B) In the case of a transfer into the United Kingdom, the Secretary of State shall not issue a warrant under this Act, other than one superseding an earlier warrant, unless he is satisfied that all reasonable steps have been taken to ascertain whether any charges are intended to be brought in the United Kingdom against the prisoner and whether any warrants for his arrest in the United Kingdom remain unexecuted, and the prisoner has been informed in writing in his own language of any such charges or warrants, and the Secretary of State shall not issue a warrant superseding an earlier warrant under this Act unless he is satisfied that all reasonable steps were taken so to inform the prisoner in relation to the earlier warrant before the warrant was issued.")
The noble Lord said: My Lords, I am not quite sure why this amendment is down in my name because it is exactly the same as one that was moved in Committee by my noble friend Lord Donaldson, dealing with the question of information being given to a prisoner regarding the possibility that charges may be brought against him when he is brought back to the United Kingdom. In the course of his remarks on the earlier amendment, the noble Lord, Lord Elton, pointed out that the prisoner himself ought to be well aware of any charges that could be brought against him for past activities in this country. That would of course be true if the person concerned had been guilty of the offences.
But we are also postulating that when the prisoner is returned from a foreign country there may be brought against him charges of which he is wholly innocent. This is not a far-fetched proposition. One can remind oneself of the recent BBC programmes, "Rough Justice" in which it was shown that many people had been convicted of extremely serious offences, had served substantial terms of imprisonment, and were subsequently found to be innocent. Therefore it is right that we should give to people coming back from overseas information about their liability to prosecution here, and this is what we attempt to secure by means of the amendment.
The Minister did not really object to that as a proposition. What he said (as reported at col. 49 of the Official Report of 5th March) was that it might prove to be difficult to ensure that where the information was technically available to the Secretary of State, because it had come to the notice of an official, there was, as it were, no comeback on him later for failing to provide it in circumstances where the Bill would have required him to do so if my noble friend's amendment had been passed.
So we are returning to this point because the noble Lord did not elaborate on it and he was not given a chance to pursue it further because the amendment was withdrawn. I am not sure what advice the noble Lord has since been able to take, but it would be interesting to know how this amendment would operate, assuming the circumstances that he mentioned—that an official had knowledge of charges
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that were to be brought against an individual when he was returned to the United Kingdom, but the matter had not come to the notice of the Secretary of State and therefore he did not give that information to the prisoner as he would have been required to do.
It seems to me that if the amendment were passed, it would be incumbent on the Secretary of State to make whatever inquiries were necessary to ensure that if the information was in the hands of the police, for instance, or consular officials, it was indeed conveyed to the prisoner. I feel that this is not asking a great deal in addition to the other obligations that the Minister has been good enough to assume in response to other amendments. So I hope that in the light of the explanation that I have now given to your Lordships this amendment will prove to be equally acceptable to the Minister. I beg to move.
Lord Elton: My Lords, how I sympathise with the noble Lord, Lord Avebury, when he says that he is not quite sure why the amendment has been put down in his name. That is a position in which I occasionally find myself—though not able to reveal a very similar feeling—but I am happy to say that on this Bill I am four-square with Government policy. The amendment picks up the point addressed by the noble Lords opposite at the Committee stage in their Amendment No. 26, and that amendment itself picked up one of the points enshrined in their earlier amendment at that stage, No. 25. The amendment that we now have before us is rather different, but that is its ancestry, and I refer to the earlier, Committee stage amendment because it was in our discussion of that amendment that the comparison between what is proposed to be done under the Bill and what is in practice done under laws of extradition was first mentioned. It was the noble and learned Lord. Lord Elwyn-Jones, who in a passage in which he coined the word, "extraditee"—I am sorry to bring that up when he is not here, and I add that he instantly repented of it—said that he was a little unhappy about the discrepancy proposed.
The concern at the bottom of this amendment, as with its predecessors, I believe, is therefore that a British prisoner shall not be surprised upon his voluntary return to this country in custody to find that he is charged with further crimes. If a person is extradited to this country from another, the law protects him from being charged with any crimes other than those which form the basis of this extradition. That is not what is proposed in the amendment, and I think we can all agree that it should not be.
The fact is of course that a person who is extradited to this country is alleged to have committed crimes but has not been convicted of them, while a person transferred under the Bill will have been convicted of a crime and have been sentenced for it, whatever may be our view of that offence. That is a fundamental difference which alone makes the analogy between transfer and extradition, if there is one, a false one.
But there is a much more fundamental difference, and for our purpose one that is more relevant, too. It is that the person being extradited is travelling under duress, while the person being transferred will certainly be doing so voluntarily, and in many, and probably almost all. cases will be doing so at his own

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request. The duty to protect from prosecution on other counts the person extradited arises therefore in circumstances entirely different from those we are now looking at, and I believe that that difference ought to bear on what is now proposed in the amendment—a duty to inform the person being transferred, in so far as is reasonably possible, of any further charges awaiting him.
Repatriation of prisoners is not going to be an exercise in which the Government sweep British prisoners out of foreign goals and into Britih courts. It will be an exercise in which British prisoners may seek the comforts of British goals, which may seem meagre to us, but which could look very agreeable indeed when seen from a foreign cell. Others may seek the transfer on their behalf, just as others may seek the transfer of foreign prisoners outwards from our prisons to their native gaols, but in either case the prisoner is the intended beneficiary and cannot be removed without his consent. I have already said in Committee that that consent will be based on information provided in large part by the Government, and your Lordships have just accepted a Government amendment which provides that that shall be so.
I have also said that where the Government are aware of further charges outstanding the prisoner will normally and routinely be informed of them. The prisoner, we must presume, will at least be aware of what crimes he has committed and those for which he has not been brought to book. The amendment now asks not just that he should be informed if the Government know whether the authorities are aware of any of the crimes and are likely to pursue him for them—and that, I should have thought, was a fairly generous action on the part of a central law enforce-ment authority, anyway—but would have us go further than that. It would require central Government to see that all reasonable steps had been taken to ascertain whether any charges are intended to be brought against him, or whether any warrants for his arrest in the United Kingdom remain unexecuted.
Before I rose to my feet I did not know much as to what the noble Lord had in mind as regards the meaning of "reasonable" in this context, but it coincides exactly with what I had put down as probably being reasonable. That is that it would mean inquiring of every police force in the United Kingdom as to whether it had anything of this kind, either in existence or in contemplation, against the individual. That in turn would mean that 52 separate police forces up and down the realm would all have to search their records under the name of the prisoner and any other names by which he might be known, as well. That would be a very large bureaucratic exercise, and it would probably not be the only one necessary to meet the amendment; and all for what?—to ascertain whether a convicted offender can return to this country to serve the remainder of his sentence secure in the knowledge that he would be safe from prosecution for any other crimes which he might have committed before he left it.
My own view is that that would be bending over backwards to be fair so far that we should fall over. It is up to the prisoner to decide whether he wants to come home, and he has every opportunity to say that he does not. The amendment offers quite expensive
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preferential treatment from which the only significant beneficiaries would be people who had committed other crimes in this country for which they had not been caught or punished. I can think of better ways for our officials and policemen to spend their time and our money.
Lord Melchett: My Lords, if I may say so to the noble Lord, what he says is based on two quite false and extraordinary hypotheses. First, he seems to be suggesting that there is absolutely no exchange of information between different police forces in this country, no such thing as computers and no such thing as centralised records for people suspected of offences or liable to be charged with them, let alone people for whom warrants have been issued. That is odd coming from a Minister in his position. Surely, he accepts that there is some exchange of information between police forces and that there are records held centrally of people who are wanted for criminal offences.
The second false premise on which the Minister has spoken is, if I may say so, rather more fundamental. He seems to base his entire remarks on the assumption that anyone charged with an offence in this country is guilty of it and has committed it and that therefore anyone abroad, who is liable to be charged in this country, is bound to know about it because they have actually committed an offence. That does away with everything to do with trial, defence, judgment and so on. It is an absurd proposition. I hope that the noble Lord will accept that there are some people charged in our courts who have not committed any offence and who are rightly found innocent by the courts as a result.
It is therefore possible, I put it to the noble Lord, for people to be in the following circumstances. They are in gaol in a foreign country. They have committed no offence either in that country against its laws or done anything that would be an offence in this country. They have been locked up at the whim of a dictator in that country for political reasons to get at the British Government because the dictator does not like the policies of Her Majesty's Government. That is not an unknown circumstance under this Government or any other. The person is therefore innocent and held wrongly in gaol. The Government, quite rightly, through this legislation, make every effort to transfer the person back to this country. The person has not only fallen into unhappy circumstances abroad but has also had information laid against him by an informer in this country who has been trying to bargain away a severe sentence that, again, is totally erroneous about an offence that he has not committed or had any involvement in. But when he returns, he will face serious charges as a result.
In those circumstances, if I may say so to the noble Lord, this whole thing takes on a rather different character. It would be fair to the innocent person held abroad in gaol to be told that very serious charges, of which he is totally innocent, as it will eventually turn out, no doubt, will be laid against him. I hope, therefore, that the noble Lord will rethink his approach. We are not talking simply about people being informed about things that they should know already. If that was the case, there would be no purpose in having a criminal justice system in this country.
Lord Donaldson of Kingsbridge: My Lords, it was curious that the noble Lord in his initial remarks talked entirely about extradition, referred to what happened in Committee and quoted the noble and learned Lord, Lord Elton, who was not there—
Lord Elton: My Lords, I was.
Lord Donaldson of Kingsbridge: I meant the noble and learned Lord. Lord Elwyn-Jones. Did I say Lord Elton?—I am so sorry; it is old age. The noble and learned Lord, Lord Elwyn-Jones, was not present in Committee and there was no discussion about extradition at all. It seems to me that the case has been made that the Secretary of State should be under an obligation to do what is reasonable to find out whether anything else is involved. I do not think that courts would say that he has to consult every police station in the country. What is reasonable is to make an inquiry. Whatever is the proper way to do that, I do not know. It might be a question of consulting one or two sources about a man. I think that this is reasonable to ask in the few cases that we are expecting. Let us not forget that. All that this amendment really does is to say that if the Secretary of State does, with reasonable industry, find anything, he must disclose it. I would have thought that this is, on the whole, a reasonable request. I hope that the noble Lord will at any rate think about it. One of the reasons why the noble Lord, Lord Avebury, raised this matter was not pure chance, I feel sure. I had thought that he would press it much harder than I did last time, which he has.
Lord Lloyd of Kilgerran: My Lords, may I briefly support the opening line of the argument of the noble Lord. Lord Melchett, in relation to the reply of the noble Lord, Lord Elton, that one of the great difficulties in dealing with the aspects of the amendment of my noble friend Lord Avebury was that there were 72 police districts, or whatever they are, and there was difficulty from a bureaucratic point of view. It comes as a great surprise to me that the noble Lord. Lord Elton, is living in the Victorian era. As the noble Lord, Lord Melchett, has indicated, there are such things as computers. Perhaps the noble Lord, the Minister, has not yet realised that within the Palace of Westminster—I declare an interest in that I am a founder member—there is a Parliamentary Information Technology Committee, affectionately known as PITCOM. We would be glad if the noble Lord the Minister could spare some time in order to keep himself up to date with methods of communication. One of the main points of his argument, as I understood it, was that we cannot deal with this matter because we would have to communicate with 72 authorities. I am surprised that the noble Lord should have mentioned that at this early hour of the afternoon.
Lord Elton: My Lords, your Lordships were, I think, trying to sting me to my feet, and you have certainly succeeded. I always think that for people in our position it might be more comfortable to live in the Victorian age. I have, however, no illusions that I do. Nor, I believe, does the noble Lord, Lord Lloyd of Kilgerran. There is exchange of information between police forces and these forces do, of course, have
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computers. There is no central Big Brother—if there was, I am sure that the first person to try to hack it to pieces would be the noble Lord, Lord Avebury—which keeps a list of all the people the police suspect. What the noble Lord is asking us to do, if I may remind him, is to inform the prisoner not only whether any warrants are outstanding against him but whether it is intended to bring any charges against him. The only way that the courts could ever see that this was done would be to see that the Secretary of State had inquired of every police force that could do this. Even if it was on their computer, which is unlikely unless they decided to press a charge, it would not be on the central criminal record.
The noble Lord, Lord Melchett, suggests that I live out of touch with what is going on in this sphere. I have to tell him. however, that if the Home Secretary could not show that this had been done, it is my understanding that he would not be able to satisfy the courts. The noble Lord may be suggesting that we should have some central computer which lists not only every known criminal but also every known suspect, and have different files for those whom it is proposed to charge, those whom it may be proposed to charge and those whom it has been decided not to charge. I think that this would bring Big Brother a long step closer to Scotland Yard. I am surprised that any urgency in that direction should come from the Liberal Benches and the SDP. However, I must not try to needle noble Lords opposite to their feet. I think that what we propose is eminently reasonable and that what the noble Lord proposes goes far beyond that. I hope that your Lordships will not accept the amendment.
Lord Avebury: My Lords, I do not know whether the noble Lord is living in the Victorian era or whether he remembers the remark of one of his right honourable friend's predecessors, Sir William Harcourt, who said, after being told of the way that prisoners were putting on weight:
"My prisoners will grow so fat, it seems a positive cruelty to release them".
Here, we are talking about not releasing prisoners but whether they should be brought back to the United Kingdom in full knowledge of any charges that may be pending against them. I must say that the way that this debate has gone has surprised me. I thought, like the noble Lord. Lord Melchett, and like my noble friend Lord Lloyd of Kilgerran, that the police had computers that were able to communicate with one another. Contrary to what the noble Lord, the Minister, supposes, I am not against that. I believe in the preservation of law and order, the noble Lord the Minister may be surprised to know. I am in favour of the police having modern technology available to them which enables them to prevent and detect crime. I would have assumed naturally that if someone is arrested in South Yorkshire and taken to a police station there, it does not require an enormous effort by the officers concerned to ascertain whether he is wanted on charges in London. Wales or Scotland. I am sure that those facilities must be available to the police and that it is not a question of laboriously sending carrier pigeons to 52 other police forces in England and Wales plus a few more in Scotland, as the noble Lord has described.

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But what we are talking about in the amendment is "all reasonable steps". If the information was not available from the police national computer, which I think the noble Lord mentioned himself at the end of his remarks, then it would be reasonable that the Minister would not be able to provide this information to the person who was coming back from abroad. We are not asking him to do something which is enormously complicated. We are simply asking him to notify the prisoner in these rare cases where charges may be brought against a person who is perhaps totally innocent, as the noble Lord, Lord Melchett, said, so that he can make his decision on whether to come back to the United Kingdom in the light of that information. I do not intend to pursue this point this afternoon. I simply make these few brief remarks in the hope that some honourable gentleman in another place will take up the cudgels where we have left off. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
.[Amendment No. 11 not moved.]
5.21 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 12:
Page 2, line 13, at end insert—
("( ) In the case of the Secretary of State refusing to agree under section 1(1)(b) above to the proposed transfer of a prisoner into the United Kingdom, such refusal shall be in writing and accompanied by a statement of reasons and shall be notified to the prisoner in his own language.").
The noble Lord said: My Lords, I intentionally stayed out of the last debate not only because my noble friend Lord Melchett with his usual skill said everything that I would have said, but because I thought that if I kept away from the barbs which seemed to be flying from the Liberal and SDP Benches to the Minister and from the Minister back to those Benches, it may very well be that when I moved my next amendment the Minister would be somewhat more considerate to me. I move that amendment now and I do so with, as I have said, some optimism.
At the Committee stage it was the noble Lord, Lord Donaldson, who I believe moved the amendment. It seems as though there is a great partnership being worked out whereby people who did not move amendments last time are now moving them and are being supported by those who did so on the last occasion. But if it is all for a good cause, I am sure that your Lordships will appreciate it.
The central point here is made very definitely from the experience of the National Council for the Welfare of Prisoners Abroad who, as I am sure my noble friends agree—and I said this on the last occasion—have been very industrious, very energetic and very idealistic in furthering their objects and in briefing Members of your Lordships' House so that they can contribute intelligently to this debate. They assure me that they have very definite experience of cases where decisions have been made in regard to prisoners abroad by authorities over here, and the authorities over here have perfectly innocently acted on completely wrong information about the previous convictions of the people about whom they were talking. When this society has gone into the matter and has been able on behalf of these prisoners to show the authorities what the truth is. the authorities have
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admitted their error. Although it is absolutely tragic that the Secretary of State might once in 10 years be in the dilemma of not wanting to state the reasons for a refusal because it might in some way be an embarrassment or create difficulties, it would be much more of a hardship for there to be one case in 10 years where somebody is refused permission, the reasons are not given to him, and if only those reasons had been given to him he would have been able to get rid of those reasons by showing that their basis was not correct.
So the whole purpose of the amendment—and I can say it in one sentence—is to see that reasons for the refusal are given in order that the prisoner may have an opportunity of commenting on them and possibly putting right an error of fact. My Lords, I beg to move.
Lord Elton: My Lords, as I said at the Committee stage when an amendment along these lines was proposed. I see no problem in accepting that the Secretary of State's decision should be communicated in writing since written communication with the other state concerned would obviously be necessary. But I doubt the need for this to be a statutory requirement. Nor do I think we need to object to the suggestion that a refusal should be given in the prisoner's own language. We do not consider it acceptable, however, that the Secretary of State should be required to state his reasons for refusing. As I promised at the Committee stage, we have considered whether it might be possible to adopt a different approach to inward and to outward transfer. We have, however, I regret to tell your Lordships, concluded that such a distinction is not feasible. Given that disclosure of the Secretary of State's reasons for refusal in a case of either inward or outward transfer might involve revealing information or sources of intelligence related to criminal activities or matters of national security, the Government cannot agree that reasons for refusal should be given.
The present amendment concerns only inward transfers. I made it clear at both Second Reading and the Committee stage that the Secretary of State will not normally withhold his consent unless there are compelling reasons of public policy for so doing. Instances of refusal will, therefore, be extremely rare and it is true to say that they will be even rarer in the case of British citizens seeking inward transfer than in cases of foreign criminals seeking outward transfer, especially as British citizens would in any case have the right to return to the United Kingdom on their release from prison abroad. Even so, despite the likely rarity of cases of refusal, an obligation to disclose reasons might work contrary to the national interest in some cases and this is a risk that we are not prepared to take. I say that with regret in view of the great lengths to which the noble Lord went in order to put me in a good mood to receive his amendment.
Lord Donaldson of Kingsbridge: My Lords, I am just a tiny bit puzzled. It is a long time since the Committee stage and I have not re-studied the Bill. But does it anywhere say that the prisoner abroad is to be informed at all of a refusal? I cannot find it. It seems to me that if we have somebody in the type of regime about which we have been talking which is hostile to this country, they might simply not tell him. Unless something is sent to him in writing he will not know

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that he has been refused. If he is refused and there is an obligation to tell him—which I think must be in the Bill but I cannot find it—then it is reasonable that some reasons should be given.
Lord Elton: My Lords, as a preliminary let me say that clearly a prisoner abroad does need to be informed of the result of his approach whether that approach is made to the government abroad or to the Government of this country. The noble Lord asks me where in the text of the Bill I can find this obviously necessary provision. I do not know what the inverse of a filibuster is. but we are in need of making haste and there is other business to come. I can now refer the noble Lord to the contents of the international agreement under which the Bill is drawn. I understand that that is sufficient to secure that this exchange of information shall take place. If I have reason to put a gloss on that reply, I shall write to the noble Lord and to the other two Front Benches.
Lord Donaldson of Kingsbridge: My Lords, I am grateful for that very neat reply.
Lord Mishcon: My Lords, if I were as able to say something to your Lordships as the noble Lord is able with such skill to say nothing to your Lordships, I would be much more persuasive than I am. I wonder whether I can persuade the noble Lord the Minister to go some way with me on this matter. I think he will find that it is quite right that there is nothing in this Bill which makes it mandatory for the decision to be in writing. Indeed, at col. 35 on 5th March this year, when he was dealing with this amendment, he said:
"It is indeed our intention that the Secretary of State's decisions on requests for transfer should be conveyed in writing".
To me that meant—and I did not search further in the Bill—that he was merely stating a general intention which was a procedural one: he does not mind the communication in writing. Of course, that communication in writing is between country and country. We are talking about the communication in writing reaching the prisoner. As has been pointed out, there are some states which would not in fact ensure that the communication reached the prisoner.
Lord Avebury: My Lords, perhaps I may help the noble Lord. As the noble Lord, Lord Elton, referred us to the convention, I have been looking it up, and Article 4(5) says that:
"The sentenced person shall be informed in writing of any action taken by the sentencing state or the administering state under the preceding paragraphs as well as of any decision taken by either state on a request for transfer".
The question is why that phraseology cannot be incorporated in the Bill.
Lord Mishcon: My Lords, I am most grateful to my noble friend Lord Avebury. But I was concerned with the point that there could be cases—and I believe that this was a matter raised by someone else in the discussion—where, in spite of the fact that that is contained in a convention, the foreign state does not do it, and one is simply left with communications between two foreign offices about the failure to comply with the convention. By this amendment we want to
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ensure that there is an obligation upon our Government to ensure that the prisoner abroad, who is a British prisoner or one intimately connected with this country, receives the refusal.
Lord Elton: My Lords, it might perhaps expedite the proceedings if I say that our objection is to giving the reasons in writing, not the information in writing. I am quite happy to undertake to consider between now and a later stage whether we could include the giving of the decision in writing. If we cannot come to a conclusion in this House, I am sure that we could do it in another place.
Lord Mishcon: My Lords, I am most grateful to the noble Lord. I was trying to do it by stages. I was saying that there should be no difficulty in that part of the amendment which refers to the statement in writing—the communication of that statement. Then we reach the point where the Minister cannot help us at the moment, which is the question of stating reasons.
The Minister said that what worried him about that is the fact that aspects of public policy could be involved. Before we reach the next and penultimate stage of this Bill, I wonder whether the Minister would consider an amendment which brings in the elements with which he is satisfied as well as a statement in the Bill that reasons would be given unless public policy dictates otherwise? I am trying to move towards the Minister in order to meet his exception. I am trying extremely hard to protect the prisoner against the errors, about which I was speaking, which would be so unjust. If the reason was merely that he had a whole string of convictions, so the Secretary of State thought, but in fact they belonged to another completely different person, and the prisoner was able to show the Secretary of State that that was the position, obviously that would not be a matter of public policy and, to that extent, I would be covering the position. If the noble Lord the Minister would kindly agree to consider the matter between now and the next stage of the Bill, I shall most willingly withdraw the amendment.
Lord Elton: My Lords, with your Lordships' leave, I have already conceded the first half of what the noble Lord asks. We shall look at the written decision. As to reasons under certain circumstances, I shall of course not refuse to look at that; and I shall look at it. I suspect that there may well be difficulties in that if we are talking about cases, which no doubt will be rare, dealing with national security, the very refusal to give reasons is a declaration that the authorities are on to something which they would not wish to declare. However, that is a hypothetical argument. I need to take advice on it. Therefore, the noble Lord may wish to withdraw his amendment until I have done so. However, I do not want to make him too optimistic.
Lord Mishcon: My Lords, with what shred of optimism I am left with after those remarks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.35 p.m.
Lord Donaldson of Kingsbridge: moved Amendment No. 13:
Page 2, line 21, at end insert—
(" ( ) For the purpose of paragraph (a) of subsection (2C) above, where notice of withdrawal of consent is received by the Secretary of State after the issue of the warrant but the withdrawal itself took place prior to the issue of the warrant, the warrant shall be treated as invalid.")
The noble Lord said: My Lords, this is a probing amendment of a perfectly simple kind. Under subsection 1(3) it is quite clearly stated that once consent has been given and the warrant issued, consent cannot then be withdrawn. Nobody questions that. Our legal advisers tell us that the Bill is silent on a situation which could easily arise, whereby the prisoner would withdraw his consent before the warrant had been issued but his withdrawal of consent would reach the Secretary of State after the warrant had been issued. With international communications, that is perfectly possible.
This amendment is tabled to make sure that in those circumstances the Secretary of State would accept the withdrawal. It is a very simple point and I think that it is correct. I do not think that it is elsewhere in the Bill and I am inclined to think that it ought to be included. I beg to move.
Lord Elton: My Lords, the noble Lord will recall that he brought this concern to the Committee, and I fear that my answer will be very much as it was then. Perhaps I can make it a little clearer. Subsection (3) of Clause 1 does not refer to the timing of notification of the withdrawal of consent to the Secretary of State. It refers to the timing of the withdrawl of consent itself. Under the Bill as now drafted, the validity of the warrant will therefore, among other things, depend upon the chronology of events.
If the prisoner withdrew his consent before the issue of the Secretary of State's warrant, as a matter of law the warrant would already be invalid, because one of the requirements for the issue of the warrant would not have been met. Even if notification of withdrawal of consent reached the Secretary of State several days after the issue of the warrant, this would not affect the position in law and the warrant would still be invalid. I think that that is what the noble Lord wishes to achieve, and it is in fact what is in the Bill.
Lord Melchett: My Lords, before the noble Lord sits down, can he say where the phrase "withdrawal of consent" is defined in the Bill? So far as I can see, that terminology is not defined anywhere in the legislation, and it is that which gives rise to the doubt which prompted this amendment both at the Committee stage and again now. Without its being clear at what stage the withdrawal of consent will have been deemed to take place, given that it is not defined, it seems to me that the need for this amendment remains.
Lord Elton: My Lords, I answer with a little hesitation that it is not necessary to have that phrase on the face of the Bill. It is a matter of fact in each case that the existence of the warrant is lawful only if the consent of the prisoner pre-exists it. If the prisoner withdraws that, it no longer has the prisoner's consent
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and therefore the legality of the warrant fails. It may be possible to put that in more legalistic and watertight language, and I shall put it on paper for the noble Lord and, if it is his wish, for the noble Lord, Lord Donaldson.
Lord Donaldson of Kingsbridge: My Lords, I am grateful and I certainly shall not press the amendment. Our legal advisers do not agree with this, and I should like the noble Lord to look at this matter very carefully because our legal advisers are very careful people. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 14:
Page 2, line 40, at end insert—
("(5A) In the case of a transfer into the United Kingdom pursuant to this section or section 4 below no criminal charges in respect of offences allegedly committed by the prisoner prior to his transfer into the United Kingdom shall be brought in the United Kingdom unless either:

(a) notice of liability to be so charged has been given to the prisoner pursuant to subsection (2B) above prior to his giving his consent to the transfer; or

(b) the alleged involvement of the prisoner in any offence with which he is to be charged after his transfer was not known to the Secretary of State prior to the said transfer.

( ) Nothing in subsection (5A) above shall affect the right of the private citizen to bring proceedings of any sort against a prisoner.").

The noble Lord said: My Lords, I have an idea that, having debated Amendment No. 10, this amendment ought not to be moved. Therefore, I do not move it.
[Amendment No. 14 not moved.]
Clause 3 [Transfer into the United Kingdom]:
Lord Elton Lord Elton moved Amendment No. 15:
Page 5, line 7, leave out ("and") and insert ("to").
The noble Lord said: My Lords, in moving this amendment, with your Lordships' leave, I shall also speak to Amendments Nos. 16, 17 and 18.
Amendment No. 16: Page 5, line 9, leave out from ("it") to end of line 18 and insert ("satisfies the following two conditions that is to say—

(a) it is a provision with respect to the detention of a person in a prison, a hospital or any other institution; and

(b) it is a provision which at the time the warrant is issued may be contained in an order made either—

(i) in the course of the exercise of its criminal jurisdiction by a court in the part of the United Kingdom in which the prisoner is to be detained; or

(ii) otherwise than by a court but for the purpose of giving effect to an order made as mentioned in sub-paragraph (i) above.

( ) In determining for the purposes of paragraph (c) of subsection (1) above what provisions are appropriate for giving effect to the international arrangements mentioned in that paragraph, the Secretary of State shall, to the extent that it appears to him consistent with those arrangements to do so, have regard to the inappropriateness of the warrants containing provisions which—

(a) are equivalent to more than the maximum penalties (if any) that may be imposed on a person who, in the part of the United Kingdom in which the prisoner is to be detained, commits an offence corresponding to that in respect of which the prisoner is required to be detained in the country or territory from which he is to be transferred; or

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(b) are framed without reference to the length—

(i) of the period during which the prisoner is, but for the transfer, required to be detained in that country or territory; and

(ii) of so much of that period as will have been, or be treated as having been, served by the prisoner when the said provisions take effect.").

Amendment No. 17: Page 5, line 23, leave out from ("in") to end of line 24 and insert ("sub-paragraph (i) or, as the case may be, sub-paragraph (ii) of subsection (2)(b) above."). Amendment No. 18: Page 5, line 37, after ("(2)") insert ("(6)").
Your Lordships will recall that at the Committee stage I readily sympathised with the remarks of the noble Lord, Lord Mishcon, about the obscurity of the language in subsection (2) of Clause 3. I undertook to consider whether this could be made clearer, though past experience forbade my being optimistic about this. I also undertook to consider whether arrangements for remission could be explicitly dealt with in the Bill. As to clarity, it has not I fear proved possible to go quite as far as your Lordships and I would perhaps have preferred. As your Lordships appreciate and have accepted, the Government must have a considerable degree of discretion in order to be able to negotiate acceptable transfer agreements with other countries. Some of them may have varying attitudes on this and on other questions relating to the repatriation of prisoners. Although, therefore. I think the amendment to subsection (2) of Clause 3 helps to make the existing provision somewhat easier to follow, I realise that the new subsection (2A) goes only part of the way towards satisfying the desire for more explicit provision which was expressed at the Committee stage.
Paragraph (a) of the new subsection does, however, require the Secretary of State to have regard to the maximum penalty (if any) that may be imposed in the United Kingdom for a similar offence, and paragraph (b) similarly registers the need for the time spent in custody before transfer to be taken into account, including any time treated as having been served—that is, in our terms, remission earned and pre-trial custody.
Although it has not been possible to be as explicit as some of your Lordships would have liked, I should point out that the Secretary of State's discretion under the Bill to impose custodial sentences by warrant is not completely unfettered. The power in Clause 3(2) can in all cases be exercised only to the extent that the relevant international agreements allow. That is clear from the terms of subsection (l)(c) of Clause 3.
It may afford some comfort to those of your Lordships who continue to feel uneasy about the scope of the Secretary of State's discretion and about the arrangements for remission if I explain to the House what is generally intended to happen in practice. The intention is that when a prisoner is being considered for transfer to the United Kingdom we shall establish with the other country what the total sentence was that was imposed by the overseas court, how much of that sentence has been served and, if appropriate, how much remission has been earned. On the basis of this information we shall agree with the other country precisely how much of the original sentence remains to be served and this will form the sentence to be served on transfer to the United Kingdom under the
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authority of the Secretary of State's warrant, unless the relevant agreement provides otherwise.
Under the Council of Europe Convention the sentence to be served in the United Kingdom will be limited to the maximum available for a similar offence committed in the part of the United Kingdom to which the prisoner is transferred. Where we wish to have agreements with other countries which do not wish to participate in the convention we shall seek to negotiate terms which are as close as possible to those of the convention; and, in particular, we shall try to secure agreement to sentences to be served on transfer to the United Kingdom being limited to our maximum. We must be realistic, however, and anticipate that this will not be acceptable to all countries and that some are likely to insist on their sentences being enforced in full. The experience of other countries in this field suggests that we shall generally be able to insist that, after transfer to the United Kingdom, our own arrangements for remission and parole will apply. Remission will apply to the sentence to be served in the United Kingdom as specified in the Secretary of State's warrant; any remission earned before transfer will already have been taken into account in fixing the sentence in the warrant. For the purposes, however, of calculating one third of sentence for eligibility for parole it should generally be possible to take account of the total time spent in custody, including the time served before transfer. Paragraph 2 of the schedule to the Bill enables this to be provided for in the Secretary of State's warrant. My Lords, I think that that may be as much as your Lordships wish to know of this.
Lord Mishcon: My Lords, the noble Lord the Minister has conveyed a favour not only upon this House but upon the English language in having changed the old Clause 3(2), which was absolutely meaningless, to the clause he now brings before us. For that we are indebted to him. The chief mischief which we were trying to get at in clarifying that clause was the very one of which the noble Lord the Minister has spoken; namely, that it would be untenable that we should be imposing upon someone who was brought back to this country a sentence of imprisonment which exceeded the maximum according to our own law for precisely the offence of which he has been convicted.
I do not think I can carry this any further in view of what the noble Lord the Minister has said as to the difficulties that exist in the matter. I can only hope—and it will be on the record of this House—that every effort will be made by the Government when negotiating these agreements that there should be a mutuality. There are many cases, of course, where foreign governments might have less of a maximum sentence than we have. If there could be that mutuality so that in no case was a transferred prisoner put to more of a maximum sentence than his native country had, then I think we would all be satisfied. With the noble Lord's assurance on this matter, I think I must leave it there.
Lord Elton: My Lords, I am happy to say that we shall always seek to achieve the best terms we can in the terms which the noble Lord has suggested.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 16,17 and 18.
[Printed earlier: cols. 638–639.]
On Question, amendments agreed to.
Clause 4 [Temporary return]:
Lord Elton Lord Elton moved Amendment No. 19:
Page 6, leave out lines 21 to 25 and insert—
("( ) A warrant issued under this Act containing, with respect to provisions contained in an earlier warrant, any such requirement as is referred to in subsection (2) above shall provide that any period during which the prisoner is out of the part of the United Kingdom in which the provisions contained in the earlier warrant have effect and is in custody, is to be treated (except to such extent as may be specified in the warrant in order that effect may be given to the international arrangements in question) as a period during which the prisoner is detained under the provisions contained in the earlier warrant.").
The noble Lord said: My Lords, this amendment gives effect to the desire expressed at the Committee stage that the Bill should provide specifically that time spent in custody outside the United Kingdom by a prisoner temporarily returned to the country of conviction for an appeal hearing should count towards the time to be served in the United Kingdom. In considering the implications of such a provision, we have encountered the problem that in some countries it is the practice that time spent in custody pending the outcome of an appeal does not count towards the sentence to be served.
Clearly it might not be acceptable to such countries that the United Kingdom should give the prisoner credit for such time contrary to their own practice. It has therefore been necessary to build an appropriate qualification into the Amendment. This will allow the warrant for temporary transfer to specify to what extent the time in custody outside the United Kingdom will not count towards the sentence to be served in the United Kingdom where the international agreements so require.
It is our intention to credit such time whenever the international arrangements permit, but your Lordships will understand that discretion is necessary in order to avoid our not being able to meet the requirements of other countries and hence denying prisoners the chance of transfer home altogether.
If your Lordships will permit me, I shall speak also to Amendments Nos. 24 and 26 in my name, and with Amendments Nos. 23, 25 and 27 in the names of noble Lords opposite.
Amendment No. 24:
Page 8, line 33, leave out ("(if any)").
Amendment No. 26:
Page 8, line 37, at end insert—
("(2A) The Secretary of State shall not be required to make any arrangement under subsection (2) above if it appears to him unreasonable to do so having regard to the means of the prisoner and to the impracticability of recovering the said amount, whether immediately or at some future time, from the prisoner or from any other source.").
Amendments Nos. 23 and 25 taken together would prevent the Government from taking action to recover a prisoner's travel costs until after his transfer, and would also remove the possibility of expenses being recovered from anyone but the prisoner. Amendment 27 seeks to amend the Government Amendment 26
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by omitting the words "from the prisoner or from any other source".
If I may take Nos. 23 and 25 first, their effect would of course undermine the Government's general policy on this issue which I sought to explain when speaking to our amendments. We believe very firmly that in general a prisoner who can afford to pay his return costs should be made to do so, and that he should therefore pay before transfer or sign an undertaking to pay after transfer. To restrict the Government's powers to recover costs after transfer would remove, as I think noble Lords must be well aware, a great deal of its effective leverage over a prisoner actually to commit himself to payment.
I make no apology for taking that line. It is in no way harsh to seek payment, or an undertaking, before transfer from those who can afford it or are likely to have the means at some future time. Of those whose circumstances are such that payment at any stage is obviously impracticable, my Amendment No. 26 fully takes care. As to Amendment 25, I cannot understand why noble Lords should seek to prevent persons acting on behalf of the prisoner from contributing directly to his costs. The clause as amended by my amendments would simply enable arrangements to be made for the recovery of expenses from, for example, a prisoner's parents rather than from himself.
There can be no question of the clause imposing any kind of involuntary obligation on these people if they do not want to pay. Nothing in the clause can compel them to do so. All the amendment would do would be to remove a potential source of contributions, and I do not believe that that is in the best interests of prisoners abroad. I must, therefore, resist these amendments.
On Amendment No. 27—
Lord Melchett: My Lords, I do not wish to interrupt the noble Lord. I am sure he is feeling under a lot of pressure as regards time as this Report stage may be taking longer than the Government originally envisaged. We are dealing with an important Bill, one that was started in this House, and it seems to me that there is some disadvantage in taking all these amendments together. They raise rather different points and if they are not debated separately those of us who are moving them do not have the opportunity to speak twice. For my part I should like to take Amendment No. 27 separately for those reasons, despite the fact that I am sure the noble Lord is being leaned on by others to try to speed us up.
Lord Elton: My Lords, the noble Lord is entirely within his rights. As I have not yet expatiated on Amendment No. 27, I will not.
On Question, amendment agreed to.
Clause 6 [Revocation etc. of warrants]:
Lord Elton Lord Elton moved Amendment No. 20:
[Printed earlier: col. 619.]
The noble Lord said: I beg to move, my Lords.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 21:
[Printed earlier: col. 609.]
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
5.52 p.m.
Clause 7 [Expenses.]
Lord Elton Lord Elton moved Amendment No. 22:
Page 8, line 30, leave out ("subsection") and insert ("sub-sections (2A) and").
The noble Lord said: My Lords, I am now in some confusion and if I repeat myself I hope your Lordships will forgive me. In speaking to this amendment I hope your Lordships will be content if I speak also to Amendments Nos. 24 and 26. Also I am sure that the noble Lord. Lord Melchett, will not wish me to speak to Amendment No. 27, so I shall consider Amendments Nos. 23 and 25 and if I allude to Amendment No. 27 I hope he will forgive me if I come back later.
We have carefully studied the remarks of noble Lords at the Committee stage on the recovery of the travel costs of prisoners transferred to the United Kingdom. We concluded that what is appropriate is an amendment which does two things: it must leave no doubt about the Secretary of State's general duty to seek to recover the prisoner's travel costs and it must make it clear that he is not obliged to make arrangements for recovery of these costs when he is satisfied that the recovery before transfer or at any future date is impracticable. I believe these amendments achieve that dual purpose.
We consider it necessary to take a firm line on the recovery of prisoners' travel costs because it would be ridiculous if they could get a free trip home while stranded, but law-abiding British tourists had to pay their fares back in full. It is appropriate, therefore, that the Secretary of State should have a duty to recover these costs and should in all but the most exceptional circumstances take steps to ensure that they are paid before transfer or that a signed undertaking promising payment after transfer is obtained. We do not accept that merely because a prisoner does not have the means to pay before transfer, and does not have assets in the United Kingdom from which he could repay on return to the country, the requirement to sign an undertaking to repay his travel costs should be waived. It should not be assumed that a prisoner of working age who is repatriated to the United Kingdom to complete his sentence will not, after his release, obtain employment and earn his living. A great deal of commercial life at present depends on people undertaking to pay in the future things which they enjoy at the present.
We can foresee the occasional exceptional case where an elderly prisoner, or one suffering from a severe terminal illness and who is without assets, is to be repatriated and who clearly has no prospects of ever earning his living again. In a case of that sort it would be reasonable for the Secretary of State to exercise his discretion not to make any arrangements for recovery of the travel costs. I stress, however, that we intend such a waiver to be exceptional.
Perhaps I may now try to allay some of the anxieties which were expressed at Committee stage about the question of recovering the costs. First, the reference in Clause 7(2) to recovery from persons acting on a prisoner's behalf does not carry the implication that a prisoner's family or friends should somehow be compelled to pay his travel costs. This would not be feasible. The point is simply that where the prisoner can arrange for some else to pay, or where someone else offers to pay, or is willing to sign an undertaking to pay, that will be acceptable and the Secretary of State may arrange accordingly. Secondly, there will be no question of prisoners being left to languish in foreign gaols because they cannot pay or arrange for someone else to pay their travel costs before their transfer. As I have made clear, a signed undertaking from the prisoner or someone else to repay after the prisoner's return to the United Kingdom will be acceptable. Furthermore it is not the intention that interest should be charged while the debt is outstanding. This would clearly be inappropriate, given that prisoners would be returning to the United Kingdom to serve a gaol sentence during which they would have no significant earnings.
I hope that that is both clear and presented in a form which is acceptable to your Lordships.
Lord Melchett: My Lords, the noble Lord has gone a long way towards meeting some of the criticisms we made at Committee stage, but I still have a residual worry which I will come to when I move Amendment No. 27. But I urge the noble Lord, however pressed we are for time, to bear in mind that we are not always dealing with people who have been fairly imprisoned. If I have the noble Lord's attention, he said, yet again, that all the cases we shall be dealing with under this Bill will in some way be less deserving than a stranded tourist. But that will not be the case where people have been incarcerated for no reason in quite unjust circumstances. In those circumstances there may be much stronger arguments for paying for their travel costs back to this country than there would be for a stranded tourist.
I make this point because I hope the noble Lord and his advisers will bear this point in mind when they deal with this Bill and the amendments to it in another place. They have consistently overlooked the fact that we are dealing in this Bill with people being transferred to this country and not necessarily people who, in our terms, are prisoners. We are dealing with people suffering from mental health problems and with people who may have been incarcerated quite unjustly and unfairly. It seems to me that if we had started off by changing the title of the Bill as some of us proposed the noble Lord might have stopped slipping into this fundamental error quite so often.
Lord Avebury: My Lords, it would be appropriate if I said one or two things about Amendments Nos. 23 and 25 at this stage. I must first thank the noble Lord for his efforts to meet us half way on these points, even if I am left a little confused about how to reconcile some of the things that the noble Lord has said and the amendment we now have on the Marshalled List.
For instance, at Committee stage the Minister told us that he could not explain precisely how the

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Government would take steps to assure themselves of the fact that the prisoner was broke. But today the Minister has said that even if he is broke he will still be asked to sign an undertaking because he can come back to the United Kingdom and after his release at the end of his sentence he will be expected to earn money and to repay the cost of his fare out of that income. As I understand it, it is not so much a question of ascertaining the means of the prisoner or of his relatives at the point where the transfer is contemplated, because if he is not being asked to pay cash but merely to sign an IOU then the operation of this clause depends on his future earning ability.
The noble Lord mentioned in passing that the only cases where it would be inappropriate or unreasonable to try to recover the expenses would be where a person was retired or incapacitated in some way and therefore would not be likely to return to the job market after his final release from custody in the United Kingdom. We need clarification on that point. Having ascertained that a prisoner is broke—by means that the noble Lord found difficult to define in discussing the matter (in col. 65 of Hansard) at Committee stage—the practice will be invariably to seek a written undertaking from the prisoner that he will repay the money. If that is to be the way the clause is treated, then there is all the more reason for Amendment No. 25 to strike out the words,
It would be the general rule that this money would be recovered from the prisoner himself and not from the assets at his disposal at the point of transfer from his future earnings, as the noble Lord has explained.
If I may come back to the first amendment, I am still a little anxious because the noble Lord the Minister used the word "leverage" in the remarks that he made. That was the point to which, the Minister will recall, we addressed ourselves when we initially raised the point on Committee. A person is in a very weak position if the consul approaches him while he is in a particularly unpleasant prison in Turkey or in Thailand, asks him if he will sign a piece of paper and represents to him that his chances of being transferred to a more humane environment depend on his agreement to this proposal. Therefore, more or less anybody would sign that document even if he is conscious of the fact that his ability to pay may be extremely limited, facing, as he does, a further period of some years in custody in the United Kingdom.
If I may come on to the second amendment, again, the noble Lord spoke on the last occasion of the rich uncles and aunts who might be expected to contribute to the fare. This afternoon he has referred only to parents. It is important for us to understand how far this obligation is going to be pressed. I have nephews and nieces in Australia who are extremely law-abiding but it is possible to imagine circumstances in which they might be convicted of an offence in, say, Turkey or Thailand and I should be very surprised, if not dismayed, if the Australian Government then sent me a bill for the fare to repatriate them to Melbourne or Canberra. I am sure that the noble Lord also may have nephews and nieces whom he can imagine being convicted unjustly in some foreign land and that he would then receive a demand for the cost of the fare—which it would be quite unreasonable to expect him to pay.
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I think that we should know to whom the Government will look when in this clause they speak of persons acting on his behalf. Is it merely to his parents, as the noble Lord said this afternoon? If it is to other relatives, to what distance are they intending to look? Is there any other interpretation, apart from relatives, that we can apply to this particular phrase? I think it is unlikely that we shall get far this afternoon. The Minister, as I have said, went some way towards meeting my intentions and those of my noble friend when he moved the matter on Committee. Perhaps he can throw some further light on these questions before we leave the two amendments to which I have addressed myself this afternoon.
Lord Donaldson of Kingsbridge: My Lords, this is not the time to go into detail. What I am concerned with is that not having enough money should not be a reason for not being repatriated. I think the noble Lord agrees with that. As far as I am concerned, so long as the Government have no right to put pressure on my relations and all that I have to do is to sign an IOU, I do not think that is unreasonable. I think that it would be most unreasonable if they had recourse to any of my relations. If you sign an IOU, you come home and serve another three years in the "nick", and afterwards (if you do not want to pay) you go bankrupt. It is simple. Anybody would rather do that than stay in prison in Thailand.
Lord Elton: My Lords, I am obliged to the noble Lord, Lord Donaldson. He made my principal point for me. It is not unreasonable if somebody is going to be flown back—and let us not always pick on Thailand; it is a country with many merits—from some far distant and hostile country where he is incarcerated in durance vile and he is told that that foreign government has agreed with our Government that he can be transferred home; that the terms of the warrant are such and such; that he will serve such a length of time, subject to such and such remission and consideration for parole on such and such a date; and that the air ticket will cost so much—not the air ticket of the escort; but just the air ticket of the prisoner. If he says, "Oh yes! You can forget that", I do not think we ought to be in a position of being forced then to repatriate him at public expense.
To the noble Lord, Lord Melchett, I would say that there may be cases—not, I suppose, too many but there may be some—where the prisoner is no less deserving than the stranded tourist who has lost everything in an earthquake. But he is no more deserving, either. And if the stranded tourist is required to sign such an undertaking, I think it possible that the stranded prisoner should as well. As far as payment is concerned, as I understand it, anybody who is prepared to undertake to pay or to pay will serve.
On Question, amendment agreed to.
[Amendment No. 23 not moved.]
Lord Elton Lord Elton moved Amendment No. 24:
[Printed earlier.]
On Question, amendment agreed to.
[Amendment No. 25 not moved.]
Lord Elton Lord Elton moved Amendment No. 26:
[Printed earlier: col. 641,]
On Question, amendment agreed to.
Lord Melchett Lord Melchett moved Amendment No. 27:
Page 8, line 37. at end insert—
("( ) the Secretary of State shall not be required to make any arrangements under subsection (2) above if it appears to him unreasonable to do so, having regard to the means of the prisoner and to the impracticality of recovering the said amount, whether immediately or at some future time.").
The noble Lord said: My Lords, I beg to move Amendment No. 27. The point here, as the noble Lord. Lord Elton, has already said, is simply the advantage of deleting from the Government amendment at some future stage the last few words, "or from any other source". I must say that the argument in favour of this deletion seems to have got stonger on listening to what the noble Lord has said about previous amendments. He said, as I understand it, that a signed statement from a prisoner to the effect that he will eventually repay the fare will be sufficient. I find that encouraging. The noble Lord's other remarks about the time period in which the Government would aim to collect the fare and the lack of any interest charges was also encouraging. I hope that the noble Lord is aware how grateful we are to him for the distance he has moved to meet these real concerns.
Having got that far, it seems to me very difficult for him to justify leaving in the Bill an express provision which would allow the Government, I am afraid, to lean on (if not to say, put quite undesirable pressure on) relatives, who may be quite distant relatives, of adults imprisoned abroad. It may be that there are people who are relatively wealthy related to a prisoner in an overseas country and it would be by far the easiest source from which the Government could obtain the money to repay the fare and by far the quickest. After all, if somebody has to return to this country and serve a long sentence before they are going to be in a position to repay the fare, the difference in value to the Government between that and getting it from a wealthy uncle, cash in advance or soon after transfer, is going to be considerable. I cannot see the justification for that unless it is to give the Government an opportunity to lean on relatives and say, "Look! If you do not cough up, we are very unlikely to transfer your nephew or cousin back to this country". I hope the noble Lord will convince me that that is (a) impossible on the face of the Bill and (b) that there is some other good reason for transferring the person back.
While on my feet and talking about the costs of transfer and whether or not they should be always charged to the prisoner, I will have to say to the noble Lord that there will be cases where people incarcerated abroad will have a much stronger claim to be repatriated freely to this country than the tourist who has lost all his possessions in an earthquake. I doubt whether the American Government felt it necessary to charge the American hostages held in Iran the cost of the air ticket home. It is possible that people held in similar circumstances (although perhaps not quite so dramatic) will be transferred back to this country under this legislation. It is important for the Government to recognise that there will be people
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coming under this legislation, people whom we all would feel it quite unjust to charge the cost of bringing them home, let alone their relatives if they were not able to pay. I hope that the noble Lord will be able to give some justification to those words, "or from any other source", which does not have the rather sinister connotation which, I am afraid, is still left in my own mind.
6.10 p.m.
Lord Elton: My Lords, I am grateful to the noble Lord, Lord Melchett, for his recognition of what we have provided under our amendment. We are at a point at which I find it very difficult to do more to assist the noble Lord, or at least to assist him to accept what we propose in the Bill. Certainly there will be very deserving cases and the Bill ought to take account of deserving cases as well as of undeserving cases, and it does give the Secretary of State some measure of discretion.
The noble Lord would like us to go further, but I do not see how we could do so without accepting it as a principle in the Bill that there should be some expectation that an expatriate prisoner, if I may so term him. should be flown home at public expense on certain occasions. I think that must remain a question of discretion. I can undertake to consider with my colleagues the extent to which administratively one could secure that what the noble Lord. Lord Avebury, describes as "leverage"—indeed, I used the word myself—is not unfairly exercised. All we are seeking to achieve is that the public shall be repaid for the expense of repatriation. I cannot think that there will be many occasions on which an able-bodied prisoner abroad would not be prepared to pay off the cost of his air ticket in order to get back to England to serve his sentence there. So I think that the occasions on which what the noble Lord sees as an injustice might arise are extremely limited, and I cannot believe that my right honourable friend would not recognise them when they occurred.
Lord Mishcon: My Lords, I am in a little difficulty because I do not like disagreeing with my noble friend at all and I certainly do not disagree with him as regards policy; but as my name has been attached to this amendment I think I must make something quite clear. I thought that what we were discussing—and I was with my noble friend completely—were cases where, quite apart from the question of means, it would be quite wrong and unreasonable for the Secretary of State to charge the expenses of the travel. We are speaking to an amendment. I notice, which is limited to the unreasonableness on the question of means, and not the circumstances of the case to which the noble Lord has addressed himself with considerable eloquence and feeling.
I agreed with him and I think it is only honourable to say that this amendment in fact limits the discretion on unreasonableness to the question of means, whereas the noble Lord, Lord Melchett, was saying (and, as I have said, I agreed with him) he did not think it ought to be limited to the question of means. It ought to be in cases where the Secretary of State finds it unreasonable to ask, or, in regard to means. where it is found ridiculous to "chase it". I think we owe

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ourselves a duty, before we leave this amendment, to "come clean", if I may use that colloquialism, and to say that is what we mean; and at the next stage of the Bill we ought really to bring forward an amendment to say what the noble Lord, Lord Melchett, has said so well.
Lord Melchett: My Lords, my noble friend is quite right. There are in fact two points and the amendment covers only one of them although I covered both in what I said. The first is the case where it would be quite unreasonable to charge people for bringing them home. The Iranian hostages, if there was an equivalent situation in this country and if they were transferred back here under the provisions of this Bill, would be a case in point. Although the noble Lord, Lord Elton, suggested that the Bill gave the Secretary of State discretion in such a case, I must say that on the face of it I cannot see that it does. I wonder whether the noble Lord would agree to write to us on that matter, rather than delaying our proceedings now. If I may say so, he is nodding his head, and that is on the record, so I think we can leave that one.
The second point is the question of whether it would be reasonable, when any independent adult is imprisoned abroad with limited means at his disposal and with the possibility of serving a long sentence here, for the Bill to contain powers to enable the Government to go to a rich relative and say: "Look, if you want Cousin Johnny home, why not agree to pay his air fare and then he will come back very quickly?" It is that pressure which I think would be impossible to resist although it may be difficult in some cases if the connection between the adult abroad and the adults in this country was a tenuous one with perhaps a broken-off relationship many years before. But the pressure is going to be extremely difficult to resist, and I think unwarranted. I am afraid the last few words in the amendment give rise to the possibility of that pressure being applied; and it seems to me to be something to which the noble Lord has not yet really addressed his mind. I hope that we shall be able to do something further on this before the Bill leaves your Lordships' House.
Lord Elton: My Lords, I will write to the noble Lord about discretion and I will also write to him about the second matter which he has raised. Of course, what will usually happen will be that young Johnny in prison in some distant clime will say: "Go to Aunt Margaret and she will pay". The representatives of the authorities will go to Aunt Margaret and she will either pay or not pay, and then it is up to Johnny to put it right. But I can see what the noble Lord is after, and I will write to him.
Lord Donaldson of Kingsbridge: My Lords, what Aunt Margaret should do is to write back to Johnny and say: "You sign an IOU and we will talk about it when you get out of prison".
Lord Melchett: My Lords, I am very grateful to the noble Lord, Lord Elton, for offering to look at both points, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Melchett Lord Melchett moved Amendment No. 28:
After Clause 8, insert the following new clause:
("Annual reports by the Secretary of State.
. The Secretary of State shall lay before Parliament annually a report by him on the discharge by him during the preceding year of his responsibilities under this Act.").
The noble Lord said: My Lords, this amendment returns to a point which we debated at Committee stage. The noble Lord, Lord Elton, said that he would at least look at the possibility of providing some information, although he did not go so far as to say he would be happy to accept the duty to report annually to Parliament. The justification for this is really a justification for the length of time that your Lordships have spent on the Report stage this afternoon and indeed on the Committee stage before it. It might be worth reiterating that this Bill introduces very sweeping discretionary powers in the hands of the Secretary of State—powers to imprison people in this country for things that are not offences in this country, powers to imprison people in this country for much longer periods than are provided for by the law in this country and powers to do things which we would not accept in other circumstances.
I think that we have all accepted the need for the very wide and sweeping powers and for them to lie in the hands of the Secretary of State, and also for the Secretary of State to have very considerable discretion in the way that they are exercised. But our acceptance of those points should not blind us to the fact that we are dealing with very major powers which go right outside the rules of natural justice and other matters which normally govern the power of the state to incarcerate people in prison and to do other things by way of punishment for activities they have been responsible for. It is because of these very wide powers and the novel features of the powers in this Bill that we have rightly taken some time to debate them today and at the Committee stage. I think it would also be right for the Secretary of State to report to Parliament on the way those powers are exercised.
The noble Lord said at the Committee stage that once we had got this up and running there would be very few cases for concern. I do not think that the noble Lord, or those of us who might want to read the report, would object if in some years it was a pretty brief document. That does not seem to me to detract from the main point at issue, which is that the Secretary of State wil be taking decisions with no trial by jury, with no publicity and with none of the features which we normally consider to be an absolute necessity before people are locked up in prisons in this country. None of those safeguards will apply, and in those circumstances it seems to me the least that Parliament can do is to insist on having a regular report about the way in which the Secretary of State has exercised these very wide but, in my view, justified discretionary powers. I beg to move.
Lord Elton: My Lords, I got the impression at the Committee stage that your Lordships would be satisfied without an annual report so long as the availability of relevant statistics would provide the means for monitoring the working of the repatriation arrangements. I therefore undertook to tell your Lordships at this stage what we would be doing about

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this. We have it in mind to keep fairly comprehensive statistics for at least the first five financial years of the Act's operation. Separate statistics will be kept for the three United Kingdom jurisdictions—England and Wales, Scotland and Northern Ireland—and for each foreign or Commonwealth country involved. The numbers of outward and inward transfers requested, agreed and refused will be recorded.
In the case of inward transfers, separate figures will be kept for British citizens and others. Transfers which are refused will be analysed according to whether refusal was by the United Kingdom, the other state or the prisoner. Inward and outward transfers of persons under 18 will be separately recorded and inward cases will be analysed by the type of establishment to which they are assigned.
Transfers from hospital and straight to hospital will be separately identified. We will record all cases when the consent is given on behalf of the prisoner under Clause 1(2)(b). Cases in which the warrant provides for a sentence in excess of the United Kingdom maximum for the offence will be specially noted, as will cases where variation of the warrant is necessary for any reason.
Statistics relating to costs for inward transfers will also be maintained. The costs of escorts and of prisoners will be separately recorded, and in relation to prisoners' costs information about recovery before transfer and undertakings to repay after transfer from prisoners or others will be included, as will any cases where recovery is waived. Any instance of temporary return to the country of conviction will be noted. I hope your Lordships will agree that this will be an effective array of statistical information which will be available on request and placed, I think I can say, in the Libraries of your Lordships' House and another place, and they should provide all the information needed.
Lord Donaldson of Kingsbridge: My Lords, I hope the noble Lord will accept that that is not what I asked for at the time of the Committee stage; but I think that it is a very satisfactory reply. I think we are all quite capable of writing in for information of that kind.
Lord Melchett: My Lords, the noble Lord has gone a very long way to meet my point, and I am again grateful to him, as I think all of us have been through-out the Report stage on this Bill, for the amount of help he has given the House in meeting points that have been raised. He said, a little uncertainly, that this information would be placed in the Library of your Lordships' House. That is on the record and he has not qualified the remark. I assume that that will be on an annual basis, because the noble Lord referred to statistics being kept annually. As we leave the Bill, the thought that we will have all this information placed in the Library on an annual basis to allow us to see the results of our work and the effect of the decisions which the Secretary of State has made is a very useful commitment by the Government, and I thank the noble Lord very much.
Lord Avebury: My Lords, before we leave this Bill, may I say what a pleasure it has been to work on a
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piece of legislation where the Home Office has been co-operative. It has been a most unusual and refreshing experience and one that contrasts sharply with so many of the other dealings that one has with the noble Lord's department. I do not want to introduce a sour note, but the wealth of statistics which he has now promised us certainly makes one envious when one thinks of how difficult it is to pry statistics out of the Home Office relating to prisoners in the United Kingdom, because always when one asks for those figures one is told that it is too expensive to collect them or that there is some other reason for not giving them.
This last amendment is the last of a long line on which the noble Lord has been extremely forthcoming and helpful to the House. We must express our gratitude to him for the way in which he has dealt with the Bill and for the improvements that have been made in it. I think that your Lordships have finished with the Bill in a much better form than it came to us, and that we have greatly reduced the amount of work left to do on it by another place.
Lord Mishcon: My Lords, if I had the power to appoint the noble Lord, Lord Avebury, to any ministry, it would be a great pleasure to appoint him to many of them; but I would not choose the Foreign Office or the Diplomatic Corps. May I, who in future will have to deal—as he will—with the Secretary of State through his very able representative in this House, and with officials of the Home Office, say how much I have been moved in the past by their co-operation and help, how I am absolutely overcome by the assistance that we have had on this occasion and how I look forward to many other Home Office Bills where I shall have exactly the same co-operation from them.
Lord Donaldson of Kingsbridge: My Lords, I must just say that I have worked fairly closely with the Home Office for the past 30 years and I have had only about three really bad rows, which is a jolly good record.
Lord Elton: My Lords. I congratulate the noble Lord, Lord Donaldson, and, with your Lordships' leave, I would say that if there is any candidate for the Foreign Office or the diplomatic service it ought to be the noble Lord, Lord Mishcon. I must take this brief moment of your Lordships' time to refer to something which the noble Lord, Lord Melchett, said, and I am grateful to him for his intention of withdrawing this amendment and for his kind remarks. I said something at the Committee stage when I think I unwittingly misled your Lordships.
I indicated that I thought the number of cases likely to be dealt with under the Bill would be of the order of two, three or four a year, once the initial backlog had been dealt with. I think I was right to stress that the numbers were unlikely to be large; but equally I think I was too optimistic, as the noble Lord, Lord Melchett, has suggested. The fact is that it is impossible to estimate at this stage precisely what will be the number of cases per year, but I understand it is fairly certain that it will exceed a mere two or three and I am very sorry if I misled your Lordships.

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If I may add some ashes to the sackcloth in which I now garb myself, I ought to add a word about a slip that I made in speaking about the definition of the Secretary of State for the purposes of the Bill, recorded at col. 69 of the Official Report. I think all of your Lordships will have realised this but it ought to be on the record. In response to a question from the noble Lord, Lord Somers, I indicated that, in practice, the Secretary of State in the Bill referred to the Home Secretary. That is the case in relation to transfers to and from England and Wales. I should have made it clear, however, that for the purpose of transfers to and from Scotland and Northern Ireland, responsibility under the Bill will fall respectively to the Secretary of State for Scotland and the Secretary of State for Northern Ireland. I regret the silly oversight in this matter which I made. Your Lordships have been so kind to me already that I am sorry to have to ask for your further indulgence. I can only say that I have found this an agreeable occasion, too.
Lord Melchett: My Lords, I am delighted that my amendment provided us with such an opportunity to be polite about each other. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Law Reform (Husband and Wife) (Scotland) Bill
6.28 p.m.
The Earl of Selkirk: My Lords, I beg to move that this Bill be now read a second time. This is a draft Bill which was drawn up by the Scottish Law Commission during its study of family law in Scotland. I think I can say that it comes from the other place with all-party support and indeed—in a procedure which we can perhaps regard as remarkable—the Second and Third Readings were taken on the nod without one word being spoken. But what is perhaps more important is that this Bill removes certain inconsistencies between Scottish law and the terms of Part IV of the United Nations convention on the elimination of all forms of discrimination against women. We have already signed this convention but, apparently, we have not yet ratified it and in so far as these elements of Scots law are an obstacle, they will be removed by this Bill.
It is difficult today to realise the changes in relation to the law between husband and wife which have taken place in the past 100 years. We had a rather highly developed system of family life in Scotland, and the statute book has been very extensively changed to meet the modern status which we accord to women today. In many of the clauses of this Bill, we are really dealing with a situation which existed 100 or 150 years ago; and, accordingly, I sometimes find it a little difficult to explain the implications of the various clauses.
Clause 1 abolishes actions for breach of promise of marriage. This is already the position in England and, I understand, in Australia and New Zealand. I do not need to add a great deal. All I would say is that it is particularly anomalous that there should be a penalty for withdrawing from an engagement, whereas there is no penalty for withdrawing from a marriage. Such actions are, therefore, wholly anachronistic.
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The first part of Clause 2 abolishes actions of adherence and is primarily intended to deal with desertion. It is clearly absurd that anybody should be compelled to live as either husband or wife by action of law. However, it was of value in deciding who was in desertion. This provision is not, however, necessary today and can be abolished. The second part of Clause 2 relates to the enticement of a spouse. Your Lordships may be interested to know that there is no recorded instance of such an action ever having been brought.
Clause 3 deals with the curatory of married women who are minors. This is clearly a breach of the equality of the sexes because it does not apply to men. It is also anomalous and quite unnecessary. Indeed, it is in conflict with the capacity of a woman to marry as a minor. If she is in a curatory condition, she will not be in a capacity to engage herself in marriage. This provision is altogether out of line with modern law.
Clause 4 deals with the choice of the matrimonial home. This provision was necessary in order to decide which of the two spouses was in desertion. It was left to the husband to choose which should be the matrimonial home. This rule is now rescinded; it is left to either party to decide. It is therefore left to the court to decide which of the two, the husband or the wife, is in desertion.
I turn now to the rules with regard to antenuptial marriage settlements. This was the only clause where I found that I needed some support for what it contains. Accordingly, I got in touch with Professor Love of the Department of Conveyancing at Aberdeen University and Dr. Clive of the Scottish Law Commission. May I make clear why it is that I believe that what amounts to the need for an antenuptial marriage settlement is no longer necessary and why marriage should no longer be regarded as an onerous consideration?
Many of us who have been trained in the law were brought up firmly in the belief that marriage was an onerous consideration and that it was important so to regard it. I should like to remind your Lordships, to quote Dr. Clive's words, that there was a time when this was necessary. First, it was necessary because donations between husband and wife could be recalled at any time. An antenuptial marriage settlement, which meant a settlement for a consideration of marriage, avoided the possibility of the recall of any gift or donation in marriage. Secondly, there was a considerable estate duty advantage in having a settlement of this character. Neither of those considerations now applies, partly because a woman now has control of her own finance, which in the middle of the 19th century was not the case, and partly because the estate duty advantage has now disappeared.
The real point at issue was whether, by making an antenuptial marriage settlement, you could avoid your creditors. In other words, you could put your funds into a settlement of this character and thus avoid having this money reclaimed. There was the further consideration that in a sense it implied that by making an antenuptial marriage settlement you were buying your way into marriage. This was an objectionable feature, to which certain ladies took exception. There is now very little advantage in making an antenuptial marriage settlement. Indeed, there is no difference between an antenuptial and a postnuptial settlement.

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That is the advice I have been given, which I repeat to your Lordships. For that reason, Clause 5 seems to meet modern requirements.
Clause 6 deals with the abolition of a husband's remaining liabilities for his wife's debts incurred before marriage. This is out of date. The purpose of that rule of law was that when a man married a woman he took over all her finance, for which he was responsible. He also took over all the debts which she had incurred before the marriage. This was necessary at that time but it is clearly unnecessary today.
Clause 7 deals with what is called praepositura. This is a legacy of the past—of the time when the husband was responsible for the movable property of his wife. The result was twofold. First, she had no credit. Secondly, she could not be distrained or have what is called diligence against her. The result was that if she incurred debt she could not be responsible for it. However, it was obviously a matter of convenience that she should be able to deal with the daily household requirements. For this purpose a special rule of law was available: that she could call upon and use her husband's credit for buying what are called normal domestic requirements. She was in the position of household manager. That is no longer necessary, partly because the husband does not take over his wife's finance and partly because she can have diligence effected against her. For both of those reasons, therefore, praepositura is no longer necessary.
Clause 8 relieves the husband of any action at law in which his wife is engaged, for which he has no responsibility whatever. Again this goes back to the time when a wife's property was largely in the hands of her husband. If she was sued at law. it was quite clear that her husband would have to pay. That is no longer necessary. The removal of this liability on the husband is only right and proper.
The purpose of the Bill is very largely to bring the husband and wife into sexual equality. However, it is fair to say that it relieves the husband of a good many obligations which he otherwise would have to hold on behalf of his wife. On the whole, therefore, both husband and wife can be quite pleased with the passage of the Bill. I beg to move.
Moved, That the Bill be now read a second time.—(The Earl of Selkirk.)
6.39 p.m.
Lord Wilson of Langside: My Lords, I have very little to say from these Benches, except to accord to this measure a very warm and wholehearted welcome and to express our appreciation of Lord Selkirk's presentation and admirably clear explanation of the provisions contained in the Bill. The principle of the Bill is admirable; it is concerned with bringing the law into line with the reality of the social and legal position of women in 1984. Who would want to quarrel with that?
The Bill effectively abolishes a number of quite long—some of them—and outdated rules. Not surprisingly, the consultations which the Scottish Law Commission had on the matter during 1982 and 1983 showed almost unanimous support for these provisions. I should like to pay tribute to the prepara-
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tory work and the report of the Scottish Law Commission. It is an admirable body, which from time to time I have been inclined to criticise. I have absolutely no grounds for criticism of the commission's approach to this matter. I have read with great interest the commission's consultative document, so carefully and painstakingly prepared, as well as the report. I am sure that your Lordships will willingly give to this Bill a Second Reading.
6.42 p.m.
Lord Ross of Marnock: My Lords, I should begin by apologising for the fact that my name does not appear on the list of speakers. This oversight is entirely my fault. Instead of sitting in my room I went to the Library; and no one would think of looking for me in the Library. This Bill is part of the review of family law which the commission is undertaking. We should be grateful to the noble Earl, Lord Selkirk, for having taken this matter up in the House and for going through the clauses with his customary clarity. If someone else had been introducing this particular Bill, I expect that the noble Earl would have had something to say about one or two of the clauses—so when we come to Committee stage, I will look forward to hearing some of the noble Earl's own opinions, because he always enlivens with his individual aspect some of the matters which come before us.
The noble and learned Lord the Lord Advocate has been very lucky in that he has had the Law Commission to prepare his Bill for him. If we look at the clarity and lucidity of this Bill, one finds none of the nonsense of having to refer to half a dozen different statutes. Each individual clause explains what the Bill is going to do. There may be some legal terms which are not familiar to everyone, but from the point of view of those who have been following family law. it is clear in the Bill what is being done. Let it be a model for the next roads Bill which the noble and learned Lord the Lord Advocate introduces. Let him await the Law Commission and he will save himself an awful lot of trouble.
We should be grateful that this Bill is bringing the law up to date because it is antiquated. I do not know whether the News of the World and papers such as that will be throwing their hats in the air at the fact that breach of promise will no longer be available in Scotland. When one thinks of it, as it is so easy to break a marriage today, why should we make it difficult to break a promise of marriage? That would be quite ludicrous. It has been suggested in some of the criticisms of the commission that we are offered in respect of this subject that one cannot judge by the number of actual cases of breach of promise; that behind a marriage there may have been a threat. To my mind, a threat of breach of promise is not a very good base for a marriage. It is sensible to bring this aspect up to date.
So far as adherence is concerned, before we changed the law in relation to divorce, it was one of the preludes to divorce to prove desertion. That is out now and I am sure we are quite right to get rid of that. The noble Earl said that enticement had not been used, but I gather that that is not exactly true. I believe that the Law Commission stated that there is no recorded case of damages being awarded for enticement; that is not the

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same thing. No doubt the noble and learned Lord will put us right on that particular point. It was the unanimous view of all those consulted that enticement should be abolished, and who are we to differ from those who are more concerned?
I agree, too, with what is being done in relation to the family home. Why should it be the husband's right to say where they shall live? All the changes that are being made here so well—if slightly belatedly—are in keeping with today's position. There may be some argument about the repeal of the husband's liability for his wife's debts. In recollection, I am familiar with this aspect because it was the shame of any woman to find what was known in Scottish working class terms as her husband "crying down his wife's credit". I gather that there could be a legal inhibition registered; but the usual form, certainly in Scottish working-class life, was for a husband to take an advertisement in the local newspaper announcing that he would not be responsible in future for any debts unless personally contracted. All the gossips knew that it was his wife he was getting at.
It did not always mean that the wife was a spendthrift and was recklessly running up bills. It might be that the husband was mean and did not always provide her with money. Whatever merits that might have had in the past, life has changed. Today it may be that the husband is unemployed and his wife is working; why should the husband be made responsible for her debts? Marriage is now accepted as being not so much of a contract but more a partner-ship based on give and take on both sides. It is right that liability should be abolished. Some husbands will regret the fact and some wives may regret it; but some husbands will like it. It is right and fair that this discrimination be ended and that we should depend on general law to sort matters out.
To my mind, we have done very well with this Bill. It is very well worded. I warned the noble Earl that I would go over every word of it, and I am surprised that he did not do so, because there are two changes from the draft Bill. One was necessary to change "1983" to "1984", because the Government did not quite come up to scratch and get this Bill passed last year. The other change is that, according to the Law Commission, the Bill would come into force one month after its passing. In the noble Earl's Bill—and he must take responsibility for this—it states that the Act shall come into force,
"at the end of the period of two months".
I hope that when the noble Earl is making his final remarks, he will tell us why there has been that change. Otherwise, I do not believe that anyone would object to making Scottish law much more realistic in respect of its attitude towards husband and wife.
6.49 p.m.
Lord Drumalbyn: My Lords, I am afraid that I do not have my name on the speakers' list either, but perhaps I may say a few words before my noble and learned friend the Lord Advocate replies. When we are making what are really very substantial and radical changes to the law, it is perhaps appropriate to see what we are changing the law from. I wonder how many people are aware of the differences in the law that exist between England and Scotland at the present
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time, yet there must be many tens of thousands of non-Scots in Scotland who are totally oblivious of what the law of husband and wife is. It would not be appropriate of course to ask my noble and learned friend to go through all the details of the law as it exists at the present time; but it would be at any rate a matter of interest, and I think a matter of importance, for us to know exactly what in fact the changes are.
It seems to me that we have been living in a good deal of ignorance about what in Scotland at the present time is the law governing our daily lives. The noble Lord, Lord Ross of Marnock, is shaking his head, denying that. He has probably moved in circles that discuss these things a great deal and knows exactly where he stands.
Lord Ross of Marnock: My Lords, may I say that the noble Lord has been far too long in England?
Lord Drumalbyn: My Lords, that is so, but I started in Scotland and started with some presumptions as to what the law was there. I am quite certain that I was not aware of what the law was then. I think that it would be appropriate if my noble and learned friend could indicate, perhaps even in passing, how people regard the law in Scotland, what the assumptions are, how much is taken for granted, let us say, in Scotland at the present time, where changes have to be made and what effect they will have. It seems to me that the effect of the Bill has been very lucidly described as to what it is going to be but less emphasis has been placed on the changes that are being made. I think that that is important if only to mark the historic changes that are being made and to make clear the changes in custom, as well as in law, that we are dealing with in this Bill.
6.52 p.m.
The Lord Advocate (Lord Mackay of Clashfern): My Lords, I am pleased to have the opportunity to make evident the Government's support for the Bill in this House. As has already been stated by my noble friend Lord Selkirk, the purpose of it is to abolish a number of obsolete and discriminatory rules and actions in Scots law. While some of these rules may have had a useful function in the middle of the 19th century, it is evident that they are at variance with the very different legal and social position of married women today. Some of the rules reflect outdated assumptions about the personal responsibilities of married women and their capacity to act on their own behalf—notions which in this day and age may be regarded not only as archaic but also as objectionable and discriminatory. As the noble and learned Lord, Lord Wilson of Langside, said, the Scottish Law Commission's proposals for reform are based not only upon its own thorough study of this area, but also upon consultations which indicated almost unanimous support for its recommendations. I have therefore no reservation in recommending to the Members of your Lordships' House that they should support this Bill.
I am very grateful to my noble friend for undertaking to pilot this important Bill through your Lordships' House and to his honourable friend and kinsman and my honourable friend for doing so in

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another place. I am also indebted to all noble Lords who have taken part in the debate. I am glad that the noble Lord, Lord Ross of Marnock, has spoken, although, as he explained, his name was not down on the list of speakers. I entirely agree with what he said about the clarity of this Bill. The Law Commission is very much to be commended on the very clear terms in which the Bill is expressed. I shall be endeavouring as best I can to emulate those good qualities when I have the opportunity.
As has been done by other noble Lords, I, too, should like to put on record my appreciation of the work done on this Bill, and much else besides, by the Scottish Law Commission, commissioners and staff alike. I finally say to my noble friend Lord Drumalbyn that the Law Commission is in the habit—and the report on which this Bill is based is no exception—of setting out the present law, the difficulties in the present law and what it is proposing by way of reform. It has done that clearly, and I would commend the underlying report to anyone who wishes to have a very clear account of the present law.
As the noble Lord, Lord Ross of Marnock, has pointed out, there are two differences between this Bill and the Scottish Law Commission's Bill. The first is about the date on which it is actually being taken through Parliament. So far as the two months is concerned, I think that it has been generally agreed that, unless there are exceptional circumstances, two months after it has been enacted is a reasonable moment for an Act to come into force, so that everyone is clear about its terms before it actually takes effect. I think that that was agreed as a matter of general policy some time ago. I certainly entirely support this Bill.
Lord Wilson of Langside: My Lords, before the noble and learned Lord sits down, may I tell him that I had the greatest difficulty today in getting a copy of the Law Commission's report? I asked for it in the Printed Paper Office and they were unable to trace it. The request was put on the computer but defeated even that.
Lord Ross of Marnock: My Lords, the noble and learned Lord should try the Library.
Lord Wilson of Langside: My Lords, they were unable to give it to me. I eventually told the noble and learned Lord's office and they finally gave me it, but I did have difficulty. On this occasion it was not my own stupidity. They could not give it to me in the Printed Paper Office and they could not trace it in the Library. I just thought that the noble and learned Lord should know that, as he commended that report.
Lord Mackay of Clashfern: My Lords, I am grateful to the noble and learned Lord for that information.
The Earl of Selkirk: My Lords, I should like to thank noble Lords for their support. I should particularly like to thank the noble and learned Lord, Lord Wilson of Langside, because he strongly congratulated the Law Commission on what it has done. I recall being very critical of the Law Commission. I wondered
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what it was going to do. Was it going to short-circuit Parliament, or what were its activities? But what it has done is to turn out an enormous amount of detail. The details of this Bill itself could not have been found out by anyone except the students of learning who went through it with very great care. We are greatly in the debt of the Scottish Law Commission.
The noble Lord, Lord Ross of Marnock, with his detailed eye. accused me of not knowing what had been changed in the Bill from the Law Commission. The first thing he pointed to was the date. The date changes automatically without any effort. Secondly, the two-month period was an amendment put in by the House of Commons. I did not think that it was of sufficient importance to draw to the attention of the House.
The noble Lord, Lord Drumalbyn, asked whether we could have a full picture of family law in Scotland. The truth is that it is pretty difficult, partly because of what existed in the middle of the 19th century. We had a much more developed system than they had in England, with all sorts of detailed legal rights of one kind and another which I do not think existed in England at all. To adapt that to an entirely new situation is a highly complicated business. This small Bill touches only on the very perimeter of it. I commend the Bill for a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Chronically Sick and Disabled Persons (Amendment) (No. 2) Bill [H.L.]
7 p.m.
Read a third time.
Clause 2 [Appointment and duties of Disablement Commission]:
The Earl of Longford The Earl of Longford moved Amendment No. 1:
Page 2, line 20, leave out ("people who are") and insert ("either").
The noble Earl said: My Lords, I hope it will be for the convenience of the House if, in moving this amendment, I speak also to the second amendment.
Amendment No. 2: Page 2, line 20, at end insert ("or qualified to represent such disabled people, at least a quarter of the total being themselves disabled.").
They represent a way of amending the composition of the commission that is to be set up. It will be noticed from the Bill, as it now stands, that there is to be a commission consisting of at least eight but not more than 15 individuals. For the sake of argument, to make this concrete, may I talk in terms of a commission of 12? I do not say it will be that but let us talk in terms of a commission of 12. To be sympathetic with the disabled, one is inclined to start with the idea that half the commission should be disabled. Then one reflects that this covers the mentally ill and the mentally handicapped, who would not be capable of playing a proper part in the commission. So I have brought forward a proposal

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which I should like to make comprehensible by again taking this figure of a commission of 12. Under the plan that I am now proposing, out of 12 in a commission, six of them would have to be either disabled or representative of the disabled, and at least three—that is a quarter—would have to be themselves disabled. I beg to move.
Baroness Darcy (de Knayth): My Lords, I should like very briefly to support this amendment. It seems to have succeeded admirably in meeting both the fears of the noble Lord, Lord Renton, about the representation of the mentally handicapped and the mentally sick in the commission and also the requirements of the noble Lord, Lord Ennals, that a substantial number of the members of the commission should be themselves disabled. I certainly think the noble Earl has the balance just about right now and I am very happy to support the amendment.
Lord Prys-Davies: My Lords, we warmly support this amendment. The voice of the disabled, and in relation to the needs of the mentally handicapped and the mentally ill, the voice of a near relative or a friend or those voluntary bodies which have evinced, shown and demonstrated an interest in the services for the handicapped, should be heard effectively in the commission. It would appear to us that the dialogue with the disabled should be accepted as central and should therefore be reflected in the commission. We consider that the amendment represents a considerable improvement and we are pleased to support it.
On Question, amendment agreed to.
The Earl of Longford The Earl of Longford moved Amendment No. 2:
[Printed above.]
On Question, amendment agreed to.
An amendment (privilege) made.
The Earl of Longford: My Lords, I beg to move that the Bill do now pass.
Moved, that the Bill do now pass—(The Earl of Longford.)
Baroness Lane-Fox: My Lords, I and other Members of your Lordships' House, who think as I do, consider it would be wrong to allow this Bill to leave this House with apparently unanimous approval.
The Earl of Longford: My Lords, am I in order in asking the noble Baroness whether she will wait while I just say a few final words? I was proposing to say a few words and it may be that the noble Baroness would wish to comment on them adversely or otherwise.
Baroness Lane-Fox: My Lords, certainly.
The Earl of Longford: My Lords, I was not intending to keep silent altogether because I must at least begin by expressing gratitude to all the noble Lords and noble Baronesses who have given such close attention to this Bill, whether by attendance, speech, or both—and that refers to noble Lords and noble Baronesses who have been sympathetic and to those who have been unsympathetic.
I am happy to think that the House on two occasions at least has demonstrated its favourable
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attitude. There have been a number of changes in the Bill since I introduced it here, but the principle remains intact, the principle that discrimination against the disabled should be made unlawful. I am the last person to suppose that any Bill introduced by myself or anyone else is likely to be perfect; but I look upon this Bill as something to be proud of.
The new definition of disability, which owes much to the noble Lord, Lord Ennals, and to the noble Baroness, Lady Darcy (de Knayth), can no doubt be criticised, as indeed can any definition of obscenity or any definition of anything. But I am happy to stand over the new definition without saying that this is the law of the Medes and the Persians which cannot be improved elsewhere.
I hope in this respect and in other respects that the House will feel that proper consideration has been given by the promoters of the Bill to arguments which have been brought forward on both sides of the Chamber. The noble work of the noble Baroness, Lady Masham, and the noble Lord, Lord Renton, for the disabled is well known to all of us here. I am particularly glad therefore to have been able to meet their insistence that it should be made plain from the beginning that the discrimination we are seeking to outlaw is unreasonable discrimination. That is made plain at the beginning of the present Bill.
I will not seek to restate the arguments for the Bill, which I brought forward at the Second Reading or my replies to possible objections. I have certain ideas in my mind as to an initiative that could suitably be taken now, but I would not wish to unfold that to the House before I have had the opportunity of discussing it with colleagues elsewhere.
We who bring forward this measure are passionately convinced of three propositions: first, that any discrimination against a disabled person is utterly unChristian—and for that matter utterly unethical, although it may often be due to ignorance and indifference even more than malice. Secondly, that it is our Christian and our ethical duty to take every step in our power to bring such discrimination to an end. Thirdly, we are equally convinced that this discrimination is far more widespread than is tolerable in a civilised community.
The first two propositions I believe will hardly be disputed and will be accepted by all of us. But the third, our insistence that this discrimination is widespread and quite repugnant, may not as yet be accepted so widely or by everyone here. As time goes on, I am sure the truth of it will become ever more obvious. If all three propositions are accepted, the fourth follows inevitably: that legislation to outlaw discrimination is an urgent necessity.
There was a famous statesmen who remarked more than once that if he wanted to know what his countrymen thought, he need only to look into his own heart. I need hardly say that is not my own attitude towards the disabled. It would be an impertinence for me to lay down the law from personal knowledge in front of some who have done much more for the disabled than I have and who are themselves disabled. But as I said on the Second Reading—and I repeat it now—the great majority of those well equipped to speak for the disabled, strongly support this measure. It has been and will remain a

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privilege for me to be their unworthy standard bearer, most of all in a House where so many noble Lords and Noble Baronesses—whether or not they approve of the present Bill—are so profoundly concerned for the disabled.
Lord Glenarthur: My Lords, having sat mute on the Government Front Bench throughout most of this Bill's passage and been gently chided on some occasions for doing so, I feel that the noble Earl, Lord Longford, and those others who have taken part would expect me to say a little at this stage. I of course share fully on behalf of the Government the concern expressed generally for the well-being of disabled people. The Government understand entirely the reasons lying behind the noble Earl's wish to legislate in this way. Additionally, I would of course be the first to acknowledge the work which he and others have done to improve, as they see it, the Bill during its examination in your Lordships' House. But I have to tell your Lordships that the Government's view remains the same as I expressed previously. The Government set great store by the other routes that they are exploring and developing to improve the lot of disabled people. However worthy and sincere the motives behind the Bill, we do not believe that it would be right to adopt the legislative framework which the Bill proposes. I would rather urge the noble Earl and those who share his views to continue to give their support and encouragement to the schemes that the Government already promote, so that they may bear more of the fruit which the disabled so richly deserve.
Lady Saltoun: My Lords, it seems to me that the point about discrimination is as follows. If one has discrimination, one has to take discrimination against and discrimination in favour. If one does not have discrimination, one does not have the discrimination against, but one loses the discrimination in favour. So it seems to me that it is six of one and half a dozen of the other.
Baroness Lane-Fox: My Lords, I should feel much happier if I were able to agree with the noble Earl, who I know has worked so very hard on this Bill; but alas, I simply cannot be such a hypocrite as to do that. I, and other Members of your Lordships' House who think as I do, consider that it would be wrong to allow the Bill to leave this House with apparently unanimous approval. On Second Reading I made it very clear that it seemed to me that despite its name, the Bill goes against the interests of disabled people. Through co-operation on behalf of employers and individuals, and especially through chairmen and chief executives (to which I made reference in this House last Wednesday in the debate on training for jobs) much has been achieved in helping disabled people to careers. Now the National Access Committee is just starting and it shows good promise. Various clauses were inserted in the Telecommunications Bill during its different stages in this House, protecting the interests of disabled people. These suggest that the director general of Oftel should have an advisory body on disablement affairs; and British Telecom already has such a body at work.
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With such constructive moves going on I believe that this is not at all an appropriate moment to plan to spend large sums on setting up a commission, making inroads into the scarce resources for disablement causes, and to threaten legislation against able-bodied people. This Bill is unlikely to do what is required of it and is unlikely to result in what, unfortunately, disabled people have too often been led to expect of it. It will segregate disabled people still further, when for years we have sought to be more closely integrated into the community. For those reasons I voice very strongly my opposition to the passing of the Bill.
Lord Renton: My Lords, at earlier stages I said that I was speaking for myself in criticising the Bill, but last Friday I attended a meeting of the management committee of MENCAP and found that they share my misgivings and are not in favour of the Bill. But they would have liked it to go to a Select Committee, though I understand that it is now too late for that to be done. We at MENCAP are as resolutely opposed to unreasonable discrimination as is the noble Earl; there is no dispute in any part of the House about that.
But the question is whether the Bill is the best way to achieve further progress. MENCAP has done more to reduce discrimination over the years, especially in recent years with Brian Rix as our secretary-general, than any Act of Parliament could have done, and we want that good work to continue. We feel that it is more likely to do so if we are not hampered by threatening people with a commission or with legal proceedings. Indeed, we feel that that would be counter-productive and that the legal proceedings so far as the mentally handicapped and their parents are concerned could, as I explained at the Committee stage, give rise to false hopes. We feel, as my noble friend has just mentioned, that the large sums needed to implement the Bill would be better spent helping the handicapped in other ways.
Although the Bill was slightly improved at Report stage, it still has the disadvantages mentioned in different parts of your Lordships' House during the earlier stages. The definition of disability introduced into Clause 1 will have the strange result that people suffering from mental illness or mental handicap could be affected by the Bill only if their condition was due to—and I quote from the definition:
"any psychological, physiological or anatomical structure or function".
or, if they had "severe disfigurement"; and not all mentally handicapped people would come within that. So I join with my noble friend Lady Lane-Fox in saying that we should not pass this well-intentioned, but misguided, Bill.
7.15 p.m.
Lord Stallard: My Lords, I rise to support the Bill and I hope that the House will pass it in its present form. I say that with some temerity because I accept the sincerity of the arguments to which I have listened throughout the proceedings on the Bill. I have the greatest respect and admiration for all those who have worked, and who still work, in the field of disablement. I shall not repeat what I said at the Second Reading, when in my support for the Bill I drew on my 30-odd years' experience of helping and working in the field of

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the physically and mentally handicapped. People who have opposed the Bill—and I think that the noble Baroness, Lady Lane-Fox, said this on Second Reading and repeated it tonight—have said that it would be counter-productive if we were to introduce legislation. They say that it would be far better for us to build on the goodwill that has been established.
I certainly do not want to be churlish, nor speak from a standpoint of sour grapes about the progress that we have all helped to achieve over the years in the field of disablement. But I often wonder why, when we talk about the disabled, we say that they should rely on goodwill. We must accept that there is discrimination. We could probably spend hours tonight giving examples of discrimination. Every voluntary organisation has file upon file of examples of discrimination in almost every field. So we accept that there is discrimination against the disabled, but we say they should rely on goodwill. We accept that there is discrimination against women, but we say that it needs legislation. We accept that there is discrimination against the blacks, but we say that it needs legislation. Why then do we say that the disabled should rely on goodwill?
It was Peter Large, who, in a recent article, wrote—I paraphrase—that if goodwill is to disappear because we introduce legislation (as the opponents of the Bill seem to say), what kind of goodwill was it in the first place? Do we have to rely on that kind of goodwill?
We must remember that the disabled are about the only people who have no redress under any law. They are discriminated against and, as I have said, there are numerous examples of this. I should like to mention a few at random:
"People like them should not be allowed out",
was how one publican excused himself to customers for refusing to serve two disabled people.
"I have enough sick, lame and lazy",
an employer told a youngster who was seeking work. A man with an artificial leg was offered an engineering draftsman's job, but the offer was withdrawn when his disability was discovered. I could go on and on giving examples. Here is another: deaf people were refused a drink in a public house because the publican said that their sign language would upset the rest of the customers. We could go on into the field of housing and other areas where we know there is this kind of discrimination, for whatever reason. Yet the only redress is this supplication and sympathy. There is no legal redress for this kind of discrimination.
As I have said, I have spent a great part of my life trying to operate the educative process, to do everything that has been recommended during all the stages of the Bill, to argue for and support all the moves made by Government—the present Government as well as past Governments. Many excellent initiatives have been started. We have all supported them. We have pushed them as far as we could. We have publicised them at local, regional, and national levels through all the bodies and organisations with which we have been concerned.
But there has always been something missing. There was never enough bite, never enough push. Local authorities, employers, and so on, have always been able to slide out of it. Fire regulations have always
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been a good excuse. So have access problems, as the noble Baroness said. There are umpteen excuses, and the disabled person has had no redress, only sympathy. We say that the time has passed when the disabled are the only group who have to rely on sympathy. The time has now come when we need legislation. We need a framework. The commission is an excellent framework of conciliation procedures where many of these problems could be dealt with or funnelled to the right place.
Baroness Lane-Fox: My Lords, will the noble Lord give way for a moment? I think that the noble Lord got me wrong. He suggested that I was using access as an excuse. Not at all. I was drawing attention to the new national access committee that shows great promise.
Lord Stallard: My Lords, I am sorry. I apologise to the noble Baroness if she thinks that I got her wrong. I was saying that employers and others who want to slide out of a commitment, or a possible commitment, to a disabled person still use, in spite of improvements in legislation and codes of guidance, access problems to get out of this position. We know of many examples.
I have supported the educative process. I do not see that the legislation is opposed to education. I see the two as running in parallel. Education is concomitant with the legislation. One does not go against the other. We need legislation if the education process is to begin to mean what we think it should mean.
I have heard it stated, and people do say, that to give the disabled preferential treatment may cause problems. I have never looked upon the Bill, the motives behind the Bill and the motives of those who have sponsored and helped to support it, as asking for preferential treatment. I have always maintained that the legislation merely gives disabled people access to the law to secure equal treatment. It is a different thing to give someone access to equal treatment. We need legislation, in my view, to achieve that. I hope that your Lordships will accept the arguments in favour of the legislation as put forward by the sponsors of the Bill, and that the House will pass the Bill tonight.
Baroness Macleod of Borve: My Lords, before the noble Lord sits down, can he give any quotations? I know of many instances where discrimination has been in favour of disabled people. People will take in a blind person or someone on crutches perhaps because, as the noble Earl, Lord Longford, says, they are Christian people. However, the noble Lord also said that he had many instances of those who discri-minated against. Is the noble Lord, Lord Stallard, able to give the House instances of discrimination against the disabled?
Lord Stallard: My Lords, I do not want to take up the time of the House. I gave instances on Second Reading and repeated or implied again tonight that I did not want to appear churlish because I am only too well aware, from sitting with employers and voluntary organisations, of the many examples that exist of conscientious and progressive employers who take the attitude outlined by the noble Baroness. I accept that. However, it is not enough. There are the others. I gave statistics on Second Reading of the many thousands of

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employers who still ignore the quota percentage relationship among employees. It is in that area that we have to introduce legislation to chivvy them on to come into line with those excellent employers and other organisations that already have some conscience about the problems.
7.24 p.m.
Baroness Darcy (De Knayth): My Lords, may I add a few brief words of support for the Bill? I think that the Bill is necessary. We have, I believe, improved it, and I hope that it is more acceptable now that it relates only to unreasonable discrimination. It had to a certain extent been misunderstood previously. Now that it relates to unreasonable discrimination against, I should have thought it would be more palatable to the noble Baroness, Lady Macleod and to the noble Lady, Lady Saltoun.
The Bill is not to be brandished as a cudgel to give offence to every law-abiding citizen who may unthinkingly discriminate against the disabled, but is to provide a firm base from which to work hand in hand with education, as the noble Lord, Lord Stallard, said, to strengthen the hand of the commission when it is required to conciliate, to be a yardstick of behaviour and to make people question their attitudes. It is not comfortable to have to question your attitudes. You may not like what you find out about yourself. I suggest that it can be equally uncomfortable for the disabled. Some disabled who think that they are discriminated against and who are always blasting off complaints about it may equally find that they are wrong. It would be quite healthy for all of us to look at ourselves. Equally, when new legislation is being drafted, consideration would have to be given to the implications, for the disabled if the Bill is passed. You would have to get things right from the start. That would save time and money.
I appreciate what the noble Lord the Minister said about the Government helping the disabled with benefits, new benefits and new committees, et cetera.They are constructive moves, as I think the noble Baroness, Lady Lane-Fox, called them. I would submit that the fact of making unreasonable discrimination unlawful is totally different. It is not adding another prop to the scenery like another benefit or another committee to look into access. It is designed to change the whole scene. I should like to thank the noble Earl, Lord Longford, for taking on the Bill and to congratulate him for piloting it so successfully through its stages. I hope that it does not get stuck in a backwater. I believe that it is necessary, and I wish it godspeed.
Lord Prys-Davies: My Lords, we have considerable respect for my noble friend Lord Longford. I wish to express my appreciation of his contribution. We are greatly indebted to him. Indeed, the House must be grateful to all those who have been tilling the soil in Committee. I regret deeply that I was unable to assist at that stage. I appreciate fully that there are members of your Lordships' House who are well qualified to express a considered opinion on this measure and who are unable to go along with its provisions. I accept their position. I appreciate their point of view. Indeed, the
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noble Baroness, Lady Lane-Fox, has expressed her forebodings and her objections. So has the noble Lord, Lord Renton. It seems to me, that the House is in agreement on the broad objectives for which we should be striving but that there is disagreement as to how to achieve the objectives.
Discrimination has been accumulating for over 100 years and for various reasons, not the least being the attitude of society at large. To bring about changes in attitude is probably the most difficult of all the changes. I agree with the noble Baroness, Lady Lane-Fox, that over the past 10 or 15 years, attitudes have been slowly changing as a result mainly of initiatives taken by the voluntary bodies. I accept that. But, rightly or wrongly, we on these Benches believe that we want even more rapid change. There is still a great deal of discrimination. We think that the time has come to change gear.
The Bill is not a magic wand. It will not bring about a revolution overnight. But it should help to pull down barriers and to remove obstacles and therefore to promote integration. If we are to do that over the next decade or two, then we require leadership from a body or commission that will be seen to have authority.
It has been my experience that on the whole the statutory authorities—and I have assisted with a statutory authority—are in general resistant to complaints to an extent that would surprise an outsider. It will not be easy to overcome that resistance. It appears to me that a central body such as that envisaged in the Bill—and noble Lords opposite see the need for a central body to receive complaints and to send them on their way to the appropriate Government department—will ensure not only that the leadership is available, but that complaints are treated in a similar manner at whatever level in the community and in whatever part of the country the complaint originates.
So we are sorry that the Government are unable to give their blessing to this measure. It has been much improved in Committee. There is need indeed to have another look at Clause 1 and the noble Lord, Lord Renton, has underlined one of the difficulties. But it is our view that in another place other people can improve the Bill. Its encactment would be a considerable milestone, and we are grateful to my noble friend Lord Longford for having tilled this ground so thoroughly.
7.32 p.m.
Lord Houghton of Sowerby: My Lords, this is a Private Member's Bill and I assume that the remarks of my noble friend a moment ago do not necessarily bring the debate to a conclusion. My worry about the Bill right from the beginning has been that to proceed with it puts this House and the Bill in a false position. The Bill has already been rejected in another place and whether it was in circumstances that we liked or of which we disapproved does not matter. It was defeated in another place.
We are placed in the invidious position of trying to deal with a situation which is the product—if I may say so with great respect—of the misjudgment of my noble friend Lord Longford. The mischief in which we are placed today is due to the impulsive introduction of

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this Bill so soon after its rejection in another place without considering the type of dilemma that we would be in as of today. Although it gives me a pain in the stomach to talk about reference to Select Committees after yesterday, I believe, along with the noble Lord, Lord Renton, that this is eminently a Bill which should have gone to a Select Committee because there are no contentious principles about it. There is nothing to divide the House or a Select Committee as regards the main purpose of the Bill. The complicated details of administration and definition contained in the Bill would have been sorted out in a Select Committee. But here we are; the Bill did not go to a Select Committee. It was a mistake to go on with it because the Bill went through its several stages in quite a false atmosphere.
The truth is that we are not doing legislative business this afternoon. I do not like debates on legislation which are falsehoods in legislative terms. A debate on a Motion during which we can have a wide-ranging survey of a situation and express different points of view is a good thing. But here we are trying to make the law. If we are trying to make the law. then we are being untrue to ourselves if we pass a Bill which is not good law and which cannot in fact be a workable law as it stands at the present time.
It is no good going into all the details to support that point of view. I am very sad about it, but I cannot help it. I am a practical man on matters of this type and I like to see a workmanlike job done. Indeed, this House, lays great claim on public estimation and general approval because of its capacity to revise legislation and to rectify defects and omissions in it. Here we are turning out a Bill which is full of trouble and difficulty. Because we have been told that the Government cannot co-operate in giving any help to the Bill, we have been handicapped right from the beginning in not having the benefit of expert advice especially on matters of administration. So this is really and truly an amateur attempt to get a Bill on a profoundly important matter.
It is with deep regret that I must say that I cannot support the passing of this Bill. It pains me deeply to have to say so, but there it is; I cannot help it. I do not think that we are doing the right thing. We are not doing the right thing by the disabled and we are not doing the right thing by this House or by Parliament. We had better do the only honest thing and that is to have the advantage of the progress that has been made in discussing this matter throughout the course of the Bill, but stop short now and say that the Bill will not make further progress. It would be a mistake to give the impression that it will or might make further progress.
We should reserve further consideration to another occasion on which I am sure more practical and better work can be done. The achievement of the purpose of the Bill will come. But, in the meantime, there is not the slightest doubt about it in my judgment: facilities for the disabled are more urgent than more law.
Lord Howard of Henderskelfe: My Lords, I only want to add one or two words to the many that have already been spoken on this Bill, and in particular I wish to support my lifelong friend the noble Baroness, Ladv Lane-Fox. I cannot describe her in technical
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terms as my noble friend because we do not sit on the same Benches, but in every other respect she is my noble friend. She has overcome—in a way which would embarrass everyone, and particularly her, to hear—the problems which have faced her in her life due to her disablement, and so have many other people.
The problem that faces us tonight is that we have a Bill which I do not believe is the right way in which to approach the situation. I believe that the money which it would cost to implement the Bill can be far better used for the actual alleviation of the problems of the disabled. Yet we have hesitated to say too much for fear that we might be thought to be hard-hearted and to be ignoring the problems of the disabled. I believe—and I must be frank about this—that the noble Earl, for whose abilities, compassion and many qualities I have enormous admiration, has done us and this House a disservice in placing us in this position in which, if we believe that this is not the right road to follow, we will actually have to divide the House and appear to be in favour of discrimination against the disabled.
Of course, those of us who are opposed to the Bill are not in favour of discrimination against the disabled. Who could for one moment think that we were in favour of it? I only fear that that is the position in which many noble Lords may have felt they may be placed if they record their vote as not being in favour of what would in many other circumstances be regarded as a Bill for which they would have every respect.
7.39 p.m.
Baroness Masham of Ilton: My Lords, I would just like to say a few words. First, I should like to thank the noble Earl, Lord Longford, for his kind feelings towards disabled people, whatever happens to the Bill. Also I should like to say, as I said on Second Reading, that I think that the name of the Bill is wrong. "Discrimination" is a difficult word. I would far rather that it had been "equal opportunities for disabled people".
The young disabled people of our country are not so patient as the older generation to which the noble Baroness, Lady Lane-Fox, belongs. We have to move with the times. They want to get on with living by being equal. A hardness of attitude has set in over car parking. Only today I was speaking to a young man who has broken his neck. He is working as a director of a voluntary association and has been summonsed by a City of London court and in April will face a parking charge. What are severely disabled people to do if they cannot use public transport, if they cannot walk and they cannot find a parking meter?
Whatever happens to this Bill, this matter will no doubt appear again. Perhaps it should have gone to a Select Committee, as two wise noble Lords on either side of the House have said. If the Bill goes to another place, perhaps it could still go to a Select Committee. At least evidence could be taken from all sorts of people—young people and older people—who represent disabled people and the organistions. The problems of disability will not go away. They will not be swept under the carpet. They are very wide and very difficult. I hope that something good will result from the work that has been put into this Bill.
The Earl of Longford: My Lords, I did not propose to say any more after the effective reply—
Lord Graham of Edmonton: My Lords, with the leave of the House!
The Earl of Longford: My Lords, I had not intended to say a few words, or any words at all, because the matter has been so well dealt with by those who support this Bill. However, the noble Lord, Lord Houghton of Sowerby, raised one point which I should like to emphasise, although it was on the constitutional issue. The noble Lord and I are both senior citizens, but I have been here many more years than the noble Lord and I shall not be told that this is in some way improper and untrue to the traditions of the House.
The merits of this Bill were never voted on in the House of Commons. It was defeated by a procedural device. I know that with one or two exceptions, this House generally does not divide on the Second Reading of Bills. We accept the idea that the principle must be accepted from the Commons. But this is not such a case, and it should not go on record as such in case anyone reading the debate afterwards wonders whether I was intimidated by the noble Lord, Lord Houghton. I can assure the noble Lord that I have the greatest respect for him. but I hope that I shall never be intimidated to that extent.
The noble Lord. Lord Howard, was kind enough to say such nice but undeserved things about me that I must accept his censure in saying that I have rendered a disservice on this occasion. He appeared to believe that anyone who votes against this Bill—and I hope that no noble Lords propose to do so—will be in danger of being censured. They will not be censured by me. If he had followed what I said at the beginning, he would know that I was paying tribute to all Members of the House, whatever line they are taking on this Bill.
7.44 p.m.
On Question, That the Bill do now pass?
Their Lordships divided: Contents, 49; Not-Contents, 68.

DIVISION NO. 1

CONTENTS

Airedale, L.

Masham of Ilton, B.

Attlee, E.

Melchett, L.

Banks, L.

Mulley, L.

Bishopston, L.

Northfield, L.

Blease, L.

Phillips, B.

Bottomley, L.

Pitt of Hampstead, L.

Brockway, L.

Ponsonby of Shulbrede, L.

Bruce of Donington, L.

Prys-Davies, L.

Carmichael of Kelvingrove, L.

Rea, L. [Teller.]

Cledwyn of Penrhos, L.

Rhodes, L.

Collison, L.

Ross of Marnock, L.

Darcy (de Knayth), B.

Serota, B.

David, B.

Simon, V.

Graham of Edmonton, L.

Stallard, L.

Hanworth, V.

Stedman. B.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Hatch of Lusby, L.

Stone, L.

Hooson, L.

Taylor of Blackburn, L.

Irving of Dartford, L.

Taylor of Mansfield, L.

Jenkins of Putney, L.

Tordoff, L.

John-Mackie, L.

Underhill, L.

Kilmarnock, L.

Wigoder, L.

Longford, E. [Teller.]

Wilson of Langside, L.

Mackie of Benshie, L.

Winstanley, L.

McNair, L.

672

NOT-CONTENTS

Abinger, L.

Kinnaird, L.

Airey of Abingdon, B.

Lane-Fox, B. [Teller.]

Ampthill. L.

Lawrence, L.

Auckland, L.

Long, V.

Belhaven and Stenton, L.

McFadzean, L.

Beloff, L.

Macleod of Borve, B.

Belstead, L.

Margadale, L.

Boyd-Carpenter, L.

Marshall of Leeds, L.

Brougham and Vaux, L.

Massereene and Ferrard, V.

Bruce-Gardyne, L.

Milverton, L.

Buxton of Alsa, L.

Mottistone, L.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Cathcart, E.

Newall, L.

Colville of Culross, V.

Orkney, E.

Cork and Orrery, E.

Pender, L.

Cox. B.

Rankeillour. L.

Crathorne, L.

Renton, L.

Davidson, V.

Rochdale. V.

Denham, L.

Saint Oswald. L.

Drumalbyn, L.

Saltoun, Ly.

Effingham, E.

Skelmersdale, L.

Faithfull, B.

Stanley of Alderley, L.

Fortescue, E.

Suffield, L.

Gisborough, L.

Swinton, E.

Glenarthur, L.

Teviot, L.

Greenway, L.

Trenchard. V.

Grimston of Westbury, L.

Trumpington, B.

Harvington, L.

Tryon, L.

Hives, L.

Ullswater, V.

Houghton of Sowerby, L.

Vickers, B.

Howard of Henderskelfe,

Whitelaw, V.

[Teller.]

Windlesham, L.

Hylton-Foster, B.

Wise, L.

Kaberry of Adel, L.

Wynford. L.

Kimberley, E.

Resolved in the negative, and Motion disagreed to accordingly.

Straw and Stubble Burning Prohibition Bill [H.L.]
7.52 p.m.
Lord Alport: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Alport.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD AMPTHILL in the Chair.]
Clause 2 [Licences]:
The Deputy Chairman of Committees (Lord Ampthill): Straw and Stubble Burning Prohibition Bill. Amendment No. 20 has already been moved and the debate upon it was adjourned on 21st March. Unless, therefore, any noble Lord wishes to speak further to the amendment, I shall put the Question that Amendment 20 be agreed to.
Lord Alport: This amendment was discussed fully on the last occasion. I have given it considerable thought since. I wish now to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Gisborough Lord Gisborough moved Amendment No. 21:
Page 2, line 7, leave out ("District") and insert ("County").
The noble Lord said: I should like to move this amendment on behalf of my noble friend Lord Ridley, who is not here. Districts vary enormously in their attitudes. There are many country areas which are under the aegis, if that is the word, of urban districts which sometimes have peculiar ideas, although not always. It would be much fairer if counties were to be the responsible authority. I beg to move.
Lord Alport: This amendment was put down by my noble friend Lord Ridley. I think the reason why he put it down was because the counties are the fire authorities. On the other hand the districts are the anti-pollution authorities. Further, districts have been relied on by the Ministry for many years past—for at least 10 years and more—to be responsible for enforcing the by-laws with regard to stubble and straw burning. The new model by-laws are for operation by the district councils and the Ministry has apparently, and quite rightly, confidence that district councils can carry this out in a proper manner. I am assured by the Association of District Councils that it would be perfectly possible for them to do this, and in those circumstances it seems only right that the district councils should be the local authority. Another reason is that the district councils, as we discussed earlier in this Committee, know the district well, and, although they have on them members of the old urban district authorities, also include members of the old rural district authorities: the farming interests are therefore represented on them. In those circumstances, I hope that my noble friend will withdraw this amendment.
Lord Mackie of Benshie: May I point out that there are no counties in Scotland? There are districts and regions. As this is meant to apply to Scotland it does not appear to be a suitable change.
Lord Gisborough: I simply do not accept the argument, but I am not prepared to press the amendment. The position in some districts is that there are simply no farmers. There are a few farmers, certainly, but there arc no farmers represented, and the representation is totally urban. However, while accepting the fact that it would be extremely unfortunate for those farmers in those areas, I am prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 22 had been withdrawn from the Marshalled List.]
[Amendments Nos. 22A and 22B not moved.]
Clause 2 agreed to.
[Amendment No. 23 not moved.]
Clause 3 [Penalties]:
[Amendment No. 24 not moved]
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 25:
Page 2. line 12. leave out from ("to") to end of line and insert ("unbaled straw on arable land.").
The noble Lord said: This is consequential. I beg to move.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
[Amendment No. 26 not moved.]
Clause 4 [Short title and commencement]:
[Amendment No. 27 not moved.]
Clause 4 agreed to.
House resumed: Bill reported with the amendments.

Anatomy Bill
7.58 p.m.
Lord Rea: My Lords, I beg leave to move that this Bill be now read a second time. It was guided through another place—largely on the nod, I may say—by an Opposition Back-Bencher, the Member for Blaydon, as a Private Members Bill, so it is appropriate for me to do likewise in your Lordships' House as an Opposition Back-Bencher. It is, I hope, a non-controversial Bill. It deals with an unusual and, some may feel, a rather macabre activity; namely, the anatomical dissection of the bodies of deceased persons for teaching or research purposes. This is another reason why it is perhaps appropriate for me to move this Second Reading since I have in fact as part of my medical training dissected a human body.
The Long Title of the Bill summarises its purposes clearly. It is, to quote the Long Title:
"An Act to make provision about the use of bodies of deceased persons, and parts of such bodies, for anatomical examination and about the possession and disposal of bodies of deceased persons, and parts of such bodies, authorised to be used for anatomical examination, and for connected purposes".
It aims to ensure that there continue to be proper arrangements for the possession and use of dead bodies which have been donated for anatomical examination, and that the system is not open to abuse.
The original Bill of 1832 was necessary to curtail the sinister practice of body-snatching—that is the removal of recently buried corpses, or even unburied but laden coffins, and their sale to medical schools for the use of medical students for dissection. The practice was most prevalent in London and Edinburgh where the medical schools were concentrated. Until the early 18th century anatomy was taught largely by lecture and demonstration, but during that century personal anatomical dissection by students became the norm. At the same time the number of medical students increased greatly from 57 in 1720 to 400 in 1800 in Edinburgh; and from 1780 to 1823 in London they went up from 340 to 1,000.
The practice of body snatching became a scourge and public indignation grew. Bodies became more difficult to come by and the price went up to such an extent that even murder was committed to obtain bodies. The notorious so-called "resurrectionists" Burke and Hare were in fact finally executed for murder.
The 1832 Act, the Long Title of which was,
"An Act for regulating schools of anatomy"
was an immediate success and body snatching disappeared almost overnight. It required all those practising anatomy to have a licence to do so; appointed inspectors of anatomy; required that all bodies used for anatomical purposes should have a death certificate and that the permission of any surviving relatives should have been obtained.
Obviously in 150 years things have changed and new legislation, which impinges on the 1832 Act, is

675
now on the statute book. The present Bill is in part a consolidation measure clarifying the provisions of the 1832 Act in relation to the Human Tissues Act 1961 which deals with the donation of parts of the body for therapeutic purposes.
The structure of the Bill is simple and I shall say something brief about each clause. Those of your Lordships who have read the Explanatory and Financial Memorandum will have read some of these notes already. Clause 1 contains definitions of the terms "anatomical examination", "anatomical specimen" and "body". It also states that the Bill is not to apply to any post-mortem examination undertaken to establish cause of death or any donation of a part of a body which is authorised for removal under the Human Tissue Act 1961.
Clause 2 deals with the control of anatomical examination and possession of anatomical specimens. It states that both of these activities are only lawful if the death has been registered or certified, the premises are licensed, the person is either licensed or has permission from a licensed person and, of course, that the body was lawfully donated. Some of these provisions are similar to those of the 1832 Act which it replaces.
Clause 3 deals with the Secretary of State's power to license premises where anatomical examination is to be carried out and to license persons either to undertake anatomical examination or to have possession of anatomical specimens. This clause also lays down that a licensed person has to keep proper records in accordance with regulations made under the Bill.
Clause 4 states that a body may be donated in one of the following ways: by someone in his lifetime in writing or orally before two witnesses during his last illness provided that the next-of-kin do not object: or by the person in lawful possession of the body, unless it is known that the deceased would have objected or the next-of-kin object. This clause also provides that a body may be retained for three years after donation and gives the Secretary of State power to vary the period. This is a new provision.
Clause 5 deals with possession of a body after anatomical examination has been completed. It allows a licensed person, or someone who has permission from a licensed person, to have lawful possession of a part of a body in certain circumstances after the expiry of the lawful period prescribed in the regulations.
Clause 6 lays down that parts of a donated body can only be retained after anatomical examination has been completed when explicit permission was given at the time the donation was made. As with the donation of a body, the next-of-kin has to agree to the retention of any parts of that body.
Clause 7 covers the system for issuing licences. Clause 8 gives the Secretary of State power to make relevant regulations. Clause 9 re-enacts the provision in the 1832 Act for the appointment of Her Majesty's Inspector of Anatomy.
Clause 10 gives the inspector power to enter licensed premises, to inspect records and provides for the information in the records not be disclosed except in certain exceptional circumstances. Clause 11 makes it
676
an offence to carry out anatomical examination otherwise than in accordance with the provisions of the Bill.
Clause 12 says that the expenses arising under the Bill shall be met out of public funds. Any money received by the Secretary of State shall go into the Consolidated Fund. Clause 13, the final clause, deals with repeals and commencement orders.
It is possible that in the future all undergraduate medical students will not have to undergo this ritual experience. I believe there are equally, if not more, effective methods of teaching the anatomical basis of medicine. But there will always be a need for surgeons in training to dissect human bodies which will also be needed for research.
At present about 1,000 human bodies are needed annually for existing teaching and research programmes. This up-dated Bill is necessary to handle the arrangements for this practice. I am pleased to have this opportunity to promote it. I beg to move.
Moved, That the Bill now read a second time.—(Lord Rea.)
8.8 p.m.
Lord Winstanley: My Lords, at the outset perhaps I should say that the quite extraordinary speed, if not precipitancy, with which your Lordships dealt with the last business resulted in the fact that unfortunately—and I apologise deeply—I missed the first part of the speech of the noble Lord. Lord Rea. on the Bill. I was glad to hear what I believe was the bulk of his speech, and in hearing that I think I am right to say that I heard the only full analysis and description of this Bill that has yet been given.
Like other noble Lords when we knew that this Bill had come from another place, I looked up the previous Hansards and I found that the Second Reading in another place was taken on the nod. I found that the Committee stage was extremely brief. The Report stage was taken again on the nod, and the Third Reading, and the Bill passed on the nod. In other words, the Bill went through another place extremely rapidly without ever having a full explanation from anybody, although I would hasten to say that the Minister dealing with it in Committee, Mr. Patten, dealt very fully with the matters which arose during the Committee stage; but it was a very brief Committee stage.
I mention all this for reasons which will perhaps become apparent in a moment. I entirely agree with the noble Lord, Lord Rea, that it is high time that the Anatomy Act 1832 was brought fully up to date. It is high time that we recognised that the later Act of 1871 did not entirely do that. It is also true, as the noble Lord pointed out. that certain measures were necessary in relation to the Human Tissue Act 1961, in relation to the earlier Anatomy Act. Therefore, it is necessary to have a Bill and a tidying up measure in relation to that Act.
It is also right to say, as the noble Lord, Lord Rea, made clear in his interesting speech, that the circumstances in which the original Act came into being were totally different from the circumstances which now exist. Bodies in those days, which were necessary for anatomical purposes, for studying and

677
for research, were obtained by a variety of means which it was necessary at that time to control. It is interesting, too, that even since more recent discussions in another place and in your Lordships' House on this matter, circumstances have changed very rapidly.
If we return to the time of the Human Tissue Act 1961, then there was much discussion about the Anatomy Act because it was much involved when people decided that when they died they would like their bodies to be used for some beneficial purposes for the people who remained. Many like to leave human organs to be transplanted so that they can be enjoyed and properly used by others who live after them, but many people donate their bodies for anatomical examination and to the universities. The situation now, as the noble Baroness knows, is that the supply is much greater than the demand.
The reason for that is fairly obvious. The universities deal with these things in a most expeditious and efficient manner; they engage to conduct a full funeral according to the wishes of the deceased and the next of kin and they pay all the expenses. For that reason, and other reasons which are perhaps less self-interested, the supply is very large and you will find now that the majority of universities and medical schools are not looking for donors. They already have enough. I am not discouraging anybody who would feel mindful of adding his name to the list at some later stage because this is a very necessary purpose. I merely mention those matters to show that times have changed very much. In the light of the change, undoubtedly we need a new Act, so that we now have a new Bill.
It struck me as rather extraordinary that a Bill of this kind and of this degree of importance should emerge—and this is no criticism of the honourable Member who produced it in another place—through the luck of the draw; that an honourable Member in another place, winning the ballot, elected to bring forward a Bill of this kind. It is utterly clear from the nature of the Bill that the Government gave him a considerable degree of assistance in drafting the Bill; so that that Member, Mr. McWilliam, will now have a Bill in good form which has an opportunity of coming on to statute law as a result of his winning a place in the ballot. But that a Bill of this kind should have emerged in that way has necessarily resulted in the fact that at no stage so far have the Government given any exposition at all, let alone a full one, of their present attitude to this whole area. I merely put this question and I do not press it particularly strongly at this stage; but put it up as a marker.
It strikes me that if we are going to legislate here and now in this particular field, it is perhaps unfortunate that at the same time we do not seize the opportunity to do something about the whole area of the donation of human organs for transplants and things of that nature which, I think noble Lords will accept, is an area which at the moment is extremely uncertain, controversial and which many people believe is an area in which we need further legislation.
The shortage of kidneys donated for renal transplant is well known and many people at the moment are existing on kidney machines because of the shortage of
678
organs. Yet there is no doubt in our minds that there are many people who die who, had they known, would have liked their organs to have been used for transplantation purposes, had it been possible. But they had not taken the necessary steps; and the necessary steps are rather complicated and uncertain, involving the consent and agreement of the next of kin and others and involving a certain procedure. I know that we have the kidney donor card and a number of certain procedures.
If we look at the various organs which modern medical science is now able to transplant so that those are useful for some living person after another person has died, there are a large number, an increasingly large number. I think that that increase in number and the improvements in technique for the transplantation of human organs means that at some time, not too far ahead, we shall have to look again at the whole law relating to the consent for the removal of organs after death for use in transplantation and other purposes. I faintly express regret that, if the Government have seized this opportunity to take a Private Member's Bill to carry out the necessary reform in this area, they have not taken the same opportunity in order to bring in a more composite and far-reaching Bill.
Having said that, I have no criticism to make of this Bill. There are certain matters which we might want to look at in Committee although I cannot at the moment say precisely what they are. I do not think that I need give any advance notice to the noble Baroness because I do not think there are any real difficulties. It is an admirably drawn Bill so far as its purpose is concerned—and its purpose is very limited. It seems to me that it achieves it admirably and I see no particular difficulties in it. Having made those points, I think it is interesting that a Bill of this importance has arrived for a Second Reading in your Lordships' House having completed all its stages in another place without the Government ever having made a definitive statement about where they stand. We know where the Government stand because it is clear that the Government have assisted in the drafting. I am very glad that the Bill has come forward. I thank the noble Lord, Lord Rea, for introducing it and for having given an explanation of matters which had not previously been explained. I think I can promise the support of my noble friends on these Benches for the further stages of the Bill.
Lord Prys-Davies: My Lords, I shall be brief. From these Benches, we give full support to the measure and welcome its provisions. I am sure that the House will be interested in the Minister's response to the important questions which have been posed by the noble Lord. Lord Winstanley. I do not propose to address any awkward questions to the Minister this evening. We consider the Bill to be valuable and non-controversial. It is acknowledged that there is a need to make adjustments to the law governing the issues in this delicate field, and to update the law in the light of the experience encountered since 1871 and 1832 and the advances made during the last century in medical knowledge. It merely remains for me to thank my noble friend Lord Rea for introducing the Bill and for having explained in broad outline its provisions and its historical background. My noble friend was well qualified to discharge the task.
8.17 p.m.
Baroness Trumpington: My Lords, it is entirely appropriate that the noble Lord, Lord Rea, should have agreed to promote this Bill. The noble Lord who, as we now know, has himself dissected a body, will appreciate that, as it says in the preamble to the 1832 Act which was quoted by my honourable friend the Parliamentary Under-Secretary of State for Health when he spoke on 29th February 1984 in Committee in another place:
"a knowledge of the Causes and Nature of sundry Diseases which affect the Body and of the best Methods of treating and curing such Diseases and of healing divers wounds and injuries to which the Human Frame is liable, cannot be acquired without the Aid of Anatomical Examination".
That, as my honourable friend has said, is as true today as it was in 1832. The original Anatomy Act was passed to allow for the lawful provision of bodies for anatomical examination and to ensure that such bodies were properly dissected in suitable places by bona fide students of anatomy; and, finally, that they were disposed of properly. Such is also the aim of the Bill now before the House.
The noble Lord, Lord Rea, has already described to your Lordships the details of the Bill but it seems important to me to stress the differences between the present Act and the proposals in this Bill. This Bill defines in Clause 1 what is meant by the phrase "anatomical examination". As the noble Lord, Lord Rea, has already said, advances in medical science have made it necessary to do this. It is also in line with other modern legislation. In 1832. there was no statute on death certification and registration, and reference has now been included in this Bill. The 1832 Act requires a person to notify Her Majesty's Inspector of Anatomy that an anatomical examination is to be carried out on certain premises, but there is no provision for such premises to be licensed. In this century the custom has rightly developed whereby Her Majesty's Inspector of Anatomy visits departments of anatomy in medical schools, post-graduate medical education centres and hospitals and approves premises. We think it correct for the Bill to require the Secretary of State to licence such premises.
This puts the matter on a formal footing. Further-more, the original Act says that anyone studying anatomy shall be licensed. This includes not only the teachers who work full time in departments of anatomy but all the students and professional colleagues who might just do the occasional session in the department. The new Bill proposes that there will continue to be licensed persons working in departments of anatomy who will be able to authorise someone such as a medical student or professional colleague to carry out an anatomical examination or have an anatomical specimen in his possession. I am sure this more flexible approach is the right one.
The 1832 Act was. of course, passed at a time when it was impossible to preserve bodies or parts of bodies for very long. Indeed, the Act originally said that they shall be disposed of after six weeks from the date of donation. Today, with better preservation techniques, it is possible to retain bodies for three years and even longer. Nowadays there are occasions when, either because the dissection of a part of a body has been particularly well done, or because it is needed as part
680
of a student's practical examination at the end of his course in anatomy, a teacher would like to retain a part of a body for longer still or maybe indefinitely. The Bill therefore contains a provision to allow parts to be retained for a long time, provided certain conditions are met. These are set out in Clauses 5 and 6 of the Bill. I believe this provision is a sensible one and it has been welcomed by the people now working in departments of anatomy.
The present Acts are also specific about how a person is to apply for a licence and what sort of people are to be licensed. But. my Lords, we are not here dealing with large numbers of people, and the Bill proposes in Clause 7 to leave it to the Secretary of State's discretion to decide the conditions for granting a licence and how applications are to be made. This will result in a less cumbersome and more flexible way to proceed.
The present Acts only give the Secretary of State power to make regulations to vary the length of time for which a donated body may be retained. The 1832 Act makes detailed provisions about the records to be maintained and who is to do this, the way in which bodies are to be disposed of and so on. Modern statutes of this sort usually provide for such matters to be dealt with in regulations. Again, this is a more flexible approach and I am sure that this is the right one.
Those are the main changes introduced in this Bill. There are to be retained, first, the provision as to how a body may be donated for anatomical examination—detailed in Clause 4 of the Bill—and, secondly, the statutory post of Her Majesty's Inspector of Anatomy, whose duties are spelt out in Clause 9.
Finally, the Bill (like the 1832 Act) creates offences. I should just mention here that the Explanatory and Financial Memorandum says that the fines shall not exceed level three on the standard scale, the maximum of which is currently £200. This is correct, but from 1 st May the figure will be £400, as the maximum fine for each level will be doubled on that date.
On the question of resources, the Bill allows the Secretary of State to charge a fee for issuing the licences. Currently there are about 100 people who are licensed and there are 50 premises approved for anatomical examination. It currently costs my department about £60,000 a year to employ the Inspector of Anatomy and his small support staff. We are thus not talking about large sums of money. No decisions have yet been reached on the precise level of fees.
The current Act covers the whole of the United Kingdom, but your Lordships will know that this Bill covers only England. Scotland and Wales. This is because of the need to consult the Northern Ireland Assembly about new legislation. Northern Ireland intends to put through legislation on the same lines as this Bill when time permits. Until that is done, the 1832 and 1871 Acts will apply to Northern Ireland.
The noble Lord, Lord Winstanley, regretted that this Bill has not been combined with the Human Tissue Act. At the present time it is not clear that changes to the Human Tissue Act are needed. In recent months the number of organs being made available for transplant has gone up very significantly.

681
The Secretary of State for Social Services is also keeping a close eye on the effect of recent greater publicity, asking people to carry donor cards.
I think that the noble Lord, Lord Winstanley, should be glad that this Bill has passed through another place in such an easy way. He may be interested to know that bodies donated for anatomical examination are usually disposed of two years after the donation was made and the departments of anatomy normally arrange for the burial or cremation. The present Inspector of Anatomy has instituted the practice of holding each year an inter-denominational service of thanksgiving, which the relatives of the deceased and and the people working in departments of anatomy are invited to attend. I think this is an excellent practice.
The noble Lord, Lord Rea, treated us to some history: it is now my turn. We have come a long way since, on the morning of Christmas Day 1828, the Lord Advocate, Lord Meadowbank, proposed sentence on William Burke, saying that he should be hanged in the usual way on the 28th January next and that his body be publicly dissected and anatomised.
"And I trust",
continued the judge,
"that if it is ever customary to preserve skeletons yours will be preserved in order that posterity may keep in remembrance your atrocious crimes".
Burke's skeleton still remains in the anatomical museum of the University of Edinburgh. Evil he may have been, but were it not for his atrocious crimes, the Anatomy Act would not have been passed when it was.
In 1832, the Earl of Minto, in moving the Second Reading of the Bill for regulating schools of anatomy, stated that as the law then stood the bodies of persons convicted of murder were alone legally subjected to dissection and that the number of those persons was so small as to prevent persons engaged in the acquisition of surgical knowledge from obtaining a sufficient number of subjects without resorting to that class of persons called "resurrection men", who carried on their trade in defiance of the law.
Today we have before us this Bill, fully supported by the Government; and I welcome the support of the noble Lord, Lord Prys-Davies. This Bill will provide an up-to-date statute on what is undoubtedly a delicate matter. I should like to thank the noble Lord, Lord Rea, and the honourable Member for Blaydon in another place for promoting this Bill, and I join with the noble Lord in commending it to the House.
Lord Rea: My Lords, I should like to thank the noble Baroness the Minister, the noble Lord, Lord Winstanley, and my noble friend Lord Prys-Davies for their contributions. I particularly thank the noble Baroness for the fuller explanation of the details and purposes of the Bill which she gave and with which I fully agree. I was also very interested in her historical research, which was rather wider than that which I was able to give to your Lordships.
The remarks of the noble Lord, Lord Winstanley, were of considerable interest and I hope that the Minister will note them further and agree that there is indeed a need for yet more publicity for organ
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donation, and particularly kidneys. A better supply of kidneys would enable many with renal failure to live a fuller and more active life without being too dependent on dialysis. To return to the Bill in question, it is, I think, a useful and timely bit of legislation.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Peers' Rights
8.30 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney rose to ask Her Majesty's Government whether they will consult opposition parties with a view to setting up a Select Committee to consider whether the inheritance or grant of a peerage should continue automatically to confer the right to take part in the proceedings of the House of Lords and to make recommendations on this and on related matters.
The noble Lord said: My Lords, I make no apology for resurrecting this subject; indeed, I am rather glad to be able to pass from human anatomy on to the body politic. I am indebted for that felicitous suggestion to my noble friend Lord Cledwyn, and I think we are both happy to move on to this subject, though in no way minimising the importance of the Bill which has just received its Second Reading to the pleasure of us all.
Many of us—perhaps most of us—are conscious from time to time of an element of absurdity in our splendid House. Over the years some reforms have been made and, when she recently opposed a motion for further reform at a Conservative Party conference—I think it was the conference before the last—the noble Baroness, Lady Young, did so not on the grounds that reform was undesirable, but on the grounds that it would need all-party agreement and no such agreement was in sight. I shall be rather more brief than I had proposed because the hour is a little later than we expected, though not so late as it would have been if we had taken the Question last night.
I think that that statement would still be true if we were talking about a series of major reforms or about the abolition of the House of Lords. However, I thought that I might explore the possibility of agreement on a single point, or at least agreement to refer that point to a Select Committee. Why not leave well alone? The answer is that all parties are committed to some changes and that even those of us who think that two Chambers are necessary in our complex society—I have always been one of these and, possibly, happily for myself I said so in 1968 when I was a Member of another place and when the subject was before us then—cannot really defend one in which the right to vote on legislation can be inherited. There is also the problem of confusion between a peerage which is granted for reward for services rendered, and one which may be that but which also carries with it an expectation that the Peer will take part in the proceedings of this House.
All of us know noble Lords who have taken no such part in the proceedings of our House, who will take no part in those proceedings and for whom the grant of a peerage is solely an element of recognition of worth in

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one way or another, and carries with it no expectation on their part, or anybody else's part, that the Peer will engage in the legislative process.
Constitutional changes can be brought about by revolution or by all-party agreement. To think that today there is any halfway house between those two extremes is. in my view, a delusion. There is no reality in the idea of mass creation of Peers, any more than the Chinese warlord of old times really created Christians by baptising his troops with a hosepipe. I do not think it can effectively be done. Indeed, a government which tried to introduce unagreed legislation, legislation which was not agreed between all sides of the House, would risk losing all the rest of its programme. It simply is not on. Indeed it was not on when there was agreement between the two Front Benches in the latter part of the 1960s, because there was a rebellion on both sides of another place for quite opposite reasons. Nevertheless, I think that perhaps a Back-Bencher can serve a useful purpose in floating an idea on such a question as this.
It will be noted that the Question is whether a peerage should continue automatically to include voting rights. It is not proposed to modify—certainly not in this proposal—the existing position, except that only those Peers who take part in our proceedings should, I suggest, continue to hold voting rights. But these details would be matters for the Select Committee.
The idea is not new, but it has hitherto been included with other proposals. I suggest this single change, that in future Peers should be divided between those who vote and those who do not. I believe that most people would think this a sensible change. There will be those who would regard it as a springboard for further changes. There will be those who would regard it as sufficient in itself. But I suggest that this single proposal would introduce into the situation the desideratum of clarity which is so signally lacking at the present time.
In the future, the right to vote would not be inherited, although the peerage could still be inherited. But may I again make it clear that I am not suggesting that there should be any direction to the Select Committee which would involve loss of rights at present exercised. With those few words, I beg leave to ask the Question standing in my name on the Order Paper.
8.37 p.m.
Lord Banks: My Lords, the noble Lord, Lord Jenkins of Putney, has raised an important question this evening. At first, when I saw his Question on the Order Paper I thought that he was contemplating the possibility of a complete separation between peerages and membership of this House and that would, of course, have raised the whole question of reform of the composition of this House. Then, last Friday, I read a column headed "In House Briefing" in The Guardian, which suggested that what the noble Lord was going to propose was, first, that the right to participate in the proceedings of this House should be withdrawn from those who do not attend with some degree of regularity; and, secondly, that a commitment would be obtained from new Peers, whether they were
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hereditary or life, before they were given the right to participate in the proceedings of this House.
In the event, I think it is right to say that the noble Lord has advocated only the second of those two, and I must say that, when one thinks that there are 1,194 Members, or thereabouts, of this House and that the daily attendance, though it is rising, is approximately 330, it is possible to see a very strong case for what the noble Lord has advocated. Why should those who never attend regularly be able to turn up on some specific occasion and influence the course of events, and does it help the credibility of the House if there are large numbers of Members who never attend?
I would go further than the noble Lord has done. I would be prepared to say that if a Member did not attend on a specific number of occasions during a Session, his right to participate had lapsed for the remainder of the Parliament, but that he could reapply to participate at the beginning of the new Session or subsequently. And, of course, there would have to be some clearly established qualifications for reinstatement—changed circumstances, previous ill health, a new commitment. I recognise, however, that it might be difficult to determine precisely what the number of attendances should be.
There is also the question of who would make the decisions within these rules. I imagine it would have to be a committee of the House. But, leaving that proposal on one side. I should like to make it clear that we on these Benches would have no objection to a committee considering the proposal which the noble Lord has put forward and other related matters such as those, perhaps, which I have just sketched out. I shall indeed be interested to hear the Government's view when the noble Viscount replies to the debate.
The noble Lord, Lord Jenkins of Putney, has raised this matter at a time of increased public interest in this House and its operations. In the Financial Times of 23rd March, there was an article in which the following words appeared:
"in all sorts of ways the reputation of the House of Lords is on the way up. In contrast to the Commons, it comes out as dignified and detached in the sound broadcasts of 'Today in Parliament'. Attendance has been rising: on many afternoons it is now fuller than the elected Chamber".
Two days later Adam Raphael said in the Observer:
"It is indeed odd that the often despised, unrepresentative second Chamber should suddenly become the champion of the people".
He pointed out that this House is the only arena where Ministers cannot be certain of getting their own way. We on these Benches feel that it is very salutary that there should be an arena of that kind. At a time when there is an increasing regard for this House and the role which it plays, all that can be done to remove anomalies in the working of the House should be done. If some reform, perhaps along the lines that the noble Lord, Lord Jenkins, has in mind, were introduced, it would be a natural follow-up to the considerable reform of this House which was effected by the introduction of life peerages.
The more fundamental question of the composition of this House would remain to be dealt with. Liberals have certainly stood for reform of that composition at least since the Parliament Act 1911. That Liberal measure dealt with the limitation of powers but it contained in its preamble the statement that reform of

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the composition of this House "brooks no delay". It certainly has been brooking delay ever since, but perhaps now is the time, or soon will be the time to put an end to that delay. It is interesting to reflect that as long ago as 1920, Mr. Asquith, as he then was, put forward this solution:
"I desire to see substituted, for our present second Chamber, a Chamber much smaller in number, constituted partly by nomination but to the extent at any rate of two-thirds elected. My own preference would be elected in part by popular constituencies for a fixed term of years and in part by the House of Commons for the duration of its own life."
In August 1983, a joint Liberal and Social Democrat commission on constitutional reform put forward the proposal for a second Chamber of around 500, partly elected from the regions by proportional representation and partly nominated by a standing commission of Privy Counsellors. That solution was not dissimilar to the one put forward by Mr. Asquith all those years ago. So we on these Benches have consistently sought and still seek a reform of the composition of this House. We do not expect all other noble Lords to agree with us on that, but we do believe that the great majority of noble Lords in all parts of the House would agree with us on the need for an effective second Chamber.
We welcome the increasing esteem in which this House is held and we are ready to consider ways short of the more fundamental reform of its composition which we believe to be necessary, by which the House can further improve its image and effectiveness. I believe that the noble Lord, Lord Jenkins of Putney, has put forward one such this evening.
8.45 p.m.
Lady Saltoun: My Lords. I do not see how any Committee can discuss the question of the automatic right of Peers, hereditary or otherwise, to take part in the proceedings of this House and to vote or not to vote on the business of this House in a vacuum, as it were, without discussing in depth the reform of this House and, indeed, of Parliament as a whole. In 1967 an all-party conference was set up to work out a scheme for House of Lords reform, which the then Labour Government proposed to implement the following Session. They produced a White Paper, and in November 1968 this House spent three days debating the proposals in that White Paper. If I have counted the number correctly, I believe 103 noble Lords spoke in the debate, some at considerable length. Many are still with us. Everything that can possibly be said for and against the present system was said in that debate, often several times. I wonder whether the noble Lord, Lord Jenkins of Putney, has read that debate.
Lord Jenkins of Putney: My Lords, I took part in it.
Lady Saltoun: I do not think that very much has changed in the 15 years since the debate took place, except that the number of Life Peers has greatly increased, while a number of hereditary peerages have become extinct and the number of Cross-Benchers has greatly increased, making the reaction of the House more unpredictable. The House is slowly but surely
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reforming itself by the process of evolution, which is as it should be. Although the Motion that the proposals set out in the White Paper should be agreed to was carried by 251 votes to 56, nobody could then agree on the details of how the proposals should be implemented. So we are wasting our time, because I do not think it is any more likely that a joint Select Committee would be able now to agree about these details—they are precisely the details which the noble Lord, Lord Jenkins of Putney, has mentioned—than it was then.
When you have a pool of voluntary labour of some 750 Peers—I say 750 because that is the number of Peers who attended at least one sitting of this House during the 1982–83 Session—with experience in almost any field you can think of, who believe that it is their duty to come here and help to govern their country, often at considerable inconvenience and some sacrifice on the part of themselves and their families, it seems to me to be sheer folly not to continue to make use of it and to be thankful. When Peers, particularly hereditary Peers, take their seats in this House, it is usually with the idea of doing some kind of service to their country—not for glory and certainly not for financial reward. If you abolish the right of Peers to sit and to vote in this House, you will have to find people to do the work by some means or other, and whatever means you adopt—whether it is some form of election, or nomination, or a mixture of both—five things will happen.
If you have a limited number of voting Peers, you will have to decide in what proportions you are going to elect or appoint them, having regard to their political affiliations. If you appoint or elect them in the same proportions as in another place, you will have a rubber stamp. What is the good of that? If you try to do it any other way, I do not know on what basis you will do it. Secondly, you will lose that splendid independence of mind which is the hallmark of the Back-Bench Peers, because they will be looking over their shoulders all the time at those who put them here, just as Members of another place look at those who elected them, or those who nominated them, or whatever. Thirdly, the people who put them here will expect them to be here, or about the business of this House all the time—or for a very large part of it. Therefore they will have to be paid well, if we are to get people of the calibre of many of the Peers who attend regularly at present, or as often as they can, having regard to the necessity, to them, of earning a living.
Fourthly, you will lose the immense variety of experience which Peers—and hereditary Peers in particular—can offer. For instance, not long ago the Earl of Essex died and was succeeded by a cousin who is a baker or a grocer (I cannot remember which) in North West England. He did not in his first interview sound at all adverse to taking his seat in this House. I wish he would because we do not have many small shopkeepers here and his experience might be very useful.
If this House is to be elected or nominated, I cannot see many small shopkeepers or traders getting in. I am not thinking about the owners of large establishments such as Fortnum and Mason but of owners of small shops in small towns, in country districts. Apart from anything else, they could not leave their businesses or

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would not be prepared to do so in order to stand for election. We would end up with nothing but important people, and this House and the country would be the poorer. We would not have any ordinary people at all and we would lose precisely the quality that makes this House unique among second Chambers and the envy of the world; the balanced, commonsense view that it has and its understanding of the problems of ordinary people.
Also, there would be very few Peers under the age of 50 and, if some people have their way. there would be none under the age of 70. You would lose a great deal of experience and no young people would be coming along to learn how this House works. Some of the most able Members of this House are hereditary Peers who succeeded very young and who today, after many years' experience in the ways of this House, and while still in their forties or fifties, are occupying prominent positions. The noble Earl, Lord Gowrie, is one. He made his very distinguished maiden speech in that great debate on the reform of this House which took place in this Chamber in 1968.
Lord Jenkins of Putney: My Lords, if the noble Lady will give way, may I suggest to her that she is not dealing with the proposal that I made but is dealing with a series of other proposals which I have not suggested?
Lady Saltoun: My Lords, I quite appreciate the noble Lord's point but it seems to me that if his suggestion was put into effect, all these other points would require consideration by any committee. I know all the arguments against hereditary principle but the trouble is that it is a matter of fashion, and heredity has been out of fashion for a long time—like virginity and the novels of Sir Walter Scott. That does not mean there is nothing in heredity. To anyone who has known even several generations of one family and has seen how looks, mannerisms, talent, ability, likes and dislikes reappear from generation to generation, the hereditary principle cannot seem altogether invalid. We all know that cattle breeders and race horse owners have not found it to be so. The majority of hereditary Peers of the first creation were people of some ability—even if it was only in the field of making money. Is it therefore unreasonable to suppose that they may have handed some of that ability down to their descendants?
Research now being done suggests that some characteristics tend to be handed down, particularly in the male line. Some psychologists have noticed that eldest children tend to have qualities of leadership to a greater degree than their siblings. The noble Lord, Lord Caccia, said in the great debate in 1968 that one day there might be a demand that none should participate in a second Chamber unless they had by heredity an approved DNA rating. It would be a pity if we were to throw out the hereditary principle only to have our successors say in 20, 30 or 50 years' time, "How silly they were to abolish the right of hereditary Peers to sit and vote in this House—but, of course, they didn't know any better in those days, and now we do".
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The peculiarities of our unwritten constitution have for a long time saved us from Aristotle's dread cycle that,
"autocracy begets tyranny, remedied by aristocracy which begets oligarchy, remedied by democracy which begets demagogy, remedied by autocracy",
and so on, back to square one. We have so far managed to avoid all three traps during the past few generations. In Britain, we have evolved historic safeguards in our constitutional monarchy and an Upper House, many of whose Members are bred to a sense of duty and not swayed by the fears and ambitions of elections. As some ancient Greek city state democracies—faced with the divisive rivalries of election—chose their officials by lot rather like we choose jurymen, so we choose some of the Members of this House by the lottery of birth, from a group of families originating in all classes who have shown some sense of responsibility in advance, and who are of all ages, various races and nationalities, an infinite variety of professions, and both sexes. Those without that sense of responsibility do not come here in general; the unsocial hours we work see to that.
Finally, as has been said more than once in this House, "It shouldn't work but it does". I am sure that it is always a mistake to change anything that works unless one is very sure that one is going to put something better in its place. Are the noble Lords who want to alter the composition of this House so very sure that doing so will be an improvement—or are they advocating change for the sake of change and on the basis of a possibly soon-to-be-disproved theory that heredity is of no consequence?
8.56 p.m.
Viscount Ingleby: My Lords, I am glad to follow the noble Lady, Lady Saltoun, particularly because she happened to mention a kinsman of mine—Robert Capell—who, if we can succeed in proving his claim to the satisfaction of the noble and learned Lord the Lord Chancellor will, I hope in the not too far distant future, take his seat here as the Earl of Essex. As the noble Lady was not absolutely sure, let me just say that he does indeed run a family grocery business in Morecambe, and I feel that he would be a very useful addition to our House.
I am grateful to the noble Lord. Lord Jenkins of Putney, for introducing this subject. I am at a slight disadvantage because the terms of his Question seem to be much wider than the proposals we have heard from him tonight, which seem to come down to the fact that for Peers to have the power to vote in future, they would need to have a minimum number of attendances here, and that the right should not be inherited.
The composition of this House may be illogical but as the noble Lady has just said, it works quite well. The usefulness of this House is growing, and I believe that it is growing in the public estimation, too. I have been a Member here for only 13 years but I am sure that this House is much more active even now than it was when I first arrived here. As the noble Lord, Lord Banks, has said, attendances now average more that 300 every day. I wonder whether the noble Viscount can tell us when he replies what the attendance was 25 years ago, before the life peerages Act was passed.

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The most striking point to my mind about this House at the present time is that the Government are no longer certain of commanding a majority. I do not mean just this Government, but I think that it is a vital part of any second Chamber worth its salt that there should be certain occasions when it can say to the elected House, "You must think again on this particular matter".
In this objective I feel that the Cross-Bench Peers have a particular part to play. There are in fact 219 of us. If we were a party (which, of course, we are not) we should be the second largest party here. There is a daily attendance of 40 to 50 from the Cross-Benches. I suppose that we are roughly equally divided between life and hereditary Peers. Of the hereditary Peers, there are a considerable number who do not come here at all. There are also a considerable number who come only when their special subject is being discussed. What worries me a little bit about the proposition of the noble Lord. Lord Jenkins, of a minimum number of attendances is that it seems to me that we would lose the value of those Peers, because they really come only when their particular subject is being discussed.
Lord Jenkins of Putney: My Lords, the proposal for a minimum number of attendances is not mine. It came from the Liberal Benches.
Viscount Ingleby: My Lords, then there are the 150 or so hereditary Peers. I am assuming that our daily attendance is roughly equally divided between hereditary and life Peers. I would just ask the question, what would this House look like without any hereditary Peers? I do not want to mention names, but we have here among the hereditary Peers the chairman of the County Councils Association, the chairman of the District Councils Association, the chairman of the Finance Corporation for Industry and many other hereditary Peers holding high positions in universities. One even asks oneself the question, what would the Conservative Front Bench here look like without any hereditary Peers? There are some young hereditary Peers whose presence here we greatly value and I personally welcome.
The hereditary principle, allied of course with the life Peers, the bishops and the judges, results in a random cross-section of people having the right to come here. I am sure that no one would want this House to be a pale shadow of the other place. I feel that this House has evolved greatly, even in my short time here. Rather than make any sudden changes, I should like to see the House continue to grow—as I believe it is growing—in usefulness and in public esteem.
9.3 p.m.
Viscount Hanworth: My Lords, in the first instance I apologise for not having put down my name on the list of speakers. Manning my Front Bench, and having listened to the arguments, I should briefly like to make one or two points. First of all, there is no doubt at all that the SDP and the Alliance are in favour of reforming the House of Lords, but in the meantime I think that we should be making a grave mistake if we tinkered with the existing set-up which is working really very well. We depend to a great extent on those noble Lords who are still in very important positions, and who are in the main hereditary, coming here and Vol. 450
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giving their advice. Although we have already said that those who do not attend fairly regularly should apply for leave of absence, we cannot define this because it would eliminate some of the most important people who come here and give their advice.
We should come to terms a little bit more with what we mean by "democracy" and "elected". Somehow those terms seem to be absolutely magic. I do not want to go into this too far, but people should realise that they do not mean as much as a lot of people like to say. If you really believe in democracy as thought about by people as a whole, you straight away of course move to proportional representation. In most cases the voter has a choice of two evils—one person or the other. I am not for one moment suggesting that we should move away from this, but we should not be too frightened of saying: "Here we are in this House. It is anomalous in principle, but nevertheless we are doing a good job. It should be reformed in the long run; but, for goodness' sake, do not let us tinker with it in the way that this Motion proposes".
9.5 p.m.
Lord Cledwyn of Penrhos: My Lords, my noble friend Lord Jenkins of Putney has asked a Question which has, as he himself recognised, great constitutional importance. He made a reasonable speech and there was much in it with which I think most noble Lords would agree. For example, like him I have believed for many years that a bicameral system is preferable to a unicameral one. There are those, including many in my party, who take a different view, and they can make out a respectable case. Therefore, the fact that the agreement of this House is required before the other place can extend its life beyond the statutory five years must be regarded as an important constitutional safeguard.
Even so, while those arguments about bicameralism and unicameralism must be given due weight, the primacy of the elected Chamber cannot and should not be challenged. The Parliament Acts of 1911 and 1949 have so limited the powers of this House as to make it impossible for it to challenge the House of Commons in any really significant way. If there is to be an argument it should be not whether the House of Lords should be abolished but whether this country should have a unicameral or bicameral system, and, if the latter, what form should the second Chamber take.
Over the past 100 years and more no single constitutional issue has been debated more frequently and continually than the reform of this House and the point which my noble friend has raised. The House will know of the bitter feeling which resulted from the defeat of Mr. Gladstone's second Home Rule Bill in 1893, which eventually led to the setting up of the Select Committee in 1907. This concluded in due course that:
"it was undesirable that the possession of a Peerage should of itself give the right to sit and vote in the House of Lords".
It recommended a House of about 400 Members, largely consisting of hereditary Peers elected for the life of one Parliament from within their number, a few hereditary Peers sitting by virtue of past office held and a limited number of life Peers. We know that no action was taken on that report, but it shows that my noble friend's suggestion has respectable antecedents.

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The Act of 1911 dealt with powers and not with composition, and as the noble Lord, Lord Banks, has said, its preamble contained some interesting words. I think they are worth repeating today. It said:
"Whereas it is intended to substitute for the House of Lords as it at present exists a Second Chamber constituted on a popular instead of a hereditary basis, but such substitution … cannot immediately be brought into operation …".
Interestingly enough, these words were written into our statute book only two years before the Senate of the United States became a directly elected second chamber. We must also concede that at the time Lord Lloyd George's description of Conservative peers as:
"Six hundred men chosen accidentally from among the unemployed"
is no longer true. The next step was the appointment of a conference of Members of both Houses under the chairmanship of Lord Bryce in 1917—a very important historic point in the study of this subject. This conference laid down four functions appropriate for a second chamber; namely, first the examination and revision of Bills brought from the other place. Secondly the initiation of Bills dealing with subjects of a comparatively non-controversial character. Thirdly. the interposition of so much delay—and no more—in the passing of a Bill into law us may enable the opinion of the nation to be adequately expressed upon it. Fourthly, to act as a forum for the discussion of general questions of policy—such as foreign affairs.
I believe the general views in this House would be that this exposition holds good today. The greater use of the guillotine in another place makes the work of revision more important, and we can also add to Lord Bryce's list this House's European Communities Committee, which has gained a first class reputation throughout Western Europe for the quality and importance of its work.
As to composition to which a number of noble Lords have referred. Lord Bryce it may be remembered recommended a reformed House of 246 Members indirectly elected by MPs on a regional basis and the remaining 81 Members appointed by a Joint Standing Committee of both Houses, with a proportion being hereditary peers and bishops. In the end, the conference failed to agree to the scheme and it too was in due course dropped.
The House will recall the subsequent changes and party reactions which occurred, the most notable of which were the Parliament Act of 1949 and the abortive all-party conference which preceded it. What is interesting was that agreement was reached on composition on that occasion as shown by paragraph 5 of the White Paper (Cmnd. 7380). Subparagraph (c) is relevant to my noble friend's proposal. It reads, and I quote,
"The present right to attend and vote based solely on heredity should not by itself constitute a qualification for admission to a reformed second Chamber".
I thought the noble Lady, Lady Saltoun, defended her corner staunchly, but I believe the general view is against her. The hereditary peerage, as we know, does produce some outstanding public figures: but I believe the trend of basing this House, the second Chamber in this country, on heredity to the extent that it is and has been based, is no longer acceptable to the British
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public. The noble Viscount, Lord Ingleby, asked a question; namely, what would this House look like without hereditary peers? Well, it might look very much like the elected House of Commons, which is the primary Chamber but what could happen is that the Government could convert a number of hereditary peers into a sufficient majority on the Benches opposite. That is one of the solutions that has been suggested from time to time.
For the next substantial change, which took place—and it is one of very real significance—was the Life Peerages Act, 1958 and I think it would be agreed by noble Lords on all sides that it has made this House more effective, more industrious and more representative of a wide range of interests. For this we are indebted to my right honourable friend Mr. Tony Benn. Notwithstanding this, since 1911 it is the argument about composition which has preoccupied people because it is the way in which this House is composed which is regarded by many as unsatisfactory and unfair, and powers have long since ceased to be of primary concern.
If this House decides to revise a Bill during its Committee or Report stage that may be, and probably is, an irritant to the Government in power, although it can overturn that decision in another place. However, in doing so. in the process of revising, this House is acting in the spirit of the Bryce conference. My own experience over the past few years is that where the Government have been defeated it has been on a substantial issue, and that the delay imposed on the Government has been justified. This House's recent acceptance of the amendment on telephone tappiing in the Telecommunications Bill and the Government's subsequent reaction to it is a classic example of this House performing an important constitutional function. The proposition that the work of the other place can be so reorganised, given its present already huge burden of Select and Standing Committees and other peripheral activities, is, to say the least, debatable. The tendency is to denude the floor of the other place, apart from at Question Time and for the opening and closing speeches of major debates.
But in his speech my noble friend has recognised and made plain that it is the composition of this House which makes it unacceptable to so many people and which blurs the arguments in favour of two Chambers—in favour of the principle of bicameralism. Notwithstanding what the noble Viscount, Lord Ingleby, has said, the Conservative Party can still command an overall majority in this House, whatever the complexion of the Government in power. The Official Opposition alone cannot, and never has been able to, defeat the Government in the Division Lobby. It is a combination of all the elements in the House, including Conservatives, of whom there are many with an independent cast of mind, which halts the Government in their tracks. It is an interesting, obsolete and peculiarly British situation.
As my noble friend well knows, his proposal has been anticipated on more than one occasion. I find the White Paper of November 1968—to which the noble Lady, Lady Saltoun. referred with approval—as cogent a summary of the problems as we are likely to get. It coincides with my own view of the position. It followed the conferences of 1910, 1917, and 1948 in

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recommending the radical modification, or the total elimination, of the hereditary principle. Paragraph 73(b) of the 1968 White Paper summarised its recommendations as folows:
"Alter the reform came into effect, succession to a hereditary peerage should no longer carry the right to a seat in the House of Lords but existing peers by succession would have the right to sit as non-voting members for their life-time.".
The Government of which I was a member converted that White Paper, with its many practical proposals, into legislation, and the noble Viscount will well recall that time, because I believe that he then sat on the Opposition Front Bench in another place. At that time the parties had achieved a substantial measure of agreement, and it is regrettable that it was not possible to translate that agreement into an agreed Act of Parliament. Since then many suggestions have been advanced, both by political parties and by constitutionalists, across the whole spectrum, from abolition to election by proportional representation.
A Conservative committee, under the chairmanship of the noble Lord, Lord Home of the Hirsel, considered the problem in 1978, as did a number of my noble friends, with my late noble friend Lord Lee of Newton in the chair, and both committees made some well argued recommendations. I believe that the committee under the chairmanship of the noble Lord, Lord Home, recommended an element of proportional representation at that time.
In conclusion, I wish to make merely two remarks. First, abolition would leave this country with one-Chamber government and would effect a huge constitutional change, with complex implications which have never been propery considered by either Parliament or the general public. Secondly, an elected second Chamber would surely in due time claim equivalent powers to the first Chamber. That would not necessarily be wrong, but it certainly raises fundamental issues. Sooner of later a solution to the problem will have to be found, and we must be grateful to my noble friend for pointing his finger in one possible direction.
My noble friend has a lively awareness of the difficulties, as he made clear when he said graphically that the constitutional changes could be brought about only by revolution or an all-party agreement. Another practical possiblity is a Royal Commission, followed by extensive parliamentary debate, and possibly a referendum. This has been suggested by the noble Lord. Lord Alport, on more that one occasion. In the meantime, my Lords, we must conduct our affairs here as well as we can and as efficiently as we can in the public interest.
Lady Saltoun: My Lords, before the noble Lord sits down, I should like to point out that I referred to the 1968 White Paper, but not with approval.
Lord Cledwyn of Penrhos: My Lords, I apologise to the noble Lady and I am grateful to her for that correction. I hope that she will read the White Paper carefully because I am sure that there is much in it with which she might find herself in agreement.
9.19 p.m.
Viscount Whitelaw: My Lords, I am sure that the House will be grateful to the noble Lord, Lord Jenkins
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of Putney, for initiating a short debate which has produced so many interesting points of view, and which has indeed brought us back to considering an issue which must be considered on many different occasions. The noble Lord referred to what I think he described as an element of absurdity in this House. I do not think that I would accept that, but perhaps it would be reasonable to say that there is an element of absurdity in the fact that I, a recently created hereditary Peer, should be the person to reply to this debate.
The noble Lord also said that there should be an expectation that those who are granted peerages should play a part in the proceedings of this House. I think, possibly, that my right honourable friend the Prime Minister, when she sent me here, did expect me to do that, and since I have been here, I have certainly found that I have at least endeavoured to serve your Lordships' House. As for the expectation, I suppose thai, again, 1 am in rather an absurd position because, when I was given a hereditary peerage, it was perhaps in the comfortable feeling on the part of most people that the expectation in my case of a male heir was. to say the least, somewhat unlikely. And so, I am. I suppose, an element of absurdity that might appeal to the noble Lord, Lord Jenkins.
More seriously, I think it is important that this debate has brought forward some measure of agreement that I think i should record and endorse. First. I was pleased to hear the noble Lord. Lord Jenkins, say that he believes that two Chambers are necessary in our constitution. I was pleased to hear that. It was endorsed by every other speaker and strongly so by the noble Lord, Lord Cledwyn, the leader of the Opposition, who said that there were those in his party who did not accept a bicameral system but that he most certainly did. I think that all the other speakers said exactly the same. That is very important.
There was also considerable agreement that, whatever may be the shortcomings of its composition—I shall come to that, for it is probably there that some disagreement exists among those who have spoken—this House, as a second Chamber, does in fact perform a most important function in our modern parliamentary system. I must say, with all due humility as one who has recently come to this House, that I strongly confirm that. I believe that it is important, although it does not give me or my noble friend the Chief Whip any great satisfaction, that, in the House as it stands today, the Government have to work extremely hard to get their legislation through. That is perfectly proper and perfectly right. I do not complain about it for one moment. Perhaps sometimes I complain a little, but on the whole, when I do, I realise that I have been wrong.
This has two effects. It is important that I should say so. The first effect is that my colleagues have to understand—I say "have to understand" because that is what I must tell them—that sometimes their legislation does not commend itself in certain details to your Lordships' House. They have then two alternatives. I am entitled to offer them one which goes something like this. "If all the Opposition Peers plus a large majority of Cross-Benchers think that your legislation is wrong in a particular, just perhaps and

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maybe they are right." I am entitled to say that to my colleagues. And sometimes my colleagues have the understanding to accept that this may very well be the case, and they agree with me that some changes should be made in accordance with what your Lordships would wish or that they should go some way to meet your Lordships' point of view.
I believe that, if that is what happens, it is absolutely right. I believe that it is a very important factor so far as this House is concerned. It is one which I have been determined since coming here to stand up for. I believe that it is very important. I think that noble Lords in all parts of the House accept that. Of course, there are those occasions when my colleagues decide—they have not done so yet in my time, but perhaps they will—that they cannot accept this and are determined that they must test your Lordships' views for a second time. Very well. That is again a proper question.
On several occasions, when I was in another place as Home Secretary, I was presented with the question of whether I was prepared to test your Lordships' view. It was long before I understood your Lordships as well as I now perhaps do. The question arose of whether I was prepared to test your view a second time. Perhaps it was weakness—I do not know—but I never did, when I was Home Secretary, test your Lordships on a second occasion. I gave way. In at least one case when I gave way, I have been most grateful ever afterwards that I was persuaded so to do. I thought there were good reasons when I put forward the proposal originally and still think there were, but I was very glad to be saved from them by your Lordships' House.
So again that is another way in which this House plays a vital part in our legislative system. I believe that it is generally recognised—and this has been said by all the speakers in the debate—that it is very important for our system. Therefore, the importance of a second Chamber and, secondly, the value of the House and the work that it does with its existing powers—and I wish to come back to that—are very important to our constitution.
I turn to where there is less agreement and that is on the question of composition. Those noble Lords who have said that it has been discussed ever since 1911, as the noble Lord. Lord Banks, and others have said, are perfectly correct. The noble Lord. Lord Jenkins, will appreciate that there is nothing new in the arguments that he is putting forward today. They have been considered, as many noble Lords have said, on many different occasions. On all those occasions they have fallen foul of one of the points that the noble Lord, Lord Jenkins, put forward. He said that if there were to be changes they had to be accomplished either by revolution—and I was glad to hear him rule that out—or by all-party agreement. The truth is that when it comes to the question of composition of your Lordships' House there never has been all-party agreement.
When we came to discuss the matter in 1968–69, as the noble Lord, Lord Cledwyn, has reminded us, the proposals were agreed by Members of both parties. I had an unhappy experience on that occasion because—and the noble Lord, Lord Cledwyn, was right—I was on the Opposition Front Bench in another place. But it was much worse than that, because I was
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the Opposition Chief Whip and it was supposed to be my job to persuade the Members of my party that they should vote for this particular compromise. I had a great many very powerful figures in my party who were totally opposed to agreeing with those particular recommendations. Indeed, I am sure that the noble Lord, Lord Cledwyn, would also say that there were some very powerful figures in his party who were equally determined to oppose those compromise proposals. One of these powerful figures in another place subsequently became the Leader of Lord Cledwyn's party, and many of those on the Benches that I had to try to persuade to support the compromise have blossomed in very many important positions since.
The truth is that there was no agreement. It came about that there was no agreement for the simple reason which the noble Lord, Lord Cledwyn. also mentioned. The Commons in many cases felt that if they changed the composition of this House, if they made this House in some way an elected chamber, then they would have to give this House more powers. That is one of the main obstacles to any agreement between the parties: the one thing that both parties in another place will not wish to do is to give your Lordships' House more powers. They believe that if in fact they did change its composition they would have to give it more powers and I think I am right in saying that that was the reason above everything else why many of them—Mr. Foot, Mr. Enoch Powell, and many others—were opposed to those compromise proposals.
Lord Jenkins of Putney: My Lords, I am most grateful to the noble Viscount. As one who followed both Mr. Foot and Mr. Powell into the Lobby in opposition to his proposals on a previous occasion in the Commons, may I say that the one point upon which my proposal differs from all others is that it is a proposal for a single change, and it does not involve in any way a proposal to give this House more power?
Viscount Whitelaw: My Lords, I absolutely accept that the noble Lord is quite correct in saying that, but if he will allow me I will come to his single change when I have dealt with some of the broader changes, because I think I will also have to say that that single change in itself would lead to many of the disagreements which have occurred in the past. However, those are the reasons why so far any efforts to change the composition of your Lordships' House have always failed. They have always failed and, until a new situation occurs, I believe that they are likely to do so. Therefore, on the broadest front I must and do go along with the noble Lord, Lord Jenkins, in saying that it has to be either by revolution or by all-party agreement. On the broader front there is neither at the present time, and therefore I do not think that the basis for a major change exists.
I should like to turn to some of the other speeches that were made on the narrower point of whether it would be possible to exclude hereditary Peers from taking part in this House. On this, of course, there is considerable disagreement. The noble Lord, Lord Banks, suggest that there should be a commitment: that those noble Lords who did not attend on a specific number of occasions should have their right to attend,

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to speak and to vote removed, and they would have to renew it in the subsequent Session. To some extent I suppose that the point made by the noble Lord, Lord Banks, is met by the question of leave of absence, but although that is valuable in a limited number of cases, I do not think that it has necessarily been a satisfactory way of proceeding, and I think that the noble Lord wished to go further.
Then we come to the question of the position of the hereditary Peers. My position is curious, but the position of the noble Lady, Lady Saltoun, also has certain curious factors to it. Before I rose to speak my noble friend the Chief Whip said, "Remember, you call her Lady Saltoun and not Baroness Saltoun". That in itself is a change. Contrary to what the noble Lady says, sometimes heredity, through the female line, produces considerable and very beneficial results. It does not always happen through the male line. I have four daughters and if I were to say anything else and any of them bothered to read what I said, which I do not think they would, they would not be very pleased. Therefore, I am delighted to welcome the noble Lady, Lady Saltoun, as someone who shows the value of heredity through the female line.
The noble Lady very properly made some of the important points about hereditary Peers. First, there is the question of age. It is perfectly true that if hereditary Peers were not entitled to attend, to speak or to vote in this House, it would immediately and at once become a very much older establishment. That would be greatly for the worse. As I think the noble Viscount, Lord Ingleby, said, the Government Front Bench would be a very empty place if it were not for hereditary peerages. I suppose that my position in it would only serve to underline that.
However, I must say that, but for the contribution that many of my noble friends on this Front Bench, who are hereditary Peers, make, I do not know what I would do. Above everything else, I am entitled to say that 1 simply do not know what I would do without my noble friend the Chief Whip; he would be a very serious loss indeed to me and one which I am not prepared to contemplate in any way at all. If I were to contemplate it, I certainly would not say it in public, but I certainly would not contemplate it under any circumstances. That is one point which is important.
The noble Viscount, Lord Ingleby, asked me about attendances. The Life Peerages Act changed the composition of this House. I believe that the noble Lord, Lord Cledwyn, should remember that credit is due to one of the most recent recruits to this House—the noble Earl, Lord Stockton—because it was his measure in 1958 which introduced the life Peers. Mr. Benn had some influence on some other rather remarkable affairs that took place later, but he did not have any direct effect on the introduction of life peerages.
Curiously enough, I made a speech in another place on the Second Reading of the Life Peerages Bill, but I did it for one of the worst of all possible reasons—that there were not enough speakers in the debate and I was pressed into speaking by the Whips. Nevertheless, I am assured that on that occasion I made a most excellent speech. However, I have never dared look it up since, and I certainly would not do so now. However, the average daily attendance in 1957–58 was 124. The
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attendance in 1983–84 to date is 323. I think that the noble Viscount, Lord Ingleby, has performed an important service in pointing that out to us, and in pointing it out to the House. It is very important.
Both the noble Lady, Lady Saltoun, and the noble Viscount, Lord Ingleby, spoke of the introduction of people from many different walks of life whom we might not normally have here. They both mentioned the question of the possible arrival of the Earl of Essex as a family grocer. I should have thought that that would be an altogether valuable addition—the more valuable, of course, if he then decided to sit on my side of the House. But that of course I could not guarantee, and maybe with the keenness shown by the noble Lady, Lady Saltoun, and the noble Viscount, Lord Ingleby, no doubt they see in him a recruit for that important body, the Cross-Benchers, to whom I have already given I think the right tribute for the important part they play in this House and indeed in legislation.
The noble Viscount, Lord Hanworth, said, "Please do not tinker". I think in what I have said I have shown first the areas of agreement. I believe that most noble Lords in this House believe that we should have a second Chamber. That is very valuable. I would readily endorse that. Secondly, the value of this House as a revising Chamber in legislation is crucially important. I wish also it had more publicity for its most excellent debates. I would equally strongly endorse what the noble Lord, Lord Cledwyn, said about the valuable work of the Select Committees, which have gained a reputation far outside this House. I believe again that that is extremely important.
Perhaps I should also add in terms of the composition of this House that I have not always—"blessed" would perhaps be the wrong word—welcomed all the interventions of right reverend Prelates in various Bills for which 1 have been responsible in my political career, but I would stand up to the last for their right to speak in this House. I think I have said on a previous occasion how valuable it is for once in our lives—and it is only in this House that I think one can do it—to have the opportunity first to listen to right reverend Prelates and then to get up and disagree with them publicly if one wishes. That is not something that can frequently be done.
For all these reasons we should make a great mistake if we sought to change the hereditary principle. I agree with the noble Viscount, Lord Hanworth, that we should be wrong to tinker. If we believe in the value of this House and in its importance as a second Chamber, and indeed with the feelings of those who believe that hereditary Peers—as I strongly do—have a most important part to play in this House, it would be wrong to make the minor change which the noble Lord suggests. 1 believe it would be wrong, in the words of the noble Viscount, Lord Hanworth, to tinker in this way.
I have to come back to the specific point of the noble Lord's Question and say to him that I greatly welcome the fact that he put it down. I greatly welcome that we have been able to have this debate. But I have to tell him first that the arguments on this matter have been so thoroughly rehearsed, and the chances of a general agreement are so remote, that I see little purpose in pursuing the noble Lord's proposal at the present time. It would need a much wider body, and it would need

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a body which then might reach agreement between the parties. I see no prospect of that at the present time. That is why I hope that the noble Lord will feel that he has performed a useful function to this House in putting forward this Question in the way he has. but I hope he will also see why I believe this is not the best way of pursuing it through a Select Committee at the present time.
House adjourned at twenty minutes before ten o'clock.