Lords Sitting of 8 March 1984

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lincoln.

Gatwick Airport: Runway Capacity
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in the light of recent developments, they are still of the opinion that Gatwick Airport is best served by a single runway.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): My Lords, the Government have made it clear that they do not intend to pursue the possibility of a second runway at Gatwick. We remain of the view that with the trend to larger aircraft the single runway will be able to handle 25 million passengers a year, the estimated capacity of Gatwick's two terminals, by the mid-1990s.
Baroness Burton of Coventry: My Lords, may I ask the Minister whether he has noted the leader in the 25th February issue of Flight magazine? It comments on,
"an inadequate form of Gatwick development—a single runway when, for safety alone, it should have two runways for planned traffic".
May I ask the Minister also that when the British Airports Authority is privatised and its airports are offered for sale, will a condition of the sale of Gatwick Airport be that no second runway is ever to be laid down?
Lord Trefgarne: My Lords, to answer first the second part of that supplementary question, if Gatwick Airport were to be privatised as the noble Baroness suggests—and I emphasise that no decision, let alone announcement, has been made on that—then all property rights, liabilities and obligations of the statutory body would be transferred to any successor company as they stand. The position would therefore be unchanged by privatisation, or whatever it was decided to do.
As to the leader article in Flight to which the noble Baroness referred, there are really no implications for safety in the question whether there is one runway or two runways. As the noble Baroness will be aware, it is in any event planned that the northern taxi-way at Gatwick should be available as a second runway for emergency purposes.
Baroness Burton of Coventry: My Lords, what the Minister has said is of great interest in view of the possible privatisation of the authority. Without wishing to embarrass the Minister unduly, but just to jolt him a little, would he care to refer to the debate we
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had in this House on 24th January 1979, when the views he himself then expressed were very differernt from those he has expressed today on this matter? As the noble Minister himself is a skilled pilot, presumably he is having to say—and I fully understand this—what the Government intend. But perhaps he will read that previous debate.
Lord Trefgarne: My Lords, I will certainly refresh my memory of the debate to which the noble Baroness has referred, although I believe that I was speaking from the Dispatch Box opposite. Be that as it may, circumstances have changed pretty substantially in that time, and I have no doubt that a new view is now appropriate.
Lord Boyd-Carpenter: My Lords, will my noble friend confirm that, as I believe has been more than once stated, the assurance given by the British Airports Authority to a local pressure group against the building of a second runway does not hind the Government?
Lord Trefgarne: My Lords, I do not think I could describe West Sussex County Council as a local pressure group. It was indeed to that body that the British Airports Authority gave that undertaking. As I said in answer to the noble Baroness, the rights, liabilities and obligations of the statutory body will be transferred to any successor company when and if that should come to pass.
Lord Beswick: My Lords, will the Minister bear in mind that when Gatwick Airport was orginally planned—and I had something to do with that planning—it was always intended that there should be two runways? Also, is he aware that the arguments against two runways have absolutely nothing to do with wide-bodied aircraft development but with the protests of the residents around Gatwick?
Lord Trefgarne: My Lords, I believe there has been a good deal of misunderstanding about the advantages or otherwise which may flow from a two-runway layout at Gatwick. For example, two runways were contructed at Heathrow, and it has not proved possible in the light of modern standards to use both those runways to the maximum extent. If a second runway were to be constructed at Gatwick, it would only increase the busy rate, as it is called, in terms of aircraft capacity by about 10 per cent.
Lord Beswick: My Lords, the Minister is not being quite frank with the House. Will he give the House the possible movements at Heathrow with two runways and the possible movements at Gatwick with one runway?
Lord Trefgarne: My Lords, the question of movements at Heathrow is, I submit, another question. At any rate, and as the noble Lord will be aware, movements at Heathrow will be subject to a limit after Terminal 4 comes into use.
The Earl of Onslow: My Lords, is my noble friend aware that people living in those parts of Surrey and Sussex which surround Gatwick are extremely pleased

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that there is not to be a second runway there? We suffer enough from noise pollution as it is.
Lord Trefgarne: My Lords, I am pleased to hear that at least one of my noble friends is happy.
Lord Jenkins of Putney: My Lords, is the noble Lord the Minister aware that presumably the people living under the flight-paths at Heathrow would warmly welcome the development of a second runway at Gatwick?
Lord Trefgarne: My Lords, I have endeavoured to explain that were a second runway to be built at Gatwick it would offer little in the way of relief to those who live around Heathrow.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that the establishment of Gatwick Airport has provided most valuable employment in the neighbourhood? Were the airport to be allowed to expand to the size orginally planned it would also increase the useful provision of employment, which is very acceptable to many people living there.
Lord Trefgarne: My Lords, I am sure that the employment advantages to which my noble friend has referred are indeed welcome to people who live in the district—but the noise of the airplanes is less so.
The Earl of Onslow: My Lords, is my noble friend aware that Surrey and Sussex are not unemployment blackspots and so the argument about employment would be much more valid if applied to Newcastle, Liverpool or possibly Scunthorpe? Certainly it does not apply to Surrey or Sussex.
Lord Trefgarne: My Lords, my noble friend is quite correct. The difficulty is that the passengers tend to come from the South-East and not the places to which my noble friend refers.
Lord John-Mackie: My Lords, will the noble Lord also remember that the people of Bishop's Stortford, Epping and Harlow will be delighted with developments at Heathrow and Gatwick?
Lord Trefgarne: My Lords, the noble Lord is no doubt quite correct, but that is another question.
Lord Underhill: My Lords, the noble Lord referred to the maximum possible passenger capacity at Gatwick. Can he inform the House whether there is a fixed figure of annual aircraft movements at Gatwick?
Lord Trefgarne: My Lords, the maximum annual number of passengers that we anticipate at Gatwick is, as I said in my original Answer, about 25 million when both terminals come into use. That predicates about 100,000 movements a year.

Cruise Missiles and Arms Reduction Talks
3.14 p.m.
Lord Kennet: 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 consider that it would be useful for cruise missiles (such as the Soviet sea-launched Shaddock and SSNX-21 as well as United States ground, ship and air-launched cruise missiles) to be included in START, or in INF, or in merged arms reduction talks; if so in which, and if not, why not.
Lord Trefgarne: My Lords, long-range nuclear-armed ground-launched cruise missiles were appropriately dealt with in the INF talks and following the SALT precedent long-range nuclear-armed air-launched cruise missiles on strategic heavy bombers were under discussion in START, until the Russians discontinued both negotiations in Geneva. Long-range nuclear-armed sea-launched cruise missiles have not yet been clearly classified for the purpose of arms control negotiations; they are regarded by the United States, and it seems also by the Soviet Union, as strategic weapons.
Lord Kennet: My Lords, do not the Government agree that whether or not a nuclear delivery system has been classified as this, that or the other, is not of great interest to the peoples of the world? What is of interest is that their reduction and elimination should be negotiated about. What is the justification for leaving this category of nuclear delivery system out of all negotiations in the past and, as far as we know, in the future?
Lord Trefgarne: My Lords, the United States Administration has stated its readiness to consider all strategic nuclear weapons in the START talks. It now only remains for the Russians to return to the table.
Lord Cledwyn of Penrhos: My Lords, since the Stockholm conference there have been sporadic reports that the INF and START talks might be reconvened. There have been recent reports that the Russians might be prepared to attend the START talks as early as April. Can the noble Lords say whether the Government have any expectation that the talks might be reconvened? Indeed, are the Government pressing for the resumption of the talks?
Lord Trefgarne: My Lords, we certainly hope that the START talks can be reconvened. The Soviet Union has not yet said it is willing to do that, but we hope it is and urge it to do so.
Lord Brockway: My Lords, in view of the warmer climate in international affairs now and the fact that there are three conferences meeting at the present time dealing with disarmament, cannot the Government take the initiative to raise proposals at these conferences, particularly in view of Soviet suggestions, for ending nuclear weapons in Europe?
Lord Trefgarne: My Lords, I am not sure that it is as easy as the noble Lord suggests. We are, of course, willing to play our part in the various discussions to which the noble Lord has referred. However, it must be recognised that the main forum for discussions of this kind must be a forum involving, above all, the two super powers.
Lord Paget of Northampton: My Lords, as we have for many years now learned to live with a mutual level of total destruction, what is there left to talk about?
Lord Trefgarne: My Lords, not for the first time I do not entirely follow the drift of the noble Lord's supplementary question. However, I would like to see a reduction in the level of nuclear weapons across the world provided that that can be achieved in a balanced and verifiable manner.
Lord Renton: My Lords, does my noble friend recollect what my noble friend Lord Home of the Hirsel said in our debate on 29th February about the importance of verification of agreements on disarmament, and so on, and the Russian reluctance ever to agree to any verification of any kind so far? Can my noble friend the Minister do his utmost to ensure that this point is brought home to the Russians as a test of their sincerity?
Lord Trefgarne: My Lords, my noble friend is quite right that verification has often proved to be the stumbling block in these negotiations. That is why we made important new verification proposals at the current talks in Geneva in connection with chemical weapons.
Lord Jenkins of Putney: My Lords, does the noble Lord agree that verification of the cruise missile is particulary difficult and that it is, therefore, particularly necessary to bring this type of missile under some form of agreed control? What proposals does the noble Lord have for bringing the cruise missile under generally agreed and verifiable control?
Lord Trefgarne: My Lords, if the noble Lord is referring to sea-launched cruise missiles—as perhaps he is, and which are the subject of this Question—I agree that they are somewhat difficult to verify. That is why we must get round the table and talk about it. We are ready to do that at the START talks.
Lord Carver: My Lords, arising from the last supplementary question, may I ask whether the noble Lord has taken note of a recent report by the British Atlantic Committee, which was approved by an ex-Chief of the Defence Staff—not myself—an ex-permanent under-secretary of the Ministry of Defence and an ex-chief scientist of the Ministry of Defence, which draws attention to the very serious matter that it is at the moment quite impossible to distinguish between a cruise missile carrying a nuclear warhead and a cruise missile carrying a conventional warhead?
Lord Trefgarne: My Lords, the noble and gallant Lord is of course quite correct that there is a difficulty of that kind. There are other difficulties, too. However, I believe that these difficulties ought to be capable of solution, but we must get round the table to talk about the matter.
Lord Kennet: My Lords, would the House be correct to infer from the series of answers given by the noble Lord to supplementary questions that his answer to the original Question is, yes, in the Government's view
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it would be useful if these missiles were considered in disarmament negotiations instead of being ignored?
Lord Trefgarne: My Lords, the Answer was as I gave it.

Medical Practitioners: Employment Statistics
3.20 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 whether statistics of the numbers of unemployed doctors are to be collected now that they do not have to register by profession at unemployment benefit offices.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): No, my Lords. We see no need to collect them as we have no evidence of significant medical unemployment at the moment.
Lord Molloy: My Lords, I am very grateful to the noble Lord the Minister for that admission. Of course, the Government have no evidence because they do not collect the figures. Is the noble Lord aware that the British Medical Association feels very strongly on this subject, since doctors are no longer allowed to register as being unemployed as doctors, and wishes to know the numbers so that it may gauge the problem and be able to help its members and also the National Health Service? Therefore, is the noble Lord not prepared to consider the matter?
Lord Glenarthur: My Lords, I am aware that in July 1982 the Hospital Junior Staff Committee carried out a survey, although I believe that the results were never published. The estimate of 2,000 unemployed doctors attributed to the survey was subsequently denied by the BMA. I can tell the noble Lord that I understand that a further survey is to be carried out by the BMA juniors this year.
Lord Morris: My Lords, surely it is for the unemployed doctors to inform the BMA of the fact rather than for the BMA to use the Department of Employment as an information collecting centre?
Lord Glenarthur: My Lords, I have no doubt that they do exactly that.
Lord Ennals: My Lords, would the noble Lord the Minister care to comment on the report in The Times yesterday that the Secretary of State for Social Services is studying ways of limiting the number of doctors in general practice, including those with list sizes of between 1,700 and 2,100? Is he aware that such action was recommended, not by the Medical Practices Committee but by Binder Hamlyn, a firm of accountants? Is he further aware that not only would such action be against the interests of the public, who rely very much on their general practitioners, but it would also be much resented in the medical profession if the judgment of a statutory body were to be overruled?
Lord Glenarthur: My Lords, Ministers are studying the Binder Hamlyn report at the moment, and there is nothing more that I can say about it.
Lord Molloy: My Lords, is the Minister aware that the BMA feels strongly about this matter simply because it wishes to gauge the extent of unemployment among doctors? As the noble Lord has said, it is probably true that the majority of those involved are junior doctors, but it does not mean to say that because they are junior doctors it does not matter. In fact, I am reliably informed that the problem of unemployment goes right the way up, and even some consultants are unemployed. Should there not be sensible co-operation between either the BMA and the DHSS or the BMA and the Department of Employment? The sole purpose of asking this Question is in the hope of getting sensible co-operation between the Government and the BMA.
Lord Glenarthur: My Lords, there is of course sensible discussion between the BMA and the department. In the department we already collect a large range of statistics relevant to the planning and control of medical manpower, and in particular to help in projecting the supply of and demand for doctors. We are reviewing the entire range of information collected; but at present, as I have said, we see no need to collect additional statistics.
Lord Ennals: My Lords, I am most grateful to the noble Lord for saying that Ministers are considering the recommendations of the Binder Hamlyn report, but can he give the House any indication at all as to when decisions will be taken and, if so, whether any Statement will come before your Lordships' House? It would be a matter of very great concern if the Government were to limit the growth of the general practitioner service.
Lord Glenarthur: My Lords, I am not able to give the noble Lord any indication of timescale. As for a Statement, that is of course a matter for my right honourable friend and the usual channels.
Lord Molloy: My Lords, I must press the point. Is the noble Lord aware that we are not asking for something new but simply, on behalf of the BMA, that the practice which existed for many years and which was very useful should now be reinstated in the interests of the Government, of doctors and, generally, of our National Health Service?
Lord Glenarthur: My Lords, as I understand it the statistics, and the split among the various groups that might be unemployed, are no longer collected in the way that they were. This, of course, is a matter which more directly affects my right honourable friend the Secretary of State for Employment, but nevertheless, as I said, the DHSS is involved in it. I am sure that my right honourable friend will note the noble Lord's comments, but I very much doubt whether anything can be done about the matter.

Recreational Facilities: Extension of Use
3.25 p.m.
Baroness Macleod of Borve: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what progress they have made in persuading public and private owners of recreational facilities to share them with those in need.
Lord Skelmersdale: My Lords, the Government are anxious to ensure that all sports facilities in both the public and private sectors are more widely used. To this end we have approached the chairmen of all the nationalised industries, chief constables, chief fire officers and over 100 top private sector employers. The response has been very encouraging and we are now taking the initiative forward at the local level. At the same time my honourable friend the Minister for Sport has been considering ways in which shared use of school and other community facilities can be extended.
Baroness Macleod of Borve: My Lords, may I thank my noble friend the Minister most sincerely for that encouraging and helpful reply? I know that the Minister in another place has been actively engaged on this subject since last July. I am very pleased, as I am sure is the whole House, to hear that there has been such an encouraging response.
Lord Skelmersdale: My Lords, I am most grateful to my noble friend. She is quite right: my honourable friend the Parliamentary Under-Secretary is extremely active in these matters.
Lord Hunt: My Lords, does the Minister recall that recommendations in the sense of the noble Baroness's Question have been the subject of many reports over many years, at least as far back as the report of the noble Countess, Lady Albemarle, in 1970? Does he agree that over the past 15 years or so the need has grown very greatly? I feel sure that I am not alone in joining the noble Baroness in expressing great pleasure at what the Minister has said.
Lord Skelmersdale: My Lords, again I am most grateful to the noble Lord. We are slowly winning through, but it is a slow process of encouragement. I think that this is the right way to pursue this activity.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Trefgarne will, with the leave of the House, repeat a Statement which is to be made in another place on an attack on a British vessel at Bandar Khomeini.
It may also be for the convenience of the House if I announce that the Committee stage of the Housing and Building Control Bill will be adjourned at approximately 7 p.m. for a short period for dinner and that during this adjournment the Motor Vehicles (Variation of Speed Limits) Regulations 1984 and consideration of a Commons amendment to the Merchant Shipping Bill will be taken.

Travel Concessions for the Unemployed Bill [H.L.]
3.27 p.m.
Lord Molloy Lord Molloy rose to move, That the proceedings of 10th February last be vacated.
The noble Lord said: My Lords, when the Bill received its Third Reading the usual privilege amendment before the Bill was sent to the Commons was omitted. Such an amendment is necessary because of the financial implications of the Bill. The purpose of this Motion is to enable the error to be corrected by giving the Bill another Third Reading and including the privilege amendment before the Bill is finally sent to the Commons. I beg to move.
Moved, That the proceedings of 10th February last be vacated.—(Lord Molly.)
On Question, Motion agreed to.
Bill read a third time; an amendment (privilege) made; Bill passed, and sent to the Commons.

Pensions Commutation Bill
3.30 p.m.
Lord Glenarthur: My Lords I beg to move that this Bill be now read a second time. The purpose of this minor measure is to modernise the arrangements established by the Pension Commutation Acts of 1871 and 1882, for commuting certain pensions into lump-sum payments. Dissolving the Pensions Commutation Board is expected to lead to a substantial reduction in the administrative costs of providing the commutation service.
The board was originally established by Act of Parliament in 1869. It is composed entirely of officials, the chairman being the director of the national investment and loans office in his capacity as comptroller-general of the National Debt Office. Other members are appointed from the Ministry of Defence, the Department of Health and Social Security, and the Treasury. The right to apply to the Pensions Commutation Board for commutation of part of a pension is conferred by various Acts of Parliament. At present almost all applications come from retired officers of the Armed Forces, although certain civilians in receipt of pensions awarded for abolition of office before the implementation of the 1972 Superannuation Act are also entitled to apply. At present the board is dealing with over a thousand applications a year, involving lump sum payments totalling about £20 million a year.
At the time the board was established, commutation decisions were much more difficult, and potentially more controversial than they are now. That no doubt was why elaborate control procedures were established. However, in recent years, when we have a mass of published information about the likely effects on life expectancy of various medical conditions, much of the work of the board has become routine. Commutation decisions are taken in accordance with tables drawn up by the Government actuary. Most applicants receive the full amount unless medical evidence suggests otherwise.
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In recent years the board has become something of an historical curiosity. It is insulated from the main pensions commutation work of the Ministry of Defence, and the national investment and loans office, with which it is associated, has no other pension or commutation functions. Nevertheless, the board has to meet every six weeks or so. As a result of changes in pension arrangements for the armed forces introduced in 1978, the Board's work will eventually come to an end, but there is expected to be a substantial body of commutation work each year until the end of the century and beyond.
The main effect of this Bill would be to dissolve the Pensions Commutation Board and provide that, in future, the commutation of pensions will be exercisable by the Secretary of State, or, if the Treasury so directs, by another Minister of the Crown or other authority. In practice, this will be the Secretary of State for Defence. The commutation work on officers' pensions will be done as normal departmental business by the division of the Ministry of Defence which deals with other pensions matters.
The Bill is confined entirely to changing administrative procedures. It does not affect in any way the rights of any person who is eligible to be a potential applicant, nor does it affect the amount of money which he is likely to receive. Applicants for commutation are charged a fee which is related to the costs of providing the service. By making the changes proposed in the Bill, we can reduce the administrative costs, and this will be of benefit to applicants. The Officers' Pension Society has been consulted and has raised no objection.
Under the provisions of the 1871 Act, commutation awards are paid out of funds administered at present by the national investment and loans office, and are reimbursed by annuity payments from the votes upon which the respective pensions were charged. To change these provisions could affect the way in which the defence budget is at present controlled, and the Bill leaves them in place. However, it also provides for the financing of commutation awards direct from Votes, and for the early discharge of annuities, thus giving a greater measure of flexibility.
The Bill also provides for the continuing in force of the existing regulations which are concerned with fees and with the commutation tables. This is a very small measure; but I hope your Lordships, will agree that it is a useful one which will secure a worthwhile reduction in costs and greater efficiency. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Glenarthur.)
Lord Barnett: My Lords, I am delighted to welcome this Bill on behalf of the Opposition. It seems, if I may say so to the Minister and to your Lordships, a sensible if modest reform of an Act of 1871. The Minister referred to the situation as being a sort of historical curiosity. I suppose if we were to dispose of all historical curiosities, going back to 1871, we might be here for a long time; but I certainly would not wish to detain the House on this particular Bill. It is welcomed by the Opposition. As the noble Minister has said, it is accepted and welcomed by the officers' pension association and, I gather, everyone concerned with this particular question.

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I only have one or two points, if I may, to put to the noble Minister. First I note in the Memorandum to the Bill—and he himself said—that there will be a substantial reduction in costs. I wonder whether he could give us an estimate of what is meant by substantial. Secondly, I note in the Memorandum to the Bill that the benefits will be taken into account in reviewing the fees to be charged. Does this mean, as I hope it will, that the whole of the savings will be passed on to the pensioners concerned? If so, what is that likely to mean?
Lord Banks: My Lords, I should like to join in thanking the noble Lord, Lord Glenarthur, for his explanation of the contents of this Bill, and to say that we on these Benches fully support it. As he has made clear, it eliminates a body which is no longer necessary: the Pensions Commutation Board, which has been in operation from 1871. Advances in medical science have made the work of the board largely routine, and it does seem sensible to pass is functions over to the appropriate Secretary of State, who will be exercising precisely the same function as the board and will be using precisely the same tables.
I understand from what the noble Lord has said that savings will allow the fees which are paid by successful applicants to be reduced. I should like to ask whether it is necessary to charge a fee, and do those successful applicants who are not covered by the 1871 Act have to pay a fee? What proportion of the cost of the operation of the board at the present time is covered by the fees? The noble Lord has said that the Officers' Pensions Society have raised no objection to the contents of this Bill and nor do we on these Benches.
Lord Glenarthur: My Lords, I am very glad that the noble Lords on the Benches opposite have received this small measure in the way that they have. So far as savings are concerned, the present administrative costs of the Pensions Commutation Board work are in the region of £80,000 a year. With the work being done in effect by the Ministry of Defence, it is estimated that the cost can be reduced by about 50 per cent. or perhaps even more. Most of this will arise from savings in accommodation costs and some from a decrease in staff and changes in staff grades. No staff will be made redundant in this exercise. The fees will not go up, as they otherwise would, over the next 20 years or so, so I hope that is some comfort to the noble Lord opposite. So far as the question raised by the noble Lord, Lord Banks, is concerned, at present fees range from £10 to a maximum of £75, depending on the amount of the award. Most applicants pay £75, although the average is about £73.
No increases have been made to fees while consideration is being given to proposals which are introduced in this Bill. It is therefore unlikely that the savings which will be achieved by this Bill will bring about a lowering of fees. However, they will not go up, as I said just now, by the amount which they would have done under the present system. Fees are only paid by the successful applicants who are told what they will be awarded before they decide to proceed with it.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Prevention of Terrorism (Temporary Provisions) Bill
3.40 p.m.
Report received.
Clause 11 [Information about acts of terrorism]:
Lord Wigoder Lord Wigoder moved Amendment No. 1:
Leave out Clause 11.
The noble Lord said: My Lords, I beg to move that Clause 11 be left out of the Bill, and I do so even though I recognise that as a provision it is a substantial improvement on the form in which it existed in the previous Act. That comes about as a result of the Government's acceptance of several of the recommendations by the noble Earl, Lord Jellicoe, as to the way in which the provision should be improved. As your Lordships will all recall, the clause provides that a person,
"who has information which he knows or believes might be of material assistance…in preventing the commission by any other person of an act of terrrorism",
commits a criminal offence if, without reasonable excuse, he does not inform the police of that information. I venture to regard this clause as the most otiose and objectionable of the whole Bill, and I say that making it clear, if I may, that I am a supporter of the Bill and have no desire whatsoever to weaken its impact in any way.
The provision in Clause 11 is one which has given cause for much anxiety in recent years. Your Lordships will recall that the report of the noble Lord, Lord Shackleton, after considerable and careful examination of the issues, came down against renewing this power. The report by the noble Earl, Lord Jellicoe, after very careful argument, came down marginally in favour of renewing the power. There is scope here, I believe, in particular among those who support the Bill, for honest disagreement as to the impact and the desirability of this clause. The effect of the clause—putting it in terms of perhaps an extreme, but by no means improbable, case—is that if, for example, a housewife in Northern Ireland happens to hear from somebody that her husband may be contemplating the commission of an offence in the near future, she is committing a criminal offence if she does not at once go to the police and report that information.
I would suggest that on that basis there are really four objections that can be made to the clause. First, it is totally unrealistic. It is simply not appropriate to regard as plausible the creation of a criminal offence of that kind in a situation such as exists in Northern Ireland, with all its fears, anxieties, distrusts, reprisals, hostage-taking and so forth. I can speak about those matters only at secondhand, using my imagination, but no doubt many of your Lordships were fortunate enough to hear the noble Lord, Lord Fitt, speak at firsthand about them during the Committee stage of the Bill, and anything that I could say would I think only weaken the impact of anything that I suspect, and hope, he is going to say about this particular clause. So, as I say, first of all the clause is unrealistic in the terms of life as it is lived on the streets and in the houses, flats and apartments of Northern Ireland.
Secondly, the provision in the clause has proved itself to be very largely ineffective, and indeed the noble Earl, Lord Jellicoe, was dubious about the effects and indicated that the legislation could be operated perfectly satisfactorily by the police without the inclusion of this particular power. In Great Britain, from 1974 to the end of 1983, 10 people were convicted under the relevant section of the previous Act. Of these people, only two were sent to prison and the sentences were less than 12 months, which appears to indicate that no very serious criminal is being caught by this particular provision. In Northern Ireland over the eight-year period I think 22 people have been convicted. I have not been able to ascertain what happened to those 22 people. I asked the noble Lord the Minister whether he would be kind enough to write to me before the Report stage, but I can understand that he has been somewhat pre-occupied with other matters. The only importance of trying to discover what happened to those 22 people lies in the point that again it would indicate whether they are serious criminals in possession of really important information who are being caught by the provisions, or whether, as I rather suspect, the contrary is very much the case.
Thirdly, this offence is one which has certainly been unprecedented in the criminal law in our lifetime. I say that because I do not again want to get involved in an altercation with the noble and learned Lord, Lord Denning, who at the Committee stage referred to matters of English law going back some 400 years or so. Leaving that on one side, if I may, I put forward a proposition to which I hope the noble and learned Lord will assent on this occasion, which is simply as follows. In this century there is no recorded case of there being convicted of a criminal offence a person whose only action has been to hear that somebody else might be going to commit a criminal offence and who has not himself in any way been a party, an accomplice, or a conspirator in the commission of that offence. Further, I very much doubt whether it has ever been remotely contemplated by anybody that that should have been done.
I believe that the clause confuses the concept of a moral duty with the concept of a legal duty. I can well understand the moral duty that may rest upon certain people, in certain circumstances, who happen to come into possession of information, to hand it over to the police. But to make it a legal duty, to make it a crime to fail to do that, is, as I said when I began my few observations, not really in accordance with common sense.
The fourth observation that I want to make about the provision as it stands concerns a matter that is not only of historical interest. The provision was introduced—I was going to say by chance, but certainly without any great premeditation—at a very much earlier stage, in one of the earlier Bills, as a result of a Back- Bench amendment. It was never contemplated by the Government, nor indeed by those who advise them, that this was a power that was needed and ought to have been in the original Bill.
Those are the observations that I should like to put forward to your Lordships as reasons why the Bill would be a better Bill if Clause 11 were omitted. I do
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not, may I add, want to go on to the issue that was raised in Committee as to whether the clause in addition to the points that I have mentioned, would have a possible impact upon the freedom of the press and the rest of the media, because I believe that that would be to introduce into this discussion a form of special pleading and to start to suggest that perhaps certain people should have certain privileges which are not available to the community as a whole. I should rather not pursue that line; I believe that the case is strong enough not to have to do so. I would venture to suggest to your Lordships that the Bill would not be weakened by the removal of the clause, but would be strengthened. My Lords, I beg to move.
Lord Denning: My Lords, I still hope that your Lordships will retain the clause. My noble friend Lord Wigoder is quite right in saying that in this century there has been no prosecution for misprision of a felony that may be committed, or is about to be committed. But in respect of a theft or other crime that had been committed and an individual who knew about it not telling the police, as he should have done, there was in 1960 a prosecution and a conviction. It was a simple case which might occur at any time. The owner of a car let it out, and the hirer dealt with it fraudulently. Then, in order to track down the matter the police went to the owner, and instead of telling the police the truth about it and telling them to whom he had let the car he told a lie and put the police off the scent.
These statements putting the police or the authorities off the scent were clearly misprision of felony and the court, presided over by my noble and learned friend Lord Parker, so held. That was the position only 20 years ago when misprision of felony was applied to a man who put the police off the scent. As I stated in Committee on this Bill the House of Lords in 1962, when I was presiding, declared that it was still an offence in English law. It was only taken away—by mischance, almost—in 1967. That is in regard to offences that have been committed where you want to trace the offender. Surely, a person who knows what has happened and puts the police off the scent is guilty of an offence. More important is the case in which a person knows that a bomb is to be planted or that a bank raid is to take place. That is a matter of general law. However, if a bomb is to be planted, an ambush laid, or whatever may be the case, the person ought to tell the police. If he tells the police, the bombing and the murders could be prevented. If he does not tell the police or perhaps even puts them off the scent, is that to be, or not to be, an offence? Under this clause it will be an offence, repeating in some respects what has existed in Northern Ireland before.
I submit that it is a matter of justice to the community as a whole. An individual who withholds information that could save lives is quite properly to be brought before the court. The illustration given by the noble Lord, Lord Wigoder, was that of a wife or mother of a terrorist. They might well have a reasonable excuse for not informing. This clause only applies when the information is withheld without reasonable excuse. The instances that I have put are those in which there is no reasonable excuse for the individual who knows that a terrorist crime has been committed or is about to be committed. That person

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is rightly to be guilty of an offence that extends back hundreds of years in our law.
Although statistics may show that there are not many prosecutions, the number of prosecutions does not test the efficacy of the law. When the police can remove a person's doubts and tell that person that it is his duty to tell them what he knows, it may help them in getting vital information. Statistics do not count. I recognise what the noble Lord, Lord Shackleton, said. However, the noble Earl, Lord Jellicoe, in an excellent report, following careful examination, recommended that the clause should be retained. In exceptional cases, concerning relatives and so forth, it should not apply. I ask your Lordships to retain the clause.
Lord Fitt: My Lords, I have advanced arguments against this clause in another place and in this House. It is obvious from the remarks made today that none of us has found a Damascus road since we last debated the matter; none of us has been converted into a change of opinion. I wish briefly to say, again and again, that this clause is superfluous to the Bill. The clause will not strengthen the Bill. In the eyes of many people, the clause is completely unrealistic. I do not know whether the noble and learned Lord, Lord Denning, knows this, but there are people in Belfast and in Northern Ireland generally who do give information to the police about both crimes that they think are about to be committed and those which have been committed. We have in Northern Irleand a confidential telephone, which is used frequently, as the authorities will confirm. It is the position therefore that people do give information to the security forces without the compulsion that appears to be contained in this clause. I believe that those who are going to give information to the security forces will not be influenced by this clause. Those who are not going to give information will not be prepared to change their minds because of the existence of this clause in legislation.
This may be an appropriate time, since we are discussing the prevention of terrorism, to express our regret over the brutal and vicious murder of the young prison officer buried today in Belfast. There must be thousands of people now living in Northern Ireland who have been aware that a terrorist crime is going to be committed or that a terrorist crime has been committed. The existence of the Clause 11 offence did not change their minds one way or the other.
I have repeatedly spoken and voted against this legislation. If my noble friends wish to take the issue into the Lobbies this afternoon, I shall again vote against the inclusion of Clause 11. I believe that it is totally unrealistic in the circumstances that prevail in Northern Ireland. Far from helping the Bill, the clause brings it into a certain amount of disrepute.
Lord Hylton: My Lords, like the majority of your Lordships, I hesitate very much before crossing swords with the noble and learned Lord, Lord Denning. However, it seems to me that we can either rely on the patriotism and civic sense of people at large, or we cannot. If we cannot rely on that sense, this clause will not make them come forward with the evidence.
Lord Shackleton: My Lords, unlike the noble Lord, Lord Hylton, I have such an affection for the noble and learned Lord, Lord Denning, that I am not afraid of disagreeing with him. His arguments are very powerful. However, as a supporter of the Bill, I am bound to say that we still need to look very closely at every detail. The noble Earl, Lord Jellicoe, came to a different conclusion to the one that I reached in my earlier inquiry. The noble Earl had additional information which made him come down on the opposite side. I would, however, say to your Lordships concerning legislation which I have never called draconian—I have, indeed, suggested that it is an excessive description—that the fact remains, for reasons that my noble friend Lord Fitt gave, that it is not really a very good thing to have an Act that people are contravening every day of the year.
There is no doubt that people in Northern Ireland are aware of these matters. To have a criminal offence that is ignored seems, in the first instance, to be bad law. The noble Lord, Lord Wigoder, thought that the argument with regard to the press or the BBC was not a very good one. I am bound to say that it is an extension that nobody foresaw when this particular provision was put into the Bill. I would therefore say to your Lordships that this is not an issue on which we should quarrel on party political grounds. It is one that we should be examining to see whether it is really essential or whether it does damage to the effectiveness of the Act and, incidentally, produces effects that were not foreseen. It is always the danger in dealing with matters of human rights, as we shall be able to say on other matters, that there will be some further extension. I would hope that the public spirit, the BBC and the press will recognise their responsibilities. I am not in favour of having them threatened, as they have been by the Attorney General, and, therefore, with a good deal of reluctance and some hesitation, it is still my view—not because it was my view several years ago—that we ought to leave this clause in the Bill.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, I should begin by saying that I fully understand the concern underlying the arguments advanced by noble Lords against the offence in Clause 11. I have considered very deeply, in consultation with my right honourable friend the Home Secretary and with colleagues in Northern Ireland and elsewhere, whether we could agree to relinquish the clause or to remove Section 1A, to which most criticism has been directed. We have been driven to conclude that we should be wrong to do so, and I must dwell for a moment on that.
It may be helpful to your Lordships if I give some illustration of the kind of case in which prosecutions have been brought for the offence now embodied in Section 11 of the 1976 Act, and which are to be embodied in this clause. In Great Britain, eleven of the 13 prosecutions were against people who had had knowledge of the whereabouts of a notorious provisional IRA terrorist and who had not given that information to the police. The remaining two related to persons who had information about the manufacture of incendiary devices and the whereabouts of weapons stores.

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These are serious matters—a dangerous and ruthless terrorist at large in Great Britain, details about weapons and devices which could be used to kill and to maim. People who have this kind of information and do not give it to those who can act upon it and thus save life are actually acquiescing in the bloodshed and mayhem which may follow from their failure of public spirit.
Because of the greater number of prosecutions in Northern Ireland, I cannot be as specific about individual cases there, but I can say a little about the kind of case in which changes are brought. As we all know—and none better than the noble Lord, Lord Fitt; (and I would join with him at this point in his condolences to those so recently bereaved)—one of the ways in which terrorists operate is by hijacking cars or taking over a house to carry out their crime. Clearly, when a person is held prisoner there is no way in which he can give information, but there are cases often involving people who sympathise with the terrorist cause but who do not wish to become actively involved, in which an agreement is made that the police will not be informed about a stolen car or about a house which has been or is to be taken over until a certain period has elapsed. I believe it is right that where people have done this—perhaps in the full knowledge that the car would be used to facilitate an attack or actually to kill somebody, or the house would be used as a snipers' perch—they should be subject to the process of law.
The noble Lord, Lord Fitt, spoke at Committee stage with convincing passion and this afternoon with convincing coolness of conditions in the Province and of the appalling fear in which honest men and women can be put when they are used as the utterly unwilling tools of terrorism or when they are put entirely innocently in possession of information about terrorist deeds and terrorist intentions. The noble Lord reminds us, in the stark language of experience, that people can be threatened with terrible reprisals if they give information that will lead to the arrest of a terrorist criminal or the forestalling of a terrorist crime.
I ought to remind your Lordships of two things. The first is the extent to which the authorities in the Province are now able to keep secret the identity of those who give them such information. The noble Lord himself has drawn attention to one scheme which enables them to maintain secrecy of identity. The noble Lord is familiar with the Confidential Telephone Service. It is open to anyone, anywhere to ring Belfast 652155. No one has to give a name. The calls are not traced. The identity of callers is not known.
If, later, the caller were to fall under suspicion of an offence under Clause 11, to have made the call would be an immediate bar to further proceedings, He, or she, would merely have to say when it was made and if indeed it had been made that would be that—and there would be no publicity. But the noble Lord will say that one cannot always get to a telephone, or that in some cases one can only do so by putting oneself at risk of being suspected by terrorists of giving terrorist secrets away to the police.
There is, as I have said before—and the noble and learned Lord, Lord Denning, has very helpfully
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reminded your Lordships of it—the defence of reasonable excuse provided in subsection 1. The courts are familiar with conditions in the Province. They are as capable as your Lordships of weighing the terrible conflict of interests, of loyalties, even of instincts, under which people there may be required to live. We ought not to assume that they will in some way forget that they are dealing with human beings who love one another and fear for one another as well as for themselves, and I do ask your Lordships to have confidence in the judiciary to do its job, which is a necessary part of the job of protecting society from both the evil corrosion of terrorism and the unjust operation of the law.
The noble Lord, Lord Shackleton, expressed concern about the possibility that journalists may be hampered in their proper functions by the knowledge that they may be liable to prosecution for this offence. As I said during the Committee debate on this clause, I do not accept that journalists should be under an obligation different from that applied to the rest of the population. If they have information which they know or believe might be of material assistance in preventing acts of terrorism or in leading to the capture of terrorists, and the withholding of such information is an offence under this legislation—as I believe it must remain—it must be an offence for journalists, too.
Lord Shackleton: My Lords, if the noble Lord the Minister will allow me to correct him, I did not say that journalists should be exempted. I said that an unforeseen and undesirable consequence of using this sort of power was that it would hamper them, and that the ordinary moral and disciplinary conditions should apply. I did not suggest that they should be exempted.
Lord Elton: My Lords, I did not wish in any way to misrepresent the noble Lord, and if I have, I apologise. It seems to me there is still force in the argument that journalists should be subject to the same legal and moral obligations as the rest of us, and it ought not to be necessary to distort legislation in order to protect their profession for any purpose.
I am quite clear that there can be no exemption for journalists, and that the safeguards for them must be the same as the safeguards for everyone else. Those safeguards consist principally of the defence of reasonable excuse and the objectivity of the courts. Given the exceedingly modest use that has been made of this power, they will not have need of that safeguard over often.
There is also the reassurance given by paragraph 3, Schedule 3, to which I failed to draw your Lordships' attention at Committee stage and for which the noble Lord, Lord Monson, asked, that proceedings cannot be instituted without the consent of my right honourable and learned friend, the Attorney General or, in Northern Ireland, the Attorney General for Northern Ireland.
The noble Lord, Lord Wigoder, has said it would not be realistic to seek to keep this clause in the Bill and that it confuses moral with legal duty. In the circumstances of Northern Ireland particularly, and in the country at large and generally, there is a lot of advantage if legal and moral duties do unmistakably coincide.

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Some of your Lordships view this clause with a certain distaste, and that I understand, but terrorism is a far more distasteful matter. There is no question in my mind that the cure is a great deal better than the disease and it is well worth keeping in the Bill. I hope I have made that clear.
Your Lordships will be looking at this clause not on its own but as a part of the Bill, and you will be looking at the Bill not on its own but in its proper context. An important part of that context is made up of the safeguards to the operation of the Bill as a whole, and the Bill itself provides important safeguards. For a start, Parliament will have an opportunity to scrutinise the case for continuing the Act each year. That is not a new provision and there were some complaints at Committee stage that perhaps Parliament seemed to treat that renewal as routine. The remedy for that must to a large extent rest with individual members of this House and in another place.
A new safeguard in the present Bill is that the life of the Bill, once enacted, cannot be extended beyond five years. Parliament would have to look de novo at the entire Act if it was thought that any of these powers should continue beyond that time. Those are important safeguards. I hope that House will accept that the Government does recognise and welcome close scrutiny of these exceptional powers. It is clear from the Marshalled List, however, that several of your Lordships would like to see some additional safeguards. It is upon that in particular that the Government has focussed its attention since Committee stage.
I do not think that your Lordships would wish me to speak now to the amendments to later clauses. If I were to do so I am afraid that this debate would snowball into confusing proportions. Noble Lords will wish to know, however, that we have proposals on both Clause 12 and Clause 14 which differ from those on the Marshalled List, but which are addressed to the same essential problems. We recognise the desirability of finding something stronger than a merely administrative way of limiting the powers at large in Clause 12. We also recognise the desirability of adding a further dimension, in the form of a commission, to the supervision of the working of the Act which rests at present with the Secretaries of State and Parliament itself.
I do not wish your Lordships to let that earnest of good intentions cloud your judgment of the merits of the present question—that Clause 11 should not stand part of the Bill. Emphatically, I believe that it should do so. My noble friend Lord Jellicoe believes that it should do so. The noble and learned Lord, Lord Denning, believes that it should do so. I hope your Lordships will agree with us all that it should do so.
4.12 p.m.
Lord Mishcon: My Lords, we are dealing in this amendment with a proposal which was put forward by my noble friends and myself and by the noble Lord, Lord Wigoder, and his friends at the Committee stage. It is repeated today from both Benches and it is supported by no less a Member of your Lordships' House than the noble Lord, Lord Shackleton, whose report was viewed with the utmost interest and
378
admiration when it came before your Lordships' House. Therefore, your Lordships will find that there is very ample support for the Motion, That Clause 11 should not stand part of the Bill. It means that the Motion has received support from people who have said that they regard this Bill as being a very necessary Bill, and who have supported all its other measures. Why, therefore, is there the thought in their mind that Clause 11 should be omitted?
I intend to deal with only two matters. The first is that those of us who are accustomed to the sanctions of criminal law find this clause offensive in that it does not deal with a perpetrator of a crime or someone who is at all interested in the crime itself; it deals with the failure to give information. We must view this, as the noble Lord, Lord Fitt, has said—and who has had better experience of terrorism than he?—against the background of Northern Ireland in its present lamentable state.
We view it in that context, knowing—and the noble Lord, Lord Wigoder, briefly referred to this matter, but I would like to give a little more detail—that we are dealing with a clause which found its way into the prevention of terrorism legislation by a very odd course. It was not even in the 1974 Bill. It was not even in the 1976 Bill when it first came before Parliament. The first time it ever came into existence at all was by an amendment that was moved at Committee stage and which was at first resisted by the Government as being unnecessary, but eventually the Government had second thoughts in view of the amendment moved by a Back-Bench Member, and it has now found its way into this Bill. So it has not had "an origin of necessity" (if I may put it that way) so far as anyone dealing with this legislation is concerned.
Secondly, the noble Lord the Minister was perfectly fair, as he always is, in referring your Lordships, according to the information given to him, to how this measure was working out in prosecutions that had taken place and in the investigations of the police. One got the impression that it had to be a pretty diehard case—if I may put it that way—before the police even seriously investigated it.
I am going to read to your Lordships from a very recent account of a case under Section 11—the very one with which we are dealing—in the Irish News of 20th February 1984, only a matter of a couple of weeks ago. I am told—and I could not have a better authority—that the Irish News is a most reputable paper and one which is very objective in its editorial policy.
Having said that, let me read to your Lordships this extract. I shall read it in full because I believe that it will weigh with your Lordships very heavily indeed, because it will give your Lordships a completely contemporary idea of the evil of this clause. It is headed, "Escape hostage may be charged". It says:
"Belfast: A man whose terrified family was held hostage during the mass IRA escape from the Maze jail last year could face criminal charges.
"An official RUC report on hostage victim 38-year-old Ian McFarlane has been sent to the Director of Public Prosecutions. RUC sources believe he could be accused of withholding information about the eight escapers who burst into his isolated home last September.

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"For six hours Mr. McFarlane, his wife and three young sons were held hostage at their cottage near Dromore, Co. Down.
"As they fled, the fugitives made Mr. McFarlane swear on the family Bible that he would not alert police search parties combing the area for 72 hours.
"A deeply religious church-goer, Mr. McFarlane kept his oath after consulting his local preacher.
"Since then, the McFarlane family has lived in fear of IRA reprisals and wants to emigrate to England. But the husband cannot leave the North until the DPP decides whether to prosecute. An RUC spokesman said: 'A file on the McFarlane incident and its circumstances has been sent to the DPP for direction"'.
I have read an account from the paper concerning the McFarlane family, dated only a matter of three weeks ago. I could not, in my view, put forward a more eloquent argument for the Motion, That Clause 11 should not stand part of the Bill.
Lord Wigoder: My Lords, there is little that I can add to that. Does the noble Lord, Lord Elton, want to say something?
Lord Elton: Yes, my Lords, with the leave of your Lordships' House. The noble Lord has just quoted a specific case with which I am not familiar and which may indeed be sub judice. So I cannot really comment on that specific case. But I did make copious reference to "reasonable excuse", and the noble Lord will probably have some idea of what plea might be entered. But I do not think that I ought to discuss the case further.
Lord Mishcon: My Lords, I was not dealing—and I think perfectly fairly—with what might happen when this matter reached a criminal court. I left my observations—as did the newspaper—with what had happened to that man in regard to police inquiries. In spite of the words "reasonable excuse", the matter has been referred, according to this report and according to an RUC spokesman, to the Director of Public Prosecutions.
Lord Fitt: My Lords, will the noble Lord give way for just a moment?—because there are exceptional circumstances in the case which has just been referred to—
Noble Lords: Order!
Lord Wigoder: My Lords, I only want to make one or two observations on the points that have been raised in the course of this interesting debate. First, the noble and learned Lord, Lord Denning, referred several times to the position of a person who puts the police off the scent. We are not considering in this clause the question of putting the police off the scent. In this clause we are considering the question of a person who, for particular reasons in particular circumstances, may remain silent. That is all.
In the course of his reply the noble Lord, Lord Elton, gave, first, an example about a person who might know that his car had been stolen and who, by agreement with the thief, remained silent for a particular period of time in order to enable the getaway to
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take place. Unless I am very mistaken, that would be covered by the common law in any event, because the man would clearly be an accessory to an offence that had been committed, and it certainly would not need this clause to cope with him.
Then the noble Lord, Lord Elton, referred to the arrangements by which anonymous telephone calls can be made. I do not think that that meets the problem at all because over and over again, if a person in the conditions prevailing in Northern Ireland is interrogated, it is bound to be apparent to him who, in fact, has given the information, whether it is by means of an anonymous telephone call or a call to a number that cannot be traced, or whatever it may be. I think that it is an unrealistic safeguard.
Thirdly, the noble Lord, Lord Elton, repeatedly referred to the words "reasonable excuse". Short of duress, I am in some doubt as to whether there would be reasonable excuse. I am in some doubt whether, in the case which the noble Lord, Lord Mishcon, raised—and it cannot be sub judice if no charge has been preferred—that reasonable excuse could be put forward, however grave the ordeal the man had, in fact, suffered at the time he was taken hostage.
I would add only one other matter, which is that the noble Lord, Lord Elton, has still, inadvertently, omitted to give the figures as to what happened to the 22 people in Northern Ireland who were convicted under the corresponding section to this one over a period of 10 years. If he would give us the number who were sent to prison and for how long, it might be some indication as to just how seriously the offence is regarded by the Northern Irish courts. If the noble Lord would like to intervene, I am very happy to sit down.
Lord Elton: My Lords, I regret to tell the noble Lord, as a result of inquiries that I made about this on his behalf, as it were, between the stages, in Northern Ireland, that the results of these cases are not separately recorded.
Lord Wigoder: My Lords, I hear that with a certain amount of gloom, if we are to be told at a later stage that there will be particular reviews of the operation of the Act so that the Houses of Parliament can discover just how effective Clause 11 is.
Finally, the noble Lord, Lord Elton, repeatedly referred to people who fail to give information as failing in their public duty or in their public spirit. That may be so, but it depends very much on individual circumstances. But I accept that it may be so. However, what I find quite an unwarrantable intrusion on the ordinary liberties of the ordinary person, particularly in Northern Ireland, is that there should be a law on the statute book saying, in effect, that every failure of that public spirit is a criminal offence. I do not find that acceptable. I know that your Lordships will agree that there is room for an honest difference of opinion about the merits of this clause. I think that at this hour that honest difference of opinion should be expressed in the Lobbies.
4.24 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 92; Not-Contents, 129.

DIVISION NO. 1

CONTENTS

Airedale, L.

Listowel, E.

Amherst, E.

Llewelyn-Davies of Hastoe, B.

Attlee, E.

Longford, E.

Aylestone, L.

McNair, L.

Banks, L.

Mais, L.

Barnett, L.

Mar, C.

Beaumont of Whitley, L.

Mayhew, L.

Beswick, L.

Mishcon, L.

Bishopston, L.

Molloy, L.

Broekway, L.

Nicol, B.

Bruce of Donington, L.

Oram, L.

Burton of Coventry, B.

Parry, L.

Caradon, L.

Peart, L.

Carmichael of Kelvingrove, L.

Perry of Walton, L.

Collison, L.

Phillips, B.

David, B.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Denington, B.

Diamond, L.

Prys-Davies, L.

Donaldson of Kingsbridge, L.

Roberthall, L.

Elwyn-Jones, L.

Rochester, L.

Ennals, L.

Sainsbury, L.

Ezra, L.

Seear, B.

Fisher of Rednal, B.

Sefton of Garston, L.

Fitt, L.

Serota, B.

Foot, L.

Shackleton, L.

Gaitskell, B.

Shinwell, L.

Gallacher, L.

Simon, V.

Gladwyn, L.

Somers, L.

Graham of Edmonton, L.

Stallard, L.

Grimond, L.

Stedman, B.

Hale, L.

Stewart of Alvechurch, B.

Hall, V.

Stewart of Fulham, L.

Hanworth, V.

Stoddart of Swindon, L.

Houghton of Sowerby, L.

Stone, L.

Hughes, L.

Strabolgi, L.

Hunt, L.

Strauss, L.

Hylton, L.

Taylor of Blackburn, L.

Ilchester, E.

Thomson of Monifieth, L.

Irving of Dartford, L.

Tordoffi, L.

Jeger, B.

Underhill, L.

Jenkins of Putney, L.

Wigoder, L. [Teller.]

John-Mackie, L.

Wilson of Langside, L.

Kennet, L.

Wilson of Rievaulx, L.

Kilmarnock, L.

Winterbottom, L.

Lawrence, L.

Wootton of Abinger, B.

Leatherland, L.

NOT-CONTENTS

Abinger, L.

Caithness, E.

Adeane, L.

Campbell of Alloway, L.

Ailesbury, M.

Carnegy of Lour, B.

Alexander of Tunis, E.

Carver, L.

Allen of Abbeydale, L.

Cathcart, E.

Alport, L.

Chesham, L.

Ampthill, L.

Clitheroe, L.

Auckland, L.

Cockfield, L.

Avon, E.

Coleraine, L.

Bauer, L.

Cork and Orrery, E.

Belhaven and Stenton, L.

Cox, B.

Bellwin, L.

Craigavon, V.

Beloff, L.

Cullen of Ashbourne, L.

Belstead, L.

Daventry, V.

Bessborough, E.

Denham, L. [Teller.]

Blake, L.

Denning, L.

Boyd-Carpenter, L.

Drumalbyn, L.

Brookes, L.

Effingham, E.

Broxbourne, L.

Elliot of Harwood, B.

Bruce-Gardyne, L.

Elton, L.

382

Ely, M.

Onslow, E.

Enniskillen, E.

Orkney, E.

Faithfull, B.

Pender, L.

Fanshawe of Richmond, L.

Pennock, L.

Ferrers, E.

Porritt, L.

Fortescue, E.

Portland, D.

Fraser of Kilmorack, L.

Radnor, E.

Gainford, L.

Rankeillour, L.

Glanusk, L.

Reigate, L.

Glenarthur, L.

Renton, L.

Glenkinglas, L.

Richardson, L.

Gowrie, E.

St. Aldwyn, E.

Greenway, L.

St. Davids, V.

Gridley, L.

Sandford, L.

Hailsham of Saint Marylebone, L.

Selkirk, E.

Sempill, Ly.

Hampden, V.

Shaughnessy, L.

Hawke, L.

Simon of Glaisdale, L.

Hemphill, L.

Skelmersdale, L.

Henderson of Brompton, L.

Soames, L.

Hornsby-Smith, B.

Spens, L.

Hylton-Foster, B.

Strathcarron, L.

Kemsley, V.

Strathcona and Mount Royal, L.

Kinnaird, L.

Kitchener, E.

Strathspey, L.

Lane-Fox, B.

Sudeley, L.

Long, V.

Suffield, L.

Lucas of Chilworth, L.

Swansea, L.

Lyell, L.

Swinton, E. [Teller.]

McAlpine of Moffat, L.

Terrington, L.

McAlpine of West Green, L.

Teviot, L.

McFadzean, L.

Thomas of Swynnerton, L.

Macleod of Borve, B.

Thorneycroft,, L.

Mancroft, L.

Tonypandy, V.

Marley, L.

Trefgarne, L.

Merrivale, L.

Trenchard, V.

Mersey, V.

Trumpington, B.

Middleton, L.

Tryon, L.

Milverton, L.

Vaizey, L.

Molson, L.

Vaux of Harrowden, L.

Mottistone, L.

Vickers, B.

Mowbray and Stourton, L.

Vivian, L.

Munster, E.

Wardm of Witley, V.

Murton of Lindisfarne, L.

Westbury, L.

Northchurch, B.

Whitelaw, V.

Nugent of Guildford, L.

Resolved in the negative, and amendment disagreed to accordingly.

Attack on "The Charming" at Bandar Khomeini
4.32 p.m.
Lord Trefgarne: My Lords, with your permission, I should like to repeat a statement being made in another place by my right honourable friend the Minister of State for Foreign and Commonwealth Affairs about the recent attack on a British vessel near Bandar Khomeini. The Statement is as follows:
"We learnt on 7th March that a British-registered ship, "The Charming", which formed part of a convoy under Iranian protection, was hit in an Iraqi attack in the northern Gulf on 1st March? The attack took place within Iranian territorial waters in the approaches to Bandar Khomeini.
"The ship, which was carrying a cargo of alumina ore, is reported to be substantially damaged and aground outside Bandar Khomeini. I am glad to say that none of the crew was seriously hurt and I understand that most of them have now left Iran. It has been reported that Turkish and Indian ships forming part of the same convoy were also hit.
" 'The Charming', like other ships in the convoy, had been and was required to maintain radio silence. Her owners did not subsquently inform Her

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Majesty's Government about the attack on their ship, and have requested no assistance.
"Her Majesty's Government deplore this incident and indeed all attacks on shipping in the Gulf area. We have summoned the Iraqi Ambassador to protest at his Government's action and to demand an explanation of it.
"Her Majesty's Government remain deeply concerned to see an early end to the wasteful and destructive conflict which is continuing between Iraq and Iran. We are working vigorously with the international community to that end."
My Lords, that is the Statement.
Lord Bishopston: My Lords, the House will be grateful to the Minister for repeating the Statement made in the other place. We recognise that it could refer to what is an increasingly menacing situation. The House will be relieved that despite substantial damage to the British-registered ship, none of the crew was seriously hurt. Can the Minister say why the owners were not in touch with the Government about the attack on their vessel on 1st March? We understand news came on 7th March and that they sought no assistance.
Can we be told any news about other British vessels in the area? The lack of communication could mean that others may be affected and that we are unaware of the situation. Is the Minister able to say what protection is being afforded by the Government while avoiding being drawn into the conflict? Does the reference in the Statement to Her Majesty's Government
"working vigorously with the international community"
for an early end to the conflict—a statement I am sure we all welcome—mean also that we are in touch with the United Nations? Finally, with the dangers of escalation, it is vital to be in touch with the super powers. We are grateful for the Statement and would appreciate replies to some of these questions.
Lord Mayhew: My Lords, we too are grateful to the noble Lord. When the Government ask for an explanation, we assume they will also ask for an apology and for compensation. Could we be assured about that? Secondly, the noble Lord will recall that last week United States naval vessels opened fire in a situation in which there was no threat or interference with shipping. Could the Minister assure us that British naval vessels have been given clear rules of engagement and that these rules of engagement have been explained to the Iraqis and the Iranians? Finally, may I ask whether we have any formal or informal understanding with the United States about military co-operation in the Gulf?
Lord Trefgarne: My Lords, I am grateful to both noble Lords for their reception to this Statement. I shall reply first to the points made by the noble Lord, Lord Bishopston. We heard as far back as 1st March that an attack had taken place. The Iraqis announced as much, but it was only much more recently—namely, yesterday—that we heard that a British ship was involved. I should explain that the ships within the Iranian convoy are required by the Iranians to maintain radio silence, and thus it was I imagine that
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we were not able to hear of this matter sooner. As for other ships, I understand that the number of ships in the Gulf area varies from day to day; but on 2nd March, for example, there were believed to be 12 British ships in the Gulf altogether.
As for protection, this convoy was within Iranian territorial waters and therefore the question of Royal Naval protection does not arise. The ships were indeed sailing under the protection of the Iranian naval forces. In reply to the last point put to me by the noble Lord, Lord Bishopston, I can confirm that we are actively concerned to secure an end to this conflict, which has now dragged on for three or four years at least. We are seeing what can be done at the United Nations to achieve that, and we are particularly concerned to ensure that the Secretary-General of the United Nations enjoys all the support he can get in his efforts to bring this conflict to an end. As the noble Lord will recall, this conflict has proved to be particularly intractable and a number of efforts have been made to secure an end to it, and all have so far been unsuccessful.
Turning now to the remarks and questions put to me by the noble Lord, Lord Mayhew, the Government will almost certainly be seeking an apology, and as for compensation we shall wish to reserve our rights in respect of that matter. It may be that compensation will be appropriate. As for British naval vessels, I can tell the noble Lord that we maintain a patrol of two warships, available if needed, to come to the assistance of British shipping in the Gulf but I cannot really go further than my right honourable friend the Prime Minister did on 21st February in the other place.
Lord Greenway: My Lords, can the noble Lord shed any light on the actual ownership of this vessel which appears to be a rather grey area?
Lord Trefgarne: My Lords, I understand that the owners are resident in Guernsey but I do not think that I can shed any more light than that.
Lord Mayhew: My Lords, if the noble Lord will forgive me, may I ask him to reply to the third question that I asked: whether, in view of the great dangers in the Gulf, we have any formal or informal understanding with the Americans about military cooperation in the Gulf?
Lord Trefgarne: My Lords, I can assure the noble Lord that we are in close touch with all our allies, including the United States, on this matter.

Prevention of Terrorism (Temporary Provisions) Bill
4.42 p.m.
Consideration of amendments on Report resumed.
Clause 12 [Powers of arrest and detention]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 2:
Page 10, line 28. at end insert—
("() No arrest by a constable is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest.").
The noble Lord said: My Lords, there is an old saying that goes back to the early eighteenth century

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that arrest may be called the beginning of imprisonment. It is the right of every citizen to be free of arrest unless there is in the constable or some other citizen the right to arrest him. It is almost without exception a condition of lawful arrest that the man arrested should be entitled to know why he is deprived of his freedom. This amendment therefore does not introduce any novel principle into our law. It merely proclaims the fundamental proposition that it is a condition of lawful arrest that the man arrested should be entitled to be told why he is deprived of his freedom.
At Committee stage the Minister accepted the principle and relied on the legislation which is embodied in the Police and Criminal Evidence Bill, but with great respect that piece of legislation has not been enacted. We heard in Committee how wide and extensive are the powers which are contained in the Bill, and in our submission the principle that the arrested person should be told the grounds for his arrest should therefore be embodied in this legislation. This important common law principle should never be far removed from the mind of the constable when exercising the very wide powers contained in the clause. I beg to move.
Lord Denning: My Lords, this is quite unnecessary. In 1947, in this House, Lord Simonds, afterwards Lord Chancellor, declared that when a man is arrested with or without a warrant he is entitled to know at once the reason why he has been arrested so that he can take as soon as may be the steps to release himself if he can. The principle is so undoubted that it would be a mistake to put it specially in this Bill. You know what our lawyers are! They will say that Parliament has thought it necessary to put it in here, and therefore there is no such general principle. Leave it to the general principle. The lawyers will have no difficulty about it. I should not trouble about inserting it into this Bill.
Lord Elton: My Lords, the noble Lord, Lord PrysDavies, will not need me to assure him of the effects of the common law. I think that I ought only to reassure the noble and learned Lord, Lord Denning, that we agree with him that the specific provision ought not to be in a Bill so narrow as this one. But, with the noble Lord, Lord Prys-Davies, we feel that the constable ought to have these things very much in mind. That is why we are seeking an opportunity in Police and Criminal Evidence Bill, which the noble Lord has rightly reminded me has not yet reached your Lordships. When it does so, the noble Lord will be able to satisfy himself as to this. That is why we are putting it in that Bill, which applies generally, as opposed to this one, which applies particularly. The actual requirement is very ancient, very strong and very well known.
Lord Shackleton: My Lords, could the noble Lord say in what way the constable would inform somebody arrested under this legislation? Could the noble Lord give an example of the ground for arrest?
Lord Elton: My Lords, any of the grounds provided by the legislation, which are to be found particularly in Clauses 12 and 13.
Lord Shackleton: My Lords, I know that this is not Committee stage but the noble Lord has not answered my question. Could he give an example of what would be said? Would the constable read out the Act?
Lord Elton: My Lords, it would be because he has reasonable grounds for suspecting a person to be guilty of an offence under Clauses 1, 9 or 10 of the Bill. No doubt he would go on to explain which of those was involved and, if he were a good constable, he would see that it was clearly understood.
On Question, amendment negatived.
The Deputy Speaker (Lord Alport): My Lords, I am advised that if Amendment No. 3 is agreed to I shall not be able to call Amendment No. 4.
Lord Wigoder Lord Wigoder moved Amendment No. 3:
Page 10, line 33, leave out from ("description") to end of line 36 and insert ("either—

(i) committed in the United Kingdom; or

(ii) committed outside the United Kingdom and involving genocide, hijacking or piracy").

The noble Lord said: My Lords, I was going to say that the noble Lord, Lord Monson, had asked me whether, in his absence, I would move this amendment, but I think I see the noble Lord, Lord Hylton, rising to his feet, and if he has had the same request made to him I shall be very happy to sit down forthwith.
I want to make only one or two observations about this amendment. It may be that your Lordships will think that, after I have done that, about the most helpful course would be for the Minister to indicate his attitude to this amendment. I would then ask leave to withdraw it, and the observations of the noble Lord the Minister could be borne in mind when we come to deal with the more substantive group of amendments which immediately follows this one.
What the noble Lord, Lord Monson, had in mind in tabling this amendment was that it met the objections that had been raised to Clause 12(3) at Committee stage and, at the same time, it also met Lord Elton's point about our obligations under international conventions. What the noble Lord, Lord Monson, was trying to provide was an amendment that would cover terrorism falling within our major international obligations—the Tokyo Convention Act 1967, the Genocide Act 1969 and the Hijacking Act 1971. The noble Lord, Lord Monson, also indicated (and I can see the force of the point that he was trying to make) that his amendment would further have the beneficial effect of removing some of the small anomalies consequent upon Clause 12(3)(b) as it stands. I hope that I have indicated what was in Lord Monson's mind, and I would ask the noble Lord, Lord Elton, to deal with the point.
Lord Shackleton: My Lords, on a matter of procedure, I understand that it is the Minister's intention to refer to the amendment standing in my name and that of a number of other noble Lords; and, of course, I would reserve my right to speak to that. But if he is not going to refer to it then I shall not speak to this amendment at this stage.
Lord Elton: My Lords, I am grateful for that helpful intervention. As I understand the intentions of the noble Lord, Lord Wigoder (whom we are pleased to find in loco parentis to this amendment), it is not his intention to press it. I will explain why, if he had pressed it. I would have asked your Lordships to disagree with it. Maybe it would keep things tidier, therefore, if we reserved reference to the amendment of the noble Lord, Lord Shackleton, until we got to it, if that is satisfactory to him.
Lord Shackleton: My Lords, if I may say so to the noble Lord, the point is that if I had some idea of what might be the attitude of the Government I would not take up the time of your Lordships by arguing in support of this amendment.
Lord Elton: My Lords, if the noble Lord is asking me my attitude to the amendment in his name and that of other noble Lords, then I intend to be as helpful as it is possible to be. Without debating the whole thing, I cannot delimit the confines imposed on me by the effects of almost any remedy one seeks to apply to something that we wish to remedy. I shall be asking whether he feels that what I propose is good enough to let me struggle with it until the next stage. If that is sufficient to relieve the noble Lord's anxiety, I will proceed. If it is not, I think, with your Lordships' leave, I can always reply to any specific points later.
May I say that the noble Lord, Lord Monson, has joined the long and distinguished succession of people who have attempted to find a satisfactory means of limiting the powers at present at large in Clause 11 by some alteration to the drafting of the statute itself. In fact, his amendment provides an excellent demonstration of the difficulties which we have all encountered in the attempt. He seeks to embody in the Bill the assurance that we have sought to give by circular about the use of the powers against suspected international terrorists. I will deal first with that aspect and then say a little about why we are also resisting the extension of the powers to acts of domestic terrorism, which this amendment would involve.
As I explained, the circular which we propose would restrict the application of the powers to cases in which there is some prospect of a charge before United Kingdom courts or of the person being deported. There are two main categories of offences which have extra-territorial aspects and which may involve acts which constitute terrorism as defined in Clause 14(1). The first category is created by a series of United Kingdom statutes, which implement international conventions by creating extra-territorial jurisdiction for certain terrorism-related offences. There are seven of these, and not four as I believe I may have suggested during the Committee stage. They are: the Hijacking Act 1971; the Protection of Aircraft Act 1973; the Internationally Protected Persons Act 1973; the Suppression of Terrorism Act 1978; the Taking of Hostages Act 1982; the Nuclear Material (Offences) Act 1983 and the Tokyo Convention Act 1967 (which relates to piracy on the high seas).
The second category contains offences under United Kingdom law which operate extra-territorially in relation to certain classes of people. The most usual connection which makes people liable here for
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offences committed outside the United Kingdom is the possession of British citizenship. Offences in this category which may be related to terrorism are: murder, acts involving explosives liable to endanger life or cause serious injury to property in the United Kingdom or the Republic of Ireland, perjury and offences under the Official Secrets Act and the Foreign Enlistment Act. Treasonable activities are punishable as regards all persons owing an allegiance to the Crown.
As your Lordships will recognise, the effect of the noble Lord's amendment would be to narrow the applicability of the Bill beyond what we are seeking to achieve. Of the offences I have just referred to, only piracy and hijacking would still be within their scope. Murder, explosives offences and assassination—to name but a few—would be excluded, and the possibility of arrest in cases where there is a prospect of deportation would be totally excluded.
I should now like to turn to the other element of this amendment, which would apply the powers of arrest and detention to domestic terrorism, which is what is meant by the words following "description" in line 33. During his review of the operation of the legislation, the noble Earl, Lord Jellicoe, considered whether, in view of the increasing threat in Great Britain from terrorism totally unconnected with Northern Ireland, the powers should be made available for use against international terrorists. He concluded that they should.
In making his recommendation in paragraph 77, he said that he had considered but rejected the idea that the powers should also be available for use against groups whose terrorist activity related to purely domestic matters, other than those connected with Northern Ireland. My noble friend's assessment was that nothing in the past history or likely future activity of terrorist groups indigenous to Great Britain persuaded him that the use of such exeptional powers against them would be necessary. The Government accepted this view, which is reflected in the drafting of Clause 12(3) (b); but of course we would be ready to reconsider it and come back to Parliament should the situation change.
I have tried to show why both elements of this amendment—the restriction on acts of international terrorism and the extension to acts of domestic terrorism—are not acceptable. I think I have probably now fulfilled what the noble Lord, Lord Wigoder, asked of me.
Lord Wigoder: My Lords, acting in loco parentis, I seem to have fostered rather a deviant child, and I beg leave to withdraw the amendment.
Amedment, by leave, withdrawn.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 4:
Page 10, line 33, after ("description") insert ("committed in the United Kingdom")
The noble Lord said: My Lords, the House will remember the interesting debate which took place largely upon the lines mentioned by the noble Lord the Minister during the debate on the last amendment concerning the restriction of offences covered by this

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clause to ones committed in the United Kingdom. I put down this amendment standing in my name and that of my noble friend because at the time we felt that it was the proper amendment to propose. Since then we have seen Amendment No. 5, to which we have also subscribed our names. We take the view that this amendment, which appears first in the name of the noble Lord, Lord Shackleton, is one that in the circumstances, having regard to the debate, is rather more worthy of support than Amendment No. 4 at this stage. On this basis therefore I do not propose to move this amendment.
[Amendment No. 4 not moved.]
4.56 p.m.
Lord Shackleton Lord Shackleton moved Amendment No. 5:
Page 10, line 36, at end insert—
(" (3A) The power of arrest conferred by subsection (1)(b) above in respect of an act of terrorism referred to in subsection (3) (b) above shall not be exercisable unless the Secretary of State has, by order made by statutory instrument, provided for a Code of Practice comprising such directions as appear to him to be appropriate for the guidance of constables in their use of the powers contained in this section.").
The noble Lord said: My Lords, I hope that this amendment will commend itself to all your Lordships. I should like to repeat again that I have consistently supported the Bill and have spoken in favour of the Second Reading. Certainly I very much welcomed the proposals of the noble Earl, Lord Jellicoe, except for Clause 11, which we have now disposed of. I should like to repeat to your Lordships what in fact the noble Earl, Lord Jellicoe, did not intend, so far as one can tell from his recommendations. Unfortunately he is in some distant part (which may be Australia or Siam) and therefore I have not been able to check that specific point and to discover what he had in mind. But this extension of the powers under Clause 12 seems to be without Lord Jellicoe's recommendation, and I think that the noble Lord agreed with that.
On several occasions the Government have said that this is narrowing the purposes of the Bill. The noble Earl, has stated as the noble Lord, Lord Elton, has said—and it was repeated in the exhaustive debates in the other place—that this power has always existed in the legislation, and they are now trying to define the limit more closely and more narrowly. If I may say so, this is very misleading. In another place the Minister of State said at col. 298 on 1st December 1983:
"The then Labour Government made it clear by guidance that the powers should not be used against other than Northern Irish terrorism."
I went back to the originators of that Act, and it was quite clear to me that it was not intended to be so used. I therefore consulted my own report on the 1976 Act which I made to the Government of the day, and found there was no mention of this power. It may be thought that I was rather remiss not to have referred to it, but I was assured at the time that it would be quite inappropriate to use this particular section other than in relation to Northern Ireland, without its being explicitly covered in the legislation. It is said that it was included deliberately, but there is no evidence that the Government intended ever to use that power: nor is there any evidence on the part of the Conservative Government that they intended to do so.
It is important to get this straight, because the other place has been misled on this. I am quite certain that this is not an argument that should be used. It would be quite inappropriate to use these powers without further legislation to relate them to other acts of terrorism, as the Government have now done.
I shall not repeat all the arguments which we advanced at the Committee stage. The Government were sympathetic to the argument that it was quite inappropriate to extend it, except in a very limited way, and a very firm statement was made by a Minister in another place who said:
"We will give guidance to the police to ensure that the powers in clause 12 are not used for acts of terrorism unconnected with the affairs of Northern Ireland unless there is some prospect that a charge will be made before a United Kingdom court, or the persons are to be deported under the Immigration Act 1971. For example, the position of members of South African nationalist movements living here will remain as it is now, after the Bill is enacted."—[Official Report, Commons, Standing Committee D, 1/12/83; col. 298].
I am not quite clear what is meant by "remain as it is now", because there is a certain suspicion about what is now being done. But it is quite clear, from talking to the Minister and hearing his speech, that he is anxious to limit these powers and is prepared to do so by giving guidance to the police.
In his report, the noble Earl, Lord Jellicoe, said that he was not contemplating a further extension to other terrorists outside, and I do not think we need to argue about that. I think there is no disagreement that there are some countries, whether it be Iran or other parts of the world, where it would be quite wrong to apply these powers if people took refuge in this country. Therefore, I am gratified that the Government should have recognised this difficulty. The problem has now arisen that they cannot find a suitable form of words to put into the Bill. Despite manful efforts—and I fully accept that they have tried—they have been unable to find a suitable form of words, for some of the reasons which the noble Lord gave when he dealt with the earlier amendment.
In order to get over this difficulty, I have proposed Amendment No. 5, which should be taken with Amendment No. 9.
Amendment No. 9: Page 13, line 22, at end insert—
("() No order under section 12(3A) above shall be made unless a draft of the order has been approved by resolution of each House of Parliament.").
This requires the Government by statutory instrument to publish a code; in effect, giving guidance to the police. Something of an assurance was given in another place that the circular would be made available, but we have heard no more of that. But the advantage is that it would then have statutory force. Whereas I fully accept the sincerity of the Government in this matter, I cannot speak for future Governments of any political hue. I wish to keep this on a non-party basis, although I might have views about where the threat might come from. Therefore, I hope that establishing a measure of parliamentary control over what is, admittedly, a difficult area is something that might commend itself to the Government.
Furthermore, it is fairly flexible. If they find that the code is unsatisfactory, all they need to do is issue a new order which would then have to come before Parliament. So, at least, Parliament would know what

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were the instructions. It seems to me that this should make us all happy. It should make the Government happy, notwithstanding the fact that I understand that they have certain difficulties even in drafting the guidance. But this is the guidance which apparently is to be given to the police, and I find it impossible to believe that something which is too complicated to be put before your Lordships is perfectly all right to give to a policeman. I know that they are very intelligent, but between us we ought all to be able to understand it. This seems to be a proper constitutional approach to a difficult area.
I repeat again that the issue which we are discussing, the extension to terrorism outside the United Kingdom, is not one on which Lord Jellicoe made a recommendation. It has been made clear by my noble friend Lord Mishcon, the noble Lord, Lord Wigoder, and others that we see the difficulties and this seems to be an appropriate way to deal with the matter. I hope very much that we shall have a good response from the Government. If they do not like Amendment No. 9 which calls for affirmative resolution, because they say it might be too slow, then we can always look at the possibility of the negative procedure. But, at any rate, I hope that this amendment will now be acceptable.
It has strong support. I have had conversations with noble Lords in all parts of the House, who are inclined to see the force of what we are doing and that it will help the Government. I have the benefit of the support of the noble Lord, Lord Henderson of Brompton, the noble Lord, Lord Wigoder, and my noble friend Lord Mishcon, and I do not doubt that I could have got other support, including even support from Northern Irish noble Lords, because it is worth noting that the Member for Down, South, Mr. Enoch Powell, was also opposed to these provisions. I am now giving the Government the best of all possible worlds and I look hopefully to the Minister. My Lords, I beg to move.
5.6 p.m.
Lord Henderson of Brompton: My Lords, I wonder whether I may rise to support what the noble Lord, Lord Shackleton, has said about these amendments, and I should like to welcome the words of the Minister when he said—I think it was about these amendments and some more amendments to come—that he hoped he would be able to be as helpful as it is possible to be. I can scarcely recollect more encouraging words than that in advance of the consideration of amendments.
I should like—because this is the first occasion that I am speaking on the Report stage—to say what underlies my support for this amendment and the reason why I am moving subsequent amendments. They all have this in common. As I made clear on Second Reading, I support the Bill subject to stringent safeguards. These safeguards must be parliamentary because, to use a shorthand, the judicature is, to all intents and purposes, rendered inoperable in respect of this legislation for a grave emergency. I briefly expatiated on that in Committee and to save time on Report I shall not do so now unless asked to. So that is the first consideration.
The second consideration is that I think the Government are to be greatly congratulated on the sensitivity with which they have handled this
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legislation. First, the Jellicoe Report is notably liberal. They have followed it very largely, if not to the letter. In particular, there is a five-year term to this emergency legislation and it is to be renewable annually by affirmative instrument. Given the Government's liberal attitude, I should like to make just one political comment—and I know that a Cross-Bencher is naïve in estimating what are the motives of those who have allegiance to political parties. But I should like to recall, with regret, that the official Opposition voted against this legislation in another place and thus put an end to the bipartisan character of it, which has existed since at least 1974.
That does present a new situation and makes it incumbent upon the Government to go even further than they have, in the light of this new development, to reassure the Opposition and to try to restore bipartisanship so far as it is possible. In this connection, I was extremely glad to read the words of the Lord Privy Seal reported in The Times earlier this week—not about this legislation in particular but about Government measures in general.
The case for this amendment was admirably stated by the noble Lord, Lord Shackleton. He put his finger on a point of crucial importance. As he rightly said, here is a new power which has not hitherto been contained in this emergency legislation. It is a new power taken by the Government which both Houses, I believe, concede to be necessary—and it is necessary in view of the growth of international terrorism. But Parliament should not be content to give the Government a blank cheque.
The powers of arrest and detention in Clause 12 are formidable. If those relating to acts of terrorism under subsection (3)(b) are not to be subject to some code of practice to be laid before Parliament, then there is a dereliction of duty on the part of the Government and Parliament should insist that such a code of practice be laid. Whether or not it should be by positive resolution, as the noble Lord, Lord Shackleton, said, is surely a matter for negotiation.
As for the precise wording, I agree that the amendment may be defective. As the noble Lord has said, a number of Members of both Houses, as well as the Government, have had a shot at this. As so often, only the Bill team and the parliamentary draftsmen can correctly draft an amendment so as to fit the framework of the Bill and conform to accepted conventions and standards. The principle remains that the Government owe Parliament the duty of formulating for its consideration a code of practice for the guidance of constables in the exercise of these new powers.
It may be inappropriate, as in this draft, for the Secretary of State to give directions—I do not know. It may be preferable for the Secretary of State merely to provide guidance to constables in the code of practice. That is a detail of drafting which can be put right, and an amendment in proper form could be tabled at Third Reading.
All that is asked by the noble Lord, Lord Shackleton, and myself—and I hope the same goes for the noble Lords, Lord Wigoder and Lord Mishcon—is that at this stage the Government will indicate their

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willingness to concede the principle behind the amendments. If they will do that, it will go a long way towards reassuring those who favour the Bill as well as those who do not favour the Bill. For that reason, I am happy to support the noble Lord, Lord Shackleton.
Lord Elton: My Lords, I am not at all surprised that a number of your Lordships have tabled or re-tabled amendments addressed to the powers against international terrorism contained in Clause 12. The change in this area is undoubtedly the most significant in the Bill. Indeed, it is the only one in which the powers have been, in practice, extended rather than restricted. I am glad, too, that it is not being objected to in principle that the powers should be available for use against suspected international terrorists.
I explained to your Lordships in Committee why the Government feel so strongly that the powers of arrest and detention should be applied not only in respect of acts of international terrorism committed in the United Kingdom but also to those committed elsewhere—subject, of course, to the assurance given by my right honourable friend the Home Secretary that he will issue guidance to the police restricting the use of the powers in international cases to those in which there was some prospect of the person concerned being charged before a United Kingdom court or of his being deported under the powers in the Immigration Act 1971. I pause to apologise to anybody reading Hansard. I had not realised that I had permitted myself a sentence of about nine lines in length without punctuation.
I am sure your Lordships would not wish me to appear carping about the details of an amendment whose heart is so clearly in the right place. I do not propose to say more on the comments made by the noble Lord, Lord Shackleton, concerning the disingenuity (if that is the right term) of my having said that this was a restriction of something which had always been at large. I do not want to take issue. If I overstated the case, then I regret it. We have so much in common that I would have no advantage in, nor desire to, mislead the House. Even if I had the desire I would not do so, and it would not do me any good, anyway.
I will touch only briefly on two elements which make for difficulty in practice, because there are two principles implicit here. Having given a power to the police, there is a difficulty in then saying, in effect, that the power is not to be used until Parliament has given further consideration to how it should be restricted, in that the power is granted by Parliament originally. The second difficulty is that for my right honourable friend the Home Secretary to give "directions" to the police as proposed is not in keeping with established relationships between him and the police, which are of both delicacy and importance.
I hope we are now clear on the assurance I have already given the House as to how the provisions in this clause will be used. The means by which in the past that assurance has been given—and, if we do not succeed in other attempts at this and the next stage, the means by which it will in future be delivered—is a circular of guidance. I will pause to confirm to the noble Lord, Lord Shackleton, that if we are reduced to
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a circular of guidance it will of course be placed in the Libraries of both Houses, whereas hitherto it has been a confidential document.
However, your Lordships are parliamentarians and, understandably, do not like the will of Parliament as expressed in statute to be curtailed, even knowingly, by administrative means unless there is no alternative. That is a view which Her Majesty's Government entirely share. As I said in Committee, a great deal of intellectual work has already been expended in trying to get the substance of our assurance on the face of the Bill. In this we have been entirely without success because of the difficulties implicit in statutory definition. It was at that point in the argument that the noble Lord, Lord Shackleton, came helpfully forward with the idea that what could not be accommodated in statute might prove more tractable if dealt with in a statutory instrument. If it could be, it would still have the great merit of providing a parliamentary way of curtailing powers granted by Parliament—as the noble Lord, Lord Henderson of Brompton, has pointed out.
We see the attractions of such a solution. Whether it could easily be achieved is, I fear, doubtful, and I would not wish to mislead your Lordships on that. I am prepared to undertake categorically that we will between now and Third Reading make every possible effort to achieve by this means the incorporation of our assurance in material agreed by Parliament. In so doing, we shall have to consider the consequences of what is proposed and, in particular, whether it has unlooked for and damaging effects as well as those intended. I can tell your Lordships that we shall do our honest best and that I shall keep the noble Lord, Lord Shackleton, posted on the results. I hope he will give us the chance to do that.
Perhaps I do not need a peroration, but my appeal to the noble Lord is that we are at one with him in what he seeks to do. I am glad he recognises the sincerity we have applied in trying to solve the question our way, on the face of the Bill. We are now with equal, and I might even say with more urgent, vigour trying to see if we can achieve that by an order in the way the noble Lord is suggesting. That is more difficult than it looks on the face of it hut we shall do our level best to achieve that by Third Reading.
Lord Wigoder: My Lords, perhaps I may make one very obvious remark. I am sure the Government will wish to bear in mind that it is helpful to somebody who is charged with an offence to be able to say in court, "That is contrary to the terms of the statutory instrument". He has no defence whatever if he can say only that it is contrary to some circular.
5.20 p.m.
Lord Mishcon: My Lords, I will make only one intervention because I believe the House will be much more keen to hear what my noble friend Lord Shackleton has to say. In the consideration of this matter, and as I said to the House that I was not moving Amendment No. 4 on behalf of my noble friends because I thought this amendment was preferable and the Opposition agreed with that view, I would merely like to make a comment on the two points made by the noble Lord the Minister. The first is that the Government saw a difficulty, if I understand him,

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in providing here for an arrestable offence and saying that that arrestable offence created by an Act could not be exercised practically, so far as the police were concerned, until a statutory instrument had set out a code of practice. I would appreciate the normal difficulty of that arising in general law but I am sure the noble Lord the Minister will appreciate that the whole of the debate on this matter has been, as from Second Reading and on all sides of the House, the completely exceptional nature of the offences created under this Bill and the completely exceptional nature of the circumstances with which we have to deal.
The noble Lord the Minister, as I understood it, also found a difficulty in regard to dealing with the police in giving directions. He said that this was usually a matter of guidance. I want to make it clear that one of the reasons we thought this was such a good amendment was that although there are directions provided for under the statutory instrument, the directions are meant to be by way of guidance and are so described in this amendment. Therefore, I hope that the noble Lord the Minister will bear those points in mind. As my noble friend Lord Shackleton is in charge of this amendment, it is not for me to say anything more on behalf of my noble friends except that we are behind him in this amendment and leave it to him to decide what he should do, having heard the Minister.
Lord Shackleton: My Lords, I am grateful to the noble Lord the Minister who has clearly responded to appeals to solve a problem which worries us all, I am sure, irrespective of party. I am grateful to those who have supported me in this amendment: my noble friend Lord Misheon, the noble Lord, Lord Wigoder, and the noble Lord, Lord Henderson of Brompton. I am grateful also that the Government are supporting me in this amendment subject to being able to achieve what we want to achieve.
I should just like to emphasise—because I may have misunderstood what the noble Lord said—that there need be no delay in producing the necessary order. I do not know whether the Government have already prepared their guidance and that they have issued it and it is locked up in police stations ready to be made effective, but at the moment it would be inappropriate, until the Bill becomes an Act and comes into force, for this power to be used; if it is possible to draft the code in a form that is acceptable. I am grateful for the assurance that the instructions will be made available in the Library. Although I am sure there is some mysterious drafting difficulty which is beyond the comprehension of noble Lords like myself, I believe that the intention of the noble Lord is very satisfactory.
In the light of that, I think it would be the wish of your Lordships that I do not pursue this amendment at the present time. There are some other aspects of the matter which I had thought of dealing with; but since the matter will come up on Third Reading one way or another—either by an amendment from the Government or further amendment from your Lordships—I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 6:
Page 10, line 39, at end insert ("where the initial arrest is lawful,").
The noble Lord said: My Lords, in Committee the hour was late. It was a quarter to nine in the evening when I moved this amendment and the noble Lord the Minister was kind enough to answer me. I ventured to say that I had not made myself very clear to the noble Lord and he replied with his usual courtesy in the following terms:
"I am obliged to the noble Lord. I find that as the evening wears on, I need more and more frequently to be led by the hand through the thickets of argument. It is certainly not the intention of the Bill to create the suspicion that the Secretary of State might render something lawful that had been unlawful. I am advised that it does not. However, I shall read the noble Lord's illumination of his argument with care. If I find that it does illuminate it, obviously we shall, between us, have to find a remedy."—[Official Report, 23/2/84: col. 930.]
I must frankly tell your Lordships that I did not have the pleasure of hearing from the noble Lord the Minister in the meantime. I do not know whether to infer from that that on reading my argument he found no illumination at all and therefore no need to communicate with me; but I am sure he will explain in due course.
The point of this amendment is very simple. When a Secretary of State decides in his discretion that a period of detention ought to be extended there is not the slightest hope—I think I can say this in the presence of the noble and learned Lords, Lord Denning and Lord Simon of Glaisdale—of anyone so detained coming before the court successfully and saying that in his view the Secretary of State should not extend that detention. So, habeas corpus in those circumstances, if I may use a colloquialism, is a non-runner.
What we are trying to make clear in this exceptional piece of legislation is that if the original arrest is unlawful and the Secretary of State purports to extend the detention period even though it be unlawful then it is possible and clearly open to someone so detained to go before the court and say, "I am not arguing that the discretion of the Secretary of State was wrongly exercised because he was going upon matters which he should not have considered. My argument is that the extension is unlawful because the original arrest was unlawful." That may be a good argument at common law without the necessity of a statute but I am perfectly sure that your Lordships would want it written on the statute book even if it was otiose because it is always going to be argued before our courts, on behalf of the Crown or the Secretary of State, that this is very unusual legislation and that the courts ought not necessarily to go on ordinary principles of law by virtue of the fact that the Government are providing in this statute for exceptional cases and for exceptional powers. That is the reason, and the sole reason, for the amendment. I hope your Lordships—and indeed the noble Lord the Minister—will find it acceptable.
Lord Denning: My Lords, this is another opening for the lawyers to make trouble. I do not agree with this amendment at all. If the words:
"where the initial arrest is lawful",
were put in, we should not know where we stood. It is simply confusing the matter. If a person is arrested lawfully under the clause and detained for 48 hours, then of course in a proper case it can be extended further. The extra words are quite unnecessary and would lead to confusion.
Lord Elton: My Lords, I have to say that after what the noble and learned Lord has said almost anything I can say would be otiose also. It is clearly wrong to write otiose words either onto the statute book or in Hansard. With all respect, I agree with the noble and learned Lord that if the arrest is unlawful then the Secretary of State has no power to order the extension. There is nothing that we can add to improve on that.
Lord Mishcon: My Lords, I tremble as I come to the Dispatch Box, the thunder claps having sounded and the lightning having come across your Lordships' House, as it does when the noble and learned Lord, Lord Denning, in any matter of law delivers a judgment—but sometimes of course your Lordships' House has seen fit to combat that thunder and that lightning and has reversed the noble and learned Lord's judgment in a court below.
I do not want to waste the time of the House. With great respect, the point is still a valid one in the sense that it is not clear upon the face of the Bill that an originally unlawful arrest cannot be extended by the Secretary of State without a challenge. The only answer to me is that it ought to be obvious to any lawyer. If I may say so, it was not obvious to the Law Society. It is not just a question of a humble member of that society thinking up this amendment. The Law Society has expressed its concern in regard to this clause and the wording of it, and I know has communicated that concern to the noble Lord the Minister.
However, I do not think I can usefully carry my argument very much further because this House, having heard the noble and learned Lord, is likely to take a view that if it has to choose between two lawyers it is safer if it chooses the noble and learned Lord, Lord Denning. In those circumstances, I merely sit down.
The Deputy Chairman of Committees (Baroness Wootton of A binger): My Lords, does the noble Lord wish to withdraw his amendment?
Lord Mishcon: No, my Lords. I said that I merely sat down.
On Question, amendment negatived.
Clause 13 [Control of entry and procedure for removal]:
[Amendments Nos. 7 and 8 not moved.]
Clause 14 [Supplementary]:
[Amendment No. 9 not moved.]
5.33 p.m.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 10:
Page 13, line 33, leave out ("or").
The noble Lord said: My Lords, we now come to the second of the amendments which I am moving at this stage of the Bill to improve parliamentary control. I am joined in this amendment by the noble Lord, Lord Wigoder. I have to say that in Committee, although it was a thin House and late at night, this amendment or something like it had considerable support, not least I
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am happy and proud to say from the noble Lord, Lord Fitt.
I should explain the purposes of these amendments, which go together. They are Amendments Nos. 10, 11 and 15.
Amendment No. 11: Page 13, line 33, at end insert—
("() in the case of an order under section 17 below a Report has been laid before Parliament under section (Report by Commission) below at least one month before the draft of the order in paragraph (a) above is laid before each House of Parliament; or").
Amendment No. 15: After Clause 17, insert the following new clause:
("Report by Commission
. The Secretary of State shall appoint a Commission of three members of either House of Parliament who are Privy Councillors whose duty it shall be to monitor the operation of this Act and to report annually to both Houses of Parliament upon its working and effect.").
Together their purpose is threefold: first,
"The Secretary of State shall appoint a Commission of three members of either House … who are Privy Councillors";
secondly, the duty of the three parliamentarians who are Privy Counsellors,
"shall be to monitor the operation of this Act";
thirdly, the commission of three is,
"to report annually to both Houses of Parliament upon its working and effect".
The amendments to Clause 14 stipulate that this report should be laid before Parliament at least one month before the annual orders for the continuation of this legislation are laid. May I examine each of these three parts of this group of amendments separately?
Under the first heading I have deliberately used the word "Commission" rather than the word "committee", although "committee" is the natural word to use in the parliamentary context. I think perhaps everyone who has thought about this agrees that a parliamentary committee is not the right body for this task for obvious reasons. For example, in the first instance a committee would have to be selected, which in itself poses difficulties. Secondly, it would have to sit in camera. Thirdly, it might be denied access to classified information that would be absolutely necessary for its successful function. I have concluded that the body should be a commission, and that suggests that it should be a prerogative body—that is, one appointed by the Crown.
Here I must confess that I find myself in somewhat of a dilemma. Is it constitutionally appropriate for Parliament to insist upon the appointment of a prerogative body by statute? If it is appropriate, then no doubt its terms of reference should be set out in that statute; but that is exceedingly difficult to do without, so to speak, inside information to which I do not have access. However, I am convinced that the principle is sound and that there should be a commission. Ideally it should consist of three parliamentarians—and not judges. I say that with due deference to the noble and learned Lords sitting on the Cross-Benches. As I have indicated on an earlier amendment, the judicature has probably been rendered largely inoperative under this legislation. In my view therefore the commission should consist of Privy Counsellors so that they can have access to classified information; and there should be three so that as much all-party confidence is generated as possible.
Secondly, I should like to say a brief word about functions. I have used the word "monitor"—
"monitor the operation of this Act and to report…upon its working and effect".
Again I must confess to some difficulty in drafting. I am hampered by lack of experience of the security services, and so on; so I and the noble Lord, Lord Wigoder, have opted for the word "monitor", which is a catch-all word. I think it well expresses the kind of function that would give public confidence. I have deliberately eschewed any suggestion that the commission should in any way act as an appeal body. There can be no appeal in any meaningful sense from the kind of executive actions and decisions that are made under this legislation.
What I wish to suggest by the word "monitor" is that the commission should have access to classified information but not—most certainly not—to individual cases; secondly, that the commission should have access to the Secretary of State and I hope the heads of the security services, and when they confer with the Secretary of State they can talk on Privy Council terms in absolute confidentiality. This, I should have thought, would be welcome to the Secretary of State, who has to take these hard decisions on his own in isolation, though of course on carefully submitted advice.
I hope that the noble Lord's encouraging remarks extend to this amendment as well as to the previous one. If the Government will consider this, I should like them also to consider seriously the proposal that the commission should be adequately supported—no vast infrastructure; I am not recommending that—for instance, by a senior counsel, someone trained by his profession to elicit and ascertain facts for the consideration of the commission.
Thirdly, there is the requirement for the commission to report annually in good time for the debates on the renewal orders. Surely that needs little elaboration. There is no question but that an annual report by three respected parliamentarians would not only generate confidence and allay fears but would lead to better-informed debates in both Houses of Parliament.
At present, all we have to go on are the quarterly statistics and any interpretation which the Minister might put on those statistics when he moves the order for approval. So unquestionably a presentation of the statistics covered by a report from an independent and respected body, well in advance of the annual debates, would lead to a better-informed and more sober annual assessment of this legislation and of the causes which give rise to it. I would hope that more time than has hitherto been allowed in another place would be devoted in future to these annual reviews, and in this House too, for there was an implied rebuke in the Jellicoe Report which both Houses should heed. This is what he said:
"The renewal debates have not, on the whole, received the Parliamentary time which they merit."
When I mentioned this in Committee the noble Lord, Lord Fitt, fully acknowledged that this was his experience from another place, and he gave as his reason for this that Members of that House—and indeed of this—do not attend to talk of this subject
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because it is so horrific, and in effect what he was saying is that human kind cannot bear very much reality. He knows too much of it himself, and I think we should respect what he says. I think for all of those reasons I have said enough to convince the House of the case for accepting at least the principle behind these amendments, and I therefore beg to move.
Lord Denning: My Lords, I should like to support this amendment. We must remember that this Bill is dealing with two conflicting interests: the freedom of the individual on the one hand, and the national security on the other hand. They are in conflict. It is only in times of great emergency that the Secretary of State is given power to interfere with the freedom of the individual—in this case by exclusion orders, detention and the rest.
The Secretary of State is only to be given that power to interfere with the freedom of the individual by Parliament. It is Parliament which is giving this power to the Secretary of State in this Bill, in this statute. If the Secretary of State is to be given such power by Parliament, surely Parliament should be able, in appropriate circumstances, to consider whether or not it should be extended. Better let it be considered every year, and better let Parliament be properly instructed whether these powers should be extended, and so on. How can Parliament do it unless it has a report of how these powers are being exercised and dealt with by the Secretary of State?
The whole object of this amendment, as I understand it, is to have a commission. I had, at one time, a good deal to do with inquiring into security matters. I should have thought a commission was extremely good. My noble friend Lord Henderson of Brompton said something about not having judges; but some of us Privy Counsellors who are retired could qualify. But at all events they should have suitable Privy Counsellors who will be able to inquire, not into actual details of individual cases but into how the Secretary of State is exercising his powers in this regard. That can only be done if they are monitored and a report is made to Parliament from time to time so that we can see that these exceptional powers have been well exercised. I would support the amendment.
5.46 p.m.
Lord Wigoder: My Lords, I am delighted to see that normal service has now been resumed and that I am able enthusiastically to support what the noble and learned Lord, Lord Denning, has said. It is clear that vast powers are being given at the potential expense of the individual. It is clear that those powers, for the most part, cannot, by their nature, be subject to judicial review. I think everyone is agreed that it is clear that Parliament must therefore review the operation of those powers on an annual basis. So far, there has been no dispute between anybody in your Lordships' House. The real question is how is Parliament to get the raw material from which it can make accurate judgments every year as to which powers, or whether all the powers or none of the powers, should in fact be renewed.
I do not think it is sufficient for the noble Lord the Minister to indicate, as he did at Committee stage, that

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full statistical reports will be made available to Members of Parliament before these reviews take place. It is not really the statistics that are required, although they are very important. What is required is a review available to Members of Parliament as to the spirit in which the Act is being operated. A great deal is going to depend on that.
How are exclusion orders in fact being carried out? Is there being undue hardship in marginal cases? What is happening under Clause 11? What sort of people are being prosecuted, and why? Indeed, as we have discovered before, it is high time that there was some information about the exercise of that power in Northern Ireland. Who are being detained at ports? Why are they being detained? Is it really only because they have got long hair—in which case I should regard myself as tolerably safe. Are the conditions at the ports in which people are being detained satisfactory? What is happening under Clause 12 where it looks as though there may be either a statutory instrument containing a code of practice or a circular of guidance?
What both Houses will want to know is: in what spirit is that code of practice or the guidance circular being complied with? That is not going to emerge from a statistical survey that will simply tell us how many people have or have not been prosecuted in the course of the year.
Finally, there is the question of detention. We want to know not merely how many people have been detained and how many people have been charged as a result; we want to be satisfied that the conditions in which they have been detained have been such as the House would find acceptable. Those are the sorts of matters that would lead me to believe that the type of statistical review produced by a government department simply will not suffice. That is the raw material, but it needs clothing. The only way it can be clothed I believe is by some form of independent commission of people of the calibre set out in Amendment No. 15, in Lord Henderson's amendment, and I hope it will commend itself to the Government and to your Lordships' House.
Lord Shackleton: My Lords, I had thought my name was going down in support of this amendment but I see the noble Lord, Lord Wigoder, is back in his place there. Perhaps that is just as well because I have some reservations about it. I should like to explain them to the House, although at the end of the day I hope that the Minister will seek to meet, in some effective way, what the noble Lord, Lord Henderson of Brompton, has asked for.
First, let me relieve the mind of the noble and learned Lord, Lord Denning. The reason why the noble Lord, Lord Henderson, has suggested that the commission should not include judges—and I do not think that he quite made this absolutely clear—is that it is extremely important that it should not in any way be thought to be a judicial procedure. This has been one of the problems all the way through the discussions. Indeed, during my review it was suggested that when people exercised their right of appeal against an exclusion order the matter should go to a judge. It is important that it is not a judicial procedure; nor will this particular commission be a judicial procedure.
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It may be that a retired judge—and now some judges are compelled to retire earlier than others—might be appropriate. The Privy Counsellor does not necessarily have to be a parliamentarian. Although Privy Counsellors in your Lordships' House do not leave Parliament, Privy Counsellors in another place do sometimes inadvertently leave Parliament, or even retire from it. Therefore, I would widen the proposal to that extent.
My concern is that if the members of the commission are to do their job properly, they will have a great deal of work to do. Having had the advantage, or disadvantage, of carrying out the earlier inquiry—previous to the inquiry of the noble Earl, Lord Jellicoe; and I am sure that he would agree with me—I know that to review the operation of the legislation (which is what the noble Earl and then I myself were called upon to do) is a very big task. I think the problem will be how the procedure can be limited, and yet remain effective. I would defend the value of the statistics. Indeed, one of my earlier recommendations was concerned with the absence of statistics. But even the statistics alone will need a great deal of examination. There will, for instance, be the statistics on the length of time that people are held at the ports.
I think it likely that, whether it consists of three members or fewer, the commission will have to undertake a degree of sampling and will need to look at particular areas. I very much take the point that the noble Lord, Lord Wigoder, made about the conditions of detention. This is an area on which I commented adversely, and an area in which the noble Earl, Lord Jellicoe, said that there had been virtually no improvement. I can only say that if one was detained in a cell at Stranraer, it would not be very long before one was in a state of acute nervous uncertainty; it is a most uncomfortable place. In fact, people are not detained there for long; I think that they are shoved off to Dumfries, or somewhere like that. Nonetheless, I would hope that there would be some supervision of that.
I hope that, despite my concern about the size of the task, the Government will find a way to meet this point if, as my noble friend has made clear, the objective is to make the legislation, if not more acceptable then likely to relieve some of the anxieties; and the Government are very anxious to do that. For that reason I support the noble Lord, Lord Henderson of Brompton, and I hope that the Government will go some way to meet this proposal.
Lord Fitt: My Lords, I hope that there will be very many more occasions when I shall find myself in such total agreement with the sentiments expressed by the noble and learned Lord, Lord Denning, in his support of the amendment. As has been said on a number of occasions by a succession of Secretaries of State at the Home Office, this is the most draconian legislation that has been put on the statute book—for understandable reasons. As has been said, it can be used the wrong way; it can mean a very serious invasion into all the rights of all the citizens of this country—not only Irish people, but English, Scots and Welsh people, too. In those circumstances, I think that everyone in the whole country, both inside and outside

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of these Houses of Parliament, would welcome this further safeguard.
I see a little difficulty. How do we arrive at a membership of three? Could there be four or five members on the commission? Coming from Northern Ireland, and having represented a Northern Ireland constituency, I am certain that within Northern Ireland there will be people who will say that there should be a Northern Ireland voice on the commission, if it is to be set up. If that view were acceded to, we should find that Northern Ireland Privy Counsellors were all connected with only one side of the religious and political community of Northern Ireland. So that in itself might cause some slight friction. However, even at the risk of that happening—whether or not there was a Northern Ireland person on the commission, and whoever were the members of the commission—I believe that it would be regarded as a very big step in stifling many of the criticisms which are made against this legislation.
I am quite certain that many of your Lordships will have read in the Library the recent annual report of the Northern Ireland Standing Advisory Commission on Human Rights. That body has some very harsh things to say about emergency legislation in Northern Ireland. It was set up by the first Conservative Government which came to power after direct rule was introduced in the 'seventies, and it is indeed appointed by the Government. I think the Minister would agree that the personnel who at present comprise the Northern Ireland Standing Advisory Corn mission are (as were their predecessors) people of some quality; otherwise, they would never have been appointed. If those people express reservations about the operation of either the prevention of terrorism legislation or the emergency powers legislation, I think that those reservations should be given some consideration.
If a commission such as is proposed by the noble Lord, Lord Henderson, is set up—and I am totally in support of his proposal—then perhaps in the course of the year, while it is in the process of drawing up its own report, it could have discussions with the Standing Advisory Commission. The members of the commission would be there on the spot to monitor cases of the type in which undoubtedly people believe there has been an infringement of human rights. I believe that this is a very reasonable amendment and I sincerely hope that the Minister will find himself able to accept it. I am quite certain that if he can do so it will do a great deal to remove much of the odium that is attached to this particular emergency legislation.
Lord Hylton: My Lords, I supported this amendment at the Committee stage and I want to do so again this evening. I do so mainly for two reasons. The operation of this legislation and its continuance or otherwise has a considerable impact on community relations in not only Northern Ireland but also Britain. For that reason we need to have a properly informed parliamentary review of it annually, and the amendment is a most important proposal for getting that informed review.
Secondly, as we have frequently heard, this legislation has had two reviews. The related and
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cognate Act in Northern Ireland (the Emergency Provisions Act) has already had one review and a second review is at present in process. I suspect that there have been delays in starting the reviews because it is understandably difficult to find a suitable person free at the moment when it is desired to have a review. He is then appointed, and he finds it a very difficult, complex and delicate task to carry out his review, and so we are unable to have results at all frequently. I believe that that situation would be greatly improved by having a standing and permanent commission.
Lord Prys-Davies: My Lords, very briefly, from these Benches, we support the principle embodied in the amendment. We have seen, time after time, that the exercise of the extensive powers that are conferred upon the Secretary of State depend upon his subjective decision. The Secretary of State is not answerable to the courts for the way in which he exercises the powers, so that the courts cannot inquire into his mind. He is answerable to Parliament. It is right and proper that Parliament should be equipped to review the way in which he has exercised the extensive powers conferred upon him by the Bill. Therefore, from these Benches, we support the principle embodied in the amendment.
6.1 p.m.
Lord Elton: My Lords, a number of noble Lords have argued persuasively and eloquently both this evening and at Committee stage that it would assist both Houses of Parliament if, each year, when they came to consider a continuation order, they had access to a report about the working of the Act in the past year on the basis of which to consider the case for continuation. There are inevitably concerns in this situation about sensitive security information. We also have to bear in mind that the Act places direct responsibilities, notably in respect of extension and exclusion orders, upon the Secretary of State. Each holder of that office, let us not forget, is personally answerable to Parliament for the way that he exercises those powers. Those factors were reflected in the arguments that I used in the past to resist amendments on this point.
I am bound to say that I was also concerned that amendments on this subject did not spell out the purposes of the commission. I strongly suspect that those putting forward the amendments have not wanted to do so. They did not want to limit the role of the proposed commission to aspects of the Act specified in advance, quite understandably, but wanted the commission to adapt its role to the circumstances that arose and changed during the life of the Act. I understand that concern and, if I have understood it aright, a degree of informality and a lack of constraint on the role of such a commission might be a positive advantage.
Before I come to what I propose in response to these amendments, I should, I think, remind your Lordships of an existing safeguard. The Bill already includes a provision ensuring that the Act will lapse unless continued year by year by a continuation order, and will last for up to a maximum of only five years. That order provides the main opportunity for Parliamentary scrutiny of the need to continue these exceptional powers. The points that I have to make on

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these amendments are addressed to the effectiveness of that scrutiny. They will, I believe, help to improve it. In that way, they will help to reinforce the confidence of the House and the country in the care given to these exceptional provisions which the noble Lord, Lord Henderson, rightly seeks.
I ought, I suppose, also to remind your Lordships of an undertaking that I gave in Committee to which we shall return, I do not doubt, on a later amendment, as to the timely nature of the debates on that renewal. That was my first undertaking. My second undertaking is a new one. There was a general feeling, expressed particularly by the noble Lord, Lord Henderson, that Parliament would value an independent scrutiny of the operation of the Act once a year to inform our consideration of continuation orders. He has summarised the objectives in his amendments and I have already explained briefly that his amendments would, in the Government's view, be insufficiently precise in defining the role of the proposed commission. But that role might in any case need to be adapted to changing circumstances. Rigidity would be a disadvantage.
The Government are concerned about the scale of the recent proposal. To have three commissioners looks very much like some sort of tribunal. That is not, I think, what anyone had in mind. I shall say more about that aspect in a moment. It widens the number of people having access to sensitive security information. That is not a problem in the sense that those concerned could not be trusted, but we should all regret if, on the margin, people whose safety might be threatened—police informers, for example—believed, however mistakenly, that their information risked disclosure.
For these reasons and those adduced ably by the noble Lord, Lord Fitt, our conclusion was that it would be right to undertake to appoint a single person for this task. He would have to be a person whose reputation would lend authority to his conclusions, because some of the information which led him to his conclusions would not be published. To give him the widest possible role and to allow him to adopt whatever procedure seemed to him convenient, his appointment would rest upon this undertaking to the House. I would propose that it should not be set out in amendments to the Bill and, if noble Lords supporting these amendments were to accept the Government's firm undertaking on this point, I hope that they would feel able to withdraw the amendments.
Without attempting to curtail his role, I shall describe what he would do and how he might do it. First, he would not be an appellate authority. It would not be his task to say that the extension of the detention of Mr. Smith was wrong but that of Mr. Jones was right. It would be his task to look at the use made of the powers under the Act. To consider, for example, whether he saw emerging any change in the pattern of their use which required to be drawn to the attention of Parliament. To enable him to see such a pattern and to contain his workload, we envisage that he should carry out his work in a concentrated period once a year to provide a snapshot of the use made of the powers.
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To pursue his lines of inquiry he would, as necessary, have access to relevant papers, including those relating to exclusions and extensions, although in the latter case, as I have emphasised, his task would not be to judge individual cases but to examine the overall use made of the powers. He would have access to ministerial correspondence related to complaints about, or recommendations for, improvements in the working of the Act. He should have any opportunity he requires for discussions with officials as well as Ministers about any question he might have relating to this material or the statistics recording the use made of the Act. It would be up to him to ask for any reasonable administrative help, and the Government undertake to see that reasonable needs are met.
Lord Henderson of Brompton: My Lords, when the noble Lord says that he should have access to any reasonable administrative support, would that extend to someone outside the department—for instance, a counsel learned in the law, a senior counsel, as I suggested?
Lord Elton: My Lords, I am engaged in giving an undertaking to Parliament in wording that has been very carefully thought about. If the noble Lord will forgive me, I would rather not elaborate, although he may wish to ask me a question afterwards or it may arise in some other way. With your Lordships' indulgence I shall contine—
Lord Shackleton: My Lords, if I may intervene, although I have no right to speak because I have already spoken on this matter, I should like to say that a member of the department would, in my judgment, be a very suitable person. Having had the experience, like the noble Earl, Lord Jellicoe, of being served by members of the department, one had complete independence and complete integrity.
Lord Elton: My Lords, I am grateful for that intervention. It would be important that his report should be published—and published in good time before the House considered a continuation order. We would expect that he would need to consult fully with the Secretaries of State concerned before preparing his report. His report might, for example, take the form of a published exchange of correspondence between him and the Home Secretary but covering, of course, the interests of all three Secretaries of State concerned. If he chose to do so, points of security sensitivity could be covered in unpublished correspondence, although, given that his report would not be reviewing or identifying individual cases, I would expect that this precaution should not often be necessary.
Your Lordships are bound to ask who this great man should be. I shall not be able to answer that question this evening, as I am sure your Lordships will understand. But I have emphasised that his task would not be a judicial or an appellate one and I do not therefore expect that he would be a judge. We shall take our consideration of this matter forward urgently if the undertaking finds favour with your Lordships. Given the nature of the task, the important consideration is his public standing as a person who will command confidence not only in Parliament but in the country.

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This proposal has been the subject of much careful thought. It constitutes the offer of a binding undertaking of no little importance. It will provide the extra dimension of reassurance that so many of your Lordships are looking for. It represents, I believe, the most that can be done in practicable terms and it is put forward in the most practicable way. I hope that it will commend itself to your Lordships and to the noble Lords whose amendment we are discussing, and that they will be prepared to accept it in place of them.
Lord Wigoder: Before the noble Lord sits down, can he say whether this individual would have access to detainees?
Lord Elton: My Lords, I would rather not answer that question without notice. I do see the relevance of what the noble Lord asks. I am well aware of the dangers of leaping to conclusions that seem to be obvious, and I think I must merely take that question on board.
Lord Denning: My Lords, I should like to welcome the suggestion and say that the Minister has followed a good precedent because there was something very like it some 20 years ago when the Profumo inquiry was held. It was very like it except that a judge conducted the inquiry on that occasion.
Lord Mishcon: My Lords, I am sure the noble and learned Lord, Lord Denning, was asking the leave of the House when he spoke again, but he is always welcome—
Lord Shackleton: My Lords, if I may interrupt my noble friend, it is not possible for the House to give leave other than to the mover, who may wish to speak again, or to the noble Lord the Minister.
Baroness Trumpington: My Lords, I recognise that but out of courtesy I gave way and let the noble and learned Lord continue.
Lord Mishcon: My Lords, if I may say so, whether the noble and learned Lord, Lord Denning, speaks in order or whether he does not, his voice is always welcome.
From these Benches I would certainly wish to welcome what the noble Lord the Minister has announced to this House tonight. Again, it is not for me to say whether the movers of this resolution are or are not content with what has been said because my name is not attached to this Motion, although my noble friend Lord Prys-Davies has already said we support the principle. Certainly, from these Benches we welcome very much what the noble Lord the Minister has said.
Lord Henderson of Brompton: My Lords, for that very handsome undertaking by the Minister, which I feel sure is welcomed by all sides of the House—the noble and learned Lord, Lord Denning, the noble Lord, Lord Fitt, and the noble Lord, Lord Mishcon, for the Opposition, have each indicated that it is satisfactory so far as they are concerned, and I gather from nods on the Liberal Benches that it is acceptable
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to the noble Lord, Lord Wigoder; and also to the noble Lord, Lord Shackleton—I offer the Minister my thanks. His undertaking will be widely welcomed and give great reassurance not only in Parliament but throughout the country. I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
6.13 p.m.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 12:
Page 13, line 34, leave out paragraph (b).
The noble Lord said: My Lords, I should like to move No. 12. This is a probing amendment. I think that in order to indicate to the House what it is that I wish to probe the Government about I need to read subsection (10) of Clause 14. Subsection (10) says:
"No order under section 1 above"—
that is about the proscription of organizations—
"or under section 17 below"—
that is about duration, expiry and revival—
"shall be made unless—(a) a draft of the order has been approved by resolution of each House of Parliament"—
I do not object to that at all—
"or (b)"
and these are the words in question—
"it is declared in the order that it appears to the Secretary of State that by reason of urgency it is necessary to make the order without a draft having been so approved".
I can understand the necessity for paragraph (b)—which I have just read out—in the case of Section 1 orders which relate to the proscription of organisations, but I cannot myself—though I have tried hard—envisage the circumstances in which paragraph (b) may be necessarily invoked in respect of Section 17 orders;—that is the annual renewal, revival or duration orders. I confess I would have missed this point altogether had not the noble Lord, Lord Elton, in Committee gone out of his way to say—and this was an earlier, and a very welcome, undertaking:
"I am, therefore, prepared to undertake that on any occasion when we lay an order to renew this piece of legislation, we shall do so in ample time for your Lordships to be able to debate it at a date which will permit the Government, if they are moved to do so by the debate, to withdraw the order and to replace it with another drawn in the different terms in which your Lordships have persuaded them to draw it."—[Official Report, 23/2/84; col. 945.]
That was another very handsome undertaking given by the noble Lord the Minister, and I should like to take this opportunity of thanking him for that. But if that undertaking is to have any validity, it surely must mean that the Government would never invoke paragraph (b) of subsection (10) of Clause 14, which is the subject of this probing amendment.
So I am asking the Government to consider excluding the operation of paragraph (b) from Section 17 orders. If, on the other hand, they will not agree to do that, the House is at least owed an explanation of the circumstances in which paragraph (b) might be invoked in respect of Section 17 orders. I await the answer of the Minister with interest. I beg to move.
Lord Elton: My Lords, I am grateful to the noble Lord, Lord Henderson of Brompton, for enabling me

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to provide the explanation which, as he rightly says, I owe to the House. The procedure to which this amendment is addressed—known as the urgency procedure—enables an order, which under normal circumstances would be subject to the affirmative resolution procedure and which would not come into force until approved by both Houses, to be made immediately if the Secretary of State declares that this is necessary by reason of urgency. In such cases the order still has to be approved by your Lordships' House, and by another place, either within 40 days of being made or, if Parliament were not sitting at the time, within 40 days of its return. I can think of a number of circumstances in which this procedure might indeed need to be invoked.
An order under Section 1 proscribing in Great Britain an organisation concerned with Northern Ireland terrorism might be urgently needed during the Summer Recess if a previously unknown or apparently harmless group mounted a concerted bombing attack on the mainland. If such a campaign began in August, I am sure it would be wrong for the making of an order to he delayed until October. Similarly, if a general election were unexpectedly called when renewal was imminent, and a renewal order could not be debated before Parliament was prorogued the Secretary of State would have to make an order under this procedure.
I ought, I think, to have referred to that when I was giving the undertaking. There are circumstances, which one can imagine, when in fact it would be impracticable or impossible to honour the undertaking because one was overtaken by a dissolution. It would be a very unhappy coincidence of dates if that were to happen, but I ought nonetheless to have foreseen it and I regret that I did not. In either case that I have mentioned the order would cease to have effect unless both Houses had approved it within 40 days of their return. So it would be perfectly simple to remedy the matter thereafter.
I recognise that this amendment reflects the noble Lord's very understandable concern that Parliament should be closely involved with every aspect of this legislation; legislation which we are all only too well aware contains provisions which in other circumstances we would regard as objectionable. But the urgency procedure has two safeguards built into it. The Secretary of State must be satisfied of the urgent need for an order, and Parliament must approve that order if its life is to be of a useful length at all.
Lord Shackleton: My Lords, I think that my noble friend has conceded the point on Clause 1—the clause which relates to proscription. I do not know whether the noble Lord can give any other examples apart from an election. Again, I think that this is slightly undesirable. It is a very wide, blanket power. In effect, the Act can be, as it were, re-enacted by order if Parliament is not sitting. Normally, as the noble Lord knows, at the time of a general election there is a quick rush of legislation through Parliament. Your Lordships have to work particularly hard, and I do not doubt that Parliament would approve it or, equally, might not wish to do so, whereupon the Minister would wait until Parliament had been dissolved. It is
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obviously a safe precaution. There may be many other examples. I do not know whether the noble Lord can give those examples. My inclination—if my noble friend does not wish to take the matter to a Division tonight—is for my noble friend to reserve his ammunition and perhaps ask the Government if they can give some further information, perhaps in the course of this debate, if the noble Lord's active friend can supply him with some additional answers.
Lord Elton: My Lords, the activity and nobility of my friend is never in question and, as always, it has proved effective. I am not sure how many examples I can, under those circumstances, produce, but I can produce one. For instance, if part of the Act had been allowed to lapse and then it was urgently needed—owing to a change back to former circumstances—I understand that to reactivate that part of the Act this procedure would be required. I wish to reassure your Lordships that there are no sinister intentions; your Lordships will wish to reassure me that you do not impute any to me, but that my successors may be lesser men; and so we go on. I hope that I have at least explained to your Lordships why there is a need for a provision of this sort.
The noble Lord, Lord Shackleton, suggests that maybe it goes wider than necessary. I dare say, given a little more time, I might be able to produce other reasons as to why a certain degree of width is needed—
Lord Shackleton: My Lords, it is not the noble Lord we are worried about; we are worried about his successors.
Lord Elton: My Lords, I was waiting for that piece of flattery, and I am grateful for it. But I am afraid I can say no more at this stage.
Lord Henderson of Brompton: My Lords, I am very grateful to the noble Lord the Minister for his explanation, and I should very much like to consider it. My instant reaction is that it is moderately—but only moderately—satisfactory. I wonder whether, somehow or other, between now and Third Reading it might be possible for the noble Lord to consider whether this paragraph might be more restricted. Of course, I have conceded that it is necessary in respect of Clause 1 orders; but if it were possible between now and Third Reading to restrict it to the very few cases where it would be impossible or impracticable to lay a renewal order for the reactivation of a part which had been allowed to lapse, it would certainly give me some reassurance. I wonder whether the noble Lord would be kind enough to give an indication.
Lord Elton: My Lords, if your Lordships would be kind enough to allow me to speak more than I should at this stage, I should like to say that, of course, between stages I always consider what noble Lords have said, anyway. I would remind the noble Lord that before Third Reading there is some very urgent work to be done by the same people as will be considering this matter as regards a form of statutory instrument, and so on, to which we would probably attach slightly more importance than we would to this. We will look

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at it again, but not to the extent that it might prejudice that work.
Lord Henderson of Brompton: My Lords, I am most grateful to the noble Lord for what he has said, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Duration, expiry and revival of certain provisions]:
6.24 p.m.
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment No. 13:
Page 14, line 23, leave out ("an order") and insert ("orders")
The noble Lord said: My Lords, I apologise for getting to my feet once again, but I think that it would be the wish of the noble Lord, Lord Wigoder, and probably the noble Lord, Lord Fitt, that I move Amendment No. 13 and speak also to Amendment No. 14:
Amendment No. 14: Page 14, line 37, at end insert—
("() There shall be two such orders affecting the provisions of Parts I, III, IV and V and of Part II of this Act respectively.")
In Committee, which lasted some four and a half hours, a substantial amount of time was taken up by the discussion of Part II, exclusion orders. That discussion was initiated by the Opposition Front Bench. The Committee did, indeed, crawl over the exclusion order provisions. At the end of the day, rather late at night and with only a handful present, the noble Lord, Lord Wigoder, moved an amendment to the effect that there should be five separate orders for approval annually for each Part of the Act. My amendment was slightly less ambitious, and this is the one that I am repeating today. It is one to which the noble Lord, Lord Wigoder, has attached his name. It provides for separate orders for the continuance of Part II, on the one hand, and the remainder of the Act, on the other hand. I know that the drafting is defective, but it does have the merit of simplicity. If the principle is accepted, it should be possible to draft a suitable amendment to be moved on Third Reading, modelled on the wording of Clause 17(2).
In Committee the Minister did not like either my amendment or the amendment of the noble Lord. Lord Wigoder. However, he preferred mine if only because it had the effect of merely doubling the time taken in the House of Commons on the annual orders; whereas the amendment of the noble Lord, Lord Wigoder, would have quintupled that amount of time.
The essence of the case for singling out exclusion orders for special treatment annually is to be found in the Jellicoe Report itself, in chapters 8 and 9. As I said on Second Reading, the noble Earl, Lord Jellicoe, was particularly cautious about Part II, and in chapter 9 of his report he revealed especially his great concern for civil liberty. He opened the chapter with a very remarkable set of words. In order to save time during this Report stage, I shall not read out those words. They are already written into the record because the noble Lord, Lord Mishcon, himself read them out carefully and slowly. Therefore, I should like to take them as read. However, they were very careful words,
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and they are enough in themselves to justify, in my view, a separate annual order for Part II.
But in addition the noble Earl, Lord Jellicoe, went on the say in paragraph 178:
"I believe the need for it"—
that is, the exclusion order—
"to have declined markedly"
since the mid-1970s. That is dramatically supported by the statistical tables. That, in turn, led the noble Earl, Lord Jellicoe, to recommend:
"that the possibility of abolishing it"—
that is, the Part II exclusion order—
"should be kept under regular review, without prejudice to the Act's other powers".
Again I suggest to the House that that is a powerful argument for a separate affirmative resolution for exclusion orders. Indeed, the noble Earl, Lord Jellicoe, said:
"In sum, I believe that it should be one of the first powers in the Act to be repealed; but that the time for this is not yet".
As I said in Committee, the noble Earl, Lord Jellicoe, most fairly set out at length the case against exclusion orders, although he came down in favour of them. In his visits to Northern Ireland he was impressed by the unanimity of view. This is what he said:
"Every political party from which I can receive oral evidence—and these included both Unionist and Republican parties—expressed the view that the power to exclude had been used so as to turn Northern Ireland into a 'terrorist dustbin' ".
Moreover,
"it can have severe effects not only on the excluded person and his family, but also on the population of Northern Ireland".
In paragraph 185 he agreed that exclusion can cause financial hardship and emotional suffering to the family of the excluded person. He said, rightly:
"Exclusion is not a punishment, in the sense that this is not the intention with which it is imposed. But in such cases it can have the effect on the subject and his family of a punishment of very considerable severity".
So I hope that no one will argue that exclusion is not effectively a punishment. Indeed, exclusion is only a euphemism for "banishment", which is a word which sends a shiver up the spine.
I have two more arguments for singling out exclusion orders for special treatment and they are both derived from the Jellicoe Report: first, the need for Parliament to scrutinise especially the operation of the new three-year rule. This is what Lord Jellicoe said:
"It is an administrative question how fast this can be achieved; but I would hope that within a year of introducing 'three-year' exclusion, no 'old' exclusion orders more than three years old would remain in force".
This wants watching by Parliament—and I suggest it wants annual watching by Parliament.
Secondly, Lord Jellicoe says—and this is early on in his report:
"it seems plain that exceptional legislation will be—at best—ineffective if it is operated against the will of the public. The most important assistance which the police can have in the fight against terrorism is not special powers but the support of the public. It is vital that such powers do not unnecessarily alienate—either in their essence or in their operation—any section of the law-abiding population in Great Britain or in Northern Ireland".

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Those are wise words. Recalling the unanimous opposition of all political parties to exclusion in Northern Ireland, I maintain that the case for a separate affirmative instrument for exclusion is made so that public opinion can be annually expressed and judgment made in Parliament as to the necessity for its continuance.
Having said that, I must say in all fairness to the noble Lord the Minister that the Government's handsome undertaking in regard to the appointment of a single commissioner, for which I think the whole House is deeply grateful, has made the case for separate orders for exclusion slightly less imperative than it was. I put it no higher than that. Nonetheless, it remains a formidable case, and therefore I beg to move.
Lord Wigoder: My Lords, I do not think that it is necessary to add to what the noble Lord, Lord Henderson, has said about the importance of exclusion orders; nor about the desirability that, on annual review, Parliament should have the power to come to a separate decision on Part II exclusion orders from its decision as to renewing the rest of the Act. I do not think it is necessary to add anything to what the noble Lord, Lord Henderson, has said, first, because of the way in which he put the matter, and, secondly, because it seemed to me that at the Committee stage the noble Lord the Minister very graciously conceded that it was desirable on renewal in an appropriate case for the Houses of Parliament to have the opportunity to come to separate decisions on separate parts of the Act. The only matter that divided us at the Committee stage was the question of what is the best machinery for achieving this desirable end.
The machinery proposed by the noble Lord, Lord Henderson, is simple in the extreme. It is that instead of having one order to renew the whole Act, which has to be dealt with en bloc, there should be two separate orders, one to deal with Part II exclusion orders, and the other to deal with the rest of the Act. That seems to be extremely simple and extremely effective. The only criticism that could be offered was not a very compelling one; it was that in some odd way if we debate Part II in one debate and the rest of the Act in another debate, our debates will last twice as long as if we debated the whole Act, including Part II, at the one time. I think that there is a logical fallacy about that and I must confess that I do not find it very persuasive or attractive as an argument.
On the contrary, having a separate debate on Part II from the debate on the rest of the Act might very well serve to concentrate people's minds and prevent the debate from wandering over a very wide area. Therefore, the amendment of the noble Lord, Lord Henderson, which I am very happy to support, would achieve the end which everybody wants to see achieved with the minimum of difficulty.
As I understand it, the alternative proposal which the Government put forward in Committee was an undertaking that the order to renew the whole Act would be laid well in advance of the necessary time, so that the Government could test the temperature of the debate in the two Houses of Parliament. If it appeared that there was feeling that particular parts of the Act
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should not be renewed, then the Government would withdraw the order that they had laid and proceed to modify it, and re-lay it as a different order, excluding from it such parts as it appeared the House did not want to renew. By comparison with the proposal of the noble Lord, Lord Henderson, that seems to me to be the most cumbersome of procedures. I find it difficult to understand how it can seriously be said that, on a matter of this importance, it is possible to take the temperature of the House without a vote and in the course of what may be a rambling debate on a very large number of sections of an Act which is being renewed.
I was almost driven to the conclusion last time that the Government were resolved to resist the amendment of the noble Lord, Lord Henderson, and instead to promote their own undertaking out of a sort of determination in no circumstances to have a single word of this Bill amended in Committee in your Lordships' House. I do not believe that that is so, but I ask the noble Lord the Minister to agree, as I am sure he will today, that it is still desirable, as it was at the Committee stage, that the machinery should exist for a separate consideration of Part II of this Bill, and that in those circumstances the proposal of the noble Lord, Lord Henderson, is a very much more practicable one than the one to which he resorted last time.
Lord Elton: My Lords, as I made clear during our debate on similar amendments in Committee, I entirely understand and sympathise with the feeling of frustration that your Lordships may suffer when the only options open to your Lordships are to agree or to negative an order in toto. It was this feeling which led me to offer an undertaking that the draft renewal order would, in normal circumstances, be laid before your Lordships in ample time for debate at a date which would permit the Government to withdraw the order and amend it to take account of the views expressed, if they were moved to do so. The amended version would then be considered in another place and by your Lordships in the usual way.
I have discussed the views expressed by your Lordships in Committee with my right honourable and learned friend the Home Secretary, and I can assure your Lordships that he too fully sympathises with the motives which have led the noble Lords to table this amendment, and indeed to re-table it. He has given this firm assurance. First, that unless in the particular circumstances there are overriding reasons against so doing—and we have just discussed a couple—your Lordships will always be given an opportunity to consider the draft order at least one month before the date of renewal; and, secondly, that he will consider very seriously how many points made in the debate might be incorporated in a revised order.
I mentioned the words:
"Unless in particular circumstances there are overriding reasons against so doing"—
not as a sinister escape hatch, but for the reasons which I gave in an earlier exchange on the previous amendment. That undertaking is as far as the Government can go towards meeting the spirit of the amendment because there is a very real technical difficulty with the amendment, and I hope that your Lordships will bear with me while I try to explain it.

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The separate parts of the Bill are to some extent interdependent. As with other legislation, the parts are there only for administrative convenience, and reflect convenient divisions within the Bill. But it would be wrong to conclude that these divisions represent independent and unrelated provisions. If this amendment were accepted the Government of the day could find itself in a situation in which, having decided after careful consideration that the whole of the Act should be renewed, one House rejected one of the orders, say, that relating to Parts I, III, IV and V, but not that relating to Part II. But the result would be that Part II could not be given full effect without other parts of the Bill being in force as well. It might also happen that one House would reject one order and the other House the other. I am sure your Lordships can imagine the constitutional chaos that this would cause.
I am not of course saying to your Lordships that the Bill is an indivisible whole—if it were, the provision in Clause 17(2) for "all or any" of its provisions to be renewed would be inoperable—but I am saying that it cannot be divided on a rigid basis, sliced down a straight line through the statute at a particular point.
The provision in Clause 17(2) is a flexible one, which enables a Home Secretary to decide, in the light of the circumstances at the time, whether he wishes to renew each provision of the Act or whether one or more can be allowed to lapse. This decision can be made on a section by section basis, or even subsection by subsection; and I can assure your Lordships that it is by no means a foregone conclusion that every section will be renewed. We will consider very seriously, year by year, whether each measure is still justified by the climate of the day, and it will still be open to your Lordships, and to the Members of another place, to challenge that decision by rejecting the renewal order, so forcing the Government to bring before you one which reflects your wishes.
Your Lordships have undertakings that except under circumstances that make it impossible, your Lordships will have an ample opportunity to debate the Act. Your Lordships have an undertaking that the Secretary of State will consider with great care which points from such a debate might be included in a revised order. Your Lordships have an undertaking that the debate will be conducted in the light of the report of the person we shall proceed to appoint following our debate on Amendments Nos. 10 and 11. The noble Lord was kind enough to say what I had intended to point out to your Lordships, that that cast a different light on the need for supervision in the way that is now proposed. I hope that your Lordships, with those three substantial undertakings, will feel that you have done your job as constitutional watchdogs for the liberties of the private citizen and will be content without this further device.
6.43 p.m.
Lord Howie of Troon: My Lords, surely these undertakings are not substantial at all. The fact is that the House can debate the Act, but we knew that anyway. There is nothing new in that. The assurances given that the points made in the debate will be considered by the Government, and possibly some of them might end up in changes in the Act, may be. But
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there is nothing new in that. Surely that happens in any debate anyway. That is not an assurance of any value.
I am not at all convinced by that part of the Minister's argument. He is merely telling us what we already knew. I think that the amendment of the noble Lord, Lord Henderson of Brompton, has substantial strength in it and the Government should think a good deal harder before they try to fob us off with assurances which are not assurances at all.
Lord Elton: My Lords, by your Lordships' leave, I do not think that these are flimsy or insubstantial undertakings at all. They have been made after grave discussion among the very large number of people concerned. They have been given in crystal clear terms which cannot be retreated from and which I have stuck closely to in the earlier debates, as the noble Lord, Lord Howie of Troon, may have observed. They do constitute putting in your Lordships' hands the influence which your Lordships properly seek. I do not think that I can go further. I am in danger of embarking on an impassioned Committee stage appeal to the House, sitting down on interruption and leaping up and speaking by leave many times, but I think you will find on reading Hansard that I have said what seems to me enough to convince your Lordships of the justice of our position.
Lord Henderson of Brompton: My Lords, though I am grateful for the support of the noble Lord, Lord Howie of Troon, I take a different view about the value of the Minister's undertakings, to which I attach very considerable importance. There are three strands. There is the undertaking which the noble Lord gave in Committee. There is the undertaking which the noble Lord the Minister gave on an earlier amendment about the commissioner. I think that is by far the most important of all the undertakings—as far as I can see that commissioner will be able if he thinks fit in his annual report, to say, for example, that in his opinion (after he has carefully examined all the evidence) the exclusion orders should lapse. Parliament will have had the guidance of that commissioner's report. With great respect Lord Howie of Troon I think this is a considerable undertaking for which we should be extremely grateful.
Thirdly, the noble Minister's undertaking in Committee has been reinforced again just now by an undertaking he has given on behalf of the Secretary of State. For these three reasons I should be prepared to withdraw the amendment, though not for the real technical objections. I do not regard them as having any validity at all. The noble Earl, Lord Jellicoe, said that exclusion orders should be one of the first powers in the Act to be repealed. I feel quite sure that there is machinery in Section 17 to be able to repeal the exclusion order machinery. If there is not, I shall be extremely disturbed. If the Act can be unpicked so that exclusion orders can be repealed, it must be possible to contrive an order for approval which could apply solely to exclusion orders. But that is only by the way. I have accepted and I hope the House will have accepted these substantial assurances, and I therefore beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendment Nos. 14 and 15 not moved.]
Schedule 3 [Supplemental Provisions for Sections 1 to 13]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 16:
Page 20, line 36, at end insert—
("(4) Where a person is so detained, the constable shall, as soon as is practicable, make a written record of the time of the arrest and of the grounds for the arrest, a copy of which shall be given to the person detained.
(5) The Secretary of State shall include in the published statistics the total number of arrests under this paragraph and the time periods for which they were detained.").
The noble Lord said: My Lords, we canvassed support for this amendment late in the day in Committee stage. This amendment refers to the detention under Clauses 12 and 13. In reply to the first part of the amendment, the Minister referred to the draft code of practice in the course of preparation under the Police and Criminal Evidence Bill. But that is no more than a draft code and, to repeat a point made earlier, the legislation has not been enacted.
These powers are so exceptional that we consider that the requirements of the first part of the amendment ought to be embodied in legislation. Similarly, on the second part of the amendment, when replying in Committee the Minister drew the Committee's attention to the fact that there is no requirement in the Bill to publish statistics. But if the Bill were to contain that requirement, that would be one means of ensuring that we were achieving the object of the first part of the amendment.
I remind the House that this amendment is based on paragraph 145 of the Jellicoe Report where the noble Earl, Lord Jellicoe, drew our attention to the inadequacy of the statistics. I beg to move.
Lord Hylton: My Lords, may I take the opportunity to ask the Minister whether he could respond in some way to the letter sent to him by the Standing Advisory Commission on Human Rights dated 29th February? The letter dealt with port powers, which is not precisely the subject of the amendment but I think it is analogous. I wonder if he could be helpful on that.
Lord Elton: My Lords, at this late stage and with another Bill waiting behind I think that I must stick to the amendment on the Marshalled List, if the noble Lord will forgive me, and reply to the letter in the normal way.
Clause 12 gives a constable the power to arrest without warrant, and detain for up to 48 hours, a person whom he has reasonable grounds to suspect of involvement in terrorism; that is to say, the ground of such an arrest is reasonable suspicion. The power to detain conferred in the supplemental order is a part of the system of port controls set up to control travel between Great Britain and the island of Ireland. Clause 13, under which the supplemental order is made, gives the Secretary of State power to provide for the examination of people arriving in, or leaving, Great Britain or Northern Ireland to determine whether they appear to be, or to have been, involved in terrorism.
Accordingly, the power to detain at the port currently embodied in Article 10 of the Prevention of Terrorism (Supplemental Temporary Provisions) Order enables an examining officer to detain a person
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pending his examination, or pending further examination.
My noble friend Lord Jellicoe recommended that the power to examine and detain should be lost after 12 hours unless the examining officer by then has formed a reasonable suspicion of involvement, and this change will be implemented in the new supplemental order. That does not affect the technical distinction between arrest and detention. There is a power to arrest in the supplemental order, in Article 11, but it is appropriate only in cases where a person liable to examination has evaded the control point and left the port area. In such a case, he may be arrested and brought back to be examined.
The first new sub-paragraph proposed in this amendment introduces a requirement designed, I think, to apply both to arrests under Clause 12 and to detentions under the supplemental order. I hope that my somewhat long-winded explanation will have made it clear that the references to arrests in the subparagraph have the effect of making it more appropriate to arrests under Clause 12 and arrests under Article 11, if any. As I said in Committee, in respect of Clause 12 the arrangements set out in the draft code of practice on the detention and treatment of suspects issued in conjunction with the Police and Criminal Evidence Bill will go most of the way towards meeting the spirit of the amendment.
Paragraph 2.1 of the code deals with the duties of a custodial officer at a police station in respect of a person who has been arrested but not yet charged. This requires him to inform the person detained of the grounds for detention and to record those grounds and the time when detention commences. There is no immediate requirement for the arrested person to be given a copy of the grounds for his detention but paragraph 2.3 of the draft code provides that at the time of his release, or at any time within the next 12 months, he or his legal adviser shall, on request, be given a copy of the custody record on which these grounds are entered. I realise that that does not go absolutely as far as the noble Lord proposes, but I believe that it meets the spirit of this part of their amendment as far as arrests under Clause 12 are concerned.
I also explained that certain detentions under the supplemental order—that is, those where the detainee is not detained by the police but by an immigration officer—would not come within the purview of the draft code of practice which relates only to persons in police custody. I can only repeat the undertaking which I have already given that we will consider ways of bringing the information given to persons detained under it into line with that of persons detained in police custody.
I turn now briefly to the second part of the amendment, subparagraph (5). This would require the Secretary of State to include in the published statistics the total number of arrests under paragraph 5 and the length of time for which the persons were detained. I take it that in tabling the amendment the noble Lord was concerned to have statistics relating to both arrests and detentions. I assume also that he has seen Tables 1 and 6 of the Quarterly Statistical Bulletin published by the Home Office which contain respectively the total number of persons detained under the legislation

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at ports or elsewhere and, for persons who are not subsequently charged or excluded, the length of time for which they were detained. In future, the bulletin will, in accordance with Lord Jellicoe's recommendation No. 32, also include details of the number of people examined at ports for longer than one hour and whether or not they were formally detained—and I think that this is a point on which the noble Lord was expressing concern.
As I said in Committee, I would be happy to consider the possibility of providing any further information requested by noble Lords in the statistical tables, but it would not be appropriate to insert a reference to the public statistics in the Bill proposed, as I said earlier. I have given two undertakings in connection with these amendments; to consider introducing a form of custody records for detainees under the supplemental order, and to consider the possibility of providing any statistics beyond those already published which noble Lords may request. On that basis, I hope that the noble Lord will feel content.
Lord Prys-Davies: My Lords, in the light of the undertakings which the noble Lord has given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denham: My Lords, I beg to move that the consideration of the Housing and Building Control Bill be adjourned until after consideration of the Merchant Shipping Bill.
Moved, That consideration of the Housing and Building Control Bill be adjourned until after consideration of the Merchant Shipping Bill—(Lord Denham.)
Lord Ponsonby of Shulbrede: My Lords, there is the matter of the Motor Vehicles (Variation of Speed Limits) Regulations 1984.
Lord Denham: My Lords, as the Merchant Shipping Bill comes after that, the Committee stage of the Housing and Building Control Bill will come after both. I must confess to the noble Lord the Opposition Chief Whip that I myself spotted that point and nearly had the same reaction.
On Question, Motion agreed to.
Lord Ponsonby of Shulbrede: My Lords, before we start the consideration of the regulations, I wonder whether the noble Lord the Chief Whip could give an indication that we will not re-commence the Committee stage of the Housing and Building Control Bill before 7.45 p.m.?
Lord Denham: My Lords, I am very happy to give that indication.

Motor Vehicles (Variation of Speed Limits) Regulations 1984
6.58 p.m.
Lord Lucas of Chilworth Lord Lucas of Chilworth rose to move, That the regulations laid before the House on 8th February be approved.
The noble Lord said: My Lords. I beg to move that the draft order laid before the House on 8th February be approved. I should like to start by saying a few words about the scope of the regulations. Broadly, they apply to all vehicles heavier than the private car or motorcycle. They apply mainly to commercial vehicles. They also apply to private cars and motorcycles when these vehicles are towing trailers or, in the case of cars, caravans. They do not apply to solo motor cars and solo motorcycles. Nor do they affect the normal road speed limits, such as the motorway 70 mph limit, the national 60 mph limit, or the 30, 40 or 50 mph road speed limits found, for example, in built-up areas. Whenever a lower road speed limit exists, this always takes precedence over any higher vehicle speed limit which may be found in the regulations currently before the House.
The history of vehicle speed limits goes back a long way—right back to 1861. The present limits go back, in the main, to 1967. The framework of the present rules is set out in Schedule 5 to the Road Traffic Regulation Act 1967. Schedule 5 was amended by statutory instrument in 1971, in 1973 and finally, in 1981, when new limits for works trucks and industrial tractors were introduced.
The regulations now before the House replace Schedule 5 and its amendments by a new set of rules and limits which are not only easier to understand and, hence, enforce, but also are more relevant to today's road conditions and to modern vehicle construction standards.
Speed limits must be realistic. If they are not realistic, the majority of drivers break them. Enforcement is not then practicable, and the effect is to bring the limits and the law into disrepute. I shall deal in a moment with the level of the new limits, but first I think it is perhaps worth pointing out that, for the vast majority of vehicles, the new dual carriageway limits represent the only change brought about by these regulations. The need for new dual carriageway limits is, I think, clear and well accepted. Since the last substantial revision of vehicle speed limits, the amount of high-quality dual carriageway in this country, especially bypasses, has grown considerably. The figure is now something over 3,000 miles.
The other main feature of the new regulations is their form of presentation. They are now clearer in their meaning to drivers, operators and police alike. This will help drivers to comply with the law and the police to enforce it. The regulations follow very much the form of those circulated for comment last August. They were generally well received, with over 80 separate organisations responding to the consultation. As a result of these comments, we have made one or two changes, which I can best deal with by going through the regulations.
The regulations fall into three main parts. Part I covers most vehicles, in that it deals with vehicles or combinations of vehicles fully fitted with pneumatic tyres. Part II deals with vehicles which have a mixture of tyres, including solid rubber or steel, and Part III with track-laying vehicles. Perhaps the House will forgive me if I concentrate this evening on Part I only. Parts II and III are, in fact, more widely understood and, so far as I am aware, are not contentious.
The new limits for coaches are set out in Item I. The limits are 70 mph for motorways, as at present, 60 mph on dual carriageways, which is a new limit generally supported in the consultation, and 50 mph on other roads, as at present. At this point it would perhaps he helpful for me to say something about the 70 mph motorway limit for coaches. We have made clear our concern at coaches exceeding this limit on numerous occasions over the past few months. We have also witnessed, and indeed have criticised, the generally aggressive behaviour of some coach drivers on our motorways. It was quite clear from the number of representations made during the consultation—many unsolicited from members of the public—that the concern is widely shared.
My right honourable friend the Minister of State and officials in the department have spoken to both the police and the operators. Two things, I think, are clear. First, however clouded the arguments have become, there is no evidence that the 70 mph limit is unsafe in normal motorway conditions. Secondly, there is general agreement among all those involved that there is a need for greater compliance with the law.
It was against this background that we were grateful to the Bus and Coach Council for their suggestion of a code of conduct providing for the voluntary use of tachographs on services using motorway and dual carriageway roads, and the monitoring of tachograph discs by management to improve speed limit compliance. I think it is important for the industry to put its own house in order so far as possible, and for us to avoid placing unnecessary legislative or bureaucratic burdens on operators. The code will be ready for the 1984 coaching season, and I believe that, with goodwill, the code should solve the speeding problem. But we shall be looking closely at the situation over the summer months, and we shall not hesitate to take further action if events prove this to be necessary.
I should now like to turn to the speed limits for cars towing caravans or trailers. This has proved to be something of a contentious area, due largely, I think, to a misunderstanding of both the present rules and the new regulations. I am sorry to say that this misunderstanding is shared by some of the specialists in the field, so I hope the House will bear with me if I go into some details.
Apart from certain specialised long-wheelbase caravans or trailers, the speed limit for private cars towing caravans or trailers is at present either 40 mph or, if certain weight-ratio rules are met, 50 mph. These limits apply on all roads. The rules governing weight-ratio are that if a trailer or caravan has brakes its weight must not exceed the weight of the towing vehicle. If the trailer or caravan is unbraked, its weight must not exceed 60 per cent. of that of the towing vehicle. If the combination satisfies these requirements, it must then display a "50" plate to prescribed dimensions. If the combination does not satisfy these requirements, it can still go on the road but can go no faster than 40 mph.
I think it will already be apparent that the present rules are difficult to follow and hence to enforce. In practice, it is likely that 50 mph is widely regarded as the limit for all combinations. My department's
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proposals last August were, accordingly, that the weight-ratio rules should be abolished and that uniform limits whould apply to all combinations. These were proposed as 60 mph for motorways, to allow for improved vehicle performance since 1973, and 50 mph for all other roads.
Although the proposals were generally welcomed, some organisations expressed concern about safety, especially of the 60 mph limit proposed for motorways. In the light of these representations it was decided to withdraw the 60 mph proposal in favour of a 50 mph limit for all roads. At the same time, we decided to proceed with the abolition of the weight-ratio rules.
I should now like to move on to the limits for goods vehicles, where the first change, arising out of the consultation, is the removal from the scope of the regulations of solo car-derived vans. At present, these light vans are allowed to do 70 mph on motorways but are restricted to 50 mph on other roads. There are no technical or safety reasons why these vehicles should not be treated in exactly the same way as the passenger cars from which they are derived, or in the same way as estate cars. The regulations now provide for this. Items 3 and 4 of Part I of the regulations provide for car-derived vans also to be treated as cars when they are towing trailers or caravans.
For goods vehicles generally, the main change is the introduction of a new speed limit of 50 mph for heavy lorries travelling on dual carriageways. I should make it clear—and, indeed, underline—that the current lorry limits of 60 mph on motorways and 40 mph on single carriageway roads remain unaltered. An associated change in the rules is the harmonisation of the speed limits for articulated goods vehicles and draw-bar trailer outfits. The regulations therefore provide for all heavier vehicles to be restricted to the same limits: 60 mph on motorways, 50 mph on dual carriageways and 40 mph elsewhere.
We have also removed an anomaly in the dividing line between light and heavy vehicles. The regulations therefore provide for a uniform cut-off point for all roads. This is set at 7·5 tonnes maximum laden weight. This is the generally accepted equivalent of the current 3,050 kg. unladen weight cut-off point—what, a few years ago, was known as the 3 tons limit. It is also the weight at which reflective rear markings become obligatory, thus enabling ready identification and easier enforcement. Following the changes, therefore, the pattern of speed limits for light goods vehicles will be 70 mph on motorways, 60 mph on dual carriageways and 50 mph elsewhere. Heavier vehicles over 7·5 tonnes laden will have limits of 60 mph, 50 mph and 40 mph respectively.
That, in essence, is what the regulations contain. Obviously, I should be very pleased to answer those questions which any noble Lord would like to ask of me. It might be useful if I say at this stage that throughout all the consultations we have been guided to a great extent by the industries concerned and, indeed, by the police. The Association of Chief Police Officers gave evidence to the Commons Select Committee on Transport relating to speed limits, and I shall quote from it if I may. They said:

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"Speed limits in this country are in a mess. There are too many totally unrealistic speed limits and too many speed limits being imposed for the wrong reasons. It is the view of many chief constables and of the ACPO traffic committee that local authorities have not taken a sufficiently responsible attitude to the published criteria. Additionally, some speed limits remain for historic reasons when they have been overtaken by other factors".
The "other factors" referred to are the improvements in the last few years in roads and, indeed, in vehicles. They continued:
"The proliferation of unnecessary and unenforceable speed limits are not only an unacceptable burden on police resources; they also bring other perfectly proper speed limits into disrepute. There is a strong case for a total reappraisal of all speed limits to make them more understandable and acceptable to the community at large and. therefore, more likely to be obeyed and enforced."
We believe that these regulations do just that. My Lords, I beg to move.
Moved, That the regulations laid before the House on 8th February be approved.—(Lord Lucas of Chilworth.)
7.13 p.m.
Lord Underhill: My Lords, I wish to thank the noble Lord, Lord Lucas, for explaining this order. While I agree that the tables are perfectly clear, the explanatory note to the order does not tell us the present and future limits for different vehicles. I found the appendix to the department's press notice issued on 8th February particularly helpful in this respect, because it set out in simple form the present limits and the new limits to which they are changing.
I was also much helped by the national speed survey of 1983, which was published only on 28th February. Was that speed survey available to the 80-odd organisations which responded to the consultation? They were circulated on 12th August but, as I said, the speed survey was not published until 28th February, unless special copies were made available to them.
I found the national speed survey report very interesting and I shall refer to one or two points. The Minister has stated—as, I gather, did his Secretary of State in the other place last night, although we have not seen that Hansard—that most drivers break speed limits if they are not realistic. He also said that in such circumstances enforcement ceases to be a practical possibility and that the new proposals should make the task much easier.
I should have thought that there were other factors to be considered, such as energy consumption, economic factors—that is, the additional time taken by slower vehicles—driving conditions, the condition of coaches and lorries and environmental and safety considerations, if we increase speeds. None of these factors has been mentioned. The only two points we have heard about are, first, that if speed limits are unrealistic drivers will break them; and, secondly, that limits can be enforced if they are more realistic.
I want to deal with the main categories. First, may I deal with cars drawing caravans and trailers? The Minister said that in certain conditions there will still be a 40 mph limit for some cars drawing caravans and trailers. But when I look at the appendix to the Department of Transport's press notice, I cannot see any reference at all to them. I can find a reference only to private cars towing caravans or trailers on dual
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carriageways, which are at present restricted to 40 to 50 mph. In future, they will all be able to do 50 mph, and on other roads, where they are at present restricted to 40 to 50 mph, they will be allowed to do 50 mph. Perhaps I am not reading the order correctly, but I should like the Minister to say whether there will still be a 40 mph limit for certain types of caravans or trailers.
All noble Lords who travel by road will know the problems when they have in front of them a caravan which is moving from left to right across the road. I get as far away from caravans as possible. Except for those categories about which I have asked the noble Lord, they will all have a 50 mph limit, irrespective of any other considerations. I hope it will not be said that because they are slow they are difficult to pass, because that is not the only factor. The other factor is the conditions under which vehicles are towed.
This is one case where it is not possible to use the argument that there is a general exceeding of the speed limit for towing caravans or trailers, because I find in the speed survey report that only 28 per cent.—I use the word "only", because it is descriptive—exceeded the present speed limit on dual carriageway roads. Therefore, the overwhelming majority of cars pulling caravans and trailers do not break the law on dual carriageway roads, according to the speed survey. It may be that the majority of them break the law on motorways, but they certainly do not on dual carriageways. The speed survey also showed that only 7 per cent. exceeded the speed limit on single carriageway roads, and yet we are now to have the speed limit for all cars towing caravans or trailers set at 50 mph. So there seems to be one category where the argument that drivers break an unrealistic speed limit does not apply.
As regards goods vehicles, we find, in effect, that all heavy goods vehicles over 7½ tonnes will have a maximum of 50 mph on dual carriageways—again, irrespective of types. The Minister made that quite clear. Solo vehicles, articulated lorries and drawbar lorries will all have the same speed limit on dual carriageways—and I would question whether that is wise—except for solo lorries up to 7½tonnes, which can travel at up to 60 mph on those roads. Lorries of all types under 7½tonnes will be able to travel at 50 mph on other roads. I would question whether even goods vehicles weighing under 7½ tonnes should all be eligible to travel at more than 50 miles per hour. Admittedly heavy goods vehicles over that weight will stay limited to 40 miles per hour.
It is argued, again in the national speed survey, that 56 per cent. of all HGVs exceed the present limit of 40 miles per hour on single carriageways. But it is not clear from the survey whether, in referring to HGVs, the survey is referring to vehicles weighing more than 7½ tonnes or vehicles weighing below that. That is a very important point. The survey also shows that on dual carriageways, 42 per cent. of HGVs exceed the 50 miles per hour limit which is to be the new limit. Therefore, to be logical, we should raise the limit above 50 miles per hour because already more than 42 per cent. of vehicles are breaking what is to be the new limit. When the argument for increasing limits is based solely on the fact that drivers already exceed the limit, that is, I suggest, an unwise argument.

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We are now to have a limit of 38 tonnes for heavier lorries and the Government have made clear that prosecutions will not take place if the overloading of lorries is not more than 10 per cent. We are now to have what some people regard as excessive speed limits for lorries on some of our roads. I wonder whether all the facts I have mentioned have been taken into consideration.
Many noble Lords will have travelled on dual carriageways, motorways and other roads not only with lorries right behind them when they have been travelling at 70 miles per hour—when the best thing to do is to get out of the way of the lorries—but also with coaches right behind them. Coaches have overtaken me when I have been driving at 70 miles per hour. The survey shows that 23 per cent. of coaches and buses exceed 70 miles per hour, and a sizeable percentage exceed 80 miles per hour. On the dual carriageways, we are now to have a 60 miles per hour maximum because we are told in the speed survey that 60 per cent. exceed the present limit of 50 miles per hour. We are told that already 20 per cent. of buses and coaches exceed what is to be the new maximum speed limit. Again, one must question whether the speed limit for coaches and buses is not excessive.
What we do not know is what effect all these limits will have on express scheduled services. Will it mean a speeding up of drivers' conditions? Have the unions been consulted about the change? Incidentally, have the unions been consulted about the change for heavy goods vehicles? This is quite important.
The Minister spoke of "normal conditions"—and I believe he spoke of "normal motorway conditions". I noticed in the Guardian that the Minister of State, Mrs. Lynda Chalker, referred to "normal conditions" and stated that the new limits of 70 miles per hour on motorways, 60 miles per hour on dual carriageways, and 50 miles per hour on other roads would be safe. What does she mean, and what does the noble Lord mean, by "normal conditions"? These will be the maximum speed limits on those three types of roads.
I am pleased at the code of conduct that the Bus and Coach Council has introduced. It is a most reliable organisation, but surely the Government should not depend on just what an operators' council does. Surely there ought to be laws we can all accept because they represent the right thing to do.
To return to the Government's argument that speed limits must be realistic because otherwise drivers will break them, what is the position of private cars on motorways? The Government's own speed survey to which I have referred states that 40 per cent. of private cars already exceed the 70 miles per hour limit. Will it be not very long before the Government come back to us to increase that limit because the majority of drivers are breaking the law? Incidentally, more than 14 per cent. of private vehicles exceed 80 miles per hour. I find very little law enforcement in the case of private motorists driving at more than 80 miles per hour on motorways. I am the last person to want to see the harassment of drivers and private motorists, but if the Government decide that these new limits will make for simpler enforcement, what steps will be taken to ensure enforcement of the law? I am still having my
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battle with the Home Office to try to achieve uniformity of police procedure regarding fixed penalties, which vary all over the country. I wonder what steps will be taken to ensure enforcement of these new limits.
Finally, will the Minister please say—and, again, this may be a lack of understanding on my part—what is the meaning of paragraph 6 of the Explanatory Note, which states that,
"Provisions relating to brakes of a motor tractor, heavy locomotive and light locomotive are discontinued"?
I have been critical of a number of points. We can do nothing about them as we do not vote against orders approved by another place, but I hope that the Minister's reply will be helpful to me and to other noble Lords.
7.26 p.m.
Lord Houghton of Sowerby: My Lords, there is no doubt that motorists are now the new criminal classes in our country. There are more law breakers among motorists than among any other section of the community. Because there is such widespread disregard of the law of speeding on our roads, the Government are proposing a new kind of principle in law-making. They say that if enough people decline to comply with the law, we must change the law to comply with the wishes of the people. We are now adjusting speed limits to those which have been widely adopted by those driving different kinds of vehicles on our roads today.
The real trouble is that there is no enforcement on the scale needed to ensure compliance with the law. This applies right throughout the use of motor vehicles. The motorist is too numerous, too determined to have his own way and to subjugate other members of the community to his convenience and to his desires that one might say, "The motorist rules—OK?". There is not much that anyone can do about it.
I cannot help but be cynical about motoring laws and compliance with regulations affecting them. We try to control unlawful parking on our streets by appointing traffic wardens. They are widely abused by those whose names are taken because they have left their vehicles beyond the permitted time or in the wrong place. The truth is that, in the scenery of police and public relationships over the years, the police were heroes for as long as they were arresting the drunks, finding the burglars, and generally looking after the cruder aspects of law and order. But as soon as the middle classes as motorists came into conflict with the police, then the name of the police was mud. That is when altercations began between the public and the police.
From my own experience of introducing the breathalyser when I was in the Government years ago, I know that one of the major considerations was what the relationship would be between motorists and the police if motorists were asked to undergo that unwelcome test of their sobriety while being in charge of a car. I know that good government requires authority and the law to be harmonised with acceptance by the people. But there is such flagrant disregard of the law at the present time that it is very

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difficult to have any respect for changes which will probably make no difference at all.
I cannot see that these regulations will make the slightest bit of difference. Mark you, I do not suggest for one moment that motorists are exceeding the speed limit because they like doing so. In many cases they are doing the speed they think the road and reasonable driving safety will permit. Drivers will go on doing that. It does not necessarily mean that they will drive faster still because the speed limits have been raised. Presumably we are under these regulations going to make more honest motorists than there were before. This, of course, is not unknown. We took the prostitutes off the streets and made their profession slightly more respectable. We took the betting slip runners off the streets and put them into betting shops, which made them a little more respectable. It is a well-known philosophy of law-making that you see what you can do to bring the law into harmony with people's behaviour and not the other way round.
I quite willingly forgo my supper to be able to make these few cynical remarks to your Lordships on these regulations. I could, I am afraid, wander widely on my feelings about much of what happens regarding motorists, but I spare your Lordships at this particular hour by not going any further than I have. My conclusion is that I view these new regulations with resignation, with cyncism, and with a feeling of, "Well, this is how the world is going to go round and we probably have to do it this way". But I suggest that with these new speed limits there should be more vigorous enforcement. That has become absolutely necessary. The enforcement of the law is so capricious at present that no one can have any real respect for it. One thinks oneself unlucky if caught.
I wonder sometimes whether the police go out to find some kind of quota of cases which they can take back with the least possible trouble. They go into the sideways and byways and pick up motorists there because they can do it without stopping the traffic on the major roads. The police cannot cope with it; the courts cannot cope with it; we do not want fines on the spot, and so we go on. I speak from the virtuous position of being a pedestrian. I am no longer a motorist. I ought to admit that, in order to put my remarks in the proper perspective.
7.35 p.m.
Viscount Sidmouth: My Lords, while acknowledging that these regulations do a very useful tidying up job, on what was previously a rather tangled web, I should like to ask the Minister whether he would be a little more specific on the philosophy lying behind the raising of the speed limits for coaches and lorries. It is, I submit, extremely doubtful whether public opinion played much part in this matter. All we have had is some suggestion that the new limits are more realistic and acceptable to drivers and, therefore, in some way easier to enforce.
In this context I refer to a letter written to The Times on 20th August last year by a retired senior police officer who was one of the first on the scene of the M4 disaster which occurred last August when a lorry was in collision with a coach. In that letter he expressed amazement that we still allowed the then existing
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limits for such vehicles to continue. He referred, appositely. to the United States of America, a country where the motor vehicle is king but where the limits for all vehicles vary according to state between 55 and 65 miles per hour.
It is appreciated that the road lobby has a powerful voice in the Ministry. I believe that the Minister's right honourable friend in another place quoted the figure of cost saving to the industry of£300 million arising from the higher speed operation. That is fine so far as it goes, but obviously it does not give the full picture and it is only the credit side of the balance sheet. What about the major debits? First is the increase to the Government and to the public of the cost of accidents. Secondly, is the increased damage to bridges, infrastructures and road surfaces themselves. On the first point, it may be that the Minister has tucked away in his brief some statistics showing that speed is not the prime cause of many of the accidents that occur. He will, of course, be aware that, if so, this is a misleading statistic because in any road accident, however caused in the first instance, speed has a direct bearing on the consequences; which is what we are concerned with.
If I may be technical for a moment, this is not a simple matter of an increase of 20 per cent.—the difference between 50 and 60 miles per hour. The impact force is directly proportional to the square of the velocity of the vehicle. Therefore, in the case of a coach, using this calculation, the actual increase in impact force of these proposals is 56·25 per cent. The figures for lorries are even more formidable because we are still in the aftermath of increasing the maximum permitted weight for lorries from 32½ to 38 tonnes. On that basis the difference in impact force of a 32½-tonne lorry at 40 miles per hour and a 38-tonne lorry at 50 miles per hour is 82·7 per cent. That is doubled if two of these vehicles meet head on.
There is no need for me to say much about damage to roads and structures except that the joint effects of speed and weight, in my view and the view of many others, have been under-estimated for years, as the Department of Transport is now finding to its cost with bridges and roads all over the country. Finally, what about enforcement? I understand that in the United States, even with its lower limits, both speed and lane disciplines are excellent in most places. Of course, there are remote roads which are sparsely patrolled. However, in that connection may I quote from a personal experience.
Many years ago in East Africa the public transport system ran an extensive network of road transports in Uganda and Tanganyika, as it then was. The roads were remote. They were dangerous after rain. The vehicles were heavy lorries with continental type drawbar trailers and there was a high proportion of cowboys among the drivers. The operation was none the less successful. The answer was governed engines and road speeds and tachometers which were properly monitored. This might fill the Minister and the industry with some horror, but it can be done.
7.39 p.m.
Lord Lucas of Chilworth: My Lords, I thank noble Lords for their response to my introduction of these regulations. The best thing I can do, probably, is to go

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through the major points that each noble Lord has made in turn, because in the majority of cases each covered somewhat different areas.
I start with the noble Lord, Lord Underhill, with whom I so frequently have to begin discussions when coaches, other vehicles and roads are concerned. I have a feeling that on balance we are probably more at one than perhaps his speech suggested. The noble Lord asked whether those who were consulted about these regulations had the advantage of having special copies of the national speed survey which was published on 28th February. The answer is: no, they did not have a special copy. We start this exercise from a commitment given by the Government in their White Paper which was in response to the Armitage Report. The consultations and investigations have covered two years. We arrive tonight with a set of regulations that have been hanging around for just over two years.
The noble Lord mentioned a number of areas in which he thought there were disadvantages. He asked about energy considerations. I think he would be the first to agree that the consumption of energy by today's modern commercial vehicles, coaches or motor cars shows an improvement of between 15 and 18 per cent. over seven, eight, nine or ten years ago. That is a reasonable answer to give him under that heading.
The noble Lord also asked about economic considerations, as did the noble Viscount, Lord Sidmouth. The noble Viscount quoted a figure which was given in the other place last night of £300 million. I think that is probably where he obtained it from. He will probably know, therefore, that my right honourable friend the Secretary of State gave this figure. If I could find the place in the manuscript copy of last night's proceedings I could quote what he said, but in substance he said that this was a figure which the industry had given him—that £300 million would be saved. I was there last night. His tone of voice implied not exactly scepticism but perhaps a little doubt. He certainly was not prepared to substantiate the figure. There can be little doubt that there are economic benefits to be gained in terms of scheduling, particularly, commercial vehicles; but whether they are of that order I do not know.
The noble Lord mentioned the other side of the coin—the cost of accidents and of damage. I cannot reasonably deal with that tonight, but I can tell the noble Lord that the recent consultation paper on vehicle excise duty and track costs as applied to commercial vehicles went out for consultation. That was completed, and the Government's response was made a week or two ago. It is there that we would seek to recover true track costs of commercial vehicles at whatever weight. The new method of calculating that takes into account a number of roads. Previously it did not; it lumped them all together. We have a reasonably accurate figure for the cost. I think that it is in that way that I can best describe to the noble Lord the other side of the coin.
The noble Lord, Lord Underhill, suggested that I had said 40 miles an hour for certain caravans. Perhaps I did not make myself clear. There will not be a 40 miles an hour limit for any car towing one trailer or caravan when these regulations come into force. There is a blanket limit of 50 miles an hour on all
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roads. But cars towing two trailers will be restricted to 40 miles an hour on motorways. If I have misunderstood the noble Lord, I shall be happy to correct that when I read through Hansard.
The noble Lord raised at some length the question of coaches. He will probably recall that coaches have always been subject to the national road speed limit on motorways, which has stood at 70 miles an hour since December 1965. We have not made any alteration since 1965. We should recognise the extraordinarily low, and reducing, number of accidents involving heavy goods vehicles. The figure was quoted in another place by my right honourable friend. I was looking for it, but I have not found it. In the past four or five years the incidence of accidents per 100 million kilometres has decreased from 114 in 1972, I think, to 68 in 1982. Again, if I have those figures substantially wrong I shall ensure that noble Lords are advised of it, but the figures are of that order.
The noble Lord asked what we are going to do about coaches. I can only repeat that the operators have agreed voluntarily to install tachographs in all their coaches operating on dual carriageways and motorways, as a management tool. I should emphasise that. It was always agreed when tachographs were introduced that they were not to be used in furtherance of prosecution. That remains so. This is a management tool. It is for the operators to read the tachographs and take managerial decisions on the information that the readings give them.
There have been discussions with regard to speeds which gave rise to the Bus and Coach Council adopting the code of conduct. I have also been at the discussions with my honourable friend the Minister of State. I think everybody agrees that if an industry, or indeed a profession, can discipline itself, that is far better than making yet another set of rules and regulations. I have said that if the code of practice, which is to be introduced this season, is found to be unreliable—in other words, if the practices which noble Lords have described and which I cannot deny continue—we shall have to look again to see whether it is necessary to introduce more law.
The noble Lord, Lord Underhill, also asked about unions. I can assure him that a number of the unions were involved in the consultations. There were 200 on the list of people invited to consult. As I said, some 80 of those on the list did consult, including a number of the unions.
The noble Lord asked me what "normal" conditions are. I had to smile. I suppose they are those which are not abnormal. In other words, as soon as the fog warning lights came up on the motorway, one would say that that was abnormal. Heavy rain or snow storms and had light would also make conditions abnormal. But, of course, we are talking here about normal conditions.
The noble Lord asked me about private cars. All I can say there is that we have just had the national speed survey at the end of last month. My right honourable friend the Secretary of State is giving consideration to what is contained in that survey in relation to motor cars. If there is necessity, he will of course consult with all the interested parties on that

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matter before coming to any decision. I should not like to give any timescale for that to be undertaken.
Finally, the noble Lord, Lord Underhill, asked about enforcement, and the noble Lord, Lord Houghton of Sowerby, in his wide-ranging contribution to this debate this evening, also spoke about enforcement. I repeated what the police had to say. We believe that there will be a greater element of self-enforcement which will enable those resources which can be best used for dealing with this matter to be used more effectively. The noble Lord also asked me about locomotive brakes. I think that it would be better, and more helpful if I wrote to him on that matter. I do not think it is of great and burning importance this evening.
I did so enjoy—as I always enjoy—Lord Houghton's contribution. I am sorry he had to forgo his supper to make his cynical remarks. Perhaps having got the cynical remarks off his chest, it may help him to enjoy his supper without the threat of any indigestion that that cynicism might have engendered had he not got rid of it. I think that the noble Lord spoke largely about motor cars and the motorist in general. He said that the law will not make any difference. If he will allow me to take that a little out of context and say that we are talking tonight about commercial vehicles and coaches, I said earlier what the British Coach Council have said: "We will look after it; if not, we will have to go back to you." I have had a letter—and perhaps a number of other noble Lords may have had a letter—from the Freight Transport Association. I quote their last paragraph:
"The FTA accepts that parliamentary approval for such changes must result in an equivalent response from industry. We shall therefore give the utmost public support for the need for new limits to be properly respected."
That is what they have said quite clearly; and I can assure noble Lords that if indeed they do not do that, then my right honourable friend will have no hesitation in calling them together and telling them of other measures that will have to be taken.
Speaking broadly, the noble Lord said that this change in the law appeared to be merely to accommodate the wishes of people. I think that was the substance of his opening remarks. I would say to him, no, that is not quite true. It is more to accommodate the technical changes that have taken place in both road construction and indeed the vehicles themselves. That is, in part, the reason why we feel it is perfectly reasonable, without a great threat to the accident and injury statistics, to allow these rather modest increases in speeds which, we must face, have been happening in practice for some little time—as the noble Lord, Lord Underhill, quoted from the speed survey I think that is reasonable.
The noble Lord, Lord Houghton, may be interested to know that currently there are on motorways some 21.99 billion vehicle kilometres travelled by cars; some .33 billion vehicle kilometres by buses and coaches, and 4.96 billion kilometres by goods vehicles. For those roads with a speed restriction of under 40 miles-an-hour, cars count for 121 billion kilometres; buses and coaches 2.3 billion; goods vehicles 6.5 billion. We also have other figures. So there is an increase in traffic and we have to take that into account.
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I will make one last comment in respect of Lord Houghton's contribution. He said that the police and the courts cannot cope. The implication was that that is why we are, so to speak, letting some people off the hook. My right honourable friend has been in touch with his right honourable friend at the Home Office. There is indeed a great desire to enforce the law, but the law has to be practical. It has to be one that people respect and wish to obey. We believe that these speed limits that are contained in the regulations will go some way towards that acceptance. It would make enforcement that much easier.
Lastly, I come to the remarks of the noble Viscount, Lord Sidmouth. I think that I have covered the general philosophy on coaches and lorries, the question of consultation and also the question of the two sides of the cost coin. He read some very interesting figures, which I promise him I shall study at greater length. If I can add anything to them, I shall certainly write to him; but when on a recent visit to the Transport and Road Research Laboratory, looking at accidents and accident prevention, I was very surprised to see figures—again I do not have them with me but the sense is correct—that suggest that the majority of fatal and serious injury accidents happen at extremely low speeds. That is really quite interesting.
Of course when you get a laden heavy lorry or a coach that gets involved in a major incident, it makes the headlines; but happily there have been few such incidents. Where these headlines grasp the imagination, one should not talk in terms of speed but in terms of road behaviour. There is no doubt that many of these accidents that happen, particularly on the motorways, are as a result of drivers of all kinds of vehicles not obeying the signs that are there for them. We have all seen it, and this leads to massive pile-ups.
I think perhaps one last word on that: I am happy to tell the noble Lord that there is across Europe an agreement very near with regard to coach body construction in accordance with EEC and United Nations directives. Much of this work has been pioneered by ourselves through MIRA and TRRL, and many of the European coachbuilders and our own coachbuilders are already conforming to the standards which we have suggested. So in the unhappy event of a coach accident, certainly injury would be minimised. I do not think I can tell the House any more about what lies behind the regulations. I hope that the House will now approve them.
On Question, Motion agreed to.

Merchant Shipping Bill [H.L.]

  (formerly Merchant Shipping (Miscellaneous Provisions) Bill)
  Lord Lucas of Chilworth: My Lords, I beg to move that the Commons amendment be now considered.
  Moved, that the Commons amendment be now considered.—(Lord Lucas of Chilworth.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  [References are to Bill (57) as first printed for the Commons]
  Clause 14, page 10, leave out lines 5 to 8 and insert ("Act 1984, and this Act and the Merchant Shipping Acts 1894 to 1983 may be cited together as the Merchant Shipping Acts 1894 to 1984.
  (2) This Act shall be construed as one with the Merchant Shipping Acts 1894 to 1983.").
  Lord Lucas of Chilworth: My Lords, I beg to move that the House doth agree with the Commons in their amendment. This is a technical amendment. It is the normal practice to entitle an Act in this field as the Merchant Shipping Act of a particular year. That was not originally possible in this case because there was already a Merchant Shipping Act 1983. It was therefore necessary to include "(Miscellaneous Provisions)" in the title. As the Bill did not complete all its stages in 1983, this technical amendment changes the title to the more simple form of "Merchant Shipping Act 1984". It makes associated provision for amended citation together with other merchant shipping Acts. I hope therefore that the amendment, as proposed by the Commons, meets with your Lordships' agreement.
  Moved, That this House doth agree with the Commons in the said amendment.—(Lord Lucas of Chilworth.)
  On Question, Motion agreed to.

Housing and Building Control Bill
8 p.m.
Lord Lyell: My Lords, on behalf of my noble friend Lord Skelmersdale I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Lyell.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE LORD HAYTER IN THE CHAIR.]
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 87:
After Clause 34, insert the following new clause:
("Independence of approved inspectors.
.—(1) A person acting as an approved inspector shall not have had, until final notice is given, any direct or indirect financial or professional interest in the work specified.
(2) A person acting as an approved inspector who contravenes the provisions of subsection (1) above shall be guilty of an offence and shall be liable on conviction in accordance with the provisions of section 30(2) of this Act.").
The noble Lord said: I beg to move the amendment that stands in my name. However, before we proceed to the debate this evening I wish to express the dismay of Members on this side of the Committee that such an important Bill as that which we are about to consider once again is brought on at what is a late hour. The Minister will be aware that by agreement with his office earlier this week there was an amicable settlement as to the division of work on the Bill on the first and second days. The Minister is also well aware that on the first day noble Lords on this side of the Committee played their full part in trying to ensure that we reached the point that we had agreed. However, as the Minister knows, and as the record will show, there was a great deal of agitation on the side of the Government towards the end of the first day, with noble Lords being most anxious to conclude. Consequently noble Lords on this side were certainly
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put under some strain and pressure in regard to very important amendments, which in the view of those of us on this side, as well as professional bodies, councils and councillors outside, required considerable discussion.
As a consequence debate has been truncated, to say the least. The series of amendments that we are about to consider will be looked upon by people outside the Chamber as important, and the manner in which we are likely to treat them will not enhance the reputation of your Lordships' House as a serious debating Chamber. Looking at the realities of parliamentary life, I say to the Minister, in all honesty and candour, that to start at eight o'clock on what before this week was ostensibly a full day's business to do with a most important matter is a travesty of how we ought to conduct our affairs.
I am not blaming the Minister. I am simply explaining how events have conspired to produce this situation. If the noble Lord who sits alongside the Minister is indicating (by pointing) that the responsibility lies over here on this side of the Chamber, then I would say that that would need to be looked into later. I am simply saying that in the time that is available to us tonight it is not possible to do justice to those outside this Chamber who would expect us to treat seriously these very important matters.
Therefore, I shall certainly speak to every amendment that has been put down, but clearly I shall not be able to do so as fully as I should wish. So we give due notice to the Minister that where we are not satisfied that we have tonight done justice to ourselves and those outside, we shall take full advantage of the Report stage in order to bring forward the necessary amendments.
I thank the Committee for allowing me to get off my chest (as it were) something on which I have felt very strongly during the last two or three hours—
Lord Simon of Glaisdale: I wonder whether the noble Lord will allow me to intervene before he gets on to the amendment. I have no idea where the responsibility for this situation lies, but I should like to reinforce the noble Lord's note of indignation. This is a Bill of appalling complexity and difficulty, and I adopt the noble Lord's language in saying that it is a travesty of parliamentary proceedings that so much of it should be brought on at this time on the third day.
Lord Graham of Edmonton: I am most grateful indeed for the comments of the noble and learned Lord on the Cross-Benches, which were quite unprompted. I appreciate that he has followed the proceedings on the Bill at all stages, and quite clearly he has a point to make. I believe that noble Lords on the Back-Benches opposite would have wished to participate in the debate on insurance, for instance, which we did not have full opportunity to consider on Tuesday, and to which we shall need to turn on Report. The noble Lord, Lord Broxbourne, who is always in his place for these matters, I am sure has a great many valuable comments to make on a range of matters relating to planning, building control, and so on. So I hope that outside of the Chamber we shall have his support in ensuring that we shall have proper

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opportunity to debate these matters on some other occasion.
In moving Amendment No. 87 I wish at the same time also to speak to Amendment No. 88.
Amendment No. 88: Insert the following new clause—
("Appointment of approved inspectors.
.—(1) A person shall only be appointed as an approved inspector if he satisfies the Secretary of State or the body referred to in subsection (1)(b) of section 31 of this Act that he is a fit person to be so appointed.
(2) In determining whether a person is fit to be appointed an approved inspector the Secretary of State or the body referred to in subsection (1)(b) of section 31 of this Act shall have regard to section (Independence of approved inspectors) of this Act and to any circumstances appearing to him or that body to be relevant, and in particular any evidence tending to show that the applicant has—

(a) committed any offence involving fraud or other dishonesty;

(b) contravened any provision under this or under any Act with regard to compliance with building regulations.").

These amendments relate to concern that is felt as to whether when the approved inspector has been appointed we can be wholly satisfied that he is independent of other interests. I am very pleased to say—I am quite certain that the Minister would have said this if I had not—that following consultation and movement by the Government over a period of time there now appear in the building regulations a great many new provisions, new phrases. or new considerations of circumstances. Two years ago in this regard there appeared to be a yawning gap in terms of the protection of the public. I would not use any untoward words, such as corruption, but there was a possibility of certain events occurring. However, further building regulations have now been circulated and the Minister has been kind enough to send a copy to us. These are the building regulations of 3rd February.
Part of the regulations refer to the grounds for rejection of an initial notice. Regulation 8(1) states:
"The grounds for rejection of an initial notice are that …"
There is then listed a series of grounds for rejection, after which it is stated in paragraph (1)(c),
"except in the case of work within the descriptions set out in paragraph (2) (minor works), the notice does not contain a declaration by the approved inspector that he does not, and will not while the initial notice is in force, have any direct or indirect professional or financial interest in the specified work".
If we turn, as we need to do, to the paragraph dealing with minor works we must take into consideration the exclusions from the need to establish the absence of a financial tie-up, which are referred to there. As I understand it—and I am sure that the Minister and is advisers will make it quite clear not only to myself, but to those outside—the inspector need not sign the declaration that is called for in Regulation 8(1) (c) in respect of the following works:
"Single storey extensions to the, ground floor of dwelling-houses; alterations which—

(i) relate to dwelling-houses having not more than two storeys …

(ii) have no effect on the external walls or roof of the dwelling-house; and

(iii) do not include a material change of use;

(c) alterations to the roof of a dwelling-house having not more than two storeys …
Then other details are given.
We also have in the regulations—and in a moment
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I shall explain why I stress that it is the regulations as opposed to the Bill—the following explanation as to the declaration which needs to be signed by the approved inspector under paragraph (1)(c):
"For the purposes of a declaration … a person—
(a) shall be treated as having a direct professional interest in the specified work if he is, or has been, responsible for the design or construction of any of the specified work in any capacity other than that of approved inspector".
I would say to the Minister that judging from my experience that goes a considerable way towards allaying the fears that were at one time felt that it would be possible for a person such as an architect who may very well have designed the building in question, later to he involved in some other aspect of the matter wearing his hat as an approved inspector. I am certain that the regulation will be helpful.
We move from "a direct professional interest" contained in paragraph (4)(a) to the words in paragraph (4)(b):
"shall not be treated as having a financial interest in the specified work on account of the fee charged or to be charged for the carrying out of his functions as approved inspector".
I fully understand that the mere gaining of a fee to carry out the work cannot be held to be a financial interest in any other sense. We have "a direct professional interest", and we have "a financial interest". Then, in paragraph (4)(c) we have the words,
"shall be treated as having an indirect professional or financial interest in the specified work".
I have pointed this out to show the complexity of the situation and the care that needs to be taken by everyone to be clear that those who carry the title of approved inspector are seen to be free of any charge that they may be trying to serve two masters.
The main point that I make to the Minister, as he and his advisers are well aware, is that NALGO, the Association of Metropolitan Authorities and others have raised these matters with us, and it is really at their request that they appear on the Order Paper. I wonder whether the Minister would not agree there is a case, having gone so far into the building regulations, for having what is eminently suitable written on the the face of the Bill. That is the main burden of what I want to say on this amendment.
I am absolutely certain that the Minister and his advisers will say that there is a limit to what can appear on the face of the Bill, and that there are regulations, schedules and other matters that need to take account of much small detail. I would suggest, however, that this particular matter of the independence, and what is seen to be the independence, of the approved inspector is crucially important.
I recognise that other noble Lords may perhaps wish to contribute. I shall content myself by saying that, in my view, the Government have gone a considerable way over a period of time in seeking to allay the fears of those like myself who could see the possibility of a loophole. The loophole has perhaps been substantially cleared up. My request is for the Government to consider, if not tonight then at another stage, writing on to the face of the Bill the regulations that cover the independence of the approved inspector.
Lord Broxbourne: I am glad that I arrived in the
Chamber just in time to hear the kind reference to

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myself by the noble Lord, Lord Graham, my friend in everything other than the technical political sense; otherwise, he might not have been so kind. Had I not been here, I might have been in danger of the old maxim, "Les absents ont toujours tort". The noble Lord has addressed himself with his customary felicity to a matter of great importance—the independence of approved inspectors. The noble Lord described it as crucially important. No one, I think, whatever their political persuasion, would dissent from that description. The independence of the inspectors is obviously a crucially important matter, as the noble Lord says.
I would go a little further. It is not only of crucial importance that these inspectors should, in fact, he independent: it is of equal importance that they should clearly appear to be independent. If that was not so, the scheme behind the Bill, which I am convinced is a good one, would not get a favourable reception in public opinion. Of course, it is not enough for a proposal to have good intent and good purpose, as this undoubtedly has, which all of us, both in the Committee and outside, I am sure, share. It must be shown that the particular proposal and its wording is appropriate for giving effect to that good intention. Here, I think, with great respect to noble Lords opposite, the amendment is on less sure and safe grounds. I think that the drafting of the proposals contained in Amendments Nos. 87 and 88 is not as precise as one would wish for this particular purpose. Basically, I would think that it does not improve on the drafting of the proposed approved inspectors' regulations.
In the context of drafting subsection (1) of the new clause contained in Amendment No. 87 in regard to the requirement of no financial interest, I do not think that the words "shall not have had" are very happily phrased. I can see that these are words that could easily give rise to argument and difficulty in interpretation and application if this matter came to the courts. I think that the words contained in draft regulation 8(1)(c), which the noble Lord has fairly quoted, are preferable and easier for the courts to apply.
Your Lordships will appreciate that it is particularly important to achieve clear drafting in this context because contravention would involve a criminal offence under subsection (2). Parenthetically, on the subject of drafting I think that the noble Lord will appreciate that in his proposed new clause the words "final notice" in the second line should, in fact, read "final certificate". I mention that in passing because, obviously, it is not a fundamental point.
On a more substantial point, in subsection (1) of the new clause in Amendment No. 88 the onus is put on the prospective approved inspector to satisfy the Secretary of State or other body as to his fitness. I wonder whether perhaps my doubts as to this are shared, by some at any rate, on the question of a basic principle—the question of where the onus should be placed when matters of criminal liability arise. I respectfully suggest that it would read better as:
"A person shall not he appointed unless the Secretary of State or the body referred to is satisfied that he is a person fit to be appointed".
Perhaps better still would be:
"A person in respect of whom the Secretary of State or the body referred to is not satisfied that he is a person fit to be appointed shall not he appointed".
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This is not a semantic point; it is a point of principle. If prima facie a person is suitable, there should be an initial presumption of fitness and the onus of rebuttal should lie on the Secretary of State or the body referred to. This is a question of some fundamental importance when we are at any rate on the threshold of the criminal law, as we are in this context. As this matter deals with criminal liability, it should be tightly drafted. That is not so in all respects. For example, in subsection (2) of Amendment No. 88 the words "evidence tending to show" leave me a little unhappy as to lacking the conclusiveness which in respect of criminal liability should exist.
The other point that I wish to make is that I am obliged to the noble Lord for what he has said about the draft regulations. He has quoted regulation 8(1)(c). That is a definition of a declaration of financial interest which, coupled with regulation 8(4)—which he has already quoted—I would have thought is a sufficiently clear indication of what is here required, and coupled with Clause 42 of the Bill (which provides for offences in respect of false or misleading statements) I would respectfully say that that is enough. I do not say that the drafting is necessarily perfect—drafting rarely is—and no doubt Ministers will consider it further before Report stage, but I think that should be sufficient, and the noble Lord may think it appropriate to withdraw this amendment.
Lord Skelmersdale: I am very grateful to my noble friend Lord Broxbourne who has enabled me to cut out quite a lot of what I might otherwise have said on this amendment. I understand why the noble Lord moved these two new clauses, and I hope that I can reassure him.
We are all agreed it is important that as a general rule approved inspectors should not be subject to a conflict of interest in respect of work which they are supervising. My honourable friend the Minister for Housing and Construction has looked with great care into the question of whether independence should be written into the Bill, and as he told the other place at the Report stage of this Bill, we have concluded that for the following reasons it should not. First, if we consider the requirement for independence, it is not sufficient to say that an approved inspector must not have any direct or indirect financial or professional interest in the work specified. We need to define what we mean by that, and we need to be able to tighten up that definition at a later stage if we find this definition is too loose. The House will know the difficulty of amending primary legislation if it is found to be unsatisfactory. For this reason we think it is better to put this detailed requirement in the regulations.
Following consultations on the first draft of the regulations we have—and the noble Lord gave us credit for it—amended it by adding a reference to conflicts of interests arising by reason of marriage, for example. I believe that the Committee will find its wishes in the matter, and its desire to have those wishes enshrined in legislation, satisfied by what we include in the regulations. In this respect I should like to pay tribute to the work of the Committee last time round in April of last year, and particularly—although he is not here—to my noble friend Lord Caithness who took this whole subject very strongly to heart.

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Secondly, we do not intend that the requirement for independence should apply in all cases. We think it reasonable to allow for exceptions when only minor works are concerned. These again are the ones which the noble Lord quoted. This is not a new suggestion. It was in the White Paper of February 1981 which set out the proposals on which the Bill is based. Again, the details of the exception need to be set out in regulations, we shall wish to consult further on what those details should be, and we wish to leave open the possibility of amending those details in the light of experience and, of course, the results of the current consultations. At the moment our thinking behind this is that minor matters which do not bring serious risks for public health and safety should not be included hut, as I said, we are very open to consultation on this.
In the second amendment, No. 88, the Government entirely agree with the intention of subsection (1), which says that a person shall be appointed as an approved inspector only if he is considered a fit person. Equally. I am sure that the Committee will accept that his fitness will lie in his professional qualification, his relevant experience and also in his professional probity, a subject on which we touched the other day.
These are all matters which will need to be considered in relation to candidates seeking approval. It is the intention of my right honourable friend the Secretary of State that the appointment of approved inspectors as an alternative to the present monopoly of local authorities shall he matched with an absolute determination to maintain the highest possible standards. In approving inspectors, or designating other bodies to do so, my right honourable friend will have that determintion uppermost in his mind at all times.
I hope I have said enough to convince the Committee that this amendment is not necessary. Should the noble Lord at any stage wish me to go into greater detail. I shall be only too happy to do so, but I must stress that that must be within the limits of my ability.
Lord Graham of Edmonton: May I rise to say that I do not wish in any way to test the ability of the Minister on this or any other matter, because I appreciate (a) that he has a brief and (b) that he understands his subject. If I say he does his best, that is not an unkind phrase. I am satisfied with this explanation.
So far as I am concerned, I want to repeat that the evidence we have had from outside is that there has been substantial understanding, I think, by the Government and its advisers on the need to spell out more than they did originally the actual parameters of the independent approved inspector nexus. I have a note, as the Minister clearly has, of the reasons why on 21st December the Minister said in the Report stage that the safeguards had to be included in regulations, because there was a need to define what was meant by,
"any direct or indirect financial interest and work specified and it is reasonable to allow for exception when only minor works are involved".
I acknowledge—as I think all of us who have some experience do—the difficulty of making subsequent changes in the light of experience if what you want to
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change is primary legislation as opposed to regulations. Nevertheless—and I intend to withdraw the amendments—I wonder if in actual fact the Minister (and I am not asking for a commitment) could look at the possibility of meeting the points that have been made in this very short but useful debate to see whether or not it is possible to transpose the sense of what we are after. I understand the sheer volume of it. Leaving aside the regulations, there are 14 or 15 sheets. If between now and Report stage I am advised from another place, or the Minister gets some advice, perhaps we can make it quite clear on the face of the Bill just how much the Government, the profession and the industry recognise the crucial need for the public to be satisfied that there is no possibility of collusion, slipping from there into corruption, in these matters.
I sympathise. We are not using words lightly, nor are we making broad accusations, but I think the public needs to be satisfied on such a major change from an old to a new system that we have taken all the care in the world. I do not even wish the Minister to comment, but I hope that between now and Report stage some thought can be given to see whether a form of words can be used to strengthen this. I simply say that if I cannot find any other words myself from advice given, we will not come back to this on Report. I give notice, however, that we might come back if, in the light of debate, those who advise us on this side can make a suggestion.
Incidentally, it was not merely the long list: I forgot to mention the Institute of Building Control Officers, a very important body in this matter, whom my noble friend Lady Nicol and I saw to get advice. They are equally strong on this particular point of the independence of approved inspectors. I beg leave to withdraw the amendment in this line.
Amendment, by leave. withdrawn.
[Amendment No. 88 not moved.]
Clauses 35 and 36 agreed to.
8.30 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 88A:
After Clause 36, insert the following new clause:
("Builder's manual.
.—From a date to be specified by the Secretary of State the builder of any new dwelling shall provide for the purchaser or tenant a manual which shall contain the plans of the dwelling, its basic construction method, the materials used in its load-bearing walls and provide for the insertion of details of all structural changes and improvements.").
The noble Lord said: We on this side of the Committee consider that this amendment could be—and I stress the tentative nature of "could be"—a very valuable addition to the range of tools which are in the hands of the building industry and which in our view would go a long way towards satisfying a number of problems that have emerged when we have considered this particular situation.
This part of the Bill is all about the care that should be taken by the industry, by those who buy houses, by those who sell houses and also by those who are concerned with legislation as regards inspecting houses and factories. It is also to do with, if not latent defects,

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certainly things that can go wrong and of which people are not aware. Indeed, if they were aware of certain matters either they would be able to discover why something had gone wrong 20 years later, or they would know exactly where to look for the fault, the stress or the strain. So in this particular amendment I am moving that there should be, as of right, the provision of a manual to the purchaser or tenant of a house so that they have access to maps, diagrams and the,
"basic construction method, the materials used in its load-bearing walls and provide for the insertion of details of all structural changes and improvements".
We are talking about the most important purchase in a young person's life—and indeed in the life of an older person as well. When one purchases a car for £3,000, one gets a user's manual. When one buys a refrigerator for £100 or £200, one gets a manual; one gets some guidance and one is told where the faults can occur, what to do when they do occur, what to be careful about, and so on. But when one buys a house, although there are titles and documents and a great deal of other detail, there is not something that one can put on the side and say. "If ever something goes wrong and I want to find out why it should go wrong or if there is an emergency and someone needs to come in to look at the electrical wiring, the gas, the services or anything else, I know where I can find the information". Discovering such information is a problem. Somebody may or may not know something about what has happened. It may be that the building society will have a document.
We are saying that not only should the owner of the house get what might be called—and I am using here a clumsy and inappropriate phrase—"plans as built": in other words, "This is what you have got; this is what is in it". However, in addition, we need to be careful (especially in the age of do-it-yourself) about all the people who think that they can improve their property and who, in the absence of precise detail, can do great damage. I have heard of instances of tenants in, for example, a council house, or other houses who, by tapping on the wall, discover—as they think—that it will be possible to take down the wall between two rooms. They do so, only to find out that the load-bearing capacity of the other walls was insufficient. They were misled by their amateur approach to the situation. It is a sad situation; but it can happen if people are not fully aware of the circumstances. We are asking for a manual as a right. It would be almost a court of last resort for the local authority. If there were a disaster, subsidence or if—God forbid!—there were an earthquake, they would know exactly what the problems would be.
I know that when this matter was raised in another place very late in the day, the Minister was sympathetic in his response. He understood the sense of the amendment but he fell back on the defence that these were matters that needed consultation, negotiation, care and voluntarism, and he did not want to legislate. I am certainly not saying tonight that we want to be too strong about it, but it is an interesting point that needs to be explored. The Minister could do a great service to millions of people and perhaps save them from a great deal of distress and financial loss if he would he prepared tonight not merely to say that this is something with which he
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sympathises. Although, for example, the National House Builders' Council may proceed more strongly with its present plans—and it has plans—to strengthen and sharpen its existing facilities, and even if the National House Building Council finds a useful formula for a manual, we must remember that its properties are not the only properties that need a manual. Millions of other houses will not have the seal of approval given by the National House Building Council. There are council properties, private rented properties and so on.
Therefore, I very much hope not only that the Minister sympathises, but that he is prepared to say that meaningful discussions will take place with the local authority associations who obviously have a part to play, and certainly with the British Property Association and other interests. This is not just a council-orientated matter; it is a property-orientated matter. It may very well be that it will be two or three years before we get what we want. But I should like the Minister to say that he understands the crucial nature of the peace of mind for someone to have a document which he may or may not peruse, but which, when a crisis occurs, will be there for the competent expert to refer to and to work from. I beg to move.
Lord Auckland: The noble Lord, Lord Graham of Edmonton, has very wide experience in these matters, and I am quite sure that this amendment has been put down after a very great deal of thought. I would also urge that the Government give some deep thought to the amendment. However, I must say as one who is by no means as knowledgeable as the noble Lord on these matters, that I have some reservations about it.
When manuals or other documents are put through letter-boxes a very large number of people do not read them. That is not necessarily justification for this amendment to be in any way invalid, but it is a point. As I understand it, this is something very new in building and housing legislation, but it is possibly none the worse for that.
There is also the question of who is to bear the cost? In an area where there are a large number of tenanted houses it is obviously going to involve a lot of preparation, and a lot of manuals will have to be delivered to a large number of houses. But the noble Lord, Lord Graham, has a very valid point when he says that tenants should be made aware of dangers from falling plaster and other such defects which may occur, and that they should have access to advice on this.
I wonder whether the local library, where there is a reasonable sized village or small town, the local town hall or citizens advice bureau, or the local post office if it is a small village, should not contain manuals of this kind—and not merely one manual but perhaps a number? People go into the local post office in a village to shop and while shopping they can always consult, perhaps borrow or even he given a copy of this manual. Therefore, although I think that this amendment deserves consideration, I wonder whether it is practicable in application as it is literally worded.
Lord Skelmersdale: It is not just idle words—and I am sure that the noble Lord, Lord Graham, will believe this—hut I understand the point that he is making, and I have a great deal of sympathy for the

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idea. It is helpful for house purchasers—particularly those buying a new house for the first time—to be given information about the nature of their purchase. From looking again at the amendment, I am not so sure whether it applies to tenants, but this is perhaps something that could be brought out in discussions. It is helpful for information to be given about the house structure, about the points where they need to take particular care in its maintenance (for example. there might he a flat roof, a gutter, or a gully), and about the things that purchasers need to be careful about if they ever consider altering or extending the house.
I am satisfied that it would be a good idea for house builders to give the new owners all the necessary details about the construction and running of their home. I understand that the National House Building Council, whose scheme already covers virtually all houses built for private sale in the country, is preparing a revised version of its existing Owners Manual to be provided by the builder for each new purchaser. This manual will allow for information covering the type of construction and other relevant features.
The noble Lord, Lord Graham, raised the matter that those exercising the right to buy should have access to similar information. Such tenants are of course in a slightly different position from tenants purchasing in the private sector, especially for the first time, inasmuch as they will have, for the most part, lived in the house for some time before the purchase. I would expect those tenants to know considerably more about the house than someone who has perhaps viewed the house only a few times before moving in as its new owner. Nevertheless. I certainly hope that local authorities would be prepared to make available to tenants buying their homes such information as they may request about the type of construction and any other details which they might find useful.
On the other hand, we have serious doubts about whether this is an appropriate matter for legislation and about whether such a requirement could reasonably be enforced in practice. As I have just explained, the house builders are already, and voluntarily, taking major steps in the direction of giving the buyers of new houses information of this kind. Thus, even if such legislation could be enforced, its practical effect would only be marginal. I very much take the point made by my noble friend Lord Auckland. In a previous role I have had quite a lot to do with direct mail—whether solicited or unsolicited—and I certainly understand the point that my noble friend has made.
Having said that, I hope that the noble Lord will agree with me that it will be much better to proceed by co-operation than by the necessary compulsion which primary legislation would give, and I ask him to withdraw his amendment.
8.45 p.m.
Lord Graham of Edmonton: I am disappointed with that reply because the genesis of the amendment was the Campaign for Traditional Housing, and that Campaign for Traditional Housing comprises a number of bodies which are involved in housing. The Consumers Association also supports this view. Last year the RIBA issued a joint report, Homes for the
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Future, and it recommended that user manuals should be provided for public sector rented accommodation. Then in June last year the RIBA, in a report entitled, Homes Old and New—a Strategy for the 80s, stated:
"A house logbook should he issued with each new house built. This would record important information".
Last year the AMA produced a report, Timber-Frame Housing—a Cautionary Note, and it said:
"With all dwellings a "user manual" available for the consumer is always advantageous. However, in timber frame housing it is vital, and all owners and tenants should be given adequate advice and information about the particular problems of timber-frame dwellings in use."
I was grateful to the noble Lord, Lord Auckland, for the sympathy which he expressed for the principle; he certainly wants some movement in this matter. He does not merely want to leave it to what one might call market forces or natural evolution. There is some urgency about the matter. The noble Lord referred to information that is pushed through the letterbox. I do not remotely regard the standing of this document as something which is pushed through the letterbox. It is a precious document and I would give it the standing very akin to that of the deeds of a house (because we know just how important they are). When deeds are conveyed from one owner to another, the manual is among the important documents that should accompany them. The manual must not be locked away but must be kept handy, and I am thinking in terms of a cupboard or a place under the stairs so that the householder knows where it is. I can see a great deal of practical use and value in this.
The Minister rests his case on allowing those who feel so moved to take the steps to bring this about, I welcome the intention of the National House Building Council to strengthen its existing service. This indicates that it is aware that there is a need to provide a better document. The noble Lord, Lord Auckland, raised the question of cost. We are talking about plans; we are talking about keeping a document up to date. This is not a document such as deeds, which do not change; whenever there is a major change or even a defect which needs to be put right, the document needs to record it. So it is a living document. It will cost money. But when we are talking of someone buying property worth £30,000. £40.000 or £50,000—and that is modest—we are perhaps only talking about E30, £40 or £50 for a document.
I understand the sense of what the noble Lord, Lord Auckland, said. There may very well be types of property which are exactly the same, so why go to the trouble of charging 1.000 people £50? It could be that documents could be situated in a building that is used by the community. That would be better than nothing. The Minister blanched at the words "coercion" "insistence" or "mandatory". We will see exactly how he feels about the use of those terms and actions when we come to later legislation as to whether we shall allow local people to decide what they want or whether we are to coerce. I will give way to the Minister in a moment. We are talking about something which is absolutely central to the future of ordinary people: their home, whether it is a council home or a rented home. They want to know how to look after it to the best of their ability. We believe that a house owner's

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manual, such as the one you get with a car or with a fridge, would be money well spent.
I know that the Minister is about to say "Before the noble Lord sits down", so I will sit down so that he can say it.
Lord Skelmersdale: I was going to suggest to the noble Lord that he did not tempt me into validating future legislation which he, at least, and I have only partly seen.
Lord Graham of Edmonton: The Minister will make his points as to why in certain circumstances the Government intend to rule with a rod of iron and leave no opportunity, where we are saying that in the interests of the consumer we are anxious that the consumer is best served. Caveat emptor is a well-known Latin tag to those of us who may know little about Latin tags but know something about the consumers' interests. Letting the buyer beware may be a well-used phrase. We are anxious that the buyer is not only on his own metal to find out everything he can, but that he has some reserve, some document on which he can rely.
I can understand points being made about the validity or legality of a document and the ability to quote a document in a court of law. There is a long way to go before this idea comes to fruition. I am disappointed. We intend to return to this at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 [Cancellation of initial notice]:
8.52 p.m.
Baroness Nicol Baroness Nicol moved Amendment No. 89:
Page 39, line 23, leave out ("subsection (3)") and insert ("subsections (1) and (3)").
The noble Baroness said: Clause 37(3) provides that if a person carrying out work, or intending to do so, under an initial notice becomes aware that the approved inspector is no longer willing or able to carry out his functions, then notice must be given to the local authority and to the approved inspector. Clause 37(4) makes it an offence to fail to give such notice without reasonable excuse.
We take the view that an approved inspector should also he liable to criminal prosecution if he failed to give a notice as required under Clause 37(1). This amendment brings that into effect. I beg to move.
Lord Skelmersdale: The noble Baroness has finished with Clause 37(1), so perhaps it might be convenient if I started with it. It requires an approved inspector to cancel an initial notice in certain circumstances. These are, first, when he can no longer carry out his functions, for example, through incapacity or ill health; secondly, where he considers that the work is being carried out in a way that prevents him from carrying out his functions, for example, if he is not given information or calculations which he needs to perform his job; and, thirdly, where he considers that there is a contravention and the developer has not taken steps to remedy the matter.
Clause 37(3), which we should now properly go on to, provides for the situation where the approved
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inspector has not cancelled the initial notice, but nevertheless it is apparent that he is not able or willing to continue to carry out his functions. In these circumstances the developer must cancel the initial notice. Failure to do so without reasonable excuse is a criminal offence under Clause 37(4).
The effect of the amendment would be to make it a criminal offence for the approved inspector to fail to cancel the initial notice, just as it will be for the developer. However, there are significant differences between the two situations. It is very important that a certifier who expects to become, or becomes, unable to continue to carry out his functions of supervising work should notify not only the local authority but also the developer.
We see no reason why an approved inspector should fail to comply with this statutory requirement any more than with the many other statutory duties under which he operates. We can see no reason for creating a criminal offence. Indeed if an inspector is no longer able to supervise work he will want to put beyond doubt the limit of his own responsibility for the work for which he is cancelling the initial notice. Legally he will be under a continuing obligation to discharge his statutory functions until the cancellation notice is given both to the developer or building owner and to the local authority. This is a point which I made on Tuesday.
I should like to remind the Committee that a designated body has power to withdraw approval from an inspector at any time. I should also like to take this opportunity of clarifying a comment which I made on Tuesday evening, apropos an inspector who acquired a reputation for being too lax. A local authority would not be able to reject an initial notice from an inspector, so long as he was approved. However if the authority, or anyone else for that matter, had reason to believe that an inspector was too lax, it would be up them to make this known to the designated body which had approved him. It is up to the designated body to consider whether to withdraw his approval. Any designated body will be concerned to protect its own reputation, without which its designation would be unlikely to last very long, and for our part we would want to be satisfied that such bodies will take speedy action if they consider that an inspector has acted irresponsibly.
Once the approval is withdrawn the local authority will be obliged to reject any subsequent initial notice which he gives. Furthermore the inspector would have to withdraw from any project he was already engaged on because any final certificate which he gave would also be rejected.
I accept that this point is only of marginal relevance to Amendment No. 89, but I thought that the Committee might find it helpful to have a fuller explanation now. In the light of my preceding remarks about the amendment, I would invite the noble Baroness to withdraw it.
Baroness Nicol: I am grateful to the Minister for that very full ėxplanation, and I am quite happy with it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 agreed to.
Clause 38 [Effect of initial notice ceasing in force]:
Baroness Nicol Baroness Nicol moved Amendment No. 90:
Page 40, line 8, leave out ("not be exercisable") and insert ("only be exercisable where the local authority is of the opinion that any work previously carried out is in breach of building regulations").
The noble Baroness said: Where an initial notice ceases to be in force, provided that another initial notice is not served under Section 32, the building control functions will revert to the local authority. This clause provides that where a local authority takes over work, part of which was previously subject to an initial notice and in respect of which a plans certificate was issued, then the local authority cannot interfere in respect of that work. Under the clause as presently drafted, the local authority could be placed in a position where they had to carry out building control functions in respect of further works where previous work was clearly in breach of building regulations, yet they would be unable to interfere.
Furthermore, if a plans certificate had been issued in respect of work as yet to be carried out, and the local authority had to exercise its building control functions in respect of that further work, the situation could arise where they had to pass work which was clearly in breach of the building regulations, because it was the subject of a plans certificate.
It cannot be the intention of this legislation to perpetuate breaches of any regulations. That would be contrary to public policy. Where the building control function reverts to the local authority, the local authority must be in a position to rectify any breaches of which it is aware, and this amendment seeks to ensure that they do have full powers of enforcement in such a situation. We have touched on this in earlier discussions, but I think some clarification and reassurance are still necessary. I beg to move.
Lord Skelmersdale: Clause 38 deals with the effects of an initial notice ceasing to be in force. This could happen because a notice has been cancelled by an inspector, builder, or local authority, or because the building has been occupied without a final certificate having been given within the prescribed period. In these circumstances the local authority's responsibilities and powers in relation to building control revive—I think this is the important point that the noble Baroness may have missed—within limits imposed by the clause.
These limits are necessary in the interests of both the builders and the local authorities. Builders do not want to lose the benefits of any certificates of plans or of work which their inspectors may have issued and local authorities, for their part, do not want or need to assume responsibilities and liabilities for matters which have been certified by an approved inspector. Where such certificates have been given, local authorities will not be able to require work to which the certificates relate to be taken down nor could they prosecute for contravention. If, for example, half the houses on a building estate have been certified by an approved inspector before the initial notice was cancelled, the local authority would have no power to inspect them or to require any alterations. Subsection (7) makes it clear that the second initial notice may be served so that a second certifier can take over where the previous one has withdrawn.
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There is no point in forcing a developer to present his local authority with the problem of half-completed work. Regulations will be made providing arrangements for a smooth handover, but where a local authority has become substantially involved in supervising the work it will not be possible for a second certifier to take over. I hope that that is a reasonable answer to the points that the noble Baroness has made.
Baroness Nicol: Yes, that is a reasonable answer up to a point, but I still have a great deal of unease about the more complicated developments. We keep talking about housing estates, but these are not what we are worried about. It is the much more complicated development, the large mixed development of commercial and perhaps residential where large parts of the work can be covered up and certified before the local authority might have to step in. I am not quite sure from anything that has been said whose liability it will be, or how difficult it will be to prove liability, in the event of a failure in these very complicated developments.
I should like to see the local authorities left with some power where they suspect—even where a final certificate has been issued; they do not suspect without good reason—that something has not been properly certified in the first place. I am very concerned that they may be left picking up the pieces. Can the Minister offer more reassurance on that?
Lord Skelmersdale: If my memory serves me right, one of the objectives of the final certificate is that if the building or part of the project—say, it is a mixed development or a range of shops or a garage, and so on, which I think is the point which concerns the noble Baroness—is not fit for use, it will not be able to be occupied. I shall have to check into that point and confirm in writing.
Lord Graham of Edmonton: The Minister must take fully on board one of the great aggravations which have emerged particularly regarding the present building inspectors and on councils in the precise situation which my noble friend Lady Nicol has outlined. That is, where, in some circumstance, whatever the reason, the local authority has to continue and take over the inspection function. We are not reading more into this than is possible; we are simply saying that it is possible. Invariably when that happens there has been an unfortunate circumstance. Otherwise the local authority would not have reverted to the responsibility. Let us suppose that the approved inspector who is responsible for the whole of the job, or a specialist, has died or has left, or there has been an argument, or he has emigrated. or he has retired, and the developer then says, "I am now going to go through the procedures and the work is going to revert to the council". That is not the developer's fault, perhaps. It is certainly not the council's fault. But in the circumstances we are talking about how the local council building inspector, who then has the responsibility of carrying out inspection, satisfies himself that the earlier work for which he has not been responsible nevertheless has been carried out properly.
The Minister might fairly say, as he has said, that it has nothing to do with the council. One must assume that if final certificates have been issued for various

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stages of the work, you must accept it. But we are talking about professional people who may look at some work for which a final certificate has been given, and they are far from satisfied. The Minister must really say a bit more about satisfying the public—not the council inspectors, but the public—that there is no possibility that the council will continue to approve work on top of work which may be suspect. The point my noble friend made is very real. Who will carry the responsibility for the dereliction revealed later?
Lord Skelmersdale: I appreciate it, and I am sorry that I was talking in shorthand; but I had anticipated that both the noble Baroness and the noble Lord had read my response to a question asked me by the noble Lord, Lord Irving of Dartford, on Tuesday last, in column 235 of the Official Report. In the situation which the noble Lord, Lord Graham, has outlined the local authority will have very wide powers, comparable to those we have under the existing system. Clause 38(4) provides that building regulations may require them to be provided with plans not only of uncertified work but of certified work, too, because they may need such plans in order to see whether the building as a whole will comply with the regulations. Draft Regulation 18 specifically provides for this. It also enables the local authority to require work which has not been given a final certificate to be opened up for inspection. If the reason for cancellation of the initial notice was an alleged contravention, the local authority, on becoming responsible, must be informed of it. They will therefore be well armed to deal with this situation. I hope that this is the reassurance that the noble Lord requested.
Baroness Nicol: I accept the explanation and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 91, 92 and 93 not moved.]
Clause 38 agreed to.
[Amendments Nos. 94 and 95 not moved.]
Clause 39 [Giving, acceptance and effect of public body's notice]:
9.7 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 96:
Page 41, line 17, leave out ("public") and insert ("designated").
The noble Lord said: These amendments have been given to us by the District Planning Officers' Society as a series of amendments. I think that one can appreciate that a body as eminent as they are in this particular field will have given the matter a great deal of thought. In essence, what they are saying is that there is the possibility of confusion between using the term "public body" in one circumstance and "designated body" in another. The Minister may be able to tell us that he and, ipso facto, everybody else ought to he clear as to what is meant and the only people who are confused are the district planning officers; in which case, I will send them a copy of the Hansard immediately and tell the House at Report
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what they think of his answer. In the meantime, I wonder whether the Minister can tell us whether it is possible either to leave the Bill as it stands with "public" in one place and "designated" in another, or whether in fact the amendment seems sensible.
Lord Skelmersdale: Yes, I do think that the words in the Bill are sensible, not surprisingly. Bodies approved under Clause 39, which will be able to certify their own work, and those defined in Clause 45, which will be able to relax certain building regulations, being exempt from the procedures of the building regulations under Clause 44, will all be public bodies acting under enactments for public purposes and not for their own profit. I am advised that it would be misleading to refer to either category as "designated" rather than "public" bodies because they are referred to in the way that they are in this Bill as they are referred to in other statutes, whether they are statutes setting them up or whether they are statutes that pertain to them. Also, it could give rise to confusion with bodies designated under Clause 34 to approve inspectors or those designated under Clause 46 to approve documents.
I shall have more to say about the operation of Clause 39, and the bodies which might be suitable for approval, in regard to the next amendment. In the meantime, I really do think that the Bill is a sensible piece of drafting, and I hope that I have gone some way towards convincing the noble Lord.
Lord Graham of Edmonton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 97:
Page 41, line 22, after ("agents") insert ("who meet the qualifications required for an approved inspector and is satisfied that it has sufficient insurance cover for any claim made against it as a result of the occurrence of any defect in that work")
The noble Lord said: This amendment refers to the status and standing of public bodies and to the ability or the right of public bodies in this matter. It relates to the supervision of their own work by public bodies. I must tell your Lordships that in no way do I wish to see a public body have any special rights or any exclusion or exemption from any element of the law. I think there is a cynicism about in many quarters that there is a law for one and a law for the other. If we are laying down controls of disciplines which have to be followed by the private sector, then we ought to make sure that they are also laid down for the public sector. What we are saying in this amendment is that we want to make sure that the same standards are applied.
The Minister might tell us that there is no need for this, but we are anxious to ensure that the public bodies (although we have argued long, particularly in respect of the insurance cover) do not have one law and the private sector another. A good deal of debate took place in another place on this matter, and I have a copy of the relevant Hansard. Some powerful arguments were deployed there which I myself may have to deploy later. I beg to move.
Lord Skelmersdale: I know that there has been some confusion between this clause and Clause 44, which we

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shall move on to in a moment. Perhaps I might now explain the purposes of this clause in response to the noble Lord. Lord Graham.
Clause 39 provides that public bodies which act under an enactment for public purposes and not for their own profit, and which are approved by the Secretary of State, may supervise work which they carry out on their own buildings. An approved public body may give to a local authority a "public body's notice" similar to an initial notice, accompanied by the plans and information needed by the local authority for their public health functions, referred to as the "linked powers". This category of public bodies may include bodies such as statutory undertakers and municipal undertakings, and possibly some nationalsied industries. When the Bill was in Committee in the other place my honourable friend the Minister gave assurances that such bodies would be approved in a limited and careful manner. and only when the Secretary of State was satisfied that it would be in the public interest.
At present these bodies are required to deposit full plans and submit their works to local authority inspection, except for statutory undertakers, which are entirely exempt from the building regulations in respect of their operational buildings only under Section 71 of the Public Health Act 1936. Since Parliament has already demonstrated its trust in these bodies in giving them specific statutory functions to perform for the benefit of the public, there must be a strong presumption that they can be trusted to behave responsibly. Freeing them from the need always to deposit full plans, and to go through the full procedures with their local building control authorities, could represent a useful reduction in bureaucracy.
Clause 38 would, therefore, enable the Secretary of State to give an approved public body or class of bodies the option of certifying work they carry out on their own buildings where they consider that this can adequately be done by their own servants or agents. They will still be able to go through the full local authority procedures if they wish, or to use the private certification system.
Amendment No. 97 evidently has two purposes. First, it would require a public body intending to certify its own work to use as its servant or agent supervising the work a person who meets the qualifications required for an approved inspector. This would obviously include a person who was an approved inspector, but it would also seem to include a person who was suitably qualified, but who had not actually been approved.
The Government believe that there is no need for such a provision. We think that a public body of the type that I have described, which has already been approved by the Secretary of State, and which considers that it can properly carry out the task of self-certification, can be trusted to conduct its affairs responsibly. In any case, it can use this provision only if it considers that the work can be adequately supervised by its own agents or servants. Depending on the nature of the work in question, it would be obliged to entrust its supervision to a person who was, in its view, suitably qualified.
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It might choose to employ an approved inspector, but it could equally use a member of its own staff whom it considered competent for the job. This is similar to the position of local authorities. They have the responsibility of enforcing the building regulations, but there is no requirement that they employ people with specified qualifications as their building inspectors. They are trusted to exercise their judgment reasonably. There is thus no need for the first part of Amendment No. 97.
The second part of the amendment would require the self-certifying body to be satisfied that it has sufficient insurance cover for any claim made against it as a result of the occurrence of any defect in that work. I would remind the Committee that self-certification can be used only for work on the public body's own buildings. It is up to such bodies to decide how far they want to insure their own buildings against defects, if at all. They are hardly likely to sue themselves for negligence. As public bodies they should be able to meet claims from third parties. A statutory requirement that they should satisfy themselves that they have sufficient insurance is not required. If a building were sold, a subsequent owner would be able to sue the approved body for negligence.
Amendment No. 107, which is partly consequential, would additionally require the public body to provide insurance cover for any period during which a claim may be made. As I explained when we were considering Clause 32, such claims could arise in the indefinite future, but there is no way in which we could ensure that premiums would continue to be paid, and so the insurance industry could not provide such cover. As I have just explained, the kind of body which would be approved under this clause would be able to meet any claims which might arise in any case. So I do not believe that the worries of the noble Lord are viable. If they are, I shall be interested to hear his views.
Lord Graham of Edmonton: I am grateful for the care which the Minister has taken with his response. But what he is saying is that there is no need for a public body to alter in the future any of its procedures which it has operated in the past. The current situation is that a public body exercises its discretion, its supervision, its appointment; it carries its risks and makes sure that only competent people are used. The great puzzle for Members outside this place about this whole part of the Bill is why the Government are determined to change what the Minister has, very fairly and effectively, described as a good working system. It is worked, at the moment, not only by public bodies in regard to their own buildings, but also by the public inspection system in regard to other buildings. Yet the Government have decided that this needs to be changed.
I appreciate that there are two or three threads woven into these amendments. There are not merely the public bodies and the qualifications of the approved inspectors; there is also the enormous subject of insurance, at which we had one nibble the other night and to which we shall need to come back again. But in view of the lateness of the hour, I simply serve notice that we shall be coming back to these

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subjects on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 98 to 107 not moved.]
Clause 39 agreed to.
Schedule 7 agreed to.
Clauses 40 and 41 agreed to.
Clause 42 [Offences]:
[Amendments Nos. 108 and 109 not moved.]
Clause 42 agreed to.
Clause 43 [Interpretation of Part II]:
[Amendment No. 110 not moved.]
Clause 43 agreed to.
Clause 44 [Exemption of local authorities etc. from procedural requirements of building regulations]:
On Question, Whether Clause 44 shall stand part of the Bill?
9.20 p.m.
The Earl of Selkirk: I do not intend to speak at great length because my noble friend has done much by way of explanation. The word "public" is a very uncertain word. I would have preferred the franker expression "designated", because that is what is really meant. One talks about public schools when one really means private schools; one talks about public limited companies when one really means private organisations. The words in this clause really mean very little. I do not want unduly to press my noble friend at this time, but I should like to have a better idea of what it is he has in mind. After all, every joint stock company is entering under statute. As I read it, this clause to a great extent leaves the department completely free to do what it wants to do.
The record in public building is not by any means without fault. My noble friend Lord Carrington tells me that the Victoria and Albert Museum is in a shocking state. My noble friend the Duke of Norfolk tells me that the College of Arms is in a deplorable condition. They are both public buildings in any normal sense of the term but I do not suppose for a minute that they will be given the authority in Clause 44.
Any people who are working on a building are probably not ill-advised to obtain an outside opinion from time to time. I hope that my noble friend will not be too free in saying that any body which is a public body shall be entitled to make their own inspection. The record of local authorities is not by any means outstanding. There are many examples which I could mention, but with which I will not bother your Lordships, of works which have had to be rebuilt at the cost of very large sums for one reason or another. I do not want to press my noble friend further, but I should like some idea of the principles he will work to. We are setting up a new system of regulations; let us see that they work well. It will be many years before new regulations are made, so let us try to ensure that the standard of building in this country is greatly improved.
Baroness Nicol: I wish to support the noble Earl. He has given some examples of older buildings where the standards leave a lot to be desired. It is equally true that many modern buildings—those built not only by local authorities but also, for example, by health authorities and many other statutory bodies—fall short of the required standards. I suspect that they do so not only in respect of building controls but in terms of planning as well. I hope the day is not far distant when all public bodies will be subject to the same expectations as far as the public are concerned as are private builders. In other words, I hope they will be subject to building controls and also to planning controls. I hope that the noble Earl will pursue this point.
Lord Broxbourne: Listening to my noble friend Lord Selkirk, I wondered whether he had altogether appreciated the limitations of the exemption given by Clause 44. As I read the clause, the exemptions concentrated under subsection (1) are exemptions
"from compliance with any requirements of those regulations which are not substantive requirements".
For what is meant by "substantive requirements" we have to look at Section 76(3) of the Health and Safety at Work Act 1974, where we find that they mean,
"the requirements of building regulations with respect to the design and construction of buildings and the provision of services, fittings and equipment in or in connection with buildings"—
then there follow the words—
"as distinct from procedural requirements".
Therefore, there is in the operation of public health law, in the context of building regulations, that continuing dichotomy between substantive requirements and procedural requirements. Unless I have misread the clause, the contemplated exemption leads only to procedural requirements. The matters to which my noble friend very properly drew attention are, of course, all substantive requirements—which will not come within the ambit of the exempting provisions of Clause 44.
The Minister will no doubt correct me if I am wrong, and will enlighten the Committee more correctly, but as I read the Bill and as I read the 1974 statute that appears to be the effect. Although I wholly appreciate and sympathise with the apprehensions and public-spirited anxieties of my noble friend, I think and hope that in this context they are not well founded.
Lord Skelmersdale: I listened with great interest to this short debate, but I am still not persuaded that Clause 44 should be omitted from the Bill. When my noble friend Lord Selkirk raised his original objections I understood that he was quite happy that a local authority or county council should be included, but that his real worry was the phrase, "any other body". If I am wrong, he can correct me. But before sweeping those two aside, may I point out that this clause in part repeals what I can only describe as a legal dottiness. At the moment a district council, for example, has to apply to itself, pay itself fees, submit plans to itself, and so on. Of course, it does no such thing because the officers move these things around among themselves. None the less, it is a legal requirement as current law goes, and, as I said, it seems to me to be more than a little unnecessary.

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In addition to these two classes of bodies—that is, the local authority and the county council—other bodies which act under an enactment for public purposes and not for their own profit may be prescribed for exemption under this clause. We intend that these prescribed bodies shall be ones which exercise some local authority functions and are directly responsible to Ministers. Examples are the new towns development corporations and the Development Board for Rural Wales. If new development boards for inner cities were to be set up, they would seem to merit consideration for exemption. The Historic Buildings and Monuments Commission, set up under the National Heritage Act 1983, is a case in point.
When Cmnd. Paper 8179, to which I have already referred, was issued it contained a list of possible bodies which might be considered for exemption under the present clause. That list was highly conjectural, and the Government's intention now is that exemptions should be limited to bodies of the kind I have just mentioned. There is no question of absolving those bodies from the duty to ensure compliance with technical building regulations. I am grateful to my noble friend Lord Broxbourne, not for the first time this evening, for making that point. The case for exempting them from the procedures is the case for avoiding unnecessary bureaucracy.
The Earl of Selkirk: I thank my noble friend for what he has said. I do not wish to pursue this matter further.
Clause 44 agreed to.
Clause 45 [Power of certain public bodies to relax requirements of building regulations for their men works]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 111:
Page 46, line 6, leave out paragraph (c).
The noble Lord said: This relates to the extent to which certain public bodies are able to relax their own requirements on building regulations in respect of their own work. As I said in earlier debates, we are again just a little uneasy at the extent to which it appears—the Minister may be able to reassure me and others outside the Committee—that the Bill, if not too relaxed, certainly includes some such bodies under the paragraph which we are proposing should be deleted. This is new subsection (2B)(c), which states:
"any other body which is prescribed for the purposes of section 44 of the Housing and Building Control Act 1984".
The Minister needs to spell out to us which bodies will be covered by the words, "any other body". He may well say that they are the same bodies as those covered in Clause 44, which states:
"Building regulations may exempt—

(a) a local authority,

(b) a county council, and

(c) any other body which acts under any enactment for public purposes and not for its own profit".

Quite frankly, we want only the local authority to have the power to relax that requirement and no one else, particularly when we are moving to a situation
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where the local authority will not be retaining the tight hold that it has over its work. We are a little unhappy. The next series of amendments raises the same questions about giving others the ability to make changes in documents that are required. The Minister and his advisers should address themselves to the unease that will be felt in a wide number of forums about this matter. At this stage I content myself by moving the amendment in my name.
Lord Skelmersdale: I really am surprised by the speech that the noble Lord, Lord Graham of Edmonton. has just made. I have been at great pains to explain matters in response to Lord Selkirk's opposing the Question, That Clause 44 stand part of the Bill. That explanation contains the entire answer to the question which the noble Lord has just asked.
Lord Graham of Edmonton: The Minister has given an assurance on Clause 44, but we are moving to another clause. Clause 45, and a new amendment. The Minister forces me to weary the Committee by again reading out the provision in new subsection (2B):
"'public body' means …
(c) any other body".
In our view that provision should be deleted. The term "any other body" is far too wide.
Lord Skelmersdale: No. I am sorry, but I really must take issue with the noble Lord. He must read the entire paragraph:
"any other body which is prescribed for the purposes of section 44 of the Housing and Building Control Act 1984".
Lord Graham of Edmonton: That is right.
Lord Skelmersdale: When talking about Clause 44(1)(c) I described exactly what those other bodies are. I really cannot add to that. I can repeat it, of course.
Lord Graham of Edmonton: Would the noble Lord mind doing that, please?
Lord Skelmersdale: What I actually said was:
"We intend that these prescribed bodies will be ones which exercise some local authority functions and are directly responsible to Ministers. Examples are the new towns development corporations and the Development Board for Rural Wales. If new development boards for inner cities were to be set up, they would seem to merit consideration for exemption. The Historic Buildings and Monuments Commission, set up under the National Heritage Act 1983, is a case in point".
Lord Graham of Edmonton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 agreed to.
Clause 46 [Approval of documents for purposes of building regulations]:
9.33 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 112:
Page 46, line 26, leave out ("or a body designated by him")
The noble Lord said: This is the leading amendment to a series of others which relate to:
"Approved documents giving practical guidance".

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I think that it would be helpful to the Committee if I read out the first subsection in Clause 46:
"For the purpose of providing practical guidance with respect to the requirements of any provision of building regulations, the Secretary of State or a body designated by him for the purposes of this section may".
The words that I am asking the Committee to bear in mind are:
"or a body designated by him".
Then by the next amendment the provision would read:
"or a body designated by him for the purposes of the section may—(a) approve and issue any document (whether or not prepared by him or by the body cncerned)".
It will short-circuit the debate if I simply say that we are worried about the power which, as we see it, is pretty substantial—that is, the power to conceive and create and then to put into operation the approved documents which are very important, and the purpose of this is to control building regulations. We are intrigued to know from the Minister who the bodies are and why any other body other than the Secretary of State ought to have the power written on the face of a Bill to carry out the functions which Clause 46 lays out.
We do not see any necessity for other bodies and there could be confusion if there is a range of bodies. If they have any gumption at all they will have some form of independence. They are not simply going to be told, "You can issue guidance on approved documents but they all must he the same". Therefore there could be variation; and if there is variation, then there could be confusion. So that is the reason why we want the Minister to be a little more forthcoming, first as to why; and secondly as to whom. I beg to move.
Lord Skelsmersdale: My Lords, this clause is a key provision in our plan to produce a more efficient system of building control. It will enable the Secretary of State to give effect to his undertaking to produce a new set of building regulations which are radically simpler and clearer than the existing ones. At the moment the building regulations fill a moderate sized book of over 350 pages, and their language and arrangement is often complex in the extreme. They have been much criticised as obscure and overelaborate. Essentially, the simplification of the regulations hangs on the idea of separating mandatory requirements—what builders must do—from descriptive material—how they might do it. The question which the noble Lord asked was about who is going to, in a sense, approve the second half—the non-statutory half, if you like—of the building regulations.
Clause 46, as drafted, allows the Secretary of State both to approve documents himself or to designate other bodies to approve them. The only bodies contemplated for this important role are the British Standards Institution and the Agrément Board. The combined effects of Amendments Nos. 112 to 120 will be to remove his powers to designate these bodies, as the noble Lord has already said. The Secretary of State's responsibilities for public health and safety will not be diminished by designating these bodies, but the process of arriving at new, approved documents may be speeded up. Approval would not be a separate, subsequent process following on from drafting and
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consultation stages, and this could clearly save time. Flexibility would also be enhanced because of all the possibilities for consultation and for direct involvement by industry and the professions right up to the final stage. The noble Lord asked me who and why. I hope that I have given him the answers. If not, of course I should be delighted to respond to any further points the noble Lord has made.
Lord Graham of Edmonton: The answer is perfectly acceptable. What we feared—but it was obviously born out of if not ignorance, not being fully apprised—was that we did not wish to see other bodies that are involved in the whole process of designation and approval—for instance, of approved inspectors or the professional bodies, et cetera—causing the possibility of different interpretations, different standards and different advice and guidance coming from a range of bodies. But the two bodies which the Minister says are the only two bodies they have in mind at the moment that would be covered by this phrase, certainly appear to me to be eminently suitable and completely non-partisan and acknowledged as being independent. Their advice and references are very well received, not only in the industry but also by the consumer in general. In that case, I beg leave to withdraw the first amendment and I do not propose to move the other amendments in the series.
Amendment, by leave, withdrawn.
[Amendments Nos. 113 to 120 not moved.]
Clause 46 agreed to.
Clause 47 agreed to.
9.42 p.m.
Clause 48 [Certificates of compliance with building regulations]:
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 121:
Page 49, line 29, at end insert—
(" () There shall be paid on an application for any such approval as is referred to in subsection (3) above—

(a) where the application is made to the Secretary of State, such fee as may be prescribed by building regulations;

(b) where the application is made to a body designated by him as mentioned in that subsection, such fee as that body may determine.")

The noble Lord said: On behalf of my noble friend, I beg to move Amendment No. 121 and at the same time speak to Amendments Nos. 124, 125 and 126.
Amendment No. 124: Page 49, line 44, leave out paragraphs (a) and (b) and insert—
("(a) contain provision prescribing the period for which, subject to any provision made by virtue of paragraph (c) or (cc) below, any such approval as is referred to in subsection (3) above shall continue in force;")
Amendment No. 125: Page 50, line 5, leave out ("so referred to") and insert ("referred to in that subsection")
Amendment No. 126: Page 50, line 7, at end insert—
(" (cc) contain provision authorising the withdrawal of any such approval or designation as is so referred to:")
These amendments are virtually identical to the Government's amendments to Clause 34, which enabled designated bodies to set their own fees for approving inspectors, and to limit such approval to five-year periods. They apply in this case to the corresponding arrangements for the approval of

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persons to give certificates that plans show compliance with certain prescribed provisions of building regulations. I beg to move.
Lord Graham of Edmonton: Again, we may have got it wrong—we got it wrong the last time, when we were talking about prescribed fees—but are we looking at a situation where different bodies will prescribe different levels of fees for the same kind of service? Part of Amendment No. 121 states:
"where the application is made to a body designated by him as mentioned in that subsection, such fee as that body may determine".
I admit to uncertainty, and I shall try to assist the Minister for the next minute or two because I believe that he may be able to assist me. There is a reference to. "such body". Can we have some illustrations of the kind of bodies that would be involved? Where there is a reference to fees. does that mean that different bodies could prescribe different levels of fees for the same kind of service? If that is to be the situation, people will shop around for what appears to be the same service but which is cheaper or dearer depending on who is providing it. We should regard that as an unhappy feature of the Bill.
Lord Skelmersdale: I am advised that "fees" will be fees paid by the person seeking approval, not fees to be paid by builders for the building control service. So I think that I am giving, though in different words, exactly the same answer to the noble Lord as I gave when he asked the same question on Tuesday. I do not have with me the 1936 Act, nor its various appurtenances. Perhaps it is a subject that is some way back in history and I should be better advised to write to the noble Lord on the question of the persons who are covered by the 1936 Act.
Lord Simon of Glaisdale: When your Lordships went into Committee on this Bill earlier this evening the noble Lord, Lord Graham of Edmonton, expostulated that so important a Bill, on which there is so much to be discussed, should be brought on at such an hour. We are now 14 clauses further on, over 30 amendments later, and over an hour and a half later. I draw those matters to the attention of your Lordships' Committee in weighing up whether what has happened this evening may not be a breach of any decent parliamentary practice.
Lord Skelmersdale: I had not intended to answer the points made by the noble Lord, Lord Graham, and the noble and learned Lord, Lord Simon, at the beginning of this third day of the Committee stage at around eight o'clock, but I should point out that it was agreed perfectly amicably through the usual channels that this third day should in fact be a half day—
Lord Simon of Glaisdale: A half night!
Lord Skelmersdale: It was agreed that it should be not a full period of discussion. The fact that the business came on a little later than any of us might have desired was totally beyond anybody's control. I think that that is as far as I can go in answer to the noble and learned Lord, Lord Simon.
Lord Graham of Edmonton: We are dealing, of course, with building control. If we cannot exercise some control of our own affairs, what chance has the building industry? However, in respect of the point made, will the Minister take what I have to say in the right spirit? What the noble Lord says will be understood by those who are fully aware of all the facets and who are able to quote every section of the 1936 Act, but I wish to be satisfied of the postulation I made—that the possibility of some shopping around element does not exist. The Minister said that the person seeking approval would be the person paying the fee. Of course, the person seeking approval would pay the fee. I wanted to know to whom he would pay the fee, for what he would be paying, and whether there would be a range of options. Otherwise why leave the words.
"such fee as that body may determine"?
That must mean something. It must mean variation. I should like to know how the variation could arise and its importance. This can clearly best be done by studying the words of the Minister and by taking advice from those outside.
On Question, amendment agreed to.
Lord Auckland Lord Auckland moved Amendment No. 122:
Page 49, line 32, leave out ("adequate").
The noble Lord said: At this late hour I think that the Committee could reasonably take Amendments Nos. 122 and 123 together.
Amendment No. 123: Page 49. line 33, after ("cover") insert ("as agreed between the two parties concerned").
Both amendments relate to the same aspect of the Bill. As I mentioned on Second Reading, particularly when one is discussing the subject of insurance—I declare an interest as an insurance consultant although not concerned with this Bill—the word "adequate" can never really be satisfactory. In this matter, where one is dealing with the certifier and the authorities concerned, this is very much to the fore. Amendment No. 123 is really the gravamen here. If a defect becomes apparent later and the certifier is found by the courts to have been negligent in some respect and the sum exceeds the cover that the certifier is required to provide, there is the question as to whether the claimant will he allowed to pursue in the courts over the extra amount insured, assuming that the client involved is a Minister of the same government at the time, a Minister of a different government and party, or a commercially minded private client. All of us know that governments change, that officials change and that housing legislation changes.
At this late hour when our brains are getting tired, I do not wish to pursue this in detail, but I should like to thank both my noble friend Lord Bellwin and my noble friend Lord Skelmersdale for the help that they have given on these matters. I would hope that between now and the next stage of the Bill this particular aspect of the Bill can be clarified to ensure that the insurance is on a reasonable and logical scale. I beg to move.
Lord Broxbourne: May I very briefly indeed ask my noble friend the Minister—in addition to looking between now and the Report stage at the important

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points made by my noble friend Lord Auckland—to consider or to initiate a consideration within the corridors of power in the Government as to the position of the law of limitation in regard to actions brought in respect of buildings? It is this, as especially exemplified by the leading case Anns v. Merton in the 1970s, to some extent followed and clarified in the Pirelli case more recently, which makes the question of liability so very difficult. It makes the question for people seeking to establish a claim very difficult, and therefore inevitably makes the postion of insurers very difficult. This is a fundamental point in this context and it would certainly be rewarding for Ministers to consider it, though I am not so foolishly optimistic as to expect them to come up with a definitive and perfect solution between now and Report stage.
Lord Graham of Edmonton: May I rise briefly to say that we on these Benches support what is being requested. This is a probing amendment. There are a range of bodies outside this House who are anxious to test what they understand from their own experience will be the effect of insurance matters and they are asking legitimate questions. The Minister can fairly tell us consultations are going on, papers are being issued, comments are being received and they are being refined. This is against the background of the uncertainty as to whether this particular route will ever be followed because of the inability of the insurance companies to be satisfied that a market can be created in this specific field of insurance. We shall certainly be interested in the response of the Minister and be guided by the noble Lord, Lord Auckland, as to his intentions in respect of the amendment at the appropriate time.
Lord Skelmersdale: We have already had quite an innings on this subject of insurance when discussing Opposition amendments on Clause 32 on Tuesday (Amendments 74 to 77 inclusive, which are reported in columns 239 to 248 of the Official Report). May I suggest that noble Lords who have shown great interest in this very important subject read what I am about to say now with that, because I hope that between the two some light will be thrown on the situation.
The purpose of giving the Secretary of State the power to approve insurance schemes under Clause 48 of the Bill as under Part 2 of the Bill is to enable him to ensure that such schemes provide adequate protection for any people who suffer damage as a result of negligence of an approved person. The reason for requiring evidence that an approved insurance scheme applies to the work is to make sure that the building owner or any injured third party can be sure of redress at least up to a known limit in the event of the approved person being found negligent.
The noble Lord, Lord Graham, has been poking fun at me constantly this evening about this consultation process, which I really do not think is legitimate criticism. He has already admitted that in this process we have moved a long way towards satisfying various concerns that have been put to us during the course of consultation. We will continue to do so. As I have said at earlier stages of the Bill, we regard this Committee stage—and indeed any subsequent discussions we have on the regulations as they pertain to various clauses in
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the Bill—to be part of the consultation process. I hope the noble Lord will consider taking note of what I have just said.
As to what that limit should be, the draft guidelines on which we are currently consulting set out suggested limits in some detail, thereby putting flesh on the single word "adequate" which appears on the face of the Bill. My right honourable friend the Secretary of State has not yet decided exactly what those minimum requirements should be, but he is in no doubt that there should he a minimum and I am sure the Committee will share his view.
The effect of Amendments Nos. 122 and 123 would enable the Secretary of State to approve an insurance scheme in which the amount of cover would simply be a matter of agreement between the developer and his insurer. I do not think that that could give sufficient protection (it might in certain circumstances, but equally it might not) to the final owner or tenant of the building.
The intention of the draft guidelines is to set general standards which the Secretary of State will expect to find in insurance schemes submitted to him for approval. We are awaiting the response of the insurance industry and of the building owners to these draft guidelines. I can assure my noble friend that we shall consider very carefully the points that he has made tonight in the light of the comments we receive from the industry itself. I should like to add that the insurance requirements under the Bill in no way limit the court's power to award damages for negligence. The purpose of insurance schemes which will be approved is to ensure that the resources to meet claims up to specified limits will be available. I hope that that clears up by noble friend's point.
Lord Auckland: I quite agree with my noble friend that at this late hour we should study what has been said. He is quite right that much of this has been answered during our discussions on Clause 32. I should like to thank the noble Lord, Lord Graham of Edmonton, and my noble friend Lord Broxbourne, with his legal expertise, for their assistance in this short discussion. Naturally. I and the Committee will study between now and Report stage what has been said, what the insurance industry feels and, above all, what the building industry feels, which is very important, However, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 123 not moved.]
9.50 p.m.
Lord Skelmersdale Lord Skelmersdale moved Amendments Nos. 124, 125 and 126:
[Printed earlier: col. 458.]
The noble Lord said: I beg to move Amendments Nos. 124, 125 and 126 en bloc. I spoke to them with Amendment No. 121.
On Question, amendments agreed to.
Clause 48, as amended, agreed to.
Clause 49 agreed to.
Schedule 8 agreed to.
Clause 50 [Amendments of enactments relating to building regulations]:
Baroness Nicol Baroness Nicol moved Amendment No. 127:
Page 51, line 2. at end insert—
(" () Where the Secretary of State proposes in building regulations to prescribe criteria and requirements for the purposes of Parts II and III of this Bill it shall be his duty before he makes them to consult such organisations as appear to him to be representatives of interests substantially affected by the proposal and such other persons as he considers appropriate.").
The noble Baroness said: I beg to move Amendment No. 127, and I shall do so as briefly as possible. Clause 50(1) limits the circumstances in which it will be necessary for the Secretary of State to consult interested bodies before amending regulations. In Section 9(3) of the 1961 Act, which requires consultations with such bodies as appear to the Minister to be representative of the interests concerned, the word "concerned" is of significance. Where interests do not appear to the Minister to be concerned with the subject-matter of the proposed regulations, whether trivial or substantive, there is no obligation to consult their representatives. If, on the other hand, they do appear to be concerned, there seems no justification for removing the existing right to be consulted before the regulations are made.
I fancy that the answer to this amendment will tie up with an answer which was given to an earlier amendment. I therefore propose not to follow this particular amendment too far this evening, but to study the Ministers' reply. However, I should like his confirmation that in fact the answer is the same.
Lord Broxbourne: At this late hour I propose to be very brief—and may I say parenthetically how very agreeable it is to somebody who, like me, has come here so recently from another place, where the words "late hour" bear a very different connotation, to be able to use those words at this time and in this context?
I think that this amendment is based on a misconception. It is based on a failure to take account of what in the discussion on the Question, Whether Clause 44 shall stand part of Bill? I described as the dichotomy in relation to the requirements of consultation under the building regulations. With respect to the noble Baroness, Lady Nicol, the proposed amendment overlooks the distinction in law between substantive requirements and procedural requirements, which, as I mentioned then, are defined in Clause 76(3) of the Health and Safety at Work Act 1974.
Quite properly in my view, the substantive requirements want far more extensive consultation than the procedural ones from which they are distinguished and with which they are contrasted. I understand—and the Minister will correct me if I am wrong—that in addition to the Building Regulations Advisory Committee, the substantive requirements have an obligation to consult with between 100 and 200 bodies, one of which I am informed (and I hope credibly informed) is the British Bingo Association, though I am not quite clear what its particular interest or expertise in this matter would be.
On the other hand, for procedural requirements Ministers have to circulate proposals only to a much smaller body of specifically interested organisations. In
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default of the provisions of Clause 50 of this Bill, regulations such as the approved inspectors regulations, would be subject to the necessity of this much wider range of consultation, including the British Bingo Association. The intention and effect of the amendment would seem to be to impose this additional obligation. That would necessarily add to expense and administrative work; and would, in my submission, be unnecessary. Therefore, I hope that this matter may not be proceeded with.
Lord Skelmersdale: Let me make it clear at the beginning that I am not speaking for the Home Office. The building regulations have until now been almost entirely substantive. They impose technical requirements and they define what work is exempt or partly exempt. In other words, they bear directly on what is built, extended or altered.
As I told the Committee just now, many of the new regulations made under the Bill will however be procedural. They will include the regulations under which approved inspectors will operate. We have already completed one round of informal consultation on a first draft of these regulations, on a limited scale, but covering many of the bodies which seemed likely to have comments, and we are grateful for their comments. We are currently consulting on a second draft, again informally. but on a wide scale covering all the bodies, which number over 300, on the list of those we consult on the building regulations.
This list is an open list, and any representative body which can claim a legitimate interest can ask to be put on it, even though its interest may in practice be very narrow and limited. My noble friend Lord Broxbourne referred to the British Bingo Association. He is quite right, but also on the list are the Cake and Biscuit Alliance, the Vitreous Enamel Development Association and the White Fish Authority. We do not feel that a statutory requirement to consult and to go on consulting on this scale about every detail of procedures is justified. It would be a pointless waste of time, paper and effort on the part of the department and many of the persons consulted. For this reason we have included in the Bill the provision in Clause 50(1) which confines the statutory requirement to consult to those regulations which are substantive. I hope that this gives the explanation that was desired by the noble Baroness.
Baroness Nicol: I am grateful for the explanation, and fascinated by the idea of having to consult the British Bingo Association. I shall carefully study what the Minister has said. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 50 agreed to.
10.5 p.m.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 128:
After clause 50, insert the following new clause:—
("Amendments of enactments relating to sanitation and buildings.
.—(1) Part XII of the 1936 Act (enforcement and other general provisions) shall have effect as if so much of Part II of the 1961 Act (sanitation and buildings) as does not relate to building regulations were contained in Part II of the 1936 Act.
(2) In the following provisions, namely—

(a) so much of Part II of the 1936 Act (sanitation and building) as does not relate to building regulations;

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(b) sections 137 and 138 of that Act (certain buildings to be supplied with water); and

(c) so much of Part II of the 1961 Act as does not relate to building regulations,

expressions which are defined by subsection (1) of section 82 of the 1974 Act shall have the meanings given by that subsection.").
The noble Lord said: I should like to speak also to Amendment No. 145.
Amendment No. 145: In the Title, line 6, after ("regulations") insert (", sanitation and buildings").
Amendment No. 128 is a draft new clause necessary for a proposed consolidation Bill. The law relating to buildings and building regulations is at present spread inconveniently over a number of statutes, some of them referred to as the enactments "relating to building regulations", a title conferred on them by Section 76 of the Health and Safety at Work etc. Act 1974. The Law Commission is consolidating the enactments relating to building regulations and other provisions about building in a Bill to be introduced later this Session and entitled the Building Bill.
Because of the somewhat disorderly way in which the various provisions have been enacted over the years, marginally different procedural provisions and definitions apply to the enactments relating to building regulations and to the rest. The main differences are in the definition of the words "contravention" and "modification", and in the procedures which apply to such mundane activities as the serving of notices and the requiring of information. We will go on to this in more detail when considering the amendment that the noble and learned Lord, Lord Simon of Glaisdale, will move. I hope I have said enough at the moment to explain the need for these two amendments. I beg to move.
On Question, amendment agreed to.
Schedule 9 agreed to.
Clause 51 to 55 agreed to.
Clause 56 [Short title, commencement and extent]:
[Amendment No. 129 had been withdrawn from the Marshalled List.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 129A.
Page 52, line 30, leave out from ("force") to end of line 31, and insert ("on such day after its consolidation with the 1980 Act as the Secretary of State may by order made by statutory instrument appoint.").
The noble and learned Lord said: This amendment is designed to ensure that this Bill does not go out without Part I being consolidated with the 1980 Act to which it refers and by which it proceeds as legislation by reference. At this hour I would not be justified in detaining the Committee long over this. It is sufficient if I remind your Lordships that at the very outset of your Lordships' consideration in Committee, the noble Earl, Lord Selkirk, and the noble Lord, Lord Molson, protested at the baffling nature of this Bill, referring particularly to Part I.
That has been echoed by a number of your Lordships in discussing this Bill. Those two noble Lords are lawyers—indeed, the noble Earl is a Queen's Counsel. Both those noble Lords have had high
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ministerial responsibility; the noble Lord, Lord Molson, in the very field of this law. All your Lordships present have had great experience of legislation—in its initiation, preparation and administration; but if noble Lords find this Bill so baffling I ask the Committee to consider the persons who are affected by Part I.
Let us take someone who is affected by Clause 4; someone who has exercised his right to buy. He now wants to sell, probably to move to somewhere else, and naturally he wants to know what discount, if any, he has to repay. On that will depend what type of house he can purchase. He may be someone who left school at 14 and has spent all his life in manual labour. What is he told? He is told that it all depends on whether his sale of the house is "a relevant disposal". Having determined that, he is told it is a question of whether it is a relevant disposal under a new clause imported by this Bill into an earlier Act by a subsection (3) or a similar subsection (3)(A), also imported by this Bill, which will then be an Act, into another Act. If he is living in an old people's sheltered accommodation he has a further exercise to perform: he has to have to look at Clause 7 of this Bill because that refers back to Clause 4.
Nothing as the Bill is drafted and at the stage at which it has reached can make it entirely simple, or even intelligible, to the sort of person whom I have described and who is, after all, the consumer for the purposes of this legislation. But what your Lordships can do is to insist that this Bill does not go out so that the consumer has to read two documents. one from another, but that it is consolidated into one document.
It can be done in this Session. There is no need to wait, just in case the Minister is anxious to have the Bill. The Consolidation Committee can consolidate a Bill when it is actually passing through Parliament. It did that in 1975 with the massive social security legislation consolidation, in which was consolidated the Social Security (Miscellaneous Provisions) Bill while it was passing through Parliament. It is perfectly within the compass of a competent draftsman, as the draftsman of this Bill seems to be. After all, the Bill will have to be explained by the Citizens' Advice Bureaux, if by nobody with professional qualifications, and they will have to do a job with scissors and paste with this Bill, which will then he an Act, and the Act which is amended by it, the 1980 Act. If all over the country the Citizens' Advice Bureaux would have to perform the scissors and paste operation, surely it is more reasonable that the draftsman who has used this Bill to amend the earlier legislation should do the job himself and for them.
It is not as if the job is altogether a novel one. We heard from the noble Lord the Minister that the task of consolidation on a far wider field has already been started. We heard that also on Second Reading from the noble Lord, Lord Bellwin. And this is a comparatively simple piece of legislation to consolidate. because the draftsman has, I think, largely, if not entirely, followed the instructions of the Renton Committee and amended the earlier Act textually, so that it is really only a matter of scissors and paste.
Last Session the same Ministry prepared the National Heritage Bill, which was the subject of execration throughout your Lordships' House. The

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drafting was so extraordinary that the noble Lord, Lord Kennet, actually moved an amendment to omit a vital schedule. on the ground that it was virtually incomprehensible. We were asked to a meeting with the Ministers, and I was certainly left with the impression that the National Heritage Bill probably would not be amended during the last Session, because that would hurry the draftsmen too much, but that it would certainly be consolidated this Session. However, it is not in the programme of the Consolidation Committee at all. They have already consolidated legislation about dentists and about registered homes in Scotland, neither of them subjects to be dismissed summarily, but surdy less important than legislation the consolidation of which had been promised by the Ministry responsible for this Bill, or this Bill itself, where the probability of the requirement of consolidation must have been perfectly obvious to anybody considering Part I.
In my experience, this is the most disgraceful Bill by way of legislation by reference that I have ever seen, and to let it go out unconsolidated in this form would be, in my respectful submission to your Lordships, a legislative enormity. I beg to move.
Lord Molson: There is no need for me to speak at any length after the speech that we have heard from the noble and learned Lord. Not only was he for a long time a Lord of Appeal but during that period he presided over the Consolidation Committee. He therefore has expert knowledge not only from the point of view of draftsmanship but also in regard to the problem of getting these matters through the elaborate machinery of consolidation. I think he has made out an unanswerable case for something to be done in order to consolidate this legislation before it goes out to be interpreted and put into operation.
I am only sorry that my noble friend Lord Renton is not able to be here at this late hour of the night. It will be in the memory of your Lordships that some four or five years ago he presided over a committee which went into the whole question of draftsmanship and emphasised how urgently important it was, in order that law should be "understanded of the people", for draftsmanship to be greatly simplified and rationalised. I am very sorry to have to say that since then extremely little has been done to carry out the recommendations of the Renton Committee, despite the fact that I think in almost every respect the Government of the day accepted those recommendations in principle.
I wish to put the proposal forward to the Government in the simplest way possible. There is an urgent need for there to be consolidation of all the housing legislation on the statute book, but I recognise that that is a very large task and would take a very long time. Therefore, in line with the argument of the noble and learned Lord, I think it is desirable to take two bites at this cherry.
Part I of this Bill is primarily legislation in order to amend the Act of 1980 and I suggest that, as the noble and learned Lord has said, there should be no difficulty in consolidating the Act of 1980 and that of 1984. In fact, the noble and learned Lord speaks about scissors and paper and that is very largely what it would be.
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The same draftsmen and civil servants who have been concerned with drafting this legislation to amend the Act of 1980 will have all the facts and relevant references in their minds, if not still on their desks, when they could begin the task of consolidation. That this is not far from the Government's thought is obvious from the assurance which I received from my noble friend the Minister on the first day of these proceedings when he said that the task of consolidation had already begun.
As I have said, Part I deals almost primarily—I will not say exclusively—with the amendment of the Act of 1980. When we come to Parts II and III we encounter matters which are entirely different. Quite clearly, this ought not to have been a single Bill. There ought to have been one Bill containing Part I, another Bill containing Part II, and another Bill containing Part III. I do not in any way blame the Government for having proceeded in this way, because I fully recognise that they felt there was great urgency about this matter and there is a shortage of parliamentary time. But having economised time by incorporating these three different parts in one single Bill, I suggest that it should now be relatively simple for them to begin to take these three pieces apart and to make them into separate Acts to go onto the statute book.
At this late hour, I do not wish to go into details. Indeed, the noble and learned Lord has already, with great erudition, emphasised the point. I would only say that Clause 52 refers to two Public Health Acts of 1936 and 1961 and the Health and Safety at Work etc. Act 1974; Clause 54 provides for amendments to Schedule 10; and Clause 55 repeals enactments in the third column of Schedule 11. All this demonstrates how extremely difficult it would be for even highly ingenious lawyers to understand exactly what the change in the whole corpus of the law is, which is affected by this, Bill. I hope, having been assured that the task of consolidation is already in hand, that the Government will give a sympathetic reply to the amendment moved by my noble and learned friend.
So far as I am concerned. I will summarise by suggesting that, first, there should be without any delay consolidation of the Act of 1980 with this amended Act of 1984—almost the whole of which is contained in Part I of this Bill. Then, there should be separate consolidation as soon as possible of Parts II and III. Next, the major task should be undertaken—and I want to be perfectly reasonable because I realise that a lot of other legislation is being dealt with by the Law Commission and by the Joint Consolidation Committee—of complete consolidation of all the housing Acts. Finally, it is extremely desirable, although perhaps less urgent in view of much of what the noble Lord has said this afternoon, that there should be consolidation of all the Acts dealing with building control. In that way, we will have on the statute book relevant statutes dealing with these different and complicated matters, all of which are most confusingly dealt with in the present Bill.
10.27 p.m.
Lord Skelmersdale: I recognise the noble and learned Lord's concern about the need for consolidation of housing legislation. My noble friend Lord Molson called this an "unanswerable case" for consolidation: we shall see. It is an issue to which the

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noble and learned Lord referred when we considered the first part of this Bill in Committee last week. He was particularly concerned in the context of Clause 4, which he used as an example this evening. I might reconfirm that the points he raised on Clause 4 are points on which my noble friend Lord Bellwin has offered to write to him. I assure the noble and learned Lord that my noble friend will do just that.
The Government need no persuasion as to the merits of consolidation of housing legislation. As I said in my last speech to the Committee, the Government are seeking to achieve early consolidation of the statutes, but nobody is better placed than the noble and learned Lord to realise that this is a task that cannot be rushed. Hasty and ill-conceived consolidation will only add to the difficulties he outlined. The noble and learned Lord and my noble friend Lord Molson made a case for consolidating the 1980 Act with this Bill and for doing so now as the Bill proceeds. Many of the Bill's provisions do amend textually the 1980 Act, since much of what the Bill does is in effect to improve and add to the existing right to buy in the tenants' charter. There are, on the other hand, completely fresh provisions in the Bill which could not possibly be incorporated in an amended version of the 1980 Act.
For instance, there is the shared ownership scheme introduced by Clauses 12 to 17—also in Part I of the Bill. The present Bill is consistent with normal parliamentary practice and procedure. I am advised also that it is consistent with paragraph 13, subparagraph 16, of the report of my noble friend Lord Renton on the preparation of legislation—and he, of course, put his name to this amendment.
I would not presume to argue with the noble and learned Lord on a subject on which he is such an expert. I accept the point he makes that it becomes increasingly more difficult for practitioners and others affected by legislation if successive legislative measures proceed by textual amendment of a previous measure. To deal with this problem, the 1980 Act as amended by Part I of this Bill will be reproduced by the publication Statutes in Force in a way that can be readily understood by practitioners. Statutes in Force may be cited in court as further proof of their authenticity.
We have asked whether publication of a complete text can be expedited, and have been told by the Statutory Publications Office that it hopes to publish a new cumulative supplement incorporating the amendments to be effected by this Bill within four months of receiving a Queen's Printer's copy of the Act. We also intend to publish a series of explanatory booklets on the subject of the right to buy, which will be widely distributed.
To come back to the question of consolidation of the 1980 Act and this Bill, I can assure the noble and learned Lord, Lord Simon of Glaisdale, that time taken on any ad hoc consolidation will be time lost on the main consolidation since, taking the whole of housing legislation, the text of the main consolidation will not have the same character as the text of any earlier part of the legislation, largely because the consolidator is seeking to achieve maximum consistency in the final consolidation measure or measures.
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I hope I have said enough to explain to the noble and learned Lord that we are very much on his side but we cannot quite go all the way that he so obviously desires in this amendment.
Lord Simon of Glaisdale: I am very grateful for the support of the noble Lord, Lord Molson. May I deal with a point he made on Parts I, II and III? In the normal process of consolidation the draftsman will only consolidate with the 1980 Act so much of this Bill, when it is an Act, as is relevant to the 1980 Act. We had that experience, I believe, two Sessions ago—it may have been last Session—in relation to matrimonial homes. An Act had to be consolidated which dealt partly with matrimonial homes and partly with matrimonial property. The draftsman quite properly consolidated only that part which was relevant; namely, that relating to matrimonial homes. So there is no difficulty in hiving off Part I.
The noble Lord the Minister said that it will be time lost. It may be time postponed, but the measure of consolidation which I am now seeking is urgent consolidation. The rest is important, but it is not urgent in the sense that quite humble people and the people who man the Citizens Advice Bureaux have got to understand what this legislation does. The noble Lord said that there will be publication in four months' time by the Statutory Publications Office. If so, the draftsman can do it in four months. It is exactly the same problem that faces him as faces the publisher of the Statutes in Force.
The noble Lord the Minister said that practitioners will be able to manage. I do not doubt that with great difficulty they will be able to manage, moving from one Act to the other, backwards and forwards. It is not the practitioners with whom I am concerned; it is the humble users of this legislation. The Minister said he hoped I would he satisfied with his explanation, but in fact he came nowhere near meeting any point I made. It is obviously unreal to talk of pressing this to a Division at this hour, but in view of the extremely unsatisfactory explanation I shall return to the matter at a later stage. In the meantime, if the noble Lord, Lord Molson, will agree—the noble Lord, Lord Renton, has already agreed—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 agreed to.
Schedule 10 [Minor and consequential amendments]:
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 130:
[Printed earlier: col. 1240.]
The noble Lord said: My noble friend spoke to this with Amendment No. 18. I beg to move.
On Question, amendment agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 131:
[Printed earlier: col. 1267.]
The noble Lord said: Again my noble friend spoke to this with Amendment No. 42. 1 beg to move.
On Question, amendment agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendments Nos. 132 and 133:
[Printed earlier: col. 1237.]
The noble Lord said: I beg to move Amendments Nos. 132 and 133 en bloc. My noble friend spoke to them with Amendment No. 17.
On Question. amendments agreed to.
[Amendment No. 134 not moved.]
Lord Skelmersdle Lord Skelmersdle moved Amendment No. 135:
[Printed earlier: col. 1237.]
The noble Lord said: My noble friend spoke to this with Amendment No. 18. I beg to move.
On Question, amendment agreed to.
10.41 p.m.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 136:
Page 86, line 48, leave out from ("such") to ("7(5)") in line 1 of page 87 and insert ("rights as are mentioned in paragraphs 3(1) and (5) and").
The noble Lord said: I wish to speak also to Amendment No. 140.
Amendment No. 140: Page 88, line 34, at end insert ("and to such rights as are mentioned in paragraphs 3(5) and 7(5) of Schedule 3 to this Act").
These are technical amendments to ensure consistency of treatment between the shared ownership scheme and the exercise of the right to buy in cases of outright purchase. The effect of the amendments would be to ensure that Part IV of Schedule 2 of the 1980 Act, which deals inter alia with charges on the freehold, applies where the freehold is called for under a shared ownership lease. I beg to move.
On Question, amendment agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment Nos. 137, 138 and 139:
[Printed earlier: col 1268.]
The noble Lord said: I beg to move Amendments Nos. 137, 138 and 139 en bloc. My noble friend spoke to them with Amendment No. 42.
On Question, amendments agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 140:
[Printed above.]
The noble Lord said: I spoke to this with Amendment No. 136. I beg to move.
On Question, amendment agreed to.
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 141:
[Printed earlier: col. 1183.]
The noble Lord said: My noble friend spoke to this with Amendment No. 5. I beg to move.
On Question, amendment agreed to.
Schedule 10, as amended, agreed to.
Schedule 11 [Repeals]:
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 142:
Page 90, line 35, column 3, leave out ("Section 2(5)") and insert—

Page 90,("In section 2, in subsection (4) the words "Subject to subsection (5) below" and subsection (5).").

The noble Lord said: Section 2(5) of the 1980 Act provides that the Secretary of State may by order enable the right to buy to be exercised in relation to dwellings held other than under Part V of the 1957 Act —the powers to provide housing to meet general housing needs. The Secretary of State made an order in May 1983 extending the right to buy to most non-Part V dwellings held by the right-to-buy landlords. Schedule 11 of the Bill provides for the repeal of Section 2(5). There is a cross-reference to Section 2(5) and Section 2(4) of the 1980 Act which needs to be repealed, together with Section 2(5). This minor consequential repeal was overlooked in the original drafting of Schedule 11. We are correcting that now. I beg to move.
On Question, amendment agreed to.
[Amendment No. 143 not moved.]
Lord Skelmersdale Lord Skelmersdale moved Amendment No. 144:
[Printed earlier: col. 1200.]
The noble Lord said: My noble friend spoke to this with amendment No. 11. I beg to move.
On Question, amendment agreed to.
Schedule 11, as amended, agreed to.
In the Title:
Lord Skelmersdale Lord Skelmersdale moved Amentment No. 145:
[Printed earlier: col. 465.]
The noble Lord said: I spoke to Amendment No. 145 with Amendment No. 128, but before we leave this Committee stage may I take the opportunity to thank all those noble Lords who have spoken during this stage of the Bill. We have had a number of very constructive debates, and the Government will look very carefully at all the suggestions that have been made before we come to the next stage of the Bill. I am sure that at that stage your Lordships will show an equal diligence in examining the provisions of what the Government consider to be a very worthwhile Bill. I beg to move.
Lord Graham of Edmonton: May I take this opportunity to express the appreciation of my colleagues on this side of the Chamber for the many instances where it was quite clear that the Minister and his advisers anticipated the range of matters over which we were going to work in order to try to elicit information. Certainly we can see some great merit in reading the reports of the Committee stage in preparation for the Report stage. It is one of those exercises where one learns something new all the time.
The Committee is of course aware that this is not merely the second time round for this matter, but that it has been about for a very long time. References were made to over five years of consultation, and clearly, as the Minister has said, the Government are prepared to take even longer than that in order to get it right. As far as we are concerned, we have not yet finished our attempt to improve the Bill.
Certainly the noble and learned Lord, Lord Simon, raised a very serious point at the end of these particular proceedings. to which we on this side of the Committee will certainly give a great deal of attention and as to which we shall consult with him to see

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whether it is possible to be helpful, not merely to the Bill and to the Minister but—more importantly—to millions of people outside. The noble and learned Lord, Lord Simon, and the Minister pointed out that there are professionals who are involved in these matters. They are able to deal with these issues not only from their own experience but also from their access to information and research. They can look after themselves. What the noble and learned Lord, Lord Simon, pointed out, quite properly of course, is that there are very many ordinary people who will be vitally affected by the provisions of this Bill. What in actual fact he drew to our attention, is the need for this Chamber to be ever vigilant, not merely in order to produce a satisfactory piece of legislation, but to try to look behind the legislation at the people who are going to be affected by it.
As a Member of Parliament in another manifestation, I always had great difficulty in explaining the legislation in which I had taken part; so goodness knows what ordinary people, who may be referred to documents and leaflets which were designed to be helpful, made out of going to a library and asking to look at what they were told to look at, which was the Act, and trying to make reference to it. I can recall more than once, in preparing for this Bill, I was referred to a section not merely of the 1980 Act, which was the point that was made, but also to the 1961 and 1936 Acts, and so on.
So as far as we are concerned, on this side of the Committee, this has been a very useful stage of the Bill. We are far from satisfied that when we leave this particular stage the Bill is in as good a shape as it ought to be. I cannot honestly say that the Minister has willingly conceded anything remotely in the form of a concession. What has been wrung from the Government has actually had to be forced from them by virtue of a vote. The Minister has very often satisfied us by way of explanation, where very often we on this side have failed to fully appreciate the significance of the words on the face of the Bill. Quite frankly, very often people outside this Chamber who have advised us have not fully understood what was in the mind of the Minister and his advisers. As far as we are concerned, this has been a very useful stage and one from which we will profit. I think the Minister has had full warning from Members on this side that we intend to come back at Report— and not merely with amendments that we feel necessary. The value of a Report stage of course is to provide the last legitimate opportunity for people outside to recognise that they have another opportunity to improve the Bill.
The Bill has had a good run in another place, and, to be fair to the Minister, we have had a very good run so far as we are concerned. We have taken advantage of the opportunities, and this might be a suitable moment, before I sit down, for me to say that we are very grateful to the Minister for the care and attention which he has given. We intend to come back and try to improve the Bill in any way that we can.
I do not think that the Minister can take lightly the fact that tonight there has been very little evidence of Back-Bench interest, simply because of the unfortunate circumstances. I certainly do not blame the Government Chief Whip; I certainly do not blame
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anyone. The Minister was fair in his statement that a timescale had been allowed for this part of the proceedings on the Bill, but, unfortunately, due to preceding business, we were prevented from starting at a more reasonable hour. However, I think that we have managed to satisfy ourselves tonight; we are going to conclude at a reasonable time.
Lord Denham: Just before we move on—we have now reached the magic hour of 10.45—in view of the generous words of the noble Lord, Lord Graham, I should like to thank your Lordships for your kindness in dealing with this matter so expeditiously after it came on at such a late hour.
On Question, amendment agreed to.
Title, as amended. agreed to.
House resumed: Bill reported with amendments.
House adjourned at thirteen minutes before eleven o'clock.