Lords Sitting of 19 March 1984

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

PRO Documents: The Falkland Islands
Lord Airedale: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the earliest date on which any document pertaining to sovereignty over the Falkland Islands and in possession of the Foreign and Commonwealth Office on 27th February 1984 was temporarily returned to them from the Public Record Office under Section 4(6) of the Public Records Act 1958.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): My Lords, details of movement of records are kept in a form which does not directly relate their identification numbers to subject matter, and to do this it is necessary to refer to numerous indexes and registers, some of which are held by the Public Record Office. Because the Foreign and Commonwealth Office has no operational need for the information which the noble Lord requires, I could not justify the administrative effort that would be involved. There may at any one time be 1,000 records temporarily in the possession of the Foreign and Commonwealth Office, but such records are returned to the Public Record Office when they are no longer required.
Lord Airedale: My Lords, I had hoped that the Answer to this question could only be a date in the calendar. Can the Government not even guess approximately the date involved, because until the date is forthcoming I do not think that I can proceed to a supplementary question?
Lord Trefgarne: My Lords, I am afraid not without disproportionate effort.
Lord Cledwyn of Penrhos: My Lords, is the noble Lord aware that his answer was precise but that it confused me even more than the previous Answer? Of the batch of papers originally taken, some have been returned to the Public Record Office and some have been retained. Can he say generally which were returned and what is the nature of those that have been retained? Secondly, the noble Baroness, Lady Young, on 28th February, said that the papers that were still being held by the Foreign Office would be sent back in accordance with the normal procedure. Will the noble Lord indicate to the House what is the normal procedure in circumstances of this kind? Can he say when the remainder of the papers will be returned?
Lord Trefgarne: My Lords, the normal procedure is that the documents should be returned when the work on them has been completed and they are no longer
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required. The noble Lord should be aware that there is a constant flow of documents in both directions, from the PRO to the Foreign Office and back. It is therefore not possible to refer to them as a batch as the noble Lord did in the opening part of his supplementary question.
Lord Wigoder: My Lords, can the noble Lord suggest any question on this topic that permits of a straightforward answer?
Lord Trefgarne: My Lords, all the answers that we give to these questions are as straightforward as we can make them.
Lord Mishcon: My Lords, will the Minister, reflecting upon the answers that were given last time to the questions that were raised, appreciate that there is anxiety in the House and generally that we are not hiding documents because we are ashamed of their contents or because we think that their contents might give arguments to those who are opposed to us on the title to the land in question? Will the Minister therefore be more frank with the House and say whether there is any justification for that thought? If there is not justification for it, could not the documents be returned rather expeditiously to remove the rumour?
Lord Trefgarne: My Lords, I can assure the noble Lord that the documents will be returned as soon as work on them has been completed. Indeed, a good number have been returned already. As for the suggestion that the Government have withdrawn these documents because they are in some way embarrassing or inconvenient, I can assure the noble Lord that that is not the case and would not be possible under the Act in question.
Lord Molloy: My Lords, can the noble Lord help us? If some documents have been returned and are finished with, and others are not yet ready to be returned, can he define which have been returned or those which have not been returned?
Lord Trefgarne: My Lords, lam afraid that I cannot do that. As I said to the noble Lord, Lord Cledwyn of Penrhos, this is a continuing process. Documents are continually coming from the PRO and hack again.
Lord Teviot: My Lords, will my noble friend please tell me how many people have been requesting these documents and how many have been refused them? That is the pertinent question. Is he aware that there are many other classes of records, and that documents have to go back to departments where they can be consulted? We are dealing with a narrow area. In respect to the original Question, can my noble friend say how many people have requested the documents, and how many have been refused them?
Lord Trefgarne: My Lords, I am not aware that anybody has requested to see these documents, but I must confess that the Public Record Office has been closed for a short period recently because of problems with the air conditioning system.
Lord Elwyn-Jones: My Lords, is it right that these documents are not classified documents? What is the nature of the work that is being done upon them? Cannot the Minister lift that veil for us so that we may know the nature of the work which covers, I agree, a multitude of potential activities?
Lord Trefgarne: My Lords, the documents are being studied by officials in the Foreign and Commonwealth Office in order that we may have our minds refreshed as to what they contain.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that the Government are giving the impression of being both defensive and evasive, and of not having a copying machine? In those circumstances will they not change their attitude, because is it not the case that it can be read in the Commons Hansard of some time ago that Mr. Nicholas Ridley was negotiating the sovereignty of the Falklands, and therefore there is really nothing much to hide here?
Lord Trefgarne: My Lords, I agree that there is nothing to hide. The problem about photocopying is that the Foreign Office has something like 5,000 files a year from the Public Record Office, and other Government departments have further quantities of documents, and so the copying task would be enormous.
The Earl of Lauderdale: My Lords, will my noble friend confirm that Mr. Ridley was not—and I repeat, "not"—negotiating sovereignty, as was suggested from the other side just now?
Lord Trefgarne: My Lords, with respect, that question goes rather wide of what is on the Order Paper, but of course the Government's position with regard to sovereignty is well known.
Lord Jenkins of Putney: My Lords, will the noble Lord agree that the matter can easily be settled by reference to the Commons Hansard?

Iran: Rolls-Royce Engine Sales
2.45 p.m.
Lord Gladwyn: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the Rolls-Royce engines recently sold to the Iranian Government are capable of insertion in any aircraft or vehicle, whether military or not, that might be of use to the Ayatollah Khomeini in the prosecution of his war against Iraq.
Lord Lyell: My Lords, apart from static engines for power generation and pumping, the only engines which Rolls-Royce Limited have sold to Iran during the past two years have been two spare Dart Turboprops for Iranian Navy Fokker F27 communications aircraft and one spare civil Spey engine for a Fokker F28 airliner of Iran Asseman
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Airlines. Neither engine is capable of insertion in any aircraft or vehicle capable of lethal use in the conflict with Iraq.
Lord Gladwyn: My Lords, do the Government maintain that the provision of these engines to Iran does not in any way help the Ayatollah Khomeini in the prosecution of his war against Iraq? Would they not admit that if by any chance the Ayatollah Khomeini won the war against Iraq and occupied Iraq the effect from our point of view would be totally disastrous?
Lord Lyell: My Lords, I am afraid that the first part of the noble Lord's supplementary falls because, as I have pointed out, the three engines that were supplied are not capable of being of any use to Iran in their war with Iraq.
Lord Cledwyn of Penrhos: My Lords, can the noble Lord tell the House what is the dividing line between weapons which are classified as lethal and those which are non-lethal? For example, can he say whether spare parts for Rapier or Tiger Cat missiles are regarded as lethal, and have they been supplied to Iran? Thirdly, are Spey engines regarded as lethal and have they been sold to Iran for conversion in Phantom jets?
Lord Lyell: My Lords, perhaps I can deal first with the noble Lord's question about Rapier. I have no knowledge of Tiger Cat missiles, but I can tell the noble Lord and your Lordships that no spares specific to Rapier have been supplied to Iran since the revolution. As to the noble Lord's question about what he described as the lethality of the military version or civil version of the Spey engine. I am able to tell the noble Lord that the civil Spey—which I mentioned is in use in the F. 28—is substantially different from the re-heated Spey which powers Royal Air Force Phantoms, and it could not be adapted to power a Phantom. I stress that the thrust of a Mark 201/202/203 Spey engine, as fitted to the Phantoms, is 20,250 pounds. The corresponding thrust of the 555/15 Spey—the civil Spey—which was sent for the F.28, is 9,852 pounds. I could go on because there are different technical specifications. I would firmly add that the weight of the civil Spey is one-sixth that of the military Spey. So I am sure that 'our Lordships will see that the military Spey is completely different from the Spey fitted to the F.28

The Budget and Income Distribution
2.48 p.m.
Lord Diamond: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the net effect of the Budget proposals on the inequality of incomes in the United Kingdom as measured by the Gini co-efficient.
The Chancellor of the Duchy of Lancaster (Lord Cockfield): My Lords, I regret that it is not possible to estimate the full effect on the Gini co-efficient of the

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effect of my right honourable friend's Budget proposals on the distribution of personal incomes. But I have no doubt that people at all levels of income will benefit from the comprehensive programme of measures which my right honourable friend put forward last Tuesday.
Lord Diamond: My Lords, I am grateful to the Chancellor for the trouble that he has taken. But does that Answer indicate that the Government came to a conclusion with regard to this year's Budget without considering that the totality of its effects was going to be in terms of a further widening or narrowing of the inequality of disposable incomes? If they did so, can the noble Lord give us the results of their deliberations? If they did not do so, does this not indicate that the Government are quite prepared to see the continuation of the direction which has already been formed by previous Budgets, of redistributing the burden of taxation from the comparatively well-to-do on to the shoulders of the comparatively poor?
Lord Cockfield: My Lords, the main purpose of the Budget proposals was to improve the efficiency of operation of the British economy. That will produce in due course changes both in the absolute level and in the distribution of incomes. Those changes, which will be to the benefit of the British people as a whole, can only be measured after the event. So far as Gini coefficients for past years are concerned, they reflect not only changes in taxation, but also changes in the distribution of pre-tax incomes, including the effects of demographic changes.
Lord Thorneycroft: My Lords, is my noble friend aware that, whatever happened to the Gini coefficient, it was a jolly good Budget?
Lord Cockfield: My Lords, I entirely agree with my noble friend.
Lord Molloy: My Lords, is the noble Lord the Minister aware that very many financial experts who write articles for various newspapers, which might he described as substantial newpapers, would entirely disagree with the remarks made by the noble Lord, Lord Thorneycroft? Therefore, is it not a fact or are those experts telling lies when they write that, after this Budget, the poorer people in our land will be poorer than they were in 1979 because of the increased amount of taxation that they have to carry?
Lord Cockfield: No, my Lords, none of that is true. I do not know what newspapers the noble Lord reads, but he will find a fairly universal approval of the proposals contained in my right honourable friend's Budget. The important thing is that we need a growth in output in this country, and the Budget measures are designed towards that end. From this all of our people will benefit.
Lord Elwyn-Jones: My Lords, would the noble Lord enlighten those of us who are not fully informed what the Gini co-efficient is? May we assume that it has nothing to do with Aladdin?
Lord Cockfield: My Lords, I feared that somebody would ask me that. The Gini co-efficient is the most widely used summary measure of the degree of inequality in an income distribution. It can most easily be understood by considering a Lorenz curve of the income distribution. The area between the Lorenz curve and the diagonal line of complete equality, as a proportion of the triangular area between the curves of complete equality and inequality, gives the value of the Gini co-efficient.
Lord Nugent of Guildford: My Lords, is my noble friend aware that in so far as the Budget removes the national insurance surcharge—the tax on jobs imposed by a previous Labour Government—the Government are giving a direct benefit to the most disadvantaged of the community—those who are unemployed—and giving the best prospect of more of them becoming employed?
Lord Cockfield: My Lords, the comment made by my noble friend about the removal of the national insurance surcharge is a very important one. I should only like to add one point. The noble Lord, Lord Diamond, pioneered a great deal of work on this particular subject. Every year in Economic Trends we publish a long article on this matter which gives a large number of different measures of the Gini co-efficient, and anyone who wishes to pursue the matter further would be well advised to read those articles.
Lord Blyton: My Lords, can the Minister say whether the economy can be saved by putting 15 per cent. VAT on fish and chips?
Lord Cockfield: My Lords, that was only one item in a very wide-ranging Budget.
Lord Diamond: My Lords, did I hear the noble Lord the Chancellor of the Duchy of Lancaster aright when he said that this measure was the most regular one used for measuring the inequality of incomes in this country? Is it not inevitable that, if the Government pursue their policy of reducing taxes on income and increasing taxes on expenditure—the first being progressive and the second being considerably regressive—what some people describe will become true?—namely, that the Government's purpose is to make the rich richer and the poor poorer.
Lord Cockfield: My Lords, no; none of those things is true, nor do they follow from one another. The fact of the matter is that VAT itself is not a regressive tax. For example, food is exempted from VAT and this has a very considerable bearing on the distribution of the burden of that tax. The Gini co-efficient—as, indeed, do all measures of equality or inequality of the distribution of incomes—also reflects the distribution of gross incomes before tax; and the most important point is to obtain a growth in those gross incomes. This is what we are aiming to do.
The Earl of Lauderdale: My Lords, will my noble friend agree that one effect of this Budget is to promote profits in industry, which in turn promotes jobs?
Lord Cockfield: Yes, my Lords, I entirely agree with my noble friend.
Lord Kilmarnock: My Lords, can the noble Lord tell the House whether this useful analytical tool is still in use in the Treasury or whether the Government are not interested in this type of analysis?
Lord Cockfield: My Lords, I do not know whether the noble Lord was paying attention to what I said earlier, but I said that every year in Economic Trends an article is published on this which goes into very great detail indeed. The last such article was published in November 1983, and I suggest that the noble Lord should read that article.
Lord Molloy: My Lords, would the noble Lord agree that no responsible Minister, such as himself—or indeed anyone interested in whether these measures will affect the poorer in our community—can look at the issues without. for example, noting the following? Those who are sick, ill and disabled will have to pay increased prescription charges; also there is a possibility that 15 million people (mostly old people) will have to buy spectacles without aid from the DHSS; and most responsible economists have declared that those at the lower end of the income scale of our nation will be worse off under this Budget. Therefore, all this means that the poor will become poorer while the rich become richer.
Lord Cockfield: My Lords, none of that is true. The single most important measure in the Budget was the increase in the income tax thresholds by 122 per cent, compared with a rate of inflation of just over 5 per cent. This big increase in the thresholds is primarily of benefit to the people at the bottom of the income scale.

Pharmacists: Recovery of Over-Payment
2.58 p.m.
Lord Ennals: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they propose to take to repay the £10 million clawed back from pharmacists by the DHSS.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, repayment of sums witheld from pharmacists' reimbursement for August and September 1983 was completed in January.
Lord Ennals: My Lords, I am grateful to the noble Lord for that Answer, which in a sense accepted that they were repaid because they had been illegally clawed back. Would the noble Lord answer three questions? Will he confirm that, if Parliament gives its blessing to the amendment to the Health and Social Services Bill to provide legal sanction for an illegal action, he will he demanding of pharmacists a total of £40 million clawback to he paid in six months when it is in fact earnings over three years? Secondly, will he accept that at least 650 of these retrospective demands will he made in situations where the ownership of pharmacies has changed? Therefore, is it not right that many pharmacists are likely to close as a result of the
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Government's proposed action? Thirdly, is it not grossly unfair that his department should now be withholding £30 million owed to pharmacists for overhead costs until the pharmacists agree to this retrospective payment?
Lord Glenarthur: My Lords, the noble Lord referred to the Health and Social Security Bill, which is at present going through another place. He will, of course, have plenty of opportunities to debate that when it reaches your Lordships' Chamber, but the fact remains that that Bill corrects an irregularity which has been going on for about 20 years or so when we thought that what we were doing was in fact perfectly correct. Of course, the noble Lord will be fully aware of that. The fact is that the results of the inquiry into pharmacists' discounts showed clearly that they had been over-reimbursed, and their negotiators agreed that that was so. A technical irregularity has so far prevented us from going ahead to recover the total sum involved, and the legislation to which the noble Lord referred will put matters beyond doubt.
Lord Ennals: My Lords, I am sorry to press the noble Lord. When he says a technical difficulty, or whatever the term was, what he is actually saving is that it was an illegal action; and surely it has never happened before, that profits over a period of three years have had to be paid back within the course of six months? Is this not unfair to pharmacists, who perform an important function in our society? Is it not wrong that at precisely the same time the Government are suggesting to the Pharmacists' Retail Panel that the payment for NHS services should be halved?
Lord Glenarthur: My Lords, first, the technical irregularity to which I referred on announcing arrangements for recovery, was conceded. The recovery, as the noble Lord knows, was temporarily suspended. A special adjustment was offered to pharmacists who, as they were not in contract at the time, had not received the discounts involved. On the remaining points, Mr. Justice Mann ruled in favour of the Secretary of State on 14th February but the matter is subject to an appeal by the Pharmaceutical Services Negotiating Committee, which negotiates with the department on pharmacists' remuneration. I understand that an appeal has now been lodged, so it might be prudent not to go any further.
Lord Nugent of Guildford: My Lords, is my noble friend aware that in my village a third pharmacist has just opened, and there are no signs that pharmacists are going into bankruptcy there?
Lord Glenarthur: My Lords. I am sure that my noble friend is quite right.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Report stage of the Telecommunications Bill will be adjourned at approximately 7 p.m. for a short period, and that during this adjournement the Committee stages of the County Courts Bill and the Criminal Trespass Bill will be taken.
Derwent Valley Railway Bill [H.L.]
Read a third time, and passed, and sent to the Commons.
Standard Chartered Bank Bill
Read a second time, and committed to an Unopposed Bill Committee.

Telecommunications Bill
3.3 p.m.
Further considered on Report.
[Clause 16 [Securing compliance with licence conditions]:
The Lord Advocate (Lord Mackay of Clashfern)The Lord Advocate (Lord Mackay of Clashfern) moved Amendment No. 63:
Page 19, line 42, leave out ("not complying with") and insert ("contravening or is likely to contravene").
The noble and learned Lord said: My Lords, I should like to move Amendment No. 63 and speak also to Amendments Nos. 64, 65, 67, 68, 69, 70, 72, 73 and 75.
Amendment No. 64: Page 20, line I leave out ("compliance with") and insert ("that the operator does not so contravene or continue so to contravene")
Amendment No. 65: Page 20, line 6, leave out from ("is") to ("may") in line 7 and insert ("contravening or is likely to contravene any of the conditions of his licence, the Director")
Amendment No. 67: Page 20, line 9, leave out ("compliance with") and insert ("that the operator does not so contravene or continue so to contravene")
Amendment No. 68: Page 20, line 13, leave out from ("if') to end of line 15 and insert ("the provision made by the order (with any modifications) is requisite for the relevant purpose")
Amendment No. 69: Page 20, line 22, leave out ("failure to comply with the relevant condition is") and insert ("contraventions or apprehended contraventions are")
Amendment No. 70: Page 20, leave out line 32 and insert ("such things as are specified in the order or arc of a description so specified: and")
Amendment No. 72: Page 20, line 37, at end insert—
(" "contravention", in relation to any condition of a licence, includes any failure to comply with that condition and "contravene" shall be construed accordingly")
Amendment No. 73: Page 20, line 44, at end insert—
(" "relevant purpose", in relation to an order under subsection (1) or (2) above, means the purpose mentioned in that subsection.")
Amendment No. 75: Page 21, line 6, leave out ("a failure to comply with") and insert ("or would consitute contraventions of")
These amendments reflect our response to a technical problem with the present construction of the Bill which has only very recently been brought to our attention. In moving them I should like therefore to indicate to your Lordships that we are dealing with one of the most important and complex aspects of the Bill. We have come forward with these amendments in order that your Lordships may be aware of the point and of the principal changes we propose in order to deal with it. In the light of what your Lordships say, further consideration will be given to the amendments
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tabled, and also to any other comments upon these matters that come to our attention.
Lord Lloyd of Kilgerran: My Lords, may I intervene before the noble and learned Lord goes on with his useful description of what he is talking about? I am sorry, but I missed the numbers of the amendments to which he was speaking. Is it amendments 63 to 74 without any exception? I am sorry to interrupt the noble and learned Lord.
Lord Mackay of Clashfern: My Lords, I am moving Amendment No. 63, and I am speaking to Amendments Nos. 64, 65, 67, 68, 69, 70, 72, 73 and 75. I would expect that minor revisions of these amendments may well be required at the next stage of the Bill, and anything your Lordships have to say to help us in connection with this problem will of course be taken into account in that consideration.
The Government have taken a number of steps during the course of this Bill and its predecessor to ensure that the enforcement procedures act as a powerful deterrent to licensees against breaching the conditions in their licences. That was why Clause 16 was amended at Report stage in another place to put a clear duty on the director to take enforcement action either by making a final order or, where it appears to him requisite, by making a provisional order subject to subsequent confirmation. The provisional order procedure was designed to ensure that the director would be able to move sufficiently quickly in cases where, for example, a competitor was suffering significant damage as a result of a licensee's failure to comply. The question which has led us to come forward with these amendments is whether even that power, which would enable the director to act immediately if he judges it necessary, covers all the eventualities.
The present drafting of Clause 16 is such that the director can only make an order if at the time the order is made the licensee is not complying with any of the conditions of his licence. Thus the director could receive a complaint, decide immediately that a provisional order was necessary, but find, even within the matter of hours it might take in a serious case to serve the order, that the licensee had again complied with the licence condition. If that happened, it would demonstrate the efficacy of the enforcement procedures because the mere hint that an order was about to be made would have been sufficient to secure compliance. But—and this is the important matter—let us assume that having begun to comply, and the director having therefore put a halt to the making of an order, the licensee reverted to his previous position and the relevant licence condition is once again breached, perhaps within a matter of hours or days. Once more the director would set out to make a provisional order, but might find that by the time he came to make it the licensee had begun to comply. The net effect could be that the director was powerless to act by somebody going in and out of the complying situation.
Clearly, it was never our intention that the enforcement procedures should be capable of being frustrated in this way. Thus we have come forward with amendments which will place the director under a duty to make either a final or a provisional order

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(subject to the qualifications already in subsection (5) of Clause 16) where he is satisfied that a licensee is contravening or is likely to contravene a licence condition. In other words, in the example I have described, where the director decides that, although a breach has been remedied, on the evidence before him it is likely to be repeated, he will be able either to set in train the procedures leading to a final order, or perhaps more likely make a provisional order which could come into effect immediately to ensure that the operator does not in future contravene a licence condition. Our objective is to close a loophole so that licensees are not able to circumvent the enforcement procedures by intermittent acts or omissions in contravention of their licence obligations.
I think that this is also the object of Amendment No. 66, and I hope that with the brief explanation I have given of our purpose the proposers of that amendment will see fit to consider our amendment as dealing with the matter, and may feel able to withdraw their amendment and support ours. I am sure that we are addressing the same problem. Perhaps I might add that since seeing Amendment No. 66 we have been reconsidering our own approach because it might well be sensible to seek a remedy in relation to a prospective breach of a licence condition by reference to something that has happened which shows evidence of the probable contravention. We are considering, therefore, what may be needed as an amalgam of the two approaches, and as I indicated in my opening remarks we certainly have this in mind with a view to considering what improvements might be made on these amendments at Third Reading. I beg to move.
Lord Bruce of Donington: My Lords, the House will be relieved that the noble and learned Lord has still left this matter open for possible alterations on Third Reading. The noble and learned Lord was kind enough to give his motivation in bringing forward these amendments and, in the process, mentioned Amendment No. 66. According to the Second Marshalled List, Amendment No. 66 is now no longer there, so I presume the reference is no longer required.
This clause has a fairly long history, as the noble and learned Lord was kind enough to indicate. In the Bill as it came to your Lordships' House on 21st December Clause 16 read like this:
"(1) Subject to subsections (3) and (5) and section 17 below, where the Director is satisfied that an operator is not complying with any of the conditions of his licence, the Director shall"—
then it continues from there.
I think your Lordships will agree that the Bill received a comprehensive treatment in Committee in your Lordships' House. Indeed, the noble Lord, Lord Cockfield, was at his indefatigable best in making a series of corrections to the Bill and bringing a series of amendments to it. As your Lordships will recall, the noble Lord and those sitting behind him devoted twice as much time in Committee stage to this Bill as all the rest of the parties in this House; the Cross-Benches, the Alliance and ourselves.
True enough, after amendment, Clause 16 as it came to us as amended in Committee read as follows:
"Subject to subsections (3) and (5) and section 17 below, where the Director is satisfied that a person who is authorised by a licence
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granted under section 7 above to run a telecommunication system (in this Act referred to as a 'telecommunications operator') is not complying with any of the conditions of his licence, the Director shall".
Three months have elapsed with the "not complying with" still inserted in Clause 16.
Now we have a somewhat remarkable insertion. I do not in any way impugn the sincerity of the noble and learned Lord, Lord Mackay of Clashfern, in supplying the words "contravening or likely to contravene" substituted for "not complying with". As the noble Lord has indicated, this is a matter for some legal construction and the word "contravening" itself, as defined in legislation up to 1968, includes the words "non-compliance", so the word "contravening" is quite exceptional.
The trouble arises with "or is likely to contravene". When we come to the enforcement of the law, we are not concerned with the interpretation of what Parliament meant or intended to convey when it passed the Act. The Interpretation of Legislation Act 1978 makes that quite clear. We rely on the words themselves. It is a question of interpretation of "or is likely to contravene". Who will assess that, and how? What objective tests will be applied in the mind of the director general, or any of his staff, that there is likely to be a contravention? The noble Lord could perhaps exercise his mind and, for example, go through the draft licence that it is proposed shall be granted to British Telecom. Perhaps the noble Lord can give some instances—not confined to the possibilities that he has just brought before the House—as to where, in what circumstances, in what way, with what aids, subject to what hunches (newspaper reports or any other information at his disposal) he will apprehend that an operator is likely to contravene.
This is of some importance from another point of view. When I first saw the amendment, a possibility, indeed a probability, occurred to me that may not have occurred to the noble Lord. There is the possibility of it being interpreted in a different sense. For example, say there were mooted in the press, or it became obvious in the course of the new successor company's dealings with its employees, that it was apprehended, first by the successor company, the operating company of BT, that an industrial dispute was in the offing. If that industrial dispute resulted in strike action—whether that strike action was general or all out, to use the noble Lord's words in another context on Clause 18, or whether it was selective, as the noble Lord hinted when he was dealing with Clause 18 at Committee stage—would the director general then be in a position to come to the conclusion that, as industrial action was probably in the offing, there might be a contravention by the operator? This is quite possible because, if there were an industrial dispute involving the rights of the unions concerned to exercise their right to strike, which undoubtedly still remains to them even under the existing trade legislation, the only way in which that strike could be effective would be by interfering with the provision by the operator of the service which he was enjoined by the licence to perform. I put it to the noble and learned Lord: is that the kind of circumstance what would be caught by the words "likely to contravene" that he has put in?

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The noble and learned Lord may say—and all those who know him will not in any way question his good faith—that that is not the way he considers it and that he would like to give an assurance that that is not the way things would work out. I am bound to return to the words themselves and to ask him the straight question: if it were obvious to the director general that if there was an industrial dispute in which the right to strike might be exercised, would that activate Clause 16(1)? The noble Lord will appreciate that there are other rights which we shall be dealing with when we come to Clause 18, whereby, on the face of it and reinterpreting what the noble Lord said in his remarks in Committee under Clause 18, there might be a right to civil action against individual trade unionists or against trade unions themselves, if the operator was prevented by strike action from carrying out the full conditions of the licence. These are matters of some importance. I reiterate that I do not believe that the noble Lord had that in mind but we are dealing with the words themselves. For that reason, on the basis of the interpretation (as we see it) we shall have to oppose this amendment and invite the noble and learned Lord to have another think about it. Although we are quite sensible of the reasons that he gave in his opening explanation of the amendment and although we are quite satisfied with the necessity of dealing with that situation, we are not satisfied that this particular form of wording is going to deal with the other possibilities which are also caught up by the very wording that he has used.
3.21 p.m.
Lord Lloyd of Kilgerran: My Lords, as one would expect from so distinguished a lawyer as the noble and learned Lord, Lord Mackay of Clashfern, he clearly indicated that there were serious commercial and legal problems arising from the present drafting of Clause 16. He explained so clearly how by ordinary process, not necessarily being in any way illegal, it would be possible for a person to circumvent the enforcement of certain procedures to which, as he explained, the Government attach great importance. If I may make an analogy, I have been concerned, for instance, with trade mark cases where considerable damage can be done very shortly and where the only way in which a commercial firm can protect its interests is to go along to the High Court to get an interim injunction. You can apply for interim injunctions any day—Tuesdays and Fridays were popular days with me—and no doubt the noble Lords, Lord Elystan-Morgan and Lord Campbell of Alloway, with their experience, will agree with me. But there was a sanction against anybody making such an application that they had to give a cross-undertaking in damages so that if they lost they would have to pay the expenses to which the defendant had been put.
What worries me are the last few words of the speech of the noble and learned Lord. If I can refer to it in this way, he was presenting your Lordships with a package deal. He was speaking to a number of amendments. But at the end of his speech—as I understood him; and I may be wrong—he did not seem to be satisfied with all those amendments clustered together and spoken to so clearly by him because he said (as I understood him) that the Government are proposing to bring other
982
amendments allied to this group of amendments to clarify the position even further at Third Reading. If that is the position that arises from all these amendments then I would not say anything further in relation to these amendments but would await what the Government have in mind as the totality of their dealing with this really serious problem—and the noble and learned Lord opened his speech by indicating that it was a very important matter—in regard to preventing the frustration of the enforcement procedures.
Lord Campbell of Alloway: My Lords, as I understand the position, my noble and learned friend the Lord Advocate has opened this question for objective discussion and these amendments relate to the exercise of administrative powers by the director under Clause 16 to deal with likely contraventions and to secure compliance with licence conditions, according to the procedure laid down under Clause 17. Again, the question arises as to whether the rigidity of the drafting structure of this Bill is apt to afford fair play according to the principles of natural justice. This matter was raised earlier on Report by the noble Earl, Lord Halsbury, in the context of general duties under Clause 3, the object of the amendment, which was not withdrawn, being to include a duty to maintain and promote free and fair compatible opportunity.
Three objections were taken by my noble friend Lord Glenarthur. The first was that this would insert an evaluation element into the Bill at the wrong stage. I use his own words; they are not mine; secondly, that the word "fair" introduces (again, his own words and not mine) a vague extraneous standard of evaluation because the clause itself lays down standards of fairness; and thirdly, that this would harm the Bill. This question of due exercise of administrative powers had also previously arisen at Committee stage when an amendment was moved (and which again was not withdrawn) to insert a new clause between Clauses 7 and 8 to seek to secure fair play on that occasion for the applicant. To this my noble and learned friend the Lord Advocate on that occasion took objection.
It is not the intention to harm the Bill, only to introduce some measure to seek to prevent the Bill doing harm. The objection to the introduction of an evaluation element which is generally understood and recognised by our courts in the exercise of their supervisory jurisdiction is not convincing. To stigmatise as extraneous a fundamental concept of natural justice is disturbing as the standard must always be extraneous. If "fair" is vague, so be it. It is a workable concept because of its flexibility. In conclusion, Lord Atkin once said: "Mere administrative difficulties are not enough. Convenience and justice are often not on speaking terms". If the rigidity of this Bill precludes the introduction of measures of procedural safeguard, perhaps some consideration—as the matter is, as I understand it, open—might be given to issuing a code of practice to seek to ensure some measure of due administration.
Lord Morris: My Lords, the noble Lord, Lord Lloyd of Kilgerran, has raised, not for the first time, a point of great importance. If I understood my noble and learned friend the Lord Advocate correctly, he seemed

983
to be suggesting that the Government at a later stage are going to rethink points of substance with regard to the series of amendments. Clause 16 has a tremendous knock-on effect to Clauses 17, 18 and 19 of the Bill. The problem there is that within the Rules of the House, ordinary Members of the House, BackBenchers and all Members other than of the Government, are not allowed to put down amendments at Third Reading other than drafting amendments.
Might I ask my noble and learned friend whether I have understood this correctly? If so, he is going to put Members of this House in a very difficult position. Or is he just referring, for instance, to subsection (4) which is covered by these amendments? The corrigenda itself makes the clause worse than it was in the first place. The corrigenda covers ony printing errors but the correction to the printing error still makes the clause a nonsense. Is he referring to that or is he referring to points of substance to which the noble Lord, Lord Lloyd of Kilgerran, referred?
3.30 p.m.
Lord Elwyn-Jones: My Lords, the words in the Amendment "or is likely to contravene" constitute a considerable addition to the powers given to the director. The director is not a Minister: he is not answerable to Parliament, so there is no constitutional control over his power in that sense. Secondly, the language of the clause and what is proposed means that on the ipse dixit of the director if he is satisfied that a person, as is now proposed, is said to be contravening or is likely to contravene, the powers given to him will follow. This is a very important addition to the powers of the director. It is a power which is not easily challengeable in the courts, and, in view of its implications in the industrial field in particular, as my noble friend who spoke first indicated. I submit that this is an extension of an unacceptable character.
As my noble friend Lord Bruce of Donington indicated to me, Amendment No. 80, if accepted, would diminish a little some of the anxieties of those who may be involved in these situations. Perhaps it is a little early to ask the noble and learned Lord the Lord Advocate whether he accepts Amendment No. 80, but, whether that be so or not, I submit that, as it stands at any rate, this is an unacceptable amendment. It is a classic attempt to increase executive power in the hands of someone who is not answerable to Parliament or, by virtue of the language of the proposed Clause, not amenable even to the jurisdiction of the courts.
Lord Mackay of Clashfern: My Lords, the substantial matters we seek to cover have been dealt with in these amendments. I have indicated that, of course, this is an important and difficult problem and that we are dealing with the matter in a slightly different way from the former Amendment No. 66 but that we shall, in considering whether any further revision of what we propose ought to be made, take account of the fact that that way of dealing with the matter has been proposed. That is what I had in mind when I spoke earlier. In my view, it is entirely acceptable to maintain that sort of
984
attitude in a matter of this sort, but if one of your Lordships, or anyone else, has a suggestion for the improvement of these proposals, we would certainly consider it very carefully.
So far as concerns my noble friend Lord Campbell of Alloway, the proposals which I have sought to introduce by Amendment No. 63 and those Amendments connected with it do not. I think, in any way affect the concepts to which my noble friend made reference.
So far as the noble Lord, Lord Bruce of Donington, is concerned, I think he has agreed with the view that the problem which I set out at the beginning ought to be dealt with. The noble Lord is simply concerned as to whether industrial action, or the possibility of industrial action, might be a circumstance to be taken into account in considering whether there is likely to be a contravention. Whether or not there has been a contravention may depend on circumstances of that kind, I suppose, but the criteria which we are seeking to put into this clause are criteria of a general character: that is to say, the purpose is to enable the director to have effective power of enforcement of conditions already there. I would venture to suggest to the noble and learned Lord, Lord Elwyn-Jones, that that is a considerable restriction on this power and any action taken would require to be related to conditions in the licence already there. If the exercise of the powers of the director were challenged. I should have thought it must be reasonably easy to tell whether or not these powers were being appropriately exercised in relation to the conditions which were there in the licence, and the director would require to proceed upon evidence that a contravention was likely; in other words, he would have to be able to satisfy the court, were it to be a subject of challenge, that his decision had proceeded upon a reasonable basis.
In my submission, the generality of what is proposed is entirely appropriate to the difficulty to which I drew attention at the outset. I cannot see that the fact that industrial action might have some bearing on this matter really has any proper result so far as the amendment is concerned, because that might happen equally with the situation of a contravention having taken place. The director may be faced with considerations of that kind in relation to both aspects of this particular responsibility.
The noble and learned Lord, Lord Elwyn-Jones, has directed my attention to Amendment No. 80, and in due course we shall come to deal with Amendment No. 80—
Lord Bruce of Donington: My Lords, with the leave of your Lordships, may I make one rejoinder to what the noble and learned Lord, has said? The noble and learned Lord was given full opportunity to answer quite concisely the points I made about the application of this particular amendment to the whole question of industrial relations. He did not give any categorical reply to that, so therefore we are left with the assumption which I did hazard at the commencement of the remarks I ventured to address to your Lordships that the words "likely to contravene" most certainly would have an application on the industrial relations scene. This is not satisfactory to us for reasons that I will certainly not wish to repeat to the House.

985
Moreover, I note that the noble and learned Lord, although he was afforded an opportunity of giving an indication as to the way in which he might be prepared to proceed when Amendment No. 80 was reached, was quite noncommittal on that point also. In the circumstances, we are faced with a situation where we are bound to challenge the validity and the application of this particular amendment.
Lord Donaldson of Kingsbridge: My Lords, not having spoken before, I can speak now, and will do so briefly. My noble friend here and I came in to the Chamber with the feeling that probably these amendments should be acceptable and by the time the noble and learned Lord said he was going to pass more amendments in the next stage of the Bill we thought he perhaps ought to he given a chance to do so. But personally—I have not had time to consult with my noble friends—I have been seriously shaken by two particular comments from the Front Bench. The first comment was from the noble and learned Lord when he said that the phrase "likely to contravene" is an extension which is not covered in complying; "contravene" is covered in complying but "likely to contravene" is an extension. The second point is the application of "likely to contravene", which is a new thing, to possible industrial action. Now, I do not think that has been satisfactorily explained and unless, by leave of the House, we can have some further explanation. I think we shall have to support the Opposition.
Lord Torphichen: My Lords, may I say this to the noble Lord, Lord Bruce of Donington? I should have thought that the words of my noble and learned friend the Lord Advocate were quite sufficient because, if there were an all-out strike which prevented compliance with the licence in some way, it seems to us that the operator would be doing everything in his power to put everything right, otherwise he would go bankrupt. The only case that he could possibly be talking about is one where some form of selective action is contemplated by a union over some particular customer or class of customers—be they black, South African or whatever—whom the union did not happen to like. In such a case I cannot see there is any difference between having the terms of the licence breached by the operator or by his trade union organised staff. It is just as had in either case.
Lord Mackay of Clashfern: My Lords, by leave of the House, perhaps I might be allowed a word or two in answer to the noble Lord, Lord Donaldson of Kingsbridge. First of all, it has been necessary, in the way that I explained, slightly to extend the director's powers because otherwise, as the noble Lord, Lord Lloyd of Kilgerran, also explained, there would be a defect in the way these powers could operate. You could have a situation where an operator was moving in and out of compliance. There is an extension which is in my view a necessary, but very limited extension.
So far as industrial relations are concerned, as I sought to explain, the situation is that "contravening or … likely to contravene", which is what we are proposing, would in my opinion make no particular
986
difference. Both of these are apt to have an effect on industrial relations, and these are matters which we shall be discussing later. However, I cannot see that "likely to contravene" is any more difficult than "contravention" from that point of view. Therefore, I do not agree that there is, as it were, any new point arising in that way.
3.42 p.m.
On Question, Whether the said Amendment (No. 63) shall be agreed to?
Their Lordships divided: Contents, 116; Not-Contents, 83.

DIVISION NO. 1

CONTENTS

Adeane, L.

Lucas of Chilworth, L.

Ailsa, M.

Lyell, L.

Alexander of Tunis, E.

Mackay of Clashfern, L.

Allen of Abbeydale, L.

Macleod of Borve, B.

Allerton, L.

Mancroft, L.

Alport, L.

Margadale, L.

Auckland, L.

Marley, L.

Avon, E.

Maude of Stratford-upon-Avon, L.

Bauer, L.

Belhaven and Stenton, L.

Mersey, V.

Bellwin, L.

Middleton, L.

Beloff, L.

Milverton, L.

Belstead, L.

Molson, L.

Bessborough, E.

Morris, L.

Campbell of Alloway, L.

Mottistone, L.

Carrington, L.

Northchurch, B.

Clitheroe, L.

Nugent of Guildford, L.

Cockfield, L.

Onslow, E.

Coleraine, L.

Orr-Ewing, L.

Colwyn, L.

Penrhyn, L.

Cottesloe, L.

Peyton of Yeovil, L.

Craigavon, V.

Plummer of St. Marylebone, L.

Craigmyle, L.

Cullen of Ashbourne, L.

Porritt, L.

Daventry, V.

Portland, D.

De Freyne, L.

Rankeillour, L.

Denham, L. [Teller.]

Reay, L.

Dilhorne, V.

Reigate, L.

Drumalbyn, L.

Renton, L.

Ebbisham, L.

St. Aldwyn, E.

Eccles, V.

St. Davids, V.

Effingham, E.

Saint Oswald, L.

Ellenborough, L.

Saltoun, Ly.

Elles, B.

Selkirk, E.

Elliot of Harwood, B.

Sempill, Ly.

Elton, L.

Shaughnessy, L.

Faithfull, B.

Skelmersdale, L.

Fanshawe of Richmond, L.

Somers, L.

Fraser of Kilmorack, L.

Spens, L.

Gainford, L.

Stamp, L.

Gibson-Watt, L.

Stodart of Leaston, L.

Glanusk, L.

Sudeley, L.

Glasgow, E.

Suffield, L.

Glenarthur, L.

Swansea, L.

Gray of Contin, L.

Swinton, E. [Teller.]

Gridley, L.

Terrington, L.

Hailsham of Saint Marylebone, L.

Teviot, L.

Thomas of Swynnerton, L.

Halsbury, E.

Thomeycroft, L.

Harvington, L.

Torphichen, L.

Henley, L.

Trenchard, V.

Home of the Hirsel, L.

Trumpington, B.

Hylton-Foster, B.

Vaizey, L.

Ilchester, E.

Vaux of Harrowden, L.

KaberryofAdel, L.

Vickers, B.

Kinloss, Ly.

Vivian, L.

Kinnaird, L.

Westbury, L.

Lane-Fox, B.

Whitelaw, V.

Lauderdale, E.

Wynford, L.

Long, V.

987

NOT-CONTENTS

Aberdeen and Temair, M.

Hayter, L.

Amherst, E.

Howie of Troon, L.

Ampthill, L.

Jeger, B.

Aylestone, L.

Jenkins of Putney, L.

Banks, L.

Kearton, L.

Birk, B.

Kilmarnock, L.

Bishopston, L.

Leatherland, L.

Blease, L.

Listowel, E.

Blyton, L.

Llewelyn Davies of Hastoe, B.

Boston of Faversham, L.

Lloyd of Hampstead, L.

Bottomley, L.

Lloyd of Kilgerran, L.

Brockway, L.

Longford, E.

Bruce of Donington, L.

McIntosh of Haringey, L.

Burton of Coventry, B.

Mayhew, L.

Caradon, L.

Mishcon, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Cledwyn of Penrhos, L.

Mulley, L.

Collison, L.

Northfield, L.

Cooper of Stockton Heath, L.

Oram, L.

Darling of Hillsborough, L.

Peart, L.

David, B. [Teller.]

Phillips, B.

Davies of Penrhys, L.

Ponsonby of Shulbrede, L. [Teller.]

Dean of Beswick, L.

Delacourt-Smith of Alteryn, B.

Rea, L.

Rhodes, L.

Denington, B.

Ross of Marnock, L.

Diamond, L.

Sainsbury, L.

Donaldson of Kingsbridge, L.

Stallard, L.

Donnet of Balgay, L.

Stedman, B.

Elwyn-Jones, L.

Stewart of Alvechurch, B.

Elystan-Morgan, L.

Stewart of Fulham, L.

Ennals, L.

Stoddart of Swindon, L.

Ezra, L.

Stone, L.

Fisher of Rednal B.

Strabolgi, L.

Gaitskell, B.

Strauss, L.

Gallacher, L.

Taylor of Blackburn, L.

Gladwyn, L.

Tordoff, L.

Graham of Edmonton, L.

Underhill, L.

Grey, E.

Wallace of Coslany, L.

Hale, L.

Wells-Pestell, L.

Hampton, L.

Wigoder, L.

Hanworth, V.

Wilson of Rievaulx, L.

Harris of Greenwich, L.

Resolved in the affirmative, and amendment agreed to accordingly.
3.51 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 64 and 65:
[Printed earlier: col. 977.]
The noble and learned Lord said: My Lords, I beg to move.
On Question, amendments agreed to.
[Amendment No. 66 had been withdrawn from the Marshalled List.]
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 67 to 70:
[Printed earlier: col. 977.]
The noble and learned Lord said: My Lords, I invite your Lordships to agree to Amendments Nos. 67 to 70 en bloc. I have already endeavoured to explain these.
I beg to move.
On Questions, amendments agreed to.
Lord Mackay of Clashfern Lord Mackay of Clashfern had given notice of his intention to move Amendment No. 71:
Page 20, line 35, leave out from ("order") to end of line 36 and insert—
("(6A) The Director may at any time revoke a final or provisional order if, at that time, the provision made by the order is not requisite for the relevant purpose.").
The noble and learned Lord said: My Lords, we have reconsidered Amendment No. 71 and I do not propose to move it.
[Amendment No. 71 not moved.]
Lord Mackay of Clashfern Lord Mackay of Clashfern: moved Amendments Nos. 72 and 73:
[Printed earlier: col. 977.]
The noble and learned Lord said: My Lords, I should like, if your Lordships are agreeable, to move Amendments Nos. 72 and 73, to which I have already spoken, en bloc. I beg to move.
On Question, amendments agreed to.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 74:
[Printed earlier: col. 600.]
The noble and learned Lord said: My Lords, I explained this amendment in moving Amendment No. 27 on the last occasion. This amendment simply removes code-related licence provisions from the scope of the director's enforcement powers under Clause 16. I beg to move.
On Question, amendment agreed to.
Clause 17 [Procedural requirements]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 75:
[Printed earlier: col. 977.]
The noble and learned Lord said: My Lords, Amendment No. 75 is dealing with the same subject matter as Amendment No. 63. I beg to move.
On Question, amendment agreed to.
Clause 18 [Validity and effect of orders]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 76:
Page 22, line 30, leave out from ("final") to second ("is") in line 31 and insert ("or provisional order")
The noble and learned Lord said: My Lords. Amendments Nos. 76 and 77 are technical amendments which are designed to remove an injustice.
Amendment No. 77: Page 22, line 33, leave out from ("it") to end of line 37.
The intention of the Bill is that the director should be under a duty to enforce licence conditions and to make provisional orders to secure compliance with licence conditions where an operator does not comply with his licence conditions and the director thinks it necessary or requisite for immediate remedial action to be taken. Our aim is that a provisional order made under Clause 16 should be obeyed at once.
Clause 18 sets out the arrangements for enforcing provisional orders once made. As drafted, the Bill prevents enforcement action being taken by a person who is affected by any breach of the provisional order until after it has been confirmed. This arrangement gives the operator against whom a provisional order is made the chance to consider his position and whether to challenge the order. An operator could decide

989
deliberately not to obey a provisional order in the hope that it would not be confirmed or that it would be modified before it was confirmed.
It has been pointed out to us that this arrangement is seriously unjust to any person who has been damaged by a breach of a provisional order. The affected person could have his telecommunications cut off through no fault of his own, and if he is heavily dependent on telecommunications it is possible that he could go out of business during the 28 day minimum period before a provisional order is confirmed. If this happens, it is no comfort to him that his liquidators could claim damages from the operator whose breach of a provisional order caused him to go out of business. So to remove this injustice we have decided that a person who is affected by a breach of a provisional order should be able to obtain an injunction, an interdict, or damages at any time after the order is made.
We have had a serious difficulty in formulating these amendments. We think it right to ensure that provisional orders are enforceable as soon as they are breached, but we have a question in our minds about whether damages should be payable as soon as a breach is made. It is possible that the director could make a mistake with a provisional order and subsequently modify it to require the operator to do something different. The aim of any provisional order, both as originally made and as modified, would always be to ensure compliance with the operator's licence conditions. But an affected person could, under the amendments, obtain damages in respect of a provisional order which was ultimately changed.
The Government will certainly listen to any views expressed on this point; but in our view what is proposed in these amendments appears desirable. I wished to have that aspect of the matter drawn to your Lordships' attention, in case it was a matter on which your Lordships wanted to express a view which we would certainly find helpful. I beg to move.
Lord Bruce of Donington: My Lords, this amendment for the insertion of the words "or provisional order", in the space indicated by the noble and learned Lord in subsection (5), only goes to reinforce the observations that we made concerning the earlier amendments. It now appears that a provisional order sharpening up the whole thing will be able to be made in conditions where there is likely to be, or is deemed likely to be, a contravention. We only reiterate the same remarks that we made before upon this matter and undoubtedly, as the noble and learned Lord will realise, this whole question will have to come up again when considering later amendments.
Lord Lloyd of Kilgerran: My Lords, I find myself in difficulty after the speech of the noble and learned Lord the Lord Advocate. I agree with him that this is a very difficult matter and that there is an attempt by the Government to put matters right and prevent damage occurring in the circumstances which he has explained. But at the conclusion of his speech he said—and he is the Government spokesman on this matter—that he thinks his own amendments are not satisfactory and he is waiting for us on the other side to make certain suggestions. I find that rather difficult
990
to understand. If he is not satisfied with the amendments, and having heard what the noble Lord, Lord Bruce, and others have said on the previous amendments, surely this is a matter which he should take away and think about again. No doubt it is entirely my fault in not understanding the subtleties of the noble and learned Lord's advocacy in this matter. But if he, as the Government spokesman, expresses in his speech his dissatisfaction, surely it is now his duty to go back and think about the matter again and bring it forward on Third Reading.
Lord Mackay of Clashfern: My Lords, what I sought to do—and I think it is fair that I should do that to the House—was to explain the problem that our approach has involved in it. But we have considered what is possible in the way of a solution and what we propose should be done. I expressly directed your Lordships' attention to this, and if any of your Lordships have any point that you wish to make about this aspect of the matter I shall be most grateful and very indebted to hear it. But I am not suggesting that these amendments are not appropriate, and I certainly ask your Lordships to agree with the first of them. The noble Lord, Lord Bruce of Donington, has linked these amendments with previous ones; but I am not sure that the point is in any way the same. In my view, what we are proposing here is the best solution in the circumstances.
On Question, amendment agreed to.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 77:
[Printed above.]
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
4 p.m.
Lord Morris Lord Morris moved Amendment No. 78:
Page 22, line 37, at end insert—
("(5A) Where a final order has been made or a provisional order has been confirmed, any contravention of a condition of the licence to which it applies, which occurred prior to that order taking effect and which would have been in breach of the duty owed by virtue of subsection (5) above had that order then been in force, shall be actionable with the prior consent in writing of the Director at the suit or instance of any person who has suffered loss or damage as a result of that contravention.
(5B) In any proceedings brought against any person in pursuance of subsection (5A) above, it shall be a defence for him to prove that he took all such reasonable steps and exercised all due diligence to avoid contravening the condition of the licence in question.").
The noble Lord said: My Lords, I beg to move the amendment standing in my name and in those of the noble Lord, Lord Lloyd of Kilgerran, and the noble Lord, Lord Spens. I am persuaded to seek the support of' your Lordships on this matter because of my concern that despite the detailed scrutiny which has been given to the Bill there remains in it a major flaw.
Your Lordships were particularly concerned with the parliamentary scrutiny of' the licence. The Chancellor of the Duchy of Lancaster, my noble friend Lord Cockfield, has now conceded that licences should be laid before both Houses of Parliament. We are now concerned with securing compliance with licence

991
conditions and the effects upon the role of the Office of Telecommunications. We need to ensure that the assurances Her Majesty's Government have given us on so many occasions relating to our detailed concerns, which are achieved through the licences, will at the end of the day stand the test of time. I tabled an amendment on this subject in Committee, but as a result of an amendment tabled by Her Majesty's Government to the same clause on a different matter my amendment could not he moved. I must apologise to your Lordships for raising this matter at apparently so late a stage.
My concern is that under the regulatory mechanism by which the intentions of the Bill are brought about—that is, through the underpinning licences—there is no duty for a licensee to comply with the conditions of the licence. Instead, there is a duty on the Secretary of State and the Office of Telecommunications to police the licences, which means that this duty will rest upon the Director General of Oftel. The system therefore relies in its entirety upon the integrity of the licensee and the abilities and, above all, the energies of the Director General of Oftel. What is missing, in my submission, is an incentive for the licensee to conform at all times with his licence. The solution that I propose in the amendment is, I believe, wholly consistent with the policy of Her Majesty's Government and with the structure of the Bill, for it would make the licensee liable for a civil suit for damages if he caused injury by breaching a condition of his licence as opposed merely to disobeying an order.
As the Bill is drafted, the citizen has no immediate remedy if the protection and the assurances Her Majesty's Government have given to the public and to your Lordships in this House by virtue of the provisions of Clauses 3 and 8 and the underpinning licences are not met. If the citizen is denied access to the courts for any loss he may have suffered, he can rely only upon the director acting almost instantaneously. Is this a practical reality? Under the clauses of the Bill, the director general has to satisfy himself that such an event has occurred or is likely to occur. In other words, he has to gather hard evidence that this is so, otherwise he himself will be the cause of injustice—or could he. As your Lordships know, this will take time.
I have studied carefully the amendments tabled by my noble friends to Clauses 16 and 18. Much as I welcome the amendments, they in no way affect the argument in favour of this amendment. I am looking at whatever length of time may elapse between the breach of the licence condition and the director issuing an order, either provisional or final. Let me describe how I see this aspect of the Bill functioning. The duties of my right honourable friend the Secretary of State and of the director are set out in Clause 3 of the Bill. Additional duties applicable to the functioning of licensees are set out in Clause 8.
These duties are primarily carried out by my right honourable friend the Secretary of State by including conditions to that effect in the licence that he grants. The duties of the director are carried out either by a friendly tap on the shoulder or by his powers to issue orders demanding compliance with licence conditions.
But there is an omission. There is no obligation upon the licensee to comply with his licence and no penalty, except the withdrawal of his licence. I would suggest that in the case of major licensees the possibility of withdrawal is inconceivable. A gap, therefore, exists because there is no penalty for breaching a licence condition: there is only a penalty for disobeying one of the director's orders.
Let us assume for a moment that my right honourable friend the Secretary of State, in his wisdom and foresight, is able to foresee all the ingenious means that might, over the next 25 years, be deployed to circumvent the obligations placed on any licensee. Once the licence is issued the licensee can ignore the licence. He can lock it up in a safe, or put it on a bookshelf, or file it away until such time as he hears the heavy footsteps of the director coming down his corridor. The director, however brilliant, cannot be all-seeing. When he comes knocking on the door, order in hand, he must be satisfied and have hard evidence that a licence condition is being breached, or is likely to be so breached.
I can imagine hardly any instances, but there might be an instance where the breach of a licence condition will be obvious and the director can act instantaneously; but there will be many occasions when it will be much more difficult and when it will take a considerable period of time before the director can be satisfied that a breach of a licence condition has taken place. What happens, for instance, when illegal cross-subsidisation is suspected and a competitor may be forced out of business as a result? How long will it take the director to plough his way through the accounts in order to satisfy himself that cross-subsidisation is occuring to the detriment of others? How long will it take the director to be satisfied that interpretations placed upon value-added services licences by licensees are in accordance with the spirit of that very complicated licence?
I believe your Lordships may agree that there will be instances when there will be an interval—in some cases a considerable interval—between the breach of a licence and the director being satisfied and, as a result, issuing an order. Furthermore, all that the licensee has to do when the director does arrive on his doorstep is to say, "Sorry, Mr. Director; I will stop breaching my licence condition". He suffers no penalty, but he may have gained a considerable commercial advantage or saved himself considerable expenditure and caused considerable loss to a citizen whose only crime is a wish to compete.
I therefore draw your Lordships' attention to the fact that the citizen has no full remedy, even with the protections and assurances given to him in Clauses 3 and 8 of the Bill, because he has no access to the courts to make good his losses from the time they first occurred. He has only a partial remedy from some time after the director has issued the order, which I believe to be a most grave injustice. What is missing from the system is an incentive for the licensee to conform at all times with his licence without having to wait for the director to arrive. The licence must be an incentive to use his licence as a handbook to guide him in the conduct of his business. He must be in fear of having to make recompense for damage caused if he wilfully or negligently ignores his licence. He must

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have an incentive to reconcile his motivation for profit and a greater market share with the need to operate within the defined system in the interests of competition and public service, which lie at the very heart of the Bill.
The solution being put forward in this amendment is to make the licensee liable for all damage which he may cause if he breaches a condition of his licence. This is after due process; having been found to be in breach of a licence condition and having had an order issued to him, a licensee will be liable to an action for damages for all the losses he has caused to the third party. This is only just. I cannot believe that Parliament would wittingly create injustice.
My noble friend the Chancellor of the Duchy of Lancaster, in the course of answering the eloquent opening innings to this stage of' the Bill by the noble Lord, Lord Lloyd of Kilgerran, said at his sepulchral best:
"If anyone thinks that the director is failing to carry out any of these functions, then he can be challenged in the courts. I know that it would be exceptional for anyone to challenge the director in this way, but the fact that he can be challenged is a very effective sanction". [Official Report, 12/3/84; col. 495]
With that I must respectfully agree because, when damage is ensuing, access to the courts is an extremely effective sanction. Hence the purpose of this amendment. But my noble friend said that such action would he both an "exceptional" and a "very effective" sanction. Those two statements are quite irreconcilable.
My noble friend implied that it was "exceptional" because, I suggest, he is well aware that a writ of mandamus rarely succeeeds. If it so rarely succeeds, then surely it follows that it is unlikely to be a "very effective" sanction. My amendment seeks to make the enforcement of the licence conditions an effective sanction, to ensure good behaviour by licensees—not merely to pay lip service to a theoretical legal right which cannot in practice be taken up. On the basis of his earlier argument, I hope that my noble friend will be able to accept this amendment.
This Bill as presently structured is what Jeremy Bentham called "dog law". By that he meant that when one wishes to stop one's dog from doing something that is not liked, one waits until the poor beast does it and then beats him. This amendment is entirely consistent with the Government's policy. It does not make for a multiplicity of litigation, for an action can only be brought after a breach of the licensing conditions has been established by the director and he—the director—has issued an order. There is a further safeguard to prevent frivolous lawsuits because the director has to give his written consent to the suit and need not do so if he considers the case to be of a trivial nature, or that pecuniary damage lies only in the heart and mind of the complainant. There is also written into the amendment reasonable defence, if the licensee has taken reasonable care to keep to his licence.
This amendment lies within the fundamental premise of Government policy, in that the regulation remains firmly and irrevocably in the hands of the director. My right honourable friend the Minister of State has drawn attention to the policy of regulation with a light rein. This amendment goes even further: it
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positively encourages self-regulation. It would, in a way, serve an even more important purpose in practice. It would relieve the burden of Oftel and act as an incentive not to breach a licence condition. It would remove the director from the firing line and meet the Government's requirements by keeping the director out of the way of internecine struggles in the industry, thus releasing him to create a healthy environment in which to encourage dynamic endeavour in the telecommunications field.
At this eleventh hour, I ask my noble and learned friend on the Front Bench to consider carefully. Your Lordships will appreciate that this is a point of legal principle—namely, that the state should never deprive the citizen of access to the courts when he suffers an injustice. I ask my noble and learned friend the Minister and all your Lordships to stand back and think again about this principle. If all the aspirations for a new era in telecommunications development are covered in the Bill, and if all the protections for the public are built into the Bill, will the system work at the end of the day? I suggest to your Lordships in all humility that without a simple mechanism for self-regulation there is a major omission.
4.15 p.m.
Lord Lloyd of Kilgerran: My Lords, as my name has been mentioned in connection with this amendment, perhaps I may very briefly add an epilogue to the long and clear statement made by the noble Lord, Lord Morris. What attracted me about this amendment was that it seemed to deal with a mischief and that it was worth trying to fill that kind of lacuna. In brief, the purpose of this amendment is quite simply to ensure that a licensee conforms to his licence at all times and cannot ignore the licence conditions without penalty until such time as the director general makes an investigation.
It seems to me that this amendment, as explained by the noble Lord, Lord Morris, goes a considerable way towards ensuring that the objectives of the Bill—particularly as set out in Clauses 3 and 8—can in practice, when transcribed to licences, be enforceable. In view of the long explanation which the noble Lord has given, and in view of the, I hope, accurate summary which I have attempted to give—and the noble Lord, Lord Morris, seems to be nodding his head in agreement—it appears that this amendment is one that the Government ought to take back and think about again.
Lord Donaldson of Kingsbridge: My Lords, perhaps I may seek a word of explanation from the noble Lord when he exercises his right of reply. I am not quite clear about one aspect. He has shown that there will he a gap between the commission of an offence—a breach of the licence—and the pouncing upon it by the director. But, if the first breach causes damage to anybody, the director has a right of law without this amendment. If it does not cause damage, the director will not need it. That is what puzzles me.
Lord Elystan-Morgan: My Lords, we on these Benches have very considerable sympathy with and respect for the motivations which lie at the root of this amendment. As we understand it, this amendment is

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an exhortation to the House to express yet again its horror at the possibility of a retrospective mechanism operating in this context.
As I understand it, the situation under Clause 17(1)(b) of the Bill is that before a final order or the confirmation of a provisional order occurs, the director must have stated formally the relevant conditions of the licence and the acts or omissions which in his opinion constitute a failure to comply. In other words, he will have set out clearly his own judgment in relation to a set of facts. It may well be that, whereas those facts would have been known to all and sundry previous to that decision, it is only the conclusion of the director which adjudicates in a quasi-judical way in an area that may be regarded as a grey area of some dubiety.
Reading Clause 18(5) of the Bill, it therefore seems to me that it is only from that moment onwards that the statutory obligaton to comply with that final order is brought into being. It must be so, because it is that very mechanism which has brought about a final order. Clause 18(6) then spells out the consequences of failing to comply with that order.
In the light of the very pertinent question asked by the noble Lord, Lord Donaldson of Knightsbridge—
Noble Lords: Lord Donaldson of Kingsbridge!
Lord Elystan-Morgan: I am sorry, my Lords—there is a great difference between a knight and a king. In the light of the noble Lord's question, is it the situation, then, that the liability of the operator runs only from the time of the making of the final order or the confirmation of a provisional order, and that there never was any liability previous to that? If there was, then it does seem to me that the fault of retrospective action can indeed lie in these provisions and that would be a very serious matter.
Lord Peyton of Yeovil: My Lords, I had rather hoped that my noble and learned friend the Lord Advocate would leap to his feet after the noble Lord, Lord Morris, had concluded his remarks and say that, at least in principle, he would accept this amendment. Perhaps I can suggest to him a plea that he will now apply to the amendment of the noble Lord, Lord Morris, the same somewhat relaxed standards which he applied to those amendments he moved earlier today.
The amendment may be not without blemish but it does at least seem to me, and perhaps to your Lordships' House, that it seeks to remedy a serious defect. As I understand it, the noble Lord. Lord Morris, in the course of his speech came to the nub of the point, which seems to be that an operator—who enjoys very great privileges under a licence—will incur no penalty whatever for a breach of a licence condition until such time as an order or a provisional order is made; and only from that moment will the injured party be able to recover compensation for any injuries suffered. If that is correct, and if that is all there is to be said on the issue, I cannot see that my noble and learned friend would not be well advised to leap to his feet with alacrity and accept that there is justice in this plea and say that if the noble Lord. Lord Morris, has
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not hit the nail completely on the head he will nevertheless, at a later stage, produce an amendment which may even go beyond his own high standards.
Viscount Trenchard: My Lords, let me add one comment to what my noble friend Lord Peyton of Yeovil has just said. If we are talking of days, weeks or even months, as a regular occurrence, one might not think the importance of this point was so great. However, thinking about the situation leads me to believe that in the majority of cases by the time a practice has been discerned, by the time it has been brought to the attention of the director, by the time he has investigated it, and by the time he has declared himself, we shall, in the majority of such cases if they arise, have covered a period of, probably, years. In that situation I feel that the spirit of the amendment of my noble friend Lord Morris must be met and I hope very much that my noble and learned friend on the Front Bench will be able to tell us how he is to do that.
Lord Campbell of Alloway: My Lords, may I also briefly support the general spirit of this amendment. May I ask my noble and learned friend whether he can confirm to the House that there is in the Bill no obligation whatever to work the licence and no machinery for revocation if it is not worked? If that were so, surely in the public interest it would require looking at.
Secondly, and this is my final question, may I respectfully ask my noble and learned friend to consider that damages for breach of any form of statutory duty are never recoverable unless expressly so stated in statute. In this case, is it not right to import an obligation into the statute to give rise to such compensation?
Lord Spens: My Lords, I too should like to support this amendment and following on the remarks of the noble Viscount, Lord Trenchard, I should like to draw attention to a Question for Written Answer which is down in my name and indicates that the Office of Fair Trading has taken more than two years to reach a conclusion. That, I think, is likely to be the length of time that the director of British Telecom may take before he reaches a conclusion.
Lord Mackay of Clashfern: My Lords, may I first of all indicate the general position, as I see it, and then try to deal with some of the particular matters that have been raised by your Lordships on this amendment. The thrust of this Bill is to impose conditions on those who hold licences and it is clear that the intention is that they should comply with those conditions, the enforcement mechanism being through the director general. I should first like briefly to remind your Lordships that we have decided that licence conditions should not be directly enforceable in the courts by individuals affected, but rather that it should be a matter for the director general and his specialist staff. First, we wanted to ensure that there are swift, cheap and effective enforcement procedures. I emphasise "cheap" because it is one of the intentions that the enforcement procedures should be cheap so far as those concerned are affected by them, and also that they should be swift and effective. I must say that I should have thought the sort of periods referred to by

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my noble friend Lord Trenchard and by the noble Lord, Lord Spens, could not be regarded as very swift enforcement. I certainly hope, and it is our intention, that the enforcement procedures should be a great deal better than that.
Secondly, we recognise that individuals—and it is often the individual subscribers and small firms who have most problems with these matters—do not have the technological and legal understanding to mount effective action themselves. Thirdly, as I said when we discussed my noble friend's Amendment No. 100 in Committee, we wanted to avoid the problems which have been experienced elsewhere of excessive litigation. Fourthly, and this is a very important matter, it is clear that in some areas we cannot draw up very precise licence conditions so that there will inevitably be some uncertainty about exactly how they are to be interpreted. We believe that it is better to give this task to the director who is in a better position than the competitors to make judgments about, for example, the acceptability of pricing arrangements.
Nonetheless, I accept that there is a point of substance here; namely, whether or not the Government have done enough with their proposed enforcement procedures to ensure that licensees do comply with their licence conditions. I believe that we have. In particular the power for the director to make a provisional order where he judges it necessary, combined with a clear duty on him to take enforcement action unless either the breach of the relevant licence condition is trivial or such action would be precluded by the Clause 3 duties, provides precisely the kind of strong deterrent that the proposers of the amendment are seeking. He will be able to take action very quickly in circumstances where serious damage is being done by issuing a provisional order which can, if necessary, take effect immediately. Thus it will not be possible for licensees not to comply with their licence conditions for significant periods of time without being subject to the director's powers of enforcement and hence subject to action for damages.
The amendments your Lordships have already accepted to Clause 16 mean that licensees will not be able to get away with complying only intermittently with their licence conditions. If a licensee fails to comply with the terms of a provisional order (or a final order) anyone suffering damage as a result of the breach of the initial order will be able to claim compensation from the date of that first order. Thus, it seems to us that the real concern here, which is that a licensee could quite deliberately fail to comply with a licence condition without running the risk of attracting any penalty for a significant period, is fully met. I emphasise that the provisional order procedure is intended to enable the director to act swiftly without the kind of detailed investigation which is obviously needed before a final order is made or a provisional order confirmed.
The Government amendments to Clause 18 which we have just discussed mean that individuals will be able to enforce provisional orders from the moment they are made, without waiting for the orders to be confirmed. We dealt with that and I indicated my concern about that matter to your Lordships. What the present amendment proposes is that where an enforcement order has been made, and subject to the
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director's written agreement, the person suffering damage should be able to seek compensation in the courts from the moment of the breach of the licence condition. I would not deny that there is some superficial attraction in this proposition as an incentive to self-regulation. If I had yielded to that superficial attraction, I should indeed have leapt to my feet and said that we accepted the amendment in principle. But I would suggest that in principle there are two compelling arguments against it.
First is the difficulty in many cases of ascertaining when the act of non-compliance with a licence condition actually commenced. These things are apt to develop. Secondly, and more significantly as I have already suggested, many of the matters referred to in licences will involve the director in making a judgment as to whether or not a particular activity is in conformity with the licence obligation. Thus making the breach of the licence condition itself open to claims for damages could produce very great uncertainty for the licensees. It is possible that at one moment in time, the director acting, I would remind the House, under his Clause 3 duties, could decide on investigation that a particular activity was consistent with a licence condition. Indeed, the licensee might well have sought the director's advice before embarking on a particular course of action. The licensee would then be in the position of believing that his action was in accordance with the conditions in his licence. If at a subsequent date—perhaps when a complaint was made—the director having considered what was put before him came to a different conclusion, the effect of the proposal would be that the licensee would be exposed to potentially heavy claims for damages in relation to activities that he had judged, in the light of the director's advice, to be perfectly consistent with the conditions in his licence.
In short, there is a balance to be struck between the different interests involved in this area. What the Bill seeks to achieve is a regulatory framework that will be fair to all licensees and all those who may be affected by their actions. I hope therefore that my noble friend and those with him who support the amendment will not seek to press it.
I should like briefly to deal with the remarks made by the noble Lord, Lord Elystan-Morgan. If I understood correctly what he was saying, I think that it gods against the amendment rather than being in its favour. What we have proposed in the Bill is that once a provisional order is made, that will provide a duty, and that duty, if breached, of course will provide liability in damages. As I understand my noble friend's amendment, he proposes that liability and damages should go back before the date of that order to some earlier time at which the original breach may have occurred. With great respect, that seems to me to be much more retrospective than what we are proposing.
We are proposing that the obligation to pay damages should arise when the provisional order is made, although of course the full justification for the provisional order will not come along until the time at which, as the noble Lord pointed out, the provisions of Clause 17(1) will operate. What we are saying is that the liability to damages should arise at the earliest possible moment; that is to say, when the director general decides that a provisional order is made—that

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is the day on which the duty starts—and then will be measured, as it were, by reference to that provisional order.
4.33 p.m.
Lord Elystan-Morgan: My Lords, I wonder whether the noble and learned Lord will kindly deal with one matter which was very much at the root of my questions, and that is the matter which was raised by the noble Lord, Lord Donaldson of Kingsbridge. Apart from the mechanism spelt out in Clause 17 of the Bill, is there not a power in a claimant in any event to make a claim for the breach of this statutory provision? In other words, does that run parallel apart from the machinery that is spelt out in the Bill? That was the matter which greatly exercised my mind.
Lord Mackay of Clashfern: My Lords, the situation is that breach of a licence condition is not made actionable of itself. In other words, what is actionable, and the only right of action which arises, is where a breach is ajudged by the director general to have taken place and he expresses that judgment either by a provisional order or by a final order. It is in respect of an order of the director general that liability to damages arises.
In my view, this has the great merit of precision and it allows a measure of judgment to the director general in relation to licence conditions, which my noble friend's amendment would not. One of the consequences of my noble friend's amendment—and it is a very important consequence in principle—is that the licence conditions would require to be specified with the sort of precision that would be required for an enforceable legal obligation without any judgment being made on the particular effect of the licence conditions in particular circumstances, which is retained by the system that we have suggested.
Lord Bruce of Donington: My Lords, will the noble and learned Lord give way on one small question? When he was replying to my noble friend he said that the duty became established from the date on which the provisional order was made. Does not the duty under the licence remain there all the time? Is not there a breach of that duty the moment that it is apprehended that a breach has in fact taken place, rather than when a ruling has taken place?
Lord Mackay of Clashfern: My Lords, there is a duty which is actionable in law under the Bill from the time when the provisional or final order is made. There is no duty actionable in law under the Bill as it stands at an earlier time than that for the reasons which I have sought to explain. I think that the noble Lord. Lord Elystan-Morgan, in putting forward what he did earlier was really raising that question. If one answers that question in the way that the Bill does, then it follows that the correct procedure for enforcing these orders so far as damage is concerned is in respect of the orders and not in respect of the conditions in the licence. But of course the whole thrust of the Bill is that the licence conditions are to be obeyed and that the enforcement mechanism for making sure that they are obeyed is the director general with his powers.
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For the reasons which I have explained, that seems to us to be the most satisfactory and practical system in the circumstances. I accept at once that it is a corollary of this being an acceptable system that the director general should be able to act very swiftly. One of the reasons for the provisional order procedure is just in order to enable him to do that. I believe that with that incentive, as it were—with that as part of his duty—the difficulty which my noble friends have felt with these provisions may well be coped with.
Viscount Trenchard: My Lords, before the noble and learned Lord sits down, may I just ask him this? He has gone some way to relieve my fears by pointing out that the date for damages is effectively the issue of the provisional rather than the final licence. But if heavy damages have in fact occurred before the issue of the provisional order—heavy damages which might be extremely serious to a small firm—am I to understand that the Government are not prepared to consider any way of meeting that point in the Bill and that those damages which have actually been incurred by the breaking of a condition of the licence are not recoverable, and the firm has no redress?
Lord Mackay of Clashfern: My Lords, it is a question of whether one can assume that heavy damages could have occurred before the director general takes action. The system is designed to enable the director general to take action in time, really, to prevent the occurrence that my noble friend fears. I believe that speed of action is the key to this matter, but it is a corollary of what I have said: that there is no legal right conferred by the Bill to recover damages in respect of matters before the date of the provisional order. I have sought to explain the reason for that and the background to that, but I do not accept that the situation which my noble friend Lord Trenchard is concerned about should be allowed to arise because the remedy for it is speed of action on the part of the director general.
Lord Weinstock: My Lords, before the noble and learned Lord sits down I wonder whether I can ask him if he is telling the House that what matters, so far as this legislation is concerned, is not the Bill and is not even the licence, but is the arbitrary interpretation put upon the licence by the director general?
Lord Mackay of Clashfern: My Lords, I think one of the objections that sometimes one gets, in the courts, to questions is that they admit of only, as it were, a "yes" or a "no" answer. The noble Lord, Lord Weinstock, is asking me whether everything is committed to the arbitrary judgment of the director general. Of course the answer to that is that these matters are committed to the judgment of the director general but he has very clear obligations with which to comply in coming to these judgments. He has very clearly defined duties and an obligation, as I pointed out, to take action if there is non-compliance. So it is not a question of arbitrary judgment in the sense of judgment which is not properly principled and not in accordance with the law: it is a judgment in accordance with a very full, and fully set out, range of statutory duties.
Lord Stoddart of Swindon: My Lords, I am most obliged to the noble and learned Lord for giving way. We understand of course that he has just said that the director general would resort to speedy action in order that there should not be great damages before that action was taken; hut, bearing in mind that the Government have already assured the House that the number of staff will he kept to the bare minimum, can he give us the assurance that the director general will have the facilities and the resources to react very quickly in order that people are not damaged?
Lord Mackay of Clashfern: My Lords, the noble Lord used the phrase "bare minimum", and of course it is the bare minimum to do what? It is the minimum necessary, the staff necessary, to achieve the objects, or the duties placed upon the director general, and one of the objects is that he be in a position to react swiftly to this particular matter. I have no reason to suppose that those who have willed this end for him will not will the appropriate means. That does not mean that he will have an unnecessarily large number of people: it just means that he will have the correct number of people to discharge his function.
Lord Campbell of Allow ay: My Lords, before the noble and learned Lord sits down, could he very kindly deal with the question, which I tried to raise, about the position of the grant of licences that are simply not worked, which could give rise to problems? Is this so? Can they be revoked? What is the attitude of Her Majesty's Government?
Lord Mackay of Clashfern: My Lords, I am not absolutely certain that I have comprehended precisely what the question is that my noble friend is putting to me, if I have not dealt with it already. I thought I explained that the enforcement machinery for the licence conditions—and we take the view that the licence conditions are there to be obeyed—is the director general with his powers. Therefore I think I have met the point which the noble Lord was putting to me.
It is not a question of licence conditions just there in the air for the interest of anybody who happens to he passing and might wish to read them: these licence conditions are there to be obeyed, and the full authority of the director general is there to make sure that that is what happens. Of course, that is one of his primary functions: to make sure that the licence conditions are properly obeyed and that damage is not done to anybody by licence conditions being breached. That is part of his responsibility.
Lord Peyton of Yeovil: My Lords, before my noble and learned friend sits down—and I am sorry to get in between him and a more or less final resting place—would he bear in mind that the swiftness to which he has been referring is not generally recognised to be a prime characteristic either of Government departments or the creatures set up under statute? There are delays and would it not be as well for my noble and learned friend now to admit that there is at least a possibility that something might go wrong; that somebody might suffer damage and that an opportunity ought to be afforded under the Bill for him to recover damage should it occur?
Lord Mackay of Clashfern: My Lords, one of the difficulties is that one has to cut one's obligations in a particular way. If too much is done to undercut the need for that, the very difficulty that my noble friend is suggesting may well arise. It is of the essence of the proper performance of the job of the director general that he should act quickly, and swiftly. I am not—certainly as at present advised—inclined to do anything which would in any way undermine the importance of swiftness of action by the director general. The other point is, as the noble Lord, Lord Elystan Morgan, pointed out. that if you go back to the period before the provisional order is made, you are in an element of retrospection which, as he pointed out, could be regarded as rather damaging. Therefore, while I accept—and my noble friend has much more experience of this matter than I have—that some Government departments might not move as quickly as others would like to see them move, and some agencies of Government might be like that, we believe that it is essential for the director general to be able to move very quickly, and that it would be wrong to put something into the Bill which is in the Bill only upon the assumption that he is not able to move fast enough.
I hope that with these considerations in mind, my noble friends will enable me ultimately to get to this resting place; but I accept that the issue in question is a very important one and we will certainly bear in mind, in considering this, all that has been said. I appreciate what my noble friends and what others have said, and we will certainly take that very much into account in considering whether anything further should be done. But as matters stand, I consider that the disadvantages of this amendment would probably outweigh the advantages. I therefore am not in a position to advise your Lordships to accept it, even in principle.
Lord Spens: My Lords, before the noble Lord sits down can he show us anywhere where swiftness of action by the director is written into the Bill?
Lord Mackay of Clashfern: My Lords, the swiftness of action is written into the Bill by the obligation to carry out enforcement. That is the place where swiftness of action is implied, if swiftness of action is required. He has the duty of enforcement. As I said, it seems to me, in the nature of matters, that swiftness of action is required for enforcement in this area, at least from time to time.
Lord Morris: My Lords, first of all I am most grateful to the noble Lords from all sides of the House who have spoken so beautifully in support of this amendment, and in particular to the noble and learned Lord on the Front Bench of the party opposite. I suppose it is absolutely right and proper that any Lord Advocate should be just that—a great advocate. When any advocate has a problem in a particular case, one way of handling it is first to set up a totally false premise in order to knock down the other side's case. That is, of course, what he did with commensurate skill. He suggested—and this is entirely misleading—that the complainant, or the citizen who has been wronged, will have the duty or the right to enforce a licence condition. He will not have the right to enforce a licence condition. The only thing that the

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amendment would give the wronged person is access to the courts to have damages granted to him for pecuniary loss that he has suffered by the negligent or wilful action of another licensee. That can only be just.
There has been reference to the United States experience of the multiplicity of litigation. Any of your Lordships who has ever paid legal fees will know that in this country it is really a nonsense. One only goes to law with the greatest of care. But the legal system in the United States encourages multiplicity of litigation by the way that fees are charged. My noble and learned friend referred to the uncertainty that licensees would suffer under this amendment. It lies entirely in the breast of the licensees to negotiate their licences in the terms best suited to themselves and in terms best suited to the other side; namely, the Director General of Telecommunications, who has the interest of the whole of the industry at heart and, indeed, the national interest. It is at that stage that he can have the protection that he needs.
The vitally important point made by noble Lords on the Benches opposite about retrospection needs to be dealt with. I shall do so quickly. When a licensee is in a position where he can freely ignore the terms of a licence and is encouraged to be negligent about the terms of his licence, he will not be worried about where the wrong starts or where it ends. He knows that he will have a warning as soon as the director moves in, even on a provisional licence. I cannot accept my noble and learned friend's argument about acting swiftly. If he acts swiftly, he will undoubtedly act unjustly to those against whom the complaints will be made. He has to satisfy himself in all justice that there is some soundness in the complaint. As so many noble Lords have wisely pointed out, government departments—or, indeed, sub-departments of government, or whatever you wish to call them—do not have a very good track record in acting as greyhounds. I finish by quoting yet again Jeremy Bentham, who, when referring to the danger of dog law, wrote:
"God bless the parliament!—No dog-law!—Parliament for ever!".
4.53 p.m.
On Question, Whether the said Amendment (No. 78) shall be agreed to?
Their Lordships divided: Contents, 113; Not-Contents, 102.

DIVISION NO. 2

CONTENTS

Aberdeen and Temair, M.

Broadbridge, L.

Ailesbury, M.

Brockway, L.

Airedale, L.

Brooks of Tremorfa, L.

Amherst, E.

Bruce of Donington, L.

Ampthill, L.

Caradon, L.

Aylestone, L.

Carmichael of Kelvingrove, L.

Banks, L.

Cledwyn of Penrhos, L.

Beaumont of Whitley, L.

Collison, L.

Birk, B.

Congleton, L.

Bishopston, L.

Cooper of Stockton Heath, L.

Blease, L.

Darling of Hillsborough, L.

Blyton, L.

Davies of Penrhys, L.

Boston of Faversham, L.

Dean of Beswick, L.

Bottomley, L.

Delacourt-Smith of Alteryn, B.

Briginshaw, L.

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Denington, B.

Mayhew, L.

Diamond, L.

Mishcon, L.

Donaldson of Kingsbridge, L.

Molloy, L.

Donnet of Balgay, L.

Morris, L. [Teller.]

Elwyn-Jones, L.

Mottistone, L.

Elystan-Morgan, L.

Mulley, L.

Ennals, L.

Northfield, L.

Ezra, L.

Ogmore, L.

Fisher of Rednal, B.

Oram, L.

Gaitskell, B.

Orr-Ewing, L.

Gallacher, L.

Peart, L.

Gladwyn, L.

Peyton of Yeovil, L.

Glanusk, L.

Phillips, B.

Graham of Edmonton, L.

Ponsonby of Shulbrede, L.

Grimond, L.

Rhodes, L.

Hale, L.

Ross of Marnock, L.

Halsbury, E.

Sainsbury, L.

Hampton, L.

Saltoun, Ly.

Hanworth, V.

Seear, B.

Harris of Greenwich, L.

Shackleton, L.

Henley, L.

Shinwell, L.

Hereford, Bp.

Somers, L.

Hylton-Foster, B.

Spens, L.

Ilchester, E.

Stallard, L.

Irving of Dartford, L.

Stamp, L.

Jeger, B.

Stedman, B.

Jenkins of Putney, L.

Stewart of Alvechurch, B.

John-Mackie, L.

Stewart of Fulham, L.

Kaldor, L.

Stoddart of Swindon, L.

Kearton, L.

Stone, L.

Killearn, L.

Strabolgi, L.

Kilmarnock, L.

Strauss, L.

Kinloss, Ly.

Tavlor of Blackburn, L.

Leatherland, L.

To'rdoff, L.

Listowel, E.

Torphichen, L.

Llewelyn-Davies of Hastoe, B.

Trenchard, V.

Lloyd of Hampstead, L.

Underhill, L.

Llovd of Kilgerran, L. [Teller.]

Wallace of Coslany, L.

Wells-Pestell, L.

Longford, E.

Whaddon, L.

Lovell-Davis, L.

Wigoder, L.

Mclntosh of Haringey, L.

Wilson of Rievaulx, L.

MacLeod of Fuinary, L.

NOT-CONTENTS

Ailsa, M.

Gainford, L.

Alexander of Tunis, E.

Gardner of Parkes, B.

Allerton, L.

Gibson-Watt, L.

Atholl, D.

Glasgow, E.

Auckland, L.

Glenarthur, L.

Avon, E.

Gray of Contin, L.

Bauer, L.

Gridley, L.

Belhaven and Stenton, L.

Hailsham of Saint Marylebone, L.

Bellwin, L.

Belstead, L.

Harvington, L.

Bessborough, E.

Holderness, L.

Campbell of Alloway, L.

Home of the Hirsel, L.

Chelwood, L.

Hornsby-Smith, B.

Cockfield, L.

Ironside, L.

Coleraine, L.

Kaberry of Adel, L.

Cottesloe, L.

Kinnaird, L.

Craigavon, V.

Lane-Fox, B.

Craigmyle, L.

Lauderdale, E.

Crawford and Balcarres, E.

Long, V.

Cullen of Ashbourne, L.

Lucas of Chilworth, L.

Denham, L. [Teller.]

Lyell, L.

Dilhorne, V.

McAlpine of West Green, L

Drumalbyn, L.

Mackay of Clashfern, L.

Ebbisham, L.

Macleod of Borve, B.

Eccles, V.

Mancroft, L.

Ellenborough, L.

Margadale, L.

Elliot of Harwood, B.

Marley, L.

Elton, L.

Maude of Stratford-upon-Avon, L.

Enniskillen, E.

Fairhaven, L.

Merrivale, L.

Faithfull, B.

Mersey, V.

Fanshawe of Richmond, L.

Middleton, L.

Fortescue, E.

Milverton, L.

Fraser of Kilmorack, L.

Molson, L.

1005

Mountgarret, V.

Sempill, Ly.

Murton of Lindisfarne, L.

Skelmersdale, L.

Northchurch, B.

Stodart of Leaston, L.

Nugent of Guildford, L.

Sudeley, L.

Onslow, E.

Suffield, L.

Orkney, E.

Swansea, L.

Pender, L.

Swinton, E. [Teller.]

Penrhvn, L.

Teviot, L.

Plummer of St. Marylebone, L.

Thomas of Swynnerton, L.

Thorneycroft, L.

Porritt, L.

Trumpington, B.

Rankeillour, L.

Vaizey, L.

Reay, L.

Vaux of Harrowden, L.

Reigate, L.

Vickers, B.

Renton, L.

Vivian, L.

St. Aldwyn, E.

Westbury, L.

St. Davids, V.

Whitelaw, V.

Saint Oswald, L.

Wynford, L.

Selkirk, E.

Resolved in the affirmative, and amendment agreed to accordingly.
5.2 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 79:
Page 23, line 3, leave out from ("all") to ("the") in line 4 and insert ("reasonable steps and exercised all due diligence to avoid contravening")
The noble and learned Lord said: My Lords, this amendment removes the requirement that, in order to have a force majeure defence in an action for a breach of an order made under Clause 16, the operator must have taken:
"all such steps as were reasonably practicable to comply with the order".
Instead, if the amendment is accepted, he will need to have taken only:
"all reasonable steps and exercised all due diligence to avoid contravening the order".
The amendment is intended to avoid placing overheavy burdens on an operator. A requirement to take all steps that are reasonably practicable really amounts to a requirement to do everything that is not impossible. This could mean that an operator could be forced to take very expensive steps to comply with an order which, for example, in British Telecom's case could push up telephone bills. The Government think it right not to impose such a strict requirement and we believe the new formula provides full protection for those who may be damaged by an operator's failure to comply with an order, while providing better protection for telecommunication operators. My Lords, I beg to move.
On Question, amendment agreed to.
Lord Bruce of Donington Lord Bruce of Donington moved Amendment No. 80:
Page 23, line 4, at end insert—
("()In any proceedings against any person (which, for avoidance of doubt, includes a trade union) in pursuance of subsection (6)(a) or (6)(b) above it shall be a defence for that person to prove that he did the act in contemplation of furtherance of a trade dispute.
The noble Lord said: My Lords, this amendment is designed to ensure that, in the event of breaches of the provisions of orders that are dealt with in Clause 18, in any proceedings which are brought against any member of a trade union or any person there should not be the onus on that person of having to fight any
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action for civil damages. The amendment appears at page 23, line 4, where it inserts:
"In any proceedings against any person (which for the avoidance of doubt, includes a trade union) in pursuance of subsection (6)(a) or (6)(b) above it shall be a defence for that person to prove that he did the act in contemplation or furtherance of a trade dispute".
The ultimate way, of course, of interfering with the carrying out of the provisions of a licence may well be for the workforce, or selected portions of the workforce, to go on strike. This amendment is all about the maintenance of the rights of trade unions and of individual trade unionists in such circumstances.
It should perhaps be borne in mind that we are not discussing this amendment within the context of large-scale or even intermittent interruption of the telecommunications services in this country by the employees of British Telecom. The history of the employees of British telecoms for the past 100 years, taking into account when the services were provided through the Post Office before the division, has been one of industrial peace. The ideal of the employees of the telephone service (if I may use the term loosely) has been that of service, and it is quite immaterial for present purposes that that attitude of service should have been regarded in some more commercialised quarters as being somehow tainted with service in the telephone system.
The fact of the matter is that the history of this industry has been one of industrial peace. It is desired earnestly that that industrial peace should be preserved. As your Lordships will undoubtedly know from observations that have been made publicly in the press, in the media, and in another place, this is a time of some considerable anxiety to the entire labour force employed by British Telecom. They have already made known their views—to which, of course, they are entitled—on the privatisation of British Telecom. It may well be that their objection is grounded on the normal logical reasoning that could be quite usefully employed by people not engaged in the industry. It may also well be that their opposition arises to some extent from their anxiety for the future and, above all, from their anxiety as to the continued ability to exercise their rights as they have hitherto understood them.
So it is not a question of fighting for the right to strike on the basis of there being the likelihood of industrial unrest, or anything like that, within the industry. It is merely a question of the retention of that basic right. Indeed, within another context, I observe that even the party opposite can hardly forbear to cheer when, in Poland, for example, trade unionists exert their right to take industrial action whenever they see fit and whenever they think it is justified in pursuance not merely, in the case of Poland, of an industrial dispute, but of course even a political dispute within the Polish context. So it is to be hoped that, possibly even on a modified scale, the party opposite will this afternoon stand up for that regard for freedom and for liberty which so many of them stand up for and assert in the case of the trade unions of Poland.
In order to understand the reasoning behind the amendment it is necessary to analyse Clause 18, and especially subsections (5), (6) and (7). As currently

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worded, these subsections arose from an amendment introduced during the Bill's Committee stage by the noble and learned Lord the Lord Advocate. During his very careful speech, when he was taxed with this matter, he explained his intentions as follows:
"The main effect of the amendments to Clause 18, which I move now, is to ensure that customers of public telecommunication operators who suffer loss or damage as a result of certain kinds of industrial action are able to sue those concerned. They may also obtain injunctions or interdicts against those responsible. This provides members of the public with a civil remedy against selective industrial action by trades unions and in the circumstances the Government were able to review the provisions of Clause 45 of the Bill which make it a criminal offence for employees of public telecommunications operators to take certain kinds of action there described." [Official Report, 20/2/84; col. 597]
As noble Lords will be aware, under subsection (4) of Clause 18 no criminal proceedings are permitted.
At a later stage, presumably in order to allay some of the fears that had been expressed not only in another place but also in the course of debate upon this particular matter, the noble and learned Lord continued:
"Similarly, a trade union which called an all-out strike of employees of a public telecommunications operator over a pay dispute which resulted in a breach by the operator of his duty to comply with a Clause 16 enforcement order would not, in our view, be liable because the action was not taken with a view to achieving the result of causing the operator to breach his duty. The breach would be an incidental and unintended result of the industrial action". [Official Report, 20/2/84; col. 599.]
That may be the view of the noble and learned Lord the Lord Advocate, but is the noble and learned Lord quite sure that he is right?—because, in fact, a judge would be entitled to take the view that any industrial action would be taken with the express intention of achieving breaches in licence conditions and eventually breaches in orders issued by the director. In a very real sense that would be the whole point of most forms of industrial action. The only forms of industrial action not certain to be covered would be those by staff in issuing customers with telephone bills, and even under those circumstances it would probably be arguable.
Under the provisions of subsection (6)(a), any employee would be liable individually, so that individual employees stand to be bankrupted if they take industrial action. Under subsection (6)(b), individual union officials would also be liable, and could even be liable if they simply asked members to take action. If that is so—and I would suggest to your Lordships that the wording of the whole of Clause 18 has a sufficient degree of dubiety about it—it would mean that the employees of British Telecom would be singled out, as distinct from all other employees who would normally be governed by the Employment Act 1982. We do not think that that is right and we invite the noble Lord to agree with us on this.
The amendment that we have tabled this afternoon does not seek any extra privilege for the employees of British Telecom. It merely seeks to place them on the same basis as employees in other industries. This is not a matter of academic importance. It is not moved by those who sit on this side of the House with the object of buttressing any conceivable kind of militant action taken with the deliberate desire to disrupt a public service. It is not moved in that sense at all. If the noble
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and learned Lord the Lord Advocate is disposed to accept the amendment or, alternatively, if the House is prepared to support it, it will ensure that industrial peace is more likely to be preserved within the telecom industry than if the doubt and the fear remain. I have pleasure in moving the amendment. I beg to move.
5.16 p.m.
Lord Molloy: My Lords, I should like to add just a few points to the superb submission made by my noble friend Lord Bruce of Donington. As he has said, the essence of our amendment is in no way to seek a privilege, but to make good a legal anomaly that was never really intended. I shall say a few words about that later.
The fundamental issue in what we are submitting for consideration this afternoon from this side of the House has been stated by my noble friend Lord Bruce of Donington, and I think it is very worthy of repetition. I want to use the phrase "a group of work people", and that phrase means a group of extraordinarily skilled men and women of high calibre in a specialised industry—an industry which has made a massive contribution to our way of life in the past and in the present and which will undoubtedly do so in the future. It will help all our people—the disabled and the ordinary people as well as commerce, industry and science in the entire field of telecommunications.
Therefore, it is vital that, so far as is humanly possible, anything that could cause some form of industrial action in this field should be eliminated and, indeed, abolished for the sake of the future of the industry, the future of those who work in it and the future of the nation. As has been hinted in some places, this is in no way a desire to enhance secondary action. That is certainly not the idea behind this amendment, and it is certainly not the desire of the people who work in the industry or of their trade union. They appreciate that what may become a tiny cancerous spot in 1984 could start to poison the entire body of telecommunications, perhaps within less than a decade. The people who work in this industry see themselves as victims of legal provisions that were never intended for that purpose. That they have been set aside for special legislation was never intended, but nevertheless they are the victims of special legislation which applies to no one else.
What they are worried about, we would all agree on all sides of the House, is quite right and proper. It is necessary that they would have to negotiate, and perhaps even at some stage have to strike. We would regret it, but it still is a right. It is one of those great rights, the right to strike, which we are always prepared at a moment's notice to thrust into the face of any communist regime, and I hope we always will. Therefore, I ask that this amendment should be given serious consideration this afternoon.
The amendment seeks to ensure that such industrial action does not contravene Clause 41 of this Bill, or indeed Section 45 of the Telegraph Act 1863 or Section 20 of the Telegraph Act 1868, which are vital Acts of Parliament. The sole purpose of this amendment is to place telecommunication workers on a similar footing to most other workers in the United Kingdom. If the Government cannot accept this

1009
amendment in its present form, I hope at least that they will be prepared to take it away and bring it back with its quintessentials intact. If they would accept the principle they would be taking a step which could ensure, so far as is humanly possible, that there would be one element removed that could cause distasteful disruption in British telecommunications' future activities.
I ask that the skilled men and women in British telecommunications, in all the new organisations, shall have the same rights as their fellow workers, which we all agree are fundamental. By seeing that they have these rights afforded to them, we shall at the same time remove a cancerous growth of grievance which could grow in the future and would be to the disadvantage of everyone. It is along those lines that this amendment is worthy of support.
Lord Donaldson of Kingsbridge: My Lords, the noble Lord, Lord Bruce, made it clear that under Clause 18 the ordinary worker in the sort of firm we are talking about will not be in the position of an ordinary worker in a firm of builders, or an insurance company, or a business, who has the right to strike. Personally I think that strikers are not by any means always right, although some of my colleagues in other places think they are, but that is a different point.
I also think that in the next decade or so we have to design machinery of a voluntary kind which will persuade certain workers in key industries to agree, for a compensation of some kind, not to strike. On the face of it as presented—and we have not yet heard the Government's reply—this seems to me to be as a side wind depriving a whole community of workers in various firms all over the country of the rights which other people possess. This we must object to.
Lord Mackay of Clashfern: My Lords, the Government oppose this amendment. In our view this amendment would do serious harm to those who depend on telecommunications, and I shall try to explain why. I first must remind your Lordships that Clause 18 was amended in Committee to put in the provisions that we are dealing with at the moment at the same time as what is now Clause 44 was radically altered.
Under the Telegraph Acts as they are on the statute book at present, and under the Bill as introduced, many forms of industrial action in telecommunications were criminal offences carrying the risk of imprisonment. We amended Clause 44 to provide that industrial action in telecommunications will no longer amount to a criminal offence, and that is an important improvement in the rights of trade unions and their members in this area. I should like particularly to mention that in view of what the noble Lord, Lord Donaldson of Kingsbridge, has said.
We felt able to amend Clause 44 only because of the amendments we made to subsection (6) of Clause 18 and because of the protection that Clause 18 as now amended gives to the people of this country who are dependent upon telecommunications. It is worth reminding ourselves why prevention of the transmission of telecommunications messages is a criminal offence at present. Telecommunications are of vital importance to a great many people, and your
1010
Lordships have been at pains to ensure that the new licensing arrangements guarantee that telecommunications services will be provided in future in rural areas, and so on. An employee of an operator who deliberately prevented the provision of a telecommunication service could, however, thwart all the guarantees that are written into the Bill and into licences. Our Victorian forefathers thought it so important to prevent this that they made such actions criminal offences, and they are still so on our statute book at this moment. That is an important point from which to start.
Clause 18 needs to be seen in the context of the Bill as a whole and the measures it proposes to guarantee the provision of telecommunication services. Each public telecommunication operator will have a licence and Clause 8(1) will ensure that each of their licences will contain formal obligations to provide the services that are specified in each licence. Clause 16 places a duty on the director to ensure that these obligations are observed; if he is satisfied that an operator is committing, or is likely to commit, any contravention of the conditions of his licence, the director has a positive duty to issue an enforcement order, except in the limited circumstances specified in Clause 16(5). Once a Clause 16 order is made, the operator is under a duty to comply with its terms. If the operator does not comply with an order he is liable and can be sued for an injunction, or interdict, or damages.
This carefully prepared arrangement will not protect those who depend on telecommunications if a third party can cause an operator to breach his duty to comply with an order and the third party himself is not liable in damages. We have therefore provided in Clause 18(6) that where an act induces an operator to breach his duty to comply with an order made under Clause 16 or interferes with the performance of that duty, the person who does that act is liable to be sued in exactly the same way as the operator. I think those who propose the present amendment accept this structure since their amendment does not seek to change it.
The noble Lord, Lord Bruce of Donington, in proposing the amendment is concerned about the position of trade unions and their members who take industrial action which causes an operator to breach his duty to comply with a Clause 16 order. We, of course, understand that concern. The noble Lord, Lord Molloy, also spoke to the same effect, voicing that concern. That is why we drafted sub-paragraph (b) of subsection (6) of Clause 18 with particular care. It provides that a person who induces an operator to breach a Clause 16 order shall be liable only if his act is done wholly or partly for the purpose of achieving the result of causing a breach of an order. It is only acts which are done wholly or partly for the purpose of achieving the result of causing a breach that will give rise to actions for damages, injuctions, interdicts, et cetera.
The important thing is that the person who is seeking that remedy will have the burden of proving that that was the purpose with which the act was done. So we are making it plain, as I said when we moved this amendment in Committee, that we are looking to the purpose as being the matter that determines the

1011
issue. So far as we are concerned that appears to be a fair way, to go about it.
Now I turn to the amendment which attacks the matter from a different point of view. In looking at the amendment we have to start from the proposition that customers of the telecommunication operators ought not to have their rights to services interfered with, certainly not when the director has imposed an enforcement order which authoritatively lays down what the operator is to do. We believe that anyone—workers, suppliers, trade unions—who adopts the purpose of bringing about such interference should, whatever other purpose he has in mind, not be able to escape liability. It will, therefore, not be enough for the defendant to show that his main purpose is to secure improved terms and conditions of employment: if his purpose includes a desire to bring about the breach of an order, then he should be liable. Only if that is so will the customer, in our view, be adequately secured.
The effect of the amendment would be to allow a person interfering with an order to escape liability on the ground that his main purpose was to achieve results within the trade dispute field, but he could still have as an additional purpose the object of interfering with the service provided under the order because the amendment deals only with the point that the act is done in contemplation or furtherance of a trade dispute and to escape liability it would be sufficient, therefore, if he could show that his action was wholly or mainly designed to that end.
5.31 p.m.
Lord Donaldson of Kingsbridge: My Lords, will the noble Lord allow me to clarify this? The noble Lord, Lord Bruce of Donington, said in his opening speech that he could not see that industrial action against a company could ever not involve stopping that company from functioning, or risking stopping it from functioning. If that is the case, it means that every industrial action breaches Clause 18(6)(b) and (7).1 do not believe that that is what the noble and learned Lord is saying. If the noble and learned Lord is saying that this is a dispute about pay, or a dispute about hours, which are proper industrial matters to argue about, and the fact that it will have some harmful effects does not make it in breach of this, I shall be content. If he cannot say that—and I do not see how he can—I shall still be disturbed.
Lord Mackay of Clashfern: My Lords, if I could go back for a moment to the provisions of Clause 18(6), what a person founding on Clause 18(6) has to show is not only that the act has the result of breaching the duty (in other words, destroying the service) but that it was done wholly or partly for the purpose of achieving that result. In other words, the purpose was to bring about a cessation of service rather than to secure for the person in question and his colleagues an increase in remuneration.
Lord Donaldson of Kingsbridge: My Lords, I am sorry to come back, but that is exactly what I have just said: that it is impossible to strike against a company without the knowledge that if the strike is successful
1012
one will interfere with its normal performance. It seems to me that it is, in effect and round the corner, removing the right to strike from these people. I do not believe that the noble and learned Lord means to do that, but that is what I think he is doing.
Lord Mackay of Clashfern: My Lords, with great respect to the noble Lord, Lord Donaldson of Kingsbridge, I do not think he is giving enough effect to the use of the word "purpose". It is not just a question of achieving the result. He is saying that any industrial action is likely to achieve that kind of result. We are not saying that that is the test. We are asking: what is the purpose with which this was done? Was it the purpose of achieving that particular result, wholly or partly, or was it the purpose of achieving something completely different; namely, for example, an improvement in the terms and conditions of service of the people in question?
Lord Molloy: My Lords, with the greatest of respect, there seems to be hardly any other reason for industrial disputes. I am not talking about strikes, negotiations, sitting round the table, talking, arriving at some modus vivendi. One does not think that perhaps there is nothing else to do: that all the rich people will be going to witness the Derby on Derby Day, so all the miners will go on strike instead. Those sorts of things do not really happen. That is only in the imagination of stupid people. All we are asking for is what the noble and learned Lord has not yet answered: that these skilled people shall simply have the right that exists for people in other similar parts of industry. All this massive stuff that he has read out in no way seems to answer that question: that if there should be industrial unrest it will come because long negotiation has broken down. This is the point that we are trying to submit, that these people shall in no way be put out on a limb and become some form of industrial lepers simply because they work for the equivalent of British Telecom.
Lord Mackay of Clashfern: My Lords, the noble Lord. Lord Molloy, is not perhaps giving sufficient consideration to what I have put before your Lordships. He talks about "massive stuff" that I have read out. He can describe it in that way if he wishes, but it is important to remember the background and to remember that Parliament long ago thought that it was important to put into the statute book criminal offences in connection with these matters. That is because of the importance that Parliament attached to the giving of these services.
We have felt able—I think this is quite important—to propose changes in that matter by withdrawing the criminal offences, provided that the service is properly protected. We are saying that it should be an act which induces a breach of the duty or interferes with its performance, and which is done wholly or partly "with the purpose of". In other words, the person seeking to found on this has to prove that the purpose of those taking part in this action was to deprive people of the service rather than for the purpose of, for example, improving their own conditions.
Lord Donaldson of Kingsbridge: My Lords, I am sorry to interrupt again, but this is a vital point. The amendment says:
"it shall be a defence for that person to prove that he did the act in contemplation of furtherance of a trade dispute".
This is exactly what the noble and learned Lord says is all right. If so, would it not be much safer to have it here? The employees of British Telecom have asked for this. Is there any point in not accepting it if we are saying exactly the same thing? I think that perhaps we are.
Lord Mackay of Clashfern: My Lords, I have sought to explain that we are not saying precisely the same thing. As far as I understand the amendment, it is saying that it will be sufficient for a person to escape this liability if he shows that his main purpose is, for example, to secure improved terms and conditions of employment. If his purpose includes a desire to bring about a breach of an order, in our view he should be liable. That is the difference between us.
The clause as put in this amendment appears to me to carry with it the result that a person could have a desire to bring about a breach of the order and have a purpose to do that, could have other purposes as well, and could escape liability on that account. That is the difference between us; and in our view the clause as we have drafted it achieves the result that it is only where the person in question has the purpose of achieving a breakdown of service that the person's act will be struck at. In our view that is the correct balance to maintain. We are, after all, removing criminal offences altogether in this area concerning industrial action. It is important to secure that sufficient protection is maintained for that service. We say that is done by the words that we have adopted, where the person seeking to claim against a person who has interrupted the service would have to show that the interruption was done wholly or partly for the purpose of achieving that result—namely, the interruption—rather than, for example, securing an improvement in his or her conditions or the conditions of other people, his colleagues.
Lord Tordoff: My Lords, I can understand the "wholly" part of the Bill. It is the "partly" which is worrying us. It is surely a concomitant of industrial action, of strike action, that you seek to damage the person against whom you strike. It is the necessary corollary of industrial action. It is a thing that one may deplore but it is a fact of life. Surely a court could find easily that, although it was not the primary aim, it was the secondary aim in order to achieve the primary aim. It is the interpretation that the courts might put on the word "partly" that is worrying us on these Benches.
Lord Mackay of Clashfern: My Lords, perhaps, with the leave of the House, I could answer that by saying that, as the noble Lord explained it in the example which he gave, the ultimate result he has in mind is the improvement of conditions. That is the crux of this matter. The word "partly" does not interfere with that in any way; "partly" does not mean that the ultimate purpose is replaced by some intermediate purpose. If the purpose is to achieve the result of improved
1014
conditions, then it is not caught by this. If the purpose of the action is to destroy the service, and that is part of the purpose of the action, it will be caught by this—and, we think, rightly.
Lord Molloy: My Lords, is the noble and learned Lord really saying that what can happen is that the working people will think of some excuse to negotiate about; that they are not concerned about any real reason like poor conditions or better pay; that the object of the exercise is ultimately to have a strike? Is that really what the noble and learned Lord the Lord Advocate is saying? Is that why he cannot accept the amendment?
Lord Somers: My Lords, I quite agree with the noble and learned Lord that there are certain services where strike action should be avoided if possible. I think, for example, of nursing. Would the noble and learned Lord explain one thing which might put at rest the minds of those who are pressing for the amendment? Supposing that there was a widespread feeling of grievance among telephone workers about some conditions of their employment, what would be their possible course of action to persuade their employers that their case was a valid one?
Lord McIntosh of Haringey: My Lords, in order to avoid the noble and learned Lord having to seek the leave of the House too frequently, may I ask further questions which he might like to consider at the same time as those of the noble Lord, Lord Somers? At Committee stage he made a rather seductive speech. It is true that, in taking away the criminal liabilities from the employees of British Telecom and the employees in the telecommunications industry, there was a considerable and welcome concession to the justified fears of those employed in the industry. It is true that at Committee stage he made great play of the phrase, which he has repeated a number of times, about the purpose of the action, whether wholly or partly, being to secure a breach of the operator's liabilities.
However, he cannot make the same seductive speech this time because he has already put through the House the amendments to Clause 16 which change the nature of the argument. The position now is that the director of telecommunications has a duty—a duty which he does not always have to exercise, but it is a duty on him under Clause 3—to take such steps as may be necessary to stop a contravention or a likely contravention of the conditions of a licence. That means that the director of telecommunications has to make up his mind before any such offence takes place, not just whether it contravenes the licence but also whether the action of employees is going to be in accordance with Clause 18(6)(a) and (b). In other words, this is becoming almost a metaphysical question of what is the responsibility of the director of telecommunications. How is he going to make this complicated judgment and say that the operator ought to be prevented from going against the conditions of his licence?
The situation is not what it was in Commitee. The situation is now worse. The threat of litigation is now greater and the threat of civil action—which is what we are talking about; it is not now criminal action—is now that much greater than it was before. It seems to

1015
me that every time the noble and learned Lord seeks to explain the phrase, "wholly or partly" against the purpose, he makes it more and more difficult for himself and more and more difficult for the Government to resist the amendment.
This amendment is absolutely straightforward. It contains no problems of wording, no problems of "wholly or partly", no problems of purpose or of effect. It simply says that employees in telecommunications shall have the same rights—no more, no less—as are enjoyed by other employees under legislation brought forward by this Government. There is here no attempt to repeal the employment legislation of the Conservative Government. We are accepting everything that has been done and accepting that this should be the situation for telecommunications employees. If the Government have any intention other than to discriminate against telecommunications employees, why can they not accept the amendment as it stands?
Lord Mackay of Clashfern: My Lords, if I may, with the leave of the House, answer the question of the noble Lord, Lord Somers, the situation is that our clause does not prevent industrial action, because industrial action will be taken for the purpose of improving the terms and conditions of work of the employees. There is no provision in this Bill which prevents that. What this Bill is dealing with is a situation where employees take action not for the purpose of improving their terms and conditions of employment but for the purpose of bringing about a breach of the licence conditions.
Lord McIntosh of Haringey: My Lords, if the noble and learned Lord will permit me, has there ever been an occasion when employees have voluntarily forgone their wages and incomes for that sort of purpose, as distinct from improving their own conditions?
Lord Mackay of Clashfern: My Lords, if the noble Lord is right—if I may continue, with the leave of your Lordships—then he has nothing to fear from the Bill's provisions and his amendment is utterly worthless. It is because we have to guard against exactly the situation that he is figuring that we need to put in such a clause. Accordingly, the situation is that we are dealing with that position in which the person in question has the purpose not of improving his own terms and conditions but of doing something different, namely, bringing about some interruption of the telecommunications service for some purpose which has nothing to do with that but achieves that result. It is that particular situation we are dealing with. We are not interfering in any way otherwise with the right to strike or the possibility of industrial action by those involved.
If I may come to the substantive point made by Lord McIntosh of Haringey, that the situation is altogether different because of the amendments which I moved earlier to Clause 16, I must say that I cannot see that at all. These amendments deal with a situation where breach of the licence conditions is in contemplation and the director is in the position where he may make an order for enforcement of the licence conditions in a
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situation where he anticipates it likely that they will be breached. This clause will apply in that situation exactly as it would apart from these amendments which I have moved. That is to say that the question is, was the purpose of the action in question a purpose of damaging the telecommunications service, or was it some other purpose? It is for that reason that we say that the clause as drafted is adequate as far as the points made so far are concerned.
The amendment of the noble Lord, Lord Bruce of Donington, would seek to avoid liability if the principal or main purpose was the improvement, for example, of the terms and conditions of employment. But there might be another purpose—namely, the purpose of bringing about a breach of an order made by the director general. We say that, if the purpose includes the purpose of bringing about a breach of the order by the director general, then that is a situation which ought not to be protected.
5.50 p.m.
Lord Mottistone: My Lords, very briefly. I really think that noble Lords opposite have been confusing not only themselves, but possibly noble Lords on this side of the House as well. It seems quite clear from what my noble and learned friend has said—and he has said it many more times than he should have been invited to do on a Report stage—that subsection (6)(b) entirely meets what noble Lords opposite genuinely, legitimately and rightly mean, and, indeed, covers the whole of the amendment that we are discussing in the areas in which it is relevant to what they really want. I do not see that noble Lords opposite need this amendment in addition to subsection (6)(b). If they get it, it will give a loophole for the wrong application of industrial action in a way which it would not be helpful to the users of the telecommunications system or, indeed, to the people who supply the services. I do not think the noble and learned Lord should leap to his feet again on the Report stage of a Bill; it is not the Committee stage. I am just making a statement to say that I think my noble and learned friend the Lord Advocate has made a very good case and I hope the House will support him from all sides.
Lord Stoddart of Swindon: My Lords, I am really quite surprised that the noble and learned Lord the Lord Advocate feels unable to accept our amendment, which in fact would clarify the situation beyond all shadow of doubt. What we are seeking to achieve is that people working in the telecommunications industry should be equal with all other workers—no more and no less. I believe that, as the Bill is drafted and without the amendment we are proposing, telecommunications workers will be in a worse case than any other group of employees throughout the country. I cannot believe that that is what this House intends.
The noble and learned Lord mentioned that at Committee stage the Government had made a great concession by taking the criminality out of any industrial action by telecommunications workers, and that in fact that was a great concession. But that was no concession at all, because no other group of workers throughout the country are involved in a criminal act if they take action in furtherance of an industrial dispute. The noble and learned Lord defended his

1017
action by saying, "Of course, a telecommunications service is vital to many people and many communities". We agree. But of course the electricity and gas services are also vital. There is no service more vital than the electricity service to consumers of all kinds in this country. Indeed, if electricity supplies were interfered with and cut off, our very existence as a civilized nation would be at stake. That is not the case with telecommunications. But telecommunications employees will in fact be in a worse case than will be the employees of the electricity or gas industries. We think that that should not be so.
The noble and learned Lord gives us assurances that all will be well: that, provided any action they take, whether it he local, regional, or national, is in furtherance of a trade dispute and in defence of their conditions of employment and their wages, then they will be safe. But we have only his word for it. The interpretation of this Bill will not be made by the noble and learned Lord the Lord Advocate; it will be made by other people and perhaps eventually the courts. Therefore we believe that, without our amendment, the employees of the telecommunications industry are at great risk and are worse off than other employees up and down the country who are covered by the 1982 Employment Act.
Why on earth cannot the Government rely on their own legislation, which applies in every other industry up and down the country? They appear to believe that telecommunications workers should be in a worse case. But we believe that they should not. We also believe that our amendment would make those workers safe. All we want is for the noble and learned Lord the Lord Advocate to accept that amendment.
There are a number of questions that I should like to ask. For example, what would happen if a local union branch took action over a local dispute concerning, say, installation procedures, and blacked all installation work? What would be their position under present circumstances and without our amendment? If a national union took selective industrial action as part of, say. a wage claim, and the action affected only certain parts of the country, would people in those affected parts of the country take action? Would they be entitled to claim that the telecommunications union was inducing a breach of the licence by causing disruption, if you like, in only one part of the country? What would happen if a union's national leadership asks its members to strike and it is clear to a customer that he will be affected by this, so he switches to an alternative telecommunications operator? Will that customer be able to take action against the union's executive, irrespective of whether the strike finally takes place, on the grounds of the cost to him of switching to another company?
Those are the sorts of question which arise from the present situation. I believe that if the noble and learned Lord does not either accept our amendment or go further than he has done this afternoon, then with regard to industrial relations and industrial action the industry will he treading on a legal minefield which will blow up not only around the trade unions themselves, but around the industry and its customers. I believe that the noble and learned Lord has a duty to this House and, indeed, a duty to the
1018
telecommunications industry either to accept our amendment or to give us the assurance that he will take back what has been said during this debate, reflect upon it, and come forward with something very much better than he has put before us this afternoon.
6 p.m.
On Question, Whether the said Amendment (No. 80) shall be agreed to?
Their Lordships divided: Contents, 82; Not-Contents, 115.

DIVISION NO. 3

CONTENTS

Airedale, L.

Irving of Dartford, L.

Avebury, L.

Jeger, B.

Avleslone, L.

Jenkins of Putney, L.

Birk, B.

John-Mackie, L.

Bishopston, L.

Kaldor, L.

Blease, L.

Kilmarnock, L.

Blyton, L.

Kirkhill, L.

Boston of Faversham, L.

Leatherland, L.

Bottomley, L.

Listowel, E.

Briginshaw, L.

Llewelyn-Davies of Hastoe, B.

Brockway, L.

Lloyd of Hampstead, L.

Brooks of Tremorfa, L.

Lloyd of Kilgerran, L.

Bruce of Donington, L.

Longford, E.

Caradon, L.

Lovell-Davis, L.

Carmichael of Kelvingrove, L.

McIntosh of Haringey, L.

Cledwyn of Penrhos, L.

MacLeod of Fuinary, L.

Collison, L.

Mishcon, L.

Darling of Hillsborough, L.

Molloy, L.

Davies of Penrhys, L.

Mulley, L.

Dean of Beswick, L.

Northfield, L.

Delacourt-Smith of Alteryn, B.

Ogmore, L.

Oram, L.

Denington, B.

Peart, L.

Derby, Bp.

Phillips, B.

Diamond, L.

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L.

Ponsonby of Shulbrede, L. [Teller.]

Elwyn-Jones, L.

Ennals, L.

Ross of Marnock, L.

Ezra, L.

Seear, B.

Fisher of Rednal, B.

Shinwell, L.

Gaitskell, B.

Stallard, L.

Gallacher, L.

Stewart of Alvechurch, B.

Gladwyn, L.

Stewart of Fulham, L.

Graham of Edmonton, L. [Teller.]

Stoddart of Swindon, L.

Stone, L.

Gregson, L.

Strabolgi, L.

Grimond, L.

Taylor of Blackburn, L.

Hale, L.

Tordoff, L.

Hampton, L.

Underhill, L.

Hanworth, V.

Wells-Pestell, L.

Harris of Greenwich, L.

Whaddon, L.

Hooson, L.

Wilson of Rievaulx, L.

Houghton of Sowerby, L.

NOT-CONTENTS

Alexander of Tunis, E.

Craigmyle, L.

Allerton, L.

Cullen of Ashbourne, L.

Atholl, D.

Daventry, V.

Avon, E.

Denham, L. [Teller.]

Bauer, L.

Dilhorne, V.

Belhaven and Stenton, L.

Drumalbyn, L.

Bellwin, L.

Eccles, V.

Belstead, L.

Ellenborough, L.

Bessborough, E.

Elliot of Harwood, B.

Brougham and Vaux, L.

Elton, L.

Broxbourne, L.

Enniskillen, E.

Bruce-Gardyne, L.

Faithfull, B.

Caithness, E.

Fanshawe of Richmond, L.

Campbell of Alloway, L.

Fortescue, E.

Cockfield, L.

Fraser of Kilmorack, L.

Craigavon, V.

Gardner of Parkes, B.

1019

Gibson-Watt, L.

Murton of Lindisfarne, L.

Glanusk, L.

Norfolk, D.

Glasgow, E.

Northchurch, B.

Glenarthur, L.

Nugent of Guildford, L.

Gowrie, E.

Onslow, E.

Gray of Contin, L.

Orkney, E.

Gridley, L.

Orr-Ewing, L.

Grimston of Westbury, L.

Pender, L.

Hailsham of Saint Marylebone, L.

Penrhyn, L.

Peyton of Yeovil, L.

Halsbury, E.

Plummer of St. Marylebone, L.

Hampden, V.

Harvington, L.

Portland D.

Henley, L.

Quinton, L.

Holderness, L.

Rankeillour, L.

Home of the Hirsel, L.

Reigate, L.

Hornsby-Smith, B.

Renton, L.

Hylton-Foster, B.

St. Aldwyn, E.

Inglewood, L.

St. Davids, V.

Kaberry of Adel, L.

Saltoun, Ly.

Killearn, L.

Sandford, L.

Kinloss, Ly.

Selkirk, E.

Kinnaird, L.

Sempill, Ly.

Lane-Fox, B.

Shaughnessy, L.

Lawrence, L.

Skelmersdale, L.

Long, V.

Somers, L.

Lucas of Chilworth, L.

Spens, L.

Lyell, L.

Stamp, L.

McAlpine of West Green, L.

Stodart of Leaston, L.

Mackay of Clashfern, L.

Sudeley, L.

Macleod of Borve, B.

Swinfen, L.

Mancroft, L.

Swinton, E. [Teller.]

Margadale, L.

Terrington, L.

Marley, L.

Teviot, L.

Maude of Stratford-upon-Avon, L.

Thomas of Swynnerton, L.

Torphichen, L.

Merrivale, L.

Trenchard, V.

Mersey, V.

Trumpington, B.

Middleton, L.

Vaizey, L.

Milverton, L.

Vaux of Harrowden, L.

Molson, L.

Vivian, L.

Morris, L.

Whitelaw, V.

Mottistone, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.9 p.m.
Lord Bruce of Donington Lord Bruce of Donington moved Amendment No, 80A:
Page 23, line 4, at end insert—
(" () In any proceedings brought against a trade union under subsection (6)(a) or (6)(b) above the amount which may be awarded against the union by way of damages in those proceedings shall not exceed the limits provided in section 16(3) of the Employment Act 1982.")
The noble Lord said: My Lords, I beg to move this amendment. The House has just decided that civil actions may be brought in certain circumstances in the event of a trade dispute against individual members, and indeed even under the more stringent conditions that are now provided for in the earlier amendments to Clause 16 which were passed earlier. That is now behind us, although I fancy a lot more will be heard about it in the future. This amendment seeks to put the trades unions in the telecommunications industry in exactly the same position as those which are governed by the Employment Act 1982. There, the damages proposed were limited to £10,000 if the union has fewer than 5,000 members; to £50,000 if the union has 5.000 or more members but fewer than 25,000; £125,000 if the union has 25.000 or more members but fewer than 100.000; and £250,000 if it has 100.000 or more members.
The moving of this amendment does not imply our approval of those particular portions of the Act of 1982. In fact we think that most sections in the Employment Act 1982 will not achieve the purposes for which they were designed and will of course at some future stage on the return of a different Government be repealed. But there they are for the moment and this amendment seeks to import exactly the same limitations into the current Bill. I trust that the noble and learned Lord will see fit to accept the amendment. I beg to move.
Lord Mackay of Clashfern: My Lords, the situation so far as this amendment is concerned is that Section 16 of the Employment Act 1982 applies to these provisions in any event, and therefore it appears to us that this amendment is quite unnecessary. If anything else were to be achieved, a specific amendment would have been required. So the provision of Section 16 applies to this, and therefore in our view the amendment which the noble Lord has proposed is unnecessary.
Lord Bruce of Donington: My Lords, I am most grateful for the noble and learned Lord's confirmation that that is the case. I am not a member of the legal profession and my advice up to this time was that the amendment was necessary in order to protect the rights of the telecommunications trade unions. Therefore, on the assurance of the noble and learned Lord that that is not the case, and that Section 16(3) of the Employment Act 1982 does in any case apply, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Register of licences and orders]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 80B:
Page 23, line 33, at end insert—
(";and
(c) every code of practice and other information which may be required to be prepared and published in accordance with a licence and the telecommunications code and every modification, cancellation or substitution of such code of practice and other information.").
The noble Lord said: My Lords, this amendment and Amendment No. 80C—I refer rather a long way ahead and I apologise to your Lordships for that—refer to Amendment No. 129B.
Amendment No. 80C: Page 24, line 4, at end insert—
(" () Where the telecommunications code is applied to any person under section 7 above—

(a) no fee shall be payable under subsection (4) above;

(b) a copy of every document referred to in subsection (2) above shall be supplied by the Director free of charge to every local authority likely to be affected by the telecommunication system governed by the licence: and

(c) every person granted a licence shall provide facilities, at places reasonably convenient for persons likely to be affected by any part of the telecommunication system governed or to be governed by the licence, during normal office hours, to inspect a copy of every document referred to in subsection (2) above and the telecommunications code free of charge and to purchase copies or extracts of such documents on payment of a reasonable fee.").

Amendment No. 129B: Page 122, line 18, at end insert—
("Code of Practice for Telecommunication Installations
.—(1) Without prejudice to the above provisions of this code or to particular requirements of the court or local planning authority, the operator shall install and maintain all telecommunication apparatus in accordance with a code of practice prepared, published and kept up-to-date by the British Standards Institution in accordance with the following subparagraphs.
(2) The code of practice shall be prepared and revised in consultation with representatives of appropriate government departments, statutory bodies, local authorities, telecommunications operators, apparatus manufacturers and suppliers, professional societies, environmental organisations and with the Director.
(3) The code of practice shall be initially published within one year of the commencement of this Act.
(4) The code of practice shall include provisions and procedures to govern—

(a) the policy for avoiding the installation of overhead or exposed telecommunication apparatus which might damage sensitive areas of the physical environment;

(b) means of reducing to the minimum the impact in the physical environment of telecommunications apparatus where it cannot be placed underground or hidden completely;

(c) the joint use of existing subways, ducts, poles and brackets or their replacement with provisions adequate for joint use;

(d) the positioning of telecommunication apparatus in relation to highways, private accessways, buildings, trees or any other feature;

(e) the temporary and permanent restoration of anything affected by the installation, repair, alteration or removal of telecommunications apparatus;

(f) the repair, renewal or removal of faulty, dangerous or superfluous telecommunication apparatus;

(g) the fixing and renewal of notices required by paragraph 18 above;

(h) the keeping of adequate records of all telecommunication apparatus belonging to the operator and the availability of the information to those whom it is reasonable should have the information.").

That amendment proposes a code of practice to protect the environment which it is suggested should be appended to the telecommunications code, which comprises Schedule 2 to the Bill. The proposal here is that the code of practice should be prepared and published. It is necessary to put it here because there is no other way in which the telecommunications code can contain such a provision.
I would prefer to raise again the issue of environmental protection when we come to Schedule 2 to the Bill, and it would have been easier for me and for my noble friends if Schedule 2 had been taken with its relevant clause, Clause 10, as was done in Committee. I appreciate that that is not the custom of the House at Report stage, but your Lordships will forgive me if I say that it makes it a little difficult to have the argument the wrong way round. Because it is important to see these as a whole, I shall do my best to put the essence of the case without the long speech which I made at Committee stage and which attempted to introduce 10 or 11 proposed amendments.
The issue here is relatively simple. I believe that there is a general agreement between the Government and those on this side of the House, and a number of other noble Lords in different parts of the House, that it is necessary to build into the new provisions for telecommunications adequate provision for the
1022
protection of the physical environment. The disagreement, as I am encouraged to think by the Government's answers last time, arises not on what protection is required, although there may be particular aspects of the protection where we might disagree—for example, the flying of lines, tree lopping or whatever it may be—but on what form this protection should take.
The view which we take in putting forward these amendments is that, as far as possible, the protection should be written into legislation and put in in the form of strengthening amendments of the telecommunications code. The view of the Government, as I understand it, is that the protection should be in the form of the licences rather than in the code and in the statutory requirements. I quite appreciate the reasons why the Government should wish to have it in that way. I appreciate that legislation is that much more difficult to amend. I appreciate that times change and that statutory requirements change with them. I can quite see that no Government would wish to see themselves in the position of having to introduce amending legislation at any time when there was a change in the circumstances.
But I believe there is an overriding consideration, which means that that inconvenience of difficulty of amendment ought not to take priority and that arises in Amendments Nos. 80B and 80C. It arises because of the difficulty of securing that those who are affected by the actions of telecommunications operators, and those who are concerned with the preservation and protection of the physical environment, have a real and clear opportunity to see what their rights are and in what way their rights are likely to be infringed by any action of telecommunications operators.
The problem with having this part of the provision for protection of the physical environment in the licence is that there is not just one licence, and in due course there will be many licences. There is no obligation at the moment on licensees to see to it that the conditions of a licence are made publicly available in all accessible places. The Government themselves moved a number of welcome amendments in Committee to say that notices which affected the public should he made available to those members of the public who were likely to be affected. The spirit behind those amendments is very welcome, but they ought to apply to the provisions for the protection of the physical environment as well.
There is no way of ensuring that the licences will provide protection in the same form, one with another. It will be extremely difficult for a member of the public or for a local authority in its role as the protector of the physical environment in its area to know whether the licence given to company A and the licence given to company B are in the same terms, and whether they can act to protect the physical environment in the same way. The cost to individuals and to local authorities who seek to protect the environment will be very great, unless there is real provision for standardisation of protection, and unless there is real provision for the conditions under which protection is to be provided to be made easily available to those who need it in order to secure that protection.
That is why, having apologised for standing the argument on its head, I can come hack to these

1023
amendments and say that it is essential that at this stage we should have some assurances from the Government about standardisation, about publicity and about this information being made available without fee to those who are affected by it before it would be possible for us to withdraw the long series of amendments which would be written into Schedule 2 to the Bill. Having spoken to both Amendment No. 80B and Amendment No. 80C, and having urged the Government to make some concessions which would encourage us to think that we are, as I believe, working towards the same objective. I beg to move Amendment No. 80B.
6.21 p.m.
Lord Mackay of Clashfern: My Lords, it may be convenient if I were to speak, as the noble Lord, Lord McIntosh of Haringey has done, to Amendments Nos. 80B and 80C, and also to Amendment No. 129AA which deals with the same matter.
Amendment No. 129AA: Page 121, line 4, at end insert—
("(5) Every notice required to be given to any person for the purposes of any provision of this code shall contain information, in such form as shall be approved by the Director, on where and when a copy of the operator's licence, code of practice and other relevant information published in accordance with the licence and a copy of the telecommunications code may be inspected and copies purchased.").
I regret to say that I shall find it hard to be as brief as the noble Lord, Lord McIntosh of Haringey, because the issues are a little complicated. However, there are some matters which we are able to view in much the same way as does the noble Lord.
The amendments seek to achieve several things. First, it is desired that, when the telecommunications code set out in Schedule 2 to the Bill is applied to any operator, the register of licences which the director is obliged to establish under Clause 19(1) of the Bill should include on it full details of any code of practice or similar arrangement which is imposed on that operator. We agree with this. The whole purpose of Clause 19 is to establish a publicly available record of what operators are licensed to do, so that any person who is affected by what an operator does can establish swiftly and effectively what his rights are. To be effective the register must include full details of the arrangements for applying the telecommunications code to an operator, including any arrangement like a code of practice. We therefore agree entirely with what the noble Lords seek to achieve in their first amendment.
However, we think that the Bill already achieves what they want. Paragraph (a) of subsection (2) of Clause 19 requires the director to cause to be entered on the register not only every licence granted under the Bill and every modification or revocation but also,
"every direction or consent given or determination made under such a licence".
If noble Lords will now turn to Clause 10 of the Bill they will see that subsection (5) says that a condition falling within subsection (4) can require the operator,
"to comply with directions given in a manner specified in the condition and by a person so specified".
If the two passages I have quoted are read together, noble Lords will see that any direction given under Clause 10(5) must be included on the register, and if
1024
noble Lords read the print which will be produced after Report they will find that Amendment No. 53 which we adopted last week has merged subsection (5) with subsectoion (4) so that the words I have quoted appear as the tailpiece to subsection (4).
I now ask noble Lords to turn to Part 5 of the draft licence to be granted to British Telecommunications. This sets out the exceptions and conditions under which the telecommunications code is to be applied to British Telecommunications. Paragraph 5 of Part 5 says,
"The Licensee shall prepare in consultation with the Secretary of State a code of practice on the installation of telecommunications apparatus not contained in a building and shall comply with a direction"—
I emphasie the word "direction"—
"given to him in writing by the Secretary of State which requires him to follow that Code of Practice."
This means that the code of practice to be followed by British Telecommunications when it installs outdoor apparatus will be the subject of a direction. Such a direction would be made under what will be printed as Clause 10(4) of the Bill and as a result Clause 19 obliges the director to include the direction in the public register. I hope that in the light of this somewhat complicated explanation, noble Lords will agree that the objective of the first part of their first amendment has already been achieved.
The amendment would also apply to any other codes of practice made under licences which have nothing to do with the telecommunications code. I can assure your Lordships that these would also have to appear on the register. The draft BT licence provides for two other codes of practice. One is about consumer affairs and the other is about the confidentiality of information about customers. Both of these codes will be adopted under Clause 7(6) of the Bill and will be matters to which the director will either consent or about which he will make a direction. Both codes will have to be included in the register because Clause 19(2)(a) covers both "consents" and "directions".
The second part of the amendment refers to,
"other information which may be required to be prepared and published in accordance with a licence".
I am not sure precisely what this is intended to cover. If the noble Lords mean to refer to price lists, then these are already covered by Clause 8(1)(e) of the Bill. It is not envisaged that price lists will be included in the register but that the operator himself should publish them and make them available for inspection in his local offices. If what is meant are the notices given under the code, then it would be impracticable for them to appear on the register. There could be many thousands of notices every year and these have only a very limited life. The register would soon be cluttered up with out-of-date notices.
I turn now to the second amendment. I think that it seeks to ensure that, whenever the code is applied to an operator, arrangements are made which ensure that three things happen: first, details of licences and related documents which apply the code to an operator should be available for inspection on the register free of charge: second, copies of the licence and related documents should be sent to every local authority affected by any telecommunication system

1025
to which the code is applied; and, third, the operator concerned should be obliged to make details of his licence, any code of practice and other documents available for inspection by members of the public free of charge at places which are convenient for individuals who may be affected.
This kind of arrangement seems eminently sensible and I can tell your Lordships that the Government are considering amendments to Clause 10 to achieve broadly the results which the noble Lord who moved the amendment wishes to achieve. The amendment appeared on the Marshalled List only on Friday, so I cannot go into details; but we do foresee minor difficulties on some points of detail. For example, we would not want one part of the register to be open for inspection free of charge while other parts were not open to free inspection. It is well established that other comparable registers such as the register of companies and the register of restrictive agreements are open for inspection only in return for payments which are calculated to cover the administrative costs of maintaining the registers.
These however are points of detail. I can give your Lordships an assurance that we are considering the matters raised by Amendment No. 80C and intend to bring forward at Third Reading an amendment to Clause 10. This will ensure that whenever the Secretary of State applies the telecommunications code to an operator he will include in the operator's licence a condition requiring him to make available for inspection free of charge full particulars of the licence applying the code to him, together with related directions, any codes of practice, et cetera, at places which are convenient for those in the relevant areas who may be affected by the exercise by the operator of rights under the code.
I turn to Amendment No. 129AA. Here again we are in sympathy with what the noble Lord has proposed. He wishes, as I understand it, to ensure that when an operator gives a notice to someone else under the various provisions of the code—for example, when he requires an agreement to erect a telegraph pole—he should have to explain not only what it is that he wants the person who receives the notice to agree to but should also explain to the other person the basis on which he can object. That seems fair and reasonable. Operators will be relatively powerful and will know the law. Objectors will not normally be as powerful and their legal advisers are perhaps less likely to be familiar with the full details of the code.
Although we agree with the broad principle, we doubt if the amendment is right as it stands. It would, for example, apply to objectors as well as to operators and would require objectors to include in any counter-notice they give to the operator details about the operator's own licence, code of practice and so on. That is not, I suppose, what is intended. More important, the amendment is precisely the kind of condition or exception which qualifies the rights an operator can exercise under the code, for which the Bill makes special provision in Clause 10. When we come to that part of Schedule 2, the structure of the Bill will be explained in more detail and the rights which can be conferred on an operator will be the subject of a little more detail. The suggestion made in
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Amendment No. 129AA is precisely the kind of matter which should be included in a condition, particularly since the amendment itself refers to matters approved by the director, who is not actually mentioned in the code.
I can say therefore that we are sympathetic to the idea behind the amendment. We believe that the powers contained in Clause 10 are already sufficient to include appropriate conditions in operators' licences but we understand the anxiety that the Bill should ensure that licences do actually contain the necessary conditions. We shall therefore consider whether we can bring forward a second amendment to Clause 10 at Third Reading to back up these assurances. I hope that that rather lengthy list of assurances will be sufficient to enable the noble Lord to withdraw this amendment.
Lord McIntosh of Haringey: My Lords, the noble and learned Lord's reply was so meaty that we can forgive its length. Indeed, it was scarcely longer than my introduction and managed to say a great deal that is welcome and positive. I am happy to accept his undertaking to consider at Third Reading our Amendments Nos. 80C and 129AA and I shall read with great care what he has said, particularly about Amendment No. 80B.
In repeating my gratitude to the Government for what I believe to be, subject to further reading, substantial improvements to the Bill, I beg leave to withdraw Amendment No. 80.
Amendment, by leave, withdrawn.
[Amendment No. 80C not moved.]
Clause 22 [Approval etc. to apparatus]:
6.31 p.m.
Lord Cockfield Lord Cockfield moved Amendment No. 81:
Page 26, line 18, leave out ("should") and insert ("must").
The noble Lord said: My Lords, with the leave of the House, in moving Amendment No. 81 I will speak to Amendments Nos. 81 to 90 inclusive.
Amendment No. 82: Page 26, line 24, at end insert ("and a standard so designated may apply subject to such exceptions as may be determined by or under the designation").
Amendment No. 83: Page 26, line 30, leave out subsection (8).
Amendment No. 84: Page 27, line 1, leave out from ("Before") to ("designating") in line 2.
Amendment No. 85: Page 27, line 4, leave out ("give the approval of").
Amendment No. 86: Page 27, line 7, leave out ("approval or").
Amendment No. 87: Page 27, line 11, leave out ("approval or").
Amendment No. 88: Page 27, line 16, leave out from beginning to ("such") in line 20 and insert ("to the person running the system and").
Amendment No. 89: Clause 24, page 29, line 8, leave out ("should") and insert ("must").
Amendment No. 90: Clause 24, page 29, line 14, at end insert ("and a standard so designated may apply subject to such exceptions as may be determined by or under the designation").
These amendments make technical changes to the arrangements in Clause 22 for the approval of apparatus which is connected to telecommunications systems, and in Clause 24 for the approval of meters. Arrangements for approving apparatus for connection

1027
to telecommunication systems are necessary to avoid the connection by one person to another person's system of apparatus, which might do harm or damage.
Connected apparatus might harm people working on the other system; for example, a poorly-insulated item of apparatus could send mains voltage down the other system, with real danger to those working on the other system. Connected apparatus could damage the other system, either by sending down the wrong electrical current or by sending signals designed for an overseas system which could cause an exchange to malfunction. Connected apparatus could also impair the quality of service provided by the system: for example, connected apparatus could receive a telephone call too faintly to be heard properly. From time to time, obviously, differences of opinion arise as to precisely how, as a practical matter, accepted criteria could be incorporated into standards. The merits vary from case to case and differences are worked out in the British Standards Institution on a voluntary basis. The department keeps a general eye on progress and arbitrates from time to time.
The present group of amendments is concerned with the arrangements for what are called "concessionary approvals", which are given when standards are not yet in force or where they set too difficult requirements. Clause 22(8)(b) as drafted deals with such concessionary approvals by laying down the broad tests the Secretary of State or the director must apply when making a concessionary approval. At Committee stage, my noble friend Lord Orr-Ewing tabled amendments seeking to relax these broad tests. Quite independently, we ourselves had been in discussion with British Telecom about the need for Clause 22(8). We have now reached agreement on this.
The conclusion we have come to is that Clause 22(8) is unnecessary and, perhaps more importantly, is technically defective, in that it does not achieve the required results. It is unnecessary because approvals of apparatus which could cause harm to individuals are prevented by the common law duty on the Secretary of State and the director not to exercise their standard designating and approval-giving powers in a way which could cause harm to others. Approvals which could cause physical damage to the network are prevented by Clause 3(1)(a), which requires the Secretary of State or the director to exercise their functions in the way best calculated to secure the provision of services. They would breach this duty if they approved apparatus which caused damage and so prevented or hindered the provision of services. Approvals causing any significant impairment to the quality of service are prevented by Clause 3(2)(a), which requires the Secretary of State and the director to exercise their functions in ways which promote the interests of telephone users in the quality of services provided.
Clause 22(8) is defective because it is drafted in terms of approval being given to apparatus for connection to a telecommunication system only if it will not cause the death, et cetera, of any person engaged in the running of the system and if it will not impair the quality of service provided by means of the system. This means that apparatus comprised in a private system must not be approved if it will cause
1028
harm to the people working on the private system or impair the quality of service provided by the private system. But Clause 22(8) is really intended to protect the safety of those working on public systems to which private systems are connected.
As drafted, Clause 22(8) could, for example, permit the approval of an item of apparatus which did no harm to the employees working on the private system but could harm British Telecom employees when the private system was connected to British Telecom. Clause 4(5) prevents the word "connection" in Clause 22(8) covering such indirect connection. Thus, Clause 22(8) fails to achieve the result everyone agrees is needed.
We intend to achieve the desired result by deleting Clause 22(8) and toughening up Clause 22(6) by specifying that apparatus "must" conform to the standard (not "should" as appears in the present draft) and by arranging for the designation of the standard itself to contain any exceptions, or to set out the arrangements for making concessionary approvals which could have been arranged under Clause 22(8). A concessionary approval would be made an exception determined in accordance with the designation of the standard relating to the class of apparatus in question. This will give us flexibility to deal with cases of indirect connection, so that apparatus could be approved for connection to a private system provided the private system itself was not connected to a public system.
The important amendment is Amendment No. 81. It deletes "should", which imposed a relaxed requirement, and substitutes the compulsory "must". Amendment No. 82 provides that concessionary approvals can be made but the exceptions under which they are made are to be set out in the designation of the standard. Amendment No. 83, deletes subsection (8) of Clause 22, which is no longer needed and which is inappropriate for the reasons I have explained. Amendments Nos. 84 to 88 are consequential on Amendment No. 83 and delete the references to "approvals". Amendments Nos. 89 and 90 bring Clause 24 relating to meters into line with Clause 22.
I felt that it was important to explain these matters in detail, as what I have said is designed as a reassurance to those people concerned. It is therefore important that it should be on the record. I beg to move.
Lord Bruce of Donington: My Lords, the House is obliged to the noble Lord for having explained this series of amendments. One aspect troubles us a little. It may be that, technically, subsection (8) does not meet all the requirements that the noble Lord has in mind, but it has the advantage—particularly paragraph (b)—of specifying the matters to which he referred, and of writing them into the Bill. Subsection (8)(b) states:
"the Secretary of State or the Director is satisfied that the connection of the apparatus to the system in accordance with the approval would not be liable—

(i) to cause the death of or injury to, or damage to the property of, any person engaged in the running of the system; or

(ii) to impair the quality of any telecommunication service provided by means of the system".

I entirely accept the point that those words may still leave much to be desired, but they are something. They cover something that is not covered, if I may say

1029
so with respect, in the generalised responsibilities of the Secretary of State and the director as set out in Clause 3(1)(a) or in Clause 3(2)(a), which specify in general terms the responsibilities—and they must be high ones of the Secretary of State and the director.
I should much prefer to see somewhere in Clause 22 some of the words that actually specify the matters which the noble Lord has in mind and which were originally in mind when the drafting of subsection (8)(b) was contemplated. After all, the Bill has been a long time in gestation. It was before another place last year; partially before your Lordships' House last year; reintroduced in another place last year, and in this House this year. Many months have passed. I believe we ought to do a little more with it.
The fear many of us have with the connection of other systems into the main British Telecom system is that owing to the commercial pressures, to which noble Lords have referred many times, somehow in the competitive struggle that goes on inferior apparatus will ultimately find its way into the hands of subscribers. Alluring stuff may be put out, possibly at a lower price or on attractive credit terms, but which is not of the real quality that is required by the whole system and which might conceivably impair the quality of any telecommunication service provided by the system.
At this stage we shall not oppose this series of amendments; but we hope that the noble Lord will keep this in mind with a view to producing, on Third Reading, a further specific statutory obligation concerning impairment of the system. If the noble Lord does not, we shall be happy to oblige on that occasion.
Lord Lloyd of Kilgerran: My Lords, may I briefly thank the noble Lord the Minister for his very clear and concise speech explaining the reasons for the amendments? Perhaps he can clarify a point for me. I may be wrong about this, but he said that subsection (8) is defective. He then went on to say, to use his own words, that he is toughening up subsection (6) by putting the positive "must" instead of "should". Is he satisfied, and can he therefore confirm, that the detailed matters to which the noble Lord, Lord Bruce of Donington, referred arising out of subsection (8)(b) are adequately covered by that simple amendment?
Lord Cockfield: My Lords, may I briefly respond. The answer to the noble Lord, Lord Lloyd of Kilgerran, is yes.
Lord Lloyd of Kilgerran: My Lords, I am much obliged.
Lord Cockfield: My Lords, the clause as it stands at present is defective, and what we set out to do—I am certain we have achieved it—is to ensure that the protection we all want to give is given. We have done this in two ways: first of all, by being absolutely specific by using the word "must", so that there is no room for doubt or argument; and, secondly, by insisting that the exception should be put into the standard itself. This is a very much better protection than is available under
1030
the Bill as drafted. I would only ask the noble Lord, Lord Bruce of Donington, if he will be kind enough to read in detail the very long and difficult exposition which I gave. It was perhaps asking rather a lot for him to follow every point that I made.
Lord Orr-Ewing: My Lords, before my noble friend sits down, can he assure the House that the standards will not be unduly delayed? This is what has happened to date. The Government set up an approvals board for telecommunications which was to be an independent body to judge standards and make sure that new equipment came quickly into public use. In fact, 300 new pieces of equipment have been approved at the last count, two by the independent board and 298 by British Telecom. If one submits new designs to British Telecom and there is much merit in them, British Telecom pinch them, go direct to the suppliers and buy in greater quantities. That is not the sort of competition or the sort of standard which I am sure my noble friend wishes to see. I can only hope that henceforward decisions on new equipment will be speeded up and effectively judged by an independent body and not by British Telecom, the main competitor.
Lord Torphichen: My Lords there seems to be one thing which the change from "should" to "must" might unnecessarily rule out in future. I shall need to read the speech of the noble Lord, Lord Cockfield, to see exactly what the effect of these amendments will be, but it seems to me that they might increase the separation between the public system and private systems built with the same components and the same technology, in parallel, and which, quite rightly, when they are built, do not have to conform exactly to the letter of those standards which are right for the public system. However, they are likely to be built using very similar basic components, similar methods and to the same standards.
It might happen that a large chunk of a private system could become available as an arm of the public system. The example I have in mind is if a large company vacates a site, such as Lynwood, which has a comprehensive internal telephone system and where the SDA wishes to farm out the site into smaller units and not tear up and throw away all the machinery inside it. The change from "should" to "must" might mean that one could not look at the standard of installation of the system and decide whether it could be re-used. One would simply have to say, "It must conform and therefore we must tear down the existing system and rebuild with a British Telecom system". It seems rather a pity to rule out the possibility of reusing private systems, if they are of a sufficient standard, as part of the public system at another date.
On Question, amendment agreed to.
Lord Cockfield Lord Cockfield moved Amendment Nos. 82 to 90:
[Printed earlier.]
The noble Lord said: My Lords, I have already spoken to these amendments, and I beg to move them together.
On Question, amendments agreed to.
Clause 26 [Grants and loans to persons exercising certain functions]:
6.49 p.m.
Lord Cockfield Lord Cockfield moved Amendment No. 91:
Page 31, line 9, leave out ("3") and insert ("2").
The noble Lord said: My Lords, this is simply to correct a typographical error. I beg to move.
On Question, amendment agreed to.
Clause 43 [Improper use of public telecommunication system]:
Lord Lyell Lord Lyell moved Amendment No. 91A:
Page 41, leave out lines 41 and 42 and insert ("in the course of providing a cable programme service (within the meaning of Part IV of this Act).").
The noble Lord said: My Lords, I hope that it will be for the convenience of your Lordships if I speak also to Amendments Nos. 110A and 110B.
Amendment No. 110A: Clause 55, Page 50, line 41, leave out from ("service") to ("shall") in line 42.
Amendment No. 110B: Clause 55, page 50, line 43, at end insert ("unless he is authorised to provide the service by a licence granted under section 56 below").
All three amendments are designed to bring the Telecommunications Bill and the Cable and Broadcasting Bill into line. At present Clause 3 of the cable Bill makes it an offence to provide a cable programme service without a licence. The wording in Clause 55, which is the equivalent provision in the Telecommunications Bill, creates a much wider offence, which is not the intention. Amendments Nos. 110A and 110B therefore bring Clause 55 into line with the provision in the cable Bill. The amendment to Clause 43, Amendment No. 91A, follows from this. At present it follows the wording in Clause 55, but since we wish to change that, as I have described, we also need to make a change to Clause 43. I beg to move.
Lord Mottistone: My Lords, I am sorry to bother my noble friend. Part IV is going to be struck out when the cable Bill becomes law. That is fine. In the Committee stage we amended parts of Part IV, but that did not matter because it is to be struck out. Can I be assured that the cable Bill will acquire the necessary amendment to remove the reference to Part IV in Amendment No. 91A?
Lord Lyell: My Lords, with the leave of your Lordships' House, my response is that we shall have to wait to see about this when we come to the cable Bill. I would not want to declare any responsibility for that this evening. But I would not think that there would be any inconsistency with what I have said. I hope that satisfies my noble friend.
Lord Mottistone: My Lords, with the permission of the House, may I point out that the cable Bill has left this House? Perhaps my noble friends could note this point so that the necessary action can be taken in another place if it has not been thought of already.
On Question, amendment agreed to.
Clause 45 [Interception and disclosure of messages etc.]:
The Lord President of the Council (Viscount Whitelaw)The Lord President of the Council (Viscount Whitelaw) moved Amendment No. 91B:
Leave out Clause 45 and insert the following new Clause—
("Interception and disclosure of messages etc.
45.—(1) A person engaged in the running of a public telecommunication system who otherwise than in the course of his duty—

(a) intentionally intercepts a message sent by means of that system; or

(b) where a message so sent has been intercepted, intentionally discloses to any person the contents of that message, shall be guilty of an offence.

(2) A person engaged in the running of a public telecommunication system who otherwise than in the course of his duty intentionally discloses to any person the contents of any statement of account specifying the telecommunication services provided for any other person by means of that system shall be guilty of an offence.
(3) Subsection (1) above does not apply to anything done in obedience to a warrant under the hand of the Secretary of State; and paragraph (b) of that subsection and subsection (2) above do not apply to any disclosure in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings.
(4) A person guilty of an offence under this section shall be liable—

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

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

The noble Viscount said: My Lords, in rising to move this amendment I should like to make it clear at the outset what I am not doing. I am most certainly not seeking simply to reverse the decision which your Lordships' House took in Committee, against the advice of the Government. I believe that that would be wrong for many reasons, not least in terms of the relations between this House and another place.
On this occasion, however, I wish to invite your Lordships to support this amendment on the basis of an alternative proposition which I can now put forward. The amendment which was moved by the noble Lord, Lord Mishcon, in Committee reflected a determination that the whole business of telephone interception should be regulated by statute. The amendment found favour with a majority of your Lordships. At the same time, what has become known as the Malone case has served to bring the subject to the forefront of public attention. The case went through the machinery of the European Commission and was heard by the European Court on 20th February. The judgment is expected some time in the summer. We cannot at the moment be certain what, if any, changes in the law might be needed as a result of that judgment.
Having recently been Home Secretary for four years, I understand all the arguments which surround the whole question of the interception of communications. I fully appreciate the importance of interception as a weapon to be used—but used sparingly—in the fight against terrorism, drug smuggling and organised crime and for the safeguarding of our national security. In this way, the power can be used to protect the rights of individuals, rather than to undermine those rights.
On the other hand, I also appreciate the very real feelings of anxiety which surround this subject. Quite apart from the natural distaste which everyone feels,

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advances in modern technology serve to increase the citizen's appprehension about intrusions into privacy and about the erosion of individual rights. Perhaps I understand better than many how very difficult it is to preserve the right balance between the needs of the state and the rights of the individual citizen, because that was a lesson which I learned by experience and at the cost of considerable personal anxiety.
It is now quite clear to me that, unless the rules governing the interception of communications are put on a statutory basis, there will always be some suspicion that the Government use their powers to the detriment of some citizens. I could give an assurance that as far as my own experience goes that has not happened. But I understand increasingly today that assurances of that kind cannot alone allay many people's fears and concerns.
Against all this background, I am now able to give an undertaking which is in no way dependent on the outcome of the Malone case. I can give your Lordships' House, with the full authority of the Government, this assurance: we will bring forward legislation on the interception of communications in the next Session of Parliament. It will be a separate Bill on this subject. It will of course include the matters now covered in the existing Clause 45 and in addition any matters arising from the judgment in the Malone case. For the avoidance of any doubt, I state again that this is a firm commitment.
I should like also to give this House a second firm assurance. On the basis of existing law, the Government regard themselves as bound, and act as if bound, by an obligation to adhere to the criteria and procedures set out in the White Paper for the interception of communications in Great Britain on behalf of the police, Her Majesty's Customs and Excise and the security service. I hope it goes without saying that the Government will continue to act in accordance with this obligation until the legislation which I have promised is on the statute book. I do most sincerely hope that the undertakings I have just offered as alternatives to the provisions inserted into the Bill in Committee will commend themselves to your Lordships.
I think, however, that I should deal with one argument which could be advanced against the procedure I propose. It rests in this simple question: why should Clause 45 as passed by this House in Committee not remain on the statute book as a useful stop-gap measure? I hope your Lordships will accept that we cannot do justice to this matter by inserting provisions into legislation that is primarily concerned with other matters, however attractive such a course may at first appear. The Government have concluded that it would be right to bring together in comprehensive legislation all the necessary statutory provisions relating to interception so that the individual citizen, and those responsible for requesting, authorising and carrying out interception, can never be in any doubt about the precise statutory limits and criteria which apply to interception in this country. It is important that the legislative provisions adopted should he carefully worked out to take account of all the different situations that must be catered for, and I believe it is right that, on a matter of this kind, legislation should
1034
be brought forward by the Government in a separate Bill.
In addition, there would be some problems of detail if Clause 45 were to pass into law in its present form. First of all, the drafting of the clause is naturally enough based very closely on the drafting of the 1980 White Paper, with which, of course, in a previous incarnation I was closely associated. It therefore repeats words which were sufficiently precise as a general description in a White Paper of the scope of interception, but which were never intended as a definition of a criminal offence. As an illustration of this, the clause so drafted makes offences of some perfectly legitimate activities. It would, for example, he an offence for an operator to listen to a call to check that the line was actually in use and not faulty, or to break into a call to offer a higher priority call to the subscriber. The clause also seems to make it unlawful for a third party to listen to a call with the consent of one of the parties, as for example when a secretary listens to his or her boss's calls, or when malicious calls are monitored at the customer's request. All these different circumstances need to be taken into account when framing legislation, and really do, I am afraid, make it quite impracticable to tackle the matter in a single clause provision of the kind which is now in the Bill.
I should also like to explain why the amendment seeks to reinstate Clause 46 of the Bill as it stood before the changes we are now discussing were made in Committee. The only reason for that is that the clause reinforced the existing offences relating to unauthorised interception by telecommunications employees and it is as well that we should update the existing statutory provision while we can. It also introduced significant new safeguards over the disclosure by employees of the contents of itemised telephone bills. It may be helpful to the House if I mention at this point that this provision goes a long way to meet the concerns which seem to lie behind the proposed new clause after Clause 45 which we shall come to shortly. This issue was mentioned in the proceedings before the European Court in the Malone case. If the Court were to say something about it in its judgment, the Government would consider the implications of the findings in the context of the legislation on interception which I have promised.
I have today given an absolutely firm assurance on future legislation. I hope this House will appreciate fully from what I have said when indicating that the Government wholly accept the spirit of the amendment carried in Committee. We accept that the time has come to legislate on this difficult subject. We shall do so even if, as we hope, we are found by the European Court to have complied with our obligation under the European Convention on Human Rights. But my undertaking on behalf of the Government to this House is that we shall bring forward legislation anyway, and at the earliest practicable opportunity. If there were adverse comments by the European Court, we should then be able to make sure that we complied fully with them.
I hope your Lordships will regard these firm undertakings as a helpful response to your clearly expressed wish to see interception put on a firm statutory basis. My intention was to meet in full the

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wishes of the majority of your Lordships who voted for this clause in Committee. This House has by that action led the way to new legislation. I hope it is clear from what I have said that the House will in full measure get what by its vote in Committee it demanded from the Government. I beg to move.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Viscount the Leader of the House for explaining the Government's position and the reason for moving this amendment. My noble friends and I are glad that the Government now recognise the force of the amendment so ably moved by my noble friend, Lord Mishcon, an amendment which had in fact been moved in the last Parliament by my noble and learned friend Lord Elwyn-Jones.
It is reassuring that the noble Viscount with his great experience, especially as Home Secretary, appreciates the genuine anxiety which so many noble Lords feel about the dangers inherent in the interception of communications. We welcome his conclusion that the rules should now be put on a statutory basis. Where individual rights are concerned, it is always better to be safe than sorry. We also welcome and accept the noble Viscount's firm undertaking that legislation on this subject, including the matters now covered in the existing Clause 45, will be introduced in the next Session of Parliament.
The noble Lord's second assurance is equally welcome: namely, that the Government will, between now and the passing into law of the new Bill, regard themselves as bound by the provisions on interception in the White Paper and will act accordingly. We accept, without question, the noble Viscount's two important commitments. We also note his reasons for not retaining Clause 45 as a stop-gap measure. Nevertheless, as the noble Viscount has said, the House, in passing Clause 45, has ensured that legislation to deal with this important problem will be brought before Parliament at any early date. We are therefore glad to support the noble Viscount's statement and his proposals.
Lord Diamond: My Lords, I rise shortly to add the support of these Benches to the noble Viscount's statement and to assure him that we accept his undertakings and his assurances in full. I just want to add that we are particularly grateful to the Leader of the House for his courtesy in coming here and explaining the matter in such detail, and for his—if I may say so—wise and constructive suggestions and understanding of the true function of this House. I congratulate him, and of course we shall support his proposal.
Lord Lloyd of Kilgerran: My Lords, I should like briefly but nevertheless very sincerely to thank the noble Viscount the Leader of the House on two counts: first of all, for his great courtesy in the way he initiated consultations with my party on this very important matter. Secondly, to thank him for his two assurances: namely, that the Government consider that for the interim period before the introduction of new legislation, the spirit, at any rate, of the Clause 45, which he seeks to have withdrawn, will be continued,
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and that in the interim the Government will also abide by the spirit of the Green Paper. May I also congratulate the noble Viscount the Leader of the House on his explanation of this very important matter.
Lord Home of the Hirsel: My Lords, may I just say that I am sure that the course of action proposed by my noble friend and to which he has committed the Government is far better than trying to include these matters of interception in the Telecommunications Bill. I listened carefully to the speeches of the noble and learned Lord, Lord Edmund-Davies, the other day and to the noble and learned Lord, Lord Elwyn-Jones, and I came to the conclusion that these matters would be far better dealt with in a separate Bill. I have no doubt that we can and will pay the same scrupulous attention to national security when we come to that Bill as we have tried to do in this Bill. I have in my time known two governments virtually wreck their secret services by attempts at open government and we cannot afford anything like that in this country. I am sure that my noble and learned friends would agree that this is a wise point of view.
Lord Mishcon: My Lords, as the one who had the privilege on behalf of the Opposition of moving this amendment, may I simply express my thanks to the noble Viscount and say that it was with very great joy that all of us heard the respect that is paid to the voice of this House.
On Question, amendment agreed to.
Lord Denham: My Lords, I think that we have probably reached the right stage for the dinner adjournment. If I may give guidance to those of your Lordships who wish to come back to this Bill, we shall not resume the Report stage before ten minutes past eight o'clock. I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

County Courts Bill [H.L.]
7.11 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to move that the House do now resolve itself into Committee (on recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on recommitment)— (The Lord Chancellor.)
On Question, motion agreed to.
House in Committee (on recommitment) accordingly.
[The LORD WELLS-PESTELL in the Chair.]
Clauses 1 to 19 agreed to.
Clause 20 [Rules for limitation of recoverable costs]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 9, leave out subsection (9) and insert—
("(9) In this section—
"the higher limit" means, subject to section 145, £3,000;
"the lower limit" means, subject to section 145, £600.").
The noble and learned Lord said: I should like, in this short intervention, to speak also to Amendment No. 5.
Amendment No. 5: Page, 70, line 31, leave out from ("Her Majesty in Council") to end of line 36 and insert—

("(a) that the county court limit for the purposes of any enactment referring to that limit, or

(b) that the higher limit or the lower limit referred to in section 20 of this Act,

should be increased, Her Majesty may by Order in Council direct that the limit in question shall be such amount as may be specified in the Order.").
I think I can say that I am, in effect, speaking to all the amendments, but it may be more convenient if I explain them as I go along. The amendments arise from discussion in the Joint Committee on Consolidation Bills. The members of the committee, and in particular the noble and learned Lord, Lord Brightman, who is chairman of that committee, expressed some views about the form in which reference should be made in consolidation to the phrase "the county court limit" where it occurs in the Bill. The whole of these amendments are concerned with that matter. The amendments that I now propose reflect the view of the noble and learned Lord, Lord Brightman, and of the officials of my department, and I think also have the approval of parliamentary counsel.
These two particular amendments, Nos. 1 and 5, conform to that view. The amendments relate to the drafting device that is used in the County Courts Act 1959 and re-enacted in this Bill as a means of referring to the various monetary limits on the jurisdiction of the county courts. The amendments seek for the most part to clarify the meaning of the provisions in which this device, the expression "the county court limit", is used. The amendment to Clause 20 discards the reference to the county court limit as a means of defining the higher and lower limits that apply for the purposes of the clause. Instead, the figures of the present monetary limits are specifically mentioned so that there can be no confusion as to what the limits are. Since these limits can be increased by Order in Council under Clause 145, that clause is amended to refer specifically to them.
On Question, amendment agreed to.
Clause 20, as amended, agreed to.
Clauses 21 to 68 agreed to.
Clause 69 [Power to award interest on debts and damages]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 38 line 7, after ("limit") insert ("for the purposes of any provision of this Act").
The noble and learned Lord said: This amendment is a small drafting amendment to clarify the meaning of the clause.
On Question, amendment agreed to.
Clause 69, as amended, agreed to.
Clauses 70 to 111 agreed to.
Clause 112 [Power to make administration order]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 59, line 28, leave out ("the county court limit") and insert ("£400").
The noble and learned Lord said: In moving this amendment I should like also to speak to Amendments Nos. 4 and 19.
Amendment No. 4: Page 59, line 40, at end insert—
("(7) The Secretary of State may by regulations increase or reduce the sum for the time being specified in subsection (4)(b); but no such increase in the sum so specified shall affect any case in which the bankruptcy petition was presented before the coming into force of the increase.
(8) The power to make regulations under subsection (7) shall be exercisable by statutory instrument; and no such regulations shall be made unless a draft of them has been approved by resolution of each House of Parliament.").
Amendment No. 19: Schedule 4, Page 93, line 38, in the third column, at end insert—

("In Schedule 1, in Part I, the entry relating to the Administration of Justice Act 1965 and in Part II, paragraph 1 (d).").

The first amendment to Clause 112 corrects an error in the Bill. When the clause was being drafted a straightforward monetary reference in the provision that was being consolidated was, through an oversight, converted into the phrase "the county court limit". The amendment reinstates the correct reference. The second amendment to Clause 112 incorporates into the body of the clause a group of provisions that are at present contained in the Insolvency Act 1976 but confer powers in relation to the clause. These provisions should properly be contained in the clause to which they relate instead of being left in any outlying Act. The amendment so provides.
The amendment to Schedule 4 removes from the Insolvency Act the provisions that have been incorporated in the Bill by the amendments that I have just explained.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
[Printed above.]
On Question, amendment agreed to.
Clause 112, as amended, agreed to.
Clauses 113 to 144 agreed to.
Clause 145 [Power to raise county court limit]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 5:
[Printed earlier.]
The noble and learned Lord said: I spoke to this with Amendment No. 1. I beg to move.
On Question, amendment agreed to.
Clause 145, as amended, agreed to.
Remaining clauses agreed to.
Schedule 1 agreed to.
Schedule 2 [Amendments of other enactments]:
The Lord Chancellor The Lord Chancellor moved Amendment Nos. 6 to 18:
Page 76, line 24, leave out second ("county court limit") and insert ("amount")
Page 78, line 18, leave out ("county court limit") and insert ("amount")
Page 79, line 31, leave out ("county court limit") and insert ("amount")
Page 80, line 20, leave out ("county court limit") and insert ("amount")
Page 81, line 27, leave out ("county court limit") and insert ("amount")
Page 82, line 22, leave out ("county court limit") and insert ("amount")
Page 83, line 34, leave out from ("words") to ("which") in line 35 and insert ("amount")
Page 84, line 22, leave out ("county court limit") and insert ("amount")
Page 85, line 34, leave out ("county court limit") and insert ("amount")
Page 87, line 17, leave out ("county court limit") and insert ("amount")
Page 88, line 12, leave out ("county court limit") and insert ("amount")
Page 88, line 28, leave out ("county court limit") and insert ("amount")
Page 89, line 25, leave out ("county court limit") and insert ("amount").
The noble and learned Lord said: I think that, with the agreement of the Committee, we might take Amendments Nos. 6 to 18, inclusive, together. They are all amendments to Schedule 2. I believe that all of them have the effect that I am about to explain. Schedule 2 to the Bill provides for the amendment of a number of Acts. The purpose of these 13 amendments is to improve the drafting of several of the definitions of the county court limit. Some of the definitions provided for other statutes are rather circular in nature, and the amendments seek to make them less circular. I beg to move Amendments Nos. 6 to 18, inclusive.
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
Schedule 4 [Repeals]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 19:
[Printed earlier.]
The noble and learned Lord said: I exhausted this amendment when I spoke earlier. I beg to move.
On Question, amendment agreed to.
Schedule 4, as amended, agreed to.
House resumed: Bill reported with the amendments.

Criminal Trespass Bill [H.L.]
7.22 p.m.
The Earl of Onslow: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Earl of Onslow.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD WELLS-PESTELL in the Chair.]
Clause 1 [Buildings to which this Act applies]:
The Earl of Caithness The Earl of Caithness moved Amendment No. 1:
Page 1, line 7, after ("others)") insert ("or any building in the course of construction which is to be used for such purpose.").
The noble Earl said: This amendment is a small step to widen the scope of the Bill to homes in the course
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of construction. It does not extend the coverage of the Bill to any buildings used for non-residential purposes. I hope therefore that my noble friend Lord Onslow will be able to accept it.
The law relating to trespass in the construction industry is ineffective and costs the country a great deal of money each year. The area of most concern is the site awaiting development. Although I should like to expand on this, I will confine my remarks solely to houses and flats under construction. Significant delays and costs are incurred when trespass takes place during this period. Sometimes it takes the form of squatters; but more often the trespassers are temporary and their visit is occasioned by the wish to deface the building or destroy part of its contents, such as wash-hand basins and basins or pipes that have been put therein. The exact cost of this has not been quantified and it is difficult to do so; but it has caused considerable concern for many years. If the development is undertaken by the local authority then it is the ratepayers who have to meet the bill.
The Home Office documents on trespass indicate that it is always the right of an occupier to use reasonable force to evict trespassers. That begs two questions. First, what constitutes reasonable force before becoming a criminal offence. At Second Reading we heard of the case of a possible intrusion by a former boxer, and no doubt each case will be different. The second question arises when homes have been built but not yet sold or let. Who is the occupier under the law? Is it the contractor; is it the developer, the ground lessee or the freeholder? All of them may be different people. All these people have found it difficult in the past to take proper action to counter trespass due to a gap in the law, a gap partially filled by this Bill. There is surely a lot of merit to include the protection for them. I beg to move.
Lord Mishcon: I hope that the Committee will not accept this amendment, and I say that with all deference to the noble Earl who moved it so persuasively. I say that for the following reason. It will be known that on Second Reading I ventured from a personal point of view to say that this Bill, in my judgment, was not a necessary Bill and I tried to give reasons for saying so. Your Lordships did not accept the view that I put forward on that occasion. Your Lordships did so, as I understood it, by saying that occupiers—and the accent was on occupiers—ought to be protected and even though the question of molestation, vexation, annoyance or whatever it was which had been in a previous Bill before your Lordships in a previous Session, was not in this Bill, your Lordships took the view that it was necessary for the protection of people who were in occupation of premises, and lawfully so, as the owner, the tenant or the licensee. To increase the purview, the area, of the Bill to include buildings under construction and then to have possible incursions into such buildings by the police who might be warned by other occupiers nearby who felt that somebody was wrongfully on the premises about to be constructed, is really going much too far. I hope that your Lordships will not accept the amendment, and I know that the noble Earl will forgive me for differing from him.
Lord Campbell of Alloway: I also hope that your Lordships will not accept this amendment. The structure referred to in Clause 1(2) of the Bill can only refer to a structure in which a person has his home or living accommodation under Clause 1(1). A building in the course of construction already falls within the provisions of the Bill if someone is living in it. But the amendment proposes to include buildings in the course of construction in which no one lives—a point made already by the noble Lord, Lord Mishcon.
Let us take the position of a tramp on a dark, wet, foggy night, who to take his ease enters a building which is in the course of construction. How can he know whether the intended user is for domestic purposes? Many buildings which look like dwelling houses are destined for use as offices. The intended user may be changed in the course of construction, subject to planning consent, and may have changed between the time of entry and the service of the summons or the hearing. The Crown has to prove that the state of mind of this tramp at the time of entry was such that he knew, or had reasonable cause to believe, that the intended user was domestic—a burden of proof which would be difficult to discharge because the entry is related to "assumed" user as distinct from "actual" user. The crucial words are "is to be used", which import this concept. This amendment derogates from the structure of the Bill, which rests upon actual user as a home at the time of entry and not on assumed user.
In conclusion, knowledge of an assumption made by others over whom an accused has no control whatever constitutes an entirely novel ingredient in the criminal law of England. In this an accused could not raise a defence under Clause 2(1) and seek to show that, on the balance of probabilities, he had no reasonable excuse; for as a matter of construction this is related to reasons for entry and not to reasonable cause for belief, under Clause 2(2). With the utmost respect to my noble friend, this is misconceived.
7.31 p.m.
Lord Airedale: It may be that this is not the right Bill in which to achieve what the noble Earl seeks to achieve, but there is the greatest merit in what the noble Earl seeks to achieve. Hooligans can make an absolute nuisance of themselves going into partly built buildings in order to smash all the windows and the wash basins, tear out the electric fittings and everything else. Those buildings under construction are extremely difficult and extremely expensive to protect against hooligans. Anything that can make life hotter for these hooligans is to be encouraged. But it may well be that this is not the right occasion on which to achieve it.
The Earl of Onslow: First, I should like to deal with a point made by the noble Lord, Lord Airedale, which is that of someone going onto a building site and stealing something. That would come under the Theft Act. If someone smashes up the light fittings and generally behaves like a hooligan, that is already a criminal offence. I suggest to your Lordships that to enlarge the scope of this particular trespass Bill to incorporate building sites is very low on the list of areas to which I should like to enlarge it, but I know
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that I do not have a cat's chance of actually enlarging it in those directions. The scope of this trespass could be extended in many ways, but building sites are fairly low on the list, especially as large parts of them are speculative building—in other words, the builder does not know to whom the building will be sold or who will live in it. I should be very unhappy if your Lordships were to accept this amendment.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): I think that the Committee has shown that my intervention is superfluous. I merely say that I support my noble friend Lord Onslow in hoping to persuade our mutual noble friend Lord Caithness not to press his amendment, as it carries the Bill into an area for which it is not designed. I think we are all clear that we are seeking to protect people from the very real fear and distress which can be caused by trespassers entering those people's own homes or living accommodation. Building sites are another matter; the idea may be very virtuous, but building sites are not strictly relevant.
The Earl of Caithness: I am grateful to everyone who has commented on this amendment. I think that this is probably the wrong Bill. I think that it is a worthy cause. I am sorry that my noble friend Lord Onslow does not think it is a good thing to build houses—I should like to talk to him about that a little later. It is a point and the noble Lord, Lord Airedale, brought it home to the Committee. May I ask my noble friend on the Front Bench whether in due course he will write to me on the two points that I have raised with regard to existing law. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Clause 1 agreed to.
Clause 2 [Criminal trespass in buildings to which this Act applies]:
7.36 p.m.
Lord Renton Lord Renton moved Amendment No. 3:
Page 1, line 12, after ("enters") insert ("or remains in").
The noble Lord said: I beg to move Amendment No. 3. If this amendment is accepted by your Lordships, some consequential amendments to subsections (2) and (3) would have to be made at the Report stage. As the Bill stands, it refers only to:
"a person who without reasonable excuse enters any building or part of a building to which this Act applies as a trespasser".
It does not deal with the person who has a good reason for entering for a particular purpose—perhaps even a statutory purpose, for example, like checking a gas meter—but who remains on the premises when he has achieved his purpose.
May I give an example. The husband may be away at work and the wife alone in the house. The gas man, having checked the meter, may sit himself down in an armchair, start smoking and in an unwelcome kind of way generally make a nuisance of himself. Indeed, the wife may need to attend to her children or she may need to go out shopping, and the fellow refuses to leave. That surely is the kind of criminal trespass

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with which the Bill should deal. In those circumstances—and others could be mentioned—the man's presence has become a serious invasion of the wife's privacy.
This simple amendment would overcome that, and of course it is qualified by the words "without reasonable excuse" and the words "as a trespasser". I hope that in answering this point, my noble friend Lord Elton will not say that the amendment is unnecessary because of the doctrine of trespass ab initio, which, it was thought, was well established in our law and applied to those who entered a building for a necessary public purpose but who failed to leave the building when that purpose had been achieved. It would be unwise to rely upon that doctrine because in recent years the Court of Appeal has tried to get away from it.
The law is in a state of some uncertainty in this area, and unless we make it plain in this Bill we may well find that some person, perhaps bringing a private prosecution (which he shall be entitled to do under the Bill), might say that the doctrine of trespass ab initio is still part of the law, and the gas man would be deemed to have trespassed ab initio having conceived the original intent of staying on, of holding over, after he had achieved his legitimate public purpose, and therefore the offence has been committed.
I think that that would be right, but it would be wrong to rely upon the doctrine of trespass ab initio in order to establish that, and it would be far better to have the point made plain in the Bill, which this simple amendment would do. I beg to move.
Lord Mishcon: I hope that I shall not have the reputation of being a wrecker of this Bill because, as I have said. I hope that my objections to it on Second Reading were reasoned objections. I had quite a lot of sympathy with the noble Earl's inspiration to bring this Bill before our Lordships. But, again, I utter a word of warning about extending the area of this Bill beyond the area which this House would want it to cover. It is one thing to say that we introduce a new crime into our criminal code when someone who has no right at all to enter our premises does so and refuses to go. It is at least intelligible that one should have a crime of that order and that one should be able, as a private citizen, to call the police and, as the noble Lord, Lord Renton, said to initiate a private prosecution. But it is entirely different if we are now again to walk into the area where somebody comes upon the premises perfectly legitimately and then the occupier takes the view that he is no longer welcome, and the gentleman, or lady, concerned wishes to continue an argument which he, or she, has had with the occupier of the premises. At that stage are we to have a new crime committed? Because that person does not leave when the occupier wants him to are we to add to our criminal code that a private prosecution can be brought and the police can be brought in?
Has none of your Lordships seen that glorious play which exhibited for all our delectation the unwelcome guest who stayed too long? It is bad enough to have that guest without being able to get rid of him, but are we now to introduce into our criminal law one way of getting rid of him, which is presumably to call for a
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policeman and say, "Dinner is over, and that was the only thing I asked him for. Therefore, now he is remaining against my wish"? There is nothing in this Bill which deals with vexation, annoyance, and so on. The noble Earl has explained that perfectly frankly and we may come back to that on a discussion on clause stand part, but please beware of passing this amendment.
Lord Renton: I think that the noble Lord may have misheard or not taken on board what I was saying; namely, that under the present law the doctrine of trespass ab initio might be invoked under this Bill. My amendment would have the merit of clarifying that position. Admittedly it would be in the sense of making sure that it was an offence. But surely the worst thing that we can do is to create uncertainty in this context, and my amendment would remove the uncertainty.
I hope the noble Lord will not take it amiss if I make one other point. The noble Lord made it clear on Second Reading that he was speaking for himself from the Front Bench and not for his party. I assume that that is still the case.
Lord Mishcon: I give the noble Lord the assurance that that is still so and will remain so until the end of all stages of this Bill, because this is not a political matter in the slightest. The noble Lord, Lord Renton, as one would expect of one of his eminence as a lawyer, has correctly recited the civil law in regard to trespass. We are dealing with criminal law here, not the civil law.
7.44 p.m.
Lord Campbell of Alloway: In the interests only of clarification, may I say that it seems that we are in danger of confusing the civil law of trespass with the proposed criminal entry under Clause 2(1) of this Bill? If there is an unlawful entry prohibited by Clause 2(1) of this Bill, then I do not understand what useful purpose could be served by adding the qualification "remaining". If, on the other hand—and I speak with due deference because I speak in the presence of lawyers more distinguished than I am—the entry was lawful under Clause 2(1), then remaining there could be made a criminal offence by extending expressly the provisions of this Bill. But the question is, ought we to import into the criminal law—which is what is proposed—any such extension?
The argument of the smoking gasman is an argument which really arises and is resolved, as I understand it, according to the civil law of trespass. The problem which arises as I see it—and I repeat that I speak with due deference—arises under subsection (3) where somebody who gets into a place open to the public lawfully, remains there unlawfully—and all right, unlawfully at civil law, but why not also unlawfully at criminal law? Therefore, with the utmost respect, it seems to me that there is a case in accordance with the spirit of this amendment for amending Clause 2(3).
Lord Renton: I said so.
Lord Campbell of Alloway: Yes, I appreciate that my noble friend Lord Renton referred to amending Clause 2(3) and 2(4), I am concerned only with 2(3), and I can see every justification for that, and I hope that my noble friend Lord Elton might be able to pass a provisional view on that. But outside that ambit I cannot quite see—perhaps for want of understanding—why there should be any further amendment.
Lord Renton: I think I owe it to your Lordships and to my noble friend to explain on the point that my noble friend has made about the difference between civil trespass and criminal trespass that the words "as a trespasser" would have to be interpreted by the courts in the light of the existing law, whether it is criminal law or the law of tort. There is such a thing already as criminal trespass—for example, trespass in pursuit of gain. The courts would be entitled to look to the deciding cases under that branch of the criminal law. But they will also be entitled to look to the definitions of trespass in the law of tort. Therefore, with deep respect to my noble friend I think that it would be taking too narrow a view to say that we should not look to the existing civil law in relation to the definition of a trespasser.
I think my noble friend made a strong point when he referred to the perhaps desirability of inserting in subsection (3) after "entering" in line 2 on page 2 the words "or remaining there". I had contemplated that that would he a consequential amendment to the one that I am moving. But I quite agree with my noble friend Lord Campbell of Alloway that it deserves recognition as an amendment on its own. At this stage there is not one on the Marshalled List. It might come later.
Lord Airedale: The noble Lord, Lord Renton, took as an example the gasman. The man I am concerned about, because he is quite prevalent, is the gentleman who knocks at the door and says he is an antique dealer. The old lady opens the door, he gets his foot in the door and walks into the house and will not leave until he has persuaded the old lady to sell him a clock worth £50 for about £5. He commits no offence so far, as far as I know. But supposing the old lady is able to go to the police and say, "I tried every way I could to get him to go. The only way I could get him to leave was by selling him the clock, which I never intended to sell him at all. I only sold it to him to get him to leave".
If the old lady can go to the police and complain that this man would not leave her house when he was told to, he will perhaps be liable for a criminal offence under this Bill if this amendment is accepted. He will know that, if he behaves like that and the police hear of it, he may he in front of the criminal court. I should have thought that was perhaps a good reason for accepting this amendment.
Lord Elton: We must remember that this is not my Bill, it is not the Government's Bill, it is my noble friend's Bill and he will doubtless come to a conclusion on this. I might be able to make a brief intervention which could help the Committee.
Incidentally, may I welcome the noble Lord, Lord Mishcon, to the ranks of those who know what it is like
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continually to be saying "no" to those whom they regard with esteem and good intention? Perhaps he will treat me with a little more sympathy and understanding in future, not that I complain of what he already gives me.
We are getting a little army of people because we shall have the mobile and the static lurker to look at in a moment. On the question of the smoking gas man, my noble friend Lord Renton has to answer some points made by my noble friend Lord Campbell of Alloway, but generally such cases and, more particularly, the case brought in by my noble friend Lord Campbell of Alloway of the mobile lurker—that is, the person who stays behind when the stately home closes—are caught as soon as the person moves into another part of the building; because in Clause 2(1) we see that,
"Subject to the following provision of this section, a person who without reasonable excuse enters any building or part of a building".
He can stay behind the curtains in the dining room until the following morning without committing an offence, but as soon as he goes into the saloon he has committed an offence. If he stays in the dining room and takes nothing with him when he leaves, no harm is done except to the amour propre of the owner of the stately home and if he takes something with him he has committed either theft or burglary or both. Therefore we need not worry about him.
What is exercising me about my noble friend's proposal is that there are two aspects to it. One is that, in the review which we carried out prior to the emergence of this Bill, we did not get any clear signal that this is a widespread mischief. I think we have to restrict ourselves in this Bill to the minimum if it is hoped to succeed. The noble Lord, Lord Mishcon, has made quite clear the sort of difficulty into which it might run if it were extended in this way. Therefore, I hope that your Lordships will agree with my noble friend Lord Onslow if he decides that this is not an acceptable amendment. I hope that after this little debate my noble friend Lord Renton will advise me if I have ever outstayed my welcome, because I reflected earnestly on that when I read the Order Paper.
The Earl of Onslow: I hate having to disagree with my noble friend Lord Renton, who has been of so much help in this Bill. When we were discussing it he said "Flattery will get you nowhere at all". I think that possibly it does sometimes, but I am not just flattering him, I am saying with great sincerity that he has been of enormous help on the Bill. I do not like disagreeing with him.
For the sake of argument, let us assume that this antique salesman or buyer is a part-time antique salesman and his regular job is that of a gas man who is having an affair with the lady of the house. Thus we can have a smoking gas man/antique dealer/lover who is asked to leave. This is taking hard cases to a brittle interior. I do not think we should enact that sort of legislation. If we continue and bring in the smoking gas man and the girlfriend or the boyfriend, that produces difficult problems.
Years ago we had a chap whom my parents desperately badly wanted to leave the house. He was much older than them so they did it by being frightfully good-mannered and saying, "Blank, will

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you have another drink?" He said, "No, I won't keep you young people up", but held out his hand for another glass of gin and tonic. He would never leave until 4 o'clock in the morning. We always wanted him to go, but staying on almost reduces the late (who shall be nameless) into a criminal. We must be very careful.
I say we "we", meaning "I", but the Government have given acceptance and backing to a Bill which creates a very narrowly-defined, very boxlike offence of trespass. I resist this amendment strongly because it wobbles the box at the edges. I want to get a little bit of what I think is right and the Bill as drafted produces a de minimis offence, which is what we want, I would rather have that and that alone than extend it, especially if it produces difficulties at the edges.
Lord Renton: I am grateful to the noble Lord. Lord Airedale, for his support on the amendment. I am grateful to all those noble Lords who have commented upon it and spoken about it. I assure my noble friend Lord Onslow that when I come to withdraw the amendment his attempted flattery will not have influenced me one bit.
It is with great sorrow and regret that I shall withdraw the amendment. I only hope that my attempts to remove doubts and to anticipate a point which will arise in practice, will not turn out to have been misguided in the years to come. In fact I think it may well be otherwise, but, in view of what has been said by my noble friends, I must obviously in the circumstances beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.56 p.m.
Lord Airedale Lord Airedale moved Amendment No. 4:
Page 2, line 14, after ("is") insert ("committing an offence under subsection (1) of this section").
The noble Lord said: Perhaps we could also discuss this amendment together with Amendment No. 5, because it is together that they achieve a single purpose.
Amendment No. 5: Page 2, line 15, at end insert ("committing such an offence.").
These are amendments to subsection (6), which says:
"For the purpose of arresting any person … a constable in uniform may enter (if need be, by force) and search any premises where that person is or where the constable, with reasonable cause, suspects him to be".
It says "any premises". That does not just mean the premises where he is suspected of trespassing. It means, for instance, his parents' home. If he has gone home, locked the door and gone to bed, under subsection (6) the police have power to enter by force his parents' home to arrest him.
On Second Reading the noble Lord, Lord Renton, drew an interesting comparison with Section 7 of the 1977 Act. It is a very kindred offence; adverse occupation of residential premises. That offence in the 1977 Act is punishable twice as heavily by imprisonment as this offence. It is six months'
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imprisonment as against three months' maximum under this Bill. The section of the 1977 Act adopts the same words as this Bill about a constable in uniform being allowed to arrest without warrant, but the 1977 Act makes no mention of this power of the police to enter, if need be by force, any premises in order to arrest an offender. I concede that, as the Minister pointed out on Second Reading, it might be somewhat Gilbertian if a trespasser had gone into somebody's house and locked the door and the police—
The Earl of Onslow: I think the noble Lord has forgotten Section 11 of the 1977 Act, which applies exactly the same rule as this does to Section 7. So, with the best intentions in the world, he is misleading the Committee.
Lord Airedale: I must look at that. I think that the noble Earl is talking about subsection (11) of Section 7 of the 1977 Act, but perhaps we can resolve that later. I have lost track of what I was saying. The Minister pointed out a Gilbertian situation where the trespasser had entered somebody's house and had locked the door behind him, and where the police had no power to enter by force in order to arrest him. I concede that; and these two amendments leave that position so that, if it is a case of entering the very house which has been entered by the suspect, the police have power to enter those premises by force. But what I submit to the Committee is that where you have a crime which is not one of the grave crimes, as crimes go, because it is only punishable with a maximum of three month's imprisonment, it really is not necessary to give the police power to chase him all over the city and to enter by force any other premises, wherever he may be and however much other people may be disturbed by the actions of the police, in order to arrest him for this really not terribly serious criminal offence. I beg to move.
Lord Renton: After the support which the noble Lord, Lord Airedale, gave me on Amendment No. 3, I feel a bit churlish in having to oppose him on this amendment. But I wonder whether he would not, on consideration, realise that he is introducing a rather extraordinary proposition into the criminal law. What this amendment says, in effect, is that unless a criminal is arrested in the exact spot or on the premises where he committed the crime, he should not be arrested and convicted, however serious the crime might be in the circumstances.
I know that this is not as serious a crime as the one which the noble Lord mentioned in connection with, for example, entering a foreign embassy—although some people would say that it is just as serious. But it is a proposition that one could not possibly accept, is it not? Take the intruder who goes up a drainpipe, gets into a lady's bedroom in the early hours of the morning and then decides, instead of staying on in that bedroom after smoking a cigarette and covering her sheets with blood, to shin down the drainpipe. To say

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he has really purged his contempt, so to speak, and that he should no longer be convicted surely does not make sense.
Lord Airedale: I have never heard such extraordinary propositions. The noble Lord, Lord Renton, seems to be putting forward the proposition that, however trivial a criminal offence that somebody commits, the police shall have power to break into any premises, wherever he may be, in order to arrest him for that trivial offence. That cannot be what we desire.
Lord Elton: I think the noble Lord, Lord Airedale, would agree that the Bill must provide for the worst cases as well as the least bad and most trivial case. We cannot have a separate clause for each. The police may be pursuing to some other place the sort of person that my noble friend has suggested. They may have twice already had an old people's home or a children's home or some other place terrorised by somebody who came in and disappeared. On the third occasion, he may have been identified and it may be known where he can be found. Are the police then to have to sit outside the home like terriers outside a rat-hole waiting for the offender to come out before they may arrest him; or are they to go away and hope that they run into him by chance before he commits the offence again?
It seems to me that we have to provide for cases where there is a serious need to prevent a recurrence of what is a quite serious offence. Let us suppose that it was a hospice for the dying which had been desecrated by the presence of somebody behaving in an unseemly manner. The noble Lord would be the first to wish the police to take steps to see that it did not happen again. I think that he would, in those circumstances, be glad that they should be able to go and arrest him elsewhere, and, if he has locked the door and will not unlock it, it may even be the case that they ought to be able to open it by force. I think that that is all my noble friend is asking. I hope that he will persuade the noble Lord that he is right.
Lord Campbell of Alloway: Surely, the amendment seeks to afford statutory recognition of the medieval practice of sanctuary by grasping the cathedral door knocker.
The Earl of Onslow: I think it might be for the benefit of the Committee that I read out Section 11 of the Criminal Law Act 1977, which says:
"For the purpose of arresting a person under any power conferred by any provision of this Part of this Act other than section 9(7) above a constable in uniform may enter (if need be, by force) and search any premises where that person is or where the constable, with reasonable cause, suspects him to be".
The powers put in this Bill are powers which we already have in the 1977 Act. Furthermore, coming to your Lordships' House later is the Police and Criminal Evidence Bill, where powers of search and entry, et cetera, are going to be codified and sorted out. I would suggest that it is right, that we should put into this Bill what is in the 1977 Act, and, if it has to be changed in the next Bill, that we do that consistently; in other words, that we try to maintain consistency. If we have different powers of search and entry for different offences it is confusing to the public and confusing to
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the police, and it may enable technical aquittals to be brought about. That would be a bad thing.
Lord Airedale: I owe the noble Earl an apology. The enforcement provisions in this Bill are together in Subsections (5) and (6) of Clause 2. If they had been together in the 1977 Act I should not have made the mistake that evidently I have made of overlooking Section 11. I apologise, and had better beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
8.9 p.m.
On Question, whether Clause 2 shall stand part of the Bill?
Lord Mishcon: I rise to make two points. At Second Reading I expressed a view that I had tried to summarise before, and the noble Lord, Lord Renton, correctly reminded the Committee that I then expressed, and made it very clear that I expressed, a personal view on this Bill. The gravamen of my charge against the Bill, if I can put it that way, is that it did not even include the words that were originally in the Bill when it came before your Lordships' House on a previous occasion, making it the essence that the intruder (if I may so call him) had caused annoyance, trepidation and whatever it was.
The answer I was given by the noble Earl, who always expresses himself with complete and positive integrity whenever he addresses the house—and by the noble Lord, Lord Renton, to whom I would apply exactly the same phraseology—was that in this Bill the question of reasonable excuse was an onus that was firmly placed upon the prosecution to prove. I believe that was very persuasive upon your Lordships on that occasion. In other words, the prosecution had to prove that the defendant had no reasonable excuse for being on the premises. I ventured to differ from that view even though it was obvious that the noble Earl was expressing the advice that had been officially given to him.
There is no need for me to quote the speeches made on that occasion. They were very definite about that. The noble Earl, with his customary courtesy and frankness, as I have said, wrote me a letter today in which he said that upon further advice being taken it appeared that what I had said on Second Reading was right and what he and others had said on that occasion was wrong, and that certainly it looked as though in the magistrates' court when this matter came before the magistrates, then the onus would be, on the basis of balance of probabilities, on the defendant and not on the prosecution. I thought I owed it to myself to make that abundantly clear. The noble Earl will doubtless have a few words he would like to add on that point.
I can be very brief about my second point. The originator of it is not myself but the noble and learned Lord, Lord Edmund-Davies, who would have wished to have been here this evening in order to make the point himself. Unfortunately he is not feeling very well and therefore cannot be with your Lordships. He has

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asked me to mention this point to the Committee, and I gladly do. I do so in case those who are in charge of the Bill would wish to recognise the point and themselves see that it is rectified, otherwise it may well be that an amendment will be put down on Report.
The noble and learned Lord, Lord Edmund-Davies, referred to the words which appear at the end of subsection (2) of Clause 2. Those words read:
"knows or has reasonable cause to believe that the building is a building to which this Act applies."
The noble and learned Lord says—and I think, with deep respect, says quite correctly—that on the face of those words it would mean that the trespasser must be proved by the prosecution to have known or to have had reasonable cause to believe that the Criminal Trespass Act—if, indeed, it does become an Act—applies to the building. That, surely, cannot be sense. The words ought to read "knows or has reasonable cause", et cetera, "that the building is a building in which a person has his home or other living accommodation". Now, if that is put clearly in the Bill so that the question is purely and simply for the prosecution to have to show that he was in such a building, then quite obviously the Bill will be very much more clear than it is now. I make it quite clear to your Lordships that this is the view of the noble and learned Lord, Lord Edmund-Davies, which I am sure will be greeted with the respect that any view of his would always command in the Committee.
Lord Renton: May I say that the noble Lord, Lord Mishcon, has done the Committee a service by raising this point again. When, in answer to a question in effect by him on Second Reading, I gave by the light of nature and to the best of my recollection of the law the answer to which he referred, I may or may not have been right; but the Government since then have had the opportunity of taking advice and will no doubt give us the true answer.
The Earl of Onslow: First of all, I should like to apologise for giving the wrong information to your Lordships on the subject quite rightly raised by the noble Lord, Lord Mishcon. It was not only the advice I received; I had advice from lots of people—all distinguished lawyers, all who told me this, and then I got up and said all this with enormous confidence and finished up with large dollops of egg all over my face, for which all I can do is to apologise to your Lordships. It appears that this is the standard magistrates' courts practice. Again one is aiming for consistency. It is the same point as I tried to make with the noble Lord, Lord Airedale, on the last amendment; if you have inconsistency with powers of arrest that is wrong, and it is equally wrong I suggest to have inconsistency in powers of reasonable doubt and proof which apply to magistrates' courts and it is only sensible to have consistency.
On looking at the other point raised by the noble Lord, Lord Mishcon, quoting the noble and learned Lord, Lord Edmund-Davies, having been told by lawyers that one thing is correct, I am now going to do this without being told by lawyers that it is correct so perhaps again I am wrong, but it seems to me that a
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building to which this Bill applies refers straight back to Clause 1, which says:
"This Act applies to any building in which a person has his home or other living accommodation".
I honestly would have thought that to a layman anyway there was no doubt as to the clarity of it; but, of course, one will look at it and take further advice and hope there is no more egg! So on that point, I hope that we can pass the clause and let it stand part of the Bill.
Lord Elton: Just to say a word, having been involved at secondhand, as it were, in the advice which my noble friend—as it proved, slightly misguidedly—took, may I thank the noble Lord, Lord Mishcon, for the courteousness with which he pointed out the error, and my two noble friends for the grace with which they admit it. But I ought also to contribute to this exchange. I am glad we got it sorted out.
Clause 2 agreed to.
Remaining clause agreed to.
House resumed: Bill reported without amendment; Report received.

Telecommunications Bill
8.18 p.m.
Consideration of amendments on Report resumed.
Lord Bruce of Donington Lord Bruce of Donington had given notice of his intention to move Amendment No. 91C:
Insert the following new Clause—
("Disclosure of information.
.—(1) A person who otherwise than in the course of his proper duty as an employee of a telecommunications operator licensed under section 7 above

(a) intentionally discloses information relating to the destination, duration or cost of a user's use of a telecommunication system licensed under section 7 above; or

(b) instigates any person engaged in the business of a licensee to disclose information relating to the user's destination, duration or cost of a user's use of a telecommunication system licensed under section 7 above,

except at the request of the said user, or unless acting in obedience to a warrant issued pursuant to the following provisions of this section, shall be guilty of an offence and liable on conviction on indictment to a fine not exceeding £5,000 or to imprisonment for a term not exceeding three years or to both.
(2) Proceedings for an offence under subsection (1) above shall not be instituted in England or Wales except by or with the consent of the Attorney General, or in Northern Ireland except by or with the consent of the Attorney General for Northern Ireland.
(3) The Secretary of State may, on the application of a chief officer of police or the Commissioners of Custom and Excise, issue a warrant for the disclosure of information, if he is satisfied that—

(a) it would assist in the detection of a serious offence;

(b) normal methods of investigation have been tried and have failed or from the nature of things are unlikely to succeed if tried; and

(c) there is a good reason to think that the disclosures would result in a conviction for that offence.

In this subsection "serious offence" means—

(i) an offence for which a person not previously convicted could reasonably be expected to be sentenced to imprisonment for a term of three years; or

(ii) an offence in which either a large number of people is involved or there is good reason to apprehend the use of violence or the financial rewards of success are very large.

(4) The Secretary of State may, on the application of a chief officer of police or the Director General of the Security Service

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issue a warrant for the disclosure of information if he is satisfied that—

(a) it would assist in the detection of a major subversive, terrorist or espionage activity giving rise to external or internal danger to the Defence of the Realm; and

(b) normal methods of investigation have been tried and have failed or from the nature of things are unlikely to succeed if tried.

(5) An application for a warrant under this section shall be made in writing and shall specify—

(a) the person about whom the information is sought, and the nature of the information in question; and

(b) the facts and circumstances in support of the application.

But the Secretary of State may allow any information required under paragraph (b) above to be provided orally and not in writing in respect of an application for a warrant under subsection (4) above.
(6) Except in case of an emergency any warrant under this section shall be issued only under the hand of the Secretary of State; and, in any such case, shall be confirmed under his hand as soon as reasonably practicable after issue.
(7) Any warrant issued under this section should carry a time limit not exceeding two months from the date of issue and may he renewed for not more than one month at a time in the case of an application of the police, not more than two months at a time in the case of an application of the Customs and Excise, and not more than six months at a time in the case of an application of the Security Service.
(8) In this section "disclose" includes the doing of any act designed to enable a disclosure to take place, and "disclosure" and "discloses" shall be construed accordingly.
(9) Nothing in this section shall prevent a telecommunications operator licensed under section 7 above to collect and publish statistics on the operation of his telecommunication system.").
The noble Lord said: My Lords, the noble Viscount, Lord Whitelaw, the Leader of the House, towards the conclusion of his remarks directed to Amendment No. 91 B also referred to this particular amendment, No. 91 C. He gave an indication that the whole question of the disclosure of information, as distinct from telephone tapping, relating to the dissemination, duration or cost of the user's use of a telecommunication system would be further considered in the light of any judgment emanating from the European Court for possible conclusion within the Bill to which he was kind enough to refer in connection with the previous amendment.
With the leave of the House, I should like to say that I ventured to bring forward this amendment pending discussions which I take it will be held between the usual channels in order to find out more precisely the Government's intentions in regard to this amendment and the particular text incorporated within it. I would expect that we shall have an undertaking or proposal on very similar lines to that which was so freely and emphatically given in regard to Amendment No. 91 B. I would welcome a further indication from the Government as to how they propose to deal with the substance of No. 91C. There is the possibility of its being moved at Third Reading, depending of course on what indications are received from the Government, but I shall not move it now.
[Amendment No. 91C not moved.]
Clause 47 [General functions]:
Lord Orr-Ewing Lord Orr-Ewing moved Amendment No. 92:
Page 44, line 25, after third ("to") insert ("demand and").
The noble Lord said: My Lords, I think it may be for the convenience of the House and would help the speed of our progress if we were to take 92, 93 and 94 together.
Amendment No. 93: Page 44, line 25, after ("collect") insert ("sufficient").
Amendment No. 94: Page 45, line 6, at end insert—
("() It shall be the duty of the Director to review and investigate information collected under subsection (2) above, particularly that collected from the subsidiaries of "the successor company" designated by the Secretary of State in section 58(1) below with a view to inhibiting anti-competitive practice").
I should like first to quote what the Secretary of State was reported to have said in the Financial Times only last Friday. He said:
"The Government is determined to bring about genuine competiton in telecommunications."
He then said:
"Legislation is now going through Parliament which gives the Government wide powers to ensure full and fair competition."
It is as to where the competition is not full and fair that some of us on these Benches and in other parts of the House differ. The amendments I have put down were submitted by the Independent Telecoms Suppliers' Association. This is a small trade association but nevertheless important, because it has 45 member companies and between them they have an annual turnover of £50 million. It feels that the Bill does not give the director sufficient powers to demand detailed accounts from each subsidiary after denationalisation. It seeks to make it a duty of the director that the successor company does not use its monopoly powers and position to take commercial advantage from cross-subsidisation.
The justification for these amendments, briefly, is that they will help to inhibit the introduction of goods and services at a price below the economic cost in areas where competition from small suppliers like these 45 companies is most vulnerable to unfair competition. I should like briefly to give the House an example which clearly shows that the Office of Fair Trading (also part of the DTI) does not move quickly and cheaply, as my noble friend said when dealing with an earlier amendment. It moves very ponderously and very slowly indeed. My noble friend Lord Spens mentioned two years. I have rechecked the figures and I think that the complaint about slowness and the unfairness of the finding on the question of paging took three years. Three years is far too long—
Lord Bruce of Donington: My Lords, I thank the noble Lord for giving way and I must apologise for interrupting him. He did say that the Office of Fair Trading was part of the DTI. On reflection, perhaps he would like to correct that because, to the best of my knowledge, it is quite independent of the DTI.
Lord Orr-Ewing: My Lords, I think it is fair to say that it comes under the umbrella of the DTI although it has a considerable measure of independence. The Secretary of State answers questions on it, because we have recently put one to him. But I agree that it has a large measure of independence. However, it does not move quickly; and if this is an example of the manner in which the Director General of Oftel is going to move, it is a very poor example. A complaint was made three years ago that there was arrant cross-subsidisation going on in respect of paging. A number of private companies started paging—"bleeping" it is called in some places—three years before Oftel came into the market at all.

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What is astonishing is the amount of money that BT is now spending on press and television advertising. I exclude postage, but most of our post bags are pretty full of BT advertising. This is a form of gross cross-subsidisation. In 1983—and the figures are supplied to me by Media Expenditure Limited, which I am told is a reputable assessor of this—TV and press advertising by BT amounted to £1·75 million on paging alone. At the current rate, this year it is £2·4 million. That cannot possibly derive from income from the leasing or the selling of paging systems: not possibly. The 22 companies in the paging trade association between them do not spend £2·4 million or £1·75 million: they spend £50,000. So BT is spending 35 times as much on press and television advertising, and almost all at prime time, by the way. I should like to go on to give the global figures to the House. So far I have given a small selection on paging because that is what the OFT was asked to judge on, but to give the current global figures, they are that £24·25 million is being spent on the corporate advertising of BT.
Therefore I do suggest that this is gross cross-subsidisation and that it is impossible for any private sector to prosper in the face of that sort of expenditure. They have, although they started afterwards, now built up to 70 per cent. of the market and they have put themselves in a monopoly position. They have got more than 25 per cent. of the market and normally they would be subject to investigation. I ask the House to say—and I hope that my noble friend will give some comfort—that we must hurry on to make sure that the accounts of the individual parts of BT are properly kept, because until that is done there is no question of fairness in the competition which exists. With those figures, I think anyone would be amazed that BT has set itself on this course and spent this sort of money, in the face of the very small amount that the private sector can afford to spend in return. I beg to move.
8.30 p.m.
Lord Bruce of Donington: My Lords, I have listened with very considerable interest to the remarks that have fallen from the lips of the noble Lord, Lord Orr-Ewing, who I gather inserted the amendment at the request of an association whose name I have forgotten for the moment but which undoubtedly is one of the important organisations seeking to make itself articulate through the admirable agency of the noble Lord.
It is, of course, quite proper that these views should be articulated on behalf of various interested bodies. All I would respectfully suggest to the noble Lord is that, when these matters are articulated, they should be articulated a little less shrilly. Organisations of this kind have no right to suggest that the Secretary of State or the director demand information or demand sufficient information. The words in the subsection are quite adequate for this purpose and they do not need outside emphasis from an outside body that is not wholly financially disinterested as regards the outcome of the discussions.
In regard to the other matters referred to by the noble Lord which he sought to introduce under the umbrella of these three amendments relating to advertising, I do not know what the noble Lord is
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complaining about. The noble Lord justifies the whole process of privatisation on the basis that energy, initiative and drive must be shown in these various industries. British Telecom is already making a very substantial profit, which is one of the reasons why it is being privatised, because noble Lords on the Benches opposite are not interested in privatising anything that is already making a loss. Why, then, should BT not behave like a normal commercial organisiation? It seeks to further its future and, in so doing, it advertises. If the noble Lord wants me to give him instances of where private enterprise indulges in vast sums of money, much vaster than he has mentioned, in consumer persuasion I shall be most happy to do so. But I do not see that he has any particular reason to complain: and, if he has any reason to complain I do not think that these amendments are the best way of doing it.
We always listen to the noble Lord with interest and with some affection, but we hope that in this instance he will realise that these amendments are not the best way of articulating the views for which he is renowned and with which, if I may say so with respect, we are already familiar. If the noble Lord, Lord Cockfield, out of pure benevolence and friendly feeling towards his noble friend, cares to accept the amendment, we shall quite understand. But, in the meantime, we hope that the usual common sense and logic for which he is so renowned will prevail and that he will not see fit to accept his noble friend's amendment.
Lord Mottistone: My Lords, I really think that either the noble Lord, Lord Bruce, is more ignorant than I believe or he is deliberately trying to misconstrue the situation, in order—dare I say it?—to direct the House in the wrong direction, because what he omits to take into account is the fact that we are talking about a vast monopoly. When a vast monopoly uses its vast funds for advertising on a narrow front as excessively as my noble friend has been pointing out, that is a form of cross-subsidisation, because it is using funds that smaller competitors do not have.
When we talk about smaller competitors we are talking about competitors that are very much smaller. They are not just within striking distance of the size of this great monster; they are tiny and do not have the resources to match the sort of advertising that my noble friend was taking about. That is why this amendment is needed to strengthen this Bill in this area, because we are dealing with a special case. The fact is that you cannot just say that British Telecom is using its finances to advertise in a way that is comparable with private enterprise, because ordinary private enterprise is heavily restrained in the size it can be—between 25 and 40 per cent. of the market is the absolute limit—and therefore it is competing with organisations of comparable size which have the same sort of money to dispose of for this purpose.
It is very strange that the noble Lord, who is on the one hand an accountant and on the other hand has some connections with the City, should seek to suggest to your Lordships that poor little British Telecom, this poor, tiny organisation, this soft, golden-hearted body which tries its best to look after the British public—though the British public has no idea whether it is doing its best and nor has British Telecom,

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because it does not have the competition to prove it—needs to be specially protected. Everybody else needs to be protected against it, and the sad thing about the matter is that the Government are going the wrong way about it and going to privatisation before making sure of the competition. But we have had that argument before.
This little amendment—and it is not an important, far-reaching amendment; it is a very important one for the small companies, but is not important in the view of this huge monopoly company—is one which is seeking to persuade the Government to give a little more strength in this area, to make quite certain that the big monopoly is disciplined and that its affairs and its finances are properly looked into. It would be most sensible if my noble friend on the Front Bench would accept this amendment as being a useful piece of underpinning of the Bill to achieve what is needed. One hopes that, in the next century, British Telecom will have been brought down to a reasonable size in proportion to its competitors, and perhaps we shall then have another Bill which may be able to remove what I hope is now going to be put in.
Lord Weinstock: My Lords, I do not share the optimistic expectation of the noble Lord, Lord Mottistone, of what may be the position of British Telecom in the 21st century, in relation to its size in comparison with its competitors. Several amendments were tabled at the Committee stage which sought to prevent unfair competition by public telecommunications operators, not only BT, resulting from subsidies for their network businesses to their supply or manufacturing businesses or between the latter two. The scope for abuse is very wide. For example, costs like connection charges for new terminal equipment or maintenance for an initial period could be recovered in high call tariffs established at an early stage—an option which is not available to any of BT's competitors or potential competitors.
In dealing in Committee with Amendments Nos. 79, 80, 80A and 80B, the noble and learned Lord the Lord Advocate, of whom I have become very fond during the course of these debates, and whose absence I currently regret, said that any public telecommunications operator should only engage in the manufacture of apparatus in a different company from that which runs the network, with a different management and different accounts. The noble and learned Lord also accepted that the arrangements should exclude the possibility of cross-subsidies.
The noble Lord, Lord Cockfield, speaking to Amendment No. 124, said that the Government intend that BT will have to conduct its network operations, its apparatus supply activities as well as its apparatus manufacturing business on an arm's length basis. Noble Lords will no doubt conclude that the conditions concerning different management, different accounts and the prohibition of cross-subsidy stated by the noble and learned Lord the Lord Advocate to apply as between network operation and manufacture, will similarly apply as between apparatus supply and each of the other two activities referrred to by the noble and learned Lord.
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The noble and learned Lord also made reference to a possible period of grace during which separate subsidiaries will be set up. I hope that on reflection the Government will decide than any grace period during which cross-subsidy could legitimately occur is unacceptable. Even if during the few months necessary to set up the subsidiary companies the rigour of fully detailed measures of control cannot be applied, it is surely the duty of the Government to see that no unfair competition is permitted.
For the longer term, it should be required of public telecommunications operators, in the licences, that accounting procedures are sufficiently specified to ensure that the arbitrary allocation of overhead costs between the separate activities of a licensee is avoided. This can best be achieved by requiring that allocated overheads may not account for more than a quite small percentage of total indirect costs. However, the complete separation of the supply activity from the others does give rise to some eccentricities. For example, when it installs a line and socket in a domestic subscriber's premises, the network business will be prohibited from supplying the telephone or other apparatus, or even from dispensing publicity material for such products. That is hardly an economical way of proceeding.
There is an obvious potential for the ridiculous in this Bill, but then this is a ridiculous Bill. Noble Lords will not wish to deny the Government room to make as much sense as they can out of it, but I doubt if many of your Lordships will be disposed to espouse arrangements which run counter to the Government's declared aims with regard to competition. These relatively minor difficulties should not obstruct the creation of the distinctly separate subsidiary for the supply activities of British Telecommunications, a matter of vital importance for all the companies engaged in apparatus supply and particularly of equipment and systems required for business use, which account for the larger part of the market. If the Government have the will, satisfactory arrangements can be worked out with regard to these matters and covered in the licence without sacrificing the principles involved.
With regard to Amendments Nos. 92 and 93, I am not at all sure that it is necessary to alter the words to include the word "demand". I should have thought that the noble Lord, Lord Orr-Ewing, would believe the present wording to be sufficient. I do not believe that the little Amendment No. 94 deals with all the questions I have raised, although I think that all those questions are relevant to it. However, if Amendment No. 94 is put to the House, I shall support it as a step along the way.
8.43 p.m.
The Earl of Halsbury: My Lords, I must apologise for not having been in my place when the noble Lord, Lord Orr-Ewing, rose to his feet. I am not the first person to have been caught as a victim of the sudden acceleration in the tempo of debate after supper. However, I knew what the noble Lord, Lord Orr-Ewing, was going to say, so I do not think that I missed very much, and I was in my place when the noble Lord, Lord Bruce of Donington, rose to speak.

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I should like to support particularly Amendment Nos. 92 and 93, notwithstanding what the noble Lord, Lord Weinstock, has said. They represent a very modest increase in strength. The unamended Bill requires that information should be collected. To say that it should be demanded and collected means that initiative is expected of the director. To say that it should be sufficient means that he should follow it up. Is that so very much to ask—to drop a broad hint that the director is expected to show initiative and to follow up that initiative? I suppose that I may be met by the usual schizophrenic attitude of the Front Bench with regard to the Bill. They believe in supporting small industries. That is the declared purpose of the Government. On the other hand, they want to sell British Telecommunications to the public for the highest price possible, which means leaving it in as strong a position over its competitors as it can be. From these two entirely opposite points of view they have concentrated on the latter.
I described in Committee that it seemed to me that they were suffering from an undisclosed failure to declare an interest in the matter. In this connection, I still feel that psychologically—I am not imputing any kind of dishonourable conduct to them—the Government have a slightly blind spot. That is why I support the noble Lord, Lord Orr-Ewing, and hope that the Front Bench will be able to bend a little from their unyielding posture and give the noble Lord what he wants.
Lord Morris: My Lords, the noble Lord, Lord Bruce of Donington, has displayed both courage and humility in accusing my noble friend Lord Orr-Ewing of shrillness. As the high priest of that particular art, the noble Lord has been very generous in giving away his position to my noble friend.
Lord Lyell: My Lords, I hesitate to intervene in such a lively and charming post-prandial debate as the one we have just engaged in. The noble Lord, Lord Bruce of Donington, kept the temperature at its usual healthy level, with the result that the debate was kept moving. I shall attempt to cover the many points that have been raised in the debate on this series of amendments.
We are very grateful to my noble friend Lord Orr-Ewing for saving the time of the House by speaking together to the three amendments. I am sure that my noble friend Lord Orr-Ewing and your Lordships will accept that all of the amendments seek to strengthen the duties of the director general, in requiring him to deal with such things as anti-competitive practices. Equally, I hope it is clear from the various debates we have had on the Bill that the Government are determined to give the Director General of Telecommunications adequate powers to deal with these anti-competitive practices about which we have heard such strong complaints from your Lordships. There is no disagreement between the Government and all noble Lords who have spoken, in particular those noble Lords who have moved the amendments, about that overall aim. But the fact that the amendments were tabled suggests that we on the Front Bench have not adequately explained how the Bill will
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achieve the objective which has been so eloquently set out by my noble friend.
If noble Lords will glance at Clause 47, they will see perhaps the most fundamental layout of the duties of the director general. He must set out to make himself an expert about telecommunications. Under subsection (1) he must keep under review the carrying on of all—I stress the word "all"—activities connected with telecommunications both within the United Kingdom and outside it. Under subsection (2) the director general has the further—
Lord Mottistone: My Lords, perhaps my noble friend would allow me to say a word.
Lord Lyell: My Lords, I would remind my noble friend that we are at the Report stage.
Lord Mottistone: My noble friend said, "I repeat `all' activities connected with telecommunications." I do not see the word "all" in subsection (1) of Clause 47. It refers simply to "activities".
Lord Lyell: My Lords, the subsection refers to keeping under review,
"the carrying on both within and outside the United Kingdom of activities connected with telecommunications".
May I ask my noble friend to have patience. I have not been on my feet for very long and this has been a lively debate. I am sure that my noble friend recognises that the director general has to keep under review the carrying on of activities—and I stress all activities—connected with telecommunications both here and overseas. Under subsection (2) the director general has the further duty of collecting information about commercial activities connected with telecommunications which are carried on in the United Kingdom.
These duties provide a basis for all the director's other duties, including his role in enforcing licence conditions under Clauses 16 to 18, his role in approving apparatus under Clause 22, his role in publishing advice under Clause 48, and his role in considering complaints under Clause 51. The duties in Clause 47—which is the clause we are discussing with these three amendments—are particularly relevant to the director's functions under Clause 49. That clause gives him the power to make competition investigations under the Competition Act and monopoly references under the Fair Trading Act. For this reason, Clause 47 is modelled on Section 2(2) of the Fair Trading Act. We believe that what has worked for the Director General of Fair Trading when he investigates anti-competitive practices ought to work for the Director General of Telecommunications as well.
There is one small difference in wording between Section 2(2) of the Fair Trading Act and Clause 47. Section 2(2) of the Fair Trading Act uses the words,
"with a view to his becoming aware of, and ascertaining the circumstances relating to, monopoly situations and anticompetitive practices",
whereas Clause 47(2) uses the words,
"with a view to his becoming aware of, and ascertaining the circumstances relating to, matters with respect to which his functions are exercisable".

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The difference in wording between the Fair Trading Act and Clause 47 is accounted for by the fact that Section 2(2) of the Fair Trading Act paves the way for the functions in Part IV of the Fair Trading Act, which are concerned only with monopoly situations and anticompetitive practices, whereas Clause 47 paves the way for all the director's various functions under the Bill.
Your Lordships may in various ways have interpreted the absence of any specific reference to anti-competitive practices as meaning that the director has no duty to collect information about such practices. We believe that is simply not the case. I mentioned that Clause 47 paves the way for all the different functions of the director under Part III of this Bill, including the problems which have afflicted my noble friends—in particular, the investigation of anticompetitive practices—as well as the other functions I have mentioned.
The arrangement envisaged in the Bill before us tonight is that having kept matters under review under Clause 47(1), and having collected information under Clause 47(2), the director will then be in a position to exercise his various functions on a far more informed basis. Having collected some information, he may become aware of a possible anti-competitive practice or an abuse of a monopoly situation which he thinks requires investigation.
His duty under Clause 47(2) requires him to collect information so that he is aware of the circumstances relating to the practice, so he is obliged to collect additional information. He can demand this further information in two ways. Your Lordships will note that Clause 7(5)(c) of the Bill before us this evening means that licences granted to telecommunications operators will include conditions requiring the operators to provide information to the director when he asks for it. The director could therefore ask operators to provide the information he wants. If the practice is not carried on by an operator, the director can obtain information under Section 44 of the Fair Trading Act, which gives him power to require the production of information—and I would stress "require the production of information"—where there are grounds for believing that there is a monopoly situation.
Having used these powers the director ought to be in a position to decide whether there is an anticompetitive practice. If there is, the director has three courses of action open to him, which I hope will be of some comfort to my noble friend Lord, Lord Orr-Ewing. If the practice is carried on by a licensed operator, the director can seek to amend the operator's licence under Clause 12 or Clause 15 to include a new condition to ban the practice. If the practice is carried on by people who are not operators, the director can either institute a competition investigation under Clause 49(3) or he can make a monopoly reference under Clause 49(2). Any of these three courses can lead to an order banning the anti-competitive practice in question.
I hope this explanation has been of some help to your Lordships, particularly to those noble Lords who have spoken. I further hope that my explanation will have persuaded my noble friend Lord Orr-Ewing that
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these amendments are really not necessary. I want to assure my noble friend and all noble Lords who have spoken on these amendments that there is no need to create a duty to demand information as suggested in Amendment No. 92. If the director needs information to put himself fully in the picture—and I would stress that he has a duty to ensure that he does ascertain the circumstances—he already has adequate powers to demand that information. He will use those powers with discretion, but if he is given a duty to demand information he will be positively required to do things such as sending around questionnaires which I believe my noble friend Lord Orr-Ewing and many of your Lordships would consider undesirable.
In the same vein, I hope your Lordships will accept that there is no need for a reference to "sufficient" information. We believe that the concept of sufficiency is already built into the words I quoted earlier:
"with a view to his becoming aware of, and ascertaining the circumstances relating to."
the exercise of his functions. I will go further and say that the amendment does not point out what the information is to be sufficient for.
Finally, the new subsection proposed in Amendment No. 94 is unnecessary because the director already has functions under Clause 49 in relation to anti-competitive practices. Clause 49 empowers the director to exercise all the powers of the Director General of Fair Trading in respect of anticompetitive practices. The Government are satisfied that these powers are sufficient to enable the director to deal with anti-competitive practices in telecommunications.
My noble friend Lord Orr-Ewing raised one particular complaint concerning the problems of radio paging. I am advised that the Office of Fair Trading did indeed take a long time to investigate the complaints made by Air Call against British Telecom. The reason was that the OFT could not find information to support the claims made by Air Call. I am advised that the OFT did examine British Telecom's charges and the operating costs of its radio paging service, and was satisfied about them. I hope my noble friend will accept that we do not feel that his criticisms of British Telecom or of the Office of Fair Trading are entirely fair.
The noble Lord, Lord Weinstock, made a few particularly interesting comments about these amendments. I have to say that not all his comments were strictly relevant to Amendments Nos. 92 to 94. As he himself pointed out, Amendment No. 94 is not relative to the matters which concern your Lordships, but we are certainly considering his points separately. I hope that I have been able to give explanations which, although somewhat technical, will persuade my noble friend to withdraw his amendments.
9 p.m.
Lord Spens: My Lords, I am tempted to embark on a diatribe about Clause 49 but I have agreed with the noble Lord, Lord Glenarthur, that I will not move my two amendments concerning that clause. The explanation given for Clause 47 is not very satisfactory. The noble Lord the Minister kept on talking about "all" and used the phrase "all

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activities". In fact, the word "all" is not written into subsection (1). Although his attention was drawn to it by the noble Lord, Lord Mottistone, he still talked about "all".
We are at the moment very doubtful as to whether the director general is in fact empowered, or has sufficient power, to investigate everything. It is only when he gets down to detail that he will see whether the successor company's subsidiaries are acting properly. That is what we are worried about. I wonder in those circumstances whether an amendment on Third Reading to introduce the word "all" into Clause 47(1) might be acceptable. Perhaps the noble Lord the Minister will consider writing it in himself.
I am also tempted, having heard the explanation about the particular worries of Air Call with the director of the Office of Fair Trading and the time it has taken for an answer to be given, to wonder whether I shall have to wait for a similar time before I get an Answer to my Written Question, which is now more than a fortnight old.
Lord Orr-Ewing: My Lords, with permission, I should like to say one word in reply to my noble friend. The Office of Fair Trading has taken three years. We were told that Oftel was modelled on the Office of Fair Trading. It took three years because it could not get the information. Where could it get information from? British Telecom? British Telecom did not have the information because at that stage, and even today, it does not keep proper accounts about individual parts of its organisation. That is what we are pressing for. It must get on and speed up the accountancy processes so that people know whether or not they are exercising uncompetitive practices. At the moment the delay is intolerable. Wherever noble Lords sit in the House they must surely agree that if it is to take three years to deal with a complaint a private company could go to the wall. Three months might be too long. We have to speed up the process if we are to see justice done.
I shall not press the amendment on this occasion because my noble friend has sought to give us some assurances. However, I hope to have considerably more assurances in the Third Reading speech from the Front Bench. Certainly all the evidence we have had to date is that these investigations will not be provided with enough speed to save the smaller private sector companies from going broke. Perhaps I may be allowed to withdraw the amendment in view of the assurances given by my noble friend.
Lord McIntosh of Haringey: My Lords, before the withdrawal is accepted I hope that the Minister will repudiate the dreadful allegation that the noble Lord, Lord Orr-Ewing, made that British Telecom do not keep proper accounts. If that is not repudiated it will make a great deal of difference to the possibility of a successful flotation.
Lord Weinstock: My Lords, before the noble Lord withdraws his amendment, may I point out that the duty put upon the director—
A noble Lord: Order!
Amendment, by leave, withdrawn.
Amendments Nos. 93 and 94 not moved.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 94ZA:
Page 45, line 6, at end insert—
("() It shall be the duty of the Director to ensure that each public telecommunications operator shall comply with the conditions specified in section 8 together with the condition that such an operator do apply the same charges for the supply and maintenance of telephone lines for voice telephony and for the conveyance of voice telephony messages within a local exchange area regardless of the geographical location of the user and do also apply throughout the United Kingdom the same method for determining charges and other terms and conditions for connection of users to their local exchange for voice telephony.")
The noble Lord said: My Lords, in view of the very helpful, lengthy and cogent analysis of Part III of the Bill given by the noble Lord, I am sure that even the Government Chief Whip will be pleased to know that I propose to treat this as a probing amendment, hoping to get some sympathetic observations from the noble Lord the Minister when I have finished. The Minister emphasised that Clause 47 set out certain fundamental duties of the director and that it was important to have these fundamental duties clear. We on these Benches take the view that it is the duty of the director to maintain certain charges which are at present uniform throughout the country and which we want to see kept uniform by statute and not for just a limited period by a licence which can be modified. As the noble Lord, Lord Mottistone, was good enough to make an observation from a seated position, which I heard, may I say that Professor Littlechild identified the charges to which I shall refer as needing protection because protection could not be given to the charges, which I am about to delineate, by the introduction of effective competition—to use a phrase so frequently and happily used by the Government. Competition could not be effective at least for many years.
First, one charge that should be uniformly maintained is the supply and maintenance of telephone lines, which is part of the rental. The rental varies according to whether the line is shared or not and whether the user is business or residential, but it does not vary from one geographical area to another. I submit that it should not. Secondly, there is the charge for the conveyance of voice telephone messages within a local charge area. In my view that should not be varied. The third charge covers the connection of users to their local exchange for voice telephony. I accept of course that a higher charge should be made for remote installations—those requiring more than 100 man hours of work. That is certainly justifiable. They should at least remain the same until it is economic to make these links by cable rather than by microwave. The stipulation here is that the rules should be the same everywhere and such users will have to fall back on the undue discrimination provision to contain their charges.
This amendment does not cover trunk call charges at all. Therefore it seems to me appropriate that Clause 47 should contain another subsection dealing with the duty of the director in relation to these charges. In view of what the noble Lord the Minister has said in regard to Part III of the Bill, I agree that my amendment would require further drafting, but its main theme is perfectly clear. I hope that I can get some support from the Minister, at least in respect of part of the amendment. I beg to move.
9.9 p.m.
Lord Cockfield: My Lords, I think that most of your Lordships will feel as I do, that we have been here not once but many times before. Frankly, there is no difference between anybody in your Lordships' House over the general principle involved. Where we differ is on how effect should be given to that general principle. Your Lordships at the Committee stage passed an amendment specifically designed to achieve the objectives set out in the noble Lord's latest amendment, and in response to that I moved two amendments at the beginning of the Report stage. Those amendments were accepted on a Division. We believe that the method of dealing with this problem set out in those amendments was much more effective than the method which the noble Lord has endeavoured to set out not only in this amendment but in various previous amendments.
If the noble Lord wishes, I can go through in great detail explaining to him why the attempts that he has made in these amendments do not work. For example, he proposes that an operator should:
"apply, the same charges for the supply and maintenance of telephone lines for voice telephony and for the conveyance of voice telephony messages within a local exchange area regardless of the geographical location of the user".
Is it his intention that each operator should apply exactly the same charges, regardless of where the operator does business? If so, the amendment would immediately stop the city of Hull charging its present tariff, which is substantially different from that charged by BT, and it is popular in Hull because the prices are lower. Does the noble Lord wish to put up the prices in Hull? That might well be the effect of his amendment. Is it intended that the amendment should also apply to Mercury, so that when it establishes an exchange line it has to charge exactly the same price structure as BT, even though it may well be more efficient and could charge less?
Does the noble Lord really want to prevent competition having the effect of bringing prices down? What exactly is meant by the term, "the same charges"? Does it not leave the operator free to charge one price for exchange lines of one length and a different price for exchange lines of another length? Both charges would be:
"the same … regardless of the geographical location of the user",
but the result might be precisely the higher charges for longer lines in rural areas which would have been caused by the noble Lord's earlier amendment.
I am afraid that the simple truth of the matter is that if you try to write into the Bill exactly how individual charges should be determined, this is precisely the kind of difficulty you get into. This is one of the reasons for the inclusion of the RPI minus x formula in the licence, which was recommended by Professor Littlechild, to whom the noble Lord refers, and which is designed to prevent undue increases in the price of a basket of services. In other words, you get the control by applying it to the basket and not trying to apply it to the individual service.
Briefly, I would sum up the position like this. There is nothing between the noble Lord and the Government on the desirable objectives to be achieved. It is simply that we think that we have done
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it in a rather more effective way than the noble Lord has succeeded in doing it.
Lord Lloyd of Kilgerran: My Lords, the noble Lord the Minister has been most helpful, and I was very glad to have the assurance that he gave that there was nothing beween us on the desirable objectives but merely a matter of difference of approach. The Minister has been most kind to me this evening in regard to this amendment and I am very grateful to him because so far as I could count at this late hour he asked me six questions in relation to my amendment—six very interesting and fundamental questions in this matter. I am sure that noble Lords, at this late hour, would not want me to be tempted to deal with those six questions. Therefore I am sure that all noble Lords will agree with me that the best course to take is that with your Lordships' leave I should now withdraw this amendment and raise the matter at a further date. I then will have the time to deal with the very helpful criticism of the Minister, coupled with the sympathy at the end of his speech. I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 94ZB and 94ZC not moved.
9.17 p.m.
Lord Glenarthur Lord Glenarthur moved Amendment No. 94ZD:
Page 47, line 14, leave out ("that") and insert ("the 1973").
The noble Lord said: My Lords, this is a technical amendment. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved amendment No. 94ZE:
Page 47, line 18, at end insert—
("() Expressions used in this section which are also used in the 1973 Act or the 1980 Act have the same meanings as in that Act.").
The noble Lord said: My Lords, this also is a technical amendment. I beg to move.
On Question, amendment agreed to.
Clause 50 [Co-ordination of functions under Part II and wireless telegraphy functions]:
Lord Orr-Ewing Lord Orr-Ewing moved Amendment No. 94A:
Page 47, line 27, after ("involved") insert—
("including advice for the purpose of ensuring that the administration, allocation, licensing and use of civil radio frequencies are effectively co-ordinated within a single administrative unit or government department").
The noble Lord said: My Lords, I should like the permission of the House to consider with Amendment No. 94A, Amendment No. 95, which my noble friend Lord Cockfield will I think move. I should also like to consider Amendments Nos. 100 and 101, which I think my noble friends Lord Spens and Lord Mottistone will cover, and I believe it would be convenient to take Amendment No. 126 at the same time.
I move this amendment, with not very much hope of success on this occasion. We have tried, persistently and steadily, first to place this responsibility in Clause 3, where we failed and we did not get a great deal of sympathy and no support from the Opposition. We

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are now trying to do it in Clause 50. Later I think there is an amendment suggesting that we might set up an advisory committee to deal with radio frequencies. Each time, the Government try and assure us that this is all going to be done by the Radio Regulatory Department. I can only hope that this will come about. The track record in this field has been abysmal. But I an hopeful regarding the future under new people and new ideas. I do not want to go into details (the tut-tuts come from the Opposition Benches) and I could quote—but it would take far too much time at this late hour—just what has happened in the muddle of frequencies. People have been allotted frequencies and then have to move out of the band because it was not an internationally agreed band; and someone else has had to come into the band. All the equipment has had to be modified, et cetera. But I will not go into the painful processes that others have had to suffer.
We are told it will be correctly done by the RRD, and I hope so. But I hope that in replying to these amendments, my noble friend will consider whether at least some of the functions which the RRD have undertaken, like the monitoring of frequencies, the manner in which they are used or not used—because they are valuable assets and should not be lightly set aside—should be delegated to the operators themselves. As I mentioned at an earlier stage, it is very satisfactorily done in the United States and they manage to find the same number of channels on the eastern seaboard where they have roughly the same population as we do, and 10 times as many mobiles can be licensed than we are able to licence here. So there needs to be something done to use these frequencies efficiently. I hope that that function might be delegated and I hope my noble friend will assure us on that point.
Certainly the operator companies have an interest in squeezing the maximum efficiency and the maximum use out of these channels. So why not involve them, at no price to the taxpayer, no extra manpower—and manpower is under pressure anyhow—and no extra cost to the department? It seems to be a natural answer that those who are most interested are those who would do it best. I beg to move.
Lord Spens: My Lords, I should like to speak for a very short moment on Amendments Nos. 100 and 101, which seem to me to give the Government the answer to Lord Orr-Ewing's question. Here if you were to set up an advisory body for matters concerned with the allocation use and licensing of civil radio frequencies, here would be the body which could be self-regulating and which could do the monitoring which is absolutely essential and which one understands is not being done very efficiently at the moment. I hope that the noble Lord the Minister will consider that option as a possible way of agreeing to the request of the noble Lord, Lord Orr-Ewing.
Lord Mottistone: My Lords, if I can expand on what the noble Lord, Lord Spens, says, the point about frequencies is that they are in short supply, as everyone agrees. They are essential to hold all telecommunications in the old-fashioned style of wireless. Because they are in short supply and because
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one of the biggest operators has a vast monopoly and is therefore always suspected of trying to rig things—all monopolies are like that, no matter who they are—it is important to have some sort of formal discussion body. This advisory group is one way of doing it.
We need to have some sort of body formally organised within the Bill which enables the users to discuss both with the director and possibly with the Secretary of State, but certainly with the director, and with the other users, how these frequencies could most fairly be distributed between all the people who need them. Having it done behind the scenes with appeals to people, and not quite knowing how decisions are made, leads to suspicions and doubts about whether the matter has been handled fairly. In the end, because this is so vital to so many industries of different sorts, it can be a matter of whether the industries, let alone the companies, remain solvent. It is terribly important to have some sort of officially recognised body—by that. I mean that it should appear on the face of the Bill—that will be available for attendance by all the interested parties.
9.25 p.m.
Lord Glenarthur: My Lords, my noble friends Lord Orr-Ewing and Lord Mottistone have raised during the course of this Bill a number of points about radio regulation and the role of the director. In answering the points that have been made, I, too, should like, with the leave of the House, to refer not only to the amendment of my noble friend but also to Amendments Nos. 95 and 126. as well as Amendments Nos. 100 and 101, because, essentially, all deal with the same subject.
The Government recognise the need for effective co-ordination of radio matters. That is why we have resisted any attempt to split responsibility for planning the radio spectrum between the Secretary of State and the director. To do so would lead to confusion, duplication of scarce engineering resources and so on. I explained at some length, in reply to an earlier amendment last week, how the spectrum is planned and administered. I do not think that it would do much good to go over the same ground now. Suffice it to say that planning and administration are the responsibility of the Secretary of State for Trade and Industry, who is also responsible for the licensing of all civil radio uses other than broadcasting, which is, of course, a matter for my right honourable friend the Home Secretary.
The Government see the Director General of Telecommunications as playing a very important part in advising the Secretary of State for Trade and Industry on the exercise of his wireless telegraphy licensing duties relating particularly to fixed and mobile land services. In particular, the Secretary of State will seek the director's advice on the use of bands one and three, which have so far been used for 405-line television broadcasting but become available from the beginning of next year for land mobile services. The director will advise on the number, size and variety of service providers to be licensed in these bands so as to achieve effective competition in the provision of the widest range of radio services. He will also advise on the selection of operators. If, therefore, my noble friend is under any fear that the other companies, I think 47 of them, will not have their

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cases taken into consideration, I hope he will be assured that they will be.
To ensure that all the necessary considerations are taken into account, it is essential that the actual assignment of frequencies should remain co-ordinated in one place under the responsibility of my right honourable friend the Secretary of State for Trade and Industry. He must also be responsible for setting the technical specifications governing such matters as the power of transmissions and the avoidance of interference, because it is he who is responsible for ensuring that no undue interference is caused. I hope, therefore, that my noble friend will see from this that radio regulation is now effectively co-ordinated by a single Secretary of State who is also responsible for telecommunications policy.
That being said, the Government also see the need for proper co-ordination of the work of the director and of the Secretary of State when they are exercising their functions in respect of telecommunications. They also recognise that, whenever appropriate, there should be integration of their functions. That is why we have tabled Amendments Nos. 95 and 126.
Amendment No. 95 is designed to ensure that in exercising his functions under the Bill in cases involving the use of radio the director should have regard to the same considerations as the Secretary of State. In particular, when offering advice to the Secretary of State under Clause 50 the director must be able to take account, on the one hand, of the considerations specifically relevant to the telecommunications licensing, and, on the other hand, of those to which the Secretary of State has regard when issuing wireless telegraphy licences. The amendment therefore requires the director, when exercising his functions under Parts II and III of the Bill, to have regard to such of the principles applied by the Secretary of State in exercising his licensing powers under Section 1 of the Wireless Telegraphy Act 1949 as may from time to time be notified to the director by the Secretary of State.
The principles in question are not mentioned in Section 1 of the Wireless Telegraphy Act 1949 but are nonetheless ones which the Secretary of State would be unwise to ignore. These will be based on the need to comply with international obligations, the need to promote the effective use of the radio spectrum, the need to avoid interference between authorised radio services and the need to protect national security. It is clearly right that the director should also have these in mind when he is dealing with radio communications matters. If not, there will be a risk that he and the Secretary of State will needlessly get out of step with one another.
Amendment No. 126 is a new clause to enable the Secretary of State to assign functions under the Wireless Telegraphy Acts to the director where the Secretary of State has power to delegate such functions to anybody. It will also require the director to provide the Secretary of State with such services as the Secretary of State may require of him in connection with the exercise of the Secretary of State's wireless telegraphy functions. The provision is intended to further promote the integration of telecommunications and wireless telegraphy functions wherever it is appropriate to do so. For instance, at
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present it is necessary for a manufacturer wishing to obtain approval for radio communications apparatus under both telecommunications legislation and wireless telegraphy legislation to obtain it from two different places. In future, where the director is responsible for approving such apparatus for the purposes of Clause 22 it would, by virtue of the present amendment, be possible for the Secretary of State to empower him to approve the apparatus for wireless telegraphy purposes as well.
The provision will also enable the Secretary of State to get the director to perform services for him in relation to wireless telegraphy matters. Such an arrangement should help to promote simpler procedures for dealing with applications to operate new radio communications services which will be subject both to telecommunications and wireless telegraphy licensing requirements. Ideally in such cases only one application to one place would need to be made.
I turn finally back to Amendments Nos. 100 and 101, of which Amendment No. 101 is the substantive amendment. My noble friend Lord Mottistone took the view that there is a need for an advisory body on radio frequency matters. There used to be a frequency advisory committee which was intended to provide advice on broad aspects of frequency planning to the Secretary of State responsible for radio regulatory matters. In the event it fell into disuse, and by the time it was finally wound up in 1980 it had not met for eight years. The director will have no responsibility for frequency allocation or the licensing of radio use. In these circumstances it would he wrong to impose upon him a statutory duty to appoint such a body. Therefore, the Government are unable to accept my noble friend's amendment.
However, your Lordships can be assured that the Government are anxious to ensure that they have adequate consultation machinery on radio frequency questions and are currently looking at the present arrangements for consulting radio communications providers and users to see how these might be improved. We are also considering a recommendation in the Merriman review that an advisory committee should be set up to advise the Secretary of State on a range of radio regulatory matters, including ones relating to frequency allocation. I am sure that those responsible for that consideration will take note of the comments made by both my noble friends.
In answer to my noble friend's particular points in relation to monitoring, the report of the independent review of the spectrum made a recommendation on delegation of functions of the sort to which my noble friend Lord Mottistone particularly referred. The report is currently being considered and I am sure that my right honourable friend the Secretary of State for Trade and Industry will also note what he says.
Of course, we share the concern expressed by all those who have spoken on this subject of radio frequencies, that the telecommunications and wireless telegraphy functions shall be properly co-ordinated, and that there shall be no fragmentation of responsibilities in regard to the latter. It is also important to involve not only the director, but the "end user", if that is the right form of words, in the decision-making process so far as is possible.

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I hope that my noble friends will think that this package of amendments which we have put forward goes quite some way towards meeting the concerns which they have expressed in these respects, although perhaps not quite as far as my noble friend Lord Orr-Ewing would like in so far as a total reorganisation of the role of the RRD is concerned. I hope that he will accept the difficulty of going any further, because it would require major amendments to the Wireless Telegraphy Acts. In the light of what I have been able to explain to him tonight, I hope he will think that he has been reassured and will not press his amendment.
Lord Orr-Ewing: Before I withdraw my amendment, I should like to point out to my noble friend that we should not over-egg the amount of work done by the Secretary of State at the DTI. We are concerned here with frequencies between 30 and 960 MHz. Over 40 per cent. of that is used by broadcasting, which comes under the Home Office; 36 per cent. is used by the military, and that comes under the Government and Downing Street. So in all these amendments we are considering only 6 per cent. of these frequencies. We all agree that they must be co-ordinated. My noble friend has not gone as far as he could, but I thank him for what he has done and for the way in which he has couched his remarks. I am
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sure that he is aware of the need for speed because, if we do not get on with this, many of these small companies will go to the wall. Therefore, I beg leave to withdraw this particular amendment.
Amendment, by leave, withdrawn.
Lord Glenarthur Lord Glenarthur moved Amendment No. 95:
Page 47, line 30, at end insert—
("() The Director shall, in exercising his functions under Part II or Part III of this Act, have regard to such of the principles applied by the Secretary of State in exercising his licensing powers under section 1 of the said Act of 1949 as may from time to time be notified to the Director by the Secretary of State for the purposes of this subsection.").
The noble Lord said: I spoke to this amendment when I spoke to the previous one, No. 94A. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 96:
[Printed earlier: col. 600.]
The noble and learned Lord said: I spoke to this amendment when I spoke to Amendment No. 27. I beg to move.
On Question, amendment agreed to.
Clause 52 [Power to establish advisory bodies]:
9.35 p.m.
Lord Cockfield Lord Cockfield moved Amendment No. 97:
Page 48, line 23, leave out ("The Director may establish advisory bodies") and insert—
("The Secretary of State shall, as soon as practicable after the appointed day, establish advisory bodies for matters affecting England, Scotland, Wales and Northern Ireland respectively; and each body so established shall consist of such members as he may from time to time appoint.
(1A) In establishing a body under subsection (1) above, the Secretary of State shall have regard to the desirability of having members who are familiar with the special requirements and circumstances of the part of the United Kingdom concerned (including, in particular, the special requirements and circumstances of consumers, purchasers and other users in that part of telecommunication services and telecommunication apparatus).
(1B) Subject to subsection (1) above, the Director may establish such advisory bodies as he thinks fit").
The noble Lord said: My Lords, perhaps it would be convenient if, when speaking to this amendment, I referred also to Amendments Nos. 98, 99, 102, 105 and 107, which are consequential on No. 97.
Amendment No. 98: Page 48, line 26, leave out ("(1)") and insert ("1B)").
Amendment No. 99: Page 48, line 30, leave out paragraph (a).
Amendment No. 102: Page 48, line 39, leave out ("the part of the United Kingdom concerned").
Amendment No. 105: Page 49, line 11, after ("The") insert ("Secretary of State or the").
Amendment No. 107: Page 49, line 27, leave out ("52(2)") and insert ("52(1) or (2)").
Amendment No. 97 is the principal amendment, and it fulfils the promises I gave during the Committee stage to bring forward amendments to strengthen the role of the four national advisory bodies for England, Scotland, Wales and Northern Ireland. Amendment No. 97 brings about two changes in respect of these bodies. First—and this meets a point made by the noble Lords, Lord Ezra and Lord Donaldson, as well as other noble Lords—the first new subsection of this amendment ensures that these bodies shall be appointed by the Secretary of State and not by the director. The second change is brought about by subsection (1A) of Amendment No. 97, which ensures that, in appointing members to these bodies, the Secretary of State must have particular regard to the desirability of members familiar with the circumstances of
"consumers, purchasers and other users in that part [of the United Kingdom] of telecommunication services and telecommunication apparatus".
We believe that this is the best way to underline the fact that these bodies will be mainly concerned with matters affecting consumers.
There are two points upon which I should like to expand. The first is the reference to "consumers, purchasers and other users", which follows a pattern established elsewhere in the Bill; for example, in Clause 3(2)(a). This wording ensures that not only are the interests of the ordinary domestic consumer looked after but also those of business users—something that I believe the noble Lords, Lord Spens and Lord Mottistone, are concerned to ensure. The second point is that, while we wish to emphasise the role of these bodies in consumer and user matters, we do not want to exclude them from looking at other
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issues; for example, the interests of manufacturers. We have therefore attempted to strike the right balance, and I think that the wording in Amendment No. 97 achieves this.
It may be helpful if I set out in more detail what functions these national advisory bodies will undertake. Under existing legislation, there is a three-tier structure of consumer representation. At the bottom there are the local, non-statutory bodies such as the Post and Telecommunications Advisory Committee (the PATACs, as they are called); at the next level there are the Users' Country Councils; and at the top there is at present the Post Office Users' National Council (popularly and affectionately known as POUNC). This three-tier arrangement works well, and it is replicated in the Bill. The continuation of bodies such as the PATACs is assured by Clause 27, which enables the Secretary of State to help meet their expenses. The country councils' functions will be taken over and expanded by these national advisory bodies established under Clause 52, and the director will take over, and greatly enhance, the functions of POUNC.
It is on the national advisory bodies that I should like to concentrate. These bodies will continue the present functions of the country councils in considering complaints or representations made by consumers and in offering advice on their own initiative. In addition, the functions of the advisory bodies will be wider than before. Whereas the country councils are restricted to complaints about British Telecom, the advisory bodies will be able to consider complaints made by consumers in relation to all telecommunication services and apparatus, no matter by whom they were provided or supplied. I think that this will be of real advantage to consumers. Our proposal to set up a separate advisory body for England, again, is something which there has not been before, and will be a further help to consumers. We have, with the help and encouragement of your Lordships, greatly improved the arrangements for the advisory bodies. We now have a thoroughly sound system and a well-balanced structure. I beg to move.
Lord Bruce of Donington Lord Bruce of Donington moved, as an amendment to the amendment, Amendment No. 97A:
Line 4, leave out from ("establish") to ("appoint") in line 7, and insert ("an advisory body for the United Kingdom, which shall consist of such members as he may from time to time appoint. The UK advisory body shall appoint advisory bodies for matters affecting England, Scotland, Wales and Northern Ireland respectively; and each body so established shall consist of such members as the UK advisory body may from time to time appoint.").
The noble Lord said: With the leave of the House, I propose to move Amendment No. 97A and Amendment No. 97B together, my Lords.
Amendment No. 97B: line 10, leave out from ("are") to ("apparatus).") in line 15 and insert ("representatives of consumers, purchasers and users, trade unions in the telecommunications industry, and manufacturers of telecommunication equipment and apparatus.").
We have travelled the whole area of these advisory bodies on a number of occasions. They were touched on in the course of Second Reading; they were certainly dealt with in Committee and the noble Lord

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has already addressed himself to the subject on Report and I do not propose to detain your Lordships over much on this.
We regard it as important that the Secretary of State shall be responsible for the appointment. Where we differ is that we would prefer to have an advisory body for the United Kingdom as a whole, and that the United Kingdom advisory body should appoint the various other advisory bodies for matters affecting England, Scotland, Wales and Northern Ireland respectively. On balance—we do not wish to reiterate the arguments—we think that this arrangement is much more sensible, having regard to all the circumstances.
I am well aware of the preference by the noble Lord to have various other advisory bodies concerned with what I will term, for the moment, specialist interests. We would prefer to have on these various advisory committees, representatives of consumers, purchasers and users, trade unions in the communications industry, manufacturers of telecommunications equipment and apparatus. We regard this of some importance.
Most of the time that has been spent in your Lordships' House in debating the issues on the Bill has mainly been in protection of the operators as distinct from what has been termed the monopoly position of British Telecom, which is likely to subsist—as I am sure we can believe the Prime Minister who has asserted the principle herself—for the next nine years at least as the private monopoly. The interests of the consumers have been debated, though not quite as extensively as the class to which I have just referred. We think that there ought to be some role in the advisory committees, which will be appointed by the Secretary of State, for the trade unions themselves.
I do not think it can be reiterated too often that the fortunes of this great industry have depended for some time, and will depend for a long time, on the efforts of those who work in the industry. It ought not to be incongruous for this House to agree that there should be representatives on the advisory committee of the various trade unions that are involved not merely in BT itself, but in the manufacturing side and the service side of the telecommunications industry. In fact it is remarkable in this modern age, with the consciousness of the role that the skilled individual plays in this vast industry, that it should be considered extraordinary that the name "trade union" should be mentioned in this connection. Surely, there is a vital interest in that. I should have thought that the success of the whole industry, whether or not it is privatised, and even to what extent it is privatised, the welfare of the consumer, the value for money of the consumer and the variety of services received by consumer, can be influenced to their benefit by having on the advisory council specifically members of trades unions who have day-to-day working experience of the various branches of the industry itself.
I should have thought that the advantages of the amendments to the amendment submitted by the noble Lord. Lord Cockfield, were obvious enough without any further argument from me and without
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any further elaboration. I sincerely hope that the noble Lord on this occasion will find himself able to accept these amendments without any demur at all. I beg to move.
Lord Lloyd of Kilgerran: My Lords, it would be churlish if I did not thank immediately the noble Lord the Chancellor of the Duchy of Lancaster for having at last introduced into the Bill an advisory body which is to be established by the Secretary of State. I have on several occasions talked about a council or an authority to be set up by the Secretary of State: and, at last, we have got one of that kind. I should like to speak with the leave of the House to Amendment No. 97C.
Amendment No. 97C: Line 15, after ("apparatus)") insert ("and members associated with trade unions concerned with the telecommunication industry.").
This is an amendment to the main amendment of the Government in this matter. I should like to ask the Minister when he replies to say why he has deliberately excluded from the list he has given of potential members of this advisory council members associated with trades unions concerned with the telecommunication industry. I should like to echo the words of the noble Lord, Lord Bruce of Donington, in this respect. I should have thought that it would have been helpful to have had one or two members of important trades unions on this advisory body. But the Government have deliberately left out the members of trades unions in this matter. They have cited consumers, purchasers and other users but there is no mention of the trades unions. There must be some special reason why the trades unions, of which so many tens of thousands are on the staff of British Telecom and would be on the staff of British Telecom when it is privatised, have been deliberately left out.
Lord Mottistone: My Lords, my remarks are directed to the Government amendments and not to the amendments to the amendments which the Government will deal with themselves. POUNC—and I note that the noble Lord. Lord Somers, is not here—have a couple of points to make about this. They have not led to amendments, but I think it is reasonable on their behalf to ask the Government to give consideration to them. They say that they do not object to the identification of special interest groups such as are currently in subsection (3) (and, of course, now in subsection (1)(a)) but they are fearful that too many such special interest groups will detract from the overall responsibilities of the four national bodies. I think that that is a sensible comment which needs to be borne in mind when these bodies are appointed.
The other main point is that they greatly regret that the four national advisory bodies do not have the right of independent publication of their reports. As the Bill now stands after the Committee stage, the four advisory bodies report to the director—which the Government have explained was so that the could take action on what they reported—and then he has to include their reports (under Clause 53(2)(b)) when he makes his report for the year. I can see there is a disadvantage for these bodies which will be the

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reincarnation of POUNC not being able to report direct to the Secretary of State and to publicise their own reports directly and comment upon them, rather than having to put them through the director. I have not included an amendment on these lines because one was not recommended, but it seems to me that the Government might care to see whether they would not give further thought to this with a view perhaps to making a change when we come to Third Reading. It is not a strong point, but it is an important one in practical terms, because we know these bodies are not very effective if they have to report through someone else. They do not have the same impact or publicity, and the comments by POUNC are deserving of consideration. Indeed, my noble friend did say that he very much appreciated their activities—or words to that effect—in his own introductory speech. I hope the Government will be able to take these matters into account.
9.50 p.m.
Lord Cockfield: My Lords, I speak to the amendment to the amendment. Amendment No. 97A seeks to establish a United Kingdom advisory body. Amendment No. 97B prescribes that its members shall be:
"representatives of consumers, purchasers and users, trade unions in the telecommunications industry, and manufacturers of telecommunication equipment and apparatus."
Lord McIntosh of Haringey: My Lords, I apologise for interrupting, but it does not prescribe that its members "shall be"; it prescribes that the Secretary of State shall.
"have regard to the desirability of having members who are",
and that is not quite the same thing. It is not meant to be exclusive.
Lord Cockfield: My Lords. I entirely take the point made by the noble Lord, Lord McIntosh of Haringey. I was not endeavouring to erect any argument on the use of the word "prescribe", but merely trying to summarise the general effect of the two amendments. But the kind of body proposed in the amendment to the amendment in fact is not all that dissimilar from the Telecommunications Council or the telecommunications advisory body which we discussed in very considerable detail earlier in our proceedings. I do not in any way dispute that the director has a difficult job to do and that it would be useful for him to have specialist advice and information which will guide him in the exercise of his functions. But I really do not think that a general advisory body of the kind proposed in these amendments is the best way to provide the director with such advice.
If we look carefully at this body we see that in fact it will be composed of competing interests, consumers on one side of a triangle, the trade unions on another and the manufacturers on the third. I am interested in the fact that the noble Lord has specified only these three particular interest, but I take the point that what
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he is putting forward is illustrative rather than as comprehensive, because obviously, if one appointed people representing those interests, one would find that the operators or telecommunications systems, the providers of telecommunications services or the suppliers of telecommunication apparatus would all feel that they had a legitimate role to play and that they, too, ought to have representatives on this advisory body. In fact, if there were a body of this kind composed of these various disparate interests, what the director would receive would be either a great deal of conflicting advice or, if it were unanimous, the advice would tend to be the lowest common denominator.
The noble Lord, Lord Lloyd of Kilgerran, raised the question of trade union membership. This of course also appears in the amendment itself. Let me start by making it absolutely clear that we believe individual members of trade unions may well have a very valuable role to play; but they need to play that role as individual members of these committees and not as representatives of a particular trade union. This is particularly true because these bodies are designed to represent the interests primarily of the users and consumers. They are not intended to represent the interests of people employed in the industry. That is a matter for the ordinary industrial relations inside the organisation itself; but I can say from personal experience how valuable trade union members of bodies of this kind very often are.
On a purely personal note, I may say that I was one of the founder members of Neddy right back in 1962, and in that capacity I got to know many of the leading members of the trade union movement at that time. I have known many of them since, and in their individual capacity they are people of real consequence who can be extremely helpful. What we do not feel to be right is to put people on these advisory bodies in a representative capacity, as opposed to appointing them in a personal capacity.
We believe that the best way in which the director can be given advice is by the establishment of separate advisory bodies as we propose in Clause 52, as amended, and not by some form of composite body. Under the clause we have specifically provided for the establishment of advisory bodies on those subjects where it appears to us that the need for specialist advice is greatest. For example, we have the four national advisory bodies primarily for consumer matters and the advisory bodies on the disabled and the elderly, together with the body on small businesses. The director is also given power under Clause 52 to establish such advisory bodies as he sees fit. In this way he will be able to obtain advice on particular subjects from people who are particularly experienced in the fields in which he is interested.
Since I have mentioned the four national advisory bodies, I should like to explain a little further just how they would lit in with the United Kingdom body which is proposed in the amendment. It seems to me that to have an overall United Kingdom body could only he to the detriment of these four national advisory bodies. It seems from Amendment No. 97A that the United Kingdom body is intended to be superior to the four national advisory bodies, thus

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creating a four-tier regulatory arrangement, which is one more than at present. This would be clumsy and unnecessarily bureaucratic. It would diminish the direct link between the national advisory bodies and the director, and this might well lead to a blurring of the different requirements of the four countries. For example, we all know that Scotland has a highly specialised and well-developed electronics industry. It would also seem to make the director even more remote from the ordinary consumer; and in fact what we have endeavoured to do is to ensure that the director is closer to the consumer and not further away from him.
My noble friend Lord Mottistone raised the question of the publication of the individual reports of the four national advisory bodies. The reason that these reports are made to the director is that it is for the director to take action on them. We felt that it would be sensible to gather all the annual reports together into a single overall report, which would then be presented by the director to the Secretary of State and thence to Parliament. I do not think this is in any way detracting from the value of the individual reports. In fact, they are far more likely to make an impact if they appear, as it were, under the umbrella of the director's main report to the Secretary of State. On all the grounds that I have mentioned, while I appreciate the objective that the noble Lord, Lord Bruce of Donington, has in mind—namely, to ensure strong representation of the consumer's voice—which is a very legitimate objective and one which we entirely share, we believe that the structure which we have proposed, and which follows closely on the undertakings that I gave to your Lordships in Committee, effectively achieves our objective.
Lord Bruce of Donington: My Lords, I am grateful to the noble Lord for his explanation and for the detail into which he has gone. I beg leave to withdraw the amendments to the amendment.
Amendments to the amendment, by leave, withdrawn.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran had give notice of his intention to move Amendment No. 97C:
[Printed earlier: col. 1076.]
The noble Lord said: My Lords, the noble Lord the Minister has already spoken to this amendment—
Lord Cockfield: My Lords, may I, with the leave of the House, ask whether we have really put Amendment No. 97? We had an amendment to No. 97. That amendment having now been withdrawn, do we not now have to have Amendment No. 97 put?
The Deputy Speaker (Earl Cathcart): My Lords, I understand that Amendment No. 97C is an amendment to Amendment No. 97.
Lord Cockfield: My Lords, I beg the noble Lord's pardon if I have made a mistake.
Lord Lloyd of Kilgerran: Yes, my Lords. Amendment No. 97C is in my name and is an amendment to the noble Lord's amendment. He has already spoken to it. It is an amendment which suggests that the members of trade unions should be considered to be members of the advisory body. But he has explained that he prefers to have on that body people who are dealing with matters from a personal point of view, rather than representatives of employees. In those circumstances, I do not propose to move this amendment.
[Amendment No. 97C not moved]
On Question, amendment No. 97 agreed to.
10.2 p.m.
Lord Cockfield Lord Cockfield moved Amendment No. 98:
[Printed earlier: col. 1073.]
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Cockfield Lord Cockfield moved Amendment No. 99:
[Printed earlier: col. 1073.]
The noble Lord said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment Nos. 100 and 101 not moved.]
Lord Cockfield Lord Cockfield moved Amendment No. 102:
[Printed earlier: col. 1073.]
The noble Lord said: My Lords, I have also spoken to this amendment, which goes with Amendment No. 97. I beg to move.
On Question, amendment agreed to.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 102A:
Page 49, line 6, at end insert—
("() In the event of the advice offered under subsection (4) by an advisory committee appointed by him being rejected by the Director that advisory body may refer the matter to the appropriate advisory body appointed by the Secretary of State under this section.").
The noble Lord said: My Lords, the noble Lord the Minister has already said that the Government have made great changes in relation to the clause dealing with advisory bodies, and in that I agree with him. My amendment relates to what would happen if the advisory body set up by the director has its recommendation rejected. My suggestion is that, if the director refused to accept the recommendation of the advisory body which is set up by him, then that matter could be referred to the main advisory body which is set up by the Secretary of State.
Your Lordships will realise that under Clause 52 there is an advisory body set up by the Secretary of State, and there are then a number of what I might call minor bodies set up by the director himself, at his discretion, when he wants help. Would it not be helpful to the director, I ask the Government, if the

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problem arises that the advisory council and the director differ very considerably, for this matter to be referred to the main advisory board set up by the Secretary of State? It is not a question of two-tier government but of whether, in the circumstances of the difficulty which the director will experience, it would help him in dealing with some of these matters if the advisory body formed by the Secretary of State could be called in to help. I beg to move.
Lord Cockfield: My Lords, it is not at all clear just how the system proposed by the noble Lord, Lord Lloyd of Kilgerran, would in fact work, because his amendment would appear to have been written in the light of the earlier amendments, which have been withdrawn, for the appointment of a top-tier advisory body. If there were that kind of situation one could understand a proposal that in effect there should be a requirement or a proposal that if the recommendation or the views of one of the other bodies was not acceptable to the director it could be referred to the top body. But under the proposal which we now have there is no such top body. The director performs that function. If a recommendation is made—for example, by the advisory committee on the disabled or the elderly—it then becomes a matter for the director himself specifically to consider it.
If the noble Lord is trying to ensure that if there is a conflict between two bodies there should be some way of sorting it out, I should have thought that ordinary administrative arrangements—the straightforward day-to-day consultation between bodies—would effectively do this: that we should not think that these bodies would necessarily all want to operate in watertight departments and that they would consult one another over matters of mutual interest. If, on the other hand, the noble Lord is trying to ensure that the director does not ignore advice given to him by the advisory bodies, I do not think that an amendment is necessary to achieve that aim. First, in his functions under this Part of the Bill the director is bound by his Clause 3 duties. This means that if the advisory bodies alert him to some matter—say, for example, some practice of interest to consumers to which his functions relate—then he must, under the duty in Clause 3(2)(a), consider how to exercise his functions in the way best calculated to,
"promote the interests of consumers, purchasers and other users in the United Kingdom."
I ought also to draw attention to Clause 51, which places a duty on the director to consider any matter which relates to telecommunications services or to apparatus which is made by anyone with an interest in that matter or on his behalf, which of course includes the advisory bodies. Therefore the director must consider matters put to him by the advisory bodies, provided they relate to telecommunication services or apparatus, which I imagine in practice they will. Therefore, the point is effectively covered by this provision in Clause 51.
In effect, therefore, the situation envisaged by the noble Lord, Lord Lloyd of Kilgerran, would be dealt with either under the existing provisions of the Bill or under the normal, sensible, administrative arrangements that one would anticipate the director would make for liaison with the advisory bodies.
Lord Lloyd of Kilgerran: My Lords, I am very grateful for the very full reply which has been given by the noble Lord. I did not quite understand why he should refer to Clause 51, which deals with the investigation of complaints. I had not got that kind of matter in mind when I moved the amendment. However, in view of the lateness of the hour I shall read Hansard tomorrow to see what the noble Lord has said and will consider then what further action, if any, may be taken. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cockfield Lord Cockfield moved Amendment No. 103:
Page 49, line 7, at end insert ("(1) or")
The noble Lord said: My Lords, this amendment also is associated with Amendment No. 97. I have already spoken to it, I beg to move.
On Question, amendment agreed to.
Lord Bruce of Donington Lord Bruce of Donington had given notice of his intention to move Amendment No. 104:
Page 49, line 10, at end insert ("and there shall be included in the report a statement relating to progress on matters concerning disabled people".)
The noble Lord said: My Lords, upon further study of this amendment, I have come to the conclusion that the point which this amendment seeks to make is already covered by reading subsection (5) in conjunction with subsection (2)(c). I take it that the noble Lord will be quite willing to confirm that that is so. On that basis, and subject to any correction by the noble Lord as to my construction, I do not propose to move this amendment.
[Amendment No. 104 not moved.]
Lord Cockfield Lord Cockfield moved Amendment No. 105:
[Printed earlier: col. 1073.]
The noble Lord said: My Lords, this amendment also goes with Amendment No. 97. I have spoken to it, and I beg to move.
On Question, amendment agreed to.
Clause 53 [Annual and other reports]:
10.8 p.m.
Lord Stoddart of Swindon Lord Stoddart of Swindon moved Amendment No. 106:
Page 49, line 24, after ("businesses") insert (", the provision of public call boxes in inner-city and rural areas,")
The noble Lord said: My Lords, I beg to move this amendment standing in my own name and that of my noble friends Lord Bruce of Donington and Lord McIntosh of Haringey. As your Lordships will note, this amendment seeks to ensure that the director includes in his annual report to the Secretary of State a survey of developments relating to public call boxes in inner city areas and in rural areas.
A similar amendment was moved at Committee stage, which would have included among the general duties of the Secretary of State and the director the duty to satisfy demand for public call boxes without

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regard to their profitability and only with regard to social need—especially in areas of social deprivation and in rural areas.
However, in the light of the debate in Committee and the Government's attitude we did not proceed to a vote on the matter on the basis that we could in any event return to this point at Report stage. We are doing so by moving this amendment. Amendment No. 106 is so designed as to make it, in our view, acceptable not only to the House but also to the Government, since all it will do in effect is to ensure that the position relating to public call boxes is monitored annually
The House will be aware of the reasons for our concern about the future of public call boxes, since these were put forward very cogently by my noble friend Lord Bruce of Donington at Committee stage. We feel that public call boxes are a vital public and social service which is under threat of severe contraction due both to this Bill and to the pressure after privatisation to maximise profits even at the expense of services which have been taken for granted over the past 70 or 80 years.
We are aware that British Telecom at present lays down criteria for the retention of public call boxes and that overall there is a total loss of some £77 million per annum on this service. Clearly, then, we are worried about the future of public call boxes—especially in inner city areas and rural areas, where this service is at most risk.
It has been mentioned—as it was in our previous debate—that there is some 70 per cent. to 80 per cent. penetration of the telephone service to private households. But that percentage is certainly not true of inner city areas, where only about 30 per cent. of households have a telephone service. Therefore, the need for public call boxes is correspondingly greater. Furthermore, since the crime rate and probably the sickness and accident rate are higher in the inner city areas than elsewhere, any reduction in public call box facilities will impose a further burden on these communities, especially in relation to the 999 services; in other words, where the public call box 999 facility is most needed, it is at the greatest risk under this Bill of being reduced in size and effect. Similarly, in the rural areas, where public call box facilities are essential and the 999 service is vital in many instances, the risk is that the service will he reduced due to below average public call box receipts.
Those concerned with the telecommunications industry are certainly in no doubt about the risks to public call boxes when this Bill becomes law. Mr Alan Taffin the General Secretary of the Union of Communication Workers, who is a respected and moderate trade union leader, has forecast that within two years 17,000 telephone kiosks could be removed, and that within five years the number of kiosks could be halved. The Society of Telecommunication Engineers is equally gloomy and cites the experience in the United States to back its view that there will be a significant reduction in public telephone kiosks after the passing of this Bill. I do not wish to weary the House: nevertheless, I think it would be as well if I quoted an article which appeared in the magazine Computing on 8th December 1983. The headline says:
"STE warns BT could dump call boxes"
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The article reads:
"The Society of Telecommunications Engineers casts doubt on the future of British Telecom's 77,000 public call boxes after BT is privatised, in a report published this week.
"The society, which represents most of BT's junior managers, argues maintenance of the loss making network and the inevitable profit pressures facing a private company will prove mutually exclusive objectives.
"John Jordan, president of the STE, said: 'Simply recovering the annual £77 million loss on our kiosks would entail a revenue increase of 80 per cent. However, in practice, revenue would probably need to rise by 125 per cent. if, as might be expected, usage levels dropped by say 20 per cent. in response to increased charges.'
"The STE fears BT will be forced to use the 'get out' clause included in its licence. In its present form the licence to BT will allow kiosks to be removed where 'continued provision is impractical.'
"The experience of the New York Telephone Company is quoted as an example of the kind of pressures likely to face a privatised BT. There, 4.000 kiosks were removed in 1981 and a further 1,400 last year because a price rise had been refused by the regulatory body charged with overseeing the company's activities.
"The decision to remove the boxes was defended on the grounds that even if the price rises had been permitted, they would still have lost 25 dollars a year.
"The STE would like to see the public call box issue clarified before the licence to BT comes into force."
Those are very cogent reasons that have been put forward by STE in its concern about the future of call boxes. It seems clear that there is a need for some safeguard for this vital service. Although the amendment is a mild one—and it is a very mild one—it will at least give some protection and ensure some public involvement in the future fate of the British public telephone kiosk. I commend the amendment not only to the House but also to the Government and I sincerely hope that they will accept it. I beg to move.
Lord Lloyd of Kilgerran: My Lords, from these Benches we share the widely felt anxieties about the future provision of public call boxes, particularly in inner city and rural areas. Briefly, we would support the amendment so cogently and persuasively submitted to your Lordships by the noble Lord, Lord Stoddart of Swindon.
10.20 p.m.
Lord Cockfield: My Lords, the provision of public call boxes is one of the extremely important matters covered by Clause 3(1)(a). Under Clause 3 the director is required to exercise his functions so as to satisfy all reasonable demands for such services, subject to the conditions stated. This function will be discharged through conditions inserted in BT's licence, and it is one of the director's duties to monitor compliance with licence conditions.
Clause 53 as at present drafted requires, by virtue of subsection (2), that the director's report should contain:
"a general survey of developments … in respect of matters falling within the scope of the Director's functions".
Clearly in the light of Clause 3(1)(a) the provision of public call boxes is one of the matters falling within the director's functions.
Again, another of the director's functions is to consider consumer complaints and representations under Clause 51, and no doubt some at least of these will be concerned with the provision of public call

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boxes. Thirdly, I should like to draw your Lordships' attention to the function in Clause 47. This is a very wide-ranging function and requires the director to keep under review, and also to collect information on, commercial activities connected with telecommunications in the United Kingdom. This of course will include such things as public call boxes, services to rural areas, and so on. It is very clear, therefore, that Clause 53 as drafted does require the director to report on these matters.
It may be asked, therefore, what harm is done by including the words proposed. This is unnecessary, and would simply clutter up the statute with detailed provisions which added nothing to what was already in the statute. I do not think that in drafting statutes one needs or ought to follow the Bellman's injunction—"What I tell you three times is true". It is enough to say it once.
There is another objection. That is that singling out some matters for mention tends to cast doubt on other matters not mentioned: for example, the emergency services, the maritime services, services to rural areas, and so on. Indeed, even this present amendment, by referring to,
"public call boxes in inner-city and rural areas",
suggests that public call boxes elsewhere are not important. If one tried to meet this argument by mentioning everything, one would simply be duplicating and repeating large areas of the Bill in Clause 53.
While, therefore, I appreciate the good intentions behind the amendment, it deals with a matter already fully covered. It would therefore simply unnecessarily add to the length and complexity of the Bill. I would stress that what we are dealing with in this amendment is not the substance of the matter. Despite what was said by the noble Lord, Lord Stoddart of Swindon, we are not dealing with the substance of the matter. That was covered in Clause 3 and was extensively discussed by your Lordships.
What we are dealing with here is simply the content of the director general's report. The arguments advanced by the noble Lord, Lord Stoddart, are relevant to Clause 3 and were discussed there. They do not relate to Clause 53, which simply follows up the duties and functions imposed in the Bill itself. I would hope that with this explanation the noble Lord would not wish to press his amendment.
Lord Stoddart of Swindon: Very briefly, I of course noted what the noble Lord, Lord Cockfield said. We shall read what he said with the greatest of interest, and so will other parties who are concerned about public telephone boxes throughout the country. I recognise—and on this side of the House we recognise—that Clause 3 deals with public call boxes in a general sort of way; and, like him, I would not want to see the statutes cluttered up with irrelevances. But of course the fact of the matter is that when we looked at Clause 53, we did see that subsection (2)(a) did refer in particular to matters affecting small businesses or persons who are disabled or of pensionable age. It seems to me that there would have been no harm—and there will still be no harm—in including the wording of the amendment which I
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proposed in that particular clause and subsection of the clause. If you can refer to small businesses in that particular subsection, what on earth is wrong, and how is it cluttering up the statute, if you refer to public call boxes? I would have thought quite frankly, that the noble Lord would wish to set at rest all the concerns that have been expressed about public call boxes and I think he would be doing himself, the House and the consumers—and certainly me—a great service if he would relent and accept this amendment. If he does not, I will withdraw it.
Lord Cockfield: My Lords, with permission of the House, I do not rise to the bait offered by the noble Lord; but I simply wish, if I may be permitted to do so, to give an explanation on one specific point the noble Lord raised. That was the question of the disabled, the elderly and the small businesses. The Government amendment on that point, which required the director's report to cover matters affecting them, flowed from the decision to appoint special advisory bodies for the disabled the elderly, and for small businesses. These bodies were required to report annually to the director, and it was therefore perfectly natural that the director should specifically refer to matters falling within the remit of these bodies in his own annual report. So that in that respect it does not differ from the way that the director would deal with the reports from the four country advisory councils.
Lord Stoddart of Swindon: My Lords, I can see that the noble Lord is not disposed to be kind to me tonight, so I will be kind to him and the House and withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cockfield Lord Cockfield moved Amendment No. 107:
[Printed earlier: col. 1073.]
The noble Lord said: This amendment also goes with Amendment No. 97. I have spoken to it. I beg to move.
On Question, amendment agreed to.
10.29 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 108.
Page 49, line 28, at end insert—
("() a report on the system of charges levied by telecommunications operators for access by other telecommunications operators to their networks.")
The noble Lord said: My Lords, with the leave of the House, I would wish to speak to Amendments 108 and 109.
Amendment 109: Page 49, line 28, at end insert—
("() a report on the financial arrangements made for the continued provision of services under section 3 of this Act, including a five year financial plan, updated each year.")
The noble Lord, Lord Cockfield, in his response to amendment No. 106 criticised the attempt to put what he called detailed provisions into this part of the Bill, and he cited the Bellman in support of his argument that things should not he said three times. I would remind him that the Bellman was not exactly and admirable example to follow. When he was asked about his map for the ocean, he said he did not have

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Mercators, North Poles and Equators, tropic zones and meridian signs because they were merely conventional signs: what he had, he said, was a perfect and absolute blank. He also had only one notion for crossing the ocean and that was to tinkle his bell—not a means of navigation, I suggest, that would commend itself to the House.
However, the accusation cannot be made that these two amendments are detailed provisions. The reports that are asked for are absolutely fundamental to the economics of British Telecommunications after the passage of the Bill. It will not be enough for the noble Lord to respond in the vein that he responded to my noble friend a few minutes ago. It is true that the device that we are now adopting of asking for further detail in the annual report of the Director General of Telecommunications is not a very strong device. It is nothing like as effective as it would be actually to spell out the provisions for the funding of the uneconomic services in the Bill. A report does not do that. All that it does is draw attention to what might go wrong after the damage has already been done. But it is the best that we have left to us at this time until we have the opportunity to come back on Third Reading.
The question of the system of access charges has been growing in seriousness as the Government have attempted to take note—I believe genuinely—of the concern expressed on all sides of the House about the various uneconomic services, and as the Government extended the provisions of Clause 3 to that effect. It is true that on the most important of all, the provision of rural services, the noble Lord the Minister succeeded in persuading the House last week, on what I believe was a wholly fallacious argument, that there should not be adequate protection for rural services. We shall have to put that right next week. In the meantime, there is now a whole series of provisions within Clause 3(1) and Clause 3(2) which refer to uneconomic services. When we come to the issue of who shall pay for these uneconomic services, we are told without any further explanation that it will be done on the basis of access charges. Access charges are a very two-edged weapon. They can be an extremely effective way for British Telecommunications itself to screw down all possible competition and maintain its virtual monopoly of the most profitable services. That would be the case if British Telecom was to set access charges high and to have the ability to set access charges high. But the problem for British Telecom in doing that would be that in equity—and indeed in the terms of the Bill—access charges would have to be the same for British Telecom itself seeking to access its own networks as for the other operators.
I suspect that what will happen in practice is that access charges will be set extremely low. The danger is that the access charges will simply not be adequate to the demands made upon them by the provisions of Clause 3. I can make these assertions with impunity because the Government have made no attempt to help the House over what will be the cost of the commitments made for uneconomic services in Clause 3. They have made no attempt to tell the House, even in the most general terms, what will be the level of access charges necessary to meet those demands on services, and what effect this will have on
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the competitive position as between British Telecom, and other telecommunications operators.
I would suggest to your Lordships that in the absence of any indication on either of those points the Government's map of the economics of telecommunications, after the passage of the Bill is, like the Bellman's map, a perfect and absolute blank. Although it is too much now to expect, after well over a year of legislative activity, the Government actually to come clean on the matter, it is necessary to say that in the future there must be a continuing obligation on the Director General of Telecommunciations to report on the way that things actually work out in practice and to report in his annual report on the sytem of charges levied for access, and, turning to Amendment No. 109, for the continued provision of services under Clause 3 including a five year financial plan up-dated each year.
Unless we have those two essential elements in our telecommunications strategy reported on, made available by the Secretary of State to Parliament and debated in Parliament each year, we shall not have gone any way towards expressing what, presumably, is in the Government's mind—namely, the relationship between British Telecom and other operators. Moreover, we shall have done nothing—and this is perhaps not of greater importance, but it is certainly of very great importance—to ensure that the provisions in Clause 3 for the protection of those most in need (on behalf of whom your Lordships have voted on a number of occasions throughtout the passage of the Bill) actually mean anything. I beg to move Amendment No. 108.
Lord Lloyd of Kilgerran: Let me briefly say that we on these Benches would have liked to see reports such as have been described by the noble Lord, Lord McIntosh, included in the publications by British Telecom. I should like to support the statements made by the noble Lord.
Lord Cockfield: I do, indeed, congratulate the noble Lord, Lord McIntosh of Haringey, on his knowledge of The Hunting of the Snark. I would, however, simply make the point that I quoted the Bellman as an example of what we ought not to do. Therefore, his more detailed quotation supports the case that I was putting forward and does not in any way cast doubt upon it.
The two amendments to which we are now speaking both relate strictly to the content of the director general's report. The arguments put forward by the noble Lord relate to the substance of the Bill. I suggest, with respect to the noble Lord, that he is raising these matters in the wrong place. As I have explained in connection with the earlier amendments, the obligation is on the director general to report on all matters which fall within his competence or within his functions. He will, therefore, be producing a very wide-ranging report.
On the question of the access charges, I can of course go into the matter in some considerable detail. As the amendment is drafted, it would cover not only access charges but also the commercial charges agreed between the two operators for interconnection. I doubt whether that, in fact, is what the noble Lord has in

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mind. But even if the amendment were drafted more restrictively so as only to cover the actual access charges, I do not think that it would be appropriate.
First, BT has discretion as to whether or not to levy access charges. It is possible that it may decide not to do so, in which case it will be odd to have a requirement on the director to report on something which does not exist and which is not being done. But, more importantly, I do underline the general argument that I used before—namely, that, by highlighting one subject, you do in fact cast doubt upon the importance of the other subjects. I agree that access charges (if BT decides to levy them) are important, but they are only one of the many important matters that are provided for in the licence. It is, we think, wrong that we should single out one particular aspect for a special report. There are the questions of prices, interconnection, the provision of services in rural areas, emergency services and so on. Once again, if you do in fact set down in Clause 53 all the matters on which you think that the director should report, then in fact you are virtually reproducing the whole of the earlier provisions in the Bill.
The other amendment, No. 109, in fact, goes very considerably further than the substantive provisions of the Bill itself. There is an obligation on the Secretary of State and the director to ensure that:
"any person by whom any such services fall to be provided is able to finance the provision of those services".
That is in the Bill. But from that it does not follow that it is right or appropriate that the director should be conducting what is, in effect, an efficiency audit of British Telecom and producing financial plans for it for the next five years. This would almost amount to the director general trying to run British Telecom.
The amendment says:
"a report on the financial arrangements made for the continued provision of services … including a five year financial plan, updated each year".
I suggest that that goes far beyond anything which it is reasonable to expect the director general to do. He is required to exercise his powers in a way which does not mean that the operator is unable to finance the services. But the Bill does not go into the kind of detail provided by this amendment. While, therefore, I entirely understand what the noble Lord has in mind—and on many of these matters we in fact sympathise with him because we want to see a good substantial annual report which covers all the matters which are relevant and all the matters in which consumers, manufacturers and users as well as Members of both Houses of Parliament are interested: we want to see a first-class report—we do not think that the right way to go about it is by trying to lay down in great detail what the content of that report should be.
Lord Bruce of Donington: The noble Lord is at his most disarming this evening. He is so sympathetic towards us that we are almost bowled over by the consideration that he has for our feelings in these matters. When the successor company goes into operation, we shall be in a different ball game, particularly about information in regard to British Telecom. Noble Lords will be well aware that the accounts and reports published by British Telecom go far beyond
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the requirements of the Companies Acts 1948 to 1981, under which the successor company will operate. Indeed, if it so wishes and if it confines itself to the strict requirements of the Companies Acts, the successor company will be far less informative than the accounts produced by British Telecom over this past six years, which even sworn enemies must agree are certainly presented in a most comprehensive manner, are most informative and contain a tremendous amount of informative data.
Of course, it may be said that the terms of the amendment will require the director to extend himself over a slightly larger field. Once again, I am sorry to rub it in but, according to the Prime Minister, for the next nine years at least the successor company that takes over British Telecom will be a private monopoly subject only to the bare requirments of the Companies Acts 1948 to 1981. I trust, therefore, that the noble Lord, Lord Mottistone, and, even in his absence, the noble Lord, Lord Off-Ewing, will he in favour of extending the amount of information that they will no longer receive from British Telecom and for which, therefore, they will look to the director general.
I do not think that these are unreasonable proposals. The noble Lord has used the argument many times before that we cannot specialise or particularise in one field without somehow down-grading the ones that we do not mention. This is an argument that has been used by politicians now for the past two centuries and there is nothing new in what the noble Lord has said in regard to that. May I draw his attention to the word "include" which is incorporated in Clause 53(2)? There is certainly nothing wrong in particularising. Otherwise the noble Lord's entire Bill would be full of particularisations that do not mention, and therefore downgrade, other matters. If the noble Lord counts up tomorrow how many times in this Bill the words "may include" are used he will be surprised at the number, so I do not think we really ought to pay overmuch attention to that.
On the assumption that the public at large want information about a private monopoly to which in law they are not necessarily entitled, and on the assumption that they still want some information—and the noble Lords, Lord Mottistone and Lord Orr-Ewing, seemed to want a lot of information—I should have thought it was best to encourage the maximum publicity prudently in accordance with the size of the director general's staff. As I go through this Bill again and again—and I have been through it many times—and I look at the explanatory note about the director general and his 50 staff and his total cost, the mind boggles as to how the director general is going to do all this. But in order to satisfy the noble Lord sitting behind the noble Lord he will most certainly have to do it. Out of sheer generosity, if for nothing else, to the noble Lord, Lord Mottistone, and the other liberalisers who have supported him this past few weeks, the noble Lord really ought to assent to the amendment so ably moved by my noble friend Lord McIntosh of Haringey.
Lord McIntosh of Haringey: My Lords, the noble Lord the Minister is quite rightly resisting any temptation to seek the leave of the House again. The

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reason why I would wish if it were not this time of night to pursue these amendments is first because the noble Lord, Lord Cockfield, actually misunderstands the second amendment. "A report on the financial arrangements made" means the financial arrangements made by operators. It does not mean making the director general make the financial arrangements himself. Nor does it require an efficiency audit. It requires that the operators produce the report of the financial arrangements and that that be collated into the five-year financial plan. I do not think that that is at all the interpretation that the noble Lord put upon it.
The other reason why only with great reluctance shall I seek leave to withdraw this amendment is because it is not simply a matter of a report which is being made up for the purpose of satisfying the amour proper of the director general or anybody else. It is because it is this report which is made to the Secretary of State and laid by him before Parliament and which ought to form the basis of informed debate in the country as a whole about how the Telecommunications Act is operating.
My reason for feeling so strongly about these matters is that these are the heart of the operation of the Act, and they are the heart both of the financing of the telecommunications operators themselves and of the provisions on which noble Lords have argued hard and long for uneconomic services. But on the basis only that we may find some way of attracting a larger House for further amendments at Third Reading, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 109 not moved.]
10.49 p.m.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 109A:
Page 49, line 28, at end insert—
("; and
() the results of an examination in consultation with the Boards of Directors of public telecommunications operators and with advisory bodies established under section 52 above of the actions taken during the preceding year and of the policies which should be adopted in future years—

(i) to promote the development of telecommunications in the United Kingdom: and

(ii) to maximise effective competition in the provision of telecommunication services and telecommunication apparatus in the United Kingdom.")

The noble Lord said: My Lords, I must confess at this late hour that I have been tempted to put down this amendment for a further report because of the great change in atmosphere in relation to this Bill that has been created by the Government under a certain amount of pressure, particularly in their attitude in regard to advisory bodies. This report that I suggest should be put forward is intended to be a succinct one recounting the results of what has happened in consultation with public telecommunications operators and with the advisory bodies that have now been set up under Clause 52, and to set out what positive actions have been taken for two matters. The first is what positive steps have been taken in regard to the promotion of telecommunciations developments. I emphasise the word "promotion". One of the duties
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of the director, with his advisory bodies—one of which has been set up by the Secretary of State—is to promote the development of telcommunications in the United Kingdom. It would be simple to have a list of such activities.
I am sure that the noble Lord, with his delight in referring to Victorian literature and other ancient doctrines of that kind, with that charming humour that he has in these matters, will be able to tell me that there are various parts of the Bill where this has been dealt with. When I read the Bill I cannot see any duty for the director to list out what are the positive steps that he has taken with the advisory bodies to promote the development of telecommunications in the United Kingdom.
My second point is that there should be a report to show what positive actions have been taken by the director with his advisory bodies to do something which is considered by the Government to be of the utmost importance; that is what steps they have taken to maximise effective competition in the provision of telecommunications services and apparatus in the United Kingdom.
We have been told over and over again that it is essential to have this effective competition. I take the words that have been used by the Government and accept them for the moment. I shall not analyse what they mean. The Government must know what they mean. Therefore it would be helpful from time to time for reports to be given as to what positive steps have been taken to maximise effective competition. This could be just another list. I am not suggesting that the reports should be long essays in relation to these matters. These are technical matters that can be listed or referred to quite briefly in any annual report.
I hope that the noble Lord will not introduce the Bellman argument against me because I must again confess that I have always been brought up to believe that when I have a good point and I have to present it to a tribunal, whether it is the High Court or a judicial committee of your Lordship's House, I have always been advised to put the point at least three times, but to take care that when the point is put it is wrapped up in such a way that the tribunal thinks that it is a new point. I beg to move.
Lord Cockfield: It was a charming admission by the noble Lord, Lord Lloyd of Kilgerran, that he was wrapping up an old point to try to make it look like a new one.
Lord Lloyd of Kilgerran: It was a confession.
Lord Cockfield: It was a confession, because I think that in this instance I entirely agree with him. There have been many matters on which we have had disagreements, and there have been important points on which we have had agreements. As a result, the Bill has been amended to the advantage of everybody.
But this amendment runs into exactly the same difficulties that I have already outlined to your Lordships. This is a matter on which there is a disagreement between us. We believe that the functions and the responsibilities of the director are fully set out in the Bill, both in Clause 3, which deals with his general functions: later in the clauses which

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deal with his licensing functions and then in Part III, particularly Clause 47, which deals with his other functions which include the duty to keep under review the carrying on both within and outside the United Kingdom of activities connected with telecommunications. The reporting requirement in Clause 53 follows naturally and properly from the substantive provisions of the Bill. We think it is both unnecessary and potentially misleading—and I do not want to underline it too much—to repeat all these things again in Clause 53.
I resisted the temptation to get up and reply to the noble Lord, Lord Bruce of Donington, but I should like to make this one comment. He instinctively starts from the point of view that the director general will want to produce a poor, thin-gutted report. In fact, the natural inclination of the director general will be to do precisely the opposite; namely, to set out to produce an extremely good, detailed report which goes into all these matters of public interest. I myself, over the years, have been responsible in varying capacities for producing statutory reports, and, if I may say so, I took very great pride in the reports that I produced. I hope very much the director general will take the same attitude towards his responsibilities. This is why the choice of individual is very important.
I am not in any way disputing the importance of any of these matters which have been listed by noble Lords. They are all very important. The only point on which I diverge—for "dispute" is a very strong word—from the views expressed by noble Lords opposite is that I think that these are matters that are covered by the general words in the Bill and do not require to be specifically set out in the terms of Clause 53 itself.
Lord Lloyd of Kilgerran: My Lords, it was very good of the noble Lord to spend so much time in dealing with my simple amendment. His view on these matters is totally different from my view. I was brought up to deal with hard commercial and industrial realities, perhaps, in a field with which, in his very distinguished career, he has not been so intimately connected as he has been with his own field. With those words, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 [Cable programme services]:
Lord Lyell Lord Lyell moved Amendment No. 110:
Page 50, line 11, leave out ("which is not within a dwelling-house")
The noble Lord said: This is a technical amendment in Clause 54 to bring it in line with the equivalent provision in the Cable Bill. I beg to move, my Lords.
On Question, amendment agreed to.
Clause 55 [Prohibition on unlicensed cable programme services]:
Lord Lyell Lord Lyell moved Amendments Nos. 110A and 110B:
[Printed earlier: col. 1031.]
The noble Lord said: Amendments Nos. 1 10A and 110B are consequential upon Amendment No. 91 A,
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to which I spoke this afternoon. With the leave of the House, I beg to move the two amendments en bloc.
On Question, amendments agreed to.
Lord Denham: My Lords, I think that this is the place that we have agreed we should get to tonight. I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Metals Society Bill [H.L.]
Reported from the Unopposed Bill Committee without amendment.
House adjourned at one minute before eleven o'clock.