Lords Sitting of 18 July 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 Liverpool.

"Buying Problems": Recommendations
Baroness Elliot of Harwood: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will consider the recommendations for changes in the law regarding the sale and supply of goods contained in the National Consumer Council's recent report entitled Buying Problems.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, the National Consumer Council's report is its response to the Law Commissions' consultative document on the sale and supply of goods. It will be taken fully into account by the Law Commissions in preparing their final report. When that report is received the Government will give careful consideration to its recommendations.
Baroness Elliot of Harwood: My Lords, I thank the noble and learned Lord the Lord Chancellor very much for his reply. This subject has been going on for a very long time, since I was chairman of the Consumer Council some 15 or 20 years ago. I feel very strongly that we ought to take it very seriously and we ought to try to carry out some of the many recommendations which are suggested. I realise that this is—
Noble Lords: Question!
Baroness Elliot of Harwood: My Lords, would it not be possible for the inquiry to be carried out now rather than waiting until a further report is available?
The Lord Chancellor: My Lords, the noble Baroness will recollect that there have been numerous amendments to the sale of goods law in recent years, one as recently as 1982. The matter was referred to the English Law Commission. They and the Scottish Law Commission took the trouble to issue a joint consultative paper. The document to which my noble friend refers was the response of the National Consumer Council to that paper. I think it would be discourteous both to the Law Commissions and to the numerous other persons who would wish to make a response to the consultative paper if we were to give priority to any one respondent.
Baroness Burton of Coventry: My Lords, may I ask the noble and learned Lord the Lord Chancellor, who we do not usually see here dealing with consumer matters, whether he is aware that on the less rarified heights what consumers really want is to buy merchandise which will work and will fulfil the promise on
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which they bought it. They would much rather not have to make complaints and get their money back. They would prefer to have something which works.
I did not expect the noble and learned Lord on the Woolsack to be answering the Question. He probably has not had time to read this report. I do not know whether it is in order to ask him if he would ask the Minister responsible, Mr. Fletcher, to look at what is on page 5 of this report. Could he stress that what the Consumer Council feel is of great importance is the content and the actual specification of labels on goods? If the noble and learned Lord felt able to add his weight to that consideration, I am sure it would be most beneficial to us all.
The Lord Chancellor: My Lords, I am not sure how far that is a supplementary question. The noble Baroness will not have forgotten the provisions of Section 14 of the Sale of Goods Act 1979 which gives effect to the desire of consumers to see that what they buy corresponds both with description and with quality and fitness. The question is how that can be improved, if at all. As regards my weight, I should think it is adequate for almost every purpose! However, I am sure that my honourable friend who is, as the noble Baroness says, responsible for these matters will take very careful note of what she has said.
Lord Mishcon: My Lords, having had the privilege of piloting through this House the legislation to which the noble and learned Lord was kind enough to refer, may I ask this question. Would he not regard the recommendations of the National Consumer Council and this publication as being a very natural sequel to that legislation and therefore of not great complexity?
The Lord Chancellor: My Lords, what is or is not complex is a matter of opinion. There were between 48 and 52 recommendations in the consultative paper which are germane to this question and over 110 pages of the report to which my noble friend's Question relates. But of course it was a sequel to that that I think the noble and learned Lord on the Opposition Front Bench probably had in mind when he made the reference to the law commission in January 1979.
Lord Taylor of Blackburn: My Lords, while the noble and learned Lord the Lord Chancellor is answering these questions would he consider, on the same subject, taking up the question of Sunday trading at the same time in the next Session of Parliament?
The Lord Chancellor: My Lords, I do not think I can anticipate the Queen's speech.
Baroness Burton of Coventry: My Lords, can I chance my arm on another point? I have not forgotten the legislation to which the noble and learned Lord referred. I wonder if I might ask him about what is a very real consumer feeling. This relates to a Consumer Sales Act which consumers would like to see more accessible. As the report says—and I agree with it—consumers really do feel that it is inappropriate that consumer transactions should be governed by a law that is primarily concerned with and interpreted according to commercial practice. Can the noble and

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learned Lord give some help to consumers on that matter when the whole affair is considered legally?
The Lord Chancellor: My Lords, I suppose, of course, that this is one of the very questions that the Law Commissions will wish to consider in their final report. I think that there is some difficulty in defining what is a consumer. Supposing that you are the owner of a fleet of lorries and that you have paid tens of thousands of pounds for over a hundred lorries, are you a consumer, or is that a commercial transaction? Is the charterer of a large ship a consumer of services, although not of goods, when he charters the ship? There must be some intelligible line of demarcation in order to describe what is a consumer contract, and what is a contract for the sale of goods or provision of services of a commercial character. I do not think that the issue is quite as easy as is assumed in the noble Baroness's question.

Unemployment
2.44 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 whether the present trend in long-term unemployment is still rising and, if so, whether they can predict when it will be reversed.
The Minister of State, Scottish Office (Lord Gray of Contin): My Lords, up to April 1984 the number of long-term unemployed has been rising but at about half of the rate of a year ago. The Government do not make forecasts of unemployment but in previous recoveries the changes in long-term unemployment have lagged behind changes in the total level of unemployment.
Lord Dean of Beswick: My Lords, I am grateful to the noble Lord the Minister for that reply. Although at present the country is beset by a variety of very difficult problems, such as the dispute in the mining industry and GCHQ, is it not a fact that the main problem facing us as a society is the unacceptable, high level of unemployment that continues to increase, despite what the Minister says, although possibly at a slower rate? Is the Minister not aware of the utter despair that is now felt in some families who look upon the situation with no hope? Is he really saying that when I start to question him, as I hope to do, in November in the next Session of Parliament, we shall still be facing the same future of despair?
Lord Gray of Contin: My Lords, I realise, of course, that the noble Lord is very concerned about the question of unemployment, as are all of us. His Question related directly to long-term unemployment, and it was with that in mind that I answered it. But the noble Lord, like myself, I have no doubt, will be delighted at the announcement made by the Secretary of State for Employment today that over a quarter of a million more people are in employment at the present moment than a year ago and that this is the biggest turnaround since 1979.
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In the last nine months of 1983, there was a significant increase in employment and about 200,000 more people were in jobs. This has been maintained, and it is most encouraging. But we cannot be complacent and the Government are as determined as anybody on the Opposition side of the House that we shall overcome this. However, we shall only overcome it by creating real jobs and not by creating jobs that will not be of a lasting nature.
The Earl of Lauderdale. My Lords, does my noble friend not agree that the good news that he has just announced might, one would have thought, have elicited cheers, cheers and cheers from the Benches opposite? Is he not aware that what is driving people to despair is the sight of an unnecessary dock strike and an unnecessary coal strike dragging on for weeks without any real purpose other than to cause trouble?
Lord Gray of Contin: My Lords, my noble friend is absolutely correct. I have no doubt that, if they were really being honest with themselves, many noble Lords opposite would wholly agree with his sentiments.
Lord McCarthy: My Lords, is the noble Lord not aware that the main reason why we on this side do not cheer when he announces a rising number of people in employment is that an even larger number of people are out of employment? The fact is that the size of the labour force is going up, and of course there will be more people in employment. The question is the balance. Is not the critical thing that the Government should have some policy and that they should announce some target on how they will bring down the rate of long-term unemployment? In fact, they have policies and targets about the PSBR, public expenditure, prices and the exchange rate, but no policy at all to bring down the long-term level of unemployment.
Lord Gray of Contin: My Lords, I would remind the noble Lord that the Government care enough to insist on tackling the causes of the problem left unchecked for so many years. Government policies to set right the macro-economic framework are the only way to achieve sustainable growth in output and jobs. We have also made substantial increases in special employment and training measures to help those worst affected. I would remind the noble Lord that we are spending nearly £2 billion in total this year and are currently bringing direct help to about 620,000 people.
The Lord Bishop of Liverpool: My Lords, while thanking the noble Lord the Minister for some of the good news that he has told us, and being indeed glad about that, I note that he said that the Government do not make prophecies of unemployment. I would, however, ask the noble Lord the Minister whether he does not agree with me that, according to all the evidence we have, the market, with its new technology, will never need full employment again, as so many people will agree behind doors? Does he not also agree with me that, if that is true, we must look at policies in a quite fresh way and that it is not good enough simply to pay dole to those whom the market does not need but who would love to work?
Lord Gray of Contin: My Lords, I realise the very great concern of the right reverend Prelate, particularly in regard to his own area, about the cause of unemployment. I do not know that he has identified the answer adequately. I think that we must be realistic in this matter. As I said in my earlier statement, I do not think there is any point in trying to create make-believe jobs. I think that by following the policies which we are following, and which are now giving every sign of a recovery, we can best cope with the kind of problem which the right reverend Prelate identifies.
Lord Paget of Northampton: My Lords, does the noble Lord feel that the Government policy to reduce unemployment in the long term or the short term is likely to be improved by selling Sealink to a flag of convenience, and doing it just at this moment?
Lord Gray of Contin: My Lords, I must make it absolutely clear that the Government have never pretended that they had any automatic solution to the question of unemployment—
Lord Ennals: My Lords, the Minister can say that again!
Lord Gray of Contin: My Lords, we have gone through a period of considerable difficulty in unemployment. We have developed our policies with the intention of improving the situation. Those policies are now beginning to take effect, and I should have thought that noble Lords opposite would have welcomed this improvement, rather than cast doubts upon it.
Lord Molloy: My Lords, is the noble Lord aware—
Noble Lords: Order!
Lord Bauer: My Lords, as one step for increasing jobs, especially for young people, would be the abolition of the wages councils—
Lord McCarthy: Rubbish.
Lord Bauer:—will the Government put forward the necessary legislation early next session, so that it will take immediate effect when the period of notice to the ILO expires in 1985?
Lord Gray of Contin: My Lords, I take careful note of what my noble friend says, and of course I shall pass on his views to those responsible for preparing the Government programme.
Lord Diamond: My Lords, may I direct the noble Lord's mind to the Question on the Order Paper, which is about long-term unemployment? May I ask him whether he takes the view that, among the jobless, possibly the greatest suffering and certainly the greatest demoralisation is experienced by the long-term unemployed? Has he not just told us that normally it is the case that where unemployment does decrease, long-term unemployment lags behind that decrease? Therefore, is it not the case that the Government ought to be devoting special attention to the long-term
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unemployed? Can he tell us what policies Her Majesty's Government have for dealing especially with this terrible problem?
Lord Gray of Contin: My Lords, the noble Lord, Lord Diamond, has rightly identified the purpose of the Question, which relates to the long-term unemployed. Help is available through the community programme, which will provide 130,000 temporary job opportunities for up to 200,000 participants in a full year. The Secretary of State announced on 16th November that the programme would continue for a further two years, until October 1986, on the basis of 130,000 filled places. Apart from the community programme, other of the Government's employment and training measures provide help to the long-term unemployed. Thus, for instance, over a quarter of those who have benefited from the enterprise allowance scheme and over half of the participants in the voluntary projects programme are people who have been unemployed for over a year.
Lord Molloy: My Lords, is the noble Lord aware—
Noble Lords: Order!
Lord Leatherland: My Lords, does the Minister agree that this problem could be solved by doubling the old-age pension and thereby enabling hundreds of thousands of old people to retire and make way for younger workers?
Lord Gray of Contin: My Lords, that is an interesting observation, but I wonder whether it might have far-reaching implications which would require a great deal of thought before any final decision could be taken.
Lord Harmar-Nicholls: My Lords, does my noble friend agree that it is obvious that the time has passed when the unemployment question should be treated as a party political football? It is a problem which is shared by the whole of the Western world and one that must be faced up to by all of the European countries. But in this country, per 1,000 of the population we have more people in employment than has any other European country, except Denmark. With that as a beginning, we must have a partnership with other countries, because this is a problem which faces all of us.
Lord Gray of Contin: My Lords, my noble friend is absolutely correct. I think it is quite wrong that we should allow the very serious question of unemployment to degenerate into a party political knockabout. Certainly we on this side of the House have no intention of following that course.
Lord Dean of Beswick: My Lords, I am grateful to the noble Lord the Minister for the announcement he made a few minutes ago about the increasing number of people in work. But is it not a fact that the number of people who were added to the long-term unemployed total over the same period exceeded that figure? So what comfort is there in it for them? Of course, we are glad of the increased number of jobs

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being provided, but the point we are making—politics apart—is that it is nowhere near enough. When are the Government going to do more about it?
Lord Gray of Contin: My Lords, the Government are doing a very great deal about it. I think that the greatest contribution that could be made by the Labour Party in general, and particularly in another place, would be if they came out four-square behind those who want to work and condemned those who do not want to work.
Lord Stewart of Fulham: My Lords, the Minister used the expression "make-believe jobs". What is his definition of that phrase? Recently we had a report stating that a number of children were suffering in their education because the schools they were being taught in were in very bad repair. Would a programme to repair those schools he a make-believe job?
Lord Gray of Contin: My Lords, the noble Lord asked me what would be my definition of a make-believe job. I would suggest that a make-believe job is a short-term job, created by pumping money, ridiculously, in my view, into sectors of the economy where jobs are going to be created, thus making people believe that the jobs are of a long-term nature when in actual fact they will be of very short duration.
Lord McCarthy: My Lords, is the noble Lord not aware that that is a first-class definition of the Government's community industry programme?
Lord Gray of Contin: My Lords, I shall do the noble Lord the courtesy of answering him, though I think that comment is barely worthy of an answer. I think I have identified the Government's policies and their successes sufficiently this afternoon to enable him to grasp them.

Hospital Closures: Unemployed Doctors and Nurses
2.58 p.m.
Lord Molloy: 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 how many hospitals have been closed and how many nurses of all grades and doctors have become registered unemployed during the past two years.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, in 1982 and 1983, 70 hospitals, involving 4,571 beds, were approved for closure, and 19 major schemes involving 5,302 beds were completed, in addition to many smaller schemes providing a further substantial number of new beds and other facilities. Occupational information is not now collected on claimants at unemployment benefit offices. We have no evidence that any significant number of doctors or nurses are unable to find posts if they are moblile and prepared to move to units with vacancies.
Lord Molloy: My Lords, is the noble Lord the Minister aware—the country is—that the Government changed the rules to hide the figures? Doctors want to be recognised as doctors when they are unemployed, but they can no longer—I hope the House will note this—register as unemployed doctors; nor can nurses similarly register. The fact of the matter is that the National Health Service has made its contribution to the unemployed total through Government policies which were referred to on the last Question. Would not the Minister agree that the British Medical Association, the consultants, junior doctors and representatives of the nurses are concerned that patient care is deteriorating? The National Health Service is in danger, and there ought to be a national conference involving all these responsible bodies to try to make certain that this health service of ours is saved and does not go into the dustbin of unemployment which this Government have created.
Lord Glenarthur: My Lords, the facts do not support what the noble Lord says—and there are plenty of facts. If the noble Lord wants me to rehearse a whole list of improvements that have been made to the health service since this Government came to office I could do so; but I do not think that it would necessarily benefit the rest of the House. To turn to the unemployment of doctors, the fact is that if there is significant unemployment—and there are no indications to say that there is—it is probably in those parts of the country where doctors do not want to work, and the unemployment is also probably temporary.
Lord Kilmarnock: My Lords, is it not the case that the number of unemployed doctors rose from 431 in 1979 to 1,418 in 1982, and that the number of unemployed female nurses rose from 3,696 in 1979 to 8,086 in 1982? Is it not likely that this upward trend has been continuing? Would it not be helpful to revert to the practice of breaking down unemployment figures by occupation? If we do not know the facts, how can we possibly seek to reverse them?
Lord Glenarthur: My Lords, as the noble Lord knows, the fact is that the system for recording these vacancies was changed to a voluntary one and that is the reason why those figures are not now available. But the fact also is that the number of staff unemployed is not what the noble Lord says it is. I could certainly give the noble Lord a long list of figures but I would rather give them to him in writing than quote them to him now over the Dispatch Box.
Lord Nugent of Guildford: My Lords, is my noble friend aware that the figures for the numbers of doctors employed in the health service in the four years from 1978 to 1982 have gone up by 3,500, and the numbers of nurses have gone up by 46,000? Do these figures really look as if the Government are dismantling the health service? Should not the Government be congratulated on adding to the strength of the health service in this way?
Lord Glenarthur: My Lords, I am very grateful for my noble friend's remarks. The fact is that a total of nearly 65 million cases are dealt with at hospitals as

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in-patient, out-patient or day cases. There were over half a million more in-patient and day cases in 1982 than in 1978. I could go on at length, but I think that my noble friend has made the point for me.
Lord Ennals: My Lords, the Question basically is about the number of doctors and nurses who are unemployed. Is it not very disturbing that the Minister cannot give those figures? Is it not the case that his right honourable friend the Secretary of State is responsible to Parliament for the provision of the National Health Service and surely the figures should be available? Has the noble Lord read the BMA's claim that there are now 2,000 doctors unemployed—and that is a current figure—and the claim of the Royal College of Nurses that there are roughly 10,000 nurses who are unemployed? Is it not grossly unsatisfactory that the noble Lord cannot give the actual figures to the House when the professional bodies themselves are giving figures which are deeply disturbing to the health service and to the nation?
Lord Glenarthur: My Lords, there are various estimates floating around, one of which has been, as the noble Lord says, that the BMA suggested that there were 2,000 people unemployed. It was the BMA junior doctors who completed that survey. It is also interesting to note that the BMA distanced itself from those figures.
Lord Ennals: No, my Lords.
Lord Glenarthur: Yes, my Lords, they did. There has been no evidence to suggest that those figures are correct.
Lord Sandys: My Lords, reverting to an earlier question, is it not the case that more than 5,302 beds have been created in hospitals, and does that not show a surplus of new beds being created and therefore employment in the health service? Is not this most satisfactory?
Lord Glenarthur: My Lords, I am very grateful for my noble friend's intervention. Whereas capital spending under the Labour Government was slashed—and that is not too strong a word—by 33 per cent., it is now up by over 23 per cent. since 1978–79.
Lord Cledwyn of Penrhos: My Lords, I am not quite sure how helpful the bandying of figures is. In connection with the question asked by the noble Lord, Lord Sandys, is it not the case that, since 1979, 160 hospitals have been totally or partially closed with a loss of 8,000 beds? Is not that the case and would not that result in a decline in the employment of doctors and nurses?
Lord Glenarthur: No, my Lords. The fact is that I shall now have to start swapping further statistics with the noble Lord, Lord Cledwyn. The facts do not support the allegations at all. The fact is that employment has gone up; and the fact is, too, that the number of patients who have been treated in hospital and in other ways has also increased. If there have been cuts, they have been in waste and not in anything else.
Lord Molloy: My Lords, is the noble Minister aware that I do not expect him or even ask him to accept my version of the facts which I have given this afternoon? There must be a referee. I am submitting, and I hope that this House will agree—
Noble Lords: Question!
Lord Molloy: My Lords, I am asking this question. Would the noble Lord be prepared to see representatives of the consultants of Great Britain, the British Medical Association, the junior doctors, the Confederation of Health Service Employees and the Royal College of Nursing who all say that it is absolutely disgraceful that the number of nurses, doctors and consultants is falling, that hospitals are being closed and that patient care is in danger? None of them is asking for increases in pay—they just want to make certain that their dedication is put to full use and that patient care will not suffer because of the unemployment which is creeping among every grade and rank of the medical services of our nation.
Lord Glenarthur: My Lords, as I have told the noble Lord, Lord Molloy, on numerous occasions, there are continual contacts between the Department of Health and Social Security and all the representatives that he has just named. That will continue.
Lord Mackie of Benshie: My Lords, will the Minister or the Leader of the House give a ruling on the use of the term, "noble Minister"? It is my understanding that noble Lords are always noble, whereas the nobility of Ministers is a matter of opinion.
The Lord President of the Council (Viscount Whitelaw): My Lords, that is a very interesting point; but after the time that has been taken on this Question I think that we should answer it on another day.

Radar Speed Measuring Devices
3.7 p.m.
The Earl of Kinnoull: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they intend to take following the publication of the Home Office report on hand-held radar guns.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, we intend moving to a type approval procedure—as provided for in Section 62 of the Transport Act 1982—when the Scientific Research and Development Branch of the Home Office has completed its current evaluation of fixed roadside radar speed measuring devices.
The Earl of Kinnoull: My Lords, I am grateful for my noble friend's reply. Can my noble friend give an estimate when he is likely to be able to publish the approved types, and then, having published those approved types, how long it will be before the police authorities are able to implement the request?
Lord Elton: My Lords, we expect to implement Section 62 in the autumn and these things will flow from that.
Lord Underhill: My Lords, the Minister will appreciate that the document on these investigations is highly technical. As it was sent to a number of interested bodies, can he say what responses have been received and also whether there were any adverse comments about the type of investigations carried out? It is far too technical for the ordinary layman to ascertain whether the operations to carry out these checks were satisfactory or not.
Lord Elton: My Lords, we have received no representations critical of the report, and laymen can see on page 48 under paragraph 7 that the report says:
"Instrument accuracy has been examined in detail for a large sample of the meters in service. The meters have been found to be reliable and accurate, but the daily police checks are still considered necessary".
The Earl of Kinnoull: My Lords, can my noble friend say whether the static radar appliances' tests are still continuing, and whether this matter is likely to be the subject of a further report.
Lord Elton: My Lords, the testing of static roadside devices is continuing and we shall publish the report.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend Lord Lucas of Chilworth will, with the leave of the House, repeat a Statement that is to be made in another place on Sealink. This will be followed by my noble friend Lord Bellwin who, again with the leave of the House, will repeat a Statement on Local Authority Capital Expenditure, England.
It may be for the convenience of the House if I announce that, subject to the progress of business, the consideration of Commons Amendments to the Cable and Broadcasting Bill may be adjourned for dinner at approximately 7 p.m. for a short period.
Viscount Ridley: My Lords, can my noble friend tell me why a Statement which is being made in another place on the reorganisation of the Ministry of Defence is not being repeated in this House today?
Lord Denham: My Lords, the usual practice when a Statement is being made in another place is for the Statement to be offered to the official Opposition to see whether they would like it to be repeated here. It is also usual to get in touch with as many noble Lords as it is thought might particularly be interested, and I must say that I did that this morning. I did not get in touch with my noble friend, and for that I apologise; but I did get in touch with quite a number of people and the answer was that, interested though they all were in that Statement, there would probably not be anyone who particularly wanted it repeated here.
Lord Mayhew: My Lords, is the noble Lord aware that the Government's plans in this field were very
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vigorously criticised in this House by a wide circle of noble Lords, not notably members of the official Opposition? In these circumstances, is it not a little unfortunate that the House where these plans were particularly criticised will not have an opportunity to discuss the Statement?
Lord Denham: My Lords, I think the difficulty is that we have procedures in this House which have been built up over a number of years for dealing with matters to the particular benefit of this House. I am afraid that because on occasion not everybody who might be consulted is in fact consulted, we miss out in a certain way. If the procedures are wrong, I think we must look at them again. I did go to a certain amount of trouble to try to ask as many people as possible. Again, if I did not consult the noble Lord, I apologise.

Portsea Harbour Company Bill
Read a third time, and passed, and returned to the Commons with amendments.

Prescription and Limitation (Scotland) Bill
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Prescription and Limitation (Scotland) Bill, has consented to place Her prerogative and interests so far as they are affected by the Bill at the disposal of Parliament for the purposes of the Bill.
Read a third time, and passed.

Trade Union Bill
3.13 p.m.
Read a third time.
Clause 1 [Duty of trade union to hold elections for certain positions]:
Lord Renton Lord Renton moved Amendment No. 1:
Page 2, line 31, leave out ("affect") and insert ("impair").
The noble Lord said: My Lords, I suggest that this amendment and the next amendment, No. 2, be taken together, although either of them could stand on its own feet.
Amendment No. 2: Page 2, line 31, at end insert ("validly").
These are very simple drafting amendments so it will not take long. As the subsection is drafted, it could be thought to mean, although it is not intended to mean, that anything done by a principal executive committee shall be considered valid, whether or not it is valid. The trouble is that the word "affect" has a different meaning, according to its context, when it is used as a verb. I suggest that that difficulty can be overcome by using the word "impair" instead of the word "affect", and that that would better fulfil the intention of the subsection.
I concede that the second amendment is less necessary, but I think that it is still desirable to make the meaning absolutely plain. I beg to move Amendment No. 1.
Lord Denning: My Lords, I should like to support this amendment. It is quite plain that the lawyers can make hay with the subsection as it at present stands, because it says:
"Nothing … shall affect the validity of anything done …"
I should have thought that it meant "already done".
The lawyers will say:
"… shall affect the validity of anything to be done by the principal executive committee".
In other words, one validates all acts heretofore to be done by a principal executive committee, although they are invalid. It must be made clear that all this validates is acts that are validly done, and therefore I support the amendment.
The Minister of State, Privy Council Office, and Minister for the Arts (The Earl of Gowrie): My Lords, I have listened with the closest attention to what my noble friend Lord Renton has had to say, and naturally I share his view that it would be particularly undesirable if Clause 1(6) were to be interpreted as having an entirely different effect from that which is intended, and my noble friend acquitted us of ill-intentions. But where I differ from my noble friend—and I am happy to say that this is a rare event as earlier debates on this Bill have shown—is on whether the drafting of Clause 1(6) is, in fact, defective in the way in which he fears.
I am afraid that what I have to say must necessarily be relatively brief. Of course, I am not a lawyer whereas my noble friend is a most distinguished one. But I have to say to him that on this occasion the firm and unequivocal advice of the Government's legal advisers is that Clause 1(6) could not be misinterpreted in the way in which he suggests. I should like to assure my noble friend and also the noble and learned Lord, Lord Denning, that our advisers, including counsel, have considered this issue on a number of occasions, most recently in response to my noble friend's latest letter to the Secretary of State. Their firm conclusion is that this provision cannot be properly construed in the way which gives rise to my noble friend's fears.
I do not intend to repeat at length the reasons for this somewhat technical subsection. My honourable friend the Minister of State explained its purpose in another place. I explained it again at the Committee stage in your Lordships' House and my right honourable friend the Secretary of State has since written to my noble friend at great length in a further attempt to allay his concerns.
In brief, the subsection ensures that the legal status of the acts of a union's principal executive committee is not affected by the fact that part or all of that committee has been improperly elected. If an improperly elected executive committee commits an unlawful act (such as calling unlawful industrial action), then that act remains unlawful and the union remains liable for any consequences. Conversely, if the improperly elected executive commits a lawful act
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(such as authorising the payment of benefits), then that act remains lawful and is not invalidated in any way.
The amendment which my noble friend has moved, for motives with which I am in sympathy, would I fear undermine the provision by making it bite on valid actions only. This would create the possibility of a union escaping liability for unlawful acts if its executive had not been validly elected in accordance with the Bill's requirements, and it could thus argue that its actions were invalid. I do not think that it will come as any surprise to my noble friend that that would open a can of worms in respect of other parts of the legislation with which I believe he is in considerable sympathy. I hope that my noble friend will agree to withdraw his amendment on the basis of the firm assurance that I have given the House as to the quality of the legal advice that we have received.
Lord Campbell of Alloway: My Lords, before my noble friend sits down I should like to ask him a very short question. Is his understanding of the interpretation of this that, as Part I of this Act is not concerned with the validity of anything done by the principal executive committee, Clause 1(6) is merely declaratory of that situation? Is that his understanding of the matter?
The Earl of Gowrie: My Lords, again I have the disadvantage of not being learned like my noble friend, but that is my understanding, yes.
Lord Renton: My Lords. I am grateful to my noble friend Lord Gowrie and, indeed, to the Secretary of State for the long letter which he wrote to me, which my noble friend mentioned. I think the explanation which has been given, or at any rate part of it, intensifies the need for this amendment. I feel bound to say that because the explanation given depends on the supposition that subsection (6) has something to do with the way in which the principal executive committee is elected, whereas it has nothing whatever to do with that.
However, I am grateful to the noble and learned Lord, Lord Denning, for the support he has given. I think we must leave it like that. I shall ask leave to withdraw the amendment, and I can only express the hope that the fears to which we have drawn attention today are not realised at some later date when the matter comes before the courts. Reluctantly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Clause 4 [Register of members' names and addresses]:
The Earl of Gowrie The Earl of Gowrie moved Amendment No. 3:
Page 5, line 16, leave out first ("and") and insert (", by the date appointed under section 22(2) of this Act, and thereafter").
The noble Earl said: My Lords, in moving this amendment to Clause 4 I should like also to speak to the amendment to Clause 22 standing in the names of my noble friends Lord De La Warr and Lady Cox.
Amendment No. 9: Clause 22, page 26, line 2, at beginning insert—
("Section 4 shall come into force on the day on which this Act is passed. Save as aforesaid,").

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I want to make it clear right away that I shall be asking your Lordships to accept the amendment to Clause 22 put down by my noble friends. This amendment to Clause 4 is directly related to their amendment to Clause 22, and, indeed, it was inspired by it.
My Lords, it is a rare pleasure for anyone speaking from these Benches to see the word "Accept" written in upper case at the top of their brief, and to be able to say that the Government are happy to accept an amendment. Even when we are convinced that an amendment is right in principle we are usually advised that the drafting is in some way or other defective, and that the best we can do is to offer to take it away and come back with our own immaculate version. The amendment to Clause 22 is a happy exception. I am delighted to be able to say that we believe it to be right in principle and that we are only too happy to commend it to your Lordships in the admirable form in which it has been put down by my noble friends Lady Cox and Lord De La Warr.
My noble friends have pointed to a defect in the Bill, and one which we are glad to have this chance to put right. My right honourable friend the Secretary of State has made it clear that he envisages Part I of the Bill coming into effect towards the end of next year so as to allow unions time to amend their rules where this is obviously desirable, and to take whatever other steps are necessary to bring their electoral practice into line with this legislation. They will then be in a position to conduct the first elections due thereafter in full compliance with the requirements of the Bill. However, it is also clearly desirable that unions should simultaneously be taking steps to compile a register of their members' names and addresses, as required, your Lordships will remember, by Clause 4 of the Bill.
It would have been contrary to the whole spirit and intent of the amendments to which your Lordships agreed on Report if unions had been able to postpone taking any steps to compile a register until Part I came into effect on the ground that the duty in Clause 4 did not yet apply. I am therefore moving this amendment to make it clear that unions are under a duty to compile a register by the time Part I comes into effect, in other words, by the end of 1985. If they have not taken steps to compile a register by that date they will be at risk of proceedings under Clause 5; that is, either an action in the High Court or a complaint to the certification officer.
The effect of my noble friends' amendment to Clause 22 in bringing Clause 4 of the Bill into effect as from the date of Royal Assent will be to make it clear that unions must begin to take steps to compile a register as soon as the Bill becomes law. This amendment to Clause 4 makes it clear that this process must be completed by the time the remaining provisions of Part I themselves take effect. A trade union will not then be able to argue that it is impossible for it to hold a postal ballot because it does not have a register of its members' names and addresses. I am grateful to my noble friends for bringing this matter to my attention. I commend the amendment to your Lordships together with that to Clause 22 standing in the names of my noble friends.
Lord McCarthy: My Lords, we are seriously worried by the speech of the noble Minister. I want, if I can, to
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try to explain the basis of our concern. These amendments, including the amendment of the noble Earl which we are now discussing and Amendment No. 9 of the noble Earl, Lord De La Wan, and the noble Baroness, Lady Cox, have been put down at the last minute. It is not normal for us to complain about this, but it is relevant to the discussion and the position in which we find ourselves at the moment.
On my first sight of Amendment No. 3 my reading was that it is, in a sense, contrary to Amendment No. 9, which is to be moved by the noble Earl, Lord De La Wan, and the noble Baroness, Lady Cox. What the Government amendment is doing is saying in fact that the part of the Bill, which is now under discussion, Clause 4, would in effect come into active play when the rest of Part I came into active play. The amendment of the noble Earl says:
"by the date appointed under section 22(2) of this Act".
In other words, the whole of Part I would come into effect at the same time.
Although as the House will know we are not in favour in general terms of Part I of the Bill, nevertheless we could support this amendment because what it is saying is that maybe it is the case that this particular clause does not have a specified date by which it will come into effect—because, after all, it, too, was introduced somewhat late—but that date will in fact be the date at which this part of the Act in general will come into effect. That we would accept and go along with. But now the noble Earl tells us that he wants us to pass the amendment in his own name to Clause 4, and, in addition, subsequently, we shall be asked to pass Amendment No. 9 to Clause 22, which will make Clause 4 come into effect from the very day on which this Act is passed.
I have taken that to be a contradiction, and I want to know why the Government do not accept that it is a contradiction.
We have to ask ourselves: what is the point of having a register at all? Very few unions at this moment in time have centrally administered registers. There is no reason why they should have. Most unions either do not have centrally administered postal ballots, or, even if they do, they do not necessarily feel that alongside them have to go central registers. They have some names kept centrally, others kept in the regions, some at branch level, and some names which only come to light as a result of asking for information from employers, in particular where there are check-off arrangements.
There is no reason at the moment why that should not be the case, and there is no reason why it should not continue to be the case; because after all, the main aim of having names on registers, or in having them kept in some other way outside the central administrative centre of the union, is because in that way they are more likely to be up to date. That which is centralised is out of date. It is the case in all organisations, particularly in voluntary organisations.
But the Government have said, in this part of the Bill, that they want the unions to compile and maintain a register. The Government have not said—we have raised this matter in debate in the House, but we have not had an answer—that it shall be

1491
the duty of every trade union to compile and maintain a central register. It is just "a register".
As the Government are now saying that these registers shall be in existence from day one, it is perfectly reasonable for me to ask them what kind of register they mean. Let us take the example of the General and Municipal Workers' Union, or the GMBTU as it now is, which keeps in the regions such registers as it has. Are we to be told that this is improper? Are we to be told that from day one there must be a central register, kept in the central office of the union; or can the union have its register torn up, as it were, in various parts and kept in different places? This now becomes a matter of immediate importance, because the Government are saying that it has to start from day one. Under the terms of the Bill, and particularly in the light of the amendment which the Government say is compatible with the Bill, we are told that is shall be the duty of every trade union to compile and maintain this register. What if they do not?
I had always thought—and I ask the noble Earl whether he agrees with me—that the sanction behind Clause 4 was the final sanction whereby an aggrieved member could go the certification officer or to the court and say that in some way he had not had his full rights under Clause 1. If the court found that this was the case, and that in some way or another the member had not had his full rights, then the sanction in the end would be that either the certification officer or, in some cases, the court, would order another election. It is possible that one of the factors which may decide the court or the certification officer to make a declaration that the election was irregular would be whether there was a duty which had been carried out to compile and maintain a register.
If that is the case—and I had always thought that it was the case—it is not strange and queer that in Clause 4, or anywhere else in the Bill, we have no particular provisions imposing penalties upon unions because they do not keep registers. The nature of the duty contained in Clause 4 is simply a duty to observe the general terms of Part I. If they are not observed, and if it is found that one of the reasons for that is that the register is not being maintained, then a union should be told that it must hold another election. But if we are to have a particular day—namely, the day on which this Bill is passed by Parliament—when Clause 4 comes into operation in terms of imposing a duty (in addition to any other parts of the Bill) then we must ask the Minister: what is the sanction? I cannot see any sanction in this Bill for people who are in breach of Clause 4. I thought the sanction was the general sanction which would come into operation only when the whole of Part I comes into operation.
Let us ask another question. What happens when a union decides, under its own risk, as it is allowed to do, to have an election at the workplace, to have a workshop-based election? Can it be suggested in front of a certification officer that the union does not have reasonable grounds for going forward to a workshop-based election because it has not kept a register? This is arguable. Immediately there is no register in existence, and if from this day forward a union does not create a centrally-based register, then it has no
1492
reasonable grounds for believing that it can go forward into a workshop-based election.
All these questions are raised, all these issues are put in doubt, because the noble Earl, in moving his Amendment No. 3, which I thought was in contradiction of Amendment No. 9, has told me, to my great surprise, that the two run together. I wish he could clarify the position.
Lord Campbell of Alloway: My Lords, I understand the difficulty that the noble Lord, Lord McCarthy, has expressed on the question of construction. Until my noble friend the Minister spoke and allayed the misunderstanding, I shared it. The reason is that on the face of it Amendments Nos. 3 and 9 lie in conflict because the date appointed under Amendment No. 3 must be later than the passing of the Bill under Amendment No. 9.
However, as my noble friend the Minister obviously has this problem in mind, perhaps one can say, on more important matters, that the duty to compile a register is perhaps the most significant reform that has ever been introduced into the management of trade union affairs. It is not only the stuff and essence of the democratic machinery of a postal ballot; it is essential that it should be brought into force soon. That is the main point. But although there is this strong case for expedition, reasonable time must be given, because there are many unions which either do not have registers at the moment or do not have them in proper shape, and one must afford an opportunity, an interval, to enable them to get their affairs in order. There is this conflict between Amendments Nos. 3 and 9, but so long as it is resolved on the basis of giving the unions a fair time, then in my book it does not matter.
Lord Rochester: My Lords, I was glad to hear the noble Earl, Lord Gowrie, say that this amendment was closely related to Amendment No. 9 and, indeed, inspired by it. In adding my name to the later amendment in the names of the noble Earl, Lord De La Warr, and the noble Baroness, Lady Cox, I had in mind the point that the trade unions should be given every encouragement to apply themselves as soon as possible to the work involved in compiling registers of names and addresses of their members, for to many of them the task will be unfamiliar and may appear rather formidable.
There are one or two questions that I should like to ask the noble Earl. One relates to a point made by the noble Lord, Lord Campbell of Alloway. Am I right in thinking that in determining the date on which Part I is to come into force, the Government will take due account, on the one hand, of the need for reasonable expedition and, on the other, of the difficulties with which trade unions will be faced in meeting the requirements of Part I? That is a point that the noble Lords, Lord McCarthy and Lord Wedderburn of Charlton, have made on a number of occasions during the passage of this Bill, and, for what my opinion is worth, I have a great deal of sympathy with them on it.
I come to my second question. Expenditure incurred in compiling registers and keeping them up to date would not appear to be covered by Clause 20, which refers specifically to Sections 2 and but not to

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Section 4 of the Trade Union Act 1984. Do the Government consider that payments should be made to trade unions towards expenditure incurred in compiling and maintaining these registers? If so, what provision do they propose to make at this late stage of the Bill to accommodate that point?
Earl De La Warr: My Lords, I should like to start by thanking my noble friend very much for agreeing in advance to accept the amendment which stands in the names of the noble Lord, Lord Rochester, and myself, and for the gracious way in which he has talked about our efforts. The noble Lord, Lord McCarthy, gave the game away by saying that he had not had time to cobble together any proper complaints, and it was clear from what he said that he had not really reasoned out the objections, because it seems as clear as crystal to me that these two amendments go together like a horse and carriage.
Which was the chicken and which was the egg—and I am sorry to throw these different metaphors around—does not really matter. The fact is that we have suggested that it would be proper, useful and essential to get the unions moving, as from the passing of this Bill, on starting the very tedious work that they have to go through. My noble friend's amendment says that they have got to be finished with it by the time the Secretary of States decides in his wisdom when he is going to enact this part of the Bill, and he has made the thing at least sufficiently plain by giving your Lordships' House an idea as to when this enactment is going to take place.
The lawyers and the pundits may find all this very difficult. To me, it is dead plain. What is already in Section 4, combined with the added strength that is given to it by these two amendments taken together, means, in my opinion, that in Part I of this Bill we have arrived at something which is mightily important. Let us not forget that if you do not have registers you will never get postal ballots. It is as clear as that. My gratitude goes to the Government for the line that they have taken so generously in the speech by my noble friend. I can now put my hand on my heart and say that we have indeed made a giant stride in the direction in which so many of us want to go.
Lord McCarthy: My Lords, before the noble Earl sits down—and I am sure he does not want to misrepresent me—would he not agree that what I was saying was not that I did not have time to gather together, or cobble together, objections, but that I thought that on the face of it Amendment No. 4 was contradicted by Amendment No. 9. Amendment No. 4 says that you bring it in at once and all together when you bring in Part I, and Amendment No. 9 says that you make an exception in the case of Clause 4. I do not see how you can have those two things together.
The Earl of Gowrie: My Lords, I believe—and it will come as no surprise to the House—that the logic of my noble friend Lord De La Warr is inescapable, and is certainly shared by the Government. The two amendments complement one another. The amendment to Clause 22—that is, Amendment No. 9—brings the duty to compile a register into effect on the date of Royal Assent. That is the beginning of the
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process. Amendment No. 3 to Clause 4 makes clear that the process is to be completed by the time the rest of Part I comes into effect. It is about completion as against initiation. So far from being inconsistent, the amendments fit together to make a very sensible whole, with a beginning and an end, like all good stories.
In response to the earlier point raised by the noble Lord, Lord McCarthy, the duty imposed by Clause 4 is quite clear. It is to have one register in one place. The noble Lord also appears to be under the misapprehension that a union member will be able to challenge a union directly after Royal Assent. There could be no challenge until the date by which the register must be compiled; that is to say, the date when the rest of Part I comes into effect—and that is the effect of Amendment No. 3. The remedy then will be that if unions have not taken steps to compile a register, they will be at risk of proceedings under Clause 5; that is to say, either an action in the High Court or a complaint to the certification officer—and we debated at Report stage the balance between those two remedies.
The noble Lord, Lord Rochester, asked me about the date when the Bill will come into force. My right honourable friend the Secretary of State has made clear in another place that he intends to bring Part I of the Bill into effect 12 months after a commencement order is laid, and that such an order will be laid within a few months of Royal Assent. So Part I will be in effect towards the end of 1985 and that is the date to which trade unions will now need to work in compiling their registers.
I can hardly say that I expected the rapturous support of the noble Lord, Lord McCarthy, but the pretty rapturous support that I received from my noble friends cheered me up for that lack, and the fairly rapturous support that I got from the noble Lord, Lord Rochester, is also welcome. Nonetheless, I am surprised by the nature of the objection of the noble Lord, Lord McCarthy. No doubt he would be happy if the duty to compile a register were one that could he indefinitely postponed. But, of course, that is not our purpose on these Benches, nor, I suspect, the purpose of those who sit on the Liberal or Social Democrat Party Benches.
Surely the noble Lord, Lord McCarthy, is not really asking us to believe that, with all their financial resources and, indeed, their proven ability to organise national strikes, sometimes overnight, the relatively simple job of establishing a register could not be completed by the end of 1985. I would ask the noble Lord to pull the other one in that context. I find that an extremely dubious proposition. In respect of the point put to me by the noble Lord, Lord Rochester, about public funds, I think the same point applies. Trade unions are very wealthy organisations, and there seems to be no case for public funds to be given in order that they should compile registers. Already it has not escaped many unions that they may be better off as a result of compiling these registers; and I am sure that they will welcome that.
I am grateful, again, for the reception that these amendments have had from my noble friend and from other parts of the House. My noble friend Lord De La Wan is quite right in saying that they are a logical

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continuation of our commitment, strengthened by the initial debate on the amendment in the name of my noble friend Lord Beloff in your Lordships' Committee, to an inexorable move towards postal ballots. I am glad that he recognised that, and that we were able to accommodate him.
Lord Wedderburn of Charlton: My Lords, the nature of the Government's announcement is astonishing. At this late stage the Bill is now to impose upon trade unions, not from 1985 but from the day the Act is passed, from day one, a duty to compile a register; that is, to compile it, not to begin work on compiling it. If the noble Earl had come along and said that, then I could have understood it. There will be a duty to have from day one, and to maintain, a register of hundreds of thousands of members, including those on building sites, and those listed on branch and regional registers. All of this will become a duty on trade unions on day one. Why?—so that it will be possible to say with much greater ease that trade unions are breaking the law than it would have been had this amendment not been brought forward from the depths of the Back-Benches and gratefully accepted by the Government. In view of its link with Amendment No. 9, we shall resist this amendment.
3.51 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 198; Not-Contents, 58.

DIVISION NO. 1

CONTENTS

Ailsa, M.

Chelwood, L.

Airey of Abingdon, B.

Chesham, L.

Alexander of Tunis, E.

Clitheroe, L.

Allerton, L.

Cockfield, L.

Amherst, E.

Colwyn, L.

Ampthill, L.

Cox, B.

Arran, E.

Craigton, L.

Ashbourne, L.

Cranbrook, E.

Auckland, L.

Cross, V.

Aylestone, L.

Daventry, V.

Bancroft, L.

De La Warr, E.

Banks, L.

Denham, L.

Bauer, L.

Denning, L.

Belhaven and Stenton, L.

Diamond, L.

Bellwin, L.

Dilhorne, V.

Beloff, L.

Donaldson of Kingsbridge, L

Belper, L.

Donegall, M.

Belstead, L.

Drogheda, E.

Berkeley, B.

Drumalbyn, L.

Bessborough, E.

Dudley, B.

Birdwood, L.

Duncan-Sandys, L.

Bolton, L.

Ebbisham, L.

Brabazon of Tara, L.

Eccles, V.

Brocket, L.

Eden of Winton, L.

Brougham and Vaux, L.

Effingham, E.

Bruce-Gardyne, L.

Ellenborough, L.

Buckinghamshire, E.

Elliot of Harwood, B.

Burton of Coventry, B.

Elton, L.

Buxton of Alsa, L.

Enniskillen, E.

Caccia, L.

Erroll of Hale, L.

Caithness, E. [Teller.]

Faithfull, B.

Cameron of Lochbroom, L.

Fanshawe of Richmond, L.

Campbell of Alloway, L.

Ferrier, L.

Campbell of Croy, L.

Flowers, L.

Carthcart, E.

Foot, L.

Chelmer, L.

Fraser of Kilmorack, L.

1496

Gainford, L.

Mottistone, L.

Gardner of Parkes, B.

Moyne, L.

Gisborough, L.

Murton of Lindisfarne, L.

Glanusk, L.

Norfolk, D.

Glenarthur, L.

Northchurch, B.

Gormanston, V.

Nugent of Guildford, L.

Gowrie, E.

Onslow, E.

Granville of Eye, L.

Penrhyn, L.

Grey, E.

Perry of Walton, L.

Gridley, L.

Plummer of St. Marylebone L.

Grimond, L.

Grimthorpe, L.

Polwarth, L.

Hailsham of Saint Marylebone, L.

Porritt, L.

Portland, D.

Halsbury, E.

Raglan, L.

Hampton, L.

Rankeillour, L.

Hankey, L.

Reay, L.

Hanson, L.

Redesdale, L.

Hanworth, V.

Reilly, L.

Harmar-Nicholls, L.

Renton, L.

Harvington, L.

Renwick, L.

Hayter, L.

Richardson, L.

Henderson of Brompton, L.

Rochdale, V.

Hill of Luton, L.

Rochester, L.

Hives, L.

Sainsbury, L.

Home of the Hirsel, L.

St. Davids, V.

Hood, V.

Saltoun, Ly.

Hornsby-Smith, B.

Sandford, L.

Howard of Henderskelfe, L.

Sandys, L.

Hylton-Foster, B.

Savile, L.

Inglewood, L.

Seear, B.

Ironside, L.

Seebohm, L.

Kaberry of Adel, L.

Sempill, Ly.

Keith of Castleacre, L.

Sharpies, B.

Keyes, L.

Skelmersdale, L.

Kilmarnock, L.

Soames, L.

King of Wartnaby, L.

Somers, L.

Kinloss, Ly.

Southborough, L.

Kinnoull, E.

Spens, L.

Lane-Fox, B.

Stamp, L.

Lauderdale, E.

Stodart of Leaston, L.

Lawrence, L.

Strathcarron, L.

Long, V.

Strathspey, L.

Lucas of Chilworth, L.

Sudeley, L.

Lyell, L.

Suffield, L.

McAlpine of West Green, L.

Swinton, E. [Teller.]

McFadzean, L.

Taylor of Hadfield, L.

Mackie of Benshie, L.

Terrington, L.

McNair, L.

Teviot, L.

Mancroft, L.

Thomas of Swynnerton, L.

Mar, C.

Thurso, V.

Margadale, L.

Tordoff, L.

Marley, L.

Tranmire, L.

Marshall of Leeds, L.

Trumpington, B.

Massereene and Ferrard, V.

Ullswater, V.

Maude of Stratford-upon-Avon, L.

Vaux of Harrowden, L.

Vickers, B.

Mayhew, L.

Vivian, L.

Melville, V.

Walston, L.

Merrivale, L.

Ward of Witley, V.

Middleton, L.

Whitelaw, V.

Milverton, L.

Wigoder, L.

Molson, L.

Winstanley, L.

Monk Bretton, L.

Wynford, L.

Montgomery of Alamein, V.

NOT-CONTENTS

Ardwick, L.

Gaitskell, B.

Bernstein, L.

Galpern, L.

Blyton, L.

Glenamara, L.

Bottomley, L.

Gosford, E.

Brooks of Tremorfa, L.

Graham of Edmonton, L.

Bruce of Donington, L.

Gregson, L.

Cledwyn of Penrhos, L.

Hall, V.

Collison, L.

Hatch of Lusby, L.

Dean of Beswick, L.

Houghton of Sowerby, L.

Donnet of Balgay, L.

Hughes, L.

Elwyn-Jones, L.

Irving of Dartford, L.

Elystan-Morgan, L.

Jenkins of Putney, L.

Ennals, L.

John-Mackie, L.

Ewart-Biggs, B.

Kagan, L.

1497

Leatherland, L.

Rhodes, L.

Listowel, E.

Ross of Marnock, L.

Llewelyn-Davies of Hastoe, B.

Serota, B.

Lockwood, B.

Shackleton, L.

Longford, E.

Stewart of Alvechurch, B.

McCarthy, L.

Stewart of Fulham, L.

Milford, L.

Stoddart of Swindon, L. [Teller.]

Mishcon, L.

Mulley, L.

Stone, L.

Nicol, B.

Strauss, L.

Northfield, L.

Taylor of Mansfield, L.

Oram, L.

Underhill, L.

Paget of Northampton, L.

Wallace of Coslany, L.

Peart, L.

Wedderburn of Charlton, L

Ponsonby of Shulbrede, L. [Teller.]

Wells-Pestell, L.

Wilson of Rievaulx, L.

Resolved in the affirmative, and amendment agreed to accordingly.

Sealink: Sale
4.1 p.m.
Lord Lucas of Chilworth: My Lords, with the leave of the House, it might be for the convenience of your Lordships if I repeat a Statement about Sealink (UK), which is now being made in another place by my right honourable friend the Secretary of State for Transport.
The Statement is as follows:
"I have today given my consent under Section 1(2) of the Transport Act 1981 to the sale of Sealink (UK) by British Rail to a subsidiary of Sea Containers Ltd.—British Ferries.
"The British Railways Board invited tenders, through their advisers, Morgan Grenfell and Co. Ltd., for the purchase of the whole of the board's interest in Sealink (UK). Three proposals were received with conditions attached.
"The chosen purchaser submitted the bid with the highest value, of some £66 million. The British Railways Board have been advised by Morgan Grenfell & Co. Ltd. that the price fairly reflects the value of the business, and this view is supported by my own advisers, Hill Samuel & Co. Ltd.
"Sea Containers, an international seafreight company with its headquarters in London, have wide experience in freight shipping. They have made a number of constructive proposals for improving Sealink's business. They have agreed on firm contractual commitments to maintain rail-linked passenger services. The parties are already in negotiation on new long-term freight contracts for train-ferry and Freightliner services.
"Sea Containers have said, first, that they intend to maintain the existing business and to safeguard the rights of employees, including their pension entitlements, which will be protected. They further plan additional capital expenditure to expand the business and increase its profitability. I know that the company will be seeking early discussions with Sealink's trades unions.
"Sea Containers have stated their intention to obtain a listing for the company on the Stock Exchange in due course, and that they would expect at that time to give employees an opportunity to purchase shares on favourable terms. Meanwhile, they are planning profit-sharing schemes for all employees.
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"Arrangements have been made to ensure that the contribution of the Sealink fleet to national defence will not be prejudiced by the sale.
"This sale is a successful end to the policy transferring Sealink to the private sector which we agreed with the British Railways Board in 1980 and debated in this House in 1981. The price is good, and the sale makes good industrial logic. Customers and passengers of Sealink will benefit from the continuation of competition in the ferry market. Above all, it will be good for those who work in Sealink, who will now join a progressive and expanding group, with the substantial resources necessary to make a real success of this important enterprise."
My Lords, that concludes my right honourable friend's Statement.
Lord Underhill: My Lords, the House will be grateful to the noble Lord for repeating the Statement which was made by the Secretary of State in the other place. But one's first reaction is that this is yet a further instalment of the Secretary of State's declared intention either to dismantle or drastically to interfere with publicly-owned transport in Great Britain.
The Statement refers to a sale to the highest bidder at a price of £66 million, and it says that the price is good. Reference to British Railways' accounts only a few minutes ago shows the assets of Sealink as being valued at over £170 million. Are the accounts of British Rail being challenged? Is the price good at £66 million for assets which are valued in British Railways' accounts at £170 million? How does that fit in with the Secretary of State's statement only last week that he would not agree to a sale at a price that did not reflect the value of the assets?
There is no reference in the Statement to Sealink harbours. Can the Minister confirm that the purchase includes Sealink harbours, bearing in mind the repeated assurances that have been given in this House that Sealink harbours and the shipping fleet will be sold as one unit? If the sale includes the seven harbours and the 37 ships, being valued at £170 million and sold for £66 million, is that not a knock-down price?
The Statement refers to the purchaser's intention to safeguard the rights of employees. Has the Secretary of State received guarantees from Sea Containers about the jobs of the 9,000 employees, conditions of service and union recognition? I ask that question in view of previous experience with some of the former British Railways hotel groups, where, despite similar assurances, such things have all but disappeared. Will there be discussions with the unions (to which reference is made in the Statement) before the final contract of sale is completed? The Statement says that Sea Containers is:
"an international…company with its headquarters in London".
Why is there no reference in the Statement to it being Bermuda-based and being a company with no ships under the British flag? Surely such a situation cannot be in Britain's best interests.
Finally, what discussions have there been with British Rail's partners—the Belgian, French and Netherlands publicly-owned railways—about the future arrangements that Sealink, together with British Rail, has in that consortium?
Baroness Seear: My Lords, we on these Benches also wish to thank the Minister for repeating the Statement. I should like to ask him whether there is any truth in the rumour that a northern British firm was prepared to offer £80 million for the Sealink purchase. If that is an incorrect rumour, it would be useful to have it dispelled.
Following the remarks of the noble Lord, Lord Underhill, who has just spoken, I should also like to ask the Minister to explain why it was necessary to go to a non-British company for the purchase of Sealink. The fact that a company has its headquarters in the United Kingdom is by no means the same matter as being a United Kingdom company.
I note also that the Statement says that the company has expressed:
"its intention to obtain a listing … on the Stock Exchange in due course, and that it would expect at that time to give employees an opportunity to purchase shares on favourable terms".
On previous occasions when privatisation schemes have been undertaken, the Government have shown that they recognise the very great importance of allowing employees to have shares in the company. A firm commitment, with rather more detail as to what employee rights would be, would have been extremely welcome. Will the Minister please comment?
Lord Lucas of Chilworth: My Lords, I am grateful to the noble Lord, Lord Underhill, and the noble Baroness, Lady Seear, for their acceptance of the Statement which I have just repeated. Noble Lords opposite may laugh when I say that I am grateful to them for their response, but I repeat that. I have little doubt that noble Lords have a number of questions, and I hope that I shall satisfy some of them. The noble Lord, Lord Underhill, asked quite specifically how the sale price of £66 million can be justified when he read in British Rail's annual report that the net assets stood on the books at £170 million. Some £80 million of those assets consist of leased assets, but even allowing for that, it is true that there is a discount on the asset value of the sale price—
Noble Lords: Oh!
Lord Lucas of Chilworth: My Lords, perhaps noble Lords opposite will let me finish my answer to the noble Lord, Lord Underhill; then they may have the opportunity of laughing, or not laughing. The value of the company is what the assets can be made to earn, and the company has, on average, made a loss of £2½ million a year for some years. It made profits in only 1979 and 1983, and then they were of only £4·7 million and £4·1 million. Against those facts we believe, with the advice we have had, that this is a fair price. There is no question here of handing over profitable parts of British Rail at a knock-down price. I have said that Sealink is not generally profitable and 1983 was the only profitable year in the last five. I said that to the noble Lord, Lord Underhill, in response to a question that he asked in your Lordships' House as recently as April this year. In terms of the Railway Board's external financing limit, which includes total investment in leased assets as well as cash requirements, Sealink has accounted for well over £100 million since 1979.
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The noble Lord asked whether there would be further discussions with the unions before the sale was completed. I have to tell him: no, the sale has been completed, but of course discussions with the unions will take place, as I repeated in the Statement.
Finally, the noble Lord asked me about the pooling arrangements with SNCF, RTM and SMZ. This will be very largely for the new owner to decide. Pooling arrangements exist because all parties derive benefit from them, and that is true irrespective of who might be the owner. But all parties are certainly bound to honour existing agreements while they last and, generally, these agreements have something between a 12 and 18 months' termination notice period.
The noble Baroness, Lady Seear—
Lord Underhill: My Lords, will the Minister comment on whether or not the sale includes the harbours, and also say whether it is true that this is a Bermuda-based firm?
Lord Lucas of Chilworth: My Lords, certainly the sale includes the harbours. Again, as I said in April, it was the intention of British Rail to sell Sealink as a complete unit and that, of course, includes the harbours. Sea Containers Limited is registered in Bermuda, but it has its group head office in London. It has interests in Hong Kong and in New York. The new company, British Ferries, is, however, registered in London, and therefore the subsidiary company operating Sealink is London registered.
Perhaps I may return to the noble Baroness, who asked me about a northern British firm offering a larger sum of money. I have to tell her that I have no knowledge of that matter, and I believe it to be rumour. Certainly, nothing that I know of suggests that it is true. She asked about the company being a non-United Kingdom company, and I think that I answered that question in my earlier response to the noble Lord, Lord Underhill. Again, I confirm that it is the intention of Sea Containers Limited to bring their new company to the stock market and at that time they plan—and I have no reason to believe that they will depart from their plan—to offer the present 9,400 employees of Sealink an opportunity to buy into what will be their own company.
Lord Mottistone: My Lords, as a weekly user of Sealink, I view with great pleasure the Government's satisfactory sale. We have been waiting for it for a very long time. It will clear the air, and it seems to me, whatever noble Lords opposite may think, that in view of its past record, it is a good price. I think it is good, too, that the rail ferry linkage is to be continued. I like the sound of shares for employees in due course and profit-sharing in the meantime. I am delighted to hear that any national defence commitments will not be prejudiced. I am also glad to hear that the harbours are included in the sale, so that they will not be operated separately from the ships, which in my part of the world is very important indeed. I look forward to a more flexible approach to the provision of the various services, particularly in relation to the Isle of Wight. I hope that we shall benefit greatly from this sale in the future and I thank my noble friend very much for repeating the Statement.
Lord Lucas of Chilworth: My Lords, I am grateful to my noble friend Lord Mottistone for his acceptance of the Statement. We have always believed that to transfer Sealink from British Rail to the private sector would give Sealink the advantage of freedom from certain elements of bureaucracy which, of course, occur in nationalised industries, and I expect that the flexibility to which my noble friend referred will be evidenced very shortly.
My noble friend asked about the defence aspect. Perhaps I may tell him that the Government have taken steps to ensure that Sealink's fleet remains available to assist in a defence emergency, and any future change in ownership of either the company or its assets would not be likely materially to affect defence interests.
While I am here, perhaps I should correct what I said to the noble Baroness in so far as alternative bids are concerned. There were, in fact, three bids offered, but they were with conditions attached, and I think the bid to which she referred from a northern company was higher on face value, but was found to be lower when the deferred payments which were suggested in the terms of the purchase were considered. Both bankers were fairly clear that, on balance, that offer was worth less overall. I beg the noble Baroness's pardon for perhaps unwittingly misleading her earlier.
Baroness Seear: My Lords, I thank the noble Lord for that. I take it that that offer was from a British firm? Is the noble Lord satisfied, in view of what he told us, that British Rail's statement of accounts is a correct representation of the position? He has now told us that the assets are worth about half what they were stated to be worth in the accounts.
Lord Lucas of Chilworth: My Lords, I did not say that the assets were worth half of what British Rail stated in their accounts. What I said was that market value judged them to be less than the amount which British Rail had in their accounts.
Lord Cledwyn of Penrhos: My Lords, in all the long catalogue of Statements made in this House over the last 12 months or so, this is the most deeply disquieting that I have listened to. I regret to say this to the noble Lord, who I respect, though he has no direct real responsibility for it. Is he aware, first, that the disparity between the figure of £170 million given by my noble friend Lord Underhill and the £66 million mentioned in the Statement needs far more explanation than he has been able to give us today in the House? Is he aware that the Sealink's United Kingdom ports with which I am most familiar are clearly the Welsh ports of Holyhead and Fishguard? If the assets include the harbours, it seems inconceivable to me that the ports of Holyhead and Fishguard should not themselves be worth more than £66 million.
I shall be grateful if the noble Lord will say quite clearly to the House that he is satisfied with the advice which his right honourable friend has received. I note that the advisers are two reputable firms: Morgan Grenfell and Company Limited and Hill Samuel and Company Limited. Is the noble Lord further aware that I should be more happy if an independent body could confirm these valuations? Is the noble Lord also
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aware that it would have been more satisfactory if Welsh interests, in so far as the two Welsh ports are concerned, had been consulted: if the Welsh Committee on Economic and Industrial Affairs, presided over by Mr. Emrys Evans, had been consulted, and if it could have given advice about this sale, as well as the trade unions, which are deeply concerned about future employment?
May I also ask the noble Lord whether he is aware that the sale of Sealink to a firm which I certainly have never heard of—I do not know whether that is true of other noble Lords in all parts of the House—and which is based in Bermuda is unacceptable both to me and to my noble friends? The future of these ports and of all those who work in them is at stake. I should be grateful if the noble Lord could tell the House whether anything in the agreement precludes this firm from selling any part of the total undertaking. For example, does it preclude this firm from selling Holyhead and Fishguard separately? Does the agreement bind the new owner to work all these ports for a specified period of time, or could the new owner dispose by sale of these ports at any time from now on? I should be grateful if the noble Lord could give the House some information about that.
Furthermore, will he ask his right honourable friend to be good enough to publish a White Paper or another document which sets out all the details of this sale, together with all its implications?
Lord Lucas of Chilworth: My Lords, I recognise the interest that the noble Lord the Leader of the Opposition has in this matter, particularly his interest in the Principality. I am quite sure that he will recall that he raised some of these questions before, in April, and he will no doubt also recall that there is no question of any acquiring company being able to dispose of the harbours. All of the harbours are set up under statute, and legislation would have to be enacted for the sale of the harbours. There is no question, therefore, of the harbours being sold separately.
The noble Lord asked me about having consultations with the economic communities of Wales. We made our intentions abundantly clear in 1980. These were transferred into the 1981 Act when we provided for British Rail to dispose of Sealink. It is entirely for British Rail to abide by their terms of reference and, perhaps rather more importantly, the objectives which my right honourable friend the present Secretary of State set for them in October of last year. There is no question of anything having been sprung upon the country or anybody else. We made quite clear what we were going to do. Therefore, we did not feel that it was either necessary or desirable (I quote the noble Lord, Lord Cledwyn of Penrhos) to go to "an independent body". Two very reputable companies are advising both British Rail and my right honourable friend. Therefore, in accepting the offer of £66 million plus we do not believe that we have acted without proper professional advice.
The noble Lord, Lord Cledwyn of Penrhos, suggested that my right honourable friend should produce a White Paper. For the reasons which I have given with regard to the 1980 statement of intent and the 1981 Act, although it is not for me to say exactly what my right honourable friend may or may not do,

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I do not suppose that he would be disposed to agree with the noble Lord about producing a White Paper on this matter.
Lord Cledwyn of Penrhos: My Lords, I am grateful to the noble Lord for his reply, but may I follow up one point? Is it the case, therefore, that before this transaction can be completed and before the new owner-designate can run Sealink ports and ships further legislation will be required in order to meet the obligations under existing legislation affecting Sealink ports? If that is the position, when will such a Bill be introduced?
Lord Lucas of Chilworth: My Lords, I do not know whether I have understood correctly the question asked by the noble Lord the Leader of the Opposition. If I have not understood him correctly, I hope he will interrupt me. The whole of the group of seven harbours could be sold jointly, but certainly not separately. It would certainly be against the interests of any ferry-operating company to do so because of the long-term contracts and the legal obligations which hang upon the operation of those ports. I hope my answer has made the position clear.
Lord Cledwyn of Penrhos: Because, therefore, they could be sold in one block, is the noble Lord saying that there is no need for legislation?
Lord Lucas of Chilworth: My Lords, that is absolutely right.
Lord Underhill: My Lords, if the noble Lord cannot tell us now, will he kindly write and let us know what legislation would prevent Sea Containers from disposing of any single harbour? This is not written into the Transport Act. Is there any previous legislation which would prevent it? Perhaps the noble Lord would write to us upon the matter.
Lord Lucas of Chilworth: I believe I am right in saying that the provision would be written into a number of harbours Acts. If I am wrong, I shall certainly write to the noble Lord, but if I am right I shall not.

Trade Union Bill
4.27 p.m.
Consideration of amendments on Third Reading resumed.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 4:
Page 5, line 22, after ("section") insert ("or under section 1 above").
The noble Lord said: My Lords, my noble friends and I have put down an amendment which in one sense is fundamental but which we hope the Government might see fit, even at this late stage, to accept in principle. The problem which is addressed is the question: to which bodies does Part I of the Bill apply? The difficulty is created by the fact that the legal definition of a trade union, which is now in Section 28
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of the 1974 Act but which is not fundamentally different from that which preceded it, can bring within its scope not only a trade union in the ordinary lay sense but also a section or branch which is within that trade union. That is, a branch or a section which negotiates with employers may in law be a separate trade union.
In Committee we gave dozens of examples of such groups within unions which, at the very least, may themselves be separate trade unions. The question we raised was whether all those sections or branches or groups will be obliged under Part I of the Bill when it comes into force to hold separate postal ballots, even though the national union, if I may call it that, has fulfilled its obligations to elect its principal executive committee in the way Part I demands.
The Government, in their new clause, which is now Clause 4 of the Bill, acknowledge that there is such a problem. At least, they acknowledge it to a limited extent, because subsection (3) of the clause deals with a branch which itself is a trade union and discharges the branch from keeping a register to the extent to which the national union has fulfilled its obligation to keep what we learned earlier today is the one central register in the one place on day one when the Act is passed.
It is, in our submission, up to the Government to do one of two things: either they should accept this amendment or reveal the information or estimate, which they surely must have. In accepting the amendment, they would accept an extension of their own principle but within their own terms in the new clause. That is to say, the Government say: where a branch is a separate union in law, it need not keep its own register if the national union is doing its job properly with its register. That is very sensible. We say: by an extension of the same logic, where the branch is a separate union—and we here deal only with branches and not sections, as we did in Committee (we keep to the Government's own words)—surely it should be discharged from its obligation to keep a register, as the Government wish, and also to hold separate elections under the very special procedures of Part I including the extension under which the national union is discharging its duties.
Now that we are clear from the noble Earl that "keeping a register" means keeping one central national register, it would be little less than astonishing if a branch was compelled by law under Part I to hold a postal ballot for its principal branch executive committee when we are now quite clear that there is no obligation upon it to keep a register of members at all. The Government's own logic we suggest therefore leads to our amendment or something like it.
These clauses were put together quickly over the past few weeks and it may be that only now the logic of them can be revealed. We put the amendment forward in a practical sense and ask whether or not this would be a common-sense way of dealing with the matter. If, however, the Government are minded to reject this amendment, or further consideration of it, this Bill still has to go to another place, it really would be time then for the Government to tell the public something which it has never told it before. If the Government reject this approach then it is time to tell the public, the trade union movement and the

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employers—because they have a big interest in this matter—how many branches and sections within the 442 unions (or perhaps the 98 TUC unions, at least) it would estimate will need to have separate elections under Part I. We want to know the figure; we want to know an estimate. The Government have had 10 months in which to do the job and I am sure they have had the best possible advice upon the matter. If the Government are minded to reject the amendment, it really will not do for them not to state quite clearly that hundreds or possibly thousands of branches will be obliged to observe the procedures under Clause 1.
I hope that it will not be necessary for the Government to have to make that estimate because I very much hope that the noble Earl the Minister will be able to say something reassuring. It is, after all, a structural amendment within the logic of the Government's own Bill. It in no way contravenes the logic of the Government's Bill, and in that spirit I beg to move the amendment.
The Earl of Gowrie: My Lords, with this amendment we return once again to the question of whether Part I of the Bill should apply to all trade unions save for certain federations, which is the position as the Bill is drafted, or only to certain trade unions. In particular, the amendment now before us would exempt from the whole of Part I of the Bill trade union branches which meet the statutory definition of a trade union.
Towards the end of our debate on a similar amendment at Report stage the noble Lord, Lord Wedderburn, asked me to "sleep on this issue with a turbulent mind". I have to say that I have in the past received more enticing invitations; but nevertheless I can tell him that we have given a good deal of further thought since that debate to the questions that he raised. We have looked once again at whether—to put it bluntly—we have got it right as the Bill stands. Our conclusion, for reasons which I shall set out more fully in a moment, is that we have got it right.
The first thing to stress to the House in considering the noble Lord's amendment is that the Bill is grounded in this respect on one very simple proposition. Part I applies to any organisation which falls within the statutory definition of a trade union, save only for certain trade union federations. Part I does not apply to organisations which do not fall within that statutory definition. So the first question which it is necessary to address in considering this amendment is whether, without it, all manner of trade union branches would be within the scope of Part I of the Bill.
That is the scenario which the noble Lord, Lord Wedderburn, put before us at Report stage on 12 July. At col. 1123 of Hansard he said that the obligations of this Bill,
"should not be put upon branches up and down the land unless the wish is to kill the trade union movement in a flood of paper".
With the greatest respect to the noble Lord, I have to say that his view appears on this occasion to be based on a false premise. The fact of the matter is that the typical trade union branch simply does not fall within the statutory definition of a trade union and is therefore entirely unaffected by Part I of the Bill.
That is borne out of course in the definition of a trade union in Section 28 of the Trade Union and
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Labour Relations Act, 1974. Among other things, that definition makes clear that in order to meet the statutory definition of a trade union, an organisation must have, among its principal purposes, the regulation of relations between its members and their employer or employers. Quite clearly that is not normally among the principal purposes of a trade union branch. Union branches generally exist as a channel of organisation and communication between the individual member and the union hierarchy. It will be very rare indeed for their purposes, let alone their principal purposes, to include the regulation of relations with employers, and that is why they do not meet the definition of a trade union.
If further evidence of that is needed, it is of course provided by the fact that where Parliament has specifically wanted its legislation to extend to union branches, it has been obliged to say so. There are a number of examples of this but it may be most helpful if I point the noble Lord, Lord Wedderburn, to legislation with which he is closely acquainted since it was introduced by his own party. If he looks for example at Section 53 of the Employment Protection Act 1975—subsequently consolidated in Section 23 of the 1978 Act—he will find that it states explicitly that in that section:
"references to a trade union include references to a branch or section of a trade union".
Now of course if the definition of a trade union ordinarily covered branches or sections of a union there would have been absolutely no need for that provision.
I think it is beyond argument that the great majority of trade union branches are not affected by Part I of this Bill and that that is the answer to any union which is in doubt about whether Part I applies to all of its branches individually.
Having said that, I of course accept that there will be a very few union branches which meet the statutory definition of a trade union. To those very few branches, Part I of the Bill will apply. I make no apology for that because these branches are by definition in the business of representing their members in negotiations with employers. The Bill will simply ensure that the leaders of any branches in this position are genuinely representative of their membership. But let me stress again that such branches will be a very small minority indeed of the total.
Finally, the noble Lord asks me why we should grant a measure of relief to branches in relation to the requirement to compile a register but not in relation to the rest of Part I. With the greatest respect to him I should have thought the answer was obvious. There is no point in requiring both a union and a branch of a union—again in those rare cases where it happens to be a trade union in its own right—to have to record the same names and addresses on two separate registers. So long as the main union has a register, that register will be available for use by the branch in relation to the members of the branch. By contrast, if we were to relieve a branch of the requirement to comply with Part I simply because the union of which it was part was doing so, we would not be avoiding duplication; rather we would be removing the right of the members

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of the branch to elect their own executive committee by the basic democratic principles under the Bill.
I hope it is now clear why we cannot accept this amendment. To the extent that it is designed to remove branches from the Bill, it is almost totally unnecessary since the great majority of union branches are not trade unions within the statutory definition and are thus unaffected by the Bill. But where a branch or a section is a trade union within the statutory definition and is thus in the business of negotiating with employers on behalf of its members, we believe it entirely right that it should be covered by Part I of the Bill.
Lord Wedderburn of Charlton: My Lords, we should not take too long with this amendment, but the noble Earl's reply requires that I say something about it. Of course the Bill applies at the moment to all trade unions within the statutory definition. In saying that the Act, as it will be, might apply to all manner of branches up and down the land, I apprehend that I disagree with what the noble Earl said in one important respect; namely, that I think he said it is only a very small minority of branches. Since this is a very difficult matter of law, I would prefer to couch our disagreement in terms of what might be within the definition of trade unions.
It is a highly difficult matter of law, and it is highly arguable that there are all manner of branches up and down the land which, in law, are trade unions within the present definition. I say that for this reason—and I wish to make this quite clear. Time and again we get from the Government statements that are based upon a totally inadequate assessment of the situation on the ground in trade unions. It is just not true that in a large number of unions branches fulfil only the function of what I think the noble Earl called channels of organisation or channels of communication. Certainly they do both; but in unions which have workplace-based branches you frequently find—indeed, one might say that in most of them you ordinarily find—some negotiation through the branch which can fall within the definition.
I do not know when the noble Earl last read the case of Cope v. Crossingham in 1909, but it is about the only discussion that there is. He knows, as I do—one may be a lawyer and the other not, but neither of us is a judge—that both of us stand in terror of what might be the proper interpretation. It is perfectly possible that hundreds of branches of unions like the General and Municipal Workers' Union are within the definition. I wonder whether the noble Earl has thought through the position inside the National Union of Mineworkers—I do not mean the area unions, of course—or the Civil Service unions, or the unions in textiles or iron and steel. Has he really obtained advice that all the branches in those areas are not likely, or are very likely, or, at least, are probably, trade unions within the definition? I suspect that he has not.
Of course, it is true that in some unions—the unions he is no doubt thinking of—they do not negotiate through branches, but there are many places where they do. As for his citation of Section 53 of the Employment Protection Act 1975, which he correctly
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says is Section 23 of the Consolidation Act 1978, that is nothing to do with the point whatever. Branches are included within trade unions there, whether or not the branch is a trade union. We are not dealing with that problem. We are dealing with the problem where a branch is, or is likely to be, a trade union within the law. That brings branches in whether or not they are trade unions. It is quite a different issue.
If the noble Earl wants a precedent he should look at Section 5(2) of the Trade Disputes Act 1906—as, I suspect, did the draftsman of this Clause 4(3)—where he will see the statute dealing with branches which are within the definition of trade unions. It is a known problem. It appears in 19th century legislation. It is not a problem of very small minorities. The extent of the problem I know not—though the likelihood is that it is large, I suggest—but that it is material and substantial not merely to the trade union movement but to the operation of industrial relations in this country, I am confident about.
The Government have put their reputation on the line with a statement that it does not matter that any branch that happens to be called a trade union in the court comes within Part I, because it is a small problem. As a matter of fact that would not cure the problem anyway, because it is unjust. Where is the justice? I thought the Government cared about individuals. I see the noble Earl wishes to intervene, but I shall finish the point as the noble Earl has done on previous occasions. Even if there is only one branch in this land which is obliged to hold a postal ballot without a branch register and without a legal obligation to have a branch register—it is obligations that we are talking about—then I say that that is not wholly fair and it is not just. The noble Earl says that there are very few, and I say that that is wrong. I want to know how many; and no doubt by the time the Bill gets to another place we shall be given a better estimate than "a very small minority".
I hope that my right honourable and honourable friends will press the point on the Government, because it is a fact that, as Part I is drawn, there is likely to be a large number of branches which, at the very least, are uncertain about their status in which the member who wishes to harass the branch, if he is on bad terms with it, can with some justification mount at least a very arguable case in the court. What sort of basis is that upon which to put a Bill like this into operation? However, we have no alternative in this House but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Local Authority Capital Expenditure: England
4.48 p.m.
The Minister of State, Department of the Environment (Lord Bellwin): My Lords, with the leave of the House, I should like to repeat a Statement made in another place by my right honourable friend the Secretary of State for the Environment. The Statement reads as follows:
"With permission, Mr. Speaker, I should like to make a Statement on local authority capital expenditure in England. My honourable friend the

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Parliamentary Under-Secretary of State for Wales will make a separate statement afterwards.
"Local authority capital expenditure, like capital spending by central Government departments, is subject to a national cash limit. For last year, 1983–84, local authority returns suggest that the cash limit was overspent by around 13 per cent.; that is, about £368 million.
"Normally, an excess over the cash limit would be deducted from the resources available in the following year. Rather than do that, in this case the 1983–84 overspend will be taken into account when setting the limit for 1985–86. Although we are only three and a half months into this financial year, returns from local authorities suggest that the overspend will be at least as high as last year's, and it could well be higher.
"The anticipated overspending arises because each local authority is free to spend for capital purposes in any year the sum of its allocations plus the prescribed proportion of the capital receipts arising in the current year or in previous years. Many authorities have substantial unspent capital receipts from previous years. The House will remember that in 1981–82 and in 1982–83 local authorities underspent the resources available to them. The ability to spend receipts accumulated from previous years, and other elements of flexibility in the capital control system, mean that the aggregate of all authorities' capital expenditure can exceed the national cash limit allowed for in the Public Expenditure White Paper without any individual authority exceeding its own capital provision.
"Local authority capital spending makes a valuable contribution to the development of the country's infrastructure. It is an important part of the workload of the construction industry.
"Nevertheless the Government must take steps to deal with the prospective overspend. On the basis of present information I believe that it would be wrong to ask for a complete halt to all new capital spending commitments this year. Instead, after discussions with the local authority associations yesterday I am asking authorities to co-operate by restraining their capital spending this year to the level of the capital allocations made to them for this year plus the prescribed proportion of new capital receipts arising this year. If they are already committed by contract to expenditure higher than that, they ought to enter into no further commitments at this stage.
"This arrangement leaves every authority with the incentive to continue to make sales and so to add to the prescribed proportion of receipts which they will be free to spend. In this way they can spend without adding to net public expenditure. Provided we have the co-operation of local authorities, this will be an effective means of restraining expenditure with the minimum of disruption. Capital spending will be monitored in the coming months; I shall be keeping the position under close review.
"The arrangements which I have announced rest on the voluntary co-operation of local authorities. However, for 1985/86, I shall have regard to the extent to which authorities have responded to my
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request. If necessary I shall use my statutory powers to reduce the total expenditure which local authorities collectively or individually may incur in that year. I hope that this will not be necessary.
"Mr. Speaker, the Government is committed to firm control of public expenditure, lower public sector borrowing and a proper monetary discipline. Cash limits are part of that discipline. My proposals are intended to hold expenditure in line with the cash limit, while allowing authorities, particularly if they can increase their sales of assets, a measure of flexibility this year".
My Lords, that concludes the Statement.
Lord Graham of Edmonton: My Lords, I thank the noble Lord the Minister for repeating the Statement made in another place. Does the Minister recall that it is less than two years since the then Secretary of State was criticising councils for not planning ahead and spending on capital projects and was urging capital commitments which must be serviced and provided for? Will the Minister acknowledge that, overwhelmingly, local government has conformed with government control of capital expenditure? Will the Minister comment on and contrast the record of local government in keeping to its budget and targets and confirm that it has a far better record than central government—especially this one?
Is the Minister aware that this action is a further body blow to the construction industry, and that these measures will increase urban decay and will arrest vitally needed road, sewerage and transport arrangements? I remind the Minister that the Prime Minister wrote to the AMA in November 1982 as follows:
"I feel sure you will agree that much investment is needed to plan for future economic recovery, and that the present time, when the construction industry has spare capacity, is the moment to be making provision for those future needs".
Has the Minister not understood that taking such panic short-term measures is no way to solve long term problems? I remind the Minister also that the Prime Minister concluded that letter by stating:
"I would ask you, therefore, to urge your members to do all they can to respond to the Government's offer and increase worthwhile investment in the present financial year".
Does the Minister not understand that his determination to rigidly control every aspect of local government is storing up a harvest of bitterness and resentment among councils of all political persuasion? Is he not aware that it is souring and poisoning the atmosphere and is damaging the morale of councillors, employees, and constituents throughout the land?
In paragraph 8 of the Statement the Minister alluded to consultations and discussions. He then produced a savage blow at hardworking councillors. Does he not realise that by so doing he brings the whole of the consultative process with local government into contempt and ridicule? How does the Minister justify the stop-go policy which punishes councils, which are the victims of an unpredictable system of capital control dependent upon variable assumptions which have proved to be impossible to forecast accurately?
I remind your Lordships also that the most devastating damage will be done in the area of

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housing, where there is the most appalling crisis. There are 70,000 homeless families, 1½ million families on waiting lists, and 4 million homes needing major attention. The Government are responsible for this dreadful mess, which has been brought about primarily by the Government's own boost to improvement grants under wildly inaccurate assumptions concerning capital receipts. In paragraph 7 of the Statement the Minister said:
"Local authority capital spending makes a valuable contribution to the development of the country's infrastructure. It is an important part of the workload of the construction industry."
In the light of the actions now proposed, does the Minister appreciate that those words will be deeply offensive to more than 400,000 construction workers who are now on the dole and whose chances of getting a job are receding?
I ask the Minister the following questions. First, as the overspend on the 1983–84 housing element of the cash limit will be related to the level of renovation grants, why cannot this overspend be met by the provision of additional resources, rather than by a clawback from 1984–85 allocations? And as more than £1,000 million has been saved by the Treasury from earlier years' underspend, why cannot a proportion of that be ploughed back to finance overspending in 1983–84 and 1984–85?
When the Government arbitrarily change the rules one-third of the way through the year and arrogantly break promises they made concerning the use of capital receipts, is it any wonder that there is contempt for those who treat local government so shabbily? This Statement continues the vendetta by this Government against local government and councils in England and Wales. It is an appalling situation when those in need, those who are sick, those who are old, those who are young and those who are disadvantaged are all made to pay for the mismanagement of the economy by this Government.
Finally, when will Government Ministers learn the lessons from their own mistakes of the past five years, which have led to the worst relationships between central and local government in living memory?
Lord Diamond: My Lords, I, too, want to assure the noble Lord the Minister of our appreciation of his repeating the Statement, and of the sympathy we have for him in being required to carry out yet again a most unpleasant task. The Statement, however it has been worded, and however complex it is intended to he, simply means that the Government, and particularly the noble Lord's department and his right honourable friend, totally failed last year to carry out their responsibilities for maintaining, monitoring, supervising and controlling capital expenditure by local authorities.
There is no evidence whatever in the Statement of any individual local authority having exceeded its proper expenditure on capital payments during the course of last year. All that has gone wrong is that the Government did not do their sums and were not aware of the effect that situation would have. What has further gone wrong, as we see from today's issue of The Times and other newspapers, is that the national borrowing requirement is well above target and so the
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Treasury has been compelled to tell all departments that they must cut down on capital expenditure and every other kind of expenditure for the rest of this year. If one cannot control revenue expenditure then naturally the axe falls on capital expenditure. The rules are being changed in mid-stream.
It is correct, as the Statement says, that capital expenditure is of vital importance to the building industry—that is in addition to all the other points that have been made. In that respect I will ask for two clear assurances from the Minister, because the Statement does not make the matters concerned absolutely clear. The first assurance we are entitled to ask for is that in no case will a single worker be withdrawn from a building site or other job who has started the job in a local authority.
Secondly, may I have the Minister's assurance that where a contract has been entered into within the local authority's proper expenditure commitment and permission, then that contract will be completed in the normal way and in the normal time, without withdrawing men and so on at a later stage, and as was contemplated when the contract was entered into? There is nothing more wasteful than attempting to cut capital expenditure once it has been committed and once the men are engaged. I want to give the noble Lord the Minister an opportunity to provide us with assurances on those two important points.
Lord Bellwin: My Lords, perhaps I may first answer the noble Lord. Lord Diamond, because I appreciated the constructive way in which he made his observations, which I must contrast with the intemperate way in which the noble Lord, Lord Graham, felt it necessary to make his observations while asking his questions.
I am able to confirm that where contracts have been entered into there is no suggestion that they will be in any way affected adversely by the Statement. That applies also to the point about withdrawing labour. What we have said is that where authorities have entered into commitments then, if those commitments are up to their level of allocation plus their current receipts, we ask them not to go further with more. They can only go further with more if they then accumulate more receipts within the current year. But, as I say, there is no problem with contracts that have been committed, let alone started. If they are committed, the same applies; they have no adverse effect.
The noble Lord referred to evidence of any authority actually exceeding its expenditure. With his great knowledge and experience he knows full well how the system works. We are only three and a half months into the year. The concern is that there are already indications that on top of the £368 million last year there will be at least the same this year, if not more overall. So while it is quite right that it is not referring to individual authorities at all, we are asking local government as a whole to show some restraint in the light of the position.
So in that respect I would not say at all that the rules are being changed in midstream—and here I come also to the point raised by the noble Lord, Lord Graham. What we are asking here is not for local government to cut back in any way at all. What we are asking is for

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local government to stay within the limits already set and known by them. That is why so many of the observations made by the noble Lord, Lord Graham, were extremely unfair and were simply to make political points. He talked about body blows and panic short-term measures. I do not see how it can be a short-term measure if you seek to ensure that the limits set and known are adhered to. It is nothing of the kind.
Here we have an attempt to work together with local government to try to have them ensure at this stage that they conform to the limits which they already know. I do not see that that is in any way worthy, I say again, of the type of intemperate language that the noble Lord, Lord Graham, felt it necessary to use. Certainly there are no arbitrary changes to rules at all; it is merely a request for there to be adherence to them. I am quite sure that local government, following the discussions which took place yesterday, will try their very best to show some restraint. If we can see later that the figures are getting into line, then hopefully there need be nothing further than that. That is my very great hope.
The noble Lord, Lord Graham, referred to what the Prime Minister had said. May I say this about it. Our aim throughout has been to optimise the use of available resources, with the emphasis on the word "available". It is vital to public expenditure planning that resources are fully used, but not over-used. Underspending, below planned levels, means that the necessary investment in the future is not taking place and that there will be greater pressure in the future. It is arguable that some of the present problems would not have arisen if authorities had made full use of resources when the capital control system started. But the economy cannot take massive overspending, either. We are bound to adapt to circumstances. The basic strategy is unchanged.
5.3 p.m.
Lord McIntosh of Haringey: My Lords, the Government's statement is couched as if it represented concessions to local authorities, as if the fact that the requirement for the overspend to be put right for next year were actually a concession. Will the Minister not agree that what we are now seeing is the inevitable result of the uncertainty which has been placed on local authorities by the combination of short-term capital objectives and the requirement that capital disposals be part of the allocation, even though a substantial part of the receipts from capital disposals goes to central Government rather than to local authorities? Will the Minister cast his mind back to his own period in local government and the problems that I am sure he must have faced in Leeds in forecasting capital expenditure? Will he not recognise that local authority treasurers, finance committees and chairmen have been put under an intolerable burden of uncertainty, which not only makes it difficult for them to forecast, but causes them to make bad capital expenditure decisions? Will the Minister acknowledge that the changes which are annnounced today do nothing to make any better that uncertainty and that bad management?
Lord Bellwin: No, my Lords. I well remember how we used to try to manage our capital affairs. When I was doing that in Leeds we were one of the few authorities which had capital receipts, because we were pursuing policies which involved taking derelict land and so on and selling it, and we were selling council houses, too. So we had very substantial capital receipts. We had learned how to forecast and anticipate and how to plan ahead.
What I will readily concede is that the system which involves having to work within a year is extremely difficult. I have always said that this is a problem. That is why I welcome the chance to say that I believe that the whole degree of control over capital spending has always been a problem. Unlike the noble Lord, Lord Graham, I am not going to make political points here, though I could very easily do so by referring to the moratorium that took place under circular 45/76. I am not going into that. I think it is more important to acknowledge that there is room for something better than the general control system which we have at the moment. That is why we have said to the local authority associations, which want to make certain suggestions for change, that we welcome that, and we will gladly sit down and talk to them about it to see whether we can get a better system that works.
Lord Diamond: My Lords, may I ask the Minister whether he will be good enough to reconsider the answer he gave me and the noble Lord, Lord Graham, with regard to there being no change in the rules? Perhaps I may say to him again that there is clear change in the rules in midstream. May I ask him to look at the statement which he has just made? From that he will see that until now, prior to making the statement, the position was that local authorities were allowed to spend money on capital expenditure derived from three sources; I emphasise, three sources. The first one was the allocation, the second was the proportion of the sales in that year, and the third one was the amount accumulated from savings through sales in previous years. There were three sources. It is really very elementary.
Now the statement makes it clear that the expenditure is going to be allowed out of two sources: the allocation, plus a proportion of the money coming in from sales in the current year. But there is no—I repeat no—allowance in respect of previous accumulated savings, which only a short time ago every local authority not only thought it was free to spend, but was being urged to spend. There is therefore clearly a change in the rules in midstream, and every local authority is entitled to complain when this kind of thing happens to it.
Lord Bellwin: My Lords, the noble Lord is quite right in his analysis. Those are exactly the rules. However, when one talks about the changing of them, what I was really saying when I said that they were not being changed is this. We have a situation which the noble Lord, with his experience and background, will appreciate probably more than most people in the House. In this situation the totality of the overspending is such that what we are saying to local authorities as a whole—and not to individual ones at all—is, "We want you to look at the totality of

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spending". There are many authorities who have not overspent at all, who have not even committed themselves up to the levels which they are permitted to do, even under what we are now proposing. We are asking them to show some restraint, at least until such time as we can see precisely what the figures are going to show; and it has to be said that that is something we do not know.
What I think I am also intitled to mention is this. There is flexibility in this system, and that will remain. There is flexibility by way of the use at the end of the year of a percentage of overspend of the original allocation, and so on. What we are asking for, no more and no less, is that, given the size of the overspend, there should be a pause at the moment within this year, so that we can get the total level back on course. That is all that we are asking. We are asking that it should be done voluntarily in this way now. We can argue as to the extent to which this is a change in the rules, but I think that a request made this way is not unreasonable. There could have been much worse things upon our heads, as there have been in the past. We are hoping that this will, if you like, do the trick. I have confidence that, given this challenge, local authorities will measure up to it.
Lord McIntosh of Haringey: My Lords, may I seek the leave of the House to ask a single question that I neglected to put when I rose previously? May I ask the Minister how he reconciles the continuing pressure for disposal of capital assets with Amendment No. 38 carried to the Local Government (Interim Provisions) Bill on Monday which makes it necessary to have the Secretary of State's approval for even very small disposals of land? It seems that the two types of pressure are totally in conflict one with another.
Lord Bellwin: My Lords, I see no conflict whatever. In the first place, the amendment, as the noble Lord knows, refers only to seven authorities. Here we are dealing with the totality of local government. I have been at some pains to stress that we are not singling out any individual authorities. In any case, the circumstances surrounding the requirements under Amendment No. 38 are quite different to what we are talking about now.
Lord Underhill: My Lords, can I ask the Minister one simple question? There is reference in paragraph 8 to discussions yesterday with the local authority associations. The noble Lord the Minister has referred to them in replying to other questions. Can he say what was the reaction yesterday of the local authority associations?
Lord Bellwin: My Lords, I was not actually present but the report to me was that the ADC and the ACC welcomed the fact that there was not a moratorium. Nevertheless, to say that they were happy about it would be quite wrong. The noble Lord knows that I would not say that because it was not so. But at least they welcomed the chance to go away and look at the situation. The AMA were not happy. They would much prefer that the levels be raised. They wanted validation of any increased spending.
Lord Graham of Edmonton: My Lords, the Minister has, very properly, been reminded that the language that he used in respect of no change was certainly sufficent to be effectively challenged by the noble Lord, Lord Diamond. I should like to remind the noble Lord of what the Prime Minister wrote in a letter to the AMA less than two years ago. She wrote:
"That is why local authorities have been enabled, and indeed encouraged, to increase their capital expenditure by using capital receipts to supplement their capital allocations".
The letter could have stated in brackets,
"subject only, from time to time, to that right or encouragement being withdrawn".
The AMA talk about a promise. They were enabled to do it. They consider that that promise has been broken. The Minister quite fairly rationalises the periodic review in anticipation of what is likely to happen at the year end and taking action now. However, the Minister should take fully on board the disappointment—I use a mild word—of authorities which, having been encouraged to expand, particularly, as other parts of the Prime Minister's letter state, in support of the construction industry, now feel that they have been let down.
I can tell the Minister that the AMA yesterday wrote immediately after the meeting to the Secretary of State and spoke in very bleak terms about the consequences for their various projects. It would not be appropriate or timely for me to read the entire letter. The final paragraph sums it up. It states:
"I must stress, therefore, that local authorities have simply complied with Government policies and increased capital expenditure by use of capital receipts; responded to the Government's initiative on improvement grants; and, in so doing, have kept within our permitted expenditure levels. In conclusion I can only say that the only corrective action which is acceptable to us, is for you to adjust cash limits if, indeed, this proves to be necessary".
In other words, they are saying that it may be necessary at the end of the period. This is far too soon to take what I repeat is a panic measure. Capital expenditure is about long-term planning. What the Minister has announced is contrary to that.
Lord Bellwin: My Lords, I am sure that the noble Lord does not expect me to accept what he says. The noble Lord mentions the construction industry. I repeat and emphasise two things. The industry will be able to rely on just as much work as was implied in this year's public expenditure White Paper—no more but, we are hoping, certainly no less. The other point which should perhaps be brought out rather more is that any work on urban programme projects and derelict land reclamation can continue unabated. That is outside anything that may have been stated now.

Trade Union Bill
Consideration of amendments on Third Reading resumed.
Clause 6 [Proceedings before Certification Officer: supplementary provisions]:
5.16 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 5:
Page 7, line 23, at end insert—
("() An appeal shall lie in accordance with section 136(2) of

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the Employment Protection (Consolidation) Act 1978, to the Employment Appeal Tribunal on any question of law arising in any proceedings before or arising from any declaration of the Certification Officer under section 5 of this Act.").
The noble Lord said: My Lords, this amendment aims to remedy what we see as a defect in the procedure before the certification officer where a member of a union complains to him, as he now can under the new clauses inserted so recently by the Government, in respect of a breach of Part I of the Bill. The member is the only party with locus standi to complain. As pointed out many times in the short time that we have had to debate these clauses, he can complain first to the certification officer but, without any obstacle, he can also, secondly, complain to the court. He has two possible cumulative procedures, and the trade union has no procedure under the Bill whereby it can take any step.
The certification officer, whom the noble Earl on Report, at column 1117, insisted was not a judge—and elsewhere he spoke of the suggestions of the certification officer—has the power to make a declaration, and that is a legal remedy. It is a legal remedy of great importance, as illustrated in the High Court only in these last few days. We say that the position is unfair. We have said it before. Here, however, we come to a much more limited way of trying to redress one aspect of the unfairness. It is, of course, true that both the member and the trade union, faced with a decision by the certification officer which they think is wrong in law, could go to the High Court or might go to the High Court, perhaps to put it more accurately, to ask for a judicial review of the certification officer's judgment and decision. The member can; the union can. But that is a quite different procedure, in many ways a difficult procedure. It is certainly not one that is within the compass of this Bill. Indeed, it is not one on which the noble Earl the Minister relied. That was not his suggestion for the answer to the problem. What does a union do if it is advised, on good advice, that a decision of the certification officer is wrong in law?
The scenario painted by the noble Earl, his solution to the problem, at column 1118 of 12th July, was that,
"the union therefore presumably would not give way to the suggestions of the certification officer. The applicant would remain aggrieved and would go to the High Court. The High Court could then find in favour of the union".
I cannot believe, on reflection, that the noble Earl would wish that to be the Government's final position. I have already made the point that the word "suggestion" was a slip because we are not talking about the certification officer's suggestion. We are talking about this declaration and his reasons for the judgment. He is allowed also to make written observations. We have dealt with that previously in debate. It is his declaration and his reasons that the union faces, and the union believes they are wrong. The noble Earl says that the trade union need not comply and can wait for the member to go to the High Court, which may set it right.
But if the union does not comply with the declaration and reasons of the judgment of the certification officer, what kind of reception will it be given? How the media and the drawing rooms of Surrey will resound to the condemnation of this law-breaking
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union! What can we expect to find in the press, in particular in the Daily Telegraph, that upper crust of the trivial press? What will it be saying? It will be saying, "This is a monstrous breach of the law by a union that will not abide by the decision of the certification officer." Of course it will, and in a sense it will be right. It is not the advice that I would give a union. I would say, "You have got a declaration; it looks as though you've got to abide by it, and if you say it's very unfair because you can't appeal, we'd better try judicial review because that is all the Government have left for you".
There is a better way; there is a more just way; there is an easier way; there is a cheaper way. On all those grounds, the proposal which my noble friends and I make is surely one that the Government must consider. It is the one which is adopted in all previous legislation of the last decade or so. Since we have had the employment appeal tribunal we have given rights of appeal on points of law from judicial decision of the certification officer to both parties in a dispute before him, to the employment appeal tribunal. Indeed, those rights of appeal were given with the support of the Conservative Party in the legislation of the Labour Government. They were inserted into the 1964 Act; they were inserted into the 1913 Act. Nobody seemed to think they were a bad idea.
The Government's own legislation had extended appeals to the EAT, as it is usually known. It is tripartite, with a High Court judge and employer and trade union representative. Compared with most legal procedures, it is reasonably cheap; it is informal; it is swift; it has a good reputation among lawyers for taking care, despite speed, with the difficult issues with which so often it is faced.
I say to my noble friends that this amendment is not an attempt to embroil trade unions with yet another court. At this stage of the Bill it is the only way which we can see—I put it to the Government that surely it is the right way—of redressing a situation which at the moment is unfair to a union faced with a mistaken decision by the certification officer. Any court can get a matter wrong in law, as I am sure the Government are hoping at the moment, and these matters have to be set right by appeal. Surely the right appeal to have is to a cheap tribunal, to a good tribunal, to the tribunal to which, in every other Act, the certification officer's judgment can be appealed by both parties. I beg the Government to consider this matter most carefully. I beg to move.
Lord Denning: My Lords, I would ask the Government to view with sympathy this proposed amendment. To recapitulate a little, this Bill, as it now is, and the Act that it will become, will put upon the union very stringent measures and safeguards it is to take if it is to hold a workplace ballot or if it is to have a postal ballot. The safeguards put into the Bill are very stringent.
Let us assume that a person, a member, complains that the union has not fulfilled its duty; it has not conducted the workplace ballot properly; it may not have sent things by post, and so forth. At all events, we have a position where a member complains against the union that it has not fulfilled its duty. What is the remedy? Under the Bill he can complain to the court

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or the certification officer. One does not complain if it is a case of being able to complain to the certification officer. It will be a much more informal procedure, and much less costly. He can simply send a letter to the certification officer asking him to look into the matter.
The certification officer can make his own private inquiries. He need not hear either side. He can come to a decision, and—this is the important thing—he can make a declaration that the trade union has failed to perform its duties. That is a judicial declaration. If the man is disappointed with that, or if the certification officer refuses to make a declaration, the man can go to the court. He can go to the High Court to have the whole thing gone into again, virtually on an appeal from the certification officer. That is what the man who is aggrieved can do.
Consider the position of the union, on the other side. Suppose the declaration is made against the union, saying that it has not fulfilled its duty, and the trade union wants to complain against that. There is no appeal given to the union against that certification officer's decision. My noble friend Lord Wedderburn suggested that there might be a judicial review. I do not think so. The remedy of judicial review would be very difficult to maintain against a certification officer, because he is given the power to act unjudicially. He can make such inquiries as he thinks fit; so he can hear evidence behind the other person's back, or the union's back. He need not consider both sides. He can give an applicant or a trade union an opportunity to be heard, if he considers fit. He can conduct a most unjudicial inquiry. It seems to me that those powers, given in a statute, do a great deal to remove any possibility of judicial review.
So we have this position. The certification officer, after looking into the facts, has found that the trade union has broken the rules, has failed to do its duty in holding these ballots. Has the union no appeal? The man has, or the member who complains has; he can go to the court. But under these provisions, as they stand at the moment, the trade union has no appeal. That is why I welcome the suggestion that is made. It should be given an appeal. As my noble friend Lord Wedderburn says, for many other decisions of a certification officer the statutes have provided for an appeal to a permanent appeal tribunal, which is a High Court judge with two assessors beside him.
It seems to me that this is a remedy that the trade union ought to have. If a certification officer makes a declaration against it, it ought to be able to appeal against it; and a very appropriate appeal tribunal is the employment appeal tribunal, as suggested by this amendment. I should like to point out that this is brought in only on Report, and the whole thing has got to be considered. I hope that the Government will think again and give an appeal on the lines suggested in the amendment.
Baroness Seear: My Lords, for the reasons put so impressively by the noble and learned Lord, Lord Denning, we on these Benches also hope that the Government will accept this amendment.
5.29 p.m.
The Earl of Gowrie: My Lords, I have listened most carefully to what the noble Lord, Lord Wedderburn, said in moving the amendment and the support which he received from the noble and learned Lord, Lord Denning, as well as the noble Baroness. But I must say that I am still a little bit puzzled as to why we should be seeking, as the amendment does, to provide a specific right of appeal against what is a non-enforceable declaration.
It may be helpful to consider the two situations which might result from an application to the certification officer under what is now Clause 5 of the Bill. The first situation is where the certification officer makes no declaration, either because he finds against the applicant or because he simply has insufficient evidence to reach a decision. If we assume a case where the union has co-operated with the certification officer and answered all his inquiries to the best of its ability, then the reason for the certification officer refusing to make a declaration would almost certainly be that in his view the complaint was unfounded. He would then be obliged under Clause 6(2) to express his reasons in writing. So clearly in these circumstances the union would have neither wish nor need to appeal.
The second situation is where the certification officer finds in favour of the applicant; that is, he makes a declaration specifying one or more requirement of Part I of the Bill with which the union has failed to comply in relation to an election. Even in this situation the question of an appeal would only arise if the union disagreed with the certification officer's declaration. I think that that would be common ground. If the union accepted that it had infringed the legislation it would presumably agree to put that infringement right. The noble Lord, Lord Wedderburn, was quite right when he said at Report stage that there would be a strong moral obligation on the union to respond to a declaration by the certification officer and, of course, that is precisely the purpose of the provision.
But let us take the case where a union genuinely believes—in a case where the certification officer has found against it—that it (the union) has not breached the requirements of the Bill and the union genuinely believes that the certification officer has reached a wrong conclusion. In those circumstances the union clearly has the option of standing its ground. The certification officer is not empowered to order the union to re-run the election or, indeed, empowered to do anything else whatever—that is the prerogative of the courts. The certification officer has no power to order any change in the status quo.
In such a situation it may well be that the union member would proceed with his declaration to the courts. But where this happened the union will, of course, be given a full opportunity to defend itself and the court could well find in its favour. I would say to the noble and learned Lord in particular that therefore there is no question, in our view, of the trade union being unfairly treated vis-à-vis the applicant.
Lord Wedderburn's amendment seeks to draw a parallel between the new functions which have been given to the certification officer in respect of union elections and his existing functions in respect of

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amalgamations and political funds—and he made much of that in his speech. But in our judgment the parallel is simply not a valid one, because under the earlier Acts the certification officer does have the power to make enforceable orders remedying breaches of the statutory requirements, and it is therefore wholly right—as the noble and learned Lord implied—indeed, it is essential, to provide a right of appeal to the employment appeal tribunal. By contrast the role of the certification officer under this Bill is, if I may so put it, simply to try to secure an out-of-court settlement which will be quick, informal and, above all, inexpensive to the applicant and the union. It is for precisely this reason that the certification officer has not been given order-making powers, and consequently the union cannot be ordered to take action against which it might wish to appeal.
I hope, therefore, that, on the basis of that explanation and of the fact that the certification officer does not have powers in this case, the noble Lord will see that his amendment is not really necessary.
Lord Wedderburn of Charlton: My Lords, it really is a little difficult to know how to deal with the Government's attitude to these matters. I am very grateful for the support which has been given to this amendment by the noble Baroness, Lady Seear, and the noble and learned Lord, Lord Denning. Perhaps the noble and learned Lord put the case higher than I put it. I listened very carefully to him and I am rather distressed to consider his view, which he expressed strongly, that judicial review would not be open. I can see the argument. If judicial review is not open, then the union is left totally without any right of appeal against a decision which ex hypothesi—and that is what we are discussing—is wrong in law.
The noble Earl spent some time with the case where the certification officer makes no declaration or where the trade union complied and did not disagree. Of course, that is all right, but that is not this case. We are dealing with the case where the certification officer makes a declaration and the trade union does not just take the view that it is wrong, but is advised on good grounds by competent advisers that it is wrong, and it wants the chance to challenge it.
The Government have recently made great play of the right of appeal. The Prime Minister says that the right of appeal is the right of anyone faced with a decision which may be wrong in law—but not the trade unions, they are different. With great respect, the noble Earl is ill-served because his description of a declaration was not that which I made on Report although I do not have the words with me, but if I did so describe it then I shall now revise it. I thought that I had said that the jurisprudence experts debated whether or not a declaration rested ultimately in a moral or legal base. But of course as a practical matter people are expected to act in accordance with the declarations of the courts or any other body which has the power to make—as the noble and learned Lord pointed out—a declaration as a judicial remedy.
This declaration is on the same footing as any other declaration. I wonder whether the noble Earl would advise anybody who came to him for advice and against whom the noble and learned Lord, Lord Denning, when he was a High Court Judge, had made
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a declaration, saying; "Well, you need not bother about that; that is just based on morality. Do not bother with that. If somebody attacks you say, 'I will challenge that when I can"'. Of course, he would criticise somebody who acted in that way. He and the Government and their advisers are deliberately putting the trade union in the position where—given advice that the decision, declaration and reasons by the certification officer are wrong and, given that the noble and learned Lord may well be right and that there is no judicial review open to it—the trade union can be none other than a law-breaker in the eyes of the country, because the declaration, albeit that it cannot be followed by enforcement measures as such—
The Earl of Gowrie: My Lords—
Lord Wedderburn of Charlton: I shall finish the sentence. It is a declaration which has legal effect. The idea that declarations have no legal effect in the broad sense went out with Professor Zamir's book on declarations. Unhappily I do not have that book with me to cite the date but I believe that it came out in 1962. The idea that declarations are some vapid froth on the procedures of courts and tribunals went out a long time ago.
I point out to the noble Earl that it is not right to say that there were special reasons in the 1913 and 1964 Acts for giving an appeal on points of law to the EAT from the certification officer. There are appeals in every case where he makes a decision. Let the noble Earl cite to me a judicial role or a mixed role, because, as the noble and learned Lord says, this is a very mixed role. But where he occupies the place of making a legal sanction or of giving a legal remedy then there is an appeal on a point of law to the employment appeal tribunal. We were very careful about that.
Why cannot the Government show the elementary fairness that they expect from other people but which, unhappily, they do not always show to trade unions? Does the noble Earl wish to ask a question?
The Earl of Gowrie: My Lords, I am most grateful to the noble Lord, Lord Wedderburn. I simply feel that he has not dealt with the central point of my argument; namely, that we are not dealing with the certification officer in a judicial position here; he has no enforcing powers. We are dealing with him, if you like, as an honest broker. If he cannot perform his job of providing a quick and cheap out-of-court settlement by getting the parties together, there is no need to have this mechanism of appeal. The noble Lord is confusing the role of the certification officer in the Acts with which he was concerned and which remain on the statute book, with the role being suggested for him—I should have thought rather practically and sensibly—in the case of elections.
Lord Wedderburn of Charlton: My Lords, I think I have to put the matter to the noble Earl in this way. I respect his view but he is always saying to me that he is not a lawyer and, therefore, I must say to him that he must be badly advised. This is a legal point. He has said that the certification officer is not in a judicial position because he has no powers of enforcement. Being in a judicial position does not depend upon

1523
having ultimate powers of enforcement. It depends on having the power to declare the legal rights of the parties. After that, different forms of enforcement may follow.
Let me take the case of Mr. Justice Megarry—Sir Robert Megarry, the Vice-Chancellor, as he now is—who at the moment (and I shall not comment on the proceedings) is involved in proceedings where 17 working miners are, among other things, asking for declarations in this court. If he gives a declaration without any further enforcement, as is done in many trade union cases, will the noble Earl say that the Vice-Chancellor has ceased to be a judge and become an honest broker? Of course he will not, because the man is sitting there stating legal rights and legal duties.
The noble Earl has misunderstood the position of the certification officer, and the reason that he has misunderstood it is clear—because the Government have put the certification officer into such a variety of roles that it is very hard to know exactly when he is what. All I am clear about—and this is the legal point—is that whatever he is when he is investigating, and whatever he is when he is making his written observations, when he gives that declaration and states his reasons for it that is a declaration, stated to be a legal declaration by statute by this House, by this Parliament, and that is in the same nature as any other declaration which in all the books today is a legal remedy.
I say, surely the Government will give to trade unions what every other person in the land expects: the right, not to appeal on facts (I am not asking for a right of appeal on the facts) but the normal right to appeal on a point of law. This is the last chance in this House for the Government, faced with the arguments of the noble and learned Lord and the noble Baroness, to show whether they will be fair or unfair to trade unions.
Lord Houghton of Sowerby: My Lords, I should like to make a brief comment. We are all in the difficulty that the certification officer was brought into this role at a very late stage in the debates on this Bill. If we had had this important proposal before us at the Committee stage, we could have gone into it more freely than we were able to do on Report. But the certification officer has been dragged into this quite late in the day and it makes it very difficult to deal with all the implications of his new role.
I believe that I said earlier that the certification officer was not appointed for this role and did not have this role in connection with his other function. He was a handy tool to be used for the purpose prescribed for him in the Bill; he was just on hand. He dealt with trade unions for other purposes, and so the Government decided to grab him to deal with another purpose.
The difficulty here is that the Government cannot expect to have it both ways. If there is not a right of appeal against a declaration by the certification officer, if his role is really advisory and possibly conciliatory, that means that it is a different status for him. But under Clause 5 it says:
"Any person who claims that a trade union has failed to comply … may apply to the Certification Officer or to the court for a declaration to that effect".
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It is the word "declaration" which puts the role of the certification officer on a judicial footing, because it says in that clause that a person can get a declaration from either a certification officer or a court.
I fully understand the arguments advanced by the noble Earl. The only point I want to make is that I believe the certification officer is in a false position here. Under the Bill he has a status in terms which he ought not to have. If he has such a status, there ought to be the right of appeal against the declaration, and if he does not, then the word "'declaration" in the context of the certification officer should be demoted to that of "advice" or "other functions", so as to overcome the need to go to a court to remedy a comparatively minor complaint. That is my point here and I believe that it is one of substance.
The Earl of Gowrie: My Lords, perhaps I may make a comment which might give the noble Lord, Lord Houghton, some comfort. It really is the case that if a union felt desperately aggrieved by a declaration by the certification officer—and, of course, the noble Lord, Lord Houghton, understands the position in which I was casting the certification officer: of trying to achieve a quick, speedy and inexpensive solution in the context of elections as against his other jobs—despite the fact that the certification officer had not ordered it to take any remedial action, because he is not so empowered to do, the union could of course apply to the courts for judicial review.
Therefore, it is not a question of judicial review being out of court, so to say, in this context. But if I were a trade union, I should prefer to avoid the expense of judicial review and leave defending myself until such time as the union member re-opened the matter in the courts. I am a little puzzled at the reception that this has had because I am constantly being urged by noble Lords on the other side of the House to try wherever possible to get sensible industrial relations arrangements without recourse to law.
In respect of what was said to me by the noble Lord, Lord Wedderburn—who cited Sir Robert Megarry—the difference surely is that Sir Robert can go on to enforce his declaration by making an order. It is common ground that in this case it is not possible for the certification officer to do that. If the noble Lord, Lord Houghton, and others will kindly read what I said in my opening remarks in response to this amendment, they will see that we are simply trying to achieve a sensible solution. Where the certification officer cannot get the parties to agree, then an ordinary legal process follows, and no one should object to that.
Lord Wedderburn of Charlton: My Lords, with leave, perhaps I may address the noble Earl's last remarks and say what we want to do with this amendment, because the Government have had their opportunity. My noble friend Lord Houghton surely put it to the Government straight: either put the certification officer back into the position of giving advice—no doubt strong advice—or, if he is to have this power of judgment (which is what a declaration is), let there be the normal appeal. It is as simple as that. The noble Earl, having heard the noble and learned Lord say that, in his judgment, there probably

1525
could not be an application for judicial review, came back and spoke about a trade union being desperately aggrieved by a certification officer's declaration, and, without citing authority, said confidently that there could be an application.
Where are we when the noble and learned Lord, Lord Denning, and the noble Earl, Lord Gowrie, disagree on the issue of whether there could be judicial review? Anyway, why should the Government leave it to judicial review? The noble Earl has not addressed the central point. It is unfair to ask a union which faces a certification officer's declaration, which is a legal remedy, on the hypothesis which may arise (and is certain to arise some time) that the certification officer is wrong in law, to wait until the member goes to the High Court for his second bite at the cherry and there raise the question of law when it suits him.
It is wrong for two reasons. It is wrong because in that intervening space the union has to decide what to do and has to face the criticism of not taking the steps which the certification officer says should be taken. If it takes those steps, then the point of an appeal is half lost. Secondly, it is wrong in principle that the union should have to wait to argue the point of law when it suits the member to take it to the High Court. What kind of justice is that?
We shall press this amendment only if the noble Earl cannot give us any kind of undertaking to consider this matter, because it is such an important practical issue, it is such an important issue of justice, and it is such an important issue for the Government's own face when noble Lords read Hansard. We should prefer, if possible, not to press the amendment, but we shall press it.
The Earl of Gowrie: My Lords, I was saying only that in my view the noble Lord, Lord Wedderburn, has blown this question out of all proportion. If the House considers the remarks that I made in my opening speech, it will come to that view.
5.49 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 82; Not-Contents, 137.

DIVISION NO. 2

CONTENTS

Airedale, L.

Diamond, L.

Ampthill, L.

Donaldson of Kingsbridge, L.

Ardwick, L.

Donnet of Balgay, L.

Attlee, E.

Elwyn-Jones, L.

Aylestone, L.

Ennals, L.

Beaumont of Whitley, L.

Ewart-Biggs, B.

Blease, L.

Foot, L.

Blyton, L.

Gaitskell, B.

Bottomley, L.

Galpern, L.

Briginshaw, L.

Graham of Edmonton, L. [Teller.]

Brooks of Tremorfa, L.

Burton of Coventry, B.

Grey, E.

Carmichael of Kelvingrove,

Grimond, L.

Cledwyn of Penrhos, L.

Hampton, L.

Collison, L.

Hatch of Lusby, L.

Craigavon, V.

Hayter, L.

Dean of Beswick, L.

Houghton of Sowerby, L.

Denning, L.

Hughes, L.

1526

Jeger, B.

Raglan, L.

Jenkins of Putney, L.

Rhodes, L.

John-Mackie, L.

Richardson, L.

Kirkhill, L.

Rochester, L.

Listowel, E.

Ross of Marnock, L.

Lloyd of Hampstead, L.

Seear, B.

Lloyd of Kilgerran, L.

Serota, B.

Longford, E.

Stallard, L.

Lovell-Davis, L.

Stamp, L.

McCarthy, L.

Stewart of Alvechurch, B.

McIntosh of Haringey, L.

Stewart of Fulham, L.

Mackie of Benshie, L.

Stoddart of Swindon, L. [Teller.]

McNair, L.

Melchett, L.

Stone, L.

Milford, L.

Strabolgi, L.

Mishcon, L.

Taylor of Mansfield, L.

Mulley, L.

Tordoff, L.

Nicol, B.

Underhill, L.

O'Brien of Lothbury, L.

Wallace of Coslany, L.

Ogmore, L.

Walston, L.

Oram, L.

Wedderburn of Charlton, L

Perry of Walton, L.

Wells-Pestell, L.

Phillips, B.

Winstanley, L.

Ponsonby of Shulbrede, L.

Winterbottom, L.

NOT-CONTENTS

Ailsa, M.

Halsbury, E.

Alexander of Tunis, E.

Harvington, L.

Allerton, L.

Henley, L.

Balfour of Inchrye, L.

Hives, L.

Bauer, L.

Home of the Hirsel, L.

Belhaven and Stenton, L.

Hood, V.

Bellwin, L.

Hornsby-Smith, B.

Belstead, L.

Hunter of Newington, L.

Bolton, L.

Hylton-Foster, B.

Boyd-Carpenter, L.

Inglewood, L.

Brabazon of Tara, L.

Ironside, L.

Brougham and Vaux, L.

Kaberry of Adel, L.

Buckinghamshire, E.

Killearn, L.

Caccia, L.

Kilmany, L.

Campbell of Croy, L.

Kinloss, Ly.

Carthcart, E.

Kinnaird, L.

Chelmer, L.

Kinnoull, E.

Chelwood, L.

Kitchener, E.

Chesham, L.

Lane-Fox, B.

Cockfield, L.

Lauderdale, E.

Coleraine, L.

Lawrence, L.

Colwyn, L.

Lindsey and Abingdon, E.

Cox, B.

Lloyd-George of Dwyfor, E.

Craigton, L.

Long, V.

Cranbrook, E.

Lucas of Chilworth, L.

Cross, V.

Lyell, L.

Daventry, V.

McAlpine of West Green, L.

De Freyne, L.

McFadzean, L.

De L'Isle, V.

Macleod of Borve, B.

Denham, L. [Teller.]

Mancroft, L.

Dilhorne, V.

Margadale, L.

Donegall, M.

Marley, L.

Dormer, L.

Marshall of Leeds, L.

Drumalbyn, L.

Massereene and Ferrard, V.

Eden of Winton, L.

Maude of Stratford-upon-Avon, L.

Ellenborough, L.

Elliot of Harwood, B.

Merrivale, L.

Elton, L.

Milverton, L.

Enniskillen, E.

Molson, L.

Fanshawe of Richmond, L.

Montague of Beaulieu, L.

Ferrier, L.

Mottistone, L.

Forester, L.

Murton of Lindisfarne, L.

Fortescue, E.

Newall, L.

Fraser of Kilmorack, L.

Northchurch, B.

Gainford, L.

Nugent of Guildford, L.

Gardner of Parkes, B.

Orkney, E.

Gisborough, L.

Orr-Ewing, L.

Glanusk, L.

Pender, L.

Glenarthur, L.

Penrhyn, L.

Gormanston, V.

Polwarth, L.

Gowrie, E.

Rankeillour, L.

Gridley, L.

Reay, L.

Grimston of Westbury, L.

Renton, L.

Hailsham of Saint Marylebone, L.

Renwick, L.

Rochdale, V.

1527

St. Aldwyn, E.

Swinfen, L.

St. Davids, V.

Swinton, E. [Teller.]

Saltoun, Ly.

Terrington, L.

Sandford, L.

Teynham, L.

Sandys, L.

Thomas of Swynnerton, L.

Savile, L.

Tranmire, L.

Sempill, Ly.

Trumpington, B.

Shannon, E.

Ullswater, V.

Sharples, B.

Vaux of Harrowden, L.

Skelmersdale, L.

Vickers, B.

Somers, L.

Vivian, L.

Southborough, L.

Whitelaw, V.

Stodart of Leaston, L.

Windlesham, L.

Strathspey, L.

Wynford, L.

Sudeley, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.57 p.m.
The Earl of Gowrie The Earl of Gowrie moved Amendment No. 6:
Page 7, line 38, at end insert—
("(7) In exercising his functions under this section the Certification Officer shall ensure, so far as is reasonably practicable, that every application made to him under section 5 is determined within six months.
(8) Where the Certification Officer requests any person to furnish information to him in connection with enquiries made by him under this section, he shall specify the date by which that information is to be furnished and shall, unless he considers that in all the circumstances of the case it would be inappropriate to do so, proceed with his determination of the application notwithstanding that the information has not been furnished to him by the specified date.")
The noble Earl said: My Lords, these are very straightforward amendments to the new Clause 6 which the House approved last week. As I said on that occasion, the purpose of the additional route of complaint to the certification officer is to provide a quick, informal and inexpensive remedy for the union member who believes that his union has infringed one or more of the Bill's requirements on union elections. The two new provisions introduced by this amendment reinforce that objective by requiring the certification officer, so far as is reasonably practicable, to determine every application made to him by a trade unionist within six months. It also requires the certification officer, when requesting information from a party in the course of his inquiries, to specify a time limit within which it must be supplied and, if the deadline is not met, to proceed with determining the application unless he considers it inappropriate to do so.
There is a particular reason why speed is of the essence in relation to complaints to the certification officer under Part I of the Bill. It lies in the fact that in many unions those elected to the principal executive committee hold office for a relatively short time; two years in many cases, one year in a considerable number of others. Quite clearly if a union member has a legitimate complaint about the election of an executive member it is important that that complaint should he resolved, wherever possible, before the complaint becomes academic as the electoral wheel moves round again. This is why these amendments provide clear pointers and powers to enable the certification officer to deal with the generality of complaints within six months of receiving them.
This is a small but important improvement to the principle of a speedy, informal remedy which your Lordships have already endorsed and which builds
1528
upon the power already given to the certification officer by Clause 6(6) to regulate his own procedure. I beg to move.
Lord McCarthy: My Lords, we do not wish to make a meal of this amendment, but it strikes us that it indicates further, as we have been arguing in previous amendments, the degree of complexity which the Government now expect from the certification officer. The noble Earl says—and I think I have it right—that the objective of the certification officer in this part of his functions is to provide a quick, reliable and inexpensive remedy. But, of course, the way that he proceeds to provide that remedy is by an inquisitorial and investigating function.
The certification officer in this case is to tell the unions that he wants the information by a given date, and that if in fact they do not give him the information by that date he will decide the matter anyway. The certification officer is to tell the unions that they are to provide this information, and, presumably, unless this information is provided in the way that satisfies the certification officer the unions will find that they have a declaration against them.
We contrast this, as we have contrasted it before, with the way that the certification officer now operates with respect to amalgamations, to the rules of political funds and even to the way in which the Government, as I understand it, envisage him operating under Section 1 of the Employment Act 1980. In all those areas it is the job of the certification officer not to stand by, as it were, to investigate unions when they fall away from the expectations or the legal injunctions placed upon them by legislation, but to help them to provide proper amalgamation instructions and proper political fund rules and ballots on which they can base political fund rules, and even to help them to get money out of the Government scheme under the Employment Act 1980. Because of that, the certification officer in each of these areas issues what are in effect model schemes. He issues model ways in which he believes that if unions put forward their amalgamation instruments, their political fund ballots or their schemes for getting money under Section 1 of the 1980 Act, they will be successful.
I take this amendment as an opportunity to put my question to the noble Earl at this late stage. My question is: is the certification officer, quite apart from acting in this quasi-judicial investigation capacity and in respect of the new powers which the Government give him under this part of the Bill, also to act in this area in the way that he used to act and still does act in his other functions? For example, will he be telling unions who wish to go for workshop-based ballots how to do it? Will he be issuing model rules where unions are reasonably likely to find themselves on the wrong side of the certification officer if individual members make complaints? Will he do that in the case of workshop-based ballots, registers and postal ballots? In other words, will he be helping unions to keep within the law as well as investigating them and passing declarations against them if they find themselves outside the law?
The Earl of Gowrie: My Lords, I am sure that the certification officer is available to give good counsel

1529
and advice. In effect, the law is so uncomplicated on this issue that it is extremely easy to keep to it.
On Question, amendment agreed to.
Clause 13 [Ballots: supplementary provisions]:
The Earl of Gowrie The Earl of Gowrie had given notice of his intention to move Amendment No. 7:
Page 18, line 29, leave out ("that") and insert ("the").
The noble Earl said: My Lords, I do not propose to move this amendment. It relates to what was thought to be a drafting error but is in fact an error by the printers, and will be corrected by them in the normal way.
[Amendment No. 7 not moved.]
Clause 20 [Amendment of ss.1 and 2 of Employment Act 1980]:
Lord McCarthy Lord McCarthy moved Amendment No. 8.
Page 25, line 30, at end insert—
("; and
(c) the ballot is not the first ballot held by the trade union after the commencement of this Part of this Act." ")
The noble Lord said: My Lords, this is our final appeal to the Government on the question of ballots in the issue of the political fund. The House will remember that at Report stage the Government introduced Clause 20 to allow the use of Section 1 of the 1980 Act to help finance political fund ballots. In the sense that the Government have now insisted that unions should hold ballots of this sort every ten years, we welcomed that amendment because we thought that in those circumstances those unions which wished to do so ought to be able to apply under Section 1 of the 1980 Act for funds to help them to run such political fund ballots.
However, on that occasion we pointed out by an amendment that we put down (the object of which was to remedy the situation) that the Government had left out unions in two sets of circumstances. First there were the unions that had no political fund at present, because the Government had said that unions had to have a political fund already and had to have won a ballot in the past before they could qualify for money. As we put it, this was the case of the NALGO example: NALGO, not yet having had a political fund, now finds that it cannot have money from the Government for the first ballot because the provisions of the amendment at that time ruled them out. Secondly, we pointed out the case of the union which might have a political fund at the moment because it had won a ballot in the past, as might the ASTMS. Some people have said that it might find it difficult now to have a successful ballot, and the Government had left them out, too.
We put forward an amendment the object of which was to try to see whether the Government would include both the NALGO case and the ASTMS case within the ambit of their own provisions. The noble Earl said, "No". He said that this would be an endless use of public funds. He said that he could not allow unions to have as many bites of the cherry as they wished, and therefore he felt that the provisions as put forward by the Government at the time were quite reasonable.
We are trying to do a modest thing here. It might be called a "first bite" amendment. It does not cover the ASTMS, but it does cover NALGO. We are saying that if the ballot is the first ballot that a union is holding as the result of the passage of this Bill, surely it should be covered by the provisions of Section 1 of the Employment Act 1980. I beg to move.
The Earl of Gowrie: My Lords, the proposition advanced by the noble Lord, Lord McCarthy, in this amendment is that each and every union which does not already have a political fund should be allowed one free go at establishing such a fund.
I might be more impressed by the pleas of the noble Lord, Lord McCarthy, were it not for the fact that every TUC-affiliated union has boycotted the ballot-funding scheme, which has been available to them since 1980. The problem up to now has not been one of Government meanness, to use the terminology which the noble Lord, Lord McCarthy, used during Report stage, but the problem of union intransigence and pigheadedness. It is because of that attitude and the failure to develop proper democratic systems by voluntary means that this Bill was needed. It should not have been needed at all.
Political fund review ballots are a new statutory requirement, and as such we decided that it was right that public funds should be made available to pay for them. I think that was rather nice of us, if I may put it that way. Ballots to establish political funds, on the other hand, are not a new statutory requirement and will be held only by unions which decide entirely of their own free will that they want to become involved in party political activity.
In this context, I remind the House of words spoken by the noble Lord, Lord Wedderburn, during the Committee stage on the Employment Act 1980, when he said:
"It is understandable that the 1913 Act is not in the list for public funds because the public funding of a union to ballot its members to spend its funds on political purposes for one party or another would perhaps be slightly strange".—[Official Report, 3/6/80; col. 1291.]
Although that is expressed with the noble Lord's characteristic modesty and understatement, in my view it sums up the issue very well. If noble Lords opposite had wanted to argue that funds should be available for ordinary political fund ballots, then surely they would have done so in the context of the 1980 Bill. I hope that on reflection therefore the noble Lord, Lord McCarthy, will not press the amendment.
On Question, amendment negatived.
Clause 22 [Short title, commencment and extent]:
Earl De La Warr Earl De La Warr moved Amendment No. 9:
[Printed earlier.]
The noble Earl said: My Lords, I have spoken to this on an earlier amendment. I beg to move.
On Question, amendment agreed to.
The Earl of Gowrie The Earl of Gowrie moved Amendment No. 10:
Page 26, line 7, leave out ("section 18") and insert ("sections 18 and 20").
The noble Earl said: My Lords, this is a minor amendment to disapply Clause 20, which relates to the

1531
funding of ballots scheme in the 1980 Act, from Northern Ireland. I beg to move.
On Question, amendment agreed to.
6.12 p.m.
The Earl of Gowrie: My Lords, I beg to move that this Bill do now pass. It is in the nature of our proceedings in Committee and on Report that most of the running is made, so to say, by noble Lords opposite. For the most part, it is their amendments we debate, and that means we are obliged—quite rightly—to dwell on technicalities and points of detail. The virtue of the debate on Third Reading is that it enables us to lift our gaze from the fine print of the Bill and remind ourselves of its underlying purpose and of the abuses it is designed to tackle.
At this point I confess to a genuine disappointment. When I moved the Second Reading of this Bill on 15th May, I posed a number of questions to noble Lords on the other side of the House who oppose this Bill. They were far from rhetorical questions. They were a genuine attempt to elicit information. I have to say that they have remained throughout all the stages of consideration of this Bill wholly unanswered. I hope that I shall be forgiven for repeating them now, not to embarrass noble Lords opposite, but because they illustrate very clearly the difference of approach between the supporters and the opponents of this legislation. I asked then and repeat now: do noble Lords opposite object to union members having the right to vote for their leaders in a secret ballot? Do they object to union members being asked whether they want to strike before being ordered to do so? That is a question, if I may say so, which is even more acutely relevant today than it was on 15th May. Do they object to union members being given the same opportunity which their grandfathers had to vote in a secret ballot on whether their union should engage in political activities? Most important of all, do they really support and defend a system of internal democracy in trade unions such as that in ASTMS in which less than 2 per cent. of a unions's members vote in elections for the governing body?
That takes us simply to the root of the matter. We believe that a trade union executive which is elected by the votes of less than two per cent. cannot be truly representative and that the electoral system which produces that result cannot be truly democratic. We also believe that a strike vote taken by show of hands at rowdy meetings in a football field or at a factory gate—as happened in Dover only this week—is a travesty of democracy. And for a union to instruct its members to strike without any attempt to consult their views—as happened only last week to the dockers at Felixstowe—is we believe a betrayal of the very principles of democratic trade unionism. It is a betrayal that is putting not only economic recovery but also the livelihoods of millions of ordinary trade unionists at risk.
The noble Lords, Lord McCarthy and Lord Wedderburn, are deeply learned—and I say this with real respect and admiration—in the law and practice of industrial relations. No one in this House doubts that. But in opposing this Bill they have been
1532
handicapped, surely, by the knowledge that they are at odds with the views of a great majority of trade union members. I make no apology for once more reminding the House that a Gallup survey which was published in the Guardian on 13th June last year of how people voted at the general election last year showed that only some 39 per cent. of trade unionist voters had voted for the Labour Party. By far the majority of trade unionists voted either for the Conservative Party or for the Alliance parties, all of whom were committed to the democratic reform of trade unions, and committed very much in terms of this legislation.
Although I was challenged on the point by the noble Lord, Lord Molloy, last week, no one—least of all the Labour Party itself—has questioned that finding. The finding has been the subject of considerable internal deliberation within the Labour Party itself. Since then, other polls have demonstrated that this Bill has the support of a majority of trade union members.
We know that the noble Lord, Lord McCarthy, prefers the findings of academic research to the evidence of opinion polls. Your Lordships may recall that in my speech at Second Reading, I quoted the published research of Mr. Joseph Goldstein on the problem of poor attendance at union branch meetings. The noble Lord, Lord McCarthy, was good enough to tell me that Mr. Goldstein has since been discredited and he suggested an alternative reading list. Well, I have looked at some of the authors he recommended. At the top of the noble Lord's reading list was Professor Ben Roberts. On page 95 of his book—
Lord McCarthy: Oh!
The Earl of Gowrie: Well, my Lords, I understood that Professor Ben Roberts was recommended to him. Be that as it may, he is an admirable read. On page 95 of his book, Trade Union Government and Administration in Great Britain, which was published in 1956, he said that the average attendance at branch meetings for all the unions in this country:
"appears to fall within a range of 3 to 15% with a concentration between 4 and 7% in the majority of cases".
Another author on the noble Lord's list—and surely he will not contest this—was the "immortal" Professor Hugh Clegg. In his book entitled, General Union—a study of the National Union of General and Municipal Workers, (1954) he commented that
"low attendance at branch meetings is a problem which faces all unions".
Next on the noble Lord's list were Messrs. Undy and Martin. In their book, Ballots and Trade Union Democracy, which was published earlier this year and which has been much quoted by the noble Lord in our debates, they say:
"The lowest level of turnout is encountered in unions with geographically dispersed branches electing representatives by individual or block branch ballots. If these unions also collect subscriptions by check-off and have membership allocated to branches some distance from both workplace and home, branch attendance is likely to be below 10%".
That is a book published earlier this year. I do not know precisely what poor Mr. Goldstein did to blot his copybook but it certainly was not to make a false assessment of attendance at union branch meetings. There seems no doubt in the academic community that branch meetings attract only a tiny minority of

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members. That must surely make them an unsuitable vehicle for electing the principal executive committee of a trade union. So the real opponents of this legislation are not to be found in Parliament or among ordinary union members but among the entrenched, and in some cases embattled, union leaders who are the beneficiaries of such outdated electoral systems. It is they who have a vested interest in the politics of the block vote and the smoke-filled room. It is they who fear the democratic rights which Parts I and II of this Bill will give to their own members.
When it comes to the third Part of the Bill, the ballots on political funds, the issue is surely no different. It is simply no longer good enough to assume that trade union members automatically and inevitably wish their unions to engage directly in party politics. Quite apart from the evidence of the last election, a Marplan poll earlier this year showed that 48 per cent. of all trade unionists would vote against a political fund if they were given the chance, and only 40 per cent. in favour.
Noble Lords opposite argue that it is enough for the trade unionist who does not support the Labour Party to be able to contract out of the political levy. Why should he care if his union has a political fund as long as he does not have to contribute to it? The answer lies of course in the basic principles of the 1913 Act. If the views of the majority of the members of a trade union are so irrelevant, why does the law provide for a ballot of all the members of a union on the setting up of a political fund? Why did Parliament not simply allow trade unions to set up political funds without any obligation to consult their members? The truth of the matter is that whether a trade union engages in party political activities is, and always has been, recognised as a matter of legitimate concern to all the members of that union.
Once again we need look no further than ASTMS for a vivid example of how widely union policy can diverge from the wishes of a majority of union members, in the absence of a right to ballot. ASTMS is a union with—by any standards—a rather high political profile. It is very closely identified with a particular political party by virtue of the activities of its leaders, who wield a block vote of 132,000 votes at that party's annual conference. However, its political fund is in chronic deficit and only 10 per cent. of its members pay the political levy. Incidentally, my Lords, with the contributions from 132,000 people, it should be rolling. But, more seriously, how can it be right that the members are denied the right to say whether or not their union keeps its political fund and—on the strength of borrowed money—engages in party political activities with which the vast majority of those same members apparently have little sympathy? How can that be democratic? Is it any wonder that ASTMS members resent what is done in their name and have put pressure on this and other political parties to change it?
It would be easier to take the arguments against review ballots seriously if unions' treatment of their levy payers was less cavalier. But it is a curious fact that in many cases the number of members a union affiliates to the Labour Party is quite different from the number who pay the levy. For example, in 1982 the TGWU reported some 1,600,000 members paying the
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levy, but only 1,325,000 members were affiliated to the Labour Party. What happened to the other 275,000? If noble Lords opposite are to be believed, they are all enthusiastic and loyal supporters of the party. Why, then, are they denied their place in the TGWU's block vote at the Labour Party conference? How does the TGWU decide which of its levy payers are to be disenfranchised in this way? What, the dispassionate observer may wonder, are the voteless 275,000 levy payers getting for their money?
Nothing in this Bill will prevent a union from affiliating as many members as it wishes to the Labour Party, or from raising a political levy of whatever size it chooses, provided the majority of members of that union have decided in a secret ballot that they want their union to go on with its political activities. It really is as simple as that.
As I said at Second Reading, surely the case for this singularly modest Bill is self-evident. The abuses it is designed to tackle are generally recognised and not only by the party whose executive is bringing them forward. The rights it will provide are manifestly needed and manifestly desired by the majority of union members. The arguments of principle are clearcut, and they are backed up by the evidence of both opinion polls and academic research—and, one could add, straightforward electoral determination. The reforms that this Bill will bring are really embarrassingly overdue, and I urge your Lordships to correct that situation and speed the Bill on its overdue way.
Moved, That the Bill do now pass.—(The Earl of Gowrie.)
6.25 p.m.
Lord McCarthy: My Lords, since the Committee stage of this Bill we have been reflecting on how we could describe our feelings during the remainder of that stage, then on Report, and now at Third Reading. It seems to me that we must have refuge in a naval analogy. We have felt like the crew of the frigate which was commanded by Rear-Admiral Gascoyne D'Ascoyne in the film "Kind Hearts and Coronets". No doubt the noble Earl will remember that the rear-admiral eventually noticed an ocean liner looming out of the fog and ordered a course hard a'starboard. The only problem was that the liner was on the starboard bow and despite the plausible, reasonable pleadings of his shipmates, all the rear-admiral would ever do was to heave more and more hard a'starboard because he had never been known to change his mind. That is how we have felt throughout this debate.
The noble Earl has said that we did not answer some of the questions that he posed in his speech on Second Reading. I must say I thought we did, but we shall try to answer them this afternoon.
I turn to Part I of the Bill. What we have been trying to say to the Government on Part I is that it is a self-evident truth, and it is certainly exemplified fully in every page of Undy and Martin, and even, I would say, in Ben Roberts' early work, that no one system of elections suits all unions, any more than it would be likely that any one constitution would suit all states, or any one set of company articles would suit all companies, or even any one rule book would suit all political parties, or professional associations, or anybody else.

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What one has to do is to look at organisations and see what system is appropriate for them, and to prescribe likewise. In answer to the noble Earl's first question as to whether we object to members' right to vote in secret ballots to elect their leader, I would say, of course we do not, if that is what the rule book provides. But we see nothing wrong in rule books that do not provide for direct elections. We see nothing wrong in particular—because this is the issue that is before us, not a simple question like that. We see nothing wrong in rule books which do not ban and make impossible and unlawful indirect elections. We see nothing wrong in this at all; we want diversity.
We believe, and we have sought to argue and exemplify in our amendments, that the system of direct elections by secret ballot, whether by postal ballot, workplace ballot, or branch ballot, is another question. The system of direct election is most appropriate in small, occupationally-concentrated craft or ex-craft organisations. It is least appropriate, indeed it is extremely inappropriate, in multi-occupational sectoral-based conglomerate unions, such as the T & G or the GMBTU or the ASTMS, which have professional appointed officers, a large rate of membership turnover of between one-third and 50 per cent. a year, and a considerable interest in growth by amalgamation and merger.
We say that for them the system which the Government seek to impose upon them will produce inflexibilities, low rates of participation, under-representation of significant groups, and the development in those organisations of factionism which, so far, they have been able to avoid. We say that this would be echoed by any objective analysis and can be seen in any decent textbook on the subject. That is simply what would happen if these unions decided to move towards the system which the Government want voluntarily. That is not what is being proposed.
What is proposed is that it should be imposed upon them by law. We are saying that there is no justification for this. We are saving that the Government have put no justification before us. Indeed, we are saying that the Government and the Government's supporters have become increasingly annoyed and increasingly testy when we have asked for justification: justification in terms of malpractice, justification in terms of fraud, justification of the kind which was put forward and which was very plausibly advanced, for example, in analogous provisions in the case of the Landrum-Griffin Act in the United States of America. That is what we have been saying about Part I of the Bill.
So we come to Part II of the Bill. In respect of Part II the noble Earl asks me whether we are opposed to the right of a strike ballot in which people can participate before they are asked to get themselves involved in industrial action. Of course we are not, but once again we see no reason why a strike ballot—in particular the kind of strike ballot imposed in Part II of the Bill and one which involves what we call the intimidation provision—should be imposed by law on trade unions. We see no justification for it. Indeed, we say that in the context of this Bill what is proposed is
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the complete destruction of the legal right to take effective industrial action on the part of the union as an organisation.
We point to the fact that this is the first time that any Government—including any Conservative Government—have deliberately legislated, it seems to us, to undermine, confine and restrict the rights of the union as an organisation and to support and make lawful and possible unofficial action. All Governments from the middle of the nineteenth century have strengthened official organisation, official procedures and official union action, as against unofficial action. This is the first Government who are making it virtually impossible for unions to deploy the legal right to effective industrial action by leaving it rather more likely that trade unionists will involve themselves in unofficial action.
Therefore, we pass to Part III of the Bill. The noble Earl asks me whether we are against ballots on political activities and whether we are saying that trade union members should not have to ballot to establish a political fund before they can take part in political activities. I think that to some extent we are saying that we are against that. For example, we certainly believe that the statutory objectives of a union like NALGO, which does not have a political fund, should still continue to permit it to indulge in quasi-political action—for example, against Government cuts—without a political fund. We say that the Government are taking that away.
We say in particular that, although we are not against ballots on political activities—after all, the 1913 Act has been accepted by the Labour Party since 1913—we see no reason in the present context why similar restrictions should not be imposed on other organisations and in particular on limited companies. We say that there is no comparison between the degree of restriction which is imposed upon limited companies and that which is imposed on trade unions and which the Government are now going to add to by the provisions of the Bill.
I think that the final question that the noble Earl asked me was about the 2 per cent. in the ASTMS. The 2 per cent. in the ASTMS is a pity. Nobody is going to say that it is a good thing that 2 per cent. of its members vote for the election of the executive. One of the main reasons why the turn-out is so low is that it is a federation. It is a decentralised organisation and most of the activity in the ASTMS is either in industrial groups (in those cases where it is, in effect, a series of industrial unions), or in the private sector (in industry) locally in what it calls its group system. Therefore, the branch life in the ASTMS has very little to do except to elect people to the national executive.
I quite admit that there is a need for constitutional reform in that respect, but I do not think that anyone who looked at the ASTMS would think that the solution in a union as diverse as the ASTMS is a universal postal ballot. I would predict that the turn-out in an ASTMS universal postal ballot may not be 2 per cent. but would not be much above that. Universal postal ballots will not solve problems of membership participation in unions as diverse as the ASTMS. What it requires is a specially designed programme, and it does not get that from the Bill. In fact, what the Bill will do is to impose on the ASTMS

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an electoral model which was reasonably appropriate to the Amalgamated Society of Carpenters and Joiners in 1851, because that basically is the model which the Government have.
Therefore, we have tried over and over again in the course of the Committee stage of this debate to put before the Government a series of amendments which were designed, as it were, perhaps to get them to move just a little bit less to starboard. I think that it is worth repeating some of the more important amendments that we have put down, and stressing the refusal of the Government to accept any of those measures. On Part I of the Bill, as we are against that comprehensive model, based on an 1851 craft union, we said, first, let the members decide whether they want the Applegarth model—the 1851 model. The Government said no, "Hard down to starboard".
Secondly we said, why not let us have what I insisted on calling the Thatcher option—the parliamentary model or the inner cabinet model—whereby the union could elect people to its executive much as people are elected to Parliament, but where the cabinet or the inner executive could be elected indirectly. The Government again said no, "Hard down to starboard". Therefore we said, why not allow a directly elected majority and have a minority which is indirectly elected; and the Government said that that would interfere with the simplicity of the Bill. Indeed, on one occasion I think I am right in saying that the noble Earl said that it would interfere with what he called the beauty of the Bill. The truth, goodness and beauty of the Bill was not to be interfered with, and all those suggestions were turned down.
Similarly with Part II of the Bill, we asked whether the Government would be prepared to restore a modified right to strike, based on due notice. They were not prepared to accept that. We asked whether they were willing to modify the terms of their notorious intimidation provision, now Clause 11(4)(a) and (b). The Government were not prepared to consider that. There was no willingness on the part of the Government to extend the period of immunity, even if unions are able to win an affirmative ballot under the provisions now of Clause 11(4)(a) and (b).
Indeed, the only significant concession that the Government have given us in all the stages of the Bill, from the start of its passage in the Commons, is at last to admit, in contra-distinction to the views that were put forward by the Minister of State in another place, that Part III of the Bill represents a significant extension of political control—that it extends significantly the area of activity which must be paid for out of the political fund and which cannot be paid for out of the general fund. Therefore, the noble Earl allowed us what I should prefer to call the main purpose test in what is now Clause 17(3)(e) and (f).
But before we thank the noble Earl for that—and we do thank him for that—we have to say that in this case a minor concession of that kind was accompanied during the passage of the Bill with an unprecedented series of major amendments which made the Bill from the point of view of trade unions significantly worse than it was when it came from the Commons. In my experience it is unusual on a Bill as short as this for a Government to introduce a number of major
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amendments worsening its impact in the course of its passage through the Upper House.
It is worth reminding the House of some of the more important amendments that the noble Earl has put down. In Part I of the Bill, the Government removed the protection of trade unions from interference and constraint in elections and the ballot process. That section was in the Bill in the Commons. It was taken out when the Bill came into this House and the Government have refused to put it back. Secondly, the Government removed specifically all alternative forms of balloting other than, first, the full postal ballot or, secondly, the workplace ballot. They did that not simply for Part I of the Bill; they extended the model of this alternative between postal ballots and workplace ballots to Part I, Part II and Part III of the Bill, and in doing that they had to sweep away the well-established way in which ballots are held in the case of the 1913 Act for political funds.
Next, the Government first put into the Bill, which they subsequently took away, an individual demand for postal ballots so that the individual could demand a postal ballot; and, finally, in Part I of the Bill they gave a right to the court to impose a postal ballot on a union. All these things were introduced by the Government during the passage of the Bill through this House respecting Part I.
In Part II of the Bill they first introduced these provisions so that there had to be a majority for the strike ballot; and, secondly, they introduced an individual right to terminate political contributions by the check-off. They did that, as we argued, contrary to what had been allowed to be the case, and was said to be the case, in an undertaking to the TUC. So in all these different parts of the Bill we have had the Government introducing amendments, throughout the Bill's passage, making it worse.
But that has not been the end of it, because whether or not the instructions were coming from above, from behind or from the Admiralty, which made this Bill worse as it went through this House, we had the famous Beloff amendment. At some time during the passage of the Bill the noble Earl found that he had a revolt on his hands from Chief Stoker Beloff and his mates. Therefore, we had the Beloff amendment and the subsequent amendments to put that amendment into effect, producing a presumption in favour of full postal ballots as vague as it is threatening, involving the certification officer, creating a situation of double jeopardy, threatening to undermine the functions of a respected and useful institution and putting in a vague duty to compile a register, which is now to be an instant register, with uncertain penalties if the instant register is not immediately created.
Of course, we are not suggesting that the trade union movement will be unable to survive the provisions of Part I, Part II or Part III of the Bill. On Part III of the Bill, I believe that the trade union movement will do its best to comply. It will do its best to win ballots, because it will consider that it is paradoxical that it should not operate within tthe ambit of the Bill, if that is necessary to maintain its links with the Labour Party; and, by and large, I believe that it will succeed. On Part I of the Bill, I believe that different unions will do different things. Some unions will attempt to comply; some unions will wait to see whether the

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Freedom Association and its allies can produce actions under the terms of what is now Clause 5 of the Bill.
The crisis situation, the dangerous situation—and we have done our best to warn the Government of this—comes in respect of Part II of the Bill, because we have told the Government on successive occasions, we have warned the rear-admiral, that this part of the Bill is to be introduced in two months' time and the fact is that the trade union movement of this country could not conform to Part II of the Bill, even if it wanted to, in the time which is available to it. It is impossible for the trade union movement to conform to this part of the Bill in the period which the Government make available to the trade union movement.
We have stressed this to the Government over and over again, and the noble Earl's reply, if I understood hm correctly, was that it must change its bargaining structures so that it is so fragmented and so small that it can comply, or that it must do away with national strikes altogether. I do not think that that is a very helpful way of looking at Part II of the Bill, and I would say, even at this late stage, that if the Government insist on enacting one-third of this Bill in such a way that it is impossible for a trade union to comply, then they are asking for illegality and, if they get illegality and unlawful strike action, it will be nobody's fault but their own.
We, for our part, must hope that it will be increasingly realised that this Bill is, in fact, part of a general pattern; that the Government are seeking to impose upon trade unions a dogmatic solution which defies reason, which is based upon their own instincts and their own prejudices, and that they do this not simply to trade unions but also in many other areas. Therefore, this Bill is part of a pattern. It is, as we have said, deriving from the fact that the Government do not believe that trade unions have a role. They do not believe that the trade unions have a function. They believe that trade unions interfere with the working of the free labour market and, therefore, they believe that they can attack trade unions with impunity and, indeed, with benefit.
But trade unions are not the only independent institutions that the Government do not believe in. They are not the only things that the Government have prejudices against. The Government do not believe in free, independent, autonomous local government. The Government do not believe that there is a productive role for the public sector. The Government believe that the private social services should be expanded and that the public social services are best privatised. The Government believe that by taxation and by borrowing we cannot, in any way, deal with the problem of unemployment. The Government believe that they have a series of infallible instincts, a series of infallible dogmas which enable them to deal with every social, economic and political institution in their way. That is why they are facing the series of crises they are facing. That is why their life is one long banana skin—and this Bill will be yet another.
The Earl of Gowrie: My Lords, before the noble Lord sits down, is he really saying that the situation in the mines has anything to do with the Government?
Lord McCarthy: My Lords, the noble Earl will know, because I have told him before, that I never comment on contemporary disputes which are going through the process, I hope, of resolution. But, quite clearly, since he asks me, everybody is involved in that dispute. The Government are, in the end, the holding company; the Government are, in the end, to some extent, the employer; and, of course, everybody involved in that dispute is responsible for it. I hope that they settle it very soon.
6.48 p.m.
Lord Rochester: My Lords, on these Benches our attitude to the Bill is much as it was on Second Reading. We agree with the proposition that every five years a trade union member should have the right to vote by a secret ballot in the election by all the voting members of the principal executive committee of his union. In this matter, our differences with the Government have centred around the question how the statutory machinery needed to make more extensive use of a postal ballot can best be established.
At Report stage of the Bill last week we took the view that the Government amendments did not go far enough to uphold the principle, agreed to by the House in Committee, that postal ballots should not simply be the statutory norm, but that implicit in that principle was the recognition that responsibility for challenging dubious electoral procedures should be placed on trade unions and not on individual trade union members. In reply, the noble Earl, Lord Gowrie, said that if unions were required to satisfy the certification officer before workplace ballots could be held, they would be able to present this as gross interference by the state in their affairs and that, for little gain, this might result in the legislation being boycotted.
I recognise that what my noble friends and I were advocating was a long jump. That is a well-known athletic event, but there is another one known as the hop, step and jump, and I suggest that that is the event in which the House has actually been taking part during the passage of this Bill. At Committee stage it was the noble Lord, Lord Beloff, and the Government with their first set of amendments who between them showed that they were prepared to take the hop and the step. The question at Report stage was whether the House would jump. Along with my noble friends, I voted in favour of the new Government amendment, partly to make sure that Lord Beloff's imperfectly framed amendment was not still in the Bill when it was returned to another place. It remains to be seen whether the Government's refusal to accept the amendment which I then moved will result in us all now falling down.
The noble Lord, Lord Houghton of Sowerby, whose opinion on such matters I always respect because it is based on long experience, had bigger fears than mine. In terms of the athletic event to which I have been alluding, what in effect he was saying last week, as I understood it, was that it would have been better if we had never taken off from the springboard. We must all hope that in the end he is not proved right.
As to Part II of the Bill, I continue to have serious doubts as to whether the effect of Clause 7 will not in practice be to encourage even more unofficial action than there already is in the form of walk-outs, working

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to rule, going slow, and so on. The House has not taken that view. Indeed, in Committee I was told by the noble Earl, Lord Gowrie, that I was living in the past, that unofficial strikes were no longer the predominant form of industrial action and that the battleground is now one which affects whole industries in the public sector. I am not so naive as to be unaware of that and have myself made the same point often enough for the House to know as much.
Of course, ballots should precede strikes wherever that is feasible. Particularly should that be so in the case of major national stoppages such as those we are now having to endure affecting coal mines and the docks. But Clauses 7 and 8 of the Bill are not confined to such strikes. Moreover, in the case of the coal dispute, legal sanctions are already available under the 1980 and the 1982 Employment Acts to deal with all the secondary picketing that has occurred. The trouble is that when the crunch has come it has not proved practicable to use them.
My fear is this: the requirement that under the conditions set out in the Bill ballots will have to be held before industrial action can with immunity be taken may actually cause more problems than it solves. However, the House has taken its decision and again we shall have to wait and see what happens as a result.
On Part III of the Bill I can only repeat that the Liberal-Social Democratic Alliance cannot be held responsible for the Conservative Party's manifesto at the last election, nor for the agreement that the Government have reached with the TUC on the whole question of political funding and contracting in or out of the levy. Indeed, from our point of view, the arrangement arrived at, that the Government will take no further action on the political levy for a period of up to two years, amounts in its effect to a carve-up between the Conservative and Labour parties at the expense of the Alliance.
Finally, I return to what I said at the Second Reading of the Bill: that my noble friends and I very much regret the absence in this Bill of any provision at all positively to improve human relations or to bridge the gap between "them" and "us" in British industry. This is the third instalment of the Government's step-by-step approach to legislation on trade unions. There may soon be a fourth relating to industrial action in essential services. All of these steps may or may not be necessary, but they are contentious and they are divisive. The directors of many of our best run companies know perfectly well that, although legislation of this kind may curb abuses of power, it does nothing positively to encourage management and employee representatives to work together to achieve a common purpose. We on these Benches eagerly await the first sign from the Government in their legislation that they recognise this truth.
My very last word must be one of thanks on behalf of my noble friends to the noble Earl, Lord Gowrie, for the courtesy he has shown us throughout the passage of the Bill.
6.55 p.m.
Lord Houghton of Sowerby: My Lords, I certainly wish to endorse very warmly indeed the compliment which the noble Lord, Lord Rochester, has just paid to the noble Earl the Minister. He has been courteous
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and patient throughout all our debates. It has improved the quality of our discussions and has enabled us to see this emotive problem in a sober light. As far as possible, we have applied rational thought to those matters.
I have difficulty in knowing what is the uppermost thought in my mind at this moment, because this is part of a lifetime of work in the trade union movement. In the year in which the Trade Union Act 1913 was passed I became a boy clerk in the Civil Service and joined the Boy Clerks' Association. That was the beginning of my trade union life. It was followed later by 38 years as the secretary of a national trade union. I was described as the one intellectual member of the General Council of the TUC, but I repudiate that at once. To be an intellectual anything in the Labour movement is not always a mark of either respect or approval.
Trade unions have from the very beginning been about power, strength, success. They have not been about democracy. Indeed, through the history of the trade union movement some elements of democratic principle have been regarded as a hindrance and as a drag upon the accumulation of power and the use of power. Therefore, we are dealing with internal power blocs in our trade union movement. These are indispensable from the function which trade unions have to perform. Trade unions are not academic societies and they are not instruments of general government. They are reflecting the aims, the ambitions and the interests—some of them selfish, some of them broader and some, even, now twisted—of their members. Therefore, it is desirable for the community generally to look at the democracy of the institutional life of trade unions. It is also part of the responsibility of the community to look at democracy in other institutions. I attach great importance to our institutions because a good deal goes on there which can be misunderstood, sometimes not fully appreciated and sometimes not criticised when it ought to be.
It follows from what I have said that since trade unions are about power, strength and success they are very bad at self-criticism. They always have been because they have felt that they must not do anything to weaken their position vis-à-vis the employer—the other side, the enemy. So we have never had the benefit of candid internal debate about the institutional life, the aims and the position of the trade unions as part of a democratic society. The debate has been left all the time, or too much of the time, to critics who have been denounced as hostile and as unqualified to speak, probably with harmful intent.
Nearly everything that is done relating to the trade union movement is regarded as an attack on the trade union movement. We have found this to be so throughout our debates. It is unavoidable because that is how the trade union movement feel about it. The unions have rarely felt that governments or courts have been out to do them some good. They have had to fight for their rights and overcome the decisions of courts. Nevertheless, some landmarks in parliamentary life and legislation have been enormously beneficial to the trade union movement.
I do not wish to turn this debate—the hour is late—into a kind of first meeting of a Royal Commission

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on the trade unions. We probably need one. The last one was not all that successful. However, in the light of this background, where are we now? This is another movement in the step-by-step approach to trade union reform. I hope that it is the last that we are going to see in this Parliament. I do not believe that there are further steps to be taken without deeper thought, investigation and debate on the role, power and position of the trade union movement in society.
No wonder that whenever there is an autocratic regime in any country the first thing they must do is destroy the trade union movement. Whether the regime is Communist or Fascist, the unions must be destroyed because they are—or may be—a rival power to the power of the state, whether that state is an elected or autocratic one. The crucial issue which has to be decided (and current events are pointing to this more clearly day by day) is how the power of the trade union movement is to be reconciled with the demands of a democratic parliamentary system—that an elected parliament must be supreme. Unless that problem is reconciled, we shall drift into rival seats of power—a general political power and concentrated trade union power—and that can only create a rift which might come near to destroying the whole of our system.
The trade union movement must decide how it is going to function within these confines—they are confines—and within their responsibility to a wider democracy. It has to be granted of course that there are political considerations involved; but one has to try to reduce it to fairly simple terms, otherwise the problem becomes so complex and difficult to bring within comprehensive discussion that you just turn away and leave it alone.
On the question of the step-by-step approach to trade union reform, is there anything more to be done in such an approach without deeper thought and stocktaking about where we are all going? I do not think there is. I do not include in that step-by-step approach the question of the contracting in or out of the political fund because, as I said before—and I repeat and leave it there—I do not think any further step can be taken about the political funds of trade unions until the Government make their mind up how political parties in this country are going to be financed. You cannot regard solely as a matter of trade union democracy the rights of individual members because such an element in trade union life comes so close to the financial and political stability of one of our major political parties.
What else is there? I do not think that there is anything else to be done on a step-by-step approach without first finding out more from experience about the practicability and enforceability of some of the things we have decided upon already. There is not much evidence at the present time that what we have done so far is having the effect that people hoped it would have. This is a sad thought; but picketing, the declaration of strikes, the consultation with people, all these things are in a very sorry state indeed.
I do not think that what is being done about prestrike ballots is going to be of more than modest advantage one way or the other. After all, this Bill does not turn a strike without a ballot into a criminal offence. It leaves the unions exposed to civil
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proceedings in the courts. This is something which was not open to injured parties before. But look what is happening. How many people are willing in present circumstances to take advantage of the rights that they have; and yet we are extending the rights at the present time for all sorts of reasons. We have now illustrations of the opportunities that employers nationally and privately will not take, although they are able to do so, and will under this Bill be able to seek civil damages for injury which has been done to them.
What is left is the election of executive committees. Here I think that the last version is very little different from the first. We have not really got one standard system, though I agree that we have reduced the options to two: there must either be a postal ballot or there must be a ballot at the workplace which satisfies the fundamentals of the freedom of franchise and the secrecy of the ballot. That is I think an advance, but it does leave the option on the union to be satisfied under Clause 5 that a workplace ballot will nonetheless be more acceptable than a postal ballot in the attainment of results, and it can really contract out of the postal ballot if it wishes to do so. However, this is an experiment and we shall have to see what happens.
I hope—and these are my final comments—that all sides of the House will regard the approach to the position, and the future and power of the trade union movement, as a matter of national concern because I think it deserves it. I think, quite honestly, that the trade union movement should respond to the need to join in the debate themselves because they are part of the problem. Some people would say that they are the problem. Almost anything that one can say about trade unions, good or ill, is likely to be true in some degree. That is not a very happy state for any movement or institution to be in in this country. It has to do with politics, but politicians have to do what the electorate decides, and if a government are put there by an election (if the electoral system is accepted by the people) then they must put up with the consequences; if it is not, they must change it. One can say also that a great deal with which we are dealing in connection with the trade union movement is due to the apathy or inability of the membership to exercise their rights within the unions.
If you ask me to attribute one cause above all others to the failure of true democracy in the trade union movement, it is the closed shop. I think that when you have coerced membership, when you do not have to strive for membership, when you do not have to satisfy your membership in order to hold their loyalty and faith, something is taken away from you which is a loss to the democratic principle and an accretion to the power at the centre. I think that is undesirable.
There are faults on all sides here, but my final word is that this problem of how the trade union movement is to function and come to terms with our system of parliamentary democracy is I believe vital to the continuation of the United Kingdom as a state as we understand it to be.
Viscount Massereene and Ferrard: My Lords, think I was the first person in this House, 25, 26 or 27 years ago, to bring up this question of the vast power of trade unionism, and I used to speak a great deal about it. With due respect to your Lordships, I did

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know quite a lot about it at that time, from personal experience. I agree with the noble Lord, Lord Houghton, that the Labour Party have to have funds. If the only way they can get funds is from the unions, so be it. I am all for the political levy provided that Conservative union members do not have to pay that levy to the Labour Party against their will.
I remember the days when I could never understand how in this country we could have this vast monopoly of power of the unions. I am against all monopolies, whether they be private monopolies or trade union monopolies. I could never understand why it was, for instance, that one could have just two or three men in a powerhouse who, by turning a few knobs, could switch off a vast amount of power and stop trains or factories. That situation always absolutely appalled me. Therefore, this is one of the happiest days of my life, politically speaking. At last the unions are to become more democratic.
It always astounded me that union executives could be elected to power with perhaps only 2 per cent. of the membership voting. I always thought that was highly undemocratic. When I asked my own party whether this matter should not be pursued, I was always told, "No—drop it. The unions are much too powerful". I am glad that my party have now pursued this matter, even if late in the day. I am all for unions, and I want strong unions—but I want responsible unions. That is all I ask for, and with the new trade union legislation we have seen, and in particular this Bill, I believe that we will have more responsible unions. I commend this Bill to the House and although I know that there must not be a handclap in your Lordships' House, I think that my noble friend Lord Gowrie deserves our thanks for piloting it through so well.
7.11 p.m.
Lord Harris of Greenwich: My Lords, I cannot pretend to be in quite the same state of ecstasy as the noble Viscount about this Bill. Nevertheless, as my noble friend Lord Rochester has said, we on these Benches welcome the Bill because it will provide greater democratic rights for trade unionists. That is the objective of the Bill, and in so far as that general principle runs through the Bill, we welcome it.
My noble friend Lord Rochester has pointed out that we have some reservations, particularly in respect of Part II of the Bill. It is wholly understandable why the Government have included that part of the Bill in this legislation, particularly in the light of some of the disgraceful episodes we have seen this week. There was the extraordinary episode in Dover on Monday, when it was said by many local trade union officials that the majority voted against a strike, whereas the local officials of the Transport and General Workers' Union claimed that there was a majority in favour of a strike. Given the effect of that decision on the living standards of those working in the docks industry, it is quite understandable that there are many people who take the view that some provisions such as those contained in Part II of the Bill should be placed on the statute book.
Having said that, I must introduce one cautionary note, and to some extent it explains why we are hesitant about this particular feature of the Bill. It is one thing to put this provision on the statute book; it
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is quite a different thing to implement it. We now have on the statute book—rightly, I believe—clear provisions regarding secondary picketing. We had many debates in this House on these particular provisions of previous Bills from this Government, and noble Lords on the Opposition Front Bench opposed them—mistakenly, I believe. One of their central arguments was that these provisions would never be implemented and used by many employers. In the past few weeks we have seen, unhappily, that what the Labour Party said on that occasion has proved to be totally correct. We have read in our national newspapers—and particularly as a result of the leak which appeared in the Daily Mirror—of the tremendous efforts made by the Government to prevent nationalised industries from going to court over these very provisions—
The Earl of Gowrie: No, my Lords!
Lord Harris of Greenwich: My Lords, I shall be very happy to give way to the noble Earl after I have finished making this point. If the noble Earl is going to say that every nationalised industry is wholly free to go to the courts tomorrow so far as unlawful secondary picketing is concerned, then I and, I am sure, others will very much welcome that statement.
The Earl of Gowrie: My Lords, I was going to say something on this aspect in my very brief winding-up speech, but I shall make the point now. As the House is well aware, these provisions, from 1980 on, and the step-by-step approach, which the noble Lord, Lord Houghton, told us about, are in the field of civil law. I have absolutely no doubt whatsoever that civil remedies will be taken as a result of some of the actions we have seen in recent weeks.
Lord Harris of Greenwich: My Lords, I note what the noble Earl says. I am sure we shall all wait with interest to see what happens. I hope very much that we shall not be placed in the position of writing into legislation provisions which, once on the statute book, are implemented only by private employers and not by nationalised industries.
Having made that point, I shall now go on to the others I wish to make. I believe—unlike the noble Lord, Lord McCarthy—that this Bill is a great deal better now than when it arrived in this House, particularly in respect of the movement towards the introduction of secret postal ballots. I am sure that that is right. I am sure that the noble Lords, Lord Beloff, Lord Renton and Lord Marsh, and the parties on these Benches, were right in voting for the Beloff amendment. I indicated at Report stage that although I welcomed the Government's amendments to some degree, I still regretted—and my noble friend Lord Rochester indicated this, too—that they did not go a great deal further in some respects.
It is a great pity that we are not to have an independent agency to supervise the distribution of ballot papers and the counting of votes. I shall not return to some of the earlier arguments we had on this point, but I must say once again that there has been enough evidence of malpractice in trade union elections to make it highly desirable, in my view, that an independent agency should be created in order to undertake this extremely important work.

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Another point made by my noble friend Lord Rochester was in relation to the political funds of trade unions and the question of contracting in and contracting out. I believe it is still highly desirable that we move towards contracting in, for this reason. One of the main problems about the political funds of trade unions is that a substantial number of people who pay into a political levy are not even aware that they are doing so. There is plenty of independently researched evidence to make that absolutely clear. The House made a mistake when it declined to pass the amendment concerning this particular issue, proposed by my noble friend. Certainly we and, I am sure, others shall return to this subject in the future. In particular, we shall be looking with considerable attention to what the Government do in order to monitor the arrangements they have now indicated that they propose to establish.
I shall end, as I began, by saying that I believe this Bill represents a substantial improvement in the rights of rank and file trade unionists, and for that reason it should be warmly welcomed.
Lord Howie of Troon: My Lords, my noble friend and long-time parliamentary colleague Lord Houghton of Sowerby is far too sensible to be thought of as an intellectual. Because he is sensible, we should pay particular attention to what he said—especially about inquiring into the situation of trade unionism in this country, either now or in the near future. I do not consider to be a very reasonable situation that in which trade union law is introduced by the present Government on the basis of their personal view of the trade union-employer relationship, with the possibility of these arrangements being reversed, repealed or changed if at some time in the future the wheel of fortune should turn. I do not think that is a sensible way of conducting this complicated matter. What is needed is a strategy of some kind.
My noble friend Lord Houghton of Sowerby pointed to where we might conceivably find such a strategy. I do not think there is a strategy in the step-by-step approach. We know that it is step-by-step, but we do not know where the steps are taking us. I do not share the view of many of my colleagues on this side of the House that the steps are taking us towards the destruction of the trade union movement. I do not believe that that is the aim of the Government at all. All that the step-by-step approach has done so far is to show us that the Government, in their view—and with many of their views I agree, as the House will know—do not like the trade unions or, to put it more accurately, some of the things which trade unionists do. That is probably more correct. They are trying to draw attention to them and put into a legal framework a hint that these things should best be avoided.
In fact, the results of the two Acts which we have, and the third Act which we are soon to have, are not terribly convincing. They have annoyed many trade unionists but have not produced much in the way of results. No one can really say, in the aftermath of the 1980 and 1982 Acts that industrial relations at present, are much cause for pride. What we have seen is that we have passed laws which nobody really uses except in minor cases. Those minor cases might be relatively important in the great scheme of things, but
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in the big industrial problems the 1980 and 1982 Acts have not been used. I note that when the noble Earl intervened in the speech of the noble Lord, Lord Harris of Greenwich, he said that he expected that they would be used at some date in the future; but we will wait and see. It might be that they will.
I end by saying that I do not entirely welcome this Bill. I agree with much that is in it, but I do not welcome the Bill if it is going to be as pointless as the 1980 and 1982 Acts apparently have been. They have stirred up dislike of the Government to a large extent, and in so far as they have been effective it has been only on a very small scale. It is not worth the parliamentary bother to do that kind of thing, and I sincerely hope that the step-by-step approach will stop now.
7.23 p.m.
Lord Wedderburn of Charlton: My Lords, the hour is late and I will be brief, but it would not be right that this Bill should go to another place without a proper debate. I cannot avoid saying that during many of our debates in Committee, on Report and on Third Reading my mind dwelt upon companies in our land not because of any political funds or donations, and so on, but for a very simple reason. The City of London is in the middle of volcanic changes. The Gower Report has made an unanswerable case for a statutory commission for investor protection. Scandals in the City—and I say this deliberately because it is easily proved—go on year after year. That is proved by the Department of Trade inspector's reports in the Library—a list as long as your arm.
What do the Government do? Do they legislate? Do they come rushing in with legislation? The noble Earl's right honourable friend in another place announced on Monday that the Government will issue a White Paper in the autumn and, devoting himself to self-regulation, said there would be some kind of legislation in 1986. That is not because the Government lack Ministers capable of bearing the burden of heavy legislation. The noble Earl has proved to us in this Bill, as he has done on previous occasions, that he has the stamina, the vigour and endurance to carry a Bill by himself, or nearly by himself, through all its stages. We congratulate him on that and thank him for the way he has piloted our debates from his side.
However, contrast that with the position of trade unions. The noble Lord, Lord Harris, has said again that there is plenty of evidence of lots of scandals. I repeat the point made by my noble friend Lord McCarthy merely in a phrase: there was one major scandal in 1959. There are other things, no doubt, to criticise, but compared with other areas of our national life and compared with those Department of Trade reports—from Dowgate to Capital and Counties and to St. Piran—the trade union movement does not have a long list of malpractices and proven scandals.
It has a quite different phenomenon. It has the phenomenon where the accusations against it are made not on the basis of normal logic and normal standards of proof but, very frequently, on gossip and allegations relating to sub judice cases. The normal principles of judicial procedure or double jeopardy are

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not applied to trade unions, as we have seen in this Bill. The normal principles of natural justice do not apply to trade unions, as again we have seen in this Bill. The noble and learned Lord, Lord Denning, pointed out to the Government their grave errors again today. To what shaming circumstance of our history have we come when a Prime Minister needs to be compelled by the High Court to treat trade unions with natural justice and elementary fairness? That standard is exemplified again in this Bill.
The Government know very well that the Bill will lead to continuous harassment of responsible trade unionists and their organisations in the courts. They know that because they have provided cumulative remedies for those who wish to take arguable cases—very often a lawyer will give you an arguable case—and, of all the institutions, to embroil the certification officer.
When the noble Earl says, as he has said so often—and I am sure he believes it—that these procedures in Clauses 2, 11 and 13 are very simple and that it is all very easy, I have to say to him, with the best will in the world, that this is a proposition which does not understand the realities of internal trade union administration and what it will mean on the ground actually to have to operate these measures. Indeed, the Bill makes that worse for two reasons. First, its standards of clarity and intelligibility are below even that of parts of the 1980 and 1982 measures. Those measures—especially the former, to be fair, more than the second—have been castigated by numerous judges as tortuous.
Debates have shown that the Bill is full of Humpty Dumpty phrases such as, "interference with the contract of employment". Nobody has any idea of what that means. It is something less than breach of a contract of employment but more than something else. Indeed, it is so unintelligible that the Government were forced to drop the words from the questions—the intimidatory questions, as my noble friend rightly says—which are to be put compulsorily to members of a union when they are about to take industrial action. No one can understand it, but it is in the rest of the Bill and it is upon that Alice in Wonderland vocabulary that the lawfulness and legality of trade union action will depend: and not merely that, but the liability of ordinary members, of officials, for millions of pounds of damages on that sort of working.
We still do not know how many branches of trade unions must have postal ballots. We do not have even a vague description, except that the noble Earl today, at the last gasp, says that it is a small minority—which, with great respect, certainly cannot be right. When trade unions can hold workplace ballots is highly obscure. The noble and learned Lord, Lord Denning, today told the noble Earl yet again that lawyers would make hay of many of the procedures in the Bill. The posture of the Government resembles that of William Pitt in 1797 when he introduced the Bill on the seduction of soldiers to desert and to mutiny. He claimed that the offences there were so complex in their nature that it was impossible to define them. Indeed, the analogy goes further because on that same Bill in 1797 the Government succumbed to pressure from its Right to make more rigorous a Bill that was already severe. The attack then was led by a notorious
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reactionary Whig, Serjeant Adair, who demanded for such subversive persons, as he put it,
"death in more than the usual horror".
This time, the Government giving in to similar pressure has not produced much better results.
There is another element, coming to three remarks of noble Lords upon which it would be wrong and impolite of me not to comment. There is another fundamental reason why the Government take a too optimistic view, perhaps, of the sort of things that they can do. The noble Lord, Lord Harris of Greenwich, with whom I disagree on many matters, said something with which I do agree. That is that it is one thing to put a law on the statute book, especially in industrial relations; it is another thing to enforce it. The noble Earl said civil remedies will be taken. That is a bold statement but he may be right.
However, the debate is not merely to be couched in terms of whether a particular injunction will be sought or gained. I submit there is a much more fundamental level in that debate. That is that the Government do not understand the role of law in industrial relations in a democratic society. The law cannot provide you with agreement. It cannot provide you with a settlement. The law can provide you with procedures. I make hold to say that, in industrial relations in a democracy, settlements and agreements may be even more important than rights—and the law deals in rights.
To my noble friend Lord Houghton I say that perhaps that is one of the points which would come from looking again at the Donovan Royal Commission Report, of which he did not seem to think very much. He also said that trade unions were not very good at self-criticism. I think there is a great deal of truth in that. It is partly because they deal in conflicts which involve power. However, are they so lacking in self-criticism that they deserve a Bill every other year—as the Prime Minister has promised us? If you look at any other institution in our national life which deals in power, then its ability to criticise itself may be limited. Think of your Lordships' House faced with Mr. Lloyd George in 1910: one could not say that it was particularly notable for its capability to confess its own inadequacies.
The noble Earl, Lord Gowrie, says that this Bill has the support of the majority of trade unionists. Whether or not it be right that a large number of trade unionists vote for the Conservative Party—and on the evidence that seems highly likely—I cannot understand how anyone could say that the majority of trade unionists support this Bill. For one thing, the Bill has been different every time your Lordships' House has met. The Government have come forward with fundamental amendments from time to time. How does the noble Earl know whether the majority of trade unionists support the fact that the Huddersfield branch of a textile trade union may have to hold its own postal ballot because of the fact that he resisted our amendment today? I do not believe that even the major principles are necessarily known. I do not believe that large numbers of people know that the Government say to them, "We know the only way in which you are allowed to elect your national executive". As noble Lords have said, they know that people say they should have a right to vote. That is a

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right they have had according to the rules in all trade unions ever since they were founded.
We will see whether the view is the same when the truth begins to dawn. This Bill does make sense on one basis, and on one basis only. That is that it is part of the Government's attempt to change the position of trade unions in our society. I put it in that rather neutral way because I think that on reflection the Government Ministers might agree. They do not believe that trade unions should play a major role in impeding the forces of the market. According to the high ideology which now broods over Downing Street, market forces are the principles on which to run a society and trade unions will often look like obstacles to that.
Deplorably we have again heard in these debates the fundamental liberties of working people, which in other societies are known as rights, described by Government Ministers as privileges for which they demand an ever increasing price to be paid in their laws. Then, of course, step by autocratic step the Government are almost bound to invade the autonomy and freedom of trade unions, which, as my noble friend so rightly said, are always in the firing line.
I say this about Part III. This time by a side-wind the Government are introducing and passing a Bill which is an attempt, if not to bankrupt, at any rate to reduce markedly the financial resources of the Labour Party. They are doing this by reopening a constitutional settlement of 1913. We do not have a written constitution. If we did, this Bill when it is passed would be a constant visitor to the constitutional court. However, it is always said that this House is supposed to uphold our unwritten constitution, conventions and settlements. In terms of the 1913 political fund constitutional settlement the record will show that on this aspect of the Bill your Lordships' House has failed to fulfil that duty.
But although this legislation will no doubt go on every other year, as the Prime Minister has promised, I apprehend that the tide is turning. Step by step a truth is dawning on millions who were deceived. When this Government fall, as fall they will, the representative and responsible trade union movement of Britain will take a rightful place in a new programme of social advance. They will be free from legislation which is as repressive of civil rights and repugnant to democratic liberties as it is irrelevant to the real problems of industrial relations and the nation and to any of the urgent needs of our sadly fragmented society.
7.37 p.m.
The Earl of Gowrie: My Lords, as so often, the noble Lord, Lord Wedderburn, tempts me. The noble Lord, Lord Houghton, made a speech of such wide ranging and general interest about trade union matters that it would be attractive to go on debating some of the wider issues. However, I think it is the feeling of the House that we should bring the proceedings on this Bill to a fairly rapid close and I shall resist these temptations.
I must just say to the noble Lord, Lord Wedderburn, who was very nice about me personally—and I am grateful to other noble Lords who have also made kind
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remarks—that one of the things that I like about the noble Lord is that he is an unreconstructed manichaean, if one can briefly put a toe into this intellectual water which everyone has been warning us against. He does see things in terms of the light and the dark. He even trotted out the old duality between the interests of trade unions and the City. The City runs on the savings of trade union members. They provide the greatest source of capital of any European country—the pension funds of ordinary men and women. We are still running these from this country. There is an overwhelming interest in the trade union movement that the City should thrive and prosper.
As to scandals, of course there are going to be scandals. There will always be scandals. One of the reasons why I sit on these Benches and not on the Benches opposite is that I have a dim view of humanity. I am a Conservative in that I do not think that human nature changes very much unless it is subject to regulation and discipline by law. In a free society we have to get together and discuss what regulations are acceptable and what are not.
The City is subject to over 100 regulations on the statute book. Contrast that with our rather modest—and some on those Benches would say too modest—step by step approach in this area. Of course, men and women will always take advantage of each other when they can get away with it. What we are trying to ensure is that they cannot get away with it too often.
I should like to deal with the points made by the noble Lord, Lord Howie, the noble Lord, Lord Hams of Greenwich, and one or two others. They expressed anxiety that this and other kinds of trade union legislation may get on to the statute book but not be used. As I said in an intervention to the noble Lord, Lord Harris, we are dealing here with civil law. Under civil law there is freedom to use legislation but there is also freedom not to use legislation.
I repeat that I have little doubt that redress will in the end be sought when all else has failed. No sensible people are litigious. No sensible people want to have recourse to law other than as a last resort. But all people know and want to know that the last resort is there. That is all that we have been seeking to ensure. I hope as profoundly as any in your Lordships' House that, the recent excitements, disturbances and troubles notwithstanding, the last resorts will not need to be used. But if these continue, I have no doubt that one way or another the last resorts will be needed. It is very difficult for us in Parliament, wherever we sit, to get across to the general public the status of this legislation. The general public still think of legislation fundamentally in terms of the criminal law. They see criminal offences being committed and they cannot understand why something cannot be done about it. One of the reasons why things cannot always be done about criminal offences is the difficulties, challenges and problems of policing, as the noble Lord, Lord Harris of Greenwich, knows very well. Where the civil law is concerned, the remedies are slower but over time they may be more inexorable. To my mind there is no doubt that, if they have to be used, they will be.
We have debated this Bill for three days in Committee and one day on Report and we have considered a number of further amendments today. As a result, the Bill is very different from the Bill that

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we debated at Second Reading on 15th May, in that we have added five new clauses and only seven clauses have remained unamended. I believe profoundly and personally that, although I tried to introduce this Bill with conviction and brio on 15th May, it is going from us a better Bill as a result of our amendments. Just to take my own side—I am well aware that there were other contributions from other parts of the House—I am grateful to my noble friends Lord Beloff, Lady Cox, Lord Renton, Lord Orr-Ewing, Lord De La Warr and others who made a signal contribution, in my judgment, to the improvement of this Bill.
Before we send the Bill on its way to another place, I would like again to remind the House that legislation alone cannot bring the changes that are needed in our industrial relations. It has always been our view that a proper legislative framework is a necessary but not a sufficient condition for securing those changes. Democracy in trade unions cannot be made by Parliament alone. It depends on the will and determination of union members to make full and proper use of the rights and opportunities the law has given them. The noble Lord, Lord Houghton, was especially interesting when he said that the unions were not suitable instruments of general government. I would add just two thoughts to that. It seems to me that they are not also best suited to be instruments of general political opposition, and that is the view not simply of those of us who stand where I stand or sit where I sit, but also, we would judge, the view of the vast majority of union members themselves.
Of course, union members have strong political views. I, for one, have no doubt that they will continue strongly to support the Labour Party in elections and with financial contributions. My own equally strongly held view is that the Labour Party will not form a government again in this country until its formal links with the trade union movement are severed. But that is an expression of personal opinion—the noble Lord, Lord Wedderburn, was apocalyptic and I am allowed a little apocalypse of my own. It seems to me that it is Parliament's duty to make sure that the rights, the opportunities and the last resorts are available to men and women to use at the right time and in the right form. That is all that we have sought to do in the Bill. It is in that rather modest spirit that I ask your Lordships to agree that it do now pass.
On Question, Bill passed, and returned to the Commons with the amendments.

Cable and Broadcasting Bill [H.L.]
7.44 p.m.
Lord Elton: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
[References are to [Bill 127] as first printed for the Commons.]
1 Clause 2, page 1, line 19, leave out ("Part") and insert ("Act").
2 Page 1, line 20, leave out ("consisting") and insert ("which consists wholly or mainly").
3 Page 1, line 24, leave out ("simultaneously").
4 Page 1, line 25, after ("Kingdom",) insert ("whether they are so sent for simultaneous reception or at different times in response to requests made by different users of the service").
5 Page 2, line 6, leave out ("consisting") and insert ("which consists wholly or mainly").
6 Page 2, line 10, after ("for") insert ("simultaneous").
7 Page 2, line 11, leave out ("simultaneously").
8 Page 2, line 28, leave out ("consisting of") and insert ("which consists wholly or mainly in").
9 Page 2, line 29, after ("if") insert ("it is an essential feature of the service that").
10 Page 2, line 29, leave out ("it is possible to send") and insert ("there will or may be sent").
11 Page 3, line 1, leave out ("Part") and insert ("Act").
12 Page 3, line 6, at end insert—
("(9) In this section 'dwelling-house' includes a hotel, inn, boarding house or other similar establishment.").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 to 12 en bloc. These amendments all deal with the definitional provisions in Clause 2. I think that it will be for your Lordships' convenience if I speak to them all together. Amendments Nos. 1 and 11 are purely drafting amendments relating to presentational changes to the Bill's interpretation provisions. Amendments Nos. 2, 5 and 8 are technical and pave the way for a group to which I shall be speaking later dealing with copyright protection for material such as computer programs which are not sent in the form of sounds or visual images but is part of the cable programme service. Amendments Nos. 3 and 4 are technical ones intended to make it clear that the definition of cable programme service extends to viewdata services such as Prestel where it might otherwise be difficult to show that the service, still less an individual page of text, was being sent simultaneously to two or more places.
Amendments Nos. 6 and 7 simply change the drafting of Clause 2(2) to make it consistent with the new drafting of Clause 2(1). Amendments Nos. 9 and 10 are technical amendments to Clause 2(4) which is designed to ensure that simultaneous two-way communications in sound or vision such as the telephone or in due course even the videophone and video conferencing do not constitute the provision of a cable programme service. Finally, Amendment No. 12 is designed to bring services that go to two or more hotels within the scope of the Cable Authority's licensing controls. The point was put to us that if cable services to hotels were left free to develop without regulation, this might jeopardise the development of services over wide band cable systems, particularly in an area with a high concentration of hotels such as central London. The amendment therefore places hotels and dwelling-houses on the same footing under Clause 2(2) so that services to two or more hotels will require a licence from the authority. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
Lord Winstanley: My Lords, I only heard the last of the noble Lord's remarks. Can he answer one question on Amendment No. 12? He made clear that this was a change in the Bill so that it would apply not just to dwelling-houses but to two or more hotels. I would

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merely ask him to confirm that I am right in assuming that a licence would not normally be required if a service was sent internally within a single hotel. It is possible that a single hotel might have 900 or 1,000 rooms and that it might want to operate a service. It is my understanding of the amendment and of the Bill as it would now be, that a single hotel with a service transmitted purely internally within the hotel would be excluded. Is that right?
Lord Elton: Yes, my Lords.
On Question, Motion agreed to.
COMMONS AMENDMENT
13 Clause 4, page 4, line 3, leave out ("twelve") and insert ("fifteen").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 13. This amendment concerns the important and difficult question of how long the initial Cable Authority licences should run. When we considered the Bill at an earlier stage, we recognised that there was a difficult balance to strike between choosing a period that was long enough to satisfy potential investors but not so long as to reduce the effectiveness of the Cable Authority's oversight. Since then, the calculations on which potential investors had based their plans have been considerably affected by the Budget. While we were giving the Bill a Third Reading, my right honourable friend the Chancellor of the Exchequer was announcing in his Budget Statement that the system of 100 per cent. capital allowances was to be abolished. For a capital intensive business such as cable, with the need for very large up-front expenditure, this is of great significance. For some cable consortia, this could mean that the break-even point would move from year 7 to year 9, very near the time when, with a 12-year licence period, the company would be having to start turning its mind to the forthcoming re-advertising exercise.
The Government came to the view, therefore, that a further extension of the initial period was justified to take account of this new and rather unpromising situation. An amendment agreed to in another place, while preserving the normal period at eight years, extends the initial period to 15. This extension applies to both operations licensed in the future by the Cable Authority and the pilot projects, the first of which has now received a licence from the Home Office.
Similar extensions will be made to the telecommunication licences for cable systems by my right honourable friend the Secretary of State for Trade and Industry, to bring them in line with the cable programme service licence, though this change does not have any legislative implications. Thus, for tree and branch systems the licence will be 15 years, and for switched star systems, 23 years, equal to the period covered by two consecutive cable service programme licences. None of us can know whether or not cable is going to prove a success. The Government hope very much that it will, but we can do no more than create the opportunities. We believe that by making this change to the Bill we have increased the
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chance that those opportunities will be taken. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
Lord Mishcon: My Lords, I thought I saw a noble Lord about to rise. If that is so, I want to give him precedence.
Earl De La Warr: My Lords, as I have done at every stage of the Bill, I declare my interest as a director of one of the interim consortia. All I should like to do is to thank my noble friend for what the Government have done. He has been very explicit about the main reason why they have done it. Apart from that, for all the reasons that we adduced from Committee stage onwards, this will be of enormous help to this budding, but very high risk, industry. Once again, I thank the Government for what they have done.
Lord Mishcon: My Lords, I have only a very brief comment to make. It is not in opposition to this amendment, but purely to call the attention of the House to the fact that the extension to 15 years makes the revocation provisions and the lack of any other sanctions a rather more important matter than if the period had been shorter. I shall be referring to that in regard to later amendments, and I thought it only right to emphasise that point at this stage.
On Question, Motion agreed to.
COMMONS AMENDMENTS
14 Page 4, line 20, leave out second ("a") and insert ("the").
15 line 24, leave out from ("requiring") to second ("to") in line 25 and insert ("the holder of the licence").
16 line 31, leave out ("by virtue of that paragraph in a licence") and insert ("in a licence by virtue of that paragraph").
17 line 32, leave out from ("licence") to end of line 33 and insert ("may require the holder of the licence").
18 line 40, at end insert—
("(6A) The payment or payments required to be rendered to the Authority by conditions included in a licence by virtue of subsection (5)(b) above shall be such as to represent what appears to the Authority to be the appropriate contribution of the holder of the licence towards meeting the sums which the Authority regard as necessary in order to discharge their duty under section 19(1) below.").
19 line 41, leave out from ("may") to end of line 43 and insert ("vary a licence by notice in writing served on the holder of the licence if—

(a) in the case of a variation of the period for which the licence is to continue in force, the holder consents; or

(b) in any other case, the holder has been given a reasonable opportunity of making representations.").

Lord Elton: My Lords. I beg to move that this House doth agree with the Commons in their Amendments Nos. 14 to 19, en bloc. These amendments all deal with the Cable Authority's powers in respect of the licences they issue. Amendments Nos. 14 to 17 are merely drafting amendments and need not detain us.
Amendments Nos. 18 and 19 are the ones of substance, and they deal with two separate points. Amendment No. 18 deals with the authority's power to charge fees, both on the issue of a licence and subsequently, while it remains in force. Noble Lords were anxious in Committee that the authority might use their power to make charges to raise more funds than were strictly necessary. Fears on this point were

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expressed also in another place, and my right honourable friend the Minister of State decided to put into the Bill an explicit link between the authority's power to raise fees from licencees and their financial duties in Clause 19. Amendment No. 18, accordingly, introduces into Clause 4 a new subsection which makes it absolutely clear that each licence fee is to represent what the authority think is the appropriate contribution towards the costs incurred by the authority in discharging their duty under Clause 19(1). Of course, it will be for the authority to determine what is appropriate, on the merits of each case.
Amendment No. 19 meets an undertaking I gave when we considered the Bill on Report, in response to an amendment moved by my noble friend the Duke of Portland. Unfortunately, there was not sufficient time for the amendment to be brought forward in your Lordships' House, but my right honourable friend was able to move it in another place.
Its effect is simply that the Cable Authority will not be able to vary the duration of a licence without the licensee's consent. In all other respects they will, if necessary, have the power to vary the licence without the holder's consent, provided they have afforded him a reasonable opportunity of making representations. The length of a licence is one of its most crucial features for investors, and it is right that if the authority ever come to the view that the licence period for a particular operator should be curtailed, they should use their powers of revocation under Clause 18, rather than seek to vary the licence. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
20 Clause 5, page 5, line 13, leave out from beginning to ("such") in line 17 and insert ("a notice—

(a) stating that they propose to grant a licence for the provision of such a service in the area;

(b) inviting applications for the licence; and

(c) stating the fee (if any) which will be payable on each application.

(2A) The Authority shall also publish, in such manner as they consider appropriate, as regards each application received—

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

(b) ")

21 line 20, leave out ("also").
22 Clause 6, page 5, line 36, after ("must") insert ("be accompanied by the fee (if any) stated in the notice under section 5(2) above and must").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 20. I think it will be for your Lordships' convenience if I speak also to Amendments Nos. 21 and 22—in fact, if I seek to move the three en bloc.
When we considered this Bill in Committee, the noble Lord, Lord Aylestone, moved an amendment to enable the Cable Authority to charge a fee which would have to be submitted with applications for licences. Our initial intention had been that the authority should have power to charge fees only when they actually issued a licence, and then subsequently while the licence remained in force. In response to the
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noble Lord I undertook to consider the point further, and we came to the conclusion that there would indeed be some advantage in giving the authority this additional power in certain cases. It could provide a small additional source of revenue for the authority and might also deter entirely frivolous applications. I regret that these amendments were not ready before the Bill left your Lordships' House, but my right honourable friend introduced them in another place.
They give the Cable Authority discretion to require an application fee when they invite applications for a prescribed diffusion service licence. It will be for the authority to decide whether to charge an application fee in any particular case. Where they do so, they must fix the amount and state it in the notice they issue when they invite applications for a particular area. The set fee would have to accompany each application. The authority will have the power to require application fees only in respect of applications for prescribed diffusion service licences, since it is only in respect of these—the most important category of licences—that there are specific requirements for consultation, the inviting of competing applications and the seeking of public views, and the authority may well find themselves put to some expense. That is in response to a request of your Lordships. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
Lord Winstanley: My Lords, in the unavoidable absence of my noble friend Lord Aylestone, may I say on his behalf, and, indeed, on my own behalf, that we welcome these amendments and the way in which the Government have met the point raised by my noble friend at an earlier stage in our discussions.
On Question, Motion agreed to.
COMMONS AMENDMENT
23 Clause 7, page 6, line 7, leave out from ("the") to ("to") in line 32 and insert ("extent to which the applicant or each applicant proposes to do the following things, namely—

(a) to include a range and diversity of programmes;

(b) to include in the programmes matter which originates within the European Economic Community and is performed by nationals of Member States;

(c) to include in the programmes an increasing proportion of such matter;

(d) to include programmes of an educational nature, programmes calculated to appeal specially to the taste and outlook of persons living in the area and programmes in which such persons are given an opportunity to participate;

(e) to include programmes provided otherwise than by himself or by associates of his;

(f) to include programmes provided by local voluntary associations and to assist such organisations in the preparation and production of programmes;

(g) to include in the programmes matter which is calculated to promote the understanding or enjoyment of programmes by persons who are deaf;

(h)").

Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 23. When we considered this Bill originally, we had a number of lengthy debates—in Committee, on Report and on Third Reading—about its provisions on domestic programme material. This is an important area, and at the time I made clear the Government's wish to see cable provide a stimulus to

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the British production industry. That is why the Bill contains three provisions in this area. First, the Cable Authority have a duty, in Clause 7(2)(b), to take into account at the licensing stage applicants' proposals in this area; secondly, under Clause 10(1)(d), they must see that proper proportions of British material and material from other parts of the EEC are included in cable programmes; and, thirdly, under Clause 22(3), they must include in their annual report an account of how they have discharged this duty under Clause 10.
There is only one change of substance in this amendment. It is, I think, generally accepted—certainly it was accepted by your Lordships—that in the early years cable will need to rely on a greater quantity of overseas material than will be the case later on, when it has become established. That is natural, because the production industry will take time to adjust and cable companies will take time to find their feet financially. One problem which perplexed us in our earlier deliberations was how to build into the Bill some kind of duty on the authority to achieve a progressive increase in domestic programming on cable, as envisaged by the White Paper.
We decided that the proper proportions formulation in Clause 10(1)(d) was the right one to give the authority the necessary flexibility to take into account all the relevant circumstances in carrying out this duty. However, it proved impossible to qualify that test to provide explicitly for an increase without either making nonsense of it or changing it to a more rigid formulation. Nonetheless, we continued to consider this problem in the light of further concern which was expressed in another place. As a result, my right honourable friend was able to bring forward the present amendment. Paragraph (c) is the relevant part, and it will give the authority a duty to take into account at the licensing stage not only applicants' proposals to include in their programmes material originating within the EEC, but also their proposals to include an increasing proportion of such material.
This amendment means that we now have in the Bill four separate duties on the Cable Authority in the area of domestic programming. I think that taken together they represent a firm steer to the authority to ensure that domestic programming is used on cable at the highest practical level, while leaving them with essential flexibility in the way in which they carry out their duties. How things will work out in practice will depend very much on the price and availability of the right kind of material, but our objectives are clear. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
Lord Mishcon: My Lords, one's recollection goes back to the sturdy debates that took place in your Lordships' House on the very matter of ensuring that there was sufficient quota of EEC material, including obviously material emanating from the United Kingdom. One's recollections are of endeavours made by the noble Lord, Lord Hill of Luton, in alliance—and a very holy alliance—with my noble friends and myself. The Minister was very forthcoming in his support of the principle, and we both struggled with the idea of a formula. One was not
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forthcoming that met with the approval of your Lordships' House in the long run. But this is definitely an improvement upon what was in the original Bill, and for that my noble friends and I are truly thankful.
What worries us—and this is why I made the comment that I did on the earlier amendment which extended the life of the licence to 15 years—is: what sanction is there in the Bill? What are the means that the authority could employ to see that the blandishments (if I may put it that way) made by the applicant as to the extent to which he immediately intended to give priority to EEC material, and the extent to which he was going to increase that material year by year, or certainly over the period of the licence, are carried out?
The only sanction in the Bill at the moment—and this was what we on these Benches complained about when the Bill was before us—is that contained in Clause 18, and that, of course, is the very vigorous one of revoking the licence. One knows that there will be the annual report and that there will be a progress report.
All that I can sensibly ask for at this stage, now that we are considering this amendment, is whether the Government will give an assurance to your Lordships that they, in turn, will tell the authoritiy in no uncertain terms that the provision of (and I am using shorthand English) a quota of EEC material (which will not only give employment to our people but will, I hope, uphold the quality of what is on cable) is regarded by the Government as being an essential ingredient, and that in some way there will be a review of the situation in regard to the licence if the promises made originally when the licence was granted in this connection are not fulfilled and there are no good reasons for not fulfilling them. That is something about which your Lordships would want to be assured before we pass from this amendment, which I am sure we can agree to otherwise.
Lord Elton: My Lords, inevitably in a debate of this type there is a faint feeling of the British Legion coming together and battle honours of long ago being recited. I well remember the encounters to which the noble Lord refers, and I am grateful to him for the interest which he quite properly has in this part of the Bill.
It is of course the case that whenever you have a franchising system there is the risk that promises and performance will not match up, and that is what concerns the noble Lord. We think that we have gone as far as we can in the Bill to try to guard against this, but I would not want to suggest that there is any panacea. The authority will have power under Clause 4(5) to write conditions into each operator's licence which reflect the promises made by him at the application stage. So we have it in writing and are able to confront him with it.
Breach of licence conditions can lead to a public warning by the authority under Clause 17(2), a period of close supervision of the operator's activities and re-vetting of his schedules under Clause 17(3), as well as ultimately—and, as the noble Lord pointed out, in the first instance rather more distantly—revocation of the licence. Where problems could arise in practice would be where a company could simply not find

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sufficient domestic programme material of a suitable kind at the right price. If the company was also experiencing financial pressures, the difficulty of any punitive action by the authority would be that much greater. But I cannot see that there is really any simple way out of that dilemma. The authority would have to decide, on the facts of each case, whether it was better to persevere with a licensee, even though in some respects his performance was falling short of the mark, or whether the point had come where revocation was necessary in the public interest.
However, as I have said, revocation is certainly the final step, but it is not the only one, and I believe that the intermediate stages of graduated deterrence in the form of public warning and the pre-vetting of schedules in fact amount to a matter of which a company would have to take very careful note and of which its customers would also take note.
Lord Mishcon: My Lords, before the noble Lord the Minister sits down, I wonder whether he would give me an answer in regard to the assurance that I sought and in which I thought your Lordships were interested; namely, that the Government will inform the authority of the importance which they attach to the quota provision and to the promises that are made, and that the authority will act with proper sternness in cases which show that unreasonably the licensee has not kept his promises. I shall keep talking, if I may, for a moment or two because I believe that that might help me in view of a message which is now being conveyed.
Lord Winstanley: My Lords, while the noble Lord the Minister is considering matters let me intervene just very briefly. The noble Lord, Lord Mishcon, has questioned the adequacy of the sanction which exists and which the authority can use. He has stated correctly that the only power that it has is the power under Clause 18 of the Bill to revoke the licence.
The adequacy or otherwise of a sanction depends upon whether the sanction ever has to be used. If the sanction is effective—in other words, if the licensees in fact fulfil the promises which they made when they were awarded the franchises—then it does not matter what the sanction is because they have in fact fulfilled those promises. It would only matter if they did not fulfil them. What matters, therefore, is that we have a clear understanding that the authority would be prepared to use that ultimate sanction should it be necessary. To that extent I am wholly with the noble Lord, Lord Mishcon, and I await with interest the assurance which I am sure we are presently going to get from the noble Lord.
Lord Elton: My Lords, I am much obliged to the noble Lords for a virtue which is sometimes a vice in this House, and that is their prolixity. I wanted confirmation of my view that it is not the function of the Government to instruct the authority—and I think that this is clear from the face of the Bill—as to how to fulfil its statutory duties. But we shall certainly ensure —and I think that this is what the noble Lord can best be reassured by—that the authority is fully aware of the views expressed on this matter in this House.
Lord Mishcon: My Lords, I am much obliged.
On Question, Motion agreed to.
COMMONS AMENDMENTS
24 Clause 8, page 7, line 30, leave out ("there are shareholdings to which subsection (4) below applies") and insert—

(" (a) any of the persons mentioned in subsection (4) below is a participant; or

(b) any of the persons mentioned in subsection (4A) below is a principal participant,").

25 Page 7, line 33, leave out ("the existence of those shareholdings") and insert ("that person's participation in that body corporate").
26 Page 7, line 36, leave out from beginning to end of line 38 and insert ("The persons referred to in subsection (3)(a) above are").
27 Page 7, line 42, leave out ("or the Welsh Authority") and insert ("and the Welsh Authority; and
(d) a body corporate which is under the control of a person falling within paragraph (a), (b) or (c) above.
(4A) The persons referred to in subsection (3)(b) above are—
(a) a person who is a principal participant in another body corporate which is the holder of a licence for the provision of a diffusion service to which this section applies;").
28 Page 8, line 2, leave out ("or") and insert ("and").
29 Page 8, line 9, leave out ("records") and insert ("recordings").
30 Page 8, line 11, after ("paragraph") insert ("(a)").
31 Page 8, line 14, leave out ("(d), (e) or (f) above; or") and insert ("(a), (d), (e) or (f) above; and").
32 Page 8, line 16, leave out ("any of the foregoing paragraphs") and insert ("paragraph (a), (d), (e) or (f) above").
33 Page 8, line 21, leave out from ("section") to ("and") in line 23, and insert—
("—
"participant", in relation to a body corporate, means a person who (whether alone or jointly with one or more other persons, and whether directly or through one or more nominees) holds or is beneficially entitled to shares, or possesses voting power in, that body corporate;
"principal participant", in relation to a body corporate, means a person who (whether alone or jointly with one or more other persons, and whether directly or through one or more nominees) holds or is beneficially entitled to not less than one-twentieth of the shares, or possesses not less than one-twentieth of the voting power in, that body corporate.
(7) In this section "cinematograph film", "record" and "sound recording" have the same meanings as in the Copyright Act 1956 (in this Act referred to as "the 1956 Act"); ").
34 Page 8, line 26, leave out ("that") and insert ("the 1956").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 24 to 34 en bloc. This somewhat intricate set of amendments deals with two points on Clause 8 which were raised in this House at an earlier stage but had not been successfully attended to before the Bill left for another place. The first concerns the undesirability of requiring the Cable Authority to have to consider the public interest implications of every single share held by a body listed in Clause 8(4); the second relates to the need for safeguards against excessive concentrations of ownership of cable companies.
My noble friend Lord Glanusk pointed out to your Lordships that it could be very onerous for the Cable

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Authority and the companies concerned if the authority had a duty, at least in principle, to take an interest in every individual share. I agreed at the Report stage that we would try to build in a more realistic threshold and we have done this by introducing into Clause 8 the concept of a "principal participant". A principal participant is someone with 5 per cent. or more of the shares or the voting power of the company.
The effect of these amendments is that the authority will still have to look at any participation in a cable company by one of the bodies listed in paragraphs (a) to (c)—that is, local authorities, religious and political organisations and the broadcasting organisations—to see that no problem is likely to arise. But in the case of the commercial organisations listed in paragraphs (d) to (h) of subsection (4) the authority will have to consider the public interest implications only where the stake is 5 per cent. or more.
The second point about excessive concentrations of ownership and the possible development of regional cable monopolies is dealt with by Amendment 27. We have not followed the letter of the amendment which the noble Lord, Lord Mishcon, tabled in our previous proceedings, but I think that we have adopted its spirit. The Cable Authority will have to consider the public interest implications where a particular company or individual has a stake of more than 5 per cent. in two separate cable companies. That does not, of course, mean that companies are automatically precluded from having a sizeable stake in several licensed companies; it will be for the authority to consider what the practical consequences of such a situation would be. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
Lord Mishcon: My Lords, adopting the spirit of that amendment, which I had the privilege of moving, I am most grateful to the noble Lord.
Lord Glanusk: My Lords, I should like to thank my noble friend and his colleagues in another place for moving these amendments for us. Even after these amendments, it will still mean that virtually all the original shareholders in the licensed operating companies will be subject to immediate scrutiny by the authority because they hold more than 5 per cent. of the shareholding. We still believe that the companies and bodies listed in Clause 8(4)(d) to (h) are too specific and by no means exhaustive.
Lord Mishcon: My Lords, I hesitate to interrupt the noble Lord, but he has twice used the word "we" and I am not quite sure on whose behalf he is speaking, because in this House we do not speak on behalf of anyone but ourselves.
Lord Glanusk: My Lords, I beg your pardon; I was speaking on behalf of my noble friends who took part in the earlier debates. I, personally, did not take part in all of them.
There are several types of businesses which are omitted from that list and if they did become
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influential shareholders in the cable operating companies, they would create a far greater threat to the subscribing public than the ones listed there. However, we must hope that the authority can keep control of them via some of the other clauses, such as the powers laid down in Clauses 16 and 17.
Lord Elton: My Lords, I acknowledge both my noble friend's gratitude and his rebuke. We did consider his position carefully. It seemed to us that to have talked in general about any company shareholding which might lead to results adverse to the public interest without a descriptive list would have imposed a duty on the authority which it might have found very hard to fulfil. I shall not detain your Lordships longer because I think that our position on this is well known.
On Question, Motion agreed to.
COMMONS AMENDMENTS
35 Clause 12, page 10, line 23, after ("IBA") insert ("and such other bodies and persons concerned with standards of conduct in advertising as the Authority think fit").
36 Page 10, line 41, leave out from beginning to first ("the") in line 43.
37 Page 10, line 43, leave out ("in the case of any licensed service").
38 Page 11, line 2, leave out from ("exceed") to end of line 4 and insert—

("(a) in the case of so much of a licensed diffusion service as appears to the Authority, after consultation with the IBA, calculated to appeal to tastes and interests which are generally catered for by ITV, the maximum amount of time which could be so given if that service were ITV; and

(b) in the case of so much of a licensed diffusion service as appears to the Authority, after consultation with the IBA, calculated to appeal to tastes and interests which are generally catered for by local sound broadcasting services, the maximum amount of time which could be so given if that service were a local sound broadcasting service.").

39 Page 11, line 15, leave out ("Part") and insert ("Act").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 35 to 39 en bloc.
Amendment No. 35 would require the Cable Authority, when drawing up their advertising code under Clause 12, to consult, in addition to the IBA, other people and bodies experienced in regulating advertising standards. The amendment is similar to that tabled by my noble friend Lord Mottistone on Report. Your Lordships will recall that I was successful then in resisting it. However, the debate was rejoined at the Committee stage in another place when it was again argued, strongly, that to specify additional consultations with other bodies would make it clear that the process of drawing up the code should not be dominated by the IBA. The Government were finally persuaded by these arguments that the additional words might accordingly go into the Bill.
Amendments Nos. 36 to 38 deal with three points in relation to Clause 12(3), which concerns the amounts of advertising to be shown on cable. First, as noble Lords will know, we said in the White Paper that the amounts of advertising on cable television and sound channels should be unrestricted except where those channels were broadly comparable with the IBA

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services, in which case the IBA limits on the amount of advertising should apply. The original drafting of subsection (3) was defective because it referred only to the advertising limits on independent television which are more restrictive than those that apply to independent local radio; Amendment No. 38 now distinguishes between television and radio and provides that the ILR limit should apply to comparable cable sound channels.
Secondly, it was represented to us in another place that the drafting of subsection (3) was not sufficiently close to the White Paper formulation of channels that were "broadly comparable". We have wrestled with the statutory language, in which we cannot employ such ill-defined concepts as "channel", and are now satisfied that the tighter formulation in Amendment No. 38 brings us more closely in line with the White Paper. Thirdly, we have made clear in that amendment that, while the Cable Authority should consult the IBA in deciding what limits should apply, the decision should be that of the Cable Authority alone and not a joint decision with the IBA. This again reflects more closely what we said in the White Paper.
Amendment No. 39 is a small drafting amendment consequential on changes made elsewhere. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
Earl De La Warr: My Lords, I should like to thank the Government for all the help they have given on Amendments Nos. 35 and 38, which the noble Lord will remember were hotly debated during the Committee and Report stages.
On Question, Motion agreed to.
COMMONS AMENDMENTS
40 Clause 13, page 12, line 14, leave out from ("schedules") to ("schedules") in line 16 and insert ("then, so far as relating to that television broadcasting service, the duty in subsection (1) above shall be subject to the limitation in whichever of subsections (2A) and (2B) below is applicable.
(2A) Where the programmes contained in one of the programme schedules are broadcast for reception in a greater part of the area than the programmes contained in the other schedule or any of the other schedules, the said duty so far as so relating shall extend only to the programmes contained in the first-mentioned schedule.
(2B) Where subsection (2A) above does not apply, the said duty so far as so relating shall extend only to the programmes contained in such one of the programme")
41 Page 12, line 17, after ("service") insert ("or additional teletext service")
42 Page 12, line 21, leave out second ("the ") and insert ("that")
43 Page 12, line 22, leave out ("DBS programme") and insert ("programme or teletext")
44 Page 12, leave out lines 35 and 36 and insert—
(" "additonal teletext service", in relation to a broadcasting authority, means a teletext service (other than a DBS service) which is additional to those already provided by that authority;")
45 Page 12, line 39, at end insert—
(" "programme" includes a teletext transmission")
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 40 to 45 en bloc. I think that it will also be for the convenience of your Lordships if at the same time I speak to Amendments Nos. 64 to 70.
Amendments Nos. 64 to 70:
64 Clause 24, page 22, line 4, leave out ("made for reception in any area")
65 Page 22, line 7, leave out ("provided in that area") and insert—

("(a) if the programme is so included in pursuance of a requirement imposed under subsection (1) of section 13 of the Cable and Broadcasting Act 1984; or

(b) where the broadcast is made otherwise than in a DBS service (as defined in subsection (4) of that section) or an additional teletext service (as so defined), if and to the extent that it is made for reception in the area in which the cable programme service is provided."

(3A) After section 27A of that Act there shall be inserted the following section—
"Exercise of jurisdiction of tribunal in relation to inclusion of broadcasts in cable programmes.
27B.—(1) On a reference to the tribunal under this Part of this Act relating to licences to broadcast works or sound recordings for reception in any area, the tribunal shall exercise its powers under this Part of this Act so as to secure that the charges payable for the licences adequately reflect the extent to which the works or recordings will be included, in pursuance of requirements imposed under section 13(1) of the Cable and Broadcasting Act 1984, in cable programme services provided in areas parts of which fall outside that area.
(2) The preceding subsection shall have effect, with the necessary modifications, in relation to applications under this Part of this Act as it has effect in relation to references thereunder." ").
66 Page 22, line 11, leave out ("subsection") and insert ("subsections").
67 Page 22, line 13, leave out ("for reception in any area").
68 Page 22, line 14, after second ("broadcast") insert ("then, subject to subsection (3A) below,").
69 Page 22, line 17, leave out ("provided in that area").
70 Page 22, line 25, at end insert—
("(3A) Subsection (3) above applies only—

(a) if the programme is included in the service in pursuance of a requirement imposed under section 13(1) of the Cable and Broadcasting Act 1984; or

(b) if and to the extent that the broadcast is made for reception in the area in which the service is provided." ").

These 13 interrelated amendments all concern the relay of BBC and IBA broadcasts over cable. They make some adjustments to the must-carry rule and to the copyright liability of cable operators, with a view to securing three particular objectives.
First, they clarify the operation of the must-carry rule and of copyright law where a cable operator straddles the service area of two broadcast transmitters; secondly, they ensure that the must-carry rule can operate effectively in the case of broadcast services which are provided on a subscription basis; thirdly, they give the broadcaster copyright protection against the unauthorised relay of his DBS or subscription teletext service.
The third of these changes is made in fulfilment of an undertaking which I gave to the noble Lord, Lord Howard of Henderskelfe, at Report stage on 1st March. If your Lordships wish me to dilate on any of those three aspects, I should be happy to do so, but otherwise I shall simply say, I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
46 Clause 14, page, 12, line 42, after ("includes") insert ("the whole or any part of").
47 Page 13, line 12, leave out second ("a") and insert ("the whole or any part of a listed or").
48 Page 13, line 25, leave out ("which it is the practice of a broadcasting authority to broadcast") and insert ("the whole or any part of which—

(a) it was at the commencement of this section the practice of a broadcasting authority to broadcast; and

(b) but for the acquisition of rights to include the whole or any part of events in that series in licensed services, it would still be the practice of that authority to broadcast; and for the purposes of this subsection anything broadcast by either of the broadcasting authorities shall be treated as broadcast by each of them").

49 Page 13, line 34, at end insert ("the whole or any part of").
50 Page 13, line 36, leave out ("that event") and insert ("the original recording was made").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 46 to 50 en bloc.
We did much to improve Clause 14 in Committee and on Report, but our work was incomplete. This group of amendments to the clause does I think improve the drafting further and put to rest some of the anxieties that your Lordships expressed when we last debated this part of the Bill.
Amendment No. 46 makes it clear that the protection offered to the broadcasters in respect of listed events applies to the whole event or any part of it. This is necessary because in the case of large events, such as Wimbledon, the Olympic Games, or the World Cup Final, it could be argued that a particular match or contest was not actually "the event" and was not therefore safeguarded. The same formula of
"the whole or any part of"
appears in Amendment No. 47. This makes it clear that listed events may not be shown on cable, on payper-view terms, or on cinema relay; in most cases, listed events will be protected events also. However, it may conceivably happen that some new events will in the future become worthy of inclusion on the list of great national events, and without this amendment they would not benefit from the pay-per-view protection because of the new definition of protected events in Amendment No. 48, to which I now turn.
Amendment No. 48 is at the heart of this group of amendments and is the most complex of them. When we looked again at the previous definition of protected event we found that it had a significant loophole. As the definition referred to what it is the practice of the broadcasters to show, it left it open to the cable companies to argue that that protection would fall away immediately the broadcasters were outbid for the rights. In other words, cable could bid over the odds for the rights in the certain knowledge that it could resort to pay-per-view as soon as the deal had been clinched and it was no longer the practice of the broadcasters, who had been outbid, to show the event. This would have made the protection inoperable.
There are two limbs to the new definition. The first provides that an event will be protected where it is the broadcasters practice to show it before the Act comes into force; this gets over the difficulty of the phrase,
"is the practice of the broadcasters".
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The second limb provides that it would still be the practice of the broadcasters to show the event but for the acquisition of the rights by cable; this is designed for the cases where the broadcasters genuinely lose interest in showing the event for some reason other than that pay-per-view has bid up the cost too much. I hope I have said enough to persuade your Lordships that the new definition of protected event is a distinct improvement on the old. It has one further advantage, that of flexibility.
One final point. In our Report stage discussions of this clause I made it clear that the 24-hour protection under subsection (5) would run from the moment that the action was first recorded, and not from the end of the whole event. I cited the example of the Test Match, where cable could show the first day's highlights on the second day. Although, as I made clear, this was our understanding of the subsection as drafted, by means of Amendments Nos. 49 and 50 we propose to put the issue beyond doubt, which I think is what your Lordships wanted. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
Lord Howard of Henderskelfe: My Lords, I want merely to thank the noble Lord, Lord Elton, for further improving this situation. We had a great deal of difficulty over it. First of all, I fear that those of us who know something about the subject had quite a lot of difficulty in teaching some of our fellows as to what it was all about—including the noble Lord, Lord Elton, who knew clearly what it was all about! The noble Lord has been of considerable assistance. Although I would not say this for the whole of the Bill, I think we have ended up with a greatly improved collection of words on this very knotty problem. I should like to thank the noble Lord for all the personal effort he has put into getting it right.
Lord Winstanley: My Lords, I am not satisfied that I have fully understood the noble Lord. In general I agree with the noble Lord, but am I right in thinking that the exclusions so far as cable is concerned would apply only if the financial terms on which cable rights were acquired prevented the continued coverage of the protected event by the BBC or the IBA? In other words, would it apply only if they were going to pay over the odds, as it were?
It might well be, for instance, if we take a protected event—clearly Wimbledon might be regarded as a protected event—that neither the BBC nor the IBA cover the whole of it. There are other matches going on at Wimbledon quite apart from those actually broadcast. Would it be open to a cable company to record and show other events which were not used by the BBC or the IBA, provided the financial terms on which they acquired those rights were not such as in any way to affect the BBC or the IBA? I am not clear from the noble Lord's explanation whether I have fully understood the nature of this particular exclusion.
Lord Elton: My Lords, whether the reason for the broadcasters ceasing to cover an event newly acquired by cable is a financial one or a purely programming one—that is, they have lost interest in showing it—will be a matter for the Cable Authority to judge and to

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activate the protection or not, as the case may be. The power is there. It is a matter for judgment.
Earl De La Warr: My Lords, I think that the Government have come close to dealing with what I was asking for at all stages. I also believe that the noble Lord has, by what he has just said, satisfied me on the one point on which I was in doubt, which is what happens when, for various reasons, the broadcasters decide not to broadcast something for which cable rights have been acquired.
The noble Lord has said that the authority then has the power to decide why the broadcaster decided not to broadcast. In doing so he has narrowed it further and, in my opinion, brought us even closer together. I have no complaint therefore because, as he might have said, but did not, it is always open to the cable operator to use the item on a non-pay-per-view basis, and so I am happy. I hope I have not embarrassed the noble Lord in what I have said.
Lord Elton: My Lords, I revel in the gratitude and approval of my noble friends, particularly when they get it right, which my noble friend has done yet again.
On Question, Motion agreed to.
COMMONS AMENDMENT
51 Clause 15, leave out Clause 15.
8.27 p.m.
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 51, and to speak also to Amendments Nos. 78, 79 and 140.
78 After Clause 28, insert the following new Clause:
("Complaints of unjust or unfair treatment etc.
. The Broadcasting Complaints Commission shall also have the function of considering and adjudicating upon complaints of—

(a) unjust or unfair treatment in programmes actually included in a licensed service after the commencement of this section otherwise than by the reception and immediate re-transmission of broadcasts made by a broadcasting authority; or

(b) unwarranted infringement of privacy in, or in connection with the obtaining of material included in, programmes actually so included;

and Part III of the 1981 Act (which relates to that Commission) shall accordingly have effect with the amendments made by Schedule (Amendments of Part III of the 1981 Act) to this Act.")
79 After Clause 28, insert the following new clause:
("Contributions towards costs of Broadcasting Complaints Commission.
.—(1) The Secretary of State shall, for the financial year which includes the commencement of this section and each subsequent financial year, notify to the Authority the total sum which he considers to be the appropriate contribution of persons providing licensed services towards the expenses of the Broadcasting Complaints Commission.
(2) The Authority shall do all that they can to secure that persons providing licensed services make to the Authority in respect of every financial year payments representing what appear to the Authority to be the appropriate contributions of those persons towards meeting the sum notified to the Authority for that year under subsection (1) above.
(3) The payments made to the Authority by virtue of subsection (2) above shall not form part of the revenue of the Authority and, when received by the Authority, shall be paid to the Secretary of State.
(4) All sums received by the Secretary of State under subsection (3) above shall be paid into the Consolidated Fund.")
140 After Schedule 1, insert the following new schedule—
("AMENDMENTS OF PART III OF 1981 ACT
Section (Complaints of unjust or unfair treatment etc.)
1. In section 53(3) of the 1981 Act (disqualification for membership of Broadcasting Complaints Commission) after the words "the IBA", in the first place where they occur, there shall be inserted the words "or the Cable Authority" and for the words from "the preparation" to the end there shall be substituted the words—

"(i) the preparation or provision of programmes for broadcasting by the BBC or the IBA (including, in the case of the IBA, programmes consisting of advertisements); and

(ii) the provision of a licensed cable programme service or the preparation or provision of programmes for inclusion in such a service."

2.—(1) For paragraph (b) of subsection (1) of section 54 of that Act (functions of Commission) there shall be substituted the following paragraphs—

"(b) unjust or unfair treatment in programmes actually included in a licensed cable programme service after the commencement of section (Complaints of unjust or unfair treatment etc.) of the Cable and Broadcasting Act 1984 otherwise than by the reception and immediate re-transmission of broadcasts made by a broadcasting body; or

(c) unwarranted infringement of privacy in, or in connection with the obtaining of material included in, sound or television programmes actually so broadcast or programmes actually so included."

(2) For the definitions of "complaint" and "participant" in subsection (3) of that section there shall be substituted the following definitions—
" "broadcasting complaint" means a complaint in the case of which the relevant programme was broadcast by a broadcasting body;
"cable programme complaint" means a complaint in the case of which the relevant programme was included in a licensed cable programme service otherwise than by the reception and immediate retransmission of broadcasts made by a broadcasting body;
"complaint" means a complaint to the Commission of any such unjust or unfair treatment or unwarranted infringement of privacy as is mentioned in subsection (1);
"participant", in relation to a programme, means a person who appeared, or whose voice was heard, in the programme:"
3.—(1) In subsection (4) of section 55 of that Act (making and entertaining of complaints) after the words "relevant programme" there shall be inserted the words "or its inclusion in a licensed cable programme service".
(2) At the end of subsection (5) of that section there shall be added the words "or included in a licensed cable programme service."
(3) In subsection (6) of that section after the word "broadcast" there shall be inserted the words "or included in a licensed cable programme service."
4.—(1) For paragraphs (b) and (c) of subsection (2) of section 56 of that Act (consideration of complaints) there shall be substituted the following paragraphs—

"(b) in the case of a broadcasting complaint, the broadcasting body by whom the relevant programme was broadcast;

(c) in the case of a cable programme complaint, the Cable Authority and every person providing a licensed cable programme service in which the relevant programme was included; and

(d) in either case, any person not falling within the foregoing paragraphs who appears to the Commission to have been responsible for the making or provision of the relevant programme."

(2) For subsection (3) of that section there shall be substituted the following subsection—
"(3) Before they proceed to consider a complaint the Commission shall—

(a) in the case of a broadcasting complaint, send a copy of it to the broadcasting body by whom the relevant programme was broadcast; and

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(b) in the case of a cable programme complaint, send a copy of it to the Cable Authority."

(3) In subsection (4) of that section after the words "broadcasting body" there shall be inserted the words "or the Cable Authority" and after the words "that body", in each place where they occur, there shall be inserted the words "or Authority".").
(4) For subsections (5) and (6) of that section there shall be substituted the following subsections—
"(5) Where a broadcasting body or the Cable Authority receive from the Commission a copy of a complaint, it shall be the duty of that body or Authority, if so required by the Commission, to arrange for one or more of the governors, members or officers of that body or Authority to attend and assist the Commission in their consideration of the complaint.
(6) Where a broadcasting body or the Cable Authority receive from the Commission a copy of a complaint and, in connection with the complaint, the Commission make to any person (other than that body or Authority) a request to which this subsection applies, it shall be the duty of that body or Authority to take such steps as they reasonably can to ensure that the request is complied with."
5.—(1) In subsection (1) of section 57 of that Act (publication of Commission's findings) for the words from "to the broadcasting body" to "so specified" there shall be substituted the words "directions requiring the publications, in any manner specified in the directions and within such period as may be so specified, of".
(2) For subsection (2) of that section there shall be substituted the following subsections—
"(2) Directions under subsection (1) shall, in the case of a broadcasting complaint, be given to the broadcasting body by whom the relevant programme was broadcast; and it shall be the duty of a broadcasting body to comply with any directions so given.
(2A) Directions under subsection (1) shall, in the case of a cable programme complaint, be given to every person providing a licensed cable programme service in which the relevant programme was included; and it shall be the duty of the Cable Authority to take such steps as they reasonably can to ensure that any directions so given are complied with."
(3) In subsection (5) of that section for the words "or programme contractor" there shall be substituted the words ", programme contractor or person providing a licensed cable programme service".
6.—(1) In section 58 of that Act (duty to publicise Commission) for the word "complaints" there shall be substituted the words "broadcasting complaints".
(2) That section as so amended shall be renumbered as subsection (1) of that section and after that provision as so renumbered there shall be inserted the following subsection—
"(2) It shall be the duty of the Cable Authority to take such steps as they reasonably can to secure the publication (by means of licensed cable programme services or otherwise) of regular announcements publicising the Commission and their function of considering and adjudicating upon cable programme complaints."
7. At the end of section 59(3) of that Act (annual report of Commission) there shall be added the words "and to the Cable Authority and every person providing a licensed cable programme service".")
When the Bill was before this House, it was your Lordships' clearly expressed view that complaints about unjust or unfair treatment, or unwarranted infringement of privacy in cable programmes should be dealt with by the Broadcasting Complaints Commission and not the Cable Authority. That was not our initial view, but having considered your Lordships' views on the matter, we accepted them, and I gave an assurance at Third Reading that amendments would be made in another place to
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transfer responsibility for this matter to the Broadcasting Complaints Commission. These amendments give effect to that undertaking, and I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
Lord Mishcon: My Lords, no one else will remember the speech I made in favour of the Broadcasting Complaints Authority being the proper tribunal. I wanted to say merely that I remembered it.
Lord Howard of Henderskelfe: My Lords, if I remember rightly, this was one of the amendments in which I was associated with the noble Lord. I am delighted that the Government have seen sense on this matter and that we have one body who will establish their own precedents and deal with these extremely difficult questions of unfairness and so on.
Lord Winstanley: My Lords, lest there should be any doubt, we are all delighted.
Lord Elton: My Lords, may I say thank you to all noble Lords who said "thank you", and may I be excused from saying it in future and not thereby deter your Lordships from saying "thank you" whenever you feel like it?
On Question, Motion agreed to.
COMMONS AMENDMENT
52 Clause 17, page 16, line 33, leave out from beginning to ("Act") in line 34 and insert ("Expressions used in this section which are also used in the 1956 Act have the same meanings as in that").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 52. With your Lordships' leave I will speak also to Amendments Nos. 55–58 inclusive, 60, 63, 71 and 72, 95 and 155, since they all make minor adjustments to the provisions of the Bill relating to copyright.
COMMONS AMENDMENTS
55 Clause 23, page 19, line 13, after ("every") insert ("cable").
56 Page 19, line 14, leave out from ("included") to ("in") in line 15.
57 Page 19, line 18, leave out from ("extends") to end of line 20.
58 Page 21, line 32, leave out ("has the meaning given by subsection (1) of this section") and insert ("means a programme which is included, after the commencement of section 23 of the Cable and Broadcasting Act 1984, in a cable programme service;").
60 Page 21, line 35, leave out from first ("of") to end of line 38 and insert ("the said Act of 1984 or a service provided outside the United Kingdom which would be such a service if subsection (7) of section 2 of that Act and references in subsection (1) of that section").
63 Clause 24, page 21, leave out lines 40 to 42.
71 Page 22, leave out from beginning of line 26 to end of line 13 on page 23.
72 After Clause 24, insert the following new Clause—
("Inclusion of sound recordings and cinematograph films in cable programmes.
.—(1) At the end of paragraph (c) of section 12(5) of the 1956 Act (copyright in sound recordings) there shall be added the words "or including it in a cable programme."
(2) In section 13(5) of that Act (copyright in cinematograph films) for paragraph (d) there shall be substituted the following paragraph—

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"(d) including the film in a cable programme."
(3) After section 40 of that Act there shall be inserted the following section—
"Inclusion of sound recordings and cinematograph films in cable programmes.
40A.—(1) Where a cable programme is sent and a person, by the reception of that programme, causes a sound recording to be heard in public, he does not thereby infringe the copyright (if any) in that recording under section 12 of this Act.
(2) Where a cable programme is sent and the programme is an authorised programme, any person who, by the reception of the programme, causes a cinematograph film to be seen or heard in public shall be in the like position, in any proceedings for infringement of copyright (if any) in the film under section 13 of this Act as if he had been the holder of a licence granted by the owner of that copyright to cause the film to be seen or heard in public by the reception of the programme.
(3) If, in the circumstances mentioned in the last preceding subsection, a person causing a cinematograph film to be seen or heard infringes the copyright in the film by reason that the cable programme was not an authorised programme—

(a) no proceedings shall be brought against that person under this Act in respect of his infringement of that copyright, but

(b) it shall be taken into account in assessing damages in any proceedings against the person sending the programme, in so far as that copyright was infringed by him in sending the programme.

(4) For the purposes of this section, a cable programme shall be taken, in relation to a cinematograph film, to be an authorised programme if, but only if, it is sent by, or with the licence of, the owner of the copyright in the film." ").
95 Clause 33, page 30, line 19, leave out from beginning to ("Act") in line 20 and insert ("Expressions used in this section which are also used in the 1956 Act have the same meanings as in that").
155 Schedule 2, page 40, leave out lines 24 to 26.
Amendments Nos. 52 and 95 are technical amendments to remedy a minor deficiency in the Bill as originally drafted. They ensure that the terminology used in Clause 17(4) and Clause 13(2) is the same as that which appears in the Copyright Act 1956. Amendments Nos. 55 to 58 are also technical ones to correct an unintended effect of the drafting of the Bill's copyright provisions drawn to our attention by the British Copyright Council. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
Lord Howard of Henderskelfe: My Lords, I do not want to delay your Lordships unduly, but I merely enter a caveat that I do not think that the matter is as easy as that. I think we shall run into further problems on copyright in the future, and some very difficult ones indeed. I merely enter that caveat so that it should go down on the record.
Lord Mishcon: My Lords, in view of that intervention, I would add that I am sure I am not alone in having representations made to me by the association which is responsible for the protection of copyright. The association is rather unhappy that the position it put forward has not been completely covered. There is nothing we can do about it at this stage except, as the noble Lord, Lord Howard, has done, to put that situation on the record.
On Question, Motion agreed to.
COMMONS AMENDMENTS
53 Clause 21, page 18, line 15, leave out ("and a person shall not be qualified to be so appointed") and insert—
("(2A) A person shall not be qualified to be appointed as an auditor in pursuance of subsection (2) above").
54 Page 18, line 26, at end insert ("but a Scottish firm may be so appointed if each of the partners in the firm is qualified to be so appointed").
Lord Elton: My Lords, I beg to move that the House doth agree with the Commons in Amendments Nos. 53 and 54. It may be for your Lordships' convenience if I speak also to Amendments Nos. 89 to 94 inclusive, 218 and 222.
89 Clause 31, page 28, line 37, leave out ("an offence under section 25 or 27 above") and insert ("a relevant offence").
90 Page 29, line 7, after ("below") insert—
(""relevant offence" means an offence under section 27 above or—

(a) in relation to England and Wales and Northern Ireland, an offence under section 25 above; or

(b) in relation to Scotland, an offence under section 51 of the Civic Government (Scotland) Act 1982; "").

91 Clause 32, page 29, line 14, leave out ("an offence under section 25 or 27 above") and insert ("a relevant offence").
92 Page 29, line 17, leave out .("an offence under the said section") and insert ("a relevant offence").
93 Page 29, line 23, leave out ("police officer") and insert ("person").
94 Page 30, line 5, at end insert—
("(6) In the application of this section to Scotland, for the reference to a police officer of or above the rank of superintendent having reasonable grounds there shall be substituted a reference to the procurator fiscal being satisfied, on receiving a report from a police officer, that there are reasonable grounds")
218 Schedule 2, page 51, line 34, at end, insert—
("(5A) For subsection (2) of section 42 of that Act (accounts and audit) there shall be substituted the following subsections—
"(2) The accounts of the Authority shall be audited by auditors to be appointed by the Authority with the approval of the Secretary of State.
(2A) A person shall not be qualified to be appointed as an auditor in pursuance of subsection (2) above unless he is a member of one or more of the following bodies—
the Institute of Chartered Accountants in England and Wales;

the Institute of Chartered Accountants of Scotland;

the Association of Certified Accountants;

the Institute of Chartered Accountants in Ireland;

any other body of accountants established in the United Kingdom and for the time being recognised for the purposes of section 161(1)(a) of the Companies Act 1948 by the Secretary of State;
but a Scottish firm may be so appointed if each of the partners in the firm is qualified to be so appointed." ").
222 Page 52, line 6, at end, insert—
(" (8) At the end of paragraph 8(2) of Schedule 7 to that Act (the Broadcasting Complaints Commission: supplementary provisons) there shall be inserted the words "but a Scottish firm may be so appointed if each of the partners in the firm is qualified to be so appointed".").
As this is the first of the groups which contains an amendment to page 52 of the Bill, I ought to record that the line numbers on the list of amendments to page 52 do not appear to coincide with the numbering in the printed Bill. The reason for this is that the line numbering in the Bill went astray during the printing of that page. The line numbers in the amendments are correct, however, if one counts from the top of the page and I understand that we need worry no further

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about the problem which will be sorted out by the printers.
These amendments are all technical amendments to certain provisions of the Bill to make sure that they will be able to operate in Scotland. Amendments Nos. 53, 54, 218 and 222 deal with those provisions of the Bill—and indeed the Broadcasting Act 1981—which concern the auditing of accounts. It was drawn to our attention that there were some unintended technical deficiencies in these provisions which could make the appointment of firms of Scottish accountants as auditors to the Cable Authority's accounts impossible. These amendments remedy the situation and make it possible—if the need should arise—for the Cable Authority, the IBA, the new Satellite Broadcasting Board (which we shall be discussing shortly) the Broadcasting Complaints Commission and even the Welsh Fourth Channel Authority to appoint Scottish firms to audit their accounts with absolute lack of nationalism.
Moved, That this House doth agree with the Commons in said amendments. — (Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
55–58 [Printed above col. 1572.]
Lord Elton: My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 55 to 58 en bloc. I have spoken to these amendments already, all of which are consequential on earlier amendments that your Lordships have agreed. I beg to move.
Moved, That this House doth agree with the Commons in said amendments. — (Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
59 Page 21, line 33, leave out ("and").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in Amendment No. 59. With your Lordships' leave I will speak at the same time to an impressive number of other amendments—namely Amendments Nos. 61, 62, 74, 97 to 103 inclusive, 127, 128, 135, 144, 147, 158—
Lord Mishcon: My Lords, No. 148.
Lord Elton: My Lords, 148: your Lordships are as ever absolutely on the ball. Amendments Nos. 150, 151, 153, 156, 157, 165, 170, 175 to 178 inclusive, 181, 195, 198, 200, 202, 203, 205 to 216 inclusive, 219, 224 and 226 to 231 inclusive. If your Lordships lived in the age of steam you would think that that was like the stopping train to Inverness.
61 Clause 23, page 21, line 39, at end insert—
(" 'programme', in relation to a cable programme service, includes any item included in that service".)
62 Page 21, line 39, at end insert—
("(12) The foregoing provisions of this section shall have effect as if references in those provisions and in section 12(9) of this Act to sounds included references to signals serving for the impartation of matter otherwise than in the form of sounds or visual images.")
74 Clause 26, page 24, leave out lines 40 to 44.
97 Clause 35, page 30, line 33, leave out subsection (1).
98 Page 30, leave out lines 37 to 39.
99 Page 31, leave out lines 1 and 2.
100 Page 31, leave out lines 5 and 6.
101 Page 31, leave out lines 27 and 28.
102 Page 31, line 34, leave out subsections (4) and (5).
103 Clause 36. page 32, line 19, leave out from ("the") to end of line 20 and insert ("1981 Act")
127 Clause 43, page 34. line 39, leave out subsection (1).
128 Page 35, leave out line 2.
135 Before Clause 44, insert the following new Clause—
("General interpretation
.—(1) Unless the contrary intention appears, expressions used in this Act which are also used in the 1981 Act have the same meanings as in that Act. —
(2) In this Act and, unless the contrary intention appears, in any enactment amended by this Act—
"the 1981 Act" means the Broadcasting Act 1981;
"the 1984 Act" means the Telecommunications Act 1984;
"cable programme service" has the meaning given by section 2(1) above;
"the IBA's subsidiary" means the subsidiary mentioned in section 12(2) of the 1981 Act;
"licensable cable programme service" has the same meaning as "licensable service" has in Part I of this Act;
"licensed", in relation to a cable programme service, means licensed under section 4 above;
"programme", in relation to a cable programme service, includes any item included in that service;
"standard scale" has the meaning given by section 75 of the Criminal Justice Act 1982;
"statutory maximum" has the meaning given by section 74 of that Act;
"telecommunication service" and "telecommunication system" have the same meanings as in the 1984 Act")
144 Schedule 2, page 39. line 2, leave out ("under Part I of this Act")
147 Page 39, line 22, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984")
148 Page 39, line 28, leave out ("within the meaning of Part I of this Act")
150 Page 39, line 39, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984")
151 Page 39, line 45, leave out ("within the meaning of Part I of this Act")
153 Page 40, line 2, leave out ("Copyright Act 1956") and insert ("1956 Act")
156 Page 40, line 27, leave out ("section 14(10)") and insert ("subsection (10) of section 14")
157 Page 40, line 37. at end insert—
("(8A) After that subsection there shall be inserted the following subsection—
"(11) The foregoing provisions of this section shall have effect as if references in those provisions and in section 12(9) of this Act to sounds included references to signals serving for the impartation of matter otherwise than in the form of sounds or visual images.".")
165 Page 42, line 10, leave out ("and 'cable programme service' ") and insert (", 'cable programme service' and 'programme'.")
170 Page 42, line 44, leave out ("has the same meaning as in the Copyright Act 1956") and insert ("means a cable programme service within the meaning of the said Act of 1984 or a service provided outside the United Kingdom which would be such a service if subsection (7) of section 2 of that Act and references in subsection (1) of that section to the United Kingdom were omitted;".
(4) Also in that subsection after the definition of "performers" there shall be inserted the following definition—
" 'programme', in relation to a cable programme service, includes any item included in that service;".
(5) After subsection (2) of that section there shall be inserted the following subsection—
"(3) Section 48(3) of the Copyright Act 1956 (which explains the meaning of references in that Act to the inclusion of a programme in a cable programme service) shall apply for the purposes of this Act as it applies for the purposes of that Act.".").
175 Page 43, line 18, leave out ("under Part I of the Cable and Broadcasting Act 1984").
176 Page 43, line 28, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
177 Page 43, line 41, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
178 Page 44, line 4, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
181 Page 44, line 25, leave out from ("not") to end of line 26 and insert ("require to be licensed").
195 Page 46, line 31, leave out ("within the meaning of Part I of this Act").
198 Page 46, line 38, leave out ("under Part I of the Cable and Broadcasting Act 1984").
200 Page 46, line 45, leave out ("under Part I of the Cable and Broadcasting Act 1984").
202 Page 47, line 7, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
203 Page 47, line 14, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
205 Page 47, line 20, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
206 Page 47, leave out lines 28 to 31.
207 Page 48, leave out lines 5 to 8.
208 Page 48, leave out lines 31 to 34.
209 Page 49, line 8, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
210 Page 49, line 38, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
211 Page 50, line 7, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
212 Page 50, line 30, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
213 Page 50, line 36, leave out ("under Part I of the Cable ad Broadcasting Act 1984").
214 Page 51, line 5, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
215 Page 51, line 8, leave out ("Broadcasting Act 1981") and insert ("1981 Act").
216 Page 51, line 12, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
219 Page 51, line 34, at end insert—
("(5B) in section 63(1) of that Act (interpretation) after the definition of "local sound broadcast" there shall be inserted the following definition—
"'programme', in relation to a television or sound broadcasting service, includes any item broadcast in that service;".").
224 Page 52, line 13, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
226 Page 52, line 26, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
227 Page 52, line 33, leave out ("under Part I of the Cable and Broadcasting Act 1984").
228 Page 52, line 40, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
229 Page 53, line 2, leave out ("Telecommunications Act 1984") and insert ("1984 Act").
230 Page 53, line 9, leave out ("established under section 1 of the Cable and Broadcasting Act 1984").
231 Page 53, line 14, leave out ("service within the meaning of Part I of the said Act of 1984") and insert ("cable programme service").
My noble friend tells me that I did not say Amendments Nos. 181 to 195.
182 Page 44, line 31, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
183 Page 44, line 38, leave out ("under Part I of the Cable and Broadcasting Act 1984").
184 Page 44, line 47, leave out ("service within the meaning of Part I of the Cable and Broadcasting Act 1984") and insert ("cable programme service").
185 Page 45, line 8, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
186 Page 45, line 13, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
187 Page 45, line 16, leave out ("(1) in subsection (1) of section 58") and insert ("In section 58(1)").
188 Page 45, leave out lines 21 to 25.
189 Page 45, line 31, leave out ("under Part I of the Cable and Broadcasting Act 1984").
190 Page 45, line 38, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
191 Page 45, line 44, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
192 Page 46, line 3, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
193 Page 46, line 13, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
194 Page 46, line 25, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").
Lord Mishcon: My Lords, would the noble Lord consider whether or not he is entitled to an entry in the Guinness Book of Records in this House for speaking to so many amendments at the same time?
Lord Elton: My Lords, it is an agreeable thought that some profit might come to us out of this. The principal aim is to save your Lordships' time.
The rather formidable looking group of amendments deals with two main points, both of which originally arose in your Lordships' House in the context of copyright. The first point was whether the word "programme" extended to fill-in material or to pages of text, and the second point was whether the Bill extended copyright protection to what the noble Lord, Lord Howard of Henderskelfe, termed "data" when it is included in cable programme services or in broadcasts.
When we considered the Bill at an earlier stage, fears were expressed that the word "programme" might be held not to extend to fill-in material or text, and that this might present problems particularly in the field of copyright. I undertook to consider the point. We came to the conclusion that there would be advantage in putting the matter beyond doubt by defining "programme" in relation to a cable programme service, not only for the purpose of Part I of this Bill, but for the enactments amended by the Bill. We have therefore defined a programme as including any item included in the cable programme service. In addition we have defined "programme" in a similar way in relation to broadcasts. This meets a further point which we discussed at an earlier stage when I said that it was certainly our intention that broadcast teletext services should be included in the operation of the must-carry rule and that we would see whether the matter needed to be made any clearer.
So far as "data" is concerned, Amendments 62 and 157 are designed to remedy a deficiency in the

1579
copyright protection afforded to computer software and data where these are included in broadcasts or cable programme services. In doing so they meet a yet further undertaking which I gave in response to an amendment moved by the noble Lord, Lord Howard of Henderskelfe, who taught me much in those passages about the technicalities of this kind of broadcasting. The amendments do not deal with the wider question of copyright protection for computer programmes and data in general. Such questions go far outside the scope of this Bill and must await the following general reform of the copyright legislation. They simply ensure that the copyright protection available to broadcasters and to cable operators
1580
extends both to sounds or visual images included in their services and to any signals which are also included in those services. This means that broadcasters and cable operators alike will be able to sue for infringement if computer programmes and data included in their services are reproduced other than for private purposes.
Finally, this group re-orders some of the Bill's interpretive provisions which I shall not recite. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
60 Page 21, line 35, leave out from first ("or) to end of line 38 and insert ("the said Act of 1984 or a service provided outside the United Kingdom which would be such a service if subsection (7) of section 2 of that Act and references in subsection (1) of that section").
61 Page 21, line 39, at end insert—
(" 'programme', in relation to a cable programme service, includes any item included in that service.")
62 Page 21, line 39, at end insert—
("(12) The foregoing provisions of this section shall have effect as if references in those provisions and in section 12(9) of this Act to sounds included references to signals serving for the impartation of matter otherwise than in the form of sounds or visual images.")
63 Clause 24, page 21, leave out lines 40 to 42.
64 Page 22, line 4, leave out ("made for reception in any area").
65 Page 22, line 7, leave out ("provided in that area") and insert—

("(a) if the programme is so included in pursuance of a requirement imposed under subsection (1) of section 13 of the Cable and Broadcasting Act 1984; or

(b) where the broadcast is made otherwise than in a DBS service (as defined in subsection (4) of that section) or an additional teletext service (as so defined), if and to the extent that it is made for reception in the area in which the cable programme service is provided."

(3A) After section 27A of that Act there shall be inserted the following section—
"Exercise of jurisdiction of tribunal in relation to inclusion of broadcasts in cable programmes.
27B. — (l) On a reference to the tribunal under this Part of this Act relating to licences to broadcast works or sound recordings for reception in any area, the tribunal shall exercise its powers under this Part of this Act so as to secure that the charges payable for the licences adequately reflect the extent to which the works or recordings will be included, in pursuance of requirements imposed under section 13(1) of the Cable and Broadcasting Act 1984, in cable programme services provided in areas parts of which fall outside that area.
(2) The preceding subsection shall have effect, with the necessary modifications, in relation to applications under this Part of this Act as it has effect in relation to references thereunder." ").
66 Page 22, line 11. leave out ("subsection") and insert ("subsections").
67 Page 22, line 13, leave out ("for reception in any area").
68 Page 22, line 14, after second ("broadcast") insert ("then, subject to subsection (3A) below,").
69 Page 22, line 17, leave out ("provided in that area").
70 Page 22, line 25, at end insert—
("(3A) Subsection (3) above applies only—

(a) if the programme is included in the service in pursuance of a requirement imposed under section 13(1) of the Cable and Broadcasting Act 1984; or

(b) if and to the extent that the broadcast is made for reception in the area in which the service is provided." ")

71

[Printed earlier

col. 1572.]

72

[Printed earlier

8.40 p.m.
Lord Elton: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 60. Amendments Nos. 60 to 72 are all consequential upon earlier amendments to which your Lordships have already agreed and I have spoken to them all. I beg to move, therefore, Amendments Nos. 60 to 72 en bloc.
Moved, That this House doth agree with the Commons in the said amendments — (Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
73 Clause 25, page 23, line 17, leave out ("a programme included") and insert ("the inclusion of a programme").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in Amendment No. 73. I think it will be for the convenience of your Lordships if I speak at the same time to Amendments Nos. 171 to 173.
171 Page 43, line 2, leave out sub-paragraph (1) and insert—
("(1) Proceedings for an offence under section 2 of the Obscene Publications Act 1959 (prohibition of publication of obscene matter) for publishing an obscene article—

(a) shall not be instituted in any case where the relevant publication took place in the course of including a programme in a cable programme service; and

(b) shall not be instituted except by or with the consent of the Director of Public Prosecutions in any case where the only other publication which followed from the relevant publication took place in the course of including a programme in such a service;

and in this sub-paragraph "the relevant publication" means the publication in respect of which the defendant would be charged if the proceedings were brought.").
172 Page 43, line 10, leave out from first ("of") to ("to") in line 11 and insert ("that section")
173 Page 43, line 12, at end insert—
("(3) Proceedings for an offence under that section for having an obscene article for publication for gain shall not be instituted except by or with the consent of the Director of Public Prosecutions in any case where the relevant publication or the only other publication which could reasonably have been expected to follow from the relevant publication was to take place in the course of including a programme in a cable programme service; and in this sub-paragraph "the relevant publication" means the publication which, if the proceedings were brought, the defendant would be alleged to have had in contemplation.
(4) Without prejudice to the duty of a court to make an order for the forfeiture of an article under section 1(4) of the Obscene Publications Act 1964 (orders for conviction), in a case where by virtue of sub-paragraph (3) above proceedings under the said section 2 for having an article for publication for gain could not be instituted except by or with the consent of the Director of Public Prosecutions, no order for the forfeiture of the article shall be made under section 3 of the said Act of 1959 (power of search and seizure) unless the warrant under which the article was seized was issued on an information laid by or on behalf of the Director of Public Prosecutions.
(5) In this paragraph expressions used in the said Act of 1959 have the same meanings as in that Act.").
Your Lordships may recall that when we considered the Bill on Report, we carried out some fairly drastic surgery in form, although not in substance, to the Bill's provisions on obscenity. The object of the exercise was to attract the important enforcement provisions in Clauses 31 and 32 to the main offence of distributing an obscene cable programme. This group of amendments deals with three separate technical points which arose from our amendments at that stage. The first, which is dealt with by Amendment No. 73, was that there was a very minor drafting defect in Clause 25(1). The second is a drafting matter also. It appeared that there was a possible circularity in drafting which we have cured. The third, which is taken care of by the remaining amendments in this group, is slightly more substantial.
When we first considered the Bill, the position was that prosecutions for any cable-related obscenity offence could be brought only by or with the consent of the Director of Public Prosecutions. This was

1583
always our intention and is still the case under Clause 25 for the main offence of distributing an obscene programme by cable. However, the group of amendments which we made in this House on Report accidentally removed the consent provision for the ancillary offences which are in the 1959 Act, as amended by this Bill, of having an obscene cable programme for publication for gain and of distributing an obscene cable programme to a cable operator rather than to the public. These amendments do no more than put the matter right by restoring the necessary consent provisions. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
74 [Printed earlier: col. 1575.]
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 74. I have spoken to this. It is consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
75 Clause 28, page 27, line 8, leave out second ("the").
76 line 17, leave out ("under this Part")
77 line 21, leave out ("distribution or presentation") insert ("inclusion")
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 75 to 77, and, with your Lordships' leave, I shall speak also to Amendments Nos. 236 and 240.
236 Schedule 3, page 54, line 15, at end insert—
("1969 c. 48. The Post Office Act 1969. In Schedule 4, paragraph 53.")
240 line 36, column 3, at end insert—
("In Schedule 4, paragraphs 30 and 32.")
These amendments all make technical adjustments to the Bill's provisions on defamation. Amendments Nos. 75, 76 and 77 do no more than improve the drafting of Clause 28 in minor respects. Amendments Nos. 236 and 240 and part of Amendment No. 235—to which I shall be speaking separately, since it covers some other matters as well—repeal some dead wood from the defamation legislation itself and provisions which have amended it.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMENCE AMENDMENTS

78

[Printed earlier

col.1569.]

79

[Printed earlier

Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 78 and 79. They are consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
80 Clause 29, page 27, line 28, leave out ("diffusion service") and insert ("service to which this section applies which is")
81 line 34, leave out ("diffusion service") and insert ("service to which this section applies")
82 line 36, leave out ("the diffusion") and insert ("that").
83 line 38, at end insert—
("(2) This section applies to any cable programme service and any service which would be such a service if subsection (7) of section 2 above were omitted.")
84 line 39, leave out subsection (2).
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 80 to 84 inclusive.
These amendments are designed to improve the drafting of the Bill and to remove any undue complexity in the inter-relationship between the Bill and the Wireless Telegraphy Act 1949. It seems too technical to go into further details, but I am prepared to do so if necessary.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
85 Clause 30, page 28, line 6, after ("committed") insert ("on any premises specified in the information").
86 line 8, leave out ("any premises specified in the information") and insert ("those premises").
87 line 10, leave out ("Secretary of State") and insert ("Authority").
88 line 19, leave out from first ("of") to ("shall") in line 22 and insert ("any legal proceedings or of a report of any such proceedings, any information obtained by means of an exercise of powers conferred by this section").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 85 to 88 inclusive. This group of amendments deals with the powers of entry and search, in relation to offences of unlicensed cable activity, in Clause 30 of the Bill. The first two arise from a point which was put to my right honourable friend in another place. The point was that, as drafted, the powers might go rather wide in that they could, in theory, leave open the possibility that a magistrate might authorise the entry into and search of any premises where evidence of pirate cable activity was likely to be found. In practice, that evidence is almost always likely to be found on the premises where the unlawful activity is taking place, and it is thus unlikely in practice that the powers could be used against third parties. Nevertheless, on looking at the point my right honourable friend agreed that it was right to make it clear by these amendments that the powers of entry and search can be exercised only on the premises from which the unlawful services are being provided.
Amendment No. 87 is technical. Amendment No. 88 meets a further point which was first raised by the Law Society and discussed in another place. It was argued that the offence of disclosing information obtained during the exercise of powers of entry and

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search under this clause should be extended to cover all information disclosed, whether it related to a manufacturing process or trade secret—as under the clause in its present form—or to other matters, such as information of a commercial nature. The Government decided to accept the case for the extension and this amendment has the effect of broadening the offence in that way, while preserving a safeguard for disclosure for the purpose of legal proceedings or reports of such proceedings. That means, for example, that if while searching premises for a cable offence a person came upon evidence of the commission of an unrelated crime he would be able to report the matter to the police without falling foul of subsection (3) of Clause 30.
Moved, That this House doth agree with the Commons in the said amendments—(Lord Elton.)
Lord Mishcon: My Lords, the gratitude of the Law Society was not expressed in another place. May I express this in your Lordships' House.
On Question, Motion agreed to.
COMMONS AMENDMENTS
89–95 [Printed earlier: cols. 1574 and 1573.]
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 89 to 95. They are consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
96 Leave out Clause 34.
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 96. I think it will be to your Lordships' convenience if I speak also to Amendment No. 134.
134 Before Clause 44, insert the following new clause:
("Offences by bodies corporate.
.—(1) Where a body corporate is guilty of an offence under this act and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(2) Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.")
These two amendments do no more than to transpose the clause dealing with offences by bodies corporate from its present place in Part I of the Bill to Part III, where it will apply to all the offence provisions in the Bill and not just to those in Part I. Originally, all of the offence provisions of the Bill were, in fact, in Part I, but I shall in a moment be moving that we agree with the Commons in two separate new clauses containing offences, one of which will go into Part II and one into Part III. It is therefore necessary for the provision dealing with offences by bodies corporate to
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apply to all three parts of the Bill. That is what the amendments achieve.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
97–103 [Printed earlier: col. 1576.]
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 97 to 103 inclusive. They are consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments— (Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
104 Clause 36, page 33, line 2, at end insert—
(" "DBS teletext contractor" means a person whose contract as a teletext contractor gives him the right and duty to provide material for inclusion in teletext transmissions broadcast in a DBS service.")
105 Clause 38, page 33, line 14, after ("programme") insert ("or teletext")
106 line 16, after ("him") insert ("or transmissions containing material so provided")
107 line 17, leave out ("transmit the programmes") and insert ("broadcast the programmes or transmissions")
108 line 21, leave out from ("Where") to ("nothing") in line 22 and insert ("under the power conferred by subsection (1) above the IBA broadcast programmes or transmissions in such a form as is mentioned in that subsection")
109 line 24, at end insert ("or transmissions")
110 Clause 39, page 33, line 36, after first ("contractors") insert ("(other than DBS teletext contractors)")
111 line 37, at beginning insert ("only in relation to persons who are DBS teletext contractors but are not TV or DBS programme contractors; or
(v)")
112 line 38, leave out ("and (iii)") and insert ("(iii) and (iv)")
113 leave out from beginning of line 39 to end of line 2 on page 34.
114 Page 34, line 5, after ("to") insert ("(a)")
115 line 7, after ("contractors)") insert ("or (b) persons who are DBS teletext contractors.")
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 104 to 115 inclusive, and to speak also to Amendments Nos. 123A, 130, 217, 220 and 221.
123A After Clause 41, insert the following new clause:
"Provision of additional teletext services.
.—(1) If the IBA provide additional teletext services, then, for the purpose of enabling a teletext contractor to make charges for the reception of transmissions containing material provided by him and broadcast in such a service, the IBA may, notwithstanding anything in the 1981 Act, broadcast the transmissions in such a form (whether scrambled, encoded or otherwise) as will prevent any person from receiving them unless he obtains from the contractor the means of doing so.
(2) In this section and in the 1981 Act" additional teletext service" means a teletext service (other than a DBS service) which is additional to those already provided by the IBA under the 1981 Act.")
130 Clause 43, page 35, line 3, leave out ("and "DBS programme contractor" ") and insert (" "DBS programme contractor" and "DBS teletext contractor" ")
217 Schedule 2, page 51, leave out lines 29 to 34.
220 leave out lines 35 to 39 and insert—
("(6) After paragraph 1 of Schedule 4 to that Act (rental payments) there shall be inserted the following paragraph—
" 1A. In the principal sections (other than section 33(1)) and the following provisions of this Schedule references to advertising receipts—
(a) in relation to a DBS programme contractor, and in relation to any period, include references to payments received or to be received by that contractor in respect of charges made for the reception of
221 line 46, at end, insert—
("(bb) in sub-paragraph (7) for the words "the provisions of paragraph 1" there shall be substituted the words "the foregoing provisions of this Schedule"; and")
The heart of the group is the new clause in Amendment 123A which arises out of a request made recently to us by the IBA to provide them with powers to offer new services on teletext. They are thinking, in particular, of providing new information services on a subscription basis to specialist occupational or professional groups, such as doctors or farmers. We agreed that we should take the opportunity provided by the Bill, even at a very late stage, to make this small but useful addition to the IBA's powers. Amendment No. 123A would therefore enable the IBA to provide additional teletext services in encoded form so that a subscription can be charged for them. The provision does not apply to existing IBA teletext services which will continue to be provided free of charge to those who have teletext receivers.
Nor does it apply to any DBS teletext services provided by the IBA, since it is right that these should be subject to the provisions for DBS services as a whole rather than those which apply to terrestrial teletext services. So far as DBS is concerned, the IBA will have the power to provide DBS teletext services should they so choose. These will be on all fours with the DBS programme services, and thus should have a contract life of 12 years and be subject to the levy provisions that apply to DBS. The amendments therefore to Clauses 36, 38, 39 and 43 are technical amendments to define a DBS teletext contractor, provide that DBS teletext services may be broadcast in an encoded form so that a subscription can be charged, and bring them within the ambit of the levy arrangements proposed for the IBA's DBS services as a whole. Amendment No. 220 brings the definition of a DBS contractor's subscription income for levy purposes into line with the definition of advertising receipts which appears in paragraph 1 of Schedule 4 to the Broadcasting Act 1981.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
116 Clause 40, page 34, line 10, leave out from beginning to end of line 13 and insert ("For the purposes of this section").
117 leave out line 19 and insert ("shall be regarded as separate parts of that branch.
(1A) Except in so far as the Secretary of State on the application of the IBA otherwise directs, for each part of the television branch of their undertaking, it shall be the duty of the IBA so to conduct their affairs as to secure that their revenues from that part become at the earliest possible date, and thereafter continue, at least sufficient—
1588

(a) to meet all sums properly chargeable to revenue account in respect of that part of that branch (including sums which, for the purposes of that part, are required for the repayment of loans and interest thereon, for provision for depreciation and for the maintenance of so much of the reserve fund for that branch as is attributable to that part); and

(b) to make provision towards, and as soon as practicable for, necessary capital expenditure for the purposes of that part of that branch.").

118 leave out lines 24 and 25.
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 116 to 118 inclusive. Perhaps I may speak also to Amendment No. 139.
139 Clause 46, page 35, line 32, leave out ("Subject to section 40(4)").
The four amendments in this group make minor adjustments to Clause 40 which provides for the way DBS services are to be incorporated into the IBA's finances. The IBA's DBS service is to form part of their television branch. The Government's intention, shared by the IBA, is that within that branch the DBS service must be self-financing. There can be no cross-subsidy between the DBS and ITV, save with the consent of the Secretary of State. Under subsections (2) and (3) that consent would take the form of a direction which must be laid before Parliament. These amendments do not alter that basic framework; they make only two changes. The first two amendments are designed to make it clear that the IBA need not establish a separate reserve fund within television branch for the DBS service: there will still continue to be one reserve fund for the television branch, but the DBS service must contribute to it.
The third amendment, deleting subsection (4), makes it clear that the IBA's DBS service must be self-financing, not from the first day of broadcasting, but from the outset. The IBA's start up costs on DBS will not be paid for by ITV, but will have to be recovered from the first DBS contractors. This may require a direction from the Secretary of State authorising the IBA to cover their initial deficit on the DBS service by borrowing from the terrestrial television services until the first DBS contractors are appointed and are paying rental. Such a direction could not, of course, be made until the IBA receive their DBS powers and this clause is brought into force. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton).
On Question, Motion agreed to.
COMMONS AMENDMENTS
119 After Clause 40, insert the following new clause:
The Board
("The Satellite Broadcasting Board
. — (l) There shall be a Board to be called the Satellite Broadcasting Board (in this Part referred to as "the Board") whose function it shall be to provide, by means of the said technique known as direct broadcasting by atellite or DBS, television broadcasting services of high quality (both as to the transmission and as to the matter transmitted) for he United Kingdom, the Isle of Man and the Channel Islands.
(2) The Board shall consist of six members, of whom three shall be appointed from among the governors of the BBC and three from among the members of the IBA.
(3) It shall be the duty of the BBC and the IBA to supply to the Board (on commercial terms) such services as the Board may reasonably require.
(4) The Board, unless previously dissolved, shall cease to function at the end of the period of ten years beginning with the day on which the Board begin to provide their first television broadcasting service.
(5) Schedule (The Board: supplementary provisions) to this Act shall have effect with respect to the Board.").
120 After Clause 40 insert the following new clause:
("Provision of programmes
.—(1) Without prejudice to the powers conferred on the Board by this Part, the programmes broadcast by the Board shall be provided not by the Board but by a person (in this Part referred to as "the programme provider") who—

(a) is approved for the purposes of this section by the Secretary of State after consultation with the IBA; and

(b) under a contract with the Board, has the right and the duty to provide programmes to be broadcast by the Board, which may include advertisements.

(2) The Secretary of State may after consultation with the Board withdraw an approval under this section if a relevant change takes place which, if it had occurred before the giving of the approval, would have induced the Secretary of State to refrain from giving the approval.
(3) The Board shall do all that they can to secure that—

(a) no person who is a disqualified person, and no body corporate over which a disqualified person has control, becomes or continues as the programme provider (whether alone or in partnership); and

(b) no body corporate in which a disqualified person participates becomes or continues as the sole programme provider.

(4) The contract between the Board and the programme provider shall—

(a) contain all such provisions as the Board think necessary or expedient to ensure that the financial and other arrangements for the provision of the satellite transponder are made by the programme provider; and

(b) provide for the payment by the programme provider to the Board of such sums as the Board consider appropriate for enabling them to meet their reasonable outgoings.

(5) For the purpose of enabling the programme provider to make charges for the reception of programmes provided by him, the Board may, notwithstanding anything in this Part, transmit the programmes in such a form (whether scrambled, encoded or otherwise) as will prevent any person from receiving them unless he obtains from the programme provider the means of doing so.
(6) In this section—
"disqualified person" has the meaning given by section 20(6) of the 1981 Act;
"programme" includes a teletext transmission; "relevant change"—

(a) in relation to an approval of two or more persons in partnership, means any change affecting the rights and duties of those persons in relation to the partnership; and

(b) in relation to an approval of a body corporate (whether alone or in partnership), means any change affecting participation in, or the nature and characteristics of, that body corporate or any other body corporate which participates in that body corporate.

(7) For the purposes of this section and section (Application of 1981 Act and other enactments) below a person participates in a body corporate if (whether alone or jointly with one or more other persons, and whether directly or through nominees) he holds or is beneficially entitled to shates, or possesses voting power, in the body corporate.").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in Amendments Nos. 119 and 120 en bloc, and I shall speak also to Amendments 121, 123, 126, 129, 131, 141, 142 and
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242. I speak in the anticipation that the noble Lord, Lord Howard of Henderskelfe, will be speaking afterwards to Amendments Nos. 121A to 121F, 141A and 142A which seek to amend three of the amendments which are on the Marshalled List from the Commons.
COMMONS AMENDMENTS
121 After Clause 40 insert the following new clause:
("Application of 1981 Act and other enactments.
.—(1) Subject to subsection (2) below the provisions of the 1981 Act specified in Schedule (Provisions of 1981 Act applied by section (Application of 1981 Act and other enactments) (1)) to this Act shall apply in relation to the Board, television broadcasting services provided by the Board and the programme provider as they apply in relation to the IBA, ITV, TV programme contractors and teletext contractors.
(2) In its application to the Board, subsection (2) of section 43 of the 1981 Act (annual reports) shall have effect as if it required the report for any financial year to include an account of the extent to which the programmes broadcast by the Board have been supplied to the programme provider by persons other than those mentioned in subsection (3) below.
(3) The persons referred to in subsection (2) above are—

(a) where a body corporate is the programme provider in partnership with other persons, an associate of that body corporate, a person who has control over that body corporate and a body corporate which is under the control of such a person; and

(b) where a body corporate is the sole programme provider, a person who participates in that body corporate, an associate of such a person and a body corporate which is under the control of such a person.

(4) Part III of the 1981 Act (the Broadcasting Complaints Commission) shall have effect as if—

(a) any reference in section 53 to the IBA, or to a member, officer or employee of the IBA, included a reference to the Board, or to a member, officer or employee of the Board; and

(b) any reference in that Part to a broadcasting body included a reference to the Board.

(5) The Secretary of State may by order provide that any other enactments (including provisions of this Act) which apply in relation to the IBA, ITV, TV programme contractors or teletext contractors shall apply in relation to the Board, television broadcasting services provided by the Board or the programme provider with such modifications, if any, as may be specified in the order.
(6) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
123 After Clause 41, insert the following new clause:
("No need for IBA to invite applications before entering into certain contracts.
.—(1) The IBA need not comply with subsection (4) of section 19 of the 1981 Act (prior consultation etc.) in relation to any contract for the provision of television programmes which is entered into on the expiration (by efiluxion of time) of a contract to which subsection (2) below applies.
(2) This subsection applies to any contract for the provision of television programmes which was entered into before the commencement of this section.
(3) In this section 'television programme' includes a teletext transmission.").
126 Before Clause 43, insert the following new clause:
("Repeal of certain provisions by order.
.—(1) Subject to subsection (2) below, the Secretary of State shall by order repeal sections (The Board), (Provision of programmes) and (Application of 1981 Act and other enactments) above and Schedules (The Board: supplementary provisions) and (Provisions of 1981 Act applied by section (Application of 1981 Act and other enactments) (1)) to this Act as from the date on which the Board cease to function in accordance with section (The Board) (4) above.
(2) The Secretary of State may by order repeal those provisions as from an earlier date if he is satisfied that there is no suitable person able and willing to become or continue as the programme provider.
(3) An order under this section may, if the Secretary of State thinks fit, also repeal section (No need for IBA to invite applications before entering into certain contracts) above.
(4) An order under this section may include such incidental, supplemental and transitional provisions as the Secretary of State thinks fit, and in particular may make provision for keeping the Board temporarily in existence for purposes connected with their activities and finances prior to the repeal effected by the order and for winding up the affairs of, and dissolving, the Board.
(5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.")
129 Clause 43, page 35, line 2, at end insert—
(" "the Board" means the Satellite Broadcasting Board;")
131 Page 35, line 4, at end insert—
(" "the programme provider" has the meaning given by section (Provision of programmes) (1) above.")
141 After Schedule 1, insert the following new schedule:
("Section (The Board) (5).
THE BOARD: SUPPLEMENTARY PROVISIONS
Status and capacity
1.—(1) The Board shall be a body corporate.
(2) The Board shall not be treated for the purposes of the enactments and rules of law relating to the privileges of the Crown as a body exercising functions on behalf of the Crown.
(3) It shall be within the capacity of the Board as a statutory corporation to do such things and enter into such transactions as are incidental or conducive to the exercise of their functions under this Part, including the borrowing of money.
Appointment of members
2.—(1) All the members of the Board shall be appointed by the Secretary of State after consultation with the BBC and the IBA.
(2) Before appointing a person to be a member of the Board, the Secretary of State shall satisfy himself that that person will have no such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as member of the Board; and the Secretary of State shall also satisfy himself from time to time with respect to every member of the Board that he has no such interest.
(3) Any person who is, or whom the Secretary of State proposes to appoint to be, a member of the Board shall, whenever requested by the Secretary of State to do so, furnish to him such information as the Secretary of State considers necessary for the performance by him of his duties under sub-paragraph (2) above.
Chairman
3. The Board shall elect a chairman from among their members.
Tenure of office
4.—(1) Subject to the following provisions of this Schedule, a person shall hold and vacate office as a member of the Board in accordance with the terms of his appointment.
(2) A person shall not be appointed as a member of the Board for more than five years at a time.
(3) A person may at any time resign his office as a member or as chairman.
Remuneration and pensions of members
5.—(1) The Board may pay to each member such remuneration and allowances as the Secretary of State may determine.
(2) The Board may pay or make provision for paying to or in respect of any member such sums by way of pensions, allowances or gratuities as the Secretary of State may determine.
(3) Where a person ceases to be a member otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, the Board may make to him a payment of such amount as the Secretary of State may determine.
(4) The approval of the Treasury shall be required for any determination under this paragraph.
Proceedings
6.—(1) The quorum of the Board and the arrangements relating to their meetings shall be such as the Board may determine.
(2) The arrangements may, with the approval of the Secretary of State, provide for the discharge, under the general directions of the Board, of any of the Board's functions by a committee or by one or more of the members, officers or employees of the Board.
7. The validity of any proceedings of the Board shall not be affected by any vacancy among the members or by any defect in the appointment of a member.
Officers and employees of Board
8.—(1) The Board may appoint a secretary and such other officers, and take into their employment such other persons, as they may determine.
(2) The Board shall, as regards any officers or persons employed in whose case if may be determined by the Board so to do, pay to or in respect of them such pensions, allowances or gratuities, or provide and maintain for them such pension schemes (whether contributory or not), as may be so determined.
(3) If any officer of or other person employed by the Board, being a participant in any pension scheme applicable to his office or employment, becomes a member of the Board, he may, if the Secretary of State so determines, be treated for the purposes of the pension scheme as if his service as a member of the Board were service as an officer of or person employed by the Board.
Authentication of Board's seal
9. The application of the seal of the Board shall be authenticated by—

(a) the signature of the chairman of the Board or some other member of the Board authorised by the Board to authenticate the application of their seal; and

(b) the signature of the secretary of the Board or some other officer of the Board authorised by the Board to act in that behalf.

Presumption of authenticity of documents issued by Board
10. Any document purporting to be an instrument issued by the Board and to be sealed as aforesaid or to be signed on behalf of the Board shall be received in evidence and shall be deemed to be such an instrument without further proof unless the contrary is shown.")
142 After Schedule I insert the following new schedule:
("Section (Application of 1981 Act and other enactments) (1).
PROVISIONS OF 1981 ACT APPLIED BY SECTION
(APPLICATION OF 1981 ACT AND OTHER ENACTMENTS) (1)

Provision

Subject-matter

In section 2(2), so much of Paragraph (a) as relates to the provision by the IBA of broadcasting services as a public service for disseminating information and entertainment and so much of paragraph (b) as relates to the maintenance by the programmes broadcast by the IBA of a high general standard in all respects (and in particular in respect of their content and quality).

Duty of IBA to provide broadcasting services as a public service.

Section 3(1)(a) and (b), (3), (4) and (7).

Powers of IBA.

Section 4 except paragraph (d) of subsection (1) and so much of paragraph (b) of that subsection as relates to the giving of a sufficient amount of time in the programmes to news and news features.

General provisions as to programmes.

Sections 5 to 7.

Code for programmes other than advertisements, submission of programme schedules for IBA's approval and programme prizes.

Sections 8 and 9.

Advertisements and code for advertisements.

Section 14(1).

Provision of teletext services by IBA.

Section 15.

Code for teletext transmissions.

Section 16(1).

Advisory committees and advisory council.

Section 21(1), (6)(a) and (b) and (7).

Provisions to be included in contracts for programmes.

Sections 28 to 30.

Government control over IBA as to hours of broadcasting and as to certain other matters and prevention of exclusive arrangements for broadcasting events of national interest.

Section 42.

Accounts and audit.

Section 43(1) and (2).

Annual reports.

Sections 61 and 62.

Approvals by IBA and variation and revocation of directions and notices.

Schedule 2.

Rules as to advertisements.".)

242 In the Title, line 4, leave out ("and to make further") and insert (", to provide for the establishment and functions of a Satellite Broadcasting Board and to make other")
The Government amendments, by which I mean the Commons Amendments, pave the way for the DBS joint project which was announced by my right honourable friend in another place. They are the most important single block of amendments added to the Bill in the other place and your Lordships may therefore wish me to spend a little longer explaining them than some of the other amendments to which I have spoken.
For the longer term the Government remain committed to a competitive framework of BBC and independent DBS services; the BBC operating under its Royal Charter, the IBA under the provisions which are in Clauses 36 to 40 of the Bill. But in the short term there are real doubts whether there is room at the outset for two competing DBS services. The financial projections suggest that a service will not break even until it can attract some two million subscribers, and that will take several years.
The uncertainties in DBS led the BBC to explore the possibility of participation with others, and in particular with the IBA and the ITV companies. Having heard the case they put forward, the Government concluded that the best hope of securing a good quality British DBS service with an early start was offered by a joint project which would bring together the existing broadcasters and a proportion of outsiders. I must stress that no one will be coerced into participating in the joint project; the Government's approach all along has been to create opportunities, but not to force anyone into them against their better judgment.
The Government brought forward in Committee in the other place the legislative provisions to create the framework for the joint project. The new clauses and schedules in these amendments constitute the new framework. The initial DBS service will be provided by a new regulatory authority, the Satellite Broadcasting Board, while the programmes which the
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board transmits will be provided by an organisation approved by the Secretary of State. It is necessary to create a new board, since neither the BBC nor the IBA will be able by itself to be the broadcasting authority for the joint project. The board, and thus the joint project, will have a maximum life of 10 years. The clauses contain provisions for their own repeal after 10 years, or earlier if a suitable programme provider does not come forward.
The Government propose to allocate three DBS channels to the joint project. These will subsume the two DBS channels already allocated to the BBC; but they will be in addition to the DBS services to be provided by the IBA under Clauses 36 to 40. The IBA are to be given two channels, but in order to prevent excessive fragmentation of audiences and revenue in the early years, the IBA's DBS powers under Clauses 36 to 40 will not be activated until three years after the launch of the joint project DBS service.
I now turn to the statutory provisions. Amendment No. 119 provides for the creation of the Satellite Broadcasting Board and sets out its functions and composition. The board will consist of three BBC governors and three members of the IBA. The chairman will be elected by the board. Although it will employ its own small staff, the board may need to look to the BBC and the IBA for expert advice and support; that is provided for in subsection (3). Subsection (4) ensures that the joint DBS service has a maximum life of 10 years. Subsection (5) applies the Schedule in Amendment No. 141 to the board; these are now standard provisions for a broadcasting authority.
Amendment No. 120 provides in a new clause that the programmes for the joint DBS service are to be supplied not by someone appointed by the board, but by a person—described in this clause as "the programme provider"—who must be approved by the Secretary of State, after consultation with the IBA. The composition of the programme provider is not set out in the legislation. As participation is competely voluntary, the relative shareholdings and structure of the consortium will depend upon those who wish to take part. My right honourable friend made it clear, however, on Second Reading in another place that the joint venture will be equally divided between the BBC and the private sector. As to the private sector, one part, expected to be at least 25 per cent., will consist of those ITV companies who wish to come forward. The balance will consist of other private sector interests who would not be disqualified under Section 20 of the 1981 Act. The IBA will offer advice to my right honourable friend the Home Secretary on the private sector participants. Should there be a subsequent change in the composition or control of the consortium, the Home Secretary will have the power to withdraw his approval. The consortium will be responsible for meeting the board's financial requirements, and for the provision of the satellite transponder.
The next clause, Amendment No. 121, applies a number of provisions in the 1981 Act to the joint DBS service and the bodies providing it. The provisions are set out in the schedule which appears as Amendment No. 142. The schedule confers a number of powers and duties on the board corresponding to powers and duties of the IBA. I would remind noble Lords that the

1595
board will consist of BBC governors and members of the IBAS, who will come to their task with considerable previous experience. How they go about their business will of course be a matter for the board, but it would be surprising if, when considering a code of violence, for example, they did not draw upon the codes already prepared by the BBC and the IBA. The list of duties may, therefore, be less cumbersome than at first sight appears.
Subsection (2) of the new clause in Amendment No. 121 places the board under a duty to include in its annual report information on the supply of programmes by independent producers. These are defined as persons other than those participating in the joint project; and subsection (3) defines those participating as including holding companies, subsidiaries or associates of the actual participants. Amendment No. 121 goes on to provide that the programmes broadcast by the board are to come under the jurisdiction of the Broadcasting Complaints Commission, which I am sure your Lordships will welcome.
That completes the list of clauses and schedules, including Schedule 2. It illustrates the range of enactments applied to broadcasting which provide the framework of the joint DBS service, apart from the repeals clause, to which I shall come in a moment.
The next clause, in Amendment No. 123, relates to the renewal of the ITV franchises. The ITV companies are keen to participate in DBS. But they have argued that they could lose their reason for existence overnight as a result of the franchise system, and that this would seriously damage their ability to raise and service capital for DBS. The present franchises terminate at the end of this decade, and it is hoped that the DBS joint venture might begin in 1987.
The Government considered this point carefully, and we concluded that we would be justified in making some—but only the minimum—departure from the normal arrangements for franchise renewal. Amendment No. 123 therefore provides that on the occasion of the next franchise renewals only, the IBA will not be under an obligation to re-advertise the ITV and teletext contracts. The IBA will still retain a complete discretion whether to re-advertise individual contracts, depending on its assessment of each contractor's performance; and before entering into new contracts, whether re-advertised or not, the IBA will have to engage in the local public consultations required by Section 19(3) of the 1981 Act.
I must emphasise that no ITV company will be given an automatic extension of its franchise; nor is there any guarantee that its franchise will be renewed. The IBA will be free to renew without re-advertisement if it considers that a company's level of performance is satisfactory. Thus the general franchising structure, to which the Government remain committed, will be preserved; and the IBA will be left with full powers to do what is necessary to ensure a proper standard. There is one further safeguard. If for any reason the joint DBS service does not get off the ground, the Secretary of State will have power to repeal this clause under Amendment
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No. 126; and the ITV contracts will then have to be re-advertised in the normal way.
That brings me to the last of these new clauses, the repeals provision at Amendment No. 126. I said that the joint DBS service is to have a strictly limited life of 10 years. The statutory provisions governing the joint DBS service will then have no further purpose and can be removed. Subsection (3) provides for the mandatory repeal of the new clauses at Amendments Nos. 119 to 121 after the service has been in operation for 10 years; or, under subsection (2), from an earlier date if there is no suitable person willing to be the programme provider.
Finally, the last amendment, Amendment No. 242, amends the Title of the Bill to incorporate a reference to the new clauses and schedules which I have just described.
I am sorry that I have taken some time. I shall not take as much time on any other group of amendments, unless your Lordships require me to do so.
Moved, That this House doth agree with the Commons in the said amendments —(Lord Elton.)
Lord Howard of Henderskelfe: My Lords, may I ask a simple question? Will the three governors from the BBC and the three members of the authority be appointed by the Home Secretary? If so, will the chairman be elected from among them, or will he be a supplementary member, thus making the number into seven?
Lord Elton: My Lords, he will be so appointed but he will not be so elected. I think that that is right.
Lord Howard of Henderskelfe: My Lords, but he will be appointed by the Home Secretary?
Lord Elton: Yes, my Lords, he will be appoined by the Home Secretary but I do not think that he will be additional to the—he will be additional. The noble Lord now has it right, I understand. My semaphore is not working very well. I wonder whether my telegraph will work better.
Lord Mishcon: My Lords, I am going to keep the noble Lord the Minister usefully employed for a few moments. My understanding is that this is not quite clear. I think that all your Lordships would wish to have the matter clarified.
Lord Winstanley: My Lords, I understood the noble Lord the Minister to say that the chairman would be additional. Will he be additional and outside the other teams, as it were? At the moment we have three BBC and three IBA members. Will the additional one be neutral, like an umpire, or could he be BBC or could he be IBA?
Lord Elton: My Lords, he will not be additional to the six members. The total number will continue to be six—that is to say, there will be three people of one sort and three of another. It is difficult for me to get much further without further information. I understand that he will be elected by the six members.
On Question, Motion agreed to.
9.4 p.m.
COMMONS AMENDMENTS
121 [Printed above.]
Lord Elton: My Lords, I rather think that I have spoken to this amendment, have I not? I beg to move that this House doth agree with the Commons in their Amendment No. 121.
Moved, That this House doth agree with the Commons in the said amendment—(Lord Elton.)
As an amendment to Amendment No. 121:
121A Line 2, leave out ("subsection (2)") and insert ("subsections (1A) and (2)").
Lord Howard of Henderskelfe: My Lords, you will observe that being an optimist, as always, I am dressed in a fashion in which I am not usually dressed in your Lordships' House. I am hoping to attend the farewell dinner of two of my most beloved governors at the BBC. I hope that it will still be possible for me to get there at any rate while they are drinking port and drinking their health.
I do not intend to delay your Lordships for too long, but I am extremely worried about one particular provision, or non-provision, in the Bill. On all sides of the House we worked very hard on the Bill, not least Ministers. We got a Bill which I think was quite a good Bill. I did not agree with all of it, but that does not matter. We sent it off to the Commons, and it comes back in a wholly different form. In particular it comes back with a Satellite Broadcasting Authority, which was never, so far as I am aware, mentioned in your Lordships' House and which emerged—I do not know where from—while it was in the other place. I have not heard any reasons why some of the things which accompanied that new move happened.
I gave notice to the Leader of the House that I intended to refer to him on this occasion, but no doubt he has more pressing engagements this evening. When the Leader of the House, who was then Home Secretary, appointed the Part Committee it went into the technical matters concerning the techniques which should be used in direct broadcasting by satellite. Those three wise men—wise men? I do not know—came to the conclusion that the system that should be used should be C-MAC, which had to a large extent been developed by the IBA research department.
One of the alleged advantages of C-MAC over extended PAL or other ways of doing this was that it had a greatly extended number of sound channels available upon it. That in itself had very considerable advantages even if it were not for its other advantages (and I would be the first to admit that there were marginal advantages in pictures, but not I think so that any of your Lordships would have been able to tell, although the engineers could do so) over the question of sound broadcasting—sound broadcasting, furthermore, of a very high quality available over virtually 100 per cent. of the country.
All your Lordships will have heard complaints in various parts of the country of how people cannot get Radio 3 or whatever it may be, and why does not the BBC do something about it. The BBC does what it can. It has now got down to I think communities of some
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200 strong. I do not think that it can go much further in that direction. But at a stroke DBS does away with these problems, because it reaches down into all the deepest Welsh valleys, and similar places in Scotland, and provides a sound service which will shortly be digitally encoded and which will be second to none in the world. This was one of the reasons for employing C-MAC instead of the other systems.
What do we find when we look at the Bill? We find that there is no power to the Satellite Broadcasting Board to broadcast sound. They can broadcast pictures, and I suspect—though it is extremely difficult to interpret the Bill—that they can broadcast the sound which goes with those pictures. But they certainly cannot broadcast Radio 3, unless I am misreading the Bill. If I am told that I am misreading the Bill, I shall be absolutely delighted. The reason which has been advanced for this—and this is part of the trouble which we have had throughout the passage of the Cable and Broadcasting Bill—is that the Government have not been able to make up their mind on the question of networks, and to whom those networks should be allocated. This is a battle between two Ministries which has raged for some three years to my certain knowledge and which has caused a great deal of trouble.
The reasons why we are not to be able to receive sound do not seem to me in the least valid. It has been suggested that this would be a considerable alteration to broadcasting practices as a by-blow of a Bill which really had nothing to do with them. But that argument was certainly not accepted when we were discussing the Video Recordings Bill. Then we were told, "No, indeed, this is no interference, and, in any case, the Bill is a very proper place to put it. It will not interfere in any way with the practices which obtained up till now."
I am deeply disappointed that the Government should come before us with a very greatly amended Bill, which bears hardly any relationship to the Bill as it left your Lordships' House, and that they should do so without any adequate explanation of why the chief advantage of DBS by C-MAC is not allowed to be utilised. I cannot see why the Government should not allow the Satellite Broadcasting Board to broadcast sound signals. I think that it should not be difficult, and, after all, there has been something like 18 months to discuss what the networks should be. So I can only believe that it continues to be the result of in-fighting, which does not do broadcasting or government any good at all.
We have had a very amiable discussion this evening which I have welcomed, where we have been able to pay each other compliments which were not too extravagant because they were deserved, but here I part company with the Government. All that we can broadcast over the sound portion of the signal is white or pink noise. Most of your Lordships may know what white or pink noise is. It is certainly something which nobody would care to listen to for pleasure, and I do not see any reason why this should be confined. This is essential, because the signal is an integral one. It is not one that you can take up and say, "Right, that is the sound bit. We will forget about that and leave it alone". It is all there at the same time. It is as if you took a cake with a number of slices, some of which

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were the TV signals, some were the sound signals that went with the TV and some were the sound signals that were designed purely for radio purposes. It is something which could easily be achieved; and I was absolutely staggered when I read the Bill and the amendments to find that this provision had not been written in even with the numerous amendments which are before us tonight.
I do not want to delay your Lordships any longer, nor do I want at this absolute moment in time to say what I propose to do. I certainly want to hear what explanation, if any, the noble Lord, Lord Elton, can produce for what I regard as the most extraordinary thing I have ever heard of. I beg to move the amendment to the amendment.
Lord Elton: My Lords, I sympathise with the noble Lord, Lord Howard of Henderskelfe, at least in one respect. I, when I saw this Bill coming back to the House, was also, as is he, unaccustomed to being other than the revising Chamber. Usually our Bills go back to the Commons, and the Commons Bills go back to them, considerably altered. One is rather like somebody whose favourite child has gone away to school and come back with many new attributes (not all of them desirable) and with many new qualifications, but with some conspicuously absent. The noble Lord, Lord Howard of Henderskelfe, is expressing a cry of grief that a particular O or A level has not been added to this child's qualifications.
It is true, as the noble Lord has said, although I cannot hope to match his mastery of the technical aspects of his subject, which he always puts so clearly, that the MAC transmission standard carries the opportunity for extra audio channels on the back of each television channel, but I should not like it to be thought that that was the only reason why the advisory panel chaired by Sir Antony Part recommended MAC as the transmission standard for British DBS.
Since the noble Lord mentioned my noble friend who was associated with the beginning of that inquiry, I ought to say that it is indeed unfortunate that he is unable to be present. The reasons for the advisory panel's recommendation are of course set out in their report and include the new opportunities for the equipment manufacturers, the better picture standard offered by MAC, the greater ease of encryption, the possibilities of moving to high definitionTV. In short, MAC is a more modern transmission standard in every way.
The Government fully recognise the advantages of the extra capacity of the C-MAC system, and in particular the extra sound channels which it can provide. It is true that the Bill, together with the amendments currently before your Lordships, makes no provision for sound or data services on DBS. The Bill has been drafted in terms of television services because these are the prime function of DBS. The amendments moved by the noble Lord would enable the board to provide sound and data services as well, but they illustrate, if I may with great respect say so, the very great difficulty of going quickly into legislation on this matter. The noble Lord's amendments operate, if I have understood them
1600
correctly, by applying the legal framework in the 1981 Act for the IBA's local radio services to the new national radio services which might be broadcast from the satellite. But of course the regime for independent local radio is not really appropriate for what must, because of the footprint of the satellite which, as the noble Lord says, stretches across the country, be a national radio service; and it is even less likely to be appropriate for services which consist simply of the transmission of data.
The Government certainly do not wish to rule out those other services—quite the reverse; but the terms on which they might be provided do require further consideration. To take only one example, the use of any of these channels for national radio services will have to be considered alongside the proposal for independent national radio foreshadowed in Amendment No. 124 which we are to consider shortly. As I shall explain when we come to that new clause, the nature of the independent national radio service will be a matter for subsequent legislation which I hope may be introduced in two or three years' time. The noble Lord will understand that I cannot promise that such legislation will be introduced—that is not within my gift—but it is certainly our intention that it should be. However, I can assure him that if there is such legislation, it will of course provide a possible vehicle for legislative proposals for data and audio services on the joint DBS project, which could most appropriately be brought forward at that time. I hope the noble Lord will accept that assurance. We cannot accept his amendments, but we do accept the spirit of them. We would like to take away his proposals and look at them further, and if appropriate make proper legislative provision for them in two or three years' time.
Lord Howard of Henderskelfe: My Lords, as always, the noble Lord, Lord Elton, has been extremely conciliatory. The only reservation I continue to have relates to the time factor. I know very well that the noble Lord is not responsible for the legislative timetable of this Government, which appears to have got itself into some disarray and which the noble Lord has to deal with when it comes to your Lordship's House. Therefore, I hope that any legislation which is proposed will come about within the next two years rather than three. The reason I say that is, God knows! the people who are responsible for DBS are in sufficient of a muddle and difficulty without having the further difficulty that their services are perhaps at present illegal and will continue to be illegal until such time as we get legislation.
If in fact, as I believe—and I am as used to taking hints as the next man—the legislation might come sooner rather that somewhat later, I should certainly be prepared to accept the noble Lord's honourable and very decent approach to this matter. I beg leave to withdraw my amendment, and all the subsequent amendments which stand in my name will not be moved.
Amendment, by leave, withdrawn.
Amendments to Commons Amendment 121, Nos. 121B to 121F, not moved.
On Question, Motion agreed to.
COMMONS AMENDMENT
122 Clause 41 page 34, line 31, at end insert—
(" (2) In subsection (5) of that section (power of Secretary of State to extend the duration of the function of the IBA) for the words "any date not later than 31st December 2001" there shall be substituted the words "any later date".")
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment 122, and to speak also to Amendment No. 237.
237 Page 54, column 3, leave out line 25.
The purpose of these amendments is to make further provision for extension of the IBA's life. Clause 41 extends the life of the IBA from its expiry date 31st December, 1996 to 31st December 2001. The purpose of the extension was to enable the IBA to grant one round of 12-year DBS franchises starting in 1988–89 and running until 2000–2001.
On Second Reading in another place, however, my right honourable friend announced that the IBA's DBS powers were not to be activated until the joint venture had been in operation for three years. The likelihood is that the IBA's DBS service may not commence broadcasting until 1993 at the earliest. For the IBA to be able to award 12-year contracts starting in the mid-1990s it will need a further extension of its life.
After careful consideration the Government decided that this could best be provided for by using the existing powers in Section 2(5) and (6) of the 1981 Act which allow the Secretary of State to extend the life of the IBA by order. These powers were to have been repealed: Amendment 237 reinstates them. Amendment 122 then lifts the time-limit on the existing power, thus permitting the Secretary of State to make further extensions to the IBA's life. As now, any extension will have to be made by statutory instrument which will be subject to the affirmative resolution procedure. Your Lordships can thus be assured that they will continue to have periodic opportunities to examine and discuss the affairs of the IBA, when debating resolutions to extend the IBA's life. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS

123

[Printed earlier

cols. 1590 and 1586–7.]

123A

[Printed earlier

Lord Elton: My Lords, Amendments Nos. 123 and 123A are consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
124 After Clause 41, insert the following new clause—
("Provision of transmitting equipment for national sound broadcasting service.
.—(1) With a view to the provision by the IBA of a national sound broadcasting service the IBA shall have power to do all such things as are in their opinion necessary or expedient for the purposes of equipping themselves to transmit the programmes included in such a service.
(2) Without prejudice to the generality of the power conferred by subsection (1) above, the IBA shall have power for the purpose there mentioned—

(a) to establish and install stations for wireless telegraphy (within the meaning of the Wireless Telegraphy Act 1949); and

(b) to arrange for the provision and equipment of or, if need be, themselves to provide and equip studios and other premises for sound broadcasting purposes.

(3) Without prejudice to the generality of the preceding provisions of this section and subsection (3) of section 3 of the 1981 Act (extent of IBA's powers), that subsection shall be construed as applying in relation to activities undertaken and in relation to property or rights acquired or held by the IBA for the purposes of this section.
(4) The aggregate amount outstanding in respect of the principal of any sums borrowed by the IBA by virtue of this section shall not exceed £2,500,000 or such greater sum as the Secretary of State may from time to time with the consent of the Treasury specify.
(5) Any property or rights acquired or liabilities incurred by the IBA for the purposes of this section shall he treated for financial purposes as property or rights acquired or liabilities incurred by the IBA for the purposes of the branch of their undertaking consisting of the provision of local sound broadcasting services.
(6) The reference in paragraph 4(1) of Schedule 1 to the 1981 Act (capacity of the IBA as a statutory corporation) to the powers of the IBA under that Act shall be construed as including a reference to the powers of the IBA under this section.
(7) Nothing in this section shall be construed as authorising the IBA to do, otherwise than under and in accordance with a licence under section 1 of the Wireless Telegraphy Act 1949 or section 7 of the 1984 Act, anything for the doing of which such a licence is requisite under those Acts respectively.")
AS AN AMENDMENT IN LIEU OF COMMONS AMENDMENT 124
Lord Mishcon: My Lords, I beg to move, That this House do disagree with—and may I use the word "with" and not the word "to" as appeared on the Marshalled List, because I think that is a typographical error—the Commons Amendment No. 124, and I propose the following amendment in lieu thereof: namely, the insertion of a new clause:
("Inquiry into provision by IBA of national sound broadcasting service
124A . The Secretary of State shall as soon as practicable set up an inquiry to consider whether it is desirable that the IBA should be enabled to make provision for a national sound broadcasting service, and if so what legislative or other measures are called for to achieve this objective.")
The noble Lord, Lord Howard, in moving his last series of amendments with the moderation for which he is known, had to make some introductory remarks about the fortunes of this Bill and certain sections of it. I am not going to register a complaint at this stage that in another place in Committee and on Report there were 207 Government amendments, if my count is correct, and 37 new clauses. Nor am I going to complain that there are 242 amendments at least on the Marshalled List. Indeed, there must be more, because we have some As, Bs and Cs before your Lordships today. What I am going to complain about now is legislation by afterthought. That is something

1603
for which Parliament ought not to be grateful in the very slightest. Indeed, Parliament ought to rebel against it.
I am going to read immediately—and it will not take me long—what precisely happened in the other place with the amendment now brought before your Lordships to set up a situation where we are to authorise the minimum expenditure of £2½ million—and it may be more—for transmitters to be constructed, and where as a matter of policy we are supposed to say "Amen" to a new Government thought.
The new Government thought was first placed before Parliament on 26th June. Your Lordships know how long this Bill has been before your Lordships and the other place. That was done three weeks ago, and this is how it happened. I am allowed, as your Lordships know, to quote what a Minister said. This was being dealt with for the very first time, and had never been discussed before. Mr. Hurd, the relevant Minister, said:
"I beg to move that the clause be read a second time. This is an important new clause that will give the IBA the power to equip itself to provide a national radio service. The background is as follows. As a result of international decisions made at the World Administrative Radio Conference in 1979"—
and I pause for a moment to point out that these decisions were made in 1979 and we are now in 1984, and, I repeat, they were first thought of by the Government for this Bill on 26th June this year—
"the spectrum available for radio broadcasting on VHF will extend significantly over the next decade. The Government announced last year that this new spectrum was likely to permit two new national networks in 1990. One of these will go to the BBC. The Government propose to allocate the other to the IBA to provide for the first time a service of independent national radio".
Mr. Hurd continued:
"The new clause does not give the IBA the power to provide such a service. That must wait for later legislation, and there is a great deal to he discussed and decided before INR comes into being, particularly the nature of the service and the franchising arrangements".
Your Lordships will permit me to omit the next few sentences, which are not relevant from my point of view. Mr. Hurd continued:
"New Clause 8 authorises it to do so. It follows similar provisions in the IBA Act 1979"—
again in parenthesis, your Lordships will hear me on that in a moment—
"which authorised the IBA to start constructing the transmitter network for the fourth channel in advance of any decisions about the nature of that service".
Then I omit an irrelevant portion from my point of view, and continue with Mr. Hurd's last remark:
"The IBA will have to raise a commercial loan to finance the early work on the transmitter network, and once it has appointed an INR contractor it will look to the contractor's rental to finance the rest".
The right honourable gentleman then concluded, after a mere intervention of nine or ten lines from one member of the Committee—that is all that happened—by repeating that nothing in the clause decides the nature of the service, and he went on to make some remarks about local radio.
Your Lordships are therefore confronted with an important decision of policy that this is going to happen, but precisely how nobody knows at the
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moment. Its effect nobody knows at the moment. The nature of the service nobody knows at the moment. But your Lordships are asked to be good enough, without knowing anything of those matters, to authorise the capital expenditure of £2½ million, at least, because there is authority within this amendment for the Secretary of State to decide that more should be granted—that is of course with the co-operation with the Treasury.
May I first deal, as I said I would, with the excuse of the Minister that there was a precedent for deciding to spend money without going into why you are spending it. He referred of course to the Independent Broadcasting Authority Act 1979. That authorised the IBA to start constructing a transmitter network. It did it for the fourth channel and in advance of any decisions about the nature of that service. I concede that. But there had been considerable discussion about that prior to 1979 and your Lordships will remember that the Annan Committee sat from 1974 to 1977 and dealt with matters like the fourth channel.
Your Lordships may feel, "Well, why should there be an inquiry? Why should we throw out these amendments from the other place and substitute for them the setting up of an inquiry?" I give the following reasons, and I do so I hope succinctly. The first reason is that there cannot be any urgency at all about this matter. If there were an urgency about the matter, please will the Government kindly explain their negligence in not thinking of it before three weeks ago? That is the first point. The second point is that an inquiry can obviously be conducted if the Government are so willing within a very short period of time—certainly within 12 months. I repeat, if the Government had not had this afterthought three weeks ago—the first time anything like this has ever been mentioned in this Bill—it would have taken, I have no doubt, quite a long time—indeed, a year—for an enabling Bill to come before your Lordships in order that this expenditure could be effected. So there cannot he any reason why the inquiry should not take place.
There are other considerations which I must bring before your Lordships; not that I am asking your Lordships to conduct the inquiry. There is a very distinct matter of principle as to whether another national network should be set up when many of us know that a lot of local radio stations are in trouble. They are in trouble by virtue of advertising revenue which is now going to be competed for all over the place; and one just does not know where the BBC and ITV are to end up after all this competing for advertising. Quite apart from the competing for advertising and its effect on the BBC, and so on, the fact of the matter is that audience figures have been plummeting. There was a fall in all radio listening between 1982 and 1984 to the order of 10 per cent. and the independent local radios' overall audience fell in the same period by twice as much.
The problems of local radio have to be considered by an inquiry and also whether the whole concept of another national radio service of this kind, or of any kind, should be created. I take it that, rather more than a very long speech, your Lordships will appreciate the putting of four succinct reasons as to why there should he an inquiry. So I am going to sit down with a protest.

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I am not trying to make this a political matter. I am making this complaint, if I may humbly do so, as an individual Member of your Lordships' House. This Government are pushing through legislation with afterthoughts in a way that certainly many who have much longer experience than I have find absolutely extraordinary and intolerable. I must say that the Mother of Parliaments ought now to consider a bit of birth control!
9.36 p.m.
Lord Mottistone: My Lords, some of what the noble Lord, Lord Mishcon, had to say I find satisfactory; some not satisfactory. That is something of a curate's egg of a statement. Perhaps I may expand on it. I think the complaint that was made, that the other place put this in apparently without any argument, is one to which my noble friend was referring earlier, that we are unaccustomed to be the originators of a Bill and find ourselves confronted with amendments of another place, in the way that they must be accustomed to in the reverse sense. I do not see it at all as strange or unreasonable for this particular provision to come in in the way that it has. There have been occasions in this House when we have done that. I would also suggest that the figure of £2½ million which was mentioned came through, as the noble Lord spoke, as though it were a kind of gift. However, if you look closely at subsection (4) you will see that it is to be borrowed. I think that makes a difference. The third point that I would make is that it would be very ponderous to set up an inquiry, as suggested in the amendment.
However, having said all that, I have my own query which I want to put to my noble friend, which really comes out of this in a different way and which was not mentioned by the noble Lord, Lord Mishcon. I have no objection—and indeed welcome—the principle of the amendment. However, I am deeply worried about the implications for frequencies. It is all very well but we will always be short of frequencies. We will always be short of frequencies available for being shared among the various competing services. It seems to me a little strange that this new national service should come into being and that there is, so far as one can see, no mention at all in the amendment. Perhaps that is reasonable. Of course, we have not heard what my noble friend has to say. However, I would be very concerned that this new provision should come into being without being quite certain that we were not depriving other possible competitors of frequencies.
So my conclusion is not to support Amendment No. 124A, which I think is just another inquiry—and Oh God! we have too many—hut to say we reject Amendment No. 124 unless there is very strong justification from my noble friend on the frequency situation.
Lord Winstanley: My Lords, I share Lord Mishcon's view that without any question at all this whole matter as contained in the Commons' Amendment No. 124 is one which needs a great deal more thought before irreversible steps are taken. Whether or not the spending of £2½ million is an irreversible step is arguable. The noble Lord, Lord Mottistone, said that nobody is talking about giving anybody £2½ million; it
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is going to be borrowed. It is only going to be borrowed so that it can be spent and if it is to be spent that would seem to me to be an irreversible step.
Lord Mottistone: But—if I may intervene—if you borrow you have to repay.
Lord Winstanley: Indeed, my Lords, but you cannot get it back when you have spent it. You have to get the money back to repay it from some other source. However, I do not think that we are here to discuss how we dispose of our debts in one way or another. There are many matters that need a great deal of thought. The whole question to which the noble Lord, Lord Howard of Henderskelfe, drew our attention with regard to radio and DBS is a very different matter about which there could be outstanding advantages. But this is something rather separate. We have to pause for a moment to consider its possible implications for commercial radio.
The noble Lord, Lord Mishcon, said that many local commercial radio stations are having a thin time. They are. One that was created folded and was not able to continue. I should perhaps declare an interest in that I am a director of Radio Piccadilly, the commercial station in Manchester, that is extremely successful—so successful that it is at present paying the Government around £1 million a year in rent and secondary rental, and doing that despite the fact that throughout its areas there are a number of pirates that are paying no one anything. They are not paying anything to the Government. They are paying nothing in royalties to the performing rights people. But they are collecting money in advertisements. The Government are at the moment doing nothing to suppress the pirates or using the powers that they possess to suppress them.
Independent local radio already has enough difficulties to contend with without suddenly having another placed on its back. This has to be thought about carefully. I am not saying that it should necessarily be rejected. But to take an irreversible decision in this kind of way without considering its implications further is very unwise. I am inclined to share the view of the noble Lord, Lord Mottistone. I am not sure that I want an inquiry. The purpose of the inquiry that the noble Lord, Lord Mishcon, sets up is to decide whether it is desirable that the IBA should be enabled to make provision for a national sound broadcasting service. I think that it is undesirable. It would therefore perhaps not be wholly logical for me to support an inquiry, and rather more logical to support the attitude of the noble Lord, Lord Mottistone. This is a matter that should be thought about a great deal more. Whether there is need for an independent national radio is arguable.
I am very glad that we have not had a re-emergence of the rumours that were coming from certain Government sources not long ago about the possibility of enabling the BBC to take advertisements on Radio 1 and, perhaps, Radio 2. That would have been extremely undesirable, perhaps even more undesirable than this proposal. But this proposal has implications that go far beyond the matters contained in the Commons amendment. Therefore, for us to take an

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irreversible step with regard to that at the moment would be undesirable. As the only possible alternative, I must advise noble Lords to support the amendment which the noble Lord has moved.
Lord Ardwick: My Lords, the idea of an independent national radio has been lying about for some time. It certainly came as a shock to me to learn suddenly only three weeks ago that the Government were fully committed to the principle. The Minister said in another place that this Bill did not give the IBA the power to provide such a service; that must wait for later legislation. But the Minister added that there was a great deal to be discussed before it was known how the INR—it is so well-founded that it already has initials—would come into service. What is the case for such a service? It has not been argued; it has not been presented. All that has been said is that a new spectrum in radio broadcasting will be available that will permit two national networks for radio broadcasting on VHF in 1990; one will go to the BBC and the other to the IBA.
The BBC has heavy responsibilities to schools and students that are taxing its present resources. But how is the INR to be financed? Only, presumably, by advertising. Do the Government think that advertising will grow simply to match the media available for it? There is no such law. On the contrary: to expand radio broadcasting at a time when the radio audience is shrinking and when cable television will provide a new competitor for advertising revenue seems to me a dangerous folly.
It is unfair to everybody, but, as my noble friend has said, particularly to the independent radio stations already in being, which are having a hard enough struggle.
It looks to me as though the Government have rushed into this, as though they have rushed into broadcasting by cable without thought, without inquiry, without wide consultation. Maybe I am suffering from a kind of contemporary paranoia, but when I looked through this Bill I thought that concealed in all these amendments there was a little paving Bill trying to get out. It is very similar to another measure; it proposes to make provision for something which is not yet decided. I support very strongly my noble friend's amendment.
9.46 p.m.
Lord Elton: My Lords, I must say that I was a little surprised by the surprise expressed by noble Lords opposite. It is true that this provision was not in the Bill when it was introduced into your Lordships' House. That is a matter for regret. The clause was not agreed in time. But the noble Lord's suggestion that the Government have given no notice of their intention is one that I cannot accept. It was in March of last year—15 months ago, and not three weeks—that my noble friend Lord Whitelaw announced the United Kingdom's plans for the expanded VHF radio band. He said then that the IBA had asked for one of the new national networks for a service of independent national radio, and that the Government found the IBA's proposal attractive.
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That was a clear signal, not simply tucked away in the back pages of Hansard in a parliamentary Answer, but published by the Home Office in a press release and duly reported in the press. Nor was his announcement by any means the first mention of the subject. The Times ran an article in 1980—four years ago—under the headline: "BBC faces first challenge to the last bastion of broadcasting monopoly; IBA stakes a claim on national radio network". That was on 20th November 1980, three-and-a-half years ago.
Several noble Lords referred to a space of three weeks since the proposal actually saw the light of legislative day, which is another matter. If they wish to pretend that it was a surprise to them and to everybody else that this was in the Government's mind, they are free to do so. But it was not three weeks ago that it first saw the light of legislative day. My right honourable friend the Home Secretary made the Government's position clear at Second Reading in another place on 8th May, and the provisions were added in Committee there. So there has been rather more parliamentary notice than the noble Lord was kind enough to give us.
In any case, for those who take an interest in broadcasting matters, there has been plenty of notice of the IBA's bid for a national radio service and of the Government's favourable attitude towards it. They will have noticed also that no other use has been proposed for the new national radio networks that will become available on VHF in 1990. The BBC has not opposed the idea of one of them going to the IBA; it will, after all, receive the other one for a separate VHF network for Radio 1; and no other bidders have come forward.
So on the first point, on the need for an inquiry, which was implicit in the noble Lord's amendment and explicit in his speech, I hope that I have shown that there has been opportunity for public discussion about the use to which the two new national networks on VHF might be put. His amendment goes on to ask whether it is desirable that the IBA should be enabled to make provision for a national sound broadcasting service. The Government believe firmly that it is. The frequencies will exist. To make use of them by 1990, the work of transmitter construction will need to start soon, and they ought not to be left vacant thereafter.
The BBC faces competition in television and local radio. Viewers and listeners have benefited from this, and I think most noble Lords would accept that the BBC has also benefited from the spur of that competition. National network radio is the last area in which the BBC has a monopoly of domestic broadcasting. The opportunity now exists to end that monopoly, and it would be quite wrong for a Government who believe in competition—as we do—not to seize it.
The second object of the noble Lord's proposed inquiry was to consider what legislative or other measures are called for to enable the IBA to provide a service of INR. The answer lies in the new clause which is before the House in Amendment No. 124. As regards that clause I was taken by surprise by the procedural methods of this House. I did not know that the noble Lord has stolen a march on me by moving a Motion rather than an amendment, and I congratulate him on that and, therefore, I have not made the situation clear, but I shall do so shortly.

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I shall be asking your Lordships to agree to Amendment No. 124 in preference to the noble Lord's Amendment No. 124A. Nothing in the clause which I shall be moving decides the nature of the service—that will all be decided in a later round of legislation. There will be ample time between now and then for discussion of the many questions raised by the noble Lord in moving his amendment and by others, as to what form independent national radio should take, its relationship with independent local radio, and so on. However, in the meantime, if they are to go on air by 1990, it is necessary to get on with the considerable job for which there is a precedent—as my noble friend has reminded us—of getting the equipment available for this purpose.
Therefore, I would now ask your Lordships to consider Amendment No. 124 which comes to us from the Commons. That amendment provides a new clause which will give the IBA the power to equip themselves to provide a national radio service. The background is as follows. As a result of international decisions made at the World Administrative Radio Conference in, as the noble Lord has rightly reminded us, 1979, the spectrum available for radio broadcasting on VHF will extend significantly over the next decade. I draw this particularly to the attention of my noble friend who sits resolutely immediately behind me in spite of the acres of space on either side. The Government announced last year that this new spectrum was likely to permit two new national networks in 1990. One of these will go to the BBC, so that Radio 1 will at least have a VHF outlet of its own. The other the Government propose to allocate to the IBA, to provide for the first time a service of independent national radio. No other radio service will be deprived of frequencies. These are new frequencies available for a new purpose and no alternative uses have, as I have already twice said, been proposed for them. I hope that my noble friend finds that reassuring.
This new clause does not give the IBA the power to provide such a service. That must wait for subsequent legislation, which will prescribe the nature of the service and the franchising arrangements, and so on—and if we are all sitting on the same Benches we shall he debating them furiously in years to come. But if the service is to go on air in 1990 the IBA need to start work constructing the transmitters in 1985–86. The new clause authorises them to do this. It follows similar provisions in the IBA Act 1979, which authorised the IBA to start constructing the transmitter network for the fourth channel in advance of any decisions about the nature of that service.
The IBA will thus be enabled to begin the programme of transmitter construction before a contractor is appointed. Once a contractor is appointed the remaining construction work should be financed through rentals paid by the contractor. The Government's intention is that before 1990 the IBA and the contractor should each contribute about half the construction costs. The IBA will need to borrow for this purpose. Subsection (4) limits their borrowing power—and my noble friend was good enough to emphasise the difference, which seems to have escaped some noble Lords, between borrowing and merely spending—to £2·5 million, which the IBA have
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estimated to be approximately half the cost at 1983 prices. Should prices or cost estimates change, there is flexibility in the power given to the Secretary of State to increase the borrowing ceiling with the consent of the Treasury, and £2·5 million is reckoned to be approximately half the cost.
The noble Lord, Lord Winstanley, made reference to Piccadilly Radio and £1 million. That is the figure that I thought I caught from him. I think that that is the rental and secondary rental paid, not to the Government but to the IBA. I understand that the levy paid by Piccadilly Radio to the Government is less than £100,000.
I should repeat that nothing is this clause decides the nature of the service. That is perhaps the burden of the charge of noble Lords opposite. But they cannot have it both ways. Either there should be lengthy discussion in order to decide exactly what service is wanted—and that should be encapsulated in legislation in the future—or there should be a decision to advance in principle and the detail should be decided later.
We do not have the detail in this Bill and I believe that that is a virtue and not a vice, because I agree with the noble Lord that the detail, and the fairly general detail, of the scheme is a matter which ought to be publicly and thoroughly debated and cannot be thrust swiftly into legislation now. But we ought not to await the next legislative train to go through the station. If we want to go on air in 1990 and if we do not want to waste the very scarce resource of vacant frequencies until the next legislative train goes through the station, we have to catch this one. That is what my amendments do, and I hope that when your Lordships have considered the noble Lord's amendments, and if you follow my advice have rejected them, you will prefer those from the House of Commons to those from the Front Bench opposite.
Lord Mottistone: My Lords, before my noble friend sits down, is he aware that his reassurances about very high frequency outlets only marginally satisfy me? As it does not specifically mention that the frequencies will be high frequency, can he reassure me further that there is no possibility of this wireless station operating on the medium frequency?
Lord Elton: My Lords, subject to technical confirmation (which I do not doubt the noble Lord, Lord Howard of Henderskelfe, could give me if it does not arrive from elsewhere in time) we are committed to the MAC system, which would not carry the medium frequency. In any case, I can give my noble friend the assurance he wants, that the medium frequency will not be used.
Lord Mishcon: My Lords, in his concluding remarks the noble Lord the Minister said that we had to catch a train in regard to this matter, and had better catch it. I can only say that he has arrived on the station very late and he has had to jump on the train almost as it

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started off, which is not the healthiest way of catching it.
I repeat only this. If one commits oneself to this expenditure—and the noble Lord knows this perfectly well—one is, in fact, making the decision almost irrevocable and somebody has to make an inquiry as to whether or not the decision is right. It is no answer to say that the noble Viscount the Leader of this House, in another capacity, some years ago mentioned that the Government favoured this, and then to say in May of this year in a Second Reading speech that the general principle was enunciated. That was eight weeks ago instead of three weeks ago. If it was so essential, why did not the noble Lord the Minister himself mention this on Second Reading? It was only because the Government had not even thought up the idea at that stage.
This is hopeless, and being hopeless, with very great deference, I say this. It may be that this matter will be decided on party lines. I think that it would be an awful shame if it is; and, if I may say so with a smile, noble Lords opposite have had the advantage of a Conservative Party function in your Lordships' House which may account for rather more people who have not heard this debate voting in the Division than my noble friends and I can command. But on a matter of principle divide we will.
9.59 p.m.
On Question, Whether this House doth disagree with the Commons in their Amendment No. 124, but proposes Amendment No. 124A in lieu thereof?
Their Lordships divided: Contents, 18; Not-Contents, 37.

DIVISION NO. 3

CONTENTS

Airedale, L.

McCarthy, L.

Ardwick, L.

Mackie of Benshie, L.

Blease, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Ponsonby of Shulbrede, L. [Teller.]

Elwyn-Jones, L.

Graham of Edmonton, L. [Teller.]

Stoddart of Swindon, L.

Taylor of Blackburn, L.

Grey, E.

Underhill, L.

Howard of Henderskelfe, L.

White, B.

John Mackie, L.

Winstanley, L.

NOT-CONTENTS

Belhaven and Stenton, L.

Lawrence, L.

Belstead, L.

Long, V.

Caithness, E.

Lucas of Chilworth, L.

Coleraine, L.

McFadzean, L.

Crathorne, L.

Margadale, L.

De La Warr, E.

Massereene and Ferrard, V.

Denham, L. [Teller.]

Mottistone, L.

Drumalbyn, L.

Polwarth, L.

Elliot of Harwood, B.

Rankeillour, L.

Elton, L.

Rochdale, V.

Ferrier, L.

Saltoun, Ly.

Glanusk, L.

Skelmersdale, L.

Glenarthur, L.

Southborough, L.

Gray, L.

Stodart of Leaston, L.

Gray of Contin, L.

Swinton, E. [Teller.]

Greenway, L.

Trumpington, B.

Grimston of Westbury, L

Whitelaw, V.

Hornsby-Smith, B.

Wise, L.

Kinnaird, L.

Resolved in the negative, and Motion disagreed to accordingly.
COMMONS AMENDMENT
124 [Printed earlier: col. 1601.]
10.7 p.m.
Lord Elton: My Lords, I beg to move formally that this House doth agree with the Commons in their Amendment No. 124.
Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
("Directions in the interests of public service broadcasting
125 After Clause 41, insert the following new clause:
.—(1) This Section applies where—

(a) the broadcasts in a television or sound broadcasting service are made from a place outside the United Kingdom for reception in the United Kingdom; and

(b) programmes are proposed to be broadcast in that service by the reception and re-transmission (whether immediately or after an interval) of material sent by means of a telecommunication system licensed under Part II of the 1984 Act.

(2) If it appears to the Secretary of State, after consultation with both broadcasting authorities, that it is requisite or expedient to do so in the interests of public service broadcasting in the United Kingdom, he may by a direction under this section prohibit any person from sending material either for programmes generally, for programmes of a particular description or for particular programmes.
(3) Without prejudice to the generality of subsection (2) above the Secretary of State may give a direction under this section if it appears to him, after such consultation as aforesaid, that any of the programmes—

(a) would consist of or include the whole or any part of listed or protected events; or

(b) would be such that they could not be included in a television or sound broadcasting service provided by the IBA.

(4) A direction under this section shall be published in such manner as the Secretary of State considers appropriate.
(5) A person who knowingly contravenes a direction under this section shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum:

(b) on conviction, on indictment, to a fine.

(6) Without prejudice to subsection (5) above, compliance with a direction under this section shall be enforceable by civil proceedings by the Crown for an injunction or interdict or for any other appropriate relief.
(7) So much of section 14(10) of the 1956 Act as relates to the place from which a broadcast is to be treated as made shall apply for the purposes of this section as it applies for the purposes of that Act.
(8) In this section—
"broadcasting authority" means the BBC or the IBA;
"listed event" has the same meaning as in section 14 above;
"material" means sounds or visual images or both;
"programme" includes a teletext transmission;
"protected event" means a sporting or other event, which in the opinion of the Secretary of State, is one of a series of similar events the whole or any part of which—

(a) it was at the commencement of this section the practice of a broadcasting authority to broadcast; and

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(b) but for the acquisition of rights to include the whole or any part of events in that series in external broadcasting services, it would still be the practice of that authority to broadcast;

and for the purposes of this subsection anything broadcast by either of the broadcasting authorities shall be treated as broadcast by each of them.")
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 125. In May this year my right honourable friend the Minister of State announced that the Government had decided to lift the restrictions that for many years had been placed on the provision of telecommunications facilities to foreign broadcasting organisations who wished to transmit material from this country to be rebroadcast back to the United Kingdom from their foreign transmitters. That decision made it necessary to provide various regulatory provisions. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
126 to 131 [Printed earlier: cols. 1576, 1587, 1590 and 1591.]
Lord Elton: I beg to move that this House doth agree with the Commons in their Amendments Nos. 126 to 131. These amendments are consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
132 Before Clause 44 insert the following new clause:
Fraudulently receiving certain programmes
.—(1) A person who dishonestly receives a programme included in a service to which this section applies with intent to avoid payment of any charge applicable to the reception of that programme shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(2) This section and section (Proprietary rights in respect of certain programmes) below apply to—

(a) any cable programme service;

(b) any television or sound broadcasting service provided by the BBC or the IBA; and

(c) any service (other than a television or sound broadcasting service) which consists wholly or mainly in the sending by means of a telecommunication system, of sounds or visual images or both and is provided for a person providing a service falling within paragraph (a) or (b) above;

and for the purposes of this subsection a service provided for the Welsh Authority, the IBA's subsidiary or a programme contractor shall be treated as provided for the IBA.
(3) Her Majesty may by Order in Council make provision in the case of any country specified in the Order, for applying this section and section (Proprietary rights in respect of certain programmes) below to—

(a) any service provided in that country which would be a cable programme service if subsection (7) of section 2 above and references in subsection (1) of that section to the United Kingdom were omitted;

(b) any television or sound broadcasting service provided in that country by an organisation constituted in, or under the laws of, that country; and

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(c) any service provided in that country (other than a television or sound broadcasting service) which consists wholly or mainly in the sending, by means of a telecommunication system, of sounds or visual images or both and is provided for a person providing a service falling within paragraph (a) or (b) above.

(4) Her Majesty shall not make an Order in Council under subsection (3) above in the case of any country unless Her Majesty is satisfied that provision has been or will be made under the laws of that country whereby adequate protection will be given to persons making charges for programmes included in services falling within subsection (2) above.
(5) Any statutory instrument containing an Order in Council under subsection (3) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.")
133 Before Clause 44 insert the following new clause:
("Proprietary rights in respect of certain programmes.
.—(1) Every person who makes charges for the reception of programmes included in a service to which this section applies shall be entitled to the proprietary rights conferred by this section.
(2) The rights conferred by this section are infringed by the manufacture, importation, sale or letting on hire of any apparatus or device which is designed or adapted, or the publication of any information which is calculated, to enable or assist persons to receive the programmes without payment.
(3) Subject to subsection (5) below, infringements of the rights conferred by this section on any person shall be actionable at the suit of that person; and in any proceedings for such an infringement all such relief, by way of damages, injunction, interdict, account or otherwise, shall be available as is available in any corresponding proceedings in respect of infringements of other proprietary rights.
(4) Where rights conferred by this section on any person have been infringed by the manufacture, importation, sale or letting on hire of any apparatus or device, then, subject to subsection (5) below, that person shall be entitled in respect of the conversion by any other person of the apparatus or device to all such relief, by way of an order for its delivery or otherwise, as he would be entitled to if he were its owner and had been its owner since the time of the infringement.
(5) A person shall not be entitled to recover damages from another person by virtue of this section if, at the time of the infringement or conversion, that other person was not aware, and had no reasonable grounds for suspecting, that the rights conferred by this section on the first-mentioned person would be or had been infringed.
(6) Section 72 of the Supreme Court Act 1981 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against incrimination of self or spouse in certain proceedings) shall each have effect as if the proceedings to which subsection (1) of that section applies included proceedings in the High Court brought by virtue of this section.
(7) In the application of this section to Scotland, for any reference to the conversion by any person of any apparatus or device there shall be substituted a reference to an intromission by any person with any apparatus or device.")
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 132 and 133. I beg leave to speak also to Amendment No. 232:
232 Schedule 2, page 53, line 17, at end insert—
("(2) In subsection (1) of section 42 of that Act (fraudulent use of telecommunication system) for the words "service provided by means of a licensed telecommunication system" there shall be substituted the words "service to which this subsection applies".
(3) In subsection (2) of that section for the words "In this section 'licensed telecommunication system' means" there shall be substituted the words "Subsection (1) above applies to any service (other than a service to which section

1615
(Fraudulently receiving certain programmes) of the Cable and Broadcasting Act 1984 applies) which is provided by means or.")
We return here to territory which we first explored in Committee on 2nd February when considering amendments from the noble Lord, Lord Howard of Henderskelfe. He pointed out, quite correctly, that legal safeguards for people providing paid television services were inadequate. It is a problem that we had already been studying and I was able to give an assurance on that day that we would subsequently bring forward amendments of our own in an attempt to deal with it. That is what these three clauses do. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
134 and 135 [Printed earlier: cols. 1576 and 1585.]
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 134 and 135. These amendments are consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
136 Clause 45, page 35, line 15, leave out ("55 of the Telecommunications Act 1984") and insert ("57 of the 1984 Act")
137 Page 35, line 20, leave out ("56 of the Telecommunications Act 1984") and insert ("58 of the 1984 Act")
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 136 and 137. With your Lordships' leave, I will speak at the same time to Amendments 145, 146, 225, 233, 238 and 241.
145 Page 39, line 7, at beginning insert ("(1)")
146 Page 39, line 8, leave out from ("premises)") to end of line 12 and insert ("the words "under Part IV of the Telecommunications Act 1984" shall be omitted.
(2) This paragraph does not extend to Northern Ireland.")
225 Page 52, line 18, leave out from ("pictures)") to end of line 21 and insert ("the words "under Part IV of the Telecommunications Act 1984" shall be omitted")
233 Page 53, line 17, at end insert—
("(4) In section 43(2) of that Act (improper use of public telecommunication system) the words "(within the meaning of Part IV of this Act)" shall be omitted.")
238 Page 54, line 35, at end insert—

("1982 c. 33.

The Cinematograph (Amendment) Act 1982.

In section 1, the words "under Part IV of the Telecommunications Act 1984".")

241 Page 54, line 37, at end insert ("The repeal in the Cinematograph Act 1909 does not extend to Northern Ireland.".")
These amendments are all technical ones to take account of the fact that since this Bill left this House, what is now the Telecommunications Act 1984 has arrived on the statute book. Amendments Nos. 136 and 137 simply correct two references in Clause 45 to the numbers of sections in that Act. Amendments
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Nos. 145, 146, 225, 238 and 241 take account of changes which will be made to the Cinematograph Acts 1909 and 1982 by the Telecommunications Act when it comes into force, and Amendment No. 233 adds a new consequential amendment by means of Schedule 2 to Section 43 of that Act. There is no change of substance.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
138 Clause 46, page 35, line 29, leave out ("Part II of").
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 138. This is a technical amendment to the provision in the Bill dealing with its extension to the Channel Islands and the Isle of Man.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
139 [Printed earlier: col. 1588.]
140 [Printed earlier: col. 1570.]
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 139 and 140. They are consequential. I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
141 [Printed earlier: col. 1591.]
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No.141.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
[Amendment No. 141A as an amendment to the Commons Amendment No. 141, not moved.]
On Question, Motion agreed to.
COMMONS AMENDMENT
142 [Printed earlier: col. 1592.]
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 142.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
[Amendment No. 142A as an amendment to the Commons Amendment No. 142, not moved.]
On Question, Motion agreed to.
COMMONS AMENDMENT
143 Schedule 2, page 38, line 40, leave out ("within the meaning of Part I of this Act") and insert ("which is or does not require to be licensed")
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 143, and I think it will be for your Lordships' convenience if I speak also to Amendments Nos. 149, 152, 174, 196, 197, 199, 201, 204, 223 and 234.
149 Page 39, line 29, at end, insert ("as they apply in relation to newspapers").
152 line 46, at end insert ("as it applies in relation to newspapers").
174 Page 43, line 17, after ("or") insert ("for").
196 Page 46, line 32, at end, insert ("as they apply in relation to newspapers").
197 line 36, after ("or") insert ("for").
199 line 43, after ("or") insert ("for").
201 Page 47, line 7, after ("a") insert ("licensable").
204 line 20, after ("a") insert ("licensed").
223 Page 52, line 13, after ("a") insert ("licensable").
234 Page 53, line 17, at end insert—
("The Video Recordings Act 1984
46. For paragraph (b) of section 3(8) of the Video Recordings Act 1984 (exempted supplies) there shall be substituted the following paragraph—
"(b) a cable programme service which is or does not require to be licensed." ").
That concludes the block of amendments to which I shall be speaking. Of those, Amendments Nos. 143, 149, 152, 174, 196, 197 and 199 are all technical ones to improve the drafting of some of the enactments amended by Schedule 2 and to make the drafting of the various paragraphs of that schedule consistent. Amendments Nos. 201 and 223 are slightly more substantial. They deal with the amendments made by the Bill to the legislation governing employment agencies.
Amendment No. 204 deals with paragraph 29 of Schedule 2, which amends the Fair Trading Act 1973 to exempt the provision of cable programme services from reference by the Director-General of Fair Trading to the Monopolies and Mergers Commission.
Finally, Amendment No. 234 is a technical amendment to update a reference to cable programme services in the Video Recordings Act 1984, which has recently reached the statute book.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
144 to 153 [Printed earlier: cols. 1576, 1615 and 1616.]
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 144 to 153 inclusive. They are consequential.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
154 Page 40, line 4, leave out ("after paragraph (d)") and insert ("the word "and" immediately preceding paragraph (d) shall be omitted and after that paragraph")
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 154. With the leave of your Lordships, I will speak
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also to Amendments Nos. 158 to 164, Nos. 166 to 169 and Nos. 179 and 180.
158 Page 41, line 5, after ("words") insert ("cause the work or an adaptation thereof to be")
159 Page 41, line 6, leave out ("included") and insert ("include the work or an adaptation thereof")
160 Page 41, line 12, after ("words") insert ("cause")
161 Page 41, line 13, leave out ("work or sound recordings to be included") and insert ("include works or sound recordings")
162 Page 41, line 21, leave out from ("the") to end of line 26 and insert ("words "the works", in both places where they occur, there shall be inserted the words "or recordings", for the words "cause those works to be transmitted to subscribers to diffusion services" there shall be substituted the words "include those works or recordings in cable programme services provided" and for the words "cause those works to be so transmitted" there shall be substituted the words "so include those works or recordings". ")
163 Page 41, line 43, leave out ("word"") and insert ("words "the programme to be")
164 Page 41, line 44, leave out ("included") and insert ("including the programme")
166 Page 42, line 13, leave out ("subsection—"(3)") and insert ("subsections—
"(3) References in this Act to the inclusion of a programme in a cable programme service are references to its inclusion in such a service by the person providing that service.
(3A) For the purposes of this Act no account shall be taken of a cable programme service if, and to the extent that, it is provided for—

(a) a person providing another such service;

(b) the Corporation; or

(c) the Authority;

and for the purposes of this subsection a cable programme service provided for the Welsh Fourth Channel Authority, the subsidiary mentioned in section 12(2) of the Broadcasting Act 1981 or a programme contractor within the meaning of that Act shall be treated as provided for the Authority.
(3B)")
167 Page 42, line 19, after ("words") insert ("the causing of a work or other subject matter to be")
168 Page 42, line 21, leave out ("included") and insert ("including a work or other subject matter")
169 Page 42, line 23, leave out from ("for") to end of line 25 and insert ("paragraph (c) there shall he substituted the following paragraph—
"(c) including the work or an adaptation thereof in a cable programme.".")
179 Page 44, line 13, leave out ("transmitted") and insert ("causes")
180 Page 44, line 14, leave out ("included") and insert ("includes a performance to which the principal Act applies, or any part of such a performance,")
They all deal with provisions in Schedule 2 which amend the Copyright and Performers' Protection Acts.
Moved, That this House doth agree with the Commons in the said amendment.— (Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
155 to 226 [Printed earlier: cols. 1573–4, 1576–8, 1582, 1587, 1615 and 1617.]
227 Schedule 2, page 52, line 33, leave out ("under Part I of the Cable and Broadcasting Act 1984")
228 line 40, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984")
229 Page 53, line 2, leave out ("Telecommunications Act 1984") and insert ("1984 Act")
230 line 9, leave out ("established under section 1 of the Cable and Broadcasting Act 1984")
231 to 234 [Printed earlier: cols. 1577 and 1614–15–17.]
Lord Elton: I beg to move that this House doth agree with the Commons in their Amendments Nos. 155 to 234 inclusive, which I am happy to tell your Lordships are all consequential.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
235 Schedule 3, page 54, line 3, at end insert—

("9 Edw. 7. c. 30.

The Cinematograph Act 1909.

In section 1(3), the words "under Part IV of the Telecommunications Act 1984".

12, 13 & 14 Geo. 6. c. 54.

The Wireless Telegraphy Act 1949.

In section 19(1), the proviso.

15 & 16 Geo.6 & 1 Eliz. 2 c. 66.

The Defamation Act 1952.

Section 16(4).

1955 c. 11 (N.I.).

The Defamation (Northern Ireland) Act 1955.

Section 14(3).

4 & 5 Eliz.2 c.74.

The Copyright Act 1956.

In section 2(3), the word "and" immediately preceding paragraph (d).")

Lord Elton: My Lords, I beg formally to move that this House doth agree with the Commons in Amendment No. 235, and I wish to speak to Amendment No. 239.
239 Page 54, line 36, column 3, at beginning insert—
("In section 43(2), the words "(within the meaning of Part IV of this Act)". Section 92(3).").
Both amendments simply affect a number of repeals to other enactments which are consequential on amendments to which I have already spoken. I beg to move.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)
On Question, Motion agreed to.
COMMONS AMENDMENTS
236–242 [Printed earlier: cols. 1583, 1593, 1601, 1615 and 1618.]
Lord Elton: My Lords, I beg to move that this House doth agree with the Commons in Amendments Nos. 236 to 242, and it is with even greater relief that I tell your Lordships that Amendments 236 to 242 are consequential. I do not have any more amendments and I beg to move.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)
On Question, Motion agreed to.
House adjourned at a quarter past ten o'clock.