Lords Sitting of 29 March 1984

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Exeter): The LORD CHANCELLOR on the Woolsack.
Lord Meston—Sat first in Parliament after the death of his father.

Consumer Affairs Council
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the second meeting of the EEC consumer Ministers indicating what progress was made on the draft directives dealing with unfair and misleading advertising, product liability and doorstep selling.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): My Lords, my honourable friend Mr. Alexander Fletcher attended the Consumer Affairs Council on 2nd March. The council decision on the early-warning system for dangerous consumer products, which had been agreed in principle at the previous Consumer Affairs Council, was formally adopted. My honourable friend explained that the misleading advertising directive in its present form would require a disproportionate upheaval in our present law and practice. It is now to be reviewed in the light of our concern, with a view to giving member states as much flexibility as possible in the choice of methods used to control misleading advertising.
Discussions on the product liability directive centred on the question of the extent to which there should be a financial limit to a producer's liability. No agreement was reached, and the matter is to be explored further by the Committee of Permanent Representatives and experts. A broad consensus on the text of the doorstep-selling directive was achieved, although one member state has retained its general reserve. It is expected that there will be a further council on consumer affairs in June.
Baroness Burton of Coventry: My Lords, while being grateful for the amount of information which the noble Lord always tries to give the House, am I to take it from his Answer that we have not made a great deal of progress? Is it not true that after the meeting of the council in December the permanent representatives were asked to examine the question of unfair and misleading advertising? Were they not also asked to deal with the question of doorstep selling, and to deal with it actively? Finally, were they not also asked to deal with the financial limit for product liability? If what the noble Lord has been good enough to tell us is "actively progressing", does he think that we could
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find another adjective to use in asking the permanent representatives to get on with their tasks?
Lord Belstead: They are active enough, my Lords. The early warning on dangerous consumer products has been agreed, and there is now only one reserve (which, incidentally, is not our reserve) on doorstep selling. Progress is being made in two ways, and certainly much work is being done in respect of misleading advertising and product liability.
Baroness Burton of Coventry: My Lords, can the noble Lord the Minister tell the House when the next meeting of the consumer Ministers is to be expected and whether he anticipates that we shall then have answers to the two questions which have been referred to them? Finally, can the Minister tell the House what progress is being made with the European Commission's second consumer programme? Does this programme contain more than the four directives we have been discussing? If so, will it be possible for him to let the House have that information?
Lord Belstead: My Lords, the next Consumer Affairs Council will take place in the month of June. I am not aware of the exact date, but I know that the presidency intends that there will be another council in June. That means that there will have been three meetings taking the period from December to June, which I think is very desirable.
I can only respond to the second question asked by the noble Baroness by saying that I very much hope there will have been further progression on the three outstanding draft directives still to be agreed. The noble Baroness also asked me whether anything is remaining from the first consumer programme. Yes, there is: the consumer credit directive is still outstanding from the first consumer programme. It was not discussed on 2nd March, but we understand that the Commission has just issued a revised draft, amended in the light of the comments of the European Parliament.
Lord Sainsbury: My Lords, does the noble Lord the Minister not agree that, with regard to misleading advertising, the United Kingdom system of having a self-regulatory body is preferable to having a directive?
Lord Belstead: My Lords, the Government entirely agree with what the noble Lord. Lord Sainsbury, has said, and we are working towards that end.
Lord Leatherland: My Lords, will the Minister be careful not to be over-stringent with regard to doorstep selling? The milkman calls at my house every morning and asks my wife, "Do you want one pint or two pints?". She answers according to our needs. That is doorstep selling.
Lord Belstead: My Lords, there are exceptions in the draft directive at the moment, and I believe that they will set the noble Lord's mind at rest.

Chemical Weapons: Negotiations with USSR
3.7 p.m.
Lord Boyd-Carpenter: 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 Government of the USSR has indicated willingness to discuss the abolition or limitation of weapons of chemical and bacteriological warfare; and what action Her Majesty's Government propose to take in the light of the attitude of the USSR.
The Minister of State, Foreign and Commonwealth Office, (Baroness Young): My Lords, in the negotiations at the Conference on Disarmament in Geneva on a ban on chemical weapons, the USSR have recently confirmed their acceptance of one aspect of routine on-site inspection. We now urge the Soviet Union to agree quickly on all remaining aspects of an effective and verifiable ban, so that the development, production and stockpiling of chemical weapons can be outlawed for all time. The Soviet Union is a party, as are we, to the 1972 Convention banning biological weapons. We are considering with other parties to the 1972 Convention how the compliance provisions may be improved.
Lord Boyd-Carpenter: My Lords. I thank my noble friend for that interesting Answer. Can she indicate when further discussions with the Soviet Union in respect of chemical warfare, and in particular the inspection provisions, are likely to take place?
Baroness Young: My Lords, the negotiations are continuing. I understand there are two sessions a year on this question. As my noble friend will know, we ourselves have proposed procedures for investigating any doubt about compliance which normal inspection procedures might not be able to resolve.
Lord Bishopston: My Lords, in view of the allegations that chemical weapons have been used in the Iraq-Iran conflict, the importance of the noble Lord's Question is beyond doubt. Is the noble Baroness aware that the United States, too, has recently sought consent to go ahead with the development of a new range of chemical weapons? In view of these factors—and apart from those mentioned by the noble Lord. Lord Boyd-Carpenter—will the Government use their initiative to bring about an agreement at the earliest opportunity, having regard also to the problems of verification?
Baroness Young: My Lords, with the renewed reports of the use of chemical weapons outside Europe and the existence of a very large Soviet chemical weapons offensive capability, we believe that a total ban is an urgent requirement.
Viscount Trenchard: My Lords, will my noble friend confirm that the problem of verification—and we all wish it well—is particularly difficult in relation to chemical weapons once they are made? I understand that there arc between 200,000 and 300,000 tonnes deployed fairly forward in the USSR. Can my noble
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friend confirm that that is still the estimate? Those chemicals take up a very small amount of space; and, therefore, can my noble friend also confirm that very difficult negotiations lie ahead to be sure of verification? Could she also confirm that it is with reluctance that the United States of America, against a position of not having these modern chemicals, has entered into development work again? Indeed, the noble Baroness might perhaps know whether that has been one of the factors that has led to the Soviet Union being prepared to talk about disarmament in this area.
Baroness Young: Yes, my Lords. I can confirm that it is important to get verification, and that this is not easy to achieve. However, we are hoping that we shall reach agreement on this matter. I can also confirm that the United States has limited chemical weapon capability. It is very small in comparison with the Soviet Union's. which is assessed at over 300,000 tonnes of chemical warfare agent, with the weapons to deliver it. No new United States weapons have been produced since 1969. Last year Congress declined to authorise funds to modernise the ageing United States capability.
Lord Avebury: My Lords, is it the Government's understanding that the weapons being used by Iraq in the conflict with Iran were manufactured by the Iraqis themselves? If this is so, does it not indicate that measures to control should not be limited to the super-powers but that the important question to which the international community must address itself is how to restrict the technology of manufacturing these weapons and the transfer of that technology from the advanced countries to nations such as Iraq?
Baroness Young: My Lords, a team of specialists appointed by the United Nations Secretary-General has concluded that chemical weapons have been used in the conflict between Iraq and Iran. I cannot comment on where they were manufactured. However, I should like to reiterate that for all these reasons we believe that a total ban on chemical weapons is urgently needed.
Lord Gisborough: My Lords, in view of the speed with which any country can manufacture chemical weapons after the outbreak of hostilities, and the likelihood that they would do so in self-defence, is there not a very unfortunate but strong argument that the world would be safer if all countries had chemical weapons as a deterrent to stop their being used, rather than having none and waiting for one side to break any agreement during hostilities?
Baroness Young: My Lords, I think that that is a hypothetical situation. We believe that the best way forward is to try to get agreement to abolish the use of chemical weapons in any country in the world.
Lord Molloy: My Lords, does the noble Baroness not agree that, after nuclear weapons, bacteriological and chemical weapons are probably the most hideous and deadly weapons still left in the armoury of a not particularly sane mankind? The endeavours of this Government in seeking to get a complete ban are to be applauded. Does the noble Baroness further agree that

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here is an opportunity for the Soviet Union to show that it, too, along with our Government, believes this is one step it could take with the United States, after the lead given by the British Government, to get a total ban on these appalling weapons? The Government are worthy of all our approval.
Baroness Young: My Lords, as I have said, we are working towards a ban on chemical weapons; and, as far as bacteriological weapons are concerned, the next review conference takes place in 1985. This will provide an opportunity to discuss ways of improving the effectiveness of that convention.

Copyright Law: Reform
3.15 p.m.
The Earl of Winchilsea and Nottingham: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they expect to bring forward legislation on copyright, in particular taking note of the interests of the entertainment industries.
Lord Lyell: My Lords, the Cable and Broadcasting Bill, which has now completed its passage in your Lordships' House, contains provisions for improving copyright protection which will benefit the entertainment industries. On a wider front, the Government are committed to a comprehensive reform of the copyright law as soon as possible, although no legislative timetable can yet be given.
The Earl of Winchilsea and Nottingham: My Lords, while I thank the noble Lord the Minister for his somewhat optimistic reply, is he aware that it is the considered opinion of the record industry, which I share, that unless legislation is introduced during the 1984–85 Session the enormous contribution that this important and influential industry makes not only to our balance of payments but also to our position as a world leader in the variety and quality of its products, and which is already seriously reduced, will be subjected to further very serious reductions?
Lord Lyell: My Lords, I am afraid we cannot say at
this stage what might happen as to future legislation since the details of the 1984–85 Session have not yet been finalised, but I am sure the noble Earl will appreciate that the programme is certainly very crowded. The Government are aware of the problems which have been spelled out by the noble Earl. I believe he will agree, and your Lordships will agree, that there are many problems but also many possible solutions. I am able to tell the noble Earl that the problem of home recording—which I think is the main problem that affects the entertainment industries that concern him and the royalties lost as a result of home taping—is currently under consideration by Ministers.
Lord Lloyd of Hampstead: My Lords, does the noble Minister bear in mind that the Whitford report on copyright reform was published as long ago as 1977 and that, in a debate on the Government's Green Paper of 1981 which took place in this House exactly two years ago, the noble Lord the Minister himself remarked that all responses to the Green Paper should be in by August 1982 and, moreover, that every effort would be made to introduce legislative proposals as urgently as possible? Does not the noble Minister agree that the two years that have elapsed since that time have been adequate time to enable the Government to formulate legislative proposals for reform in this most important field, which affects, among other things, two crucial industries in this country—namely, the record and film industries?
Lord Lyell: My Lords, the noble Lord is quite right. Indeed, I have the Green Paper here. I seem to remember taking part in various discussions in your Lordships' House, then and since. We are very grateful for the noble Lord's continuing interest in this subject but, as he will be aware, the issues concerning copyright are very complex. Indeed, the continuing involvement of new issues, new technologies and a number of difficult and controversial issues has meant that continuing wide consultation is still necessary. I am afraid the position has not advanced further since my last comments on this subject.
Lord Mishcon: My Lords, will the noble Lord the Minister take very much to heart the record of the dates which my noble friend Lord Lloyd of Hampstead recited, thereby robbing me of the opportunity of showing the House my own historical knowledge in this matter? In taking those dates to heart, is the Minister aware that the Copyright Reform Group, consisting of all the organisations mainly concerned with copyright in various industries, wrote to his right honourable friend the Prime Minister on 9th March calling her immediate attention to the fact that legislation is urgently needed in this field and that promises have not so far been fulfilled in regard to legislation? Finally, is he aware that the two main concerns in the entertainment industry are unauthorised private recording, both audio and video, and point-to-point communication via satellite? Will he press upon those responsible for those matters the desirability of including legislation in the Session that has already been mentioned; namely 1984–85?
Lord Lyell: My Lords, on the noble Lord's last question I shall do everthing I can to make my right honourable friends aware of the deep feeling that is felt not only by the noble Lord but all round your Lordships' House. The noble Lord referred to point-to-point and satellite broadcasting. On the letter to my right honourable friend the Prime Minister, I regret that I was not aware of this, but certainly I am grateful for the information. The noble Lord referred to the Copyright Reform Group, with which I surmise he has some connection—
Lord Mishcon: No. my Lords.
Lord Lyell: He does not, I am sorry.

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I was going to say that, if he did, it would have a very powerful advocate. I know that this matter of copyright reform is of great interest to many of your Lordships. We are continuing to have discussions with members of the Copyright Reform Group both in your Lordships' House and in the Department.
Lord Howard of Henderskelfe: My Lords, is the noble Lord aware that the very swift advance to which he has referred and the many changes which are taking place are the very reasons legislation is urgently demanded to cope with these new and extreme difficulties which were not envisaged in previous years? I fear that the report to which reference was made earlier is not now wholly relevant because so much has happened in between. I ask the noble Lord to use every ounce of his well-known persuasion to persuade those sitting near him and others who sit in another place to introduce legislation at the earliest possible date.
Lord Lyell: My Lords, I am immensely grateful to the noble Lord for his flattery. He says "every ounce". I am trying to lose ounces every day. Indeed, it is in part the hospitality in your Lordships' House that causes me to gain ounces. I shall certainly take everything that the noble Lord has said to my right honourable friend, but I am sure that the noble Lord and all your Lordships would agree that, with the increase in technology, and the new issues that are arising such as satellite broadcasting, if we are to legislate, we must get it right. There is no point in legislating and then in three, four or even five years' time, finding that that legislation has been utterly overtaken.
Lord Hooson: My Lords, does the noble Lord agree that there is an urgent case for setting up a departmental committee to investigate immediately the incidence and the nature of piracy in these industries?
Lord Lyell: My Lords, the noble Lord mentioned piracy. I think that he will be aware that a Private Member's Bill dealing with video piracy has been through your Lordships' House and I think is coming up in another place. As far as a departmental inquiry is concerned, I shall convey that point to my right honourable friend.
Lord Jenkins of Putney: My Lords, would it not be desirable for the noble Lord to persuade his colleagues to pull out one or two issues on which there is widespread agreement, as is evidenced in this House this afternoon—for example, on the issue of home recording—and legislate on them rather than wait for another two or three years for a number of issues which are indeed changing technologically and are arguable? If the Government wait as they have been doing for the past two years, they will never legislate. Will they not legislate without further delay on those points which are widely agreed?
Lord Lyell: My Lords, that depends on how widely these points are agreed. I am sure that the noble Lord, and indeed one or two of your Lordships who spoke earlier, would agree that there are one or two pressing issues, but I stressed to the noble Earl earlier in my
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replies that the problem of home recording was under urgent consideration by Ministers. I am sure that that point will ring a bell for the noble Lord with his ministerial experience.

The "General Belgrano"
3.23 p.m.
Lord Hatch of Lusby: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will comment on the allegations made in the recently-published book The Sinking of the Belgrano about the Cabinet decision to sink the Argentine cruiser "General Belgrano" on 2nd May 1982.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): My Lords, as has been fully explained on many occasions, the "General Belgrano" was attacked because she posed an unacceptable threat to units of the task force, and for no other reason.
Lord Hatch of Lusby: My Lords, has the noble Lord the Minister read the assertion that, when the then Chief of the Defence Staff, the noble Lord, Lord Lewin, (to whom I gave notice that I was raising this Question) heard that the "Belgrano" was under visual observation, he proceeded to Chequers where the War Cabinet was meeting, and stated:
"Here was an opportunity to knock off a major unit of the Argentine fleet";
and the Prime Minister then told him to go ahead? Secondly, will the noble Lord confirm that, before the sinking of the "Belgrano", no British serviceman had been killed, whereas after the sinking there were 255 British deaths and over 800 Argentine deaths?
Lord Trefgarne: My Lords, as the noble and gallant Lord, Lord Lewin, reminded your Lordships yesterday, he was not consulted by the authors of the book to which I think the noble Lord is referring, but would have been willing to talk with them had they approached him. I cannot therefore comment on the suggestions which the noble Lord makes. As I said in the main Answer, the "General Belgrano" was attacked because she posed an unacceptable threat to units of the task force, and that remains the position.
Lord Bishopston: My Lords, does the Minister recall that on 13th July last in this House, my noble friend urged the Government to have an independent inquiry into the circumstances of the sinking of the "Belgrano" with the loss of 368 lives? In view of the continuing disquiet—quite apart from the book which has been published and to which reference has been made—do the Government not consider that it would be helpful to their reputation to reconsider their decision on that day?
Lord Trefgarne: No, my Lords.
Lord Boyd-Carpenter: My Lords, is my noble friend aware of the fact that many British lives were saved by this timely action; and so far therefore from there being any disquiet in this country on this matter, the reverse is the truth?
Lord Trefgarne: My Lords, I entirely share my noble friend's view.
Lord Annan: My Lords, will the noble Lord accept that on 1st May there was an engagement between aircraft of the Argentine forces and aircraft of the British forces? Is not that in itself sufficient justification for the continuation of hostilities? Does not the Minister think that the noble Lord, Lord Hatch of Lusby, ought to give thanks for the fact that the submarine which was tracking the Argentine aircraft carrier, "Venticinco de Mayo", lost sight of her?
Lord Trefgarne: My Lords, as I have said, the "Belgrano" was attacked because she posed an unacceptable threat. What your Lordships' view would have been had that threat developed into an attack upon our task force, I do not care to speculate.
Lord Monson: My Lords, will the Minister agree that nothing is more likely to encourage Argentina to renew hostilities, thereby putting our Armed Forces and the population of the Falkland Islands in considerable danger, than the constant stream of pro-Argentine propaganda emanating from certain quarters in this country?
Lord Trefgarne: My Lords, I quite agree with the noble Lord. Much has been made of the peaceful intentions of the Argentine at this time; but your Lordships may recall that on 4th April, I think it was, the Security Council passed a resolution calling for Argentine withdrawal from the Falkland Islands, with which it did not comply.
The Earl of Cork and Orrery: My Lords, do not Her Majesty's Government, and my noble friend in particular, entertain a certain sense of gratitude towards the noble Lord, Lord Hatch of Lusby, for giving them so many opportunities to justify the sinking of the "General Belgrano"?
Lord Trefgarne: My Lords, I hope there can no longer be any doubt on the matter.
Lord Glenamara: My Lords, in case a feeling is forming that views about the sinking of the "Belgrano" fall along party political lines, could I make it clear that I and I believe many of us—
Noble Lords: No! Question!
Lord Glenamara: May I make it clear to the noble Lord that I and many others feel—
Noble Lords: Question!
Lord Glenamara: My Lords, is the noble Lord aware that I and many of us feel that in the context of an entirely unprovoked war. however regrettable and
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tragic the loss of life may have been, the sinking of the "Belgrano" was entirely justified?
Lord Trefgarne: My Lords, I am greatly obliged to the noble Lord.
Lord Hatch of Lusby: My Lords, can the noble Lord the Minister explain how he justifies his claim that the "Belgrano" was a threat to the task force when it has now been established, first, that it was sailing away from the task force; and, secondly, that for 25 hours it had been under observation by HMS "Conqueror"? If it was a threat to the task force, why was it not sunk much earlier than 2nd May? Secondly, will the noble Lord answer the assertion that has been made, in view of the new revelations about the Peruvian peace initiative, that either the War Cabinet authorised the sinking of the "Belgrano" knowing that the Peruvian peace initiative was on the brink of success or in ignorance of that fact, in which case the Foreign Office was in dereliction of its duty?
Lord Trefgarne: My Lords, as has been said on many occasions, the Peruvian peace proposals did not arrive in London until some three hours after the "General Belgrano" was sunk. As for the direction in which the "General Belgrano" was sailing at the time, that ship had changed its heading on a number of occasions during the day in question and it was not therefore possible to say that she was sailing in any particular direction at the time.
Viscount Trenchard: My Lords, is my noble friend aware that the picture that the noble Lord. Lord Hatch of Lusby. paints is one totally dissimilar to anything I saw in the Ministry of Defence at the time of this crisis? Would my noble friend also confirm, in addition to what he has said, very succinctly, as to the one reason why the "Belgrano" was sunk, that every piece of advice to the Prime Minister from our military experts was that it did, without question, pose a threat to the task force and to British lives?
Lord Trefgarne: My Lords, certainly the "General Belgrano" did pose a threat to units of the task force and that is why the rules on engagement were changed as they were.
Viscount Montgomery of Alamein: My Lords, having listened very carefully to what my noble friend has said, would he not agree that, having won the conflict, what is now much more important is to win the peace?
Lord Trefgarne: My Lords, I hope that will be possible.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that, subject to the progress of business, the Report stage of the Roads (Scotland) Bill may be adjourned for dinner at approximately 7 p.m. for a short period and the Public Records (Commission for New Towns) Order 1984 and the Public Records (British Railways Board) Order 1984 will be taken during this adjournment.

Rent (Scotland) Bill [H.L.]
The Lord Advocate (Lord Mackay of Clashfern):My Lords. I beg leave to introduce a Bill to consoli-date, in relation to Scotland, certain enactments relating to rents and tenants' rights and connected matters. I beg to move that this Bill be now read a first time.
Moved, that the Bill be now read a first time.—(Lord Mackay of Clashfern.)
On Question, Bill read a first time, and to be printed.

Public Health (Control of Disease) Bill [H.L.]
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I understand that no Amendment has been put down to this Bill and no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless therefore any noble Lord objects, I propose to move that the order of recommitment be discharged.
My Lords, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

County Courts Bill [H.L.]
Report received.

Criminal Trespass Bill [H.L.]
3.34 p.m.
Read a third time.
The Earl of Onslow: I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(The Earl of Onslow.)
Lord Mishcon: My Lords, the House, or those Members of the House who have been present at previous stages of this Bill, will know of the personal views which I expressed from this Front Bench and will not appreciate it if I repeat them. I merely say, with great respect to the noble Earl and those who have supported him, that I have regarded this as a mistaken Bill for reasons, as I have said, which I have given beforehand. But no doubt in another place they will have the opportunity of saying whether my view is agreed with or his, and I pay my tribute to the very courteous way in which he has conducted his Bill throughout its passage in this House.
The Earl of Onslow: My Lords, I should like to thank the noble Lord, Lord Mishcon, for the delicious way in which he disagrees with me. I hope that it has been a useful Bill. I think it has been a useful Bill. It is a very minor piece of legislation on a minor irritant, but which causes a lot of people I think minor irritation. If we can just do a little bit to help our fellow citizens, then we should be reasonably satisfied with ourselves.
Baroness Phillips: My Lords. I should like to support the noble Earl in this Bill, and to say that I am only sorry we could not have widened the terms of reference. I feel that this is something that many people suffer for which there is no recourse in law. I only hope that in future we can have another Bill which will widen the terms of reference to include all private premises. I wish this Bill a fair passage through the other House.
Baroness Trumpington: My Lords, I am very glad to have the opportunity to express the full support of the Government for my noble friend Lord Onslow's Bill, and to thank and congratulate both him and my noble friend Lord Renton for their enthusiasm and diligence in taking this measure forward. I feel it is important to note that what is being sought here is a measure which found enormous support when the principle of the protection of homes from intrusion was raised for comment in the Government's consultation paper. It was quite clear from the response to this paper that people felt that it was both necessary and desirable to extend the protection of the criminal law to people in their own homes, and to punish intrusions into such homes.
This measure is. and should be, concerned with catching intruders; those who come into a building to "case the joint", those who snoop in corridors or prowl, unwelcome and uninvited, into places where people live. Such places can of course include not only the conventional family home but also nurses' homes, and residential homes for the old, the very young, and other vulnerable members of our society. Intrusions into people's homes is a thoroughly nasty and potentially harmful activity which my noble friends and the Government think it right to forbid by law. I am therefore most grateful to my noble friend for bringing forward this measure which I commend to your Lordships.
On Question, Bill passed, and sent to the Commons.

Education (Grants and Awards) Bill
The Earl of Swinton: My Lords, I beg to move that the Commons Reason for disagreeing to the Lords Amendment be now considered.
Moved accordingly, and, on Question, Motion agreed to.
COMMONS REASON FOR DISAGREEING TO THE LORDS AMENDMENT
[Reference is to Bill (86).
The Commons Reason is printed in italics]
LORDS AMENDMENT
After Clause 3, insert the following new Clause—
"No money provided under this Act shall be used in any school where admission is based on selective examination or sets of tests of ability."
The Commons disagree to the Amendment proposed by the Lords for the following Reason:
Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason trusting that this Reason may be deemed sufficient.
The Earl of Swinton: My Lords, I beg to move that this House doth not insist on the amendment to the Bill with which the Commons have disagreed. Your Lordships will see from the paper that the Commons

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disagreed to the amendment proposed by the Lords for the following reason:
"Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason trusting that this Reason may be deemed sufficient."
You will see that the other place have taken the view that this amendment infringes their financial privilege and have indicated that they do not wish to waive their privilege in this instance. The amendment was, however, fully debated and rejected in the other place on its merits, and the Government firmly support this rejection. In the interests of brevity, I do not propose to reiterate the Government's objections at this stage. However, I should make it abundantly clear that I am not hiding behind the cloak of Commons privilege, and I am more than willing to reply to any points raised. I beg to move.
Moved, that this House doth not insist on the amendment with which the Commons have disagreed.—(The Earl of Swinton.)
Baroness David: My Lords. I understand that before our amendment after Clause 3, inserting the new clause which reads:
"No money provided under this Act shall be used in any school where admission is based on selective examination or sets of tests of ability."
was discussed in another place, Mr. Speaker drew attention to the fact that Commons privileges were involved. I understand it is very seldom that this happens—in fact, it last happened six years ago, in 1978, when the Parliamentary Pensions Bill was going through Parliament—but that when it does happen it is customary for this House to accept the decision of the Speaker, and we shall therefore not disagree with the Commons in their disagreement to the amendment.
However, that does not prevent me from saying a few words on the merits of the case. I cannot agree with the Secretary of State when he said in his speech (as reported at col. 857 of the Official Report of 19th March):
"The amendment is simply a device to further the objective of Opposition Members to eliminate all forms of selective secondary education".
Our intention was that education support grants should not be used in schools where entry was based on selective examination; that is to say, we wanted the grants for innovation and experiment in the curricu-lum to be used in comprehensive schools. As the number of grammar schools remaining in the country was only 175 at the beginning of January 1983 and is probably slightly less now—the number has declined by over a quarter since 1979—it does not seem unreasonable that what the noble Earl has repeatedly referred to as not a large sum of money (£33 million) should be spent where the greatest numbers of pupils attend—the 5,000 or so secondary schools where entry is not based on tests of ability. A very wide choice therefore remains. It seemed right to us that the attempts to improve the quality and range of educational opportunities that Sir Keith said he wanted should be made where by far the greatest numbers of pupils were. Now nearly 90 per cent. of children are in comprehensive schools.
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However, we have had the assurance from Sir Keith,
"that we are not proposing that education support grants be used to enable local education authorities to set up new grammar schools".
So we shall have to be content with that. We shall of course be watching with the greatest interest exactly on what, and where, the new powers given to the Secretary of State and the department will be used, and we shall have the opportunity to comment on the proposals when they come before us in the form of regulations, as Clause 3 of the Bill says they must.
Lord Alexander of Potterhill: My Lords, I am very surprised that this matter should be pursued so strongly. For myself, I am very grateful for the fact that I went to a grammar school, and I have a feeling that a good many noble Lords who sit on these Benches owe where they are a great deal to the fact that they went to grammar schools. Recently the Opposition has been very strong in defence of the freedom of local authorities. It is the freedom of local authorities to decide whether to have grammar schools, and I am very sad that the Opposition should seek to punish those who make that decision by moving an amendment of this kind. Surely if there are children in grammar schools—
Baroness David: My Lords, may I please interrupt? I am not quite sure whether the noble Lord, Lord Alexander, has understood that we are not disagreeing with the Commons in their disagreement.
Lord Alexander of Potterhill: No, my Lords, but what the Opposition is suggesting in the amendment is that if there is in a grammar school a child who would benefit by a project which the local authority is undertaking—for example, relating to handicapped children, or other similar purpose—that child should be debarred from benefiting from the Bill. That I find deplorable.
The Earl of Swinton: My Lords, I think that I must answer one point that the noble Baroness made about this matter, and I am very glad to hear that she is not going to press it. She said that there are only 175 grammar schools in the country. That, I think, is the case, but even though there are only 175 there would be quite a lot of children who would be debarred if the Opposition decided to press this point.
Of course, were the clause to have been enacted as part of the Bill it would have been for the courts, ultimately, to rule on its precise meaning and applica-tion to particular schools. However, it seems clear to me that under this clause no part of education support grants could have been used to support any activity in a sixth-form college that based its admission on pupils' performance at O-level. After all, an O-level examination is a test of ability.
It is also arguable that an 11 to 18 school, for example, which admitted pupils into its sixth form from other schools on the basis of their O-level results might have been similarly excluded, and that exclusion would have applied not just to its sixth form but to the whole school. A further possible interpretation is that, within a local selected school system of grammar and secondary modern schools, the secondary modern schools as well as the grammar

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schools might have been ruled out for ESG purposes. In such circumstances it could well be argued that the admission of a pupil to a secondary modern school is as much based on a test of his ability as is the admission of a pupil to a grammar school.
Finally, there would have been grave room for doubt about whether secondary schools maintained by ILEA might have been excluded by this amendment. The system of banding operated by ILEA depends partly upon primary pupils' performance in a verbal reasoning test. As I understand it, the test partly determines the proportions of children from each primary school going into each band of ability, and those proportions in turn affect admissions to individ-ual secondary schools. It therefore might well have been argued that ILEA's policy on admissions to secondary schools is based to an extent upon a test of ability, though the objective of that policy is of course to achieve a spread of ability in each school.
I do not think that I need go on at length, and the noble Baroness said that she was not going to do so. But while she spoke about only the children in 175 grammar schools being excluded, had the Opposition insisted on this amendment I think she would have found that it affected very many thousands of children throughout the country.
On Question, Motion agreed to.

Telecommunications Bill
3.47 p.m
The Chancellor of the Duchy of Lancaster (Lord Cockfield): My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales that they, having been informed of the purport of the Telecommunications Bill, have consented to place their prerogative and interests, so far as they are concerned on behalf of the Crown and the Duchy of Cornwall, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 3 [General duties of Secretary of State and Director]:
Baroness Macleod of Borve Baroness Macleod of Borve moved Amendment No. 1:
Page 3, line 15, after ("disabled") insert ("or of pensionable age").
The noble Baroness said: My Lords, this amendment asks your Lordships to agree that in Clause 3, after the word, "disabled", there should be added the words, "or of pensionable age". This is only a tidying-up measure to bring the point into line with the amendment with which my noble friend the Minister agreed at an earlier stage in the passage of the Bill. The amendment brings the matter into line with Clause 54, subsection (4)(b) and subsection (5). I beg to move.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, my noble friend has been a tireless advocate of the needs of both the disabled and the elderly, or, to be absolutely correct, persons of
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pensionable age. Without further ado I can say that the Government are happy to accept the amendment.
On Question, amendment agreed to.
Lord Cockfield Lord Cockfield moved Amendment No. 2:
Page 3, line 37, leave out ("providing") and insert ("producing").
The noble Lord said: My Lords, this is little more than a drafting amendment. The word "providing" could have been interpreted as including imports. That is not what was intended. The word "producing" is not open to that misinterpretation. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment No. 3:
Page 4, leave out lines 7 and 8.
The noble Lord said: My Lords, if it is convenient to your Lordships, I should like to take with this amendment Amendments Nos. 17, 18, 19 and 55.
Amendment No. 17: Clause 8, page 11, line 18, at end insert—
("(1A) Where a licence granted under section 7 above to a particular person includes a condition requiring that person to provide such directory information services to which this subsection applies as are specified in the licence or are of a descrip-tion so specified, subsection (1) above shall have effect as if the conditions there mentioned included a condition requiring that person to provide without charge for subscribers who are blind or otherwise disabled such directory information services to which this subsection applies as are appropriate to meet the needs of those subscribers and are specified in the licence or are of a description so specified.
(1B) Subsection (1A) above applies to any directory informa-tion service which is provided for the purpose of facilitating the use of a voice telephony service and in that subsection "blind or otherwise disabled" means so blind or otherwise disabled as to be unable to use a telephone directory.").
Amendment No. 18: Clause 8, page 11, line 19, leave out ("subsection (1)") and insert ("subsections (1) and (1A)").
Amendment No. 19: Clause 8, page 11, line 22, leave out ("paragraphs (a) to (e) of that subsection") and insert ("those subsections").
Amendment No. 55: Clause 107, page 97, line 16, at end insert—
(" "directory information service" has the meaning given by section 4(3) above;").
It is to one of the amendments to Clause 8, Amendment No. 17, that I wish primarily to speak. I hope that this amendment will find favour with your Lordships, as I believe that it meets the concern expressed on Report from all sides of the House. This was that there should be protection in the Bill for all those who, by reason of disability, cannot use the ordinary printed telephone directory. As explained at Report stage, we have already put such protection in the draft BT licence through Condition 34, which ensures that, if BT does introduce charges for its directory inquiry service, then those who do not have the alternative of printed directories will not be put at a financial disadvantage. However, we understood the concern expressed then that there should be something in the Bill as well, and this is what this amendment achieves.
The wording in the new subsection (1A) may be a little obscure so I will try to explain what it means as succinctly as I possibly can. Its broad effect is to ensure that, in the case of the major systems providing voice telephony to the public—BT, Mercury and Hull—before the operators of these systems can be designated as public telecommunications operators

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under Clause 9, their licences must include a condition requiring them to provide,
"without charge for subscribers who are blind or otherwise disabled such directory information services … as are appropriate to meet the needs of those subscribers".
The new subsection (1B) clarifies the precise information service that is to be required. It must be information,
"for the purpose of facilitating the use of a voice telephony service".
This covers not only telephone numbers but also other information such as STD codes, which are essential for making a telephone call. Subsection (1B) gives some further clarification into which I do not think I need necessarily go now. I hope that what I have already said is sufficient to explain the amendments.
I should like briefly to turn to the other amendments in the group which are largely consequential to the main amendment. The amendment to Clause 3 simply deletes words that are now unnecessary by the inclusion, via Amendment No. 55, of a reference in Clause 107 to directory information services. The other two amendments to Clause 8, Amendments Nos. 18 and 19, are simply drafting consequentials. I beg to move.
Lord McIntosh of Haringey: My Lords, it will come as no surprise to the Government that we welcome these amendments. They will know that we had already considered putting down an amendment to achieve very much the same effect although with nothing like the complexity and skill of the Government, and indeed, lacking the help of the resources available to the Government, in moving such amendments. I have to confess that the amendment appears to us very much a second best. It had been our wish throughout that there should be directory inquiry services of the type described by the noble Lord available free of charge to all subscribers as they have been made available historically by British Telecommunications and, I assume, by the Hull telephone undertaking.
The difficulty that we saw at earlier stages of the Bill in the procedures proposed by the Government is not really overcome by the wording that they have proposed. It is, of course, possible for legislation to define what is meant by blind and disabled for the purpose of the Bill. What is much more difficult is for it actually to be carried into effect by telecommunications organisations. How, in practice, will it be possible to say who is blind and who is disabled without setting up a register?
My expectation and, indeed, my hope is that by moving this much more restricted amendment, the Government have paved the way for free directory inquiry services for all. I believe that telecommunications operators, looking coldly at the amount of bureaucracy and inquiry, the keeping of a register and the checking of credentials that would be required by the amendment that the Government have proposed, will say to themselves that the game is not worth the candle and that it is much more economical for them to continue to provide directory inquiry services free to all. In that way, I believe that the objectives that the Opposition and other noble Lords have put forward throughout consideration of
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the Bill will in the end be achieved. I therefore welcome the amendment more warmly and widely than I believe the Government would wish me to do.
Baroness Macleod of Borve: My Lords, having received much correspondence, as I am sure many other noble Lords have done, from the Royal National Institute for the Blind, I thank the Minister most warmly for inserting Amendment No. 17 to Clause 8. I am sure that it will be warmly received by the blind, not only those who earn their living but also those blind people who have so many problems in their own homes.
Lord Lloyd of Kilgerran: My Lords, I welcome these amendments as making considerable progress towards the objectives that we had in mind. I have in my hand a letter from the Royal National Institute for the Blind expressing some unhappiness and unease on one point. I should like with the leave of the House to refer to Amendment No. 17 to which the noble Lord spoke. The letter states:
"Various assurances have been given that if charges were introduced for directory information services British Telecom would make special arrangements for blind people. However, no one has produced a satisfactory system for doing this."
My criticism is to ask what kind of system is envisaged in order to deal with this very real problem. The letter goes on to give instances of the difficulties that would arise. According to the letter,
"it would be necessary to distinguish the blind user of the enquiry service from his colleagues at work; the blind person at home from, say, his sighted wife".
These are practical difficulties that must arise in not having free directory information services. Although the theme of Amendment No. 17 is laudable in many respects, its practical application seems to me to be very difficult indeed. Perhaps, if not today, at some other time, we may have some explanation from the Government as to the scheme that they will adopt or will advise should be adopted to deal with this real problem.
Earl Attlee: My Lords. I welcome the amendment. I should like to ask three questions. Would those who are dyslexic be included in the group of "otherwise disabled"? Would people who cannot read be in that group? Thirdly, may I ask whether foreigners who cannot read English will also be included in the group?
Lord Glenarthur: My Lords, with the leave of the House, perhaps I may reply first to the noble Earl, Lord Attlee. Subsection (1B) clarifies among the other points that I made when I spoke earlier exactly to whom subsection (1A) applies. They are those who are,
"so blind or otherwise disabled as to be unable to use a telephone directory."
This seems to me to cover fully all the groups of people we are concerned about and whom the noble Earl is concerned about. Not only does it include the blind who, for obvious reasons, cannot read a printed directory, but it will also cover the dyslexic who cannot read a directory because of what is known, I understand, as word blindness. It will also cover those who, through physical handicap, cannot use a telephone directory. As to the question of those who

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cannot read English, I am not clear on that point. I shall certainly let the noble Earl know what the answer is.
As to the points raised by the noble Lord, Lord Lloyd, exactly how the condition will be implemented will not be decided until BT has concluded that it wishes to levy charges for the directory inquiry services. When and if it does, then the licence conditions will be drafted so that it must agree with the director how subscribers covered by subsection (1A) are to be identified before it can introduce any charges. I have no doubt that the director's special advisory group on matters affecting the disabled will have a valuable role to play in this respect.
Lord Lloyd of Kilgerran: My Lords, before the noble Lord sits down, do I therefore understand him to say that this very important matter will be left entirely to the discretion of the director of Oftel? If that is so, it would seem to me that this is not a matter which should be left to the discretion of the director, and that somehow it should be put into the Bill, perhaps in the other place.
Lord Glenarthur: My Lords, I will certainly note what the noble Lord says rather than go into it any more now. If it needs to be in any way amended at a later stage I will see whether that is possible. But at the moment all I can say is that I am happy that the main intention behind the amendment as proposed meets the concern which has been expressed on all sides of the House.
On Question, amendment agreed to.
Clause 4 [Meaning of "telecommunication system" and related expressions]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 4:
Page 4, line 15, after ("conveyance") insert ("or switching").
The noble Lord said: My Lords, considerable concern has been expressed by large institutional and industrial users that the Bill in its present form would enable BT successfully to oppose the operation of what is known as "switching in systems" by present and future licence holders known as VAN licence holders. That is the technical term for those who use value added network systems, and the words "value added network" give the generic term "VAN". They are very important licences commercially, and I should like briefly to mention the kind of use which is envisaged and which takes place with them. They operate in telephone answering systems, view data arrangements and many others.
In the early hours of 13th March I discussed this matter with many noble Lords who were present on that occasion, and the noble and learned Lord the Lord Advocate (who, as well as being a very distinguished advocate, is a very kindly man) said that as his answer would be rather long would I mind if he wrote to me about it. Noble Lords agreed with that suggestion, and the noble Lord, Lord McIntosh, and the noble Lord, Lord Mottistone, asked to be sent copies of that letter. In due course a two-page letter was received, carefully drafted by parliamentary counsel, dealing with this matter. It seemed to me and to my advisers in this matter that this was rather a
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complicated way of dealing with it, even if the letter did address itself to the problem that we had in mind. Consequently there have been very useful discussions—for which I and my advisers are very grateful—particularly with a Mr. Ellison, as to how more easily to solve this question. It was considered that the word "switching" should somehow be introduced into the clause in order to clarify the way in which the system was operated.
With the leave of the House I should like to refer briefly to Amendment No. 14, which has been put forward by the Government and which deals with this question. In that amendment the Government have said that the word "switching" or "switch" can be included everywhere after the word "convey" appears. So it will be "convey or switch" everywhere except in subsection (1). My purpose in addressing your Lordships is to clarify the position as to why there has been this limitation in regard to the use of the word "switching" in subsection (1). I rather gather that the broad reason for reserving the position with regard to subsection (1) is that in subsection (1) the Government are concerned also with communications as regards satellites. If that is the position I am prepared to accept it, and a brief reply from the Minister, even a "Yes", would enable me to withdraw the amendment.
Lord Mackay of Clashfern: My Lords, the point which is raised in Amendment No. 4 by the noble Lord is the point which, as he says, is dealt with primarily in Amendment No. 14, because we accepted the reasoning behind the noble Lord's Amendment No. 4 and tabled Amendment No. 14, which deals with exactly the same point in a slightly different way.
Amendment No. 14: Page 5, line 46, at end insert—
("(7) In this section, except subsection (1) above "convey" includes transmit, switch and receive and cognate expressions shall be construed accordingly.").
Let me explain how we understand it to work. The problem arises when apparatus is connected to a system and provides a service but does not itself actually convey a message. We ourselves attempted to deal with the problem originally by including a tailpiece to subsection (1) of Clause 4, which was criticised by my noble friend Lord Mottistone, my noble friend Lord Campbell of Alloway and the noble Lord, Lord Spens, for its complexity. We have since introduced subsection (2) as now printed in the Bill, but we have realised in the light of the discussions to which the noble Lord has referred that when a system is regarded as a system under subsection (2) it may not convey messages but may only switch them. However, we have also realised that such a system might receive messages without conveying them, or might transmit messages without conveying them.
To deal with this we considered the option of adding the word "switching" after "conveyance" in subsection (1), as the noble Lord has proposed, but thought it best not to do so because this would have cast doubt on the position of apparatus which received or transmitted without conveying. Also, we were influenced by the natural or dictionary meaning of the term "telecommunications system", which is, after all, an assembly of component parts which conveys sounds, visual images or signals from one place to another, and not a single piece of apparatus. We thought it best to stick with the natural meaning of the

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term "telecommunication system" as we have done in subsection (1), and to make it clear that if an item of telecommunication apparatus is connected to a telecommunication system so that it switches, receives or transmits messages it should be regarded as if it were a telecommunication system. Amendment No. 14 therefore clarifies that when a single item of apparatus is connected to a system so that it transmits, switches or receives messages conveyed by the system or systems to which it is connected it is treated as itself conveying the messages. It achieves the result which the noble Lord seeks in a way which we think prefer-able to the one which he has chosen.
Amendments Nos. 6 to 12 relate to the same topic, so perhaps I can say now that they merely delete the word "switched" or "switching" in seven places where those words become redundant as a result of Amendment No. 14.
Amendment No. 6: Page 5, line 3, leave out ("or switched")
Amendment No. 7: Page 5, line 5, leave out ("or switching")
Amendment No. 8: Page 5, line 10, leave out ("or switching")
Amendment No. 9: Page 5, line 27, leave out ("or switching")
Amendment No. 10: Page 5, line 29, leave out ("or switched")
Amendment No. 11: Page 5, line 35, leave out ("or switched")
Amendment No. 12: Page 5, line 37, leave out ("or switching")
I hope that this meets the point that the noble Lord has made.
Lord Lloyd of Kilgerran: My Lords, I am much obliged to the noble and learned Lord for his full and careful explanation of this very important matter for certain institutional and industrial organisations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 5:
Page 4, line 40, leave out ("for supply or export of such apparatus") and insert ("of such apparatus for supply or export")
The noble and learned Lord said: My Lords, this amendment is a purely drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 6 to 12:
[Printed above.]
The noble and learned Lord said: My Lords, with the leave of the House I should like to move Nos. 6 to 12 en bloc. I have given the explanation that these amendments leave out words which are now surplusage. I beg to move.
On Question, amendments agreed to.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 13:
Page 5, line 43, leave out ("be disregarded for the purposes of this Act if it") and insert ("not be regarded as a connection for the purposes of this Act if that other telecommunication system or that apparatus")
The noble and learned Lord said: My Lords, this is a drafting amendment. It makes no change of substance, but as it was referred to earlier, perhaps I ought to say a little about it.
Subsection (6) of Clause 4 provides that indirect connection is not to be regarded as a connection for the purposes of the Act. Thus the telecommunication system in Hull, for example, is not to be treated as connected to the telecommunication systems in, say, America if the connection is made indirectly via the British Telecom or Mercury system. Under the Bill only the direct connections between the Hull and BT systems and between BT and the American systems are to be treated as connections for the purposes of the Bill.
The drafting of subsection (6) was criticised by my noble friend Lord Campbell of Alloway at the Committee stage, and I think my noble friend indicated that he had asked some others for their views and they had tended to agree with him. The amendment will, we hope, clarify the meaning of subsection (6), but it also avoids the implication that indirect connection must be disregarded completely for other purposes of the Bill. If the amendment is adopted it will, for example, be possible to insert one set of conditions into the licences for private systems which are connected to leased circuits which themselves are connected at the far end to the public switched telecommunication networks, and another set of conditions when the leased circuit connects to another private system. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 14:
[Printed earlier: col. 354.]
The noble and learned Lord said: My Lords, I have already spoken to this amendment when I explained our attitude to the amendment moved by the noble Lord, Lord Lloyd of Kilgerran. I beg to move.
On Question, amendment agreed to.
Clause 6 [Exceptions to section 5]:
4.11 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 15:
Page 8, line 27, at end insert—
("(4A") In the case of businesses and systems described in subsection (3) above, section 5(1) above is not contravened when the systems described are interconnected for the purpose of transmitting between the systems messages relating to the affairs of the businesses.").
The noble Lord said: My Lords, in moving Amendment No. 15, it might be for the convenience of the House if, at the same time, I speak to Amendment No. 16.
Amendment No. 16: Page 9, line 14, after ("specified") insert—
("including systems described in sections 6(3) and 6(4A) above and public telecommunication systems").
Both these amendments are concerned with encouraging greater efficiency for business users. It is important to emphasise that business users are concerned only with making their own businesses more effective. They are not in the least concerned with trying to make profits by selling telephone calls or circuits to third parties.
Business accepts that British Telecom will require time to adjust itself to the new regime, and business also accepts that Mercury will require time to become

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firmly established. Through these amendments business seeks the assurance that it can be neither delayed nor otherwise hindered from improving its own communications while public systems sort themselves out. The two amendments, in fact, deal with slightly different points, and briefly I should like to describe each of them to your Lordships.
The first amendment, No. 15, is designed basically to enable business to communicate more efficiently with those businesses with which it has close and mutual interests by linking their systems together. If they do not have significant interests in common, businesses will certainly not go to the bother and expense of linking their systems together. The amendment is designed to allow related businesses, such as a retail chain and its suppliers or a motor manufacturer and its dealers, to operate more efficiently by routing messages rapidly from any point on one system to any point in another system. This operation does not involve the public switched telecommunications systems, and allows the individ-ual business to optimise the systems they own and rent. By improving business efficiency, these interconnections will:
"promote the interests of consumers, purchasers and other users in the United Kingdom"
as required of the Secretary of State under Clause 3(2)(a).
I need hardly add at this stage that in this informa-tion age more efficient communication is a vital ingredient of more efficient operation, which, in turn, is good not just for the United Kingdom customers of the business, but also good for its export performance.
I now turn to Amendment No. 16. This amendment is designed to ensure that businesses can optimise the systems that they have purchased and rented by transmitting messages both between interconnected business systems and between any such business system and the public switched telecommunications systems. Such interconnections will allow messages entering business systems to be routed to the addressee, whether he is at his desk and on his system or out of his office, at home, or otherwise away from his system. They will also allow incoming callers to be connected and transferred by the business to the appropriate points on its own system. The basic principle of this amendment is the desire of business to communicate even more effectively by providing better communications into its business from the world outside, and by communicating quickly and directly with its staff, wherever they happen to be. These can both be achieved by connecting business systems to the public systems. I beg to move Amendment No. 15.
Lord Lloyd of Kilgerran: My Lords, may I intervene briefly to say that it seems to me that Amendment No. 15 is a very useful amendment for clarifying the position. I entirely agree with the noble Lord, Lord Mottistone, when he says that it would appear to assist in the more efficient operation of these systems. Therefore, I support this amendment.
Lord McIntosh of Haringey: My Lords, in most of what he said, the noble Lord, Lord Mottistone, appears to be referring to systems of electronic mail. I may have misunderstood him, and if so I shall gladly
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give way. But in so far as he is talking about systems which provide messages for individuals—
Lord Mottistone: My Lords, certainly that would be included; but it is not mainly for electronic mail.
Lord McIntosh of Haringey: My Lords, in that case, I shall withdraw the guarded welcome that I was about to give to the amendment. If it is to be concerned primarily with electronic mail, I do not think anyone could have any objection. After all, electronic mail systems operate primarily through data networks. It is not my understanding—and here I would be glad of the Government's confirmation—that they would be considered to be part of telecommunications systems.
However, the noble Lord made two other points which I think deserve comment. First, he is saying that businesses in general are not interested in making money from the switching of messages. I had thought that a large part of our consideration of this Bill had been because a large number of noble Lords were speaking on behalf of businesses which want to make a great deal of money out of add-on services to the British Telecommunications network. I thought that they had achieved a certain measure of success. Therefore, I am surprised that the noble Lord, Lord Mottistone, should be giving us that blanket assurance.
Secondly, the noble Lord said that it was necessary for this provision to be made while British Telecom and Mercury "sort themselves out". British Telecom does not need to sort itself out. British Telecom is providing an effective service for business which is only being delayed and hindered by the unnecessary intervention of Government into the provision of its services by way of this Bill. If it were not for this Bill, there would be no question of British Telecommunications sorting itself out. It is because of the privatisation and the liberalisation—and I use the two words separately—that there is any possibility of any problem between British Telecom and its business customers.
Lord Mackay of Clashfern: My Lords, as my noble friend has said, it might be convenient to deal with Amendments Nos. 15 and 16 together. The Government sympathise entirely with the general aims which I understand underlie these two amendments. As I understand them, both seek to ensure that the Bill makes proper provision to ensure that businesses can use leased circuits provided by British Telecom or Mercury to improve their internal business communications and to communicate with other firms with which they have close links. I can assure my noble friend that, although I have to resist the amendments, we do in fact support that aim. I should also like to thank my noble friend for the trouble he took earlier in explaining to me at some length exactly what his amendments are aiming at, and on that account perhaps I am able to give him a fuller answer than might otherwise have been the case.
As he has explained, Amendment No. 15 seeks to insert in Clause 6 a new provision about the interconnection of business systems. It provides that when one business system is connected to another the interconnected systems would be exempt from

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licensing. The amendment would, however, cover two completely different sets of circumstances. One of these causes no difficulty for the Government and it is already dealt with by Clause 6. But the other causes great difficulties and would have to be resisted. I think that these difficulties arise from the drafting of the amendment rather than from any difference of principle.
The first way in which the amendment can be read is to apply to different systems run by the same business. An example would be where a company had two different locations which each had a private switchboard and these switchboards were not connected to the public networks or to any other system. The firm concerned might then want to install its own circuit between the two locations, and might want to purchase the circuit itself, arrange all the installation work and then to control or run the link itself. The two switchboards in the different locations would then become a single system connected together by the privately-supplied private circuit.
This arrangement is already covered by Clause 6, just as it has been covered by Section 13 of the British Telecommunications Act. Any firm can provide its own connections between its own different offices or factories and does not need any licence to do so. It must, however, observe all the conditions set out in Clause 6(3) and (4) and in particular must not be connected to any system run by any other person including in particular systems run by British Telecom or Mercury. So long as the systems are entirely private and self-contained they are covered by Clause 6.
The second way Amendment No. 15 can be read is to apply to different systems run by different businesses. This would permit, for example, firm A to connect up to firms B, C and D, while firm B could connect up to firms E, F and G and firm G could connect up to firms H, J and K. Under the amendment all this would be done under an exemption from licensing. The result would be, or might be, to permit, without any licensing control whatsoever, the creation of an independent business telecommunications network providing widespread trunk by-pass facilities. This could seriously damage the economics of the public networks and could impair their ability to finance the present universal service. The Government could not contemplate this, and I believe that my noble friend did not intend to cover that situation. The mischief is in the use of the word "businesses" in the amendment. So much for Amendment No. 15.
Amendment No. 16 is partly consequential on 15, but, as I understand it, my noble friend is seeking reassurance that there are sufficient powers in the Bill to oblige British Telecom to provide circuits to connect different firms together. I can give him that reassurance. I think from the explanation that my noble friend has given that possibly he is concentrating on things as they are now, where British Telecom is in complete control of the matter and, because it owns its own systems, can decide what can and what cannot be connected to them.
May I ask my noble friend to look at the future, when, as I confidently expect, the Bill has become law and has done two important things? First, it will bring
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to an end British Telecom's role in licensing; all licensing functions and the decisions on who does what will pass to the Secretary of State (or to the Director General of Telecommunications). Secondly, the Bill creates an unambiguous power to ensure that, when the Secretary of State licenses someone to run a system and to connect it to British Telecom's systems, then British Telecom will be obliged to make the connection.
I shall explain how these powers will work. Clause 7(1) empowers the Secretary of State to license any person to run any telecommunication system specified or described in his licence. Clause 7(4) empowers the Secretary of State to say in each person's licence which other systems the licensee is authorised to connect to his own system. My noble friend will see that sub-paragraph (a)(i) of subsection (7) uses the words, "any other telecommunication system". I should explain that the word "system" applies not only to the public switched telephone network run by British Telecom which is a single giant system but also to the switched telex and packet switched networks. Moreover, each of the different forms of leased circuit run by British Telecom, including those known as external extensions, private circuits and inter PBX extensions, can be treated individually as a separate system in its own right. Put another way, there are no exceptions to what connections may be authorised by Clause 7(4), and the Secretary of State can license any form of connection of a private system to any leased circuit run by BT.
I turn now to the other side of the equation and British Telecom's obligations towards those who are licensed to connect to its systems. Clause 7(5) authorises the inclusion in licences of such conditions as the Secretary of State thinks requisite or expedient having regard to his Clause 3 duties. Clause 3(l)(a), for example, requires the Secretary of State to exercise his licensing functions in the way he thinks best so that, if someone demands a telecommunications service, like the conveyance of messages over a British Telecom leased circuit, and if the other requirements of Clause 3 are met, that service may be provided. This means that the Secretary of State can include in British Telecom's licence the condition now numbered as Condition 13 in the published draft licence, which obliges British Telecom to provide connections to any person who is licensed to connect to its systems. Clause 8(l)(b) makes this doubly sure by specifying that British Telecom cannot be designated as a public telecommunications operator unless its licence includes a condition like draft Condition 13.
But British Telecom cannot be left in a position where the Secretary of State can authorise any system, without any conditions, to connect to the public networks or to leased circuits. Technical standards must be imposed on those who run private systems connected to the British Telecom systems and there must be arrangements to ensure that private operators are not able to exploit the use of leased circuits so as to damage the revenues British Telecom needs to finance its universal service. The way we intend to secure both these very necessary objectives is to say in British Telecom's licence that it must connect its systems—leased circuits and public switched circuits alike—to systems run by other persons under licences

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authorising the connection of their systems to the British Telecom system.
We shall then include in the licences for private operators conditions, for example, about technical standards and provisions specifying the telecommunication services (including those involving third party use of leased circuits) which the private operator may provide. If we are to do this, we cannot go down the route suggested by the amendment. If we are to oblige British Telecom to provide connections between private systems on the one hand and leased circuits or the public switched networks on the other, it is essential that the private systems are subject to licensing controls for the two reasons that I have specified.
I hope that what I have said—and I have gone into fairly full detail on this matter—reassures those who have expressed an interest in the matter, and perhaps also enables me to take some comfort from the support of the noble Lord, Lord McIntosh of Haringey, in respect of these amendments.
Lord Mottistone: My Lords, I am indeed grateful to my noble and learned friend not only for his clear explanation but for the time and trouble he spent before we got to this stage of the Bill to make sure that we understood these points. What comes out of the amendment is that it is going to be important, in order to get this efficiency which underlies both these amendments, that the licences that are given to the non-public networks are given swiftly and not delayed one bit once this Bill becomes law. I hope that both the director, when he is set up, and the Secretary of State perhaps even before then, will give great attention to the swift granting of licences when they are applied for. At this stage, I beg leave to withdraw Amendment No. 15.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved]
Clause 8 [Special provisions applicable to certain licences]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 17:
[Printed earlier: col. 350.]
The noble Lord said: My Lords, this was spoken to with Amendment No. 3. I beg to move.
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 18 and 19:
[Printed earlier: col. 350.]
The noble Lord said: My Lords, Amendments Nos. 18 and 19 were also spoken to with Amendment No. 3. I beg to move the amendments en bloc.
On Question, amendments agreed to.
Clause 10 [The telecommunications code]:
4.29 p.m.
Lord Glenarthur Lord Glenarthur moved Amendment No. 20:
Page 13, line 19, at end insert—
(" ( ) A licence under section 7 above which applies the telecommunications code to any person in relation to any part or
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locality of the United Kingdom shall include a condition requiring that person to cause copies of—

(a) the exceptions and conditions subject to which the telecommunications code has effect as so applied; and

(b) every direction given in a manner specified in any such condition by a person so specified or of a description so specified,

to be open for inspection by members of the public free of charge at such premises in that part or locality as are specified in the licence or are of a description so specified.")
The noble Lord said: My Lords, at the Report stage the Government gave various assurances about amendments that they would be willing to bring forward in response to what were then Amendments Nos. 80B, 80C, and 129A, and it might be for the convenience of your Lordships if I speak together to the amendments we now propose to Clause 10 of the Bill and to paragraph 24 of Schedule 2; that is to say, Amendments Nos. 71 and 72.
Amendment No. 71: Page 131, line 22, at beginning insert—
(" (1) Any notice required to be given by the operator to any person for the purposes of any provision of this code must be in a form approved by the Director as adequate for indicating to that person the effect of the notice and of so much of this code as is relevant to the notice and to the steps that may be taken by that person under this code in respect of that notice.")
Amendment No. 72: Page 132, line 4, at end insert—
(" ( ) In any proceedings under this code a certificate purporting to be signed by the Director and stating that a particular form of notice has been approved by him as mentioned in sub-paragraph (1) above shall be conclusive evidence of the matter certified.")
In commenting on Amendment No. 80C at Report stage my noble and learned friend the Lord Advocate said that we thought that the kind of arrangements it envisaged were, on the whole, eminently sensible. In essence those arrangements were that details of licences and related documents applying the telecommunications code to an operator should be available for inspection by members of the public free of charge at places convenient for individuals who may be affected.
This is what the amendment to Clause 10 is intended to achieve. It places a duty on the Secretary of State to include in any licence which applies the telecommunications code a condition requiring the licensee to make available a copy of the exceptions and conditions subject to which the code has been applied and a copy of any direction given under such a licence condition for inspection by the public free of charge. What this means in practice is that operators who have the privilege of installing their apparatus under the telecommunications code powers will have to take steps to ensure that the provisions of the part of the licence which are relevant to the application of the code and any relevant directions including for example a direction to follow a code of practice, are easily accessible to those who may be affected. In BT's case this will be achieved by including a provision in part 5 of its licence equivalent to the existing Condition 16(3)(b) which requires its standard charges et cetera to be published and made available in a publicly accessible part of every one of its major offices.
As far as other operators are concerned the precise requirements will be the subject of consultation under Clause 10 along with all the other code related licence conditions and exception. But the intention is clear from the drafting, namely, that the relevant

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documents will be easily accessible in such premises as are specified in the licence.
May I turn now to the amendments to paragraph 24 of the code which deal with a closely related subject? Paragraph 24 sets out the procedures to be followed when, under one of the provisions of the code, an operator serves a notice, for example a notice under paragraph 5 of the code requiring the agreement of a landowner to the installation of apparatus on private land. The principal objective of the amendment to Clause 10 to which I have just spoken is to ensure that people face no difficulty in establishing whether or not an operator is complying with the terms of his licence or any code of practice to which the licence refers. Expressed another way, our aim is to ensure that people know what are the limits of the code powers conferred by the licence.
The amendments to paragraph 24, of which the first is the substantive one, serve a similar purpose. We have drawn heavily on the earlier amendment 129AA which was put down by the noble Lords opposite at Report stage. The amendment would require the operator to seek the director's approval of the form of notices issued by operators under the relevant provisions of Schedule 2. And the amendment gives the director clear guidance as to what his task is. It is to ensure that the people who receive notices from telecommunications operators are informed of their rights under the code so that they can take whatever steps are necessary (for example by issuing a counter-notice objecting to an operator's proposals) to protect their position. This amendment would also, I think, meet the anxieties of the noble Lord, Lord Stoddart of Swindon, who gave the example of an elderly person who received a notice abut tree lopping. In response, my noble friend Lord Lyell said that we would envisage dealing with the matter via licence conditions. On reflection, we think that this amendment will achieve precisely the effect we intend without the need for individual conditions in each licence. I beg to move.
On Question, amendment agreed to.
Clause 11 [Provisions supplementary to section 10]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 21:
Page 16, line 10, at end insert—
("`(d) provide for the purposes of any provision contained in the scheme by virtue of paragraph (a), (b) or (c) above for such questions arising under the scheme as are specified in the scheme, or are of a description so specified, to be referred to, and determined by, the Director.").
The noble Lord said: My Lords, this is an amendment to clarify the effect of Clause 11 (4) of the Bill. Clause 11(4) gives the Secretary of State a power to make a scheme giving effect to transitional provisions in circumstances where the telecommunications code ceases to apply to an operator because his licence expires or is revoked. The Secretary of State can only make a scheme by means of an order which is subject to the negative resolution procedure. Within that framework of parliamentary control the Secretary of State is given a power by subsection (4) to make whatever transitional provision he thinks necessary.
Subsection (5) of Clause 11 then goes on to specify some of the things that he may need to provide for in such a scheme, for example requirements on the former code operator to remove particular pieces of apparatus and authorisations for certain apparatus to remain lawfully installed pending its being taken over by a future licensee. However, we have concluded that the clause is insufficiently clear about how these objectives are to be achieved. As it is currently drafted the Secretary of State appears to have two choices. Either he could frame a very general scheme which would require detailed matters to be referred back to him for decision (for example, whether the telegraph poles in a particular street were to be removed) or he could attempt to draw up a very detailed scheme covering all the issues which might conceivably arise during the transition.
In practice he might very well want to involve the director in detailed decisions and make provision in the scheme for the director's involvement. The purpose of the amendment to subsection (5), is therefore, to make clear that he can do this. The drafting follows the precedent set by Clause 109(5) and there are no substantive policy implications. I hope that on that basis your Lordships will accept that this is a modest improvement in the Bill. I beg to move.
On Question, amendment agreed to.
Clause 12 [Modification of licence conditions by agreement]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 22:
Page 17, line 14, after ("sections") insert ("8 above and").
The noble Lord said: My Lords, this is a small but very significant amendment. It is to include Clause 8 into the list of clauses which cannot be modified once they have had included in the licences the special provisions referred to in Clause 8. Clause 8 is an extremely important clause because the Government have set out time and again that there need be no anxiety about the problems of rural areas on the question of service, charges and things like that. The special provisions which Clause 8 will put into the licences will meet that point. I. and members of the official Opposition, have many times put forward the problems dealing with rural areas. They are so important that I do not apologise for taking up your Lordships' time in this matter.
I want now to read to your Lordships the answer given to me by the noble Lord the Chancellor of the Duchy of Lancaster on 19th of March at col. 1065 of the Official Report. In reply to my amendment suggesting there should be some safeguards about the position in rural areas, he started off:
"I think that most of your Lordships will feel as I do, that we have been here not once but many times before".
That was a mild and charming reproval for my previous persistence. Then he went on to say:
"Your Lordships at the Committee stage passed an amendment specifically designed to achieve the objectives set out in the noble Lord's latest amendment".
In response to that I moved two amendments at the beginning of Report stage. Those amendments were

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accepted on a Division, and they referred mainly to Clause 8. He went on to say, at the end:
"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 feel that we have done it in a rather more effective way than the noble Lord has succeeded in doing it".
At some stage the point was taken by the noble Lord, Lord Spens, and the noble Lord, Lord Bruce of Donington. I have not got the reference, but I see that the noble Lord, Lords Spens, is nodding his head in agreement with my general observation that he did raise some point.
Clause 12 deals with modifications of the licence conditions by agreement. Subsection (7) says:
"References in this section and in sections 13 to 15 below to modifications of the conditions of a licence do not include references to modifications of conditions relating to the application of the telecommunications code".
As I read that subsection it means, as it stands before my amendment is introduced, that, talking loosely, one cannot interfere with the conditions in Clauses 13 and 15.I am submitting that there should be inserted in that subsection a reference to Clause 8, saying, therefore, that Clause 8 and Clauses 13 and 15 are the clauses selected in relation to which no conditions to the licence should be modified.
The Government have been most helpful in this matter and most reassuring to people in rural areas. They have told us explicitly, "Do not worry about the conditions arising in rural areas now"—the difficulties on charges in rural areas that we on this side of the House have emphasised so frequently. "Do not worry about that; we have Clause 8. We have done it for you; we have brought in Clause 8 to deal with these problems far better than you on that side of the House have by means of your own amendments". Therefore, I want to enshrine Clause 8 among the clauses as to which, once conditions have been inserted under them, they should not be modified.
To deal with the points raised by the noble Lords, Lord Spens and Lord Bruce of Donington, some argument was raised on this point by the noble Lord, Lord Cockfield. I have read it with great care, and I do not think that that answer is appropriate in this case. Therefore, I beg to move that Clause 8 be enshrined in Clause 12(7) to safeguard the position of the rural areas.
Lord McIntosh of Haringey: My Lords, I have no intention of wearying the House by repeating the arguments made on this at Report stage, particularly as the arguments have been made so effectively and freshly by the noble Lord, Lord Lloyd of Kilgerran, in his admirable and quite ingenious amendment. It seems that this Bill has various layers of protection moving down from the first part of Clause 3 to the second part of Clause 3, a long way down to Clause 8 and way beyond that to unprotected licence conditions. The amendment moved by the noble Lord would give effect to the assurances given by the Government when they rejected the amendment which we moved at Committee stage. It would seem logical and rational for them to accept the amendment which is now proposed.
Lord Spens: My Lords, I should like to support what has been said by the noble Lord, Lord Lloyd of Kilgerran, because I agreed with and supported him previously. I hope that Clause 8 will now be brought in with Clauses 13 and 15 to become a clause which cannot be altered in the licence.
Lord Mackay of Clashfern: My Lords, my first difficulty is to relate the excellent speech which the noble Lord, Lord Lloyd of Kilgerran, made to the amendment which he has moved. If your Lordships will look with me at Clause 12(7) and the place into which he proposes to insert his amendment, as I understand it—there may be something wrong with my understanding, and I should be glad to be corrected—Clause 12(7) at present says:
"References in this section and in sections 13 and 15 below to modifications …do not include".
Before that makes sense we require to find in the sections listed a reference to "modifications". I do not think there is any reference to modifications in Section 8, and therefore the proposed amendment appears to be utterly devoid of effect.
That seems to dispose of the amendment fairly effectively. However, the noble Lord has asked a more general query which I should like to deal with, because I believe it is covered. He wants to be assured that under Clause 12 the director general could not modify out conditions which are imposed on the basis of Clause 8 from a public telecommunications systems operator's licence. In my view, on the terms of the Bill as drafted that would not be possible for this reason. Clause 9(1) permits designation as a public telecommunications system:
"any telecommunication system the running of which is authorised by a licence to which section 8 above applies".
In other words, there cannot be a public telecommunications system unless it is authorised by a licence to which Clause 8 applies. It goes on in the tailpiece (and I think this helps us further) to say:
"any reference in this Act to a public telecommunication system is a reference to a telecommunication system which is so designated"—
that is, under Clause 9—
"and the running of which is so authorised"—
that is, under Clause 8.
Clause 8 describes the licence by reference to "conditions", and if the conditions which are specified in Clause 8 are not to be found in the licence at any time then it is not a licence to which Clause 8 applies, because the necessary conditions are not in the licence—that is, the necessary conditions in order that Clause 8 should apply to it. The consequence is that if the licence were to be modified by way of removing any of the Clause 8 conditions it would immediately preclude that system from being described from then onwards as "a public telecommunication system". It is the public telecommunication system that is at the root of this matter.
In the light of that argument, which I hope is plain to the noble Lord and to others who have raised this, the result which the noble Lord seeks to achieve by his amendment is achieved in the Bill as it stands, whereas, as I have pointed out, his amendment, with the greatest possible respect, does not really go in that

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direction at all. I hope that in the light of this explanation the noble Lord may feel able to withdraw his amendment.
Lord Lloyd of Kilgerran: My Lords, I am grateful to the noble and learned Lord for his courtesy in explaining that to your Lordships in the way he has. In fairness to myself, I must put another point to him, though I do not preface my points by saying anything rhetorical or anything about the noble and learned Lord's argument, as he did in relation to mine. I look at it in this way. Clause 12(1) says:
"Subject to the following provisions of this section, the Director may modify the conditions of a licence granted under section 7 above".
The licence is granted under Clause 7, and special conditions are put into that licence under Clause 8. The conditions with which I am concerned are conditions which will be helpful and which will relieve the anxieties of users in rural areas.
Clause 12(1) says that the director can modify the conditions of a licence granted under Clause 7, and therefore Clause 8 above. Clause 12(7) goes on to say:
"References in this section and in sections 13 to 15"
should not, in effect, be modified. All that I am saying on this kind of argument is that Clause 8 should be included to ensure that there is no argument to say that the conditions in Clause 8 can be altered.
The other answer of the noble and learned Lord to me is, "Don't worry. Read Section 9(1). Read the definitions of 'telecommunications systems' or what-you-will in other parts of the Bill. Therefore, it is clear that the special conditions included in the licence under Section 8 cannot be modified". Therefore, if the licences have these conditions to help the people in rural areas, he says that the Bill itself says that they cannot be modified.
It seems to me that if that is the position—and I am not arguing with the noble and learned Lord so far as that position is concerned—and the conditions of Section 8 cannot be amended under any circumstances, then I should have thought that the noble and learned Lord would have accepted an amendment which enshrines Section 8 in the way that I have suggested. It should be made clear that once the special conditions in Section 8 have been introduced they cannot be altered and they should not be amended. Unless the noble and learned Lord wishes to make any further correction to my submission—I give way to the noble and learned Lord.
Lord Mackay of Clashfern: My Lords, before the noble Lord sits down, in order that I may understand the sense of his proposed amendment, can he refer me to the reference in Clause 8 to a modification?—for that is the only way his amendment would make sense as I would understand it.
Lord Lloyd of Kilgerran: My Lords, you have a clause with terms in it. Clause 12(1) says:
"Subject to the following provisions of this section, the Director may modify the conditions of a licence granted under section 7 above".
It is quite simple. Therefore, Clause 8 does not have to have the word, "modifications" or the words, "alleged
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modifications" in it. There is no need for the word "modification" to be included in the way that the noble and learned Lord has submitted. I know that the noble and learned Lord disagrees with me, but this is a very fine point. There are other provisions of the Bill that I could call in aid, but I do not propose to do so at this stage.
4.52 p.m.
On Question, Whether the said Amendment (No. 22) shall be agreed to?
Their Lordships divided: Contents, 87; Not-Contents, 111

DIVISION NO.1

CONTENTS

Airedale, L.

Jacques, L.

Allen of Fallowfield, L.

Jeger, B.

Amherst, E.

Jenkins of Putney, L.

Ardwick, L.

John-Mackie, L.

Attlee, E.

Kagan, L.

Aylestone, L.

Kaldor, L.

Banks, L.

Kearton, L.

Beswick, L.

Kilmarnock, L.

Birk, B.

Lawrence, L.

Bishopston, L.

Leatherland, L.

Blease, L.

Listowel, E.

Bottomley, L.

Llewelyn-Davies of Hastoe, B.

Bowden, L.

Lloyd of Kilgerran, L.

Briginshaw, L.

[Teller.]

Brockway, L.

Lockwood, B.

Bruce of Donington, L.

Longford, E.

Caradon, L.

Lovell-Davis, L.

Carmichael of Kelvingrove, L.

McIntosh of Haringey, L.

Cledwyn of Penrhos, L.

Mais, L.

Collison, L.

Milford, L.

Cooper of Stockton Heath, L.

Molloy, L.

David, B.

Monson, L.

Dean of Beswick, L.

Mulley, L.

Delacourt-Smith of Alteryn,

Oram, L.

B.

Phillips, B.

Denington, B.

Pitt of Hampstead, L.

Elwyn-Jones, L.

Prys-Davies, L.

Elystan-Morgan, L.

Rathcreedan, L.

Ennals, L.

Rochester, L.

Ewart-Biggs B

Ross of Marnock, L.

Fisher of Rednal, B.

Seear, B.

Fitt, L.

Serota, B.

Gaitskell, B.

Shaughnessy, L.

Gallacher, L.

Spens, L.

Graham of Edmonton, L.

Stallard, L.

[Teller.]

Stamp, L.

Grimond, L.

Stedman, B.

Hale, L.

Stoddart of Swindon, L.

Hampton, L.

Stone, L.

Hanworth, V.

Strabolgi, L.

Harris of Greenwich, L.

Underhill, L.

Houghton of Sowerby, L.

Wallace of Coslany, L.

Hughes L.

Wedderburn of Charlton, L.

Ilchester, E.

White, B.

Jacobson, L.

Wootton of Abinger, B.

NOT-CONTENTS

Ailesbury, M.

Carnegy of Lour, B.

Airey of Abingdon, B.

Cathcart, E.

Alexander of Tunis, E.

Chelwood, L.

Annan, L.

Clitheroe, L.

Avon, E.

Cockfield, L.

Bauer, L.

Cox, B.

Belhaven and Stenton, L.

Cromartie, E.

Bellwin, L.

Cullen of Ashbourne, L.

Beloff, L.

Daventry, V.

Belstead, L.

De Freyne, L.

Caithness, E.

Denham, L. [Teller.]

Campbell of Alloway, L.

Digby, L.

369

Dormer, L.

Mowbray and Stourton, L.

Eccles, V.

Murton of Lindisfarne, L.

Ellenborough, L.

Newall, L.

Elliot of Harwood, B.

Nugent of Guildford, L.

Faithfull, B.

Onslow, L.

Fanshawe of Richmond, L.

Orkney, E.

Fortescue, E.

Orr-Ewing, L.

Fraser of Kilmorack, L.

Pender, L.

Gardner of Parkes, B.

Penrhyn, L.

Gisborough, L.

Peyton of Yeovil, L.

Glanusk, L.

Porritt, L.

Glasgow, E.

Portland, D.

Glenarthur, L.

Rawlinson of Ewell, L.

Gormanston, V.

Reigate, L.

Gray of Contin, L.

Renton, L.

Greenway, L.

St. Aldwyn, E.

Gridley, L.

St. Davids, V.

Hailsham of Saint

Sandford, L.

Marylebone, L.

Savile, L.

Hawke, L.

Selkirk, E.

Henley, L.

Sempill, Ly.

Hives, L.

Somers, L.

Home of the Hirsel, L.

Stathcarron, L.

Hood, V.

Strathcona and Mount Royal,

Hylton-Foster, B.

L.

Kitchener, E.

Strathspey, L.

Lane-Fox, B.

Sudeley, L.

Long, V.

Suffield, L.

Lucas of Chilworth, L.

Swansea, L.

Luke, L.

Swinton, E.[Teller.]

Lyell, L.

Teviot, L.

Mackay of Clashfern, L.

Teynham, L.

Macleod of Borve, B.

Thomas of Swynnerton, L.

Mancroft, L.

Thorneycroft, L.

Margadale, L.

Torphichen, L.

Marley, L.

Trefgarne, L.

Maude of Stratford-upon-

Trenchard, V.

Avon, L.

Trumpington, B.

Merrivale, L.

Vaux of Harrowden, L.

Mersey, V.

Vickers, B.

Milverton, L.

Ward of Witley, V.

Molson, L.

Westbury, L.

Montgomery of Alamein, V.

Whitelaw, V.

Morris, L.

Wise, L.

Mottistone, L.

Young, B.

On Question, amendment agreed to.

Clause 16 [Securing compliance with licence conditions]:
5 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 23:
Page 21, line 38, leave out ("is likely") and insert ("has contravened and is likely again").
The noble and learned Lord said: My Lords, with the leave of the House, I should like to move Amendments Nos. 23, 24, 25, 26, 27, 28 and 29 en bloc.
Amendment No. 24: Page 21, line 41, leave out from ("securing") to ("that") in line 42 and insert ("compliance with").
Amendment No. 25: Page 22, line 3, leave out ("is likely") and insert ("has contravened and is likely again").
Amendment No. 26: Page 22, line 5, leave out from ("securing") to end of line 6 and insert ("compliance with").
Amendment No. 27: Page 22, line 12, leave out from ("if') to end of line 13 and insert—
(" (a) he is satisfied that the telecommunications operator is contravening, or has contravened and is likely again to contravene, any of the conditions of his licence; and
(b) the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition.").
Amendment No. 28: Page 22, line 31, leave out ("and").
Amendment No. 29: Page 23, leave out lines 3 to 5.
These amendments give effect to an undertaking I gave at the Report stage that we would reconsider the amendments which we then introduced to deal with the problem of intermittent breach of licence conditions.
The Bill, as introduced, empowered the director general to make an enforcement order only when an operator,
"is not complying with any of the conditions of his licence".
As explained at Report, this gave rise to problems where an operator committed an intermittent breach of his licence conditions, since an enforcement order could not be made when the operator had put matters right for the time being but was likely to commit a similar breach of his licence conditions in the future. This would expose those who depend on tele-communications to unnecessary uncertainty; they would need to be damaged again by a second breach of the relevant licence condition before they could obtain redress.
On Report we replaced the original formula,
"is not complying with any conditions of his licence"
by the words
"is contravening or is likely to contravene any of the conditions of his licence".
These new words are at line 38 on page 21 of the current print of the Bill but there is a printing error: the word "is" is omitted before "contravening".
It has been pointed out to us that some regard the words "is likely to" as going too far the other way. I think the noble Lord, Lord McIntosh, and others suggested that to us when we put the amendment forward. There could be circumstances where the operator had not breached his licence conditions and had no intention of doing so, but the director thought it a good idea to make an order. This would have enabled the director to interfere unduly in the day-to-day management of an operator's system. That was the concern. We did not intend this; interference in commercial affairs should certainly be limited to circumstances where there is a need for it.
We therefore propose by these amendments that an enforcement order should be made either where an operator is contravening any of the conditions of his licence or has contravened such a condition and is likely again to contravene any of these conditions. This is an amalgam of what we originally proposed with what was then Amendment 116 on the Marshalled List at Report stage and which was removed in the light of our amendment. In our view, this will deal adequately with the problem of intermit-tent breaches of licence conditions by limiting the circumstances where the director can intervene to those where there has been an actual breach of the licence conditions.
This change has another desirable result. It makes it possible to revert to the drafting of the rest of Clause 16 which was originally introduced and which said that an order could make such provision as is requisite for the purpose of securing compliance with a condition that had been breached. The formula we introduced at Report, securing that the operator does not so contravene or continue so to contravene that condition, is suitable only for circumstances where

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there had not been a breach and one was thought likely to occur.
Amendments Nos. 23 and 25 remove the words "is likely" and replace them by the words "has contravened and is likely again" to contravene. Amendments Nos. 24 and 26 delete the cumbersome formula to which I have just referred. Amendments Nos. 27 and 29 simplify subsection (4) by removing the complication of a relevant purpose which is currently defined in subsection (7) by referring to subsections (1) and (2). Amendment No. 28 merely deletes an unnecessary "and". I hope that this explanation gives your Lordships a clear impression of what we intend and that these amendments will be found acceptable. I beg to move.
The Deputy Speaker (Earl Cathcart): Amendments Nos. 23 to 29 have been moved en bloc. I will, however, deal with Amendment No. 23 in the usual way and then call Amendments Nos. 24 to 29.
Lord McIntosh of Haringey: My Lords, we are grateful to the noble and learned Lord not only for the amendments but for the very clear way in which he moved them. I cannot avoid noting that on 22nd March the noble and learned Lord wrote to the Society of Telecom Executives, using the words with which he now proposes to amend the Bill, and in that sense I suspect he was rather jumping the gun on the position as it stood at that time. But these are improvements. They overcome some of the difficulties that we foresaw with some of the Government amendments when they were moved earlier; and we indicated that we did not think the Government were making these difficulties intentionally. We are glad to have it confirmed that this is indeed the case.
Lord Mackay of Clashfern: My Lords, I beg to move Amendments Nos. 24 to 29 en bloc.
[Printed earlier: col. 369.]
Clause 18 [Validity and effect of orders]:
Lord Morris Lord Morris moved Amendment No. 30:
Page 25, line 2, leave out from ("actionable") to the end of line 4 and insert ("at the suit or instance of any person aggrieved by that contravention to the extent that the contravention continued after he had served a notice of complaint in respect of it upon the Director and the telecommunications operator in accordance with subsection (6A) below and he has suffered loss or damage thereby.").
The noble Lord said: My Lords, I believe it would be for the convenience of the House if I were to speak to Amendments Nos. 31 and 32 with this amendment. Amendment No. 31: Page 25, line 4, at end insert—
(" (6A) A notice of complaint under subsection (6) above shall take such form and contain such information and be served in such manner as the Director may from time to time specify for the purposes of that subsection.").
Amendment No. 32: Page 25, line 5, leave out subsection (7) and insert—
(" (7A) If, in any proceedings brought against any person in pursuance of subsection (6) above, it appears to the court that, having regard to all the circumstances of the case, he ought reasonably to be excused, the court may relieve him, either wholly or partly, from his liability on such terms as the court may think fit.").
In moving an amendment to this same clause at an earlier stage—that is the amendment which now comprises Clauses 86 and 87—my concern was that the principle of the right to sue for damages suffered as a direct result of a breach of a licence condition should be enshrined in this Bill. I am most grateful to those of your Lordships who supported that principle. I was not a little sad that I had to divide the House at that time in order to attempt to persuade Her Majesty's Government on this issue. I had hoped that my noble friends would accept the principle and would have agreed to table their own amendment at this stage of the Bill. They did not; and, as a result, I felt it would have been irresponsible for me not to put the amendment to the House.
When moving that amendment, I had satisfied myself that all possible care had been taken to ensure that the amendment was neither defective in its drafting nor would have any undesirable consequences. Your Lordships can imagine my surprise when my noble friend Lord Peyton of Yeovil, whose support I highly value and who made a witty and trenchant speech on that particular occasion, had the temerity to suggest that the amendment might be faulty in its drafting. Not for the first time, my noble friend was absolutely right, and hence these amendments.
I listened with great care also to the reply made by my noble and learned friend the Lord Advocate, and to other noble Lords who spoke at that time. I was convinced then, and I remain convinced, that the principle of a right of action in relation to damage arising out of a breach of a licence condition rather than a breach of an order must stand. However, I am most grateful to my noble and learned friend Lord Mackay of Clashfern and to the noble Lord, Lord Elystan-Morgan, who made the very important point at Report stage that they felt it was possible that the amendment which is now Clause 18(6) might have a retrospective effect.
I myself cannot see how Clause 18(6) can give rise to retrospective action, because liability only arises from the point at which a licensee breaches a licence condition and causes damage to another. It was to ensure that licensees had a good commercial incentive to take care to adhere to their licences that Clause 18(6) is now in the Bill. That was one reason.
Nevertheless, I now see one difficulty that might arise. It stems from the contention of my noble and learned friend the Lord Advocate that it may not be possible in all cases to frame the licence conditions in very precise terms. There may inevitably be some uncertainty as to how exactly they might be interpreted. Circumstances may arise in which a telecommunications licensee is pursuing a policy that he believes is wholly consistent with the conditions of his licence, and he may even have consulted the director, who at the time may have concurred with the licensee's judgment. But it may subsequently emerge that the case is established that the action is not consistent with the intention of the licence conditions, and the director may then be bound to issue an order.
The licensee would be liable for damages from when he first unwittingly breached his licence conditions, not only to somebody who complained to the director but to all and sundry who, until that point in time,

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were unaware that they were being damaged, and who may then wish to jump on the bandwagon. In these circumstances, I now believe that an element of retrospection would exist.
The clause attempts to deal with the problem by placing in the hands of the director the power to deny access to the courts in these and similar circumstances. However, I am now advised that the law with respect to ministerial discretion has changed in recent years, inter alia as a result of the principle of judicial review as applied to administrative law. It is doubtful whether this point would have any practical effect. I am therefore persuaded to put forward this alternative draft for the director's fiat. The amendment does not alter or weaken the principle of Clause 18(6), but it does prevent the potential incidental consequences of the original drafting.
Moreover, on further consideration I felt that there should be a trigger from which damage as a result of a breach of a licence condition should arise. The trigger would be that point in time at which a person who has evidence that he has suffered damage as a result of a contravention of a licence condition makes a complaint to the director. At the same time the licensee will be informed of the complaint, and he can take what steps he deems necessary to protect himself from the potential liability. Damages will only be owed to the person making the complaint. This would not preclude any other persons from lodging a complaint subsequently and thus entitling him to a suit if he can prove damage.
I should also point out to your Lordships that I had originally based the defence offered to the licensee on the words used by Her Majesty's Government as a defence to a breach of an order. Upon further consideration, I feel that that defence is too severe on the licensee in the circumstances of a breach of a licence condition open to interpretation, as I have outlined, as opposed to a breach of a precisely defined order. I therefore suggest to your Lordships that it will be preferable to replace this defence with the amendment in the Marshalled List, which follows very closely the wording in Section 48 of the Companies Act 1948 and Section 6(1) of the Trustee Investments Act 1961. The defence places greater discretion on the courts, and I believe your Lordships will agree that that is desirable in the circumstances.
These amendments are wholly consistent with the spirit of the issue fully debated and decided upon at Report stage, and I respectfully commend them to your Lordships as an improvement to the Bill as currently drafted. I hope that they will find favour with my noble friends on the Government Front Bench as well as with noble Lords opposite. I am confident that if your Lordships accept these amendments the Bill as amended will find even more favour in another place. I beg to move.
5.16 p.m.
Lord McIntosh of Haringey: My Lords, the noble Lord persuaded the House at Report stage that it was desirable that there should be this possibility of civil action. But I have to say that he did so on the basis of the wording of his amendment. That provided for very strict restraints on the litigation that might otherwise be possible. The first of those restraints was that the
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consent of the director should be required before any action was taken. The second was that in subsection (7) it was a defence for the licensee to prove that he took such reasonable steps and exercised all due diligence as to avoid contravening the conditions.
The noble Lord is claiming that the amendments which he is now moving are merely drafting amendments. I suggest that they are no such thing. In removing the two constraints which were absolutely essential, in my view, to obtaining the consent of the House to the noble Lord's previous amendment, he has created a litigants' charter. It would be possible for anybody, without doing any more than notifying the Office of Telecommunications and the licensee concerned, to take civil action for breaches which have already taken place—albeit that they took place after an order under subsection (16) had been issued. The noble Lord is greatly extending the possible use of the civil courts from matters primarily concerned with trade disputes into the area of employment legislation.
I suggest to the House that that would represent a thoroughly undesirable and unprecedented in-novation. I hope that the Government will resist it.
Lord Torphichen: My Lords, I cannot see that this will apply mainly or only to trade disputes; there are many other reasons why litigation might be needed.
Lord Mackay of Clashfern: My Lords, as I understand the original Amendment No. 78, which is now incorporated in the Bill, and these amendments, then my noble friend Lord Torphichen is right when he says that they would cover quite a large variety of matters. The three amendments to which my noble friend Lord Morris has spoken seek to alter the effect of Amendment No. 78, which he successfully moved at Report stage. The deletion of the requirement to have the prior consent of the director general would open up a fairly free field for litigation. This is particu-larly the case where, because of the nature of things, the licence conditions will be imprecise.
To take an example, British Telecommunications has some 19 million subscribers. It is impossible to devise a licence in reasonable terms which looks after all of them in their individual circumstances in a precise way. All that can be done is to lay down the broad rules; and the types of conditions which are specified in subsection (8) illustrate that. In such a situation, the result of creating such a free field of litigation would, in our view, be to create complete uncertainty—uncertainty that would be inimical to investment and consequent commercial activity.
The second point, which I made earlier, was that the original amendment introduced the idea of damages from the time before the order, and this involved retrospection. The amendments proposed today introduce the idea of damages flowing from the time when a notice is served on the director and the operator. This may avoid damages being paid retrospectively over a long period of years, but it still involves retrospection. I can illustrate this in a practical way. An operator could have a licence condition which was imprecise; for example, an obligation not to show undue preference and not to exercise undue discrimination. He could discuss with the director how this applied to particular

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circumstances. After careful thought the director could decide that a particular practice did involve some discrimination but that this was not in the particular circumstances undue and that he would review the matter, perhaps in a year's time, in the light of the circumstances as they developed.
An individual could then serve a notice, say a week later, to which the director would respond explaining what the position was but at the end of the year he might want to make an order requiring the operator to change the practice; perhaps substantially or only slightly. The notice would then come into operation and the individual who served it could obtain damages against an operator who had been acting in accordance with the understanding reached with the director. In my view, that would be a serious injustice. The retrospective element would still exist even if my noble friend's amendment is agreed; and this point of retrospection was the point made by the noble Lord, Lord Elystan-Morgan, if 1 properly understood it, on Report in the amendments which were proposed. The fact that a notice had been served might also complicate the director's decision on whether or not to make an enforcement order.
Clause 16(5) gives the director a discretion not to make an order if he is satisfied that the making of the order is precluded by his Clause 3 duties. These duties include securing that operators can finance the services they are obliged to provide and the director might realise that, once notices had been served, the making of an enforcement order would seriously harm the operator and prevent his continuing these services. In those circumstances the existence of a notice might act as a positive deterrent to enforcement action.
The notice giving procedure, as my noble friend envisages it in these amendments, would confer a right to damages only on the person who gave the notice. It would leave unprotected those who did not give notice but who might have suffered harm. This seems to create a differentiation which may not be particularly attractive. If this system proposed today by my noble friend was introduced it seems to me that an operator or a person who is dependent on telecommunications systems might be well advised to serve a notice as soon as possible in respect of every conceivable contravention by every operator on whom he depends in order to maximise the possibility of damages in the event of a dispute arising.
To summarise the position, I very much appreciate the effort that my noble friend Lord Morris has put into seeking to meet the difficulties which I raised on Report on his original amendment. What he has done would, I acknowledge, improve the situation in which the Bill would be left in some respects, such as limiting the possibilities of retrospection, while dropping the requirement for the director general's consent would throw up other difficulties. As I see the matter at present, the truth is that the fundamental problem lies in the original amendment and that the only answer is to allow damages to be claimed only from the date when the director general's order takes effect.
The views which noble Lords expressed on that in the Division on Amendment No. 78 obviously require very careful consideration because this is a very fundamental matter to the whole structure of the Bill
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and the arrangements for enforcement by means of the provisional order and the final order at the instance of the director general.
My noble friend's present amendment goes some way to meet some of the difficulties which I raised, but, as I said, unfortunately they do not appear to us to meet all the problems to which I drew attention. May I therefore suggest to my noble friend that it might be desirable for him to withdraw these amendments, and the whole matter will of course receive very thorough further consideration.
Lord Morris: My Lords. I am most grateful to my noble and learned friend Lord Mackay of Clashfern for his suggestion. I am happy to withdraw the amendment. I think that it is extremely important that the most serious consideration should be given to this point, and I am most grateful to my noble and learned friend.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 and 32 not moved.]
Lord Bruce of Donington Lord Bruce of Donington had given notice of his intention to move Amendment No. 33:
Page 25, line 9, at end insert—
("( ) In any proceedings against any person (which, for the avoidance of doubt, includes a trade union) in pursuance of subsection (6) above, it shall be a defence for that person to prove that he acted wholly or mainly in contemplation or furtherance of a trade dispute.").
The noble Lord said: My Lords, I am advised that this amendment is out of order. I have reviewed the circumstances very thoroughly and I dissent from that view. Nevertheless, in view of the advice that has been given, I think that it would be in the tradition of this House if I said that I do not propose to move it.
[Amendment No. 33 not moved.]
5.27 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 34:
Page 25, line 12, after ("duty") insert ("which causes that person to sustain loss or damage").
The noble and learned Lord said: My Lords, I think it would be convenient for your Lordships if I speak to Amendments Nos. 34 and 35 together.
Amendment No. 35: Page 25, line 13, leave out from ("which") to ("and") in line 14 and insert (", by inducing a breach of that duty or interfering with its performance, causes that person to sustain loss or damage").
As your Lordships will appreciate, the first of these amendments, Amendment No. 34. merely paves the way for the second. It brings the drafting of paragraph (a) of Clause 18(8) into line with the paragraph (b), which is to be amended. I shall therefore concentrate on explaining the effect of the second amendment—the one to paragraph (b)—and our reasons for bringing it forward.
As I explained during the Committee stage and on Report the Government start from the basic proposi-tion that the users of telecommunication services are entitled to special protection for their security of supply. It was only on that basis that we were prepared to consider deleting the offence in Clause 45 of the Bill, as it came before this House, of interfering with a public telecommunications system. I make no apology

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for referring to that point again; it is essential to the perspective with which we approach this problem.
I have also already sought to explain the effect of the Bill as it stands; but, if I may, I should like to do so a little more fully in order to explain the effect of the amendment. The Bill as it stands seeks to make it an actionable wrong to interfere with the performance of an enforcement order or induce its breach. However, it does so not in all circumstances but only if that result is the defendant's purpose, or part of his purpose. I should stress that for something to be in law a person's purpose or part of his purpose it is not, in our view, enough that he merely intends it in the sense that he knows that that thing is the inevitable or likely result of what he is proposing to do; for a thing to be a person's purpose it must be the thing or one of the things which that person is setting out to do. So the effect of the Bill as it stands is that for a person to be liable he must, in ordinary language, deliberately set out to bring about a breach in an enforcement order or to interfere with its performance and that must be the result he has in view.
In the debate at Report stage a number of anxieties were raised as to whether this basis of liability was sufficiently narrow to provide a proper level of protection for trade unions and their members, and indeed for employees generally in the area of industrial disputes. In particular, the noble Lord, Lord Donaldson of Kingsbridge, and the noble Lord, Lord Tordoff, as well as noble Lords immediately opposite, suggested, as I recall, that in some circumstances it might be very difficult to separate out the purpose of disrupting the employer's business which, however much it may be regretted, is frequently a part of serious industrial action, from the ultimate purpose of achieving whatever industrial objective is in view—improved terms and conditions of employment, the avoidance of redundancies, or whatever might be the immediate matter of concern. The Government bring forward these amendments in order to meet those difficulties.
Before I go on to explain what I believe to be the effect of the amendments, I should say that this is a very delicate area. There is a balance to be preserved. Enormous harm can be done to particular members of the public, particularly in the business community, by interference with their telecommunication service. Any narrowing of the range of the liability imposed by this clause has to be scrutinised most carefully to ensure that we do not go too far. On the other hand, the Government recognise that within the appropriate limits the freedom of trade unions as representatives of employees, and indeed of employees themselves, to engage in industrial action against their employers ought not to be, within these proper limits, inhibited. So although we did not entirely share the anxieties expressed in the debate, we have attempted to meet them, while preserving what we regard as the essential balance in this highly delicate and difficult area, with this amendment.
The effect of the amendment is to change the basis of liability for the actionable wrong of inducing the breach or interfering with the performance of an enforcement order. The actionable wrong will exist not where the defendant merely has as his purpose or part of his purpose the bringing about of the breach or
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interference, but only where he has as his purpose or part of his purpose the causing of damage or loss to the person affected by the breach or interference. Paraphrasing the amendment in ordinary language, to establish that there is a liability under this provision, the plaintiff (and I emphasise that it is the plaintiff or the claimant who will have to prove this) will have to establish that the defendant deliberately set out to cause damage or loss to the plaintiff by inducing a breach of a licence enforcement order imposed by the director. There can be no question of liability arising merely because the defendant sought to bring about the breach, which may be a necessary part of his tactics in harassing his employer; he must also have sought to damage the other party—the plaintiff—by means of the breach.
I hope that this explanation will be enough to convince your Lordships that we have gone as far as we can to ensure that there is scope under the Bill for legitimate pursuit of industrial action. But it is not acceptable that in this highly sensitive field a trade union, or indeed employees generally, should be free deliberately to set out to bring about a breach of an enforcement order for the purpose of causing loss or damage to customers of telecommunication operators by depriving them of the service to which they are entitled and which has been guaranteed to them by an order of the director. An enforcement order will have been made by the director under all the controls and subject to all the constraints imposed by this Bill. It will in a very real sense be the law of the land.
Your Lordships will remember that these amendments and the basic clause with which we are now dealing on this aspect was introduced in substitution for criminal sanctions which have been in the law in roughly equivalent form for a very long time. We consider that we are making a very substan-tial advance by the change which we originally made. We are endeavouring to adjust the balance as finely as we can in this area, and this is the purpose of these amendments. I beg to move.
Lord Wedderburn of Charlton: My Lords, as the noble and learned Lord has explained so very carefully the nature of these amendments, it is perhaps not improper to relate them to the amendment which it was not proper for my noble friend to move. Very briefly, perhaps the noble and learned Lord can clarify two points further to his very profound clarification so far. First, it still is a little difficult for my noble friends and I to understand the distinction that he makes concerning the need for liability under this subsection. The case that he made, if I have not misunderstood it, was that a defendant (who of course will normally be a trade union or a trade union official) will be liable if he induces a breach of the duty as part of his purpose. That at least is the beginning point before the amendments come into play. It is not enough, he says, that he intends to do that. It must be one of the things that he is setting out to do.
With great respect, there has always been a misapprehension on the Government's part as to this matter. Industrial action is of course taken primarily normally to improve the conditions of those who are taking it. It is, however, always part of the consequence of that action that it interferes with the

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business in question, and it must lead in the majority of the cases which by hypothesis we are discussing to a non-performance of the relevant duty under the order. Therefore to say that someone must set out to induce a breach of the order rather than intend to do it seems very strange. I suggest that you set out to do what you intend to do and you intend to do what you set out to do, at any rate in industrial action in the normal case.
It is just not the case that the courts would take the view that the noble and learned Lord proposes, in my submission. If one looks at the analogous case law concerning the liability for inducing a breach of contract (which is of course the parallel in industrial action), the test of intention (which is surely the one that the courts will use to test purpose) is that set out in the judgment, for example, of the noble and learned Lord, Lord Diplock—Lord Justice Diplock as he was in 1966—when he stated that:
"The element of intent needed to constitute the tort of unlawful procurement of a breach of contract is, in my view, sufficiently established if it be proved that the defendants intended the party procured to bring the contract to an end by breach of it if there were no way of bringing it to an end lawfully. A defendant who acts with such intent runs the risk that if the contract is broken as a result of the party acting in the manner in which he is procured to act by the defendant, the defendant will be liable in damages to the other party to the contract".
The principle that a defendant is taken to intend, and to have the purpose of intending, the natural consequences of his acts has been applied by the courts in those cases, and would it not be applied here? As the clause stood, and as it was to be confronted by the amendment to which we could not address ourselves, it still seems to my noble friends and to myself to be very unsatisfactory; which leads to the second and the third point, very briefly.
The Government—presumably acknowledging that it is unsatisfactory, as the noble and learned Lord suggested—now come to the matter by a different route and attempt to cure the difficulty by introducing, as I understand it, the new test of liability: that the defendant will be liable only if in organising his industrial action he deliberately intended damage to the plaintiff—almost a test of malice. That of course is an entirely new test. It is profoundly different from anything put forward before. It is very unsatisfactory to have such a profound change brought forward on a Third Reading. It rests entirely on subjective purpose and presumably it rests upon predominant purpose. To say now that someone wholly or partly intends damage for the plaintiff raises the issue of how far the part must go. In other words, the "wholly" or "partly" now relates not to an objective matter but to a subjective one. I was not clear from the noble and learned Lord just in what way he expected the courts to judge whether there was a sufficient partial malice or intent to do damage to create liability, because of course that would be a matter of very great import to those who wish to maintain the liberty of withdrawing their action collectively when they might be said to be intending damage to the employer in a way which the new amendment requires for liability.
The third thought, in a sentence, is simply this: is not that difficulty further proof of the fact that it would have been better for the Government to accept the
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time-honoured way of dealing with this matter; namely, to allow for the normal law of trade union immunities—or such as are left and such as will be left after the next Bill on the matter and no doubt the next Bill after that—to apply to workers in this area as they apply to workers in other areas, by accepting that there would be no liability in contemplation of furtherance of a trade dispute? I do not ask the noble and learned Lord to agree with me immediately; but I wonder whether, on further reflection, he would not feel that the new test of malice will be an unfortunate one to have to apply in trade disputes and that the old wisdom of the test of furtherance of trade dispute defence would not perhaps have been better.
Lord Mackay of Clashfern: My Lords, I think that the situation so far as I am concerned is that this amendment is put down by us in order to deal with questions that were raised on the preceding occasion. In considering this matter I have had particularly in mind the way in which these questions were dealt with in this House, sitting in its judicial capacity, in the Crofter Hand Woven Harris Tweed case with which the noble Lord, Lord Wedderburn of Charlton, will be extremely well acquainted.
A noble Lord: It is a Scottish case.
Lord Mackay of Clashfern: As the noble Lord observes, it is a Scottish case—and from my point of view all the better for that! Lord Simon, who again perhaps had qualities that were relating to that particular situation, said in that case:
"In some branches of the law, intention may be understood to cover results which may reasonably flow from what is deliberately done, on the principle that a man is to be treated as intending the reasonable consequences of his acts. Nothing of the sort appears to be involved here. It is much safer to use a word like 'purpose' or 'object'.
He then said, what is the reason why they did it? I am not quoting fully. Passing on to another relevant passage, he said:
"The test is not what is the natural result to the plaintiffs of such an action or what is the resulting damage which the defendant realised or should realise will follow but what is in truth the object in the minds when they acted as they did. It is not consequence that matters but purpose."
That is the reason that we have used this expression and then emphasised the purpose of damage to the other party. That is the reason that I consider that these amendments do make plain the correct balance in this very difficult area.
Lord Wedderburn of Charlton: Before the noble and learned Lord sits down, would he agree that if he reads on in the relevant passage of Lord Simon, we will find that the noble and learned Lord said:
"The analysis of human impulses soon leads us into the quagmire of mixed motives, and even if we avoid the word 'motive', there may be more than a single 'purpose' or 'object'. It is enough to say that, if there is more than one purpose actuating a combination, liability must depend on ascertaining the predominant purpose."
It was precisely that passage that I had precisely in mind in wondering whether the noble and learned Lord was going to say that it was now the predominant purpose which would create liability. I do not think he answered that question.
Lord Mackay of Clashfern: I think as the noble Lord will appreciate as he reads the clause as amended by amendments that we are proposing, that the result is to test the question of whether the act which induces a breach of duty or interferes with its performance causes that person to sustain loss or damage and is done wholly or partly for the purpose of achieving that result. In other words, if part of the purpose is the achieving of the result of damage to the plaintiff, then liability would be established. But of course it would be for the plaintiff or the claimant to prove that.
5.48 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 35:
[Printed earlier: col. 376.]
Lord Bruce of Donington Lord Bruce of Donington moved Amendment No. 36:
After Clause 45, 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 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

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(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 be 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, I beg to move the amendment standing in my name. Your Lordships will recall that this question relating to the disclosure of information was dealt with in part by an undertaking given by the Leader of the House in respect of the intention to introduce specialist legislation in dealing with the whole question of telephone tapping. Your Lordships will recall that the noble Lord, Lord Mishcon, on our behalf, withdrew the amendment at a later stage when the original text of the Bill was reintroduced on Report. The noble Viscount, in the course of his undertaking, mentioned that it was his intention, when bringing proposals to deal with telephone tapping, to deal also with disclosure of information, which is of course the subject of the next amendment.
I said that in those circumstances I would not move the amendment at that stage and wait for discussions through the usual channels. Discussions have taken place, and I should like to inform the noble and learned Lord just where our anxieties are in connection with this whole question of disclosure, as distinct from telephone tapping. Interception itself implies the deliberate act of interception of matters that are normally confidential between the person making the call and the person receiving it. This particular clause, which is the subject of this amendment, deals with a slightly different circumstance. It is designed to protect the public in circumstances where there is, as distinct from deliber-ate interception, automatic monitoring; and it is the disclosure of information that can be derived from automatic monitoring about which we are concerned.
The noble and learned Lord will be aware, and his advisers will have told him, that the Miracle apparatus, for example, enables the monitoring of the duration of calls, their origin and all the rest of it, as described in this amendment itself. There are further technical developments on course now which may result in that being done, even more efficiently and even more automatically. Quite clearly, information of that nature will arise from the introduction of the apparatus—in the case of Miracle, its progressive introduction—and at a later stage by means of more efficient methods that are already in contemplation.
If the noble and learned Lord can inform us that the Government are already seized of the essence of the problem and that steps can be taken to deal with it at

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the same time as the whole interception business is dealt with, we shall to some extent be reassured, because we do not want automatic monitoring to replace or to supplement direct interception. We do not mind the monitoring taking place for the ordinary purpose of measuring the duration of a call and for charging purposes, and so on, but information will be derived from that which ought to be confidential, save in the performance of the operator's normal course of duty. Perhaps the noble Lord can give an indication of which area the Government's mind is covering on this particular point, as well as a rough indication of how it is proposed to deal with it in the legislation to which the noble Viscount. Lord Whitelaw, referred. I beg to move.
Lord Mackay of Clashfern: My Lords, this amendment seeks to establish a statutory procedure for the disclosure of information about a customer's use of the telephone system. It does so in a way which closely mirrors the arrangements described in the White Paper, The Interception of Communications in Great Britain, for the authorisation of interception by warrant under the hand of the Secretary of State. These arrangements were discussed by your Lordships during the Committe stage of the Bill and, as has been mentioned, my noble friend the Lord President gave an undertaking on Report that the Government would bring forward legislation on the interception of communications in the next Session of Parliament. It was recognised in the debate that took place that interception is an exceptionally difficult and sensitive subject. The Government took careful note of the genuine concerns expressed in your Lordships' House and responded with what I think the whole House recognised as an exceptionally clear and firm undertaking.
The drafting of the present amendment suggests that there is a close similarity between the disclosure of information about a customer's use of the telephone system, and interception, and that the two ought to be regulated in much the same way. There are of course circumstances in which the disclosure of information about a subscriber's use of the telephone system can be an intrusion into the privacy of the subscriber, who may well not wish a third party to know with whom he has been in communication. But I do not believe that this disclosure of metering information raises quite the same acute questions of personal privacy as does interception, nor, therefore, that we should automatically assume that it must be regulated in the same way as interception.
We are talking here about information derived from the metering of telephone lines primarily for account-ing purposes. The information concerned is therefore a matter between the subscriber and the telecommunications operator and does not involve any disclosure of the content of the subscriber's conversations with other subscribers. One might perhaps draw an analogy with a travel agent, one of whose clients has bought a ticket to travel to a certain destination. The travel agent might in certain circumstances consider it his duty to disclose that fact to the police if it turned out, for example, that the client was a fugitive from justice.
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There are of course a variety of circumstances in which an individual or organisation may be able to assist the police with information about the movements or whereabouts of a wanted person. The disclosure of metering information by a telecommunications operator is a similar instance where the public good may override the duty to preserve the privacy of information that has been obtained about a client's contacts or movements. One certainly does not wish to deny that some issues of privacy are involved, but that is the case with almost any form of investigation that the police may undertake and the issues are not, I would suggest, nearly so sensitive as those connected with interception.
The disclosure of information derived from metering is one of the issues that has been raised in the Malone case, which is presently before the European Court. The Government's submissions to the court have made clear the distinction which the Government see between the disclosure of metering information and interception. We recognise, however, that the court may conclude that metering raises issues under the European Convention and that its findings might include criticisms of our present arrangements.
In his speech during the Report stage of the Bill my noble friend the Lord President indicated that the Government would consider the implications of any such findings in the context of the legislation on interception which he undertook would be brought forward in the next Session. It may help your Lordships if I expand slightly on his remarks.
We cannot at the moment tell what, if any, the court's findings will be in relation to metering. The Government would of course have to take steps to respond to any criticisms that were made, and depending on the nature of the criticisms, legislation might be needed. The Government intend to look at the relevant findings in the context of the forthcoming legislation on interception, and if the Government judge that the best way to deal with the matter is to include provisions in the Bill on interception, that is how it will be dealt with. On the other hand, when we actually see the court's findings we might find that if there are any findings relevant to this matter, it would be more appropriate to deal with them in some other way, and as I have indicated, this may mean using some other legislative vehicle.
I hope that in the light of what I have said so far your Lordships' House will agree that it will be better to wait and see what the court has to say before we introduce new statutory provisions on this subject. Meanwhile, in our view the position is quite adequately covered in Clause 45(2) of the Bill, which already provides important new safeguards over the disclosure of the contents of statements of account.
There are also difficulties with the new clause which is now before us which would make it inappropriate even as an interim provision. For example, the new clause would mean that there could be no disclosure to the police, Her Majesty's Customs and Excise, or the Security Service, except under a warrant issued under the hand of the Secretary of State. Parliament rightly expects the Secretary of State himself to exercise personal control over interception, and his ability to do this effectively will inevitably suffer if we add

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further categories of case which he must supervise personally.
There are other difficulties with the clause as tabled. A significant one is that it makes no provision for the disclosure of metering information in criminal cases, except where serious crime is involved. But the great majority of meter check prints (other than in cases where there is a dispute over charges) are used to help identify the source of malicious or indecent calls, which were a subject of concern to my noble friend Lord De La Warr at an earlier stage. These do not qualify as serious crime, as we shall see if we compare the penalties provided in Clause 43 for this kind of offence with the definition of "serious offence" that is given in subsection (3) of the proposed new clause. But, as I am sure your Lordships appreciate, this is something that can cause great distress to the victims, and I am sure that your Lordships' House would not want to close off an important means by which the telecommunications operator and the police can co-operate to put a stop to the activities of such callers. As your Lordships will appreciate, this is not covered by the exception which the clause provides for metering with the subscriber's consent, because it is the subscriber at the other end of the call one wants to find out about.
Perhaps I may summarise the position in the following way. In our view, the disclosure of informa-tion about a customer's use of the telephone does not raise precisely the same issues as does interception, and I do not believe that it would be appropriate to decide now anything about the introduction of provisions going beyond what we already have in Clause 45. Even if a case for further provisions were made out, the clause which is now before us (that is to say, the clause proposed in the amendment) has a number of serious drawbacks which we do not have the opportunity properly to discuss or correct at this stage in the passage of this Bill, and therefore it would be far better to judge the need for, and scope of, any additional measures in this area when we have received the judgment of the European Court. I hope that, in the light of those observations, the noble Lord will feel able to withdraw the amendment and that his purpose in putting it forward and moving it on this occasion has been served.
Lord Bruce of Donington: My Lords, I am greatly obliged to the noble Lord for his very full statement. In the light of what he says, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 [General functions]:
Lord Lyell Lord Lyell moved Amendment No. 37:
Page 45, line 40, leave out from ("any") to end of line 41 and insert ("matter in respect of which any function of the Director is exercisable").
The noble Lord said: My Lords, this is drafting and I assure your Lordships is designed to aid general understanding of the Bill. Your Lordships will see that, as it stands, Clause 47(4), at the bottom of page 45 of the Bill before us today, places a duty on the director to give, as can be seen in line 38,
"information, advice and assistance to the Secretary of State".
as regards
"any of the matters in respect of which the Director has a duty under this section".
What we intended by this was that the director should give advice on all matters coming within his functions. We had thought previously that the duties in Clause 47(1) and (2) were widely drafted, indeed so widely drafted, to cover this point. But, on reflection, we have decided, for the removal of all doubt, that it would be helpful to spell out this intention more clearly. That is the entire purpose of the amendment. I beg to move.
Clause 52 [Investigation of Complaints]:
Lord Lyell Lord Lyell moved Amendment No. 38:
Page 50, line 37, after ("if) insert ("he is required to do so or if).
The noble Lord said: My Lords, for the convenience of your Lordships, I should like to speak also to Amendment No. 39.
Amendment No. 39:Transpose Clause 52 to after Clause 48.
These two amendments are designed to improve and to help the understanding of this clause which, as your Lordships will see, places a duty on the director to consider complaints and representations made to him. This is, as we have found going through the Bill, a very important clause since such complaints and representations will be one of the main routes by which the director will be informed of all those matters in respect of which he should exercise his functions under the Bill.
One of the most important of these functions is to ensure compliance with licence conditions under his powers that we have always found in Clause 16 and shall continue to find them there, we hope. Your Lordships will see that Clause 16 places a duty—I stress the word "duty"—on the director to act where he is satisfied that there has been, or is likely to be, a breach of a licence condition. One of the ways in which he will become aware of possible breaches is by complaints and representations made under Clause 52. Therefore, since he has a duty to act under Clause 16, we think it appropriate to make reference to this requirement to act in subsection (3) of Clause 52. That is what Amendment No. 38 does. It inserts the words,
"he is required to do so or if.
Amendment No. 39 simply moves Clause 52 from its present position in the Bill to a place earlier in Part III. We think that this is appropriate in view of the importance of the clause, particularly in informing the director of matters relevant to the exercise of his functions. I give one example. The director is likely to exercise his functions under Clause 49 after he has received a complaint under Clause 52. We therefore think it sensible to bring Clause 52 forward. I beg to move.
Lord Lyell Lord Lyell moved Amendment No. 39.
[Printed above.]
Clause 54 [Power to establish advisory bodies]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 40:
Page 52, line 22, at end insert ("and who, not being employees of British Telecommunications nor of its successor companies, are members of trade unions.").
The noble Lord said: This proposed amendment was set down as another attempt to persuade your Lordships that members of trade unions as such should be considered for membership of the advisory bodies now to be set up by the Secretary of State under Clause 54.I have considered carefully what the noble Lord the Chancellor to the Duchy of Lancaster said on 19th March, at column 1078 of Report stage, and in view of the advice I have been given that this amendment it is not in order for Third Reading, I do not propose to move it.
[Amendment No. 40 not moved. ]
Clause 60 [Vesting of property etc. of British Telecommunications in a company nominated by the Secretary of State]:
Lord Stoddart of Swindon Lord Stoddart of Swindon moved Amendment No. 41:
Page 57, line 6, after ("appoint") insert ("which shall not pre-date the publication of the findings of a Committee of Inquiry appointed by Her Majesty's Government to examine all aspects of UK telecommunications policy").
The noble Lord said: My Lords, noble Lords will recall that we had a previous debate that suggested some delay on 20th March, the final day of the Report stage. Our proposal then was to defer the operation of Part V of the Bill until after 9th June or not before 9th June 1988.I had not intended that amendment to be a wrecking amendment. But having read the debate, and read it pretty thoroughly, I can understand why many noble Lords saw it as such. However, it is clear from the debate that there remain, in spite of the doubts about its being a wrecking amendment, considerable worry and doubt about the implications of Part V of the Bill and its likely effects.
The noble Lord, Lord Lloyd of Kilgerran, for example, in a most apposite speech, recorded in columns 1112 to 1115, made a penetrating analysis of Part V. Although he expressed himself as not being enamoured of the interval of time proposed in the amendment, he nevertheless believed that it was desirable that there should be some postponement for further thoughts on the likely consequences of Part V and to allow British Telecom time to adjust to the changes that would be brought about by this part of the Bill.
The noble Lord, Lord Somers, understandably expressed the view that the amendment moved at Report stage had been made the occasion to convert the whole matter into an election issue. It was perfectly reasonable that he should object to the amendment on that basis. Nevertheless, he made clear that he had objections to the Bill of a similar sort to those which I had expressed in my speech. The noble Lord, Lord Diamond, although opposing my previous amendment, nevertheless believed that there may be some merit in delaying the Bill for perhaps 12 months
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on the basis, for example, that the Stock Exchange is at present suffering from indigestion.
The amendment I am proposing takes into account all these views and recognises the considerable opposition to Part V during all stages of the Bill. It certainly cannnot be described and should not be taken as a wrecking amendment. It is a genuine attempt to get some period of delay while other thoughts that have been put forward from all parts of the House are taken into account. Indeed, there is every reason to have a quick inquiry into telecommunications policy before Part V is brought into operation. The Government themselves have been unable to show the way forward clearly and precisely. That is important. The Government should be leading on this and showing Parliament and the people the way forward in telecommunications policy.
There is, for example, confusion about objectives. On the one hand, Government Ministers laud the benefits of free competition and, on the other hand, seek to persuade Parliament that it is a necessary prerequisite of free competition to convert a public monopoly into a private one. That really is a paradox. A committee of inquiry could give attention to this apparent paradox and would be able to establish whether the Government guarantee not to licence other competitors to British Telecommunications for seven years had any other purpose than to protect Mercury from competition outside British Telecom itself.
An inquiry could also establish whether competition was desirable or undesirable in itself, and might well suggest ways and means as to how competition, if it were felt desirable, could be best achieved. An inquiry would also be expected, I imagine, to consider the financial implications of the proposed flotation of BT shares, and the effect it would have on the stock market itself as well as on other financial institutions. Certainly I would expect—and Parliament ought to consider this to be essential—that a committee of inquiry would want to consider the possibility, or perhaps even the probability, that foreign countries would gain a significant slice of British Telecom shares and therefore ownership and control of the British telecommunications service and of future telecommunications policy.
I believe that this amendment is helpful. I hope that it is helpful to the House; I hope that it is helpful to the telecommunications industry generally; and, indeed, I also hope that the Government will consider it helpful as well. They have been going through a pretty rough patch lately, and it seems to me that if they were to accept this amendment it would give them a short breathing space to reconsider the matter that I have mentioned. Indeed, it might prevent further mistakes from being made which would attract public attention and, perhaps, under certain circumstances, public condemnation.
The delay that would be engendered by a short inquiry would not really hurt the Bill; nor, in fact, would it conflict with the Government's objectives. Therefore, I hope that the Government will accept this amendment from us tonight. But I should like to consider what they have to say before deciding whether to press it to a Division.
Lord Cockfield: My Lords, hope springs eternal, and nowhere more than in the breast of the noble Lord, Lord Stoddart of Swindon. The noble Lord went to considerable length to try and explain that this was not a wrecking amendment. I entirely accept that his motives are pure, but I regret to say that I cannot say the same for his amendment.
The amendment is, at best, a dilatory amendment designed to hold up the process of privatisation while this particular body pontificates upon the issue. We all know what happens when we refer matters to committees of inquiry, to Royal Commissions or to bodies of that type. But quite apart from that, the amendment in fact cuts across the whole purpose of one of the main provisions in the Bill.
When we discussed this issue before I said that we had a manifesto commitment on this matter in the most specific terms. I read the words out then, and perhaps 1 might read them out again:
"We shall transfer more state-owned businesses to independent ownership. Our aim is that British Telecom. where we will sell 51 per cent. of the shares to the private sector"—
and there then follows a list of other state industries—
"shall become private sector companies.—[Official Report, 20/3/84: col. 1117.]
That was an absolutely specific commitment. There is no reference in it to committees of inquiry; there is no reference in it to delays while committees of this type sit on the matter. We won the general election, as the noble Lord well knows, and we have a mandate for this major part of the present Bill.
There is sometimes an argument for setting up a committee of inquiry when one knows that there is a problem but one does not know the answer to that problem. Therefore, instead of making up one's own mind one delegates it to a body or a committee or a commission. But that is not so in the present case. There is undoubtedly a problem, but the answer to that problem we have incorporated in this Bill. The Government's views on this are absolutely clear, absolutely specific, and there is no purpose whatever in appointing a committee of inquiry.
There is another aspect of this matter. I am quite sure that the noble Lord, Lord Stoddart of Swindon, did not intend it, but in some ways I find this amendment rather derogatory of your Lordships. I do not know a Bill which has been examined in greater detail than this one. I do not know a Bill where every single provision has been looked at, considered and, in many instances, amended. In fact, from time to time there have been complaints about the very large number of amendments that the Government themselves have moved. But whatever complaint there may be on that score, at least it disposes altogether of any suggestion that the provisions of this Bill have not been examined with the utmost care by your Lordships. Where it has been the wish of the House that amendments should be made, I have always done my best on behalf of the Government to meet the wishes of your Lordships. I feel, therefore, that for us now to say that all of these efforts have been of no avail and that what we need is a committee of inquiry to go over everything that we have done, and to tell us whether what we have done is right or wrong, is something that I find not only unnecessary but faintly objectionable.
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The noble Lord, Lord Stoddart of Swindon, referred to the speech made by the noble Lord, Lord Diamond. I am very sorry that the noble Lord, Lord Diamond, is not here this afternoon because I thought that his speech was a very statesmanlike one. and a speech which showed great penetration. It is important to make the point that the noble Lord, Lord Diamond, of course was opposed to the principle of the Bill. Therefore, I am not quoting something said by somebody who was in favour of the Bill; I am quoting something said by somebody who was opposed to the Bill. The noble Lord, Lord Diamond, said:
"Those of us who are seeking to become the next Government do not wish to establish a precedent which the Opposition party of the day can quote to demonstrate that one need not pay any regard to a mandate or to a decision of the other House, or to a decision on Second Reading, but that one can do what one thinks best to upset that Second Reading by means of an amendment".
I shall then leave out a few additional words. The noble Lord went on to say:
"To establish a precedent of that kind would be both unconstitutional and extremely unwise for any party that is pretending—and I use that word in its old sense—to form the Government in the future",—[Official Report, 20/3/84; col. 1122.]
That is what the noble Lord, Lord Diamond, said. I personally believe that he was entirely correct in what he said. This amendment is both unnecessary and also wrong in the sense that it is endeavouring to strike down one of the major provisions of the Bill which was approved by your Lordships on Second Reading. On those grounds I hope that your Lordships will decisively reject the amendment.
Lord Stoddart of Swindon: My Lords, with the leave of your Lordships I should like to reply briefly to one or two of the points that were made by the noble Lord, Lord Cockfield. Of course one understands that political parties put forward manifestos at a general election, and one also understands that they may very well wish to put, and, indeed, perhaps should put those manifesto commitments into operation. But I am sure that the noble Lord was not suggesting that the Conservatives won the general election on the basis that they had gone to the country with the proposition to privatise BT and to sell 51 per cent. of the shares on the market. I feel quite sure that, had he put that proposition to the electorate—and that was the only proposition—the Government would probably have lost, and we should now be sitting on their side of the House. The general election was fought on quite different matters and the electorate made their decision on quite different grounds from the privatisation or otherwise of British Telecom.
The noble Lord, Lord Cockfield, also suggested that I was being derogatory to your Lordships. That is the last thing that I would do; I have far too much respect for your Lordships than to try to do that. Our reason for proposing that there should be a committee of inquiry is not to suggest that your Lordships have not examined the Bill in Committee, on Report and, indeed, at this stage in the most intensive way. Your Lordships have. I have been very impressed, very pleased and, in fact, proud to be a member of a body that does it so well.
However, we are circumscribed by our own rules and constitution. We cannot at any stage, for example, examine witnesses. We cannot move around the

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country. We cannot go into BT's headquarters or Mercury's headquarters and talk to Sir George Jefferson. A committee of inquiry would, in fact, be able to do those things, whereas your Lordships in a Committee stage or a Report stage of the Bill cannot. That is the difference between this House and a committee of inquiry. That is why we have suggested a committee of inquiry—not to be derogatory to your Lordships, but because we feel that it would be ancillary to what has already been done, and been done so well, in the hours of debate which we have had in this House.
Finally, I should like to refer to the speech which was quoted by the noble Lord, Lord Cockfield, which was made by the noble Lord, Lord Diamond, on 20th March on the subject of the previous amendment. I should like to point out that the noble Lord, Lord Diamond, was not commenting upon the present amendment; he was commenting upon the previous amendment, which he believed was designed to put off the operation of this Bill until after a general election.
This present amendment does not seek to do that under any circumstance at all. I think that the noble Lord, Lord Diamond, may have a very different view on this amendment. I believe that what he said on that ocassion had great merit, and I read very thoroughly what he said. As I explained at the beginning, it was after reading the debate that I felt that perhaps I had been mistaken in moving the previous amendment which could be described, and was so described, as a wrecking amendment. However, the remarks of the noble Lord, Lord Diamond, were related to that amendment, and not to this amendment. I have heard what the noble Lord, Lord Cockfield has said and I have heard the remarks of your Lordships. Under all the circumstances, I shall not press this amendment today. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 70 [Application of law in relation to offer of shares or debentures of the successor company]:
6.25 p.m.
Lord Bruce of Donington Lord Bruce of Donington moved Amendment No. 42:
Page 65, line 12, leave out from ("offer") to end of line 13 and insert ("the successor company's activities, its business, trading, financial and technical position; its trading record during the preceding 5 years and its profit forecast").
The noble Lord said: My Lords, I beg to move the amendment standing in my name and the names of my noble friends. This amendment and the following ones concern, of course. Clause 70, which was briefly discussed by your Lordships on Report. Your Lordships will recall that the terms of Clause 70, which relates to the:
"Application of law in relation to offer of shares or debentures of the successor company",
were on the footing that, in view of the fact that the application forms for shares would be sent to a very large number of people—possibly including subscribers but by no means confined to them—it was desirable that there should be a shorter form of
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prospectus. To this argument I, on behalf of my noble friends, dissented. But that was the footing on which the clause itself was discussed.
It was on the footing that a full prospectus would be available and would be advertised in at least four national newspapers; that a full prospectus would be filed with the Registrar of Companies so that, even though the large number of people to whom applica-tion forms were sent would only have a brief, abbrevi-ated prospectus, nevertheless the full prospectus would be available for inspection and would be available to those who had received a short form of description with the application form and who would probably wish to discuss the matter with their legal advisers, who might then wish to peruse the full prospectus.
It was nowhere anticipated that there would be any question but that the full prospectus would be embarked upon. I am, of course, referring to the full prospectus in accordance with the provisions of the Fourth Schedule to the Companies Act 1948 and, of course, in compliance with Sections 37 to 41 of the Act itself.
If your Lordships look at Clause 70 itself you will observe that "prospectus", described in one form or another, abounds. There are five mentions of the simple word "prospectus" there are four mentions of the words "full prospectus"; and there are two mentions of the words "the offer prospectus". I am quite sure that the noble Lord's advisers have meant this clause to be extremely clear, but I must say that it is far from clear and, if the noble Lord will permit me, I should like to address this question to him.
On the assumption that the clause becomes operative, is it the Government's intention that, in addition to the abbreviated form which will go with the application forms, the full prospectus as required by the Stock Exchange will in fact be published and will in fact be available? I ask the question because, although no indication was given to us in the course of the debate in this House, in another place in answer to a Written Question on 27th March concerning exemptions from the rules, at col. 106 Mr. Kenneth Baker said this:
"Exemptions from the prevailing rules would be sought if necessary but whether such exemptions would indeed be needed will not be clear until closer to the offer for sale".
Your Lordships will be aware that under Section 39 of the Companies Act 1948 there is provision for the exclusion of the more rigid rules relating to prospec-tuses in the circumstances outlined. I have to read Section 39 to your Lordships because it is of a little importance. It says:
"Where—

(a)it is proposed to offer any shares in or debentures of a company to the public by a prospectus issued generally (that is to say, issued to persons who are not existing members or debenture holders of the company); and

(b)application is made to a prescribed stock exchange for permission for those shares or debentures to be listed on that stock exchange;

"there may, on the request of the applicant, be given by or on behalf of that stock exchange a certificate of exemption, that is to say, a certificate that, "having regard to the proposals (as stated in the request) as to the size and other circumstances of the issue of shares or debentures and as to any limitations on the number and class of person to whom the offer is to be made, compliance with the requirements of the Fourth Schedule to this Act would be unduly burdensome."
This is the first indication, on 27th March, that there is any intention by the Government to seek exemption in any way from the full prospectus requirements. For that reason I set down an amendment, which has been ruled as being out of order and therefore which I do not pursue, to leave out the whole clause, because, as your Lordships will appreciate, in the normal way unless it is intended to do something a little out of the ordinary there is of course no need for Clause 70 at all. If Clause 70 were not in the Bill the issue of the shares, the issue of the prospectus, and everything else would take place according to the provisions of the Companies Act 1948. This is evidently not to be the case.
Irrespective of that argument, and on the assumption that the original intentions, as we understood them, apply we consider that it is necessary for the abbreviated prospectus to contain rather more, and to be required to have, more information with it than is described in subsection (2) of the present Clause 70. Subsection (2)(a) at the moment reads:
"a brief description of the shares or debentures offered, the terms of the offer, the successor company's business and its financial position".
That does not cover very much.
What we should like to do is to ensure that if the people who are the recipients of invitations to subscribe for shares in the successor company are to be denied the full prospectus, they should at least be informed of the successor company's activities, its business, trading, financial and technical position—these are well-known business terms with which the noble Lord will be familiar, and are certainly familiar to accounting circles—and its trading record during the preceding five years, and its profit forecast. Those particular requirements are far less exacting than are those of the Stock Exchange, which require full prospectuses to go into much greater detail than that. But we think it fair on this side of the House that before subscribers, or anyone else, are going to be invited to subscribe they ought to have this minimal information.
On the assumption that a full prospectus is somewhere available and is in fact going to be made available, we feel that subsection(2)(b) ought further to be amended to specify the places where the prospectus should go. We therefore think that the full propectus should go to every post office or sub-post office in the United Kingdom where it can easily be inspected. Then we think also that it should be prominently stated, and should be known by the people to whom the invitations to subscribe for shares are sent, that the full prospectus has first been returned to the Registrar of Companies in accordance with Section 41 of the Act of 1948; secondly, that it is a prospectus for the purposes of Sections 37 to 41 of the Companies Act 1948; and, thirdly, complies with the Fourth Schedule to the said Act of 1948; and that the application for full listing submitted to the Stock Exchange has been accepted. We think that that would be reassuring to the general public to whom invitations are sent to subscribe for the shares or debentures in the successor company, and that it is the minimum assurance that they should get.
The next amendments, Nos. 46 and 47, which insert the word "full" in front of "prospectus" are for the avoidance of doubt. It may be that they are unneces-sary. I am sure that the noble Lord understands Clause 70 far better than I, because I find the greatest difficulty with it (and I am not entirely unaccustomed to reading law) and it may be that the word "full" before "prospectus" in the lines I have indicated is not necessary, and that it is the intention that the term "prospectus" used there refers to full prospectus. If that is so, then of course those amendments will be completely unnecessary.
It has always been our understanding that whatever shortened form of "prospectus" or description be issued to the subscribers, by advertising in the four national newspapers, by filing with the Registrar of Companies, and by placing it where the prospectus should be placed, it would in fact be a full prospectus. If the noble Lord gives me that assurance, then the word "full", as set out in Amendments Nos. 45, 46 and 47, becomes unnecessary. However, on the assumption that I am right, the amendments may be fairly helpful to the Government in clarifying their true position.
Many of us feel that governments should not use their position and their powers of persuasion to seek to induce the Stock Exchange to depart from the high standards which they have adopted, and which have similarly been adopted by the accountancy profession by reporting accountants who perform the various functions assigned to them in the drawing up of a prospectus. We feel that there is no cause for exemption, particularly in the light of the fact that, as the noble Lord well knows, the accounts for the last two years have in any event been subject to severe audit qualifications. I hope that the Government and the House will give these matters their earnest consideration because they raise fundamental questions of principle. I sincerely hope therefore that the noble Lord will find himself able to accept the amendments. I beg to move.
The Deputy Speaker (Lord Jacques): Amendment proposed, page 65, line 12, leave out from ("offer") to the end of line 13 and insert the words as printed on the Marshalled List. I should point out a printing error in line 1 of the Marshalled List. Line "15" should read line "13".
6.40 p.m.
Lord Mackay of Clashfern: My Lords, the noble Lord, in moving his amendments—and I think he has moved all the amendments in relation to Clause 70 with which he wished to deal—suggested that the principal concern was with respect to whether or not a full prospectus would be issued. I think he was particu-larly concerned whether or not there had been resort to some very short form of prospectus. The situation is, as your Lordships will see, that in this section "full prospectus" means a prospectus which complies, or is deemed to comply, with the requirements of Schedule 4 to the Companies Act 1948.
The question was asked, "Is it the Government's intention that, as well as the notice, the full prospectus will in fact be published and available?" The answer is, yes. The answer given in another place to which the

395
noble Lord, Lord Bruce, referred I think mentioned the possibility that some exemptions might be asked for from the Stock Exchange. That, of course, would be a matter for the Stock Exchange. Exemptions are given by the Stock Exchange if they are satisfied that a proper case for it has been made out, and there is no suggestion of any shortening of the prospectus in respect of any basis except that. There is nothing unusual or dubious about a matter of that kind being referred to the Stock Exchange.
As my right honourable friend's answer indicated, and as the noble Lord read it, a decision about that matter would be required to be made nearer the time. So far as that is concerned, the Government's case would be dealt with under the section in the usual way. I emphasise that we intend that there shall be a full prospectus published in the normal way and very widely circulated.
I pass from that, which is the basic question, to the amendments. So far as Amendment No. 42 is concerned, in our view, speaking generally, the phrase already in the Bill would cover sufficient of this material to make this amendment unnecessary. There are certain aspects of the matter which this amendment might render rather difficult to fulfil in the circumstances of British Telecom. For example, the proposal requires the notice to include a profits forecast. The question of whether or not one has a profits forecast depends on the precise circumstances in which the prospectus is issued, and what the people who subscribe to the prospectus are prepared to say. It is a matter, therefore, of complying with the conditions in Schedule 4. In our view, to try to narrate the detail of what should go in the notice, as proposed in this amendment, is rather counter-productive.
Amendment No. 43 indicates the desire to mention every post office or sub-post office so far as the publica-tion of the prospectus is concerned. In this connection it is our intention that the prospectus should be made as widely available as possible to ensure that members of the public who receive the notice provided for in the clause should have ready access to the full prospectus. This is certainly our intention, and we are very firm that the full prospectus should be available extremely widely
We think, for example, that a very wide degree of access to the full prospectus is both necessary and desirable. The amendment might take us beyond what is reasonable and into unnecessary extremes. It would require the full prospectus to be available at each of the 1,500-odd main post offices in the country and in all of the 20,000 sub-post offices, as I understand it. It would be difficult and costly to provide a prospectus for every sub-post office in the country, and the task of ensuring that there was a prospectus in every sub-post office in good time would certainly complicate the logistics of the circulation of the prospectus, quite possibly to the detriment of our efforts to make the prospectus available elsewhere.
It would also, I suggest, be unnecessary to place a prospectus in every post office in situations where post offices happen to be close together and where there might perhaps be a number of other more suitable outlets, such as banks. Accordingly, making this a legal requirement would, it seems to us, put us into an
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unnecessary legal straitjacket, whereas the need to distribute the prospectus widely is clearly recognised and is our firm intention.
Amendment No. 44 suggests that statements to the effect there set out should go into the notice. It does not seem to me that it would be of any assistance to the people getting the notice. It is clear that the prospectus would require to conform with the legal requirement which were then in existence, and to put something in the notice about that is really putting it in an inappropriate place.
Amendments Nos. 45, 46 and 47 are seeking to put the word "full" into the conditions. The noble Lord, Lord Bruce, will see. I think, that the places in which he wishes to put the word "full" in subsection (3) of the clause are all conditions which require to be satisfied by the full prospectus. Subsection (3) is introduced by subsection (2):
"If the shares or debentures are offered by a full prospectus as respects which the conditions mentioned in subsection (3) below are fulfilled"—
and then the rest follows. The conditions in subsection (3) are conditions which the full prospectus is required to satisfy if one reads it straight through. Accordingly, the words which he proposes are not required in subsection (3); they are already in the phrase "full prospectus" in the first line of subsection (2). I hope that in the light of what I have said the noble Lord will feel able to withdraw his amendments.
Lord Bruce of Donington: My Lords, I am very disappointed indeed that the noble and learned Lord the Minister has not felt himself able to accept immediately Amendments Nos. 42, 43 and 44. In his observations on Amendment No. 42 the noble and learned Lord seemed to gib at making a profits forecast. As I understand it, it is the Government's intention to apply to the Stock Exchange for a full listing. After all, if it does not get a full listing there will be no extensive market in its shares. Is the noble Lord aware that a profits forecast is a requirement of the Stock Exchange? Any profits forecast which is included in a prospectus document is to be examined by independent accountants, and it requires the accountants' report to be published in the prospectus.
Does the noble Lord really think that he is going to issue a prospectus without any profits forecast at all? Is that his intention? I venture to suggest that if that is his intention there will be more than one raised eyebrow in the City. Presumably there will be a statement of the profits for the past five years suitably adjusted to ensure continuity in accounting practice. A statement by the directors that there are adequate working capital requirements will be required, and a statement which has to be stated by the directors and for which others have a responsibility. It is impossible to be able to assess the working capital requirements without arriving at some estimate of profit forecast because both are linked, as the noble and learned Lord knows. Is it the noble and learned Lord's intention to omit profit forecasts from the full prospectus? If they are included in the full prospectus is it not vital for the small investor, whose investment is being sought, to be taken into the Government's and the successor company's confidence about what profit it expects to make in the future? Is that asking too much and, if so,

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why should that not be put into the Bill? For that matter, why mention anything in the Bill? The words,
"the successor company's business and its financial position
are not really enough. I do not see any reason why, dealing with the next amendment, the noble and learned Lord should not stipulate the posting of the full prospectus in all post offices and sub-post offices.
The noble and learned Lord complains about the expense of printing 30,000 prospectuses or thereabouts. The noble and learned Lord is already paying sums of over £1 million—in fact the total cost of the flotation will be £7 million—which will be spent in commission and other fees. Will he jib at the extra cost of printing 20,000 more prospectuses? It really does not make sense.
If the noble and learned Lord is to be frank with the public, why should not the abbreviated notice or circular to go round with the form of application not state, "on the authority of the directors" and, presumably,
"on the authority of the Secretary of State that all the legal require-ments have been complied with",
otherwise all kinds of circulars can be sent out. The noble and learned Lord is being unreasonable about this. He could have accepted these amendments without any injury to the Government's policy. He could have accepted them as a matter of sheer practicability, and he should have accepted them as an earnest of his frankness in the matter. I beg to move.
The Deputy Speaker: My Lords, Amendment No, 42 was moved some time ago.
Lord Denham: Put the question, my Lords.
6.53 p.m.
On Question, Whether the said amendment (No. 42) shall be agreed to?
Their Lordships divided: Contents, 51; Not-Contents, 87.

DIVISION NO.2

CONTENTS

Airedale, L.

Jacobson, L.

Amherst, E.

Jacques, L.

Ardwick, L.

Jeger, B.

Attlee, E.

Jenkins of Putney, L.

Bishopston, L.

John-Mackie, L.

Boston of Faversham, L.

Kaldor, L.

Bowden L.

Kilmarnock, L.

Brockway, L.

Lloyd of Kilgerran, L.

Bruce of Donington, L.

Lockwood, B.

Carmichael of Kelvingrove, L.

Lovell-Davis, L.

Cledwyn of Penrhos, L.

McGregor of Durris, L.

Collison, L.

McIntosh of Haringey, L.

Darling of Hillsborough, L.

Mackie of Benshie, L.

David, B.

Molloy, L.

Dean of Beswick, L.

Mulley, L.

Delacourt-Smith of Alteryn,

Oram, L.

B.

Phillips, B.

Denington, B.

Pitt of Hampstead, L.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L.

Elystan-Morgan, L.

[Teller.]

Ennals, L.

Ross of Marnock, L.

Foot, L.

Segal, L.

Gallacher, L.

Stallard, L.

Graham of Edmonton, L.

Stoddart of Swindon, L.

[Teller.]

Stone, L.

Houghton of Sowerby, L.

Underhill, L.

Hughes, L.

White, B.

398

NOT-CONTENTS

Alexander of Tunis, E.

Marley, L.

Auckland, L.

Masham of Ilton, B.

Avon, E.

Massereene and Ferrard, V.

Bauer, L.

Maude of Stratford-upon-

Belhaven and Stenton, L.

Avon, L.

Bellwin, L.

Merrivale, L.

Belstead, L.

Mersey, V.

Boardman, L.

Morris, L.

Brabazon of Tara, L.

Mottistone, L.

Brookes, L.

Mowbray and Stourton, L.

Campbell of Alloway, L.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Norfolk, D.

Carrington, L.

Nugent of Guildford, L.

Cathcart, E.

Orkney, E.

Cockfield, L.

Orr-Ewing, L.

Craigavon, V.

Pender, L.

Denham, L. [Teller.]

Penrhyn, L.

Dormer, L.

Peyton of Yeovil, L.

Eccles, V.

Portland, D.

Faithfull, B.

Reay, L.

Glanusk, L.

Reigate, L.

Glenarthur, L.

Renton, L.

Gormanston, V.

St. Aldwyn, E.

Gray, L.

St. Davids, V.

Gray of Contin, L.

Savile, L.

Greenway, L.

Selkirk, E.

Hailsham of Saint

Somers, L.

Marylebone, L.

Spens, L.

Hemphill, L.

Strathcarron, L.

Henley, L.

Strathspey, L.

Hives, L.

Sudeley, L.

Home of the Hirsel, L.

Suffield, L.

Howard of Henderskelfe, L.

Swinfen, L.

Hylton-Foster, B.

Swinton, E. [Teller.]

Killearn, L.

Teviot, L.

Kinnoull, E.

Trefgarne, L.

Kitchener, E.

Trenchard, V.

Lane-Fox, B.

Trumpington, B.

Lawrence, L.

Vaux of Harrowden, L.

Long, V.

Vickers, B.

Lucas of Chilworth, L.

Ward of Witley, V.

Lyell, L.

Whitelaw, V.

Mackay of Clashfern, L.

Wise, L.

Mackintosh of Halifax, V.

Young, B.

Macleod of Borve, B.

On Question, amendments agreed to.

7.1 p.m.
[Amendments Nos. 43 to 47 not moved.]
The Lord Chancellor: My Lords, Amendment No. 48, Lord Bruce of Donington.
Lord Bruce of Donington: Out of order, My Lords.
The Lord Chancellor: Out of order, My Lords. I am so glad to be told that. It is the first time that I have been allowed to say that from the Woolsack.
[Amendment No. 48 not moved.]
Lord Lyell Lord Lyell moved Amendment No. 49:
Transpose Clause 91 to after Clause 89.
The noble Lord said: I move this amendment in the name of my noble friend, Lord Cockfield. This is a technical amendment and I beg to move.
Clause 95 [Power of Secretary of State to make orders under Fair Trading Act 1973 etc.].
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 50:
Page 88, line 6, leave out ("necessary to give effect") and insert ("requisite to give effect to")
The noble and learned Lord said: My Lords, this is a drafting amendment. I beg to move.
Clause 96 [Prohibitions and restrictions applying to lessees with respect to telecommunications]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 51:
Page 88, line 37, leave out ("public telecommunication") and insert ("telecommunications")
The noble Lord said: My Lords, if I may speak to Amendments Nos. 51, 52 and 53 together, Amendment No. 51 is basically a drafting amendment to improve the Bill as it stands and the other two are consequential. I beg to move.
Amendment No. 52: Page 89, line 37, after ("system") insert ("or a telecomunication system specified for the purposes of this section in an order made by the Secretary of State")
Amendment No. 53: Page 89, line 39, after ("system") insert ("or to a system so specified")
Lord Glenarthur Lord Glenarthur moved Amendment No. 52:
[Printed above. ]
Lord Glenarthur Lord Glenarthur moved Amendment No. 53:
[Printed above.]
Clause 103 [Application to territorial waters and the Continental shelf etc.]:
Lord Cockfield Lord Cockfield moved Amendment No. 54:
Transpose Clause 103 to after Clause 107.
The noble Lord said: My Lords, this is a minor rearrangement. I beg to move.
Clause 107 [General interpretation]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 55:
[Printed earlier: col. 350.]
The noble Lord said: My Lords, I spoke to this with Amendment No. 3. I beg to move.
Clause 109 [Amendments, transitional provisions and repeals]:
Lord Lyell Lord Lyell moved Amendment No. 56:
Page 100, line 27, after ("right") insert ("which is or may be").
The noble Lord said: My Lords, this is a drafting amendment. I beg to move.
Schedule 2 [The telecommunications code]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 57:
Page 108, line 36, leave out ("and which, by virtue, of any") and inset ("under any enactment and which, by virtue of that").
The noble Lord said: My Lords, this is also a drafting amendment which clarifies another drafting amendment. I beg to move.
Lord Glenarthur Lord Glenarthur moved Amendment No. 58:
Page 111, line 35, at end insert ("to persons who occupy, own interests in or are from time to time on the land in question").
The noble Lord said: My Lords, Amendment No. 58 is an improvement to Amendment No. 86CA that we spoke to earlier on Committee. I think it helps the provisions for the code when expressed to that amendment. My noble friends Lord Kinnoull and Lord Caithness will be pleased by the amendment which helps them in what they tried to put forward earlier. I beg to move.
Lord Glenarthur Lord Glenarthur moved Amendment No. 59:
Page 112, line 29, leave out from beginning to third ("the") in line 31 and insert—
(" (3) In any case where it is shown that a person with an interest in the land was entitled to require the removal of the apparatus immediately after it was installed").
The noble Lord said: My Lords, I can speak to Amendments Nos. 59, 60 and 61 together. They are clarificatory and also drafting amendments. I beg to move.
Amendment No. 60: Page 112, line 33, leave out ("any telecommunication") and insert ("the").
Amendment No. 61: Page 112, line 34, leave out ("any") and insert ("the").
Lord Glenarthur Lord Glenarthur moved Amendment No. 60:
[Printed above.]
Lord Glenarthur Lord Glenarthur moved Amendment No. 61:
[Printed above.]
Lord Glenarthur Lord Glenarthur moved Amendment No. 62:
Page 113, line 7, after ("above") insert ("for")
Lord Glenarthur Lord Glenarthur moved Amendment No. 63:
Page 113, line 18, after ("above") insert ("for")
Lord Glenarthur Lord Glenarthur moved Amendment No. 64:
Page 115, line 38, after ("keep") insert ("installed")
The noble Lord said: My Lords, this is drafting. I beg to move.
Lord Glenarthur Lord Glenarthur moved Amendment No. 65:
Page 116, line 41, at end insert—
(" (5A) The Secretary of State shall not approve a plan submitted to him under sub-paragraph (3) or (4) above unless he

401
is satisfied that adequate arrangements have been made for compensating any perosn appearing to him to be owners of interests in the tidal water or lands in question for any loss or damage sustained by those persons in consequence of the execution of the works to which the plan relates.")
The noble Lord said: My Lords, this amendment is also drafting. It improves a point foreshadowed by the noble Lord, Lord Grimond. I beg to move.
Lord Lloyd of Kilgerran: My Lords, I am sorry to interrupt the noble Lord's peroration. My noble friend Lord Grimond asked me to thank the noble and learned Lord the Lord Advocate for having prepared this amendment and to thank him for the letter of 16th March that he wrote to him.
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 66 to 70:
Page 129, line 25, at end insert—
(" (2A) Sub-paragraph (2) above shall not apply in relation to any emergency works of which the relevant undertaker gives the operator notice as soon as practicable after commencing the works")
line 26, leave out (" (1) ") and insert (" (2) ")
line 47, leave out (" of or") nd insert ("and")
Page 130, line 19, leave out ("other than emergency works")
line 20, leave out ("this paragraph") and insert ("sub-paragraph (2) above")
The noble Lord said: My Lords, with the permission of the House, I move Amendments Nos. 66 to 70 en bloc. They all clarify the Bill and improve the drafting. I beg to move.
Lord Glenarthur Lord Glenarthur moved Amendments Nos. 71 and 72:
[Printed earlier: col. 362. ]
Schedule 4 [Minor and consequential amendments]:
Lord Lyell Lord Lyell moved Amendments Nos. 73 and 74:
Page 143, line 22, at beginning insert ("(1)").
line 27, at end insert—
("(2) This paragraph does not extend to Northern Ireland.").
The noble Lord said: My Lords, I beg to move Amendments Nos. 73 and 74, with the permission of the House, en bloc. They deal with the Cinematograph Act of 1909 and they exclude this provision for Northern Ireland.
Schedule 7 [Repeals]:
Lord Lyell Lord Lyell moved Amendments Nos. 75 and 76:
Page 220, line 5, column 3, leave out ("by").
column 3, leave out line 9 and insert (" "the tribunal" ").
The noble Lord said: My Lords, with the leave of the House, I beg to move Amendments Nos. 75 and 76 en bloc.
7.9 p.m.
Lord Cockfield: My Lords, I beg to move that this Bill do now pass. On an issue as important as this,
402
views are strongly held and forcefully expressed but that stage is now behind us. As a House we have carried out our traditional duty with a degree of application and thoroughness rarely matched. The Bill leaves us a better Bill than it was when we received it. We have reinforced and entrenched the role of Parliament; we have added further protection for the consumer and user; we have given clearer recognition to the role of the manufacturers; we have provided for the voice of the consumer to be more clearly heard and more effectively deployed; we have stressed the need to safeguard the position of the disabled and the elderly and of small businesses. We have protected the position of rural areas and written into the statute the requirement that there should be no undue discrimi-nation in relation to charges of all kinds.
We have provided for free directory inquiry services for the blind and the disabled. We have been even-handed in ensuring that the rights of the owner are protected when lines or apparatus are installed, at the same time ensuring that the tenant who wants a telephone cannot be frustrated by his landlord. We have made many other improvements; and should anyone be tempted to question what useful function your Lordships perform or what justification there is for your continued existence, the history of this Bill provides a convincing answer.
I would now make only two points. First, the battle has been strenuously fought, but always fairly so. Our proceedings have been marked by disagreement but a complete lack of acrimony. I pay tribute to those who have led from the other side of the House—the noble Lords, Lord Bruce of Donington, Lord Stoddart of Swindon and Lord McIntosh of Haringey—to the noble Lord, Lord Lloyd of Kilgerran, who led for the Liberals; to the noble Lord, Lord Donaldson of Kingsbridge, who led for the Social Democrats; to distinguished Cross-Benchers like the noble Lord, Lord Somers, the noble Lord, Lord Spens, and the noble Lord, Lord Weinstock, all of whose wit, wisdom and understanding have enlivened our proceedings; and to those of my noble friends, particularly Lord Orr-Ewing, and Lord Mottistone, as well as my noble friends Lord Boyd-Carpenter, Lord Peyton of Yeovil, Lady Macleod of Borve and Lord Morris, who both encouraged and at times admonished us. So many of your Lordships participated in our debates that the list would be too long for me to repeat, but I hope those whom I have not been able to mention by name will accept that their contributions have been both valuable and valued.
Secondly, now that the parliamentary battle is behind us we would all wish British Telecom—those who work in it, those who manage it and those whom it serves-—a successful and progressive future; and to all those in this rapidly-developing field of telecommunications, whether they are manufacturers, operators or service providers, we would wish success in taking advantage of the wider opportunities that are now open to them. I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Cockfield.)
Lord Weinstock: My Lords, as Machiavelli lay on his death bed (from a condition possibly brought on by

403
a protracted legislative procedure) a priest came to administer the last rites. "My son", said the priest, "you must renounce the Devil and all his works". "My father", replied Machiavelli, "this is not time for me to be making new enemies". Although I hope the allegory is not too close to home, I seem to hear an echo down the centuries of that priest's words. I should like to believe that I do not take too much of a risk today in not responding to them in the same way as did Machiavelli.
I do not like this Bill, and whether or not it is in my best material interests (those interests having been duly declared) I am bound to say so. I do not speak on behalf of GEC, and my views are certainly not derived from GEC's membership of any "charmed circle", as was predictably alleged in another place. Neither is it true that I am part of an unholy alliance with the Labour party and the trade unions; although if such an alliance had existed it would not necessarily be unholy to share the view of those two institutions that the Government are mistaken in what they are doing.
Your Lordships' House has given this Bill long hours of thorough consideration. Noble Lords have tried to be helpful to the Government, while at the same time protecting the public interest. I congratulate noble Lords on the Government Front Bench who have handled these debates with skill and courtesy. I welcome their agreement to place the draft licences before Parliament, and I welcome the handsomely-made concessions of the noble Viscount the Leader of the House with regard to telephone tapping. These are by no means the only matters in which the Government have accommodated the feelings of this House. Another example was the acceptance by the noble Lord, Lord Cockfield, of the amendment to take account of the interests of United Kingdom telecommunications manufacturers.
I mention this particularly because of an article which appeared in the Economist on 21st October 1983 in which it was stated that the noble Lord had, at a Cabinet meeting,
"delivered his view that the sooner Britain ceased to be a manufacturing country the better".
I do not believe that the noble Lord thinks any such thing, and I hope he will reaffirm to your Lordships today that the Government do not think so, either.
The changes undergone by the Bill in its passage through your Lordships' House are not by any means unimportant; but they are not fundamental. The basic fact remains that this legislation is meant to transfer a national monopoly service to private hands, in the belief that this will further the cause of competition and of a free market in telecommunications services. Several noble Lords referred to this delusion during the Second Reading and subsequently, and I will not weary your Lordships with repetition of what was said then and what is anyway so obvious to an objective observer. Ministers have frequently asserted that British Telecom PLC is to be "a normal commercial company", essentially like any other commercial company. It will be no such thing. A normal commercial company does not need an Act of Parliament to make its existence possible, or a complicated and lengthy licence to lay down rules as to
404
how it is to operate, or the appointment of an official watchdog to see that the rules are kept.
The Minister for Information Technology said in another place at column 479 on 10th November 1983 that the draft articles of association of BT PLC,
"differ materially from what might be expected in the articles of a major telecommunications company".
Of course they do; for the simple reason that BT has an immutable grip on more than 90 per cent. of the market.
The last published accounts of BT, for the year 1982–83, are heavily qualified by its auditors. We are given by the press to understand that the accounts for the following year are undergoing treatment, presumably a course of what is these days called "creative accounting" in the profession.
The terms of the licence and the regulatory procedure contained in the Bill amount to what the Minister for Information Technology described in another place as a
"formidable array of protection for the consumer and the customer after privatisation [which will] be reinforced by the licence, the licence conditions and the powers of the Director General".
That appeared at column 405 on 8th November 1983 in another place.
These matters, among others, will have a material, and exceptional, bearing on the value of the shares of BT. It will be of considerable interest to see how they are dealt with in the prospectus; but it is disturbing that the Government propose to take short cuts under Clause 70 of the Bill and to give the Secretary of State a unique exemption from the normal requirements of the law with regard to the placing of shares as it applies to everybody else. When it is all done, the Government will still be the owner of 49 per cent. of the share capital of BT PLC, with certain entrenched powers under the articles of association. The noble Lord, Lord Cockfield, said in Committee that the Government's 49 per cent. holding will have the same shareholders' rights as everyone else's, but that they did not intend to use their rights.
Other noble Lords may have shared my impression that the noble Lord did not deal with this issue with his usual incisive clarity. But what is clear, since no-one else will be allowed to hold more than 15 per cent. of the equity, is that the Government's share of 49 per cent. will constitute effective control of the company, and therefore any future Government will be free to rule BT without resort to renationalisation or other legislation.
Those who contemplate investing in BT PLC will no doubt take these matters into account. But it is less obvious that the apparent concessions to potential competition—partly offered by the Government and partly wrung out of them—will stand in danger of becoming worthless. Imagine that all the ministerial fantasies come to pass and that competitors to BT rise like mushrooms in the night. What will happen to their investments in the cold dawn of a different Administration? The risks are not confined to those who invest in BT. They encompass all who put capital into telecommunications services in the belief that the structure of the Government's policy is durable.

405
The noble Lord, Lord Cockfield, said in Committee that the Government intended to rescue BT from the ownership of
'"an amorphous state corporation".
In his own words, he wants,
"the British people themselves to own an industry of this kind".
That is what the noble Lord said, and that is more or less what has been said on other occasions by the Secretary of State and by other Ministers. Why, then, do the Government retain an American banking house to advise on the placing of BT shares in the United States? Are the British people to be found standing around on Wall Street? And how strange was the Department of Trade and Industry's note of the meeting held in Tokyo on 20th and 21 st June 1983 to which the noble Lord, Lord Stoddart of Swindon, referred during Report stage. It records that officials of the department suggested that the Japanese public and large Japanese firms might provide a market for BT shares—a suggestion, incidentally, which was received by the Japanese authorities with incredulity.
The sale of these shares at a proper price will present considerable difficulties. Indeed, to achieve the issue on any terms which can be called reasonable will not be easy. The newspapers say that the Government propose to spend £8 million on promotional material alone in respect of the share placing. This will be only the canap'e—not even the hors d'oeuvre—of what will most certainly be a most expensive feast; including among its courses bankers' fees, brokers' commission and advisory fees, underwriting commissions, overriding commissions, legal fees, accountants' fees, public relations fees, printing costs, and Heaven knows what else. It sounds rather like the aptly-named Dr. Blind in the first act of "Die Fledermaus"—although perhaps a more appropriate theme song would be "Hello Folly" (and I hope that the Official Reporter will remember to write "Folly" with a capital F). But we are not in your Lordships' House today producing an agreeable entertainment—at least not intentionally. We are concerned with a serious matter.
No responsible body of opinion believes that BT PLC will constitute other than a monopoly or that its monopoly powers can be kept under control by Oftel through the proposed licence. If, as Ministers say, competition and liberalisation are their main aims, there is no reason why those aims could not have been achieved without altering the ownership of BT and by enforcing BT's assistance in the developing needs of potential competitors.
No—except for fleeting references to the PSBR, the reasons your Lordships have been given in support of this Bill do not bear the weight of close examination, and it is no wonder that the Bill seems to command so little enthusiasm among Government supporters. What is needed to improve and enhance communications services and to promote competition to that end is a coherent idea of how we can meet our evolving requirements in future years, and to make the best use of our national resources. That is not the route the Government have chosen.
We have not achieved the establishment of technical standards for connections to the main network. The plans for inter-active cable services—at least for the short and medium term—have already degenerated
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for all practical purposes into no more than cable television installations. In cellular radio, there is little prospect of meeting the target set for a national system under the existing arrangements and the promise of the creation of many thousands of new jobs is already clearly seen to be illusory. And every piece of apparatus so far ordered for cellular radio has been bought from abroad.
In satellite broadcasting, the official plans for Unisat are in disarray and those who relied upon them are at risk for substantial sums. In contrast to their substan-tial achievements in other fields, the Government are making a pig's ear of these matters. Ministers have said that once liberalisation is accepted, privatisation of British Telecom inevitably follows. This proposition is nonsensical. The object of privatisation, in a single step and at a proper price, is in blatant conflict with the objective of promoting competition. The Government's answer to this dilemma is the regulatory procedure and Oftel. British Telecom themselves appear to be in favour of privatisation if the regulatory procedure is not onerous; they do not expect Oftel to bother them unduly. But if the regulatory procedure is not onerous, it will not work to bring about effective competition—even if that was a practical possibility under the terms of this Bill.
This Bill will not fulfil the Government's stated objectives, but it will no doubt go through all the same and we will all have to do as best we can with it. For the director genera! of Oftel, however, it will impose an horrific burden, requiring the qualities of a quite senior deity. Where is such a paragon to be found? Who better for the Government to turn to than one who understands this matter so thoroughly and whose experience as a senior officer in the Inland Revenue and as chairman of the Price Commission makes him uniquely qualified? In the unlikely event that the post is indeed offered to the noble Lord the Chancellor of the Duchy of Lancaster, I am prepared to lay, for those of your Lordships who like a wager, considerable odds against his accepting it.
7.27 p.m.
Lord Spens: My Lords, I hope that I can now sign off as the chairman of our liberalisation group. In doing so I should like to thank the members of our group for the help and support they have given. Sixteen members have contributed to our debate—and that is not including the noble Lord, Lord Weinstock, with whom we have kept in close touch. I want to thank also the Ministers on the Front Bench for their acceptance of some of our requests and their forbearance— particularly towards me in my anxiety to ensure that the director general of Oftel shall have a positive duty to tackle anti-competitive practices.
I must particularly thank the noble and learned Lord the Lord Advocate for his detailed letter to my colleague the noble Lord, Lord Mottistone, which has since been published as a Written Answer in the Official Report of 22nd March. That Answer sets out in great detail how this business of tackling anti-competitive practices may be achieved. I suggest that all noble Lords should read that Written Answer.
There are three matters which still worry me. The first concerns the question of flexibility. Will the Bill

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prove sufficiently flexible to cope with the speed of development, new inventions and technological change? I raised this point in my very first amendment in Committee and was told that the Secretary of State could not be given such wide powers as would allow him to create new functions for the director to cope with situations which may come upon us in the future. I am a little worried now because is that not something of what we shall be asked to do in relation to the rates Bill? Although I am not saying that I am opposed to the rates Bill, it is a pity that we could not have something of that kind in this Bill, to enable flexibility to be carried on.
Secondly, who is going to plan the strategy for future developments in the industry? Is this just to be left to the market place? If so, it will be dominated by British Telecom and we shall not get very far. I should like to suggest to the noble Lord that he consider possibly linking up with the Alvey directorate some form of body which can study the future strategy for this industry, which is going to be involved so much with information technology and its conveyance to commerce and industry.
Thirdly, the licence. We have to wait to see what is going to be in that and I hope we shall be given the opportunity of having a good debate on its contents. With that, I wish the Bill well and again thank the Front Bench Ministers for what they have done.
Lord Lloyd of Kilgerran: My Lords, in the spirit of bonhomie which descended on the Chamber when the noble and learned Lord the Lord Chancellor took his seat on the Woolsack, may I thank the noble Lord the Chancellor of the Duchy of Lancaster for his kind reference to myself. I should like to thank him and the noble and learned Lord the Lord Advocate for their constant patience and courtesy, coupled with the assistance, of course, of their colleagues the noble Lords, Lord Glenarthur and Lord Lyell.
May I say to the noble Lord the Chancellor of the Duchy of Lancaster that I shall remember with increasing delight how he often supplemented his rather inadequately drafted replies with his charming, piquant and even Victorian form of rhetoric. Referring to drafting replies reminds me, and I hope it is not considered inappropriate, that I would personally like to thank those silent members behind the scenes who, often at short notice, prepared replies to our amendments; many of us have been sometimes surprised at the speed with which they have passed written notes to welcoming Ministers in this House.
In conclusion, we on these Benches have spoken sincerely, mostly in the spirit of constructive opposition, and I think I agree with the words of the noble Lord the Chancellor of the Duchy of Lancaster, which I paraphrase, that at least one thing is clear arising out of your Lordships' proceedings: this Bill will leave your Lordships' House a far better Bill than it was when it came to us.
Lord Molloy: My Lords, may I briefly say a word of thanks on behalf of the various associations for the disabled and, indeed, for the disabled themselves, for the magnificent support I had from this side of the House and for the generous response from the
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Government Front Bench. May I in particular mention the noble Lord. Lord Lyell, for the extraor-dinarily good speech which he made and which gave a vast amount of contentment to the blind as well as to the hard of hearing. I thought it was a remarkable response to my submission. It was so good that I am doubtful whether I ought to make submissions which I know he is to answer. Nevertheless, on behalf of the various associations for the disabled in our country and, as I said, for the disabled themselves, I thank all noble Lords in all parts of the House, and the Government Front Bench in particular, for the generous and kind review which they gave of our submissions and for the help we had from them.
Baroness Macleod of Borve: My Lords, as I was mentioned by my noble friend Lord Cockfield, I should like to thank him and the whole of his team very sincerely, and not only to thank them but to congratulate them on getting this splendid and important Bill through your Lordships' House. The noble Lord, Lord Molloy, mentioned the disabled but I should like to mention those in rural areas, the disabled, the blind, and those of pensionable age, to all of whom the Government have given way, perhaps due to persuasion from all sides of the House and have acceded to our requests on amendments. I should like to thank my noble friend for mentioning me and for all the work he has done on our behalf.
Lord Campbell of Alloway: My Lords, very briefly, may I thank my noble friend the Minister for such measure of flexibility as he was able to afford having regard to the rigidity of the drafting structure of the Bill. May I also thank him for his free dispensation of indulgences for those afflicted with spasms of heresy and to welcome the spirit of this Bill.
May I raise three short questions? They are matters that have been canvassed during the pasage of this Bill but have not been resolved. The first is: how shall my right honourable friend proceed to secure that there is real competition, and how shall would-be cable operators be safeguarded against their manifest fears of abuse in the licensing procedures? Secondly, as this question that I have raised impinges on the concept of justice between man and an agency set up by the state, is it not essential that a code of practice should be prepared and issued prior to Royal Assent? Finally, is it not a matter of concern to Her Majesty's Government that as regards due administration, in this regard justice should not only be done but be seen to be done? Perhaps my noble friend the Minister might make some valedictory signal.
Lord Bruce of Donington: My Lords, at this late hour it would not be appropriate for me to ask the noble Lord, Lord Cockfield, a series of rhetorical questions which the traditions of this House would prevent him from answering at this stage of the Bill. What I wish to do is associate myself with the remarks that he made about the very fine job of work that all Members of this House have sought to do on this Bill. I have always held the view that the main function of the House of Lords, on the assumption that it concedes that the will of the other place must always prevail, is to act as a revising Chamber. I am bound to say, although I have not been altogether satisfied with

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the response that has been available to some of the amendments that I and my colleagues have put forward, that in my view the House has done a very good job indeed, of which it can be very proud. It has given this Bill sustained attention over a period of about 10 working days and it must have been very tiring not only for the noble Lord but also for the staff who have supported him throughout.
I come to the other function of your Lordships' House, to which I have always paid public tribute. It is the second forum in the United Kingdom in which public debate on matters of national issue may take place. There is, of course, the other place, which is one forum, and the other forum is this House. It is my hope that this House will continue to be one of the two national forums in which public debate takes place. It would be a great shame if either of these two national forums was to disappear.
In that spirit, and on the basis that I am now in the arena of the forum, I am bound to tell the noble Lord that this is a very bad Bill. It is very much better than when it entered, but it is still a bad Bill. It was badly motivated; the political motivation was wrong; even the financial motivation was wrong. But there it is. We have done our best to improve it. To end on a spirit of concord with the noble Lord opposite, and in order that I shall not disappoint him, may I say that immediately we are returned to office we shall undo all the good work he has performed on the Bill.
Lord Orr-Ewing: My Lords, I add my feelings to the euphoria and wish to thank everyone for their courtesy and patience. With the help of the Public Bill Office I counted that we have passed 300 amendments. That is a formidable array, and must be close to a record for this House on a major Bill. If I could add one group of people to those who should be thanked, it would be the Public Bill Office. They have shuffled all these amendments, and many more, into order and presented them to us very punctually. I must add one caveat. The trouble is that we have really not had much manoeuvring space. The Government had made certain patterns of near monopoly in both the network and in cellular radio, and there was nothing that we could do to change that. It is sad that we have not made the situation more competitive.
We as a group—and I speak as the honorary secretary, Lord Spens being our chairman—have concentrated on three or four areas. Briefly, we have tried to give the regulating authority rather more power, because while so much power is concentrated in BT it means that more power must also be in the regulatory authority. Secondly, we have tried to ensure that the DTI makes better use of the scarce frequencies which exist. Clever designers go on being able to sandwich more information down the same radio channel as compared with 10 or 20 years ago. You get more and more information down, but one still has to make the optimum use of the channels. Up till now that has not been done within the DTI. We have also made efforts to move some of the liberalisation measures out of the proposed licence and into the Bill, but we have not succeeded in that area.
During the passage of this Bill we have looked at one of the judgments that the Office of Fair Trading has produced over the past three years on one area within
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British Telecom's remit. I shall not go into the details now, but I hope that Oftel will be more circumspect and much quicker acting, because this took three years to investigate. Three years is a long time, and during that period BT increased its market share from 10 per cent. to 75 per cent. What is sad—and this is typical of an investigation—is that we have no facts to know why it found that there had been no cross-subsidisation. A huge amount of money was spent on television and on other publicity media. We see that every weekend on our television; but I do not know whether that was taken into consideration. Last year £2.4 million was spent just on advertising its paging. Normally, if one has 75 per cent. of the market one does not advertise with that sort of money, because it is very expensive to take a larger share.
I mention this only because we would wish that Oftel will be powerful and manned by people of the right calibre and resolve. The Office of Fair Trading has not quite matched up in speed, economy or findings. I have here a long list of dirty tricks that BT has been up to—20 of them, I think. I am sure that this is not the right place or the right moment to publish them—
Noble Lords: Hear, hear!
Lord Orr-Ewing:—but they exist. I am glad that that is recognised. Later on some of them may be put straight in front of Oftel, which is exactly what it is there to deal with—dirty tricks, or anti-competitive practices.
I want to say one thing about frequencies. I made the case in the Official Report at Vol. 449, cols. 579–580. I shall not repeat it here. I hope that my noble friend will see that the very small private sector which is left to compete gets a fair share of what is available.
I finish on a sad note. I think that the Government have been unwilling to undertake much genuine liberalisation and to create much genuine competition. They have been deliberately preserving, and even strengthening, the BT monopoly. We now learn that it is likely to have about 98 per cent. of the market, leaving only 2 to 3 per cent. for the beloved network, Mercury. No competitors will be allowed in until 1990, so BT has a very long run. One very large consortium was going to apply, spend £500 million and create all the jobs that went with that, with a very advanced technology. It has gone overseas, and, of course, the jobs have gone there with it.
The Government are willing to secure assets and frequency channels—and have been over the past 25 years—for the 47 or so companies which have pioneered and made the pace. What is sad is that when the Bill is through, complaints are likely to go to the EEC courts and perhaps even to the United States courts. We must remember that BT has now entered the United States and is working there. Therefore, it will be subject to all the very powerful anti-monopoly legislation of the United States. It will be more difficult to market its shares if it has a lot of court cases hanging over its head.
It is sad that British technology will not be given the opportunities that it might have been given. It is sad that the private sector companies which have

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pioneered for 25 years have not been given the chance. This has not been written in. I can only hope that the jobs that go with them will be given an opportunity by this Government. Administration can do what this Bill has failed to do. I therefore wish all those who are working in British Telecom—and there are 250,000 people—well for the future. May they succeed in the private sector. When the monopoly is broken, they will have the opportunity at least of sacking their boss and of going to work for someone else. That is one of the freedoms which is essential.
Lord Cockfield: My Lords, I value and appreciate the tributes which have been paid, not just to myself but, more importantly, to my noble friends who have shared the Front Bench with me. I am precluded, as the noble Lord. Lord Bruce of Donington, said, from replying to Second Reading speeches which have been made, including the relevant portion of the noble Lord's own speech. I shall study everything that has been said and on specific points I shall write to the noble Lords who raised them.
On Question. Bill passed, and returned to the Commons with the amendments.

Roads (Scotland) Bill [H.L.]
7.46 p.m.
Lord Lyell: My Lords, on behalf of my noble friend the Minister of State. Scottish Office, I beg to move that this Report be now received.
Moved. That the Report be now received.—(Lord Lyell.)
Lord Lyell: My Lords, 1 believe that it would be for the convenience of your Lordships, not least the noble and learned Lord upon the Woolsack, to deal with the two Motions on the Order Paper before continuing with the Report stage of the Roads (Scotland) Bill.
Accordingly, I beg to move that further consideration on Report be now adjourned.
I understand that it is intended to resume consideration on Report at approximately 8.30 p.m. I hope that that will give noble Lords some guidance.

Public Records (Commission for the New Towns) Order 1984
7.48 p.m.
The Lord Chancellor The Lord Chancellor rose to move, That the draft order laid before the House on 5th March be approved.
The noble and learned Lord said: My Lords, I rise to move the Motion of approval standing in my name on the Order Paper. Perhaps I may say that, with permission, I shall speak to the two Motions in my name, but of course the Questions will have to be proposed separately. The new towns Motion has
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already received the approval of another place. The other place has a slightly different procedure from ours, and the position about the British Rail Motion is that it has been before their Standing Committee but has not yet received Commons approval on the Floor of the House, which I believe is expected on Monday.
The records concern the Commission for the New Towns and the British Railways Board. Neither of these groups falls within the definition of a public record, which is set out in the schedule to the Public Records Act 1958. It has been decided that certain records in each of these bodies should now be treated as public records, and the only way in which this can be achieved under the Act of 1958 is by an Order in Council and that Order in Council has first to be approved in draft by Parliament.
The first draft order concerns the Commission for the New Towns. The records referred to consist partly of the records of the development corporations which were transferred to the Commission prior to their dissolution, and the remainder of the Commission's own records. These are records relating to the development of new towns, and thus are records of an important development in social history and as such, I hope it will be agreed, ought to be clearly preserved as part of our national collection.
It is not intended that this order should cover the records of the new town development corporations themselves since such a requirement would conflict with the discretion conferred on the Secretary of State for the Environment under paragraph 2(1)(a) of Schedule 10 of the 1981 New Towns Act, as to their disposal. In the normal course, a corporation's documents would be transferred to the Commission when the corporation is wound up and then they will then be treated as part of the Commission's present records.
The second motion relates to the records of the British Railways Board which the Board has already transferred or will in future transfer to the Public Record Office. The 1968 Transport Act dealt with the transfer and disposal of historical records and relics belonging to the British Railways Board. These were sent to the National Railway Museum in York. A collection of the records became the responsibility of the Public Record Office, and in 1977 these were deposited at Kew at the office there. But they are not at present in the strict sense public records. Technically they form a private collection, in the control of the Public Record Office. It is desirable for two reasons that they should be made subject to the Public Records Act and public records.
The two reasons are as follow. First, Section 42 of the Copyright Act 1956 exempts the Keeper of the Public Record Office from infringing copyright but only when the records are public records. It therefore follows that there is a technical breach of copyright every time he allows a researcher, with whom these records are extremely popular, to copy them. Secondly, the agreement with the British Railways Board to transfer the records to the Public Record Office was not made under the Public Records Act, and it is desirable that all the records should have the full protection of that Act.
Your Lordships may notice there is one exception provided for in this draft and that relates to the personal records of staff. The proviso in the draft order ensures that personal records do not become public records until they are 75 years old. By that time their sensitivity will have evaporated and they can then become public records in the main collection. I understand that on signing certain undertakings, researchers are in fact allowed access to these records but the undertakings preserve the sensitivity of the records.
There have been I believe some articles and correspondence in several publications recently on the archives of the British Railways Board. This order is not made as a result of that correspondence, and it is not for me to discuss the archives. But I would point out that the effect of this order will be to guarantee the status and preservation, as public records, of many railway records.
When the order was debated in the standing committee in the other Place, my honourable and learned friend the Solicitor General was able to announce the intention of the British Railways Board to set up an advisory panel, and this advisory panel whose composition was disclosed by my right honourable and learned friend will ensure that the remainder of the archives are disposed of among those organisations which have an interest in their preserva-tion. I hope in fact that the advisory panel will be able to prevent some of the matters for criticism which have been publicly ventilated. With that explanation, I hope your Lordships will agree that these orders are uncontentious. I ask the House to approve them accordingly. I beg to move the first of the two motions standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 5th March be approved.—[The Lord Chancellor.]
Lord Teviot: My Lords, I am most grateful to my noble and learned friend for moving these orders. On the order regarding new towns I have nothing to say but praise. Railway records, however, is a subject that has raised some considerable comment, concern and even disquiet in the press and elsewhere recently. I have done my humble best to understand the complexities of the question and will therefore put forward a view as to how I see the situation as it stands at the moment, and make some suggestions as to how this problem can be put right in the future.
This order, as my noble and learned friend has said, formalises arrangements already in practice, which have been made by the British Railways Board and the Public Record Office. I am afraid I consider it regrettable that legislation does not go far enough as I feel it would have been desirable if British Railways had become a statutory record producing body under Section 3 of the Public Records Act, in the same way as the National Coal Board and the Civil Aviation Authority. I, too, have read with much interest the debate in the Standing Committee in the other place on this order. Many valid points were made which although I may touch on and develop I will not repeat in depth. The purpose of my intervention here is to ouline the practical implementation of some of the proposals as well as outlining some of their weaknesses.
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I shall begin by referring to the importance of the advisory panel as proposed by the British Railways Board through my right honourable and learned friend the Solicitor General and indeed my noble and learned friend this evening.
In the absence of statutory legislation, this advisory panel will play a crucial role. Therefore I should like to put forward certain criteria for ensuring that it can fulfil its public role effectively. First, I urge the need for an early starting date in order to allay the obvious public concern. Secondly, I consider it would be important for an independent chairman to be appointed to this panel who can have the services of an independent secretariat. Thirdly, this advisory panel must not be confined to considering minor historical records as already stated. Indeed, it must be seen to have the role of a watchdog over this whole process of securing our national railway heritage in the form of the paper records. In mentioning paper records, I also include photographs and other such material.
Fourthly, I should like to elaborate on the membership. The British Railways Board have suggested a number of obvious bodies to be represented which are acceptable, but I notice there is nobody specifically representing the paper record of railway history. The fifth point—and your Lordships will be pleased to know that there is only one more after this—is that this panel publish an annual report of its proceedings with copies to be deposited in the Libraries of both Houses of Parliament.
My final point is that this advisory panel clearly needs a basis of information so that it can make a constructive decision on this matter. I should like to suggest that the investigation, which was begun privately by Dr. Peter Lewis and Mr. David Challis must continue with the sanction of the British Railways Board and the Lord Chancellor's Office to provide this information. So far, this investigation has yielded very helpful replies from both the Public Record Office and the Scottish Record Office. I apologise to my noble and learned friend for not giving him prior notice of these matters and appreciate that it would be impossible to reply to them today. But I should be grateful if he could write to me after he has considered these proposals fully.
I do not in any way intend to attack the British Railways Board for the handling of this matter. I must say I was most grateful for their invitation to me to go and see them. The meeting was most useful. Equally, the Public Record Office again has been most helpful. Nonetheless, it is quite clear from these discussions, and others that I have had with interested parties, that the current situation and the situation that will persist, shows that this order has serious deficiencies that leave me with a feeling of concern.
First, the identification of items for potential disposal. Because the initial selection of these items can be made by staff who cannot be expected to have an adequate knowledge of railway history this process can lead to material not being made available for Public Record Office inspection. Secondly, the current situation whereby the Public Record Office makes a selection of material that is offered does not allow for it to recommend material which it does not require to be sent to public repositories except at the National Railway Museum at York.

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May I suggest that any new arrangements must give the PRO authority to advise these other public repositories that material suitable for them is being disposed of. For example, the Welsh Industrial and Maritime Museum—about which I am sure we will hear from the noble and learned Lord opposite—gives information to part of the National Museum of Wales but does not at present have any right to be offered material relevant to the very involved history of Welsh railways. Items that would be of considerable interest to local record offices are currently to be found on the shelves of Collector's Corner at Euston, and I beg leave to suggest that the sale of paper records should be stopped forthwith at this establishment until such time as the advisory panel can make a full reappraisal of the contents there.
Finally, I appreciate that I have hurled a lot of "meat" at my noble and learned friend at short notice, and I hope that he will forgive me for doing so. Also I hope that I am in order in making other comments. I should like to express my sympathy with my noble and learned friend and the staff of the Public Record Office over the sad situation at Kew. I feel that although it is inconvenient for many members of the public, the office should be reopened later rather than sooner and not until all the authorities are satisfied that the problems of the building are solved.
Lord Elwyn-Jones: My Lords, I rise to support the orders that are being moved and to express our gratitude that they have come forward. But I am bound to say that I share the concern and anxieties about the practical implication of what is intended expressed by the noble Lord, Lord Teviot, who is a tiger in these matters. My mind goes back to long ago and I recall the noble Lord's role over the years; it is good to know he is still active in this way.
The maintenance of public records and records such as those relating to the new towns and to railways old and new is a very important part of the fabric of our social history, and it is a good thing that probably there is more concern about the maintenance of public records now than there has ever been. To my mind that is a mark of maturity in our development.
I think that the first order, relating to new towns, is a very valuable one. My own recollection of new towns is that a large number of my constituents in West Ham and the East of London were given shelter and a new hope of life there from the squalour and difficulties that followed the Blitz and years of neglect in the poorer parts of our cities; that was, I fear, part of the pattern of our civilisation. So it is good that those records are available for the social historian and for the rest of us.
As to the second order—the Public Records (British Railways Board) Order—I hope that I shall not be accused of mere provincialism if I indicate, as the noble and learned Lord has suspected would be the case, that my interest is particularly in the records of Welsh railways. I am happy to be involved with the Welsh Industrial and Maritime Museum in Cardiff. It is a most admirable museum, which I commend to the public, and its mandate is to record and, wherever possible, to preserve the industrial and maritime history of Wales. I have had anxious correspondence
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from the curator, Dr. Geraint Jenkins, in regard to the position which, at any rate up until now, has existed. He states, for instance, that the Public Record Office will accept only a representative 10 per cent. of the records in a collection which it has been offered. He suggests that, so far as railway records are concerned, the remaining 90 per cent. may be offered by the British Railways Board to the National Railway Museum in York, or to the commercial outlet, Collector's Corner, at Euston, where they may be sold to the general public, or they may be otherwise disposed of or destroyed. But at any rate it is reassuring to know from the responses of the board to those anxieties that there is at least an awareness of the existence of the records. How far the new machinery will be effective we shall have to see.
The noble Lord, Lord Teviot, certainly suggested— to use an unattractive but useful phrase, the "beefing up" of the advisory panel in various ways. I hope that consideration will be given to that—and I suspect that it can be done administratively without the need of legislation—in order to be sure that the records of this fascinating part of our history may become available to students and members of the general public alike.
There is of course a real enthusiasm for railways, especially for the good old days of the steam engine, and for the Great Western Railway, on which my noble friend Lord Elystan-Morgan and I depended so many times, over so many years. There is a great fascination, not only in boyhood but in later life, for what has gone on in railways, for their creators, and for the laying down of the railways. Accordingly, I hope that the practical points that the noble Lord, Lord Teviot, raised will be given serious consideration. I agree with him that at this hour and without notice it is a little unreasonable to expect the noble and learned Lord the Lord Chancellor, fascinated as he, too, is by railways, to give us a full explanation and account. But there is anxiety in Wales, which I hope will be allayed sooner rather than later.
8.6 p.m.
The Lord Chancellor: My Lords, I should like to thank both my noble friend and the noble and learned Lord for the gracious way in which these Motions have been entertained. I should particularly like to thank my noble friend for the reference to the unhappy state of the present office in Kew, which is not of the making of the staff, nor indeed of the Lord Chancellor, and which has caused me very great unhappiness and concern. I shall of course take advice on the subject, but it is certainly not my intention to let people in—either the staff or the public—until it is safe. Apparently the microbes are stacked up somewhere in the water supply and until it is safe I really do not think that I can do anything other than keep it shut; but I shall take advice about that.
As regards the railways, the records of the railways are of course a very important part of our national history, but they are quite different from the records of central government in this way. Some of them have a peculiarly local historical orientation; some of them are technical. It is a much more heterogeneous collection than the ordinary items which go into the PRO, and as I recounted rather briefly in my opening speech, the original idea was to send them all to York.

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It was only after a while that people came to realise that there were quite unique and nationally important records which had to be placed in Kew in order to meet the very natural national interest in them.
There is no possibility at all of the Lord Chancellor being in a position to sort out these records. That I think will be understood. Indeed, as the noble and learned Lord probably knows from his experience, the position of the Lord Chancellor in relation to public records is a singularly embarrassing one. He does not himself select the 1 per cent. of the public records which are preserved. He does, of course, close them for determinate periods of time. He tries to stop them from being clawed back, so far as he can, but he has only limited powers to do so; and in the meantime he does his best. Whether he was ever the ideal person to be in charge of the Public Record Office, his position there was consecrated by the report of the Wilson Committee. I do not think that I can go behind them this evening, at any rate.
The truth is that I am the guardian of the national archive. There is a constant coming and going between various places of disposal where primarily local records are released from the public records by my permission. There is equally the cross-current of local records which it has finally been decided are public records—the class of thing with which we are really dealing this evening.
It is, I think, quite interesting that these are, I believe, the only Orders in Council which have ever been put forward under the Act, although I may be wrong about that. At all events, I shall try carefully to see that what my noble friend said about the composition of the advisory panel, which is not my personal responsibility or my departmental responsibility, is brought to the attention of the British Railways Board and my right honourable friend the Secretary of State for Transport. I shall try to see that the noble and learned Lord's anxiety about the Welsh records is considered very carefully by those responsible. I shall see whether, in two letters, I can allay some of their anxieties, and I thank them for their useful suggestions. With that, I beg to move.

Public Records (British Railways Board) Order 1984
The Lord Chancellor: My Lords, I beg to move.
Moved, That the draft order laid before the House on 5th March be approved.—(The Lord Chancellor.)
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
[The sitting was suspended from 8.11 until 8.30 p.m.]

Roads (Scotland) Bill [H.L.]
Further considered on Report.
Clause 1 [Powers and duties of local roads authorities]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 1:
Page 1, line 8, leave out ("local roads") and insert ("highway").
The noble Lord said: My Lords, I think it should be noted that it is just after half past eight and here we are starting a very important Scottish Bill. I do not know when the Government think that we should rise, but I trust that it will be by half past ten. I can give the noble Lord due warning that I have complained about the treatment of Scottish business in this House before. It is quite scandalous that a Scottish Bill should come on at this time on a Thursday night and I duly give the noble Lord notice—and I am not going to hurry up anything that I want to say, because Scottish legislation deserves to be fully examined—that if the Government do not respond and say that we are going to finish at half past ten tonight, come what may, I am going to finish at half past ten tonight come what may.
Lord Denham: My Lords, I hope that the noble Lord will forgive me, but arrangements about the business are made through the usual channels, and it is very much better that it should be left that way and not discussed across the Floor of the House. I think that the noble Lord will realise that we had a Third Reading debate which took rather longer than we all anticipated. I do not think that it is useful to have this type of discussion across the Floor of the House.
Lord Ross of Marnock: My Lords, it may not be useful, but I think that the public in Scotland will be interested in what happens to Scottish business. I trust that the Government spokesman will realise that at one time the Scottish business was the first business on this day when we first arranged these things. Be that as it may, let us come to the first important amendment.
The noble and learned Lord the Lord Advocate will well appreciate that I am no great friend of this Bill. In fact, we could have done well without it, and I still suggest to him that he loses it between this place and another place. It is not all that important and we would lose nothing at all by taking that course.
I should get a vote of thanks from the Government for tabling this amendment which seeks to remove the words "local roads" and insert "highway". If we took that course it would certainly improve Scottish legislation considerably and ease the work of those who have to deal with Scottish legislation, because we would be saving the Government from the endless consequential embarrassment as regards what has been a misguided decision on the part of the Government.
The fact is that the Government had to make changes in the roads legislation following the reorganisation of local government under the 1973 Act. That was nearly 12 years ago. This Bill was to follow on after the Civic Government Bill which was affected in the same way and which also was a pretty lengthy Bill. Then there was the Transfer of Functions

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Bill, which is now an Act of Parliament, and which also deals with the functions of local government. New and desirable amendments were needed in respect of roads legislation in Scotland.
Then someone—I do not know who—probably had the bright idea of lumping them all together and doing a bit of modernisation at the same time. The noble and learned Lord the Lord Advocate—a very naive politician and not exactly experienced in the ways of Parliament and the wiles of civil servants—said, "Well, that is quite a good idea; let's carry on". So they decided that they would do something along these lines and that they would get rid of things like highways. It is not a strictly very modern term, but everyone knows what it means and everyone in local government knows about the highways department. The whole matter progressed from there.
I ask the noble and learned Lord the Lord Advocate to look at Schedule 8. At the end of the last stage of the Bill the list of amendments had grown from 25 pages of minor and consequential amendments to 46 pages. If we look at the Marshalled List today we find that there are to be another 18 pages of amendments added to the schedule. So we have had nearly 60 pages of amendments for one schedule, and what does it do? Wherever they can find a Bill—and they have not found them all yet—where it says "highway", out it goes and in goes "road". Whenever they find the word "street" out it goes and in goes "road".
I remember asking the Government what they were doing about United Kingdom legislation which mentioned the word "highway" as regards both Scotland and England. Of couse, we eventually started trawling through those provisions and there were a considerable number of amendments. As far as I can see, so far they have trawled through about 62 Acts. That was the situation at the conclusion of the Committee stage. Then there were the sections to be repealed. I think that 11 whole Acts were repealed, and the 49 Acts involving repeal are all listed in yet another schedule.
It is quite crazy to interfere unnecessarily with something that everyone understands, and to throw us into this muddle and confusion which even the Government are experiencing—as I could show if we had time tonight—in respect particularly of some of the changes that they propose to Schedule 8. Let us get back to "highway".
It is interesting to see what has been done—for example, the 1972 Act, Chapter 20, Section 37; or the 1981 Act, Chapter 14, Section 88(2); and Schedule 7 paragraph 13. There is one thing in relation to "highway" that still exists, unless we are going to change it because "highway" is a tainted word. We still have the Highway Code. What will it mean in Scotland after we get rid of the word "highway" from all of our legislation? Will it be called the "Rules of the Road Code" in Scotland and the Highway Code in England? That may well be so before we get finished with the Bill in another place. I can assure your Lordships that it will not start at half past eight at night; it will start at half past ten in the morning. I cannot see the Government having the brass neck to guillotine this type of Bill. They might even try it; they are in such a hurry to get it—it is so important.
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I can assure the noble and learned Lord the Lord Advocate that we could talk for months on this Bill and introduce new clauses and new ideas in respect of roads, even as the Government have done in this Bill. It all stems from the strange idea that, as well as doing what is necessary in relation to Scottish roads—that is bringing them up to date in relation to the re-organisations of local government—and doing what is desirable (that is, the new sections which have been introduced) because they have started on this innovatory modernisation, they have made an impossible task for the draftsmen. No doubt the draftsmen invited it on themselves. I am wondering whether there has been an MSC project around Edinburgh and they have taken on about 25 draftsmen in order to get through this.
It has been a long time between the Committee stage and the Report stage, which is simply due to the amount of work involved in this, and it is not finished yet. I think that it is quite wrong that we should have spent our time and used draftsmen's time, which is absolutely necessary, on this matter. Time and time again we hear noble Lords talking and complaining about the draftsmen. I do not know how the printers feel about the kind of material that they are receiving at the present time. I think it is a complete waste of time.
There should be priorities in relation to the Scottish Office. If we had gone back to using "highway" we would have saved ourselves a great deal of trouble, and we still would if we left "highway" in the Bill. I even received a letter from a local authority which still referred to "the highways authority". Having spoken about the highways authority for a long time, they were quite happy with it. Everyone knows what "highway" means. But we have to get rid of it—in some places.
I have also got rid of the word "public". What does that mean? It means that there will be only one highway authority, which is the local authority with the responsiblity for highways. It means that we shall not have this nonsense of proclaiming the Secretary of State as a "roads authority". The Secretary of State is the Secretary of State, and he has taken unto himself functions in respect of special roads. That is another point. If we modernise, we quickly discover that nobody knows what a special road is. Ask anyone in Scotland, and they will not know what a special road is. In this modernised legislation we are to keep special roads. What is a special road? It is a motorway. Then why do we not call it a motorway? Therefore, I think that we can cut out the Secretary of State as being the roads authority. He can exercise the functions that are given to him, and which have been given to him, in which he was never called a roads authority.
Therefore, if we accept this amendment it will not exactly throw us back to where we started, but we shall go a good way towards it, and in doing so we shall get rid of much of the nonsense that is presently in this Bill. I beg to move.
Lord Mackay of Clashfern: My Lords, as the noble Lord has explained, his purpose is to change the structure of the Bill, which I tried to explain at some length earlier. The proposal to employ the new terminology was widely canvassed and was accepted as

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desirable by many organisations, including those most closely affected, such as the roads authority itself and the police.
In view of what the noble Lord said on earlier occasions, on the basis of the common use, as it were, in Scotland, I have had a look at this. I see that the appropriate departments in Strathclyde, Tayside, Grampian, Central, Borders, Dumfries and Galloway and Highland are called the roads departments. The only department that is referred to as the highways department is in Lothian. It does not matter much which word one chooses, so long as one sticks to it consistently, and we have sought to do that in all the places where it is appropriate to be consistent on this matter.
Accordingly, I hope that your Lordships will not think it right to change the word at this stage. The time is clearly ripe to adopt a simple, comprehensive, unambiguous term for Scottish roads law, and what better than "road"? To be consistent and to accord with the nomenclature already used by most regional councils, the authorities responsible for roads should be called "roads authorities". Although I appreciate my naivety, and so on, to which the noble Lord kindly referred, perhaps he would be kind enough to withdraw the amendment.
Lord Hughes: My Lords, had the Government know in advance how many changes would have to be made in legislation which already exists because of this desire to standardise on the word "road", I wonder whether they would ever have embarked on the Bill at all? It is quite obvious that the changes are very much greater than they ever anticipated, considering the number of amendments to existing legislation made at the last stage and the ones being made in amendments tonight.
Having said that, I wonder whether there have been any problems created in Scotland in the adminis-tration of roads because we have a road, a street, a highway or any other variation? I spent more than a quarter of a century in local government, I am not aware that at any time the local authority of which I was a member had any difficulty because it was administering roads, streets, avenues, lanes and so on. Given the unwillingness of governments generally to abandon their legislation, I cannot help thinking that it would be a great deal easier at the end of the day if this Bill just disappeared and in due course something much simpler took its place.
Finally, on this point, I was rather interested in my noble friend Lord Ross saying that the noble and learned Lord the Lord Advocate was a naive politician. On Tuesday he was giving some advice to the Minister of State for Scotland. He certainly does not have to give him any advice on this Bill, because the Minister of State had enough sense to keep out of it.
Lord Ross of Marnock: My Lords, I appreciate the desire of the noble and learned Lord the Lord Advocate that I should withdraw this amendment. He says that everyone agrees with him. I have a letter here from the Society of Directors of Administration in Scotland, and that letter does not talk about a roads authority; it talks about the "highways authorities".
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Old habits die hard. Will the police call their patrols "road patrols" instead of "highway patrols"?
The noble and learned Lord the Lord Advocate has not answered my point about the Highway Code. Once the name Highway Code goes out of Scottish legislative parlance, it will not mean a thing. Can the noble and learned Lord tell me why the Government have not made these changes in the United Kingdom Road Traffic Acts in relation to the Highway Code, and why that has not been changed? What is the point of changing 99.9 per cent. and leaving the other 0.1 per cent? Or did they realise, when dealing with this, how silly they had been in getting into it?
I do not mind getting rid of "turnpikes", although it is interesting to note that the word "carriageway", which does not exactly have the tang of modernity about it, still remains. It has managed to escape the wiles of the draftsmen—probably because they could not think of any term to replace it. It is still there, despite the fact that it was in the 1839 Act, which is one of the first Acts that we mentioned. We trolled through Acts from about 1839 to 1982. That never worried anybody. The result is that we have these 46 pages of Schedule 8 which, by the time we are finished tonight, will be about 65 pages. Why is the Highway Code left, and is it the Government's intention, either during another stage of the Bill or later on, to get rid of it before we finish with "Mackay's monster"? And it is! I described it before as a "moger". (If anybody wants to know how to spell it, he or she can spell it as it sounds.) It is just a Scottish expression which cannot be bettered for a description of this kind of Bill; an absolute "moger". I cannot withdraw it.
On Question, amendment negatived.
8.50 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 2:
Page 2, line 11, leave out from ("the") to ("; and") in line 13 and insert ("frontagers of that road").
The noble and learned Lord said: My Lords, with Amendment No. 2 it would be for convenience if I could speak also to Amendments 14, 16, and 69 [63].
Amendment No. 14: Page 14, line 39, leave out subsection (8).
Amendment No. 16: Page 15, leave out lines 24 and 25.
Amendment No. 63: Page 91, line 9, at end insert—
(" "frontager", in relation to a road, means the owner of any lands and heritages fronting or abutting that road;").
These amendments arise directly from my undertaking to the noble Lord, Lord Hughes, during Committee when I agreed to consider whether the definition of "frontager" would be more appropriately located in the interpretation clause. Having considered the matter, I see the force of what he was proposing and I hope that these amendments, which delete those definitions of "frontager" in the body of the Bill, insert it in the interpretation clause, and rephrase the text of Clause 1(4) in accordance with the definition, will be satisfactory to the noble Lord.
Lord Hughes: My Lords, I am grateful to the noble and learned Lord the Lord Advocate for having made these changes. My only regret is that he did not find it possible to get away from "fronting or abutting". Incidentally, by a slip of the tongue the noble and learned Lord named the last amendment to which he was speaking as 69. It is of course 63.
Lord Mackay of Clashfern: I am obliged.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 3:
Page 2, leave out lines 16 to 18 and insert—
("and, where any representation is made within 28 days after the requirements of paragraphs (a) and (b) above have been fulfilled, the authority shall consider that representation:").
The noble and learned Lord said: My Lords, during Committee stage the noble Lord, Lord Hughes, asked that the drafting of this phrase be reviewed. I have reconsidered the structure of the sentence and trust that the amendment meets the point that the noble Lord was making. I beg to move.
Lord Hughes: My Lords. I am content.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 4 and 5:
Page 2, line 21, leave out ("or").
line 23, after ("Act") insert ("; or
(iii) any deletion on transfer of such a road to another roads authority,").
The noble and learned Lord said: My Lords, with the leave of the House I should like to move Amendments Nos. 4 and 5 en bloc. The Bill provides that a roads authority prior to making alterations to their list of public roads must publicise their intentions except in two cases where publicity procedures would be excessive. These amendments provide for a third situation—the transfer of a public road from one roads authority to another. As such transfer would not affect passengers or road users, I am sure your Lordships will agree that this exemption would be appropriate. I beg to move.
Lord Ross of Marnock: My Lords, can the Lord Advocate give us any information of how often this has arisen, and has there been any trouble about it?
Lord Mackay of Clashfern: My Lords, with the leave of the House, I am not able to say how often it has arisen. The noble Lord will appreciate that it is a possibility that has to be taken into account that a roads authority, for example the Secretary of State, would arrange to transfer the responsibility of the road from himself to a local roads authority, or there might be a change from one local roads authority to another. It does not seem appropriate to have advertisement at that stage, and accordingly this amendment deals with a possibility that might arise, and it seems right to do so.
Lord Ross of Marnock: My Lords, that was inviting information before the Lord Advocate was seated. I shall now proceed to speak on the matter. He gave me the answer I was looking for. If he accepts my amendment to get rid of the Secretary of State as a roads authority—which is a piece of nonsense; fancy calling the Secretary of State a roads authority—this problem would not arise in the one instance he mentioned where the Secretary of State might want to get rid of it from himself and give it to someone else.
If that happens there are one or two questions which arise, and people might be interested as to what the
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cost would be to the new authority to whom he is going to give it. If he is the roads authority in respect of trunk roads and special roads, then of course he is going to be 100 per cent. But it may well be that he will be handing it over to the local authority, transferring it to the present highway authority or new roads authority, and leaving them maybe to foot the bill for the actual maintenance and upkeep of that road. He could probably de-trunk it as well to ensure that they did have to pay a considerable sum of money. It is not quite so simple as the Lord Advocate suggests. In the instance to which he refers if there is a transfer, unadvertised, how are the ratepayers going to know, or find out, whether there is a new financial burden being placed on them by the Government?
Lord Mackay of Clashfern: My Lords, this provision is designed for dealing with frontagers and the like. So far as the financial responsibilities are concerned, the situation is that the rating burden will be a matter for the local authority, and in that situation one can well understand that they would be able to take the necessary action to bring what has happened to the attention of their ratepayers. This is not a provision dealing with ratepayers in general. This is a provision dealing with specific people who require notice.
Lord Ross of Marnock: My Lords, I still cannot see how the Secretary of State could possibly come into it as a roads authority.
The Deputy Speaker (Lord Ampthill): In the light of Lord Ross's intervention, I think I should put the amendments separately.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 6 and 7:
Page 2, line 33, at end insert—
("(5A) In subsection (5) above, "the requisite number" means—

(a) a majority; or

(b) such number as together owns lands and heritages which either—

(i) include not less than half of the boundary between the lands and heritages fronting or abutting the road mentioned in subsection (4)(a) above and that road; or

(ii) front or abut that road and have a net annual value which is not less than half of the total net annual value of all the lands and heritages which front or abut that road.")

Page 3, line 16, leave out subsection (9).
The noble and learned Lord said: My Lords, with the leave of the House I should like to move Amendments Nos. 6 and 7 en bloc. During the Committee stage the noble Lord, Lord Ross of Marnock, suggested that the definition of "the requisite number" would be more properly located after subsection (5) where the phrase is first used. In the light of the noble Lord's observations we have reconsidered the arrangement of the subsection and hope that these amendments meet the point that the noble Lord made. The definition of "the requisite number" will be amended, I hope, in accordance with Amendment No. 17 to subsection 4(a). I beg to move.
Lord Ross of Marnock: My Lords, this makes a lot of sense, far better sense than it was before where you referred to a requisite number and then had to wait until you got a few sections further on to discover what a requisite number was all about. There is an indication of hasty draftsmanship. Bearing in mind that the draftsmen in the Scottish Office have been looking at this for 11 years, it does not say much for their efficiency since they got under new managment of late.
I welcome the fact that the Lord Advocate paid attention to the criticisms that came not only from me but I think that the noble Lord, Lord Hughes, had something to say about this when it was going through on Committee stage, and we have to thank the Lord Advocate and the draftsmen who had a second look at this and saw just how wrong they were.
Clause 2 [Powers and duties of Secretary of State as roads authority: management and maintenance]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 8:
Page 3, line 31, leave out ("special roads") and insert ("motorways").
The noble Lord said: My Lords, I think with this one we could take No. 9 as well, because it deals with virtually the same point I have already mentioned.
Amendment No. 9: Page 4, line 6, leave out ("as roads authority") and insert ("in relation to the roads mentioned in subsection (1)(a), (b) and (c) above").
The first thing is at page 3, line 31, where there is the reference to the Secretary of State becoming a roads authority, which I think is a piece of nonsense, and in respect of which
"the Secretary of State shall manage and maintain—

(a) trunk roads;

(b) special roads provided by him; and

(c) any other road constructed by him under Section 18 of this Act",

and so on. Well, "special roads provided by him". As I suggested before, we wondered what on earth was a special road. We looked up section after section and discovered that a special road is a motorway. If it is a motorway, why not say it? It is as simple as that. It is far too simple, I know, for the Government properly to appreciate. I do not know whether the noble and learned Lord the Lord Advocate has to make up his own mind about this or whether he has to consult with higher powers as did the noble Lord, Lord Lyell. Fortunately, the noble Lord, Lord Lyell, is here so they can have a joint discussion about it.
The other point is getting rid of the Secretary of State as the roads authority. All we have to do is to wipe out "roads authority" and say that he will exercise the functions of A, B and C. That stops a lot of nonsense about calling it a local roads authority. They do not give the Secretary of State a special name; he is just a roads authority. They do not even say he is a national roads authority—but the local authority is the local roads authority. We had better get rid altogether of the differentiation between the local roads authority and the Secretary of State. We never had it before and we have never had any trouble about it. Let us get rid of it and it will once again simplify the Bill.
Lord Mackay of Clashfern: My Lords, this amendment may have—
Lord Ross of Marnock: Superficial attraction!
Lord Mackay of Clashfern: I thank the noble Lord very much; with his great experience, he is able to anticipate.
Lord Ross of Marnock: I have read these briefs before!
Lord Mackay of Clashfern: My Lords, I am much obliged to the noble Lord, Lord Ross; but I think I ought to read what I have to say all the same. "Motorways" would certainly be a word which a lot of people would understand. The truth of the matter is, however, that not all the special roads are motorways and therefore to make the amendment superficially attractive to the noble Lord would I think be a mistake. I hope in the light of that consideration he may feel able to withdraw it.
A motorway is defined as a special road which is limited to certain classes of traffic, and the Secretary of State presently has power to provide special roads for any grouping of the classes in Schedule 3 and not just those which fit into the definition of motorways. He would not wish to lose that flexibility, and I feel certain the noble Lord, Lord Ross, would not wish to deprive him of that flexibility.
Lord Ross of Marnock: My Lords, what I want is a little more flexibility from the Scottish Office; we do not see very much of it tonight. If that is all he is worried about he could add a few words to "motorway" and people will then know that "special roads" are mainly motorways.
I hope that the Government have not closed their minds to this matter and will look at it again because it is time we got rid of this phrase which no one understands. In view of what the noble and learned Lord the Lord Advocate has said and the special pleas he has made to me in respect of this, I will not call a Division and will ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved. ]
Clause 4 [Agreements between authorities]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 10, 11 and 12:
Page 5, line 27, leave out ("(3)") and insert ("(2)")
Page 5, line 36, at beginning insert ("Subsection (1) above does not apply as regards functions under section 53 of this Act, but")
Page 5, line 39, leave out ("section 53 of this Act") and insert ("that section")
The noble and learned Lord said: My Lords, if the House is agreeable, I should like to take Amendments Nos. 10, 11 and 12 en bloc. Clause 4 empowers the Secretary of State to enter into agreements with local authorities for delegation of his functions. As the clause stands, it could be construed that the Secretary of State may delegate to any local authority his responsibilities with regard to trunk road picnic sites. The policy intention, however, is that these particular

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functions should be delegated only to a general or district planning authority. In other words, a planning authority which is either a district planning authority or a general planning authority. These amendments bring the clause into line with that intention.
Lord Carmichael of Kelvingrove: My Lords, I wonder whether the noble and learned Lord the Lord Advocate could expand on what is meant by "general planning authority"? The phrase "District planning authority" is understandable. Do I take it that when he talks about "general planning authority" he means, for instance, the Highlands Board or some area such as the GEAR project in the east or west end of Glasgow? I wonder whether he will kindly intervene to clear this matter up.
Lord Mackay of Clashfern: My Lords, the ordinary authority would be the district planning authority; but, as the noble Lord, Lord Carmichael, knows, there are situations in which you have a general authority: for example, such as the Western Isles which is a general authority not properly described as a district planning authority. It is to cover that situation that I mentioned that.
Lord Carmichael of Kelvingrove: My Lords, that clears up the point so far as tonight is concerned. When one thinks of it, is the noble and learned Lord the Lord Advocate not introducing a new title or definition of the Western Isles, the Orkney Isles district council or the Highland and Islands Council, by calling them "general planning authorities"? I think it would be rather confusing, as it obviously was to your Lordships here tonight, when the noble Lord spoke suddenly about "general and district planning authorities". Tonight it is understandable; but I wonder whether in the future there will need to be some clarification in the Bill in order to spell out that a general planning authority would be the authority which had both regional and district functions as the Highlands and Islands authorities have. I find it slightly confusing. I believe from looking at other noble Lords in the Chamber that they have a feeling of puzzlement as well.
Lord Hughes: My Lords, I should like to follow what my noble friend Lord Carmichael has said. The noble and learned Lord the Lord Advocate instanced the Western Isles. Are there any other authorities which would require this reference to general planning authorities? If not, why does it not follow the normal pattern of saying an island as district authority?
Lord Mackay of Clashfern: My Lords, the regional planning authority may be a general planning authority if the functions are so given. The definition of the "general planning authority" is in the 1973 Local Government (Scotland) Act and the general planning authorities are the Borders region and Highlands region, Dumfries and Galloway region and the Islands Council. I gave the Islands Council as the the most typical example that came to my mind quickly; but the general authorites have all of these. It is appropriate that in these areas these authorities
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should be the ones to whom we might delegate this function.
Clause 7 [General provision as to special roads]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 13:
Page 8, line 44, at end insert ("and industry").
The noble and learned Lord said: My Lords, this amendment provides for the Secretary of State to consider the requirements of industry, along with those of local and national planning and agriculture, before authorising the provision of a special road. The amendment is consistent with the alteration to Clause 5 made by the agreed amendment during Committee stage, which was moved by noble Lords opposite, and we were happy to accept that. This is a consequential amendment in another part of the Bill to make the policy consistent. I beg to move.
Lord Carmichael of Kelvingrove: My Lords, I should like to say how grateful we are to the Lord Advocate for adding this. When we are trying to expand industry and at the same time have additional roads where necessary it is important that industry should be included. I understand the special needs of agriculture when a new road can totally cut a field or a farm in two. It is important that industry should be considered in planning as well. We are grateful to the noble and learned Lord.
Clause 13 [Making up and maintenance of private roads]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 14:
[Printed earlier col. 422.]
The noble and learned Lord said: My Lords, I have already spoken to this amendment with Amendment No. 2. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 15:
Page 15, line 2, leave out from ("appeal") to ("; and") in line 4 and insert ("by summary application to the sheriff").
The noble and learned Lord said: My Lords, this is a technical amendment, consequential to the amendments moved by the noble Lord, Lord Carmichael of Kelvingrove, and agreed during Committee, which changed the right of appeal from the Secretary of State to the sheriff. The appeal procedures outlined in this subsection before that change are no longer appropriate, and this amendment regularises the situation. I beg to move.
Clause 15 [Application for private road to become public road]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 16:
[Printed earlier: col. 422. ]
The noble and learned Lord said: My Lords, I have already spoken to Amendment No. 16 with Amendment No. 2. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 17:
Page 15, line 29, leave out (" 1(9) ") and insert (" 1(5A) ")
The noble and learned Lord said: My Lords, this is a drafting amendment which corrects a cross-reference to Clause 1. I beg to move.
Clause 20 [Requirement of consent for new roads built other than by roads authority]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendent No. 18:
Page 19, line 32, leave out from ("regulations") to end of line 34 and insert ("under subsection (7) below.
(7) The Secretary of State may by regulations prescribe the procedure to be followed in relation to an appeal to him under subsection (6) above, and such regulations may, without prejudice to the foregoing generality make provision for the determination of any such appeal by a person appointed by the Secretary of State and for the powers and duties of such a person in that regard.
(8) The determination of an appeal under subsection (6) above may allow or dismiss the appeal, may modify any part of the decision of the local roads authority and shall be final.").
The noble and learned Lord said: my Lords, in moving this amendment I should like to speak at the same time to Amendment No 58.
Amendment No. 58: Leave out Clause 132.
These amendments arise from acceptance at the Committee stage of the view of noble Lords opposite that appeals under Clause 13 against a notice for the making up of private roads should be made to the sheriff and not to the Secretary of State. In consequence, the terms of Clause 132, which originally applied to Clause 20 and to Clause 132, now apply only to Clause 20 on construction consent appeals. With the changed circumstances, I think your Lordships will agree that it would be helpful to the reader of the Bill, on the same principle that the noble Lord, Lord Ross of Marnock, made earlier, that Clause 132 be incorporated in Clause 20 since that is its only application now. These two amendments achieve that desirable aim.
At the same time the opportunity has been taken to make good an omission in Clause 132(2). That subsection enables the Secretary of State to allow the appeal, to dismiss it, or to modify the local roads authority's decision. It is obviously necessary that the same provisions should apply in the case of any person appointed by the Secretary of State under the regulations to determine appeals. Clause 132(2), as amended, will so provide, as a result of Amendment No. 18. I beg to move.
Lord Ross of Marnock: My Lords, this meets the wishes of the Committee, as I remember it. It is desirable to get rid of the appeal to the Secretary of State; after all, we cannot have this old pals' act with one roads authority hearing appeals in respect of another roads authority. If we are to have the Secretary of State as the appeal authority he might be prejudiced
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because he is acting as a roads authority. It is better to have an independent person. I quite accept the words,
"may modify any part of the decision … and shall be final".
I think that is right.
Clause 23 [Alteration of levels of public roads]:
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 19:
Page 20, line 21, leave out ("raise or lower or otherwise").
The noble Lord said: My Lords, if I remember rightly, this is in relation to the altering of the level of roads. We do not need to say "raise or lower". If the level is altered and we could just leave it at that—the road will be either raised or lowered. These words are otiose. I am sorry that Lord Lyell has gone because I am perfectly sure the advice he would give the Lord Advocate would be to accept this amendment. I beg to move.
Lord Mackay of Clashfern: My Lords, I have carefully considered the suggestions which were made by the noble Lord at Committee stage. I wrote to the noble Lord with the considerations which led us to think that the phrase is better left as it is. I can see the force of his argument, but on balance I believe it is not wise to introduce a doubt by changing a provision where it would be better to make it clear.
Lord Carmichael of Kelvingrove: My Lords, I was grateful to get the opinion of the noble and learned Lord the Lord Advocate as to why the words "raise or lower or otherwise" should be retained; but I feel that it would help to reduce the wordage. I understand the question of a camber in the road: the road may be raised at one point and lowered at another. But I still cannot understand—and I may be rather dull—why "A roads authority may alter as they think fit the level of a public road" cannot apply to that. They could raise the outside of the bend by one foot and lower the inside by six inches, and that would still be altering as they think fit. I do not want to be pedantic about it, but I feel that it is something which would make it easier when it goes to the other place at a later stage if the noble and learned Lord the Lord Advocate could give it some thought. I hope he will think about it again.
On Question, amendment negatived.
9.15 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 20, 21 and 22:
Page 22, line 26, leave out from ("if") to ("; and") in line 28 and insert ("the roads authority is the Secretary of State, he shall not carry out the proposed works without having considered the objection").
line 29, leave out from ("the") to ("without") in line 31 and insert ("roads authority is a local roads authority, they shall not carry out the proposed works").
line 33, at end insert ("and whose decision shall be final").
The noble and learned Lord said: My Lords, with leave, I should like to move Amendments Nos. 20, 21 and 22 en bloc. During the Bill's Committee stage the noble Lord, Lord Hughes, expressed concern regarding the wording of Clause 30(4), which specifies

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procedures for considering unwithdrawn objections to drainage works. These amendments are intended to clarify the procedure to meet the points the noble Lord raised. I hope that the amendments do that adequately. I beg to move.
Lord Hughes: My Lords, I am grateful to the noble and learned Lord the Lord Advocate for dealing with this. The wording which I suggested at the last stage appeared in another part of the Bill. As the Bill stands, it almost looks as if the Secretary of State is not going to pay any attention to any representations which are made because it seems to indicate that he would go ahead anyway. The alternative wording later in the Bill is better, so I am glad.
May I take this opportunity of saying that the trains to my part of the world are earlier than the ones on which my noble friend Lord Ross of Marnock can rely. I will not be staying until half past ten, but will be leaving very shortly.
Lord Ross of Marnock: My Lords, we cannot either raise or alter or lower the levels at railway stations to enable trains to leave to suit the eccentricities of government business in this place, and I can appreciate the difficulties of my noble friend. Dundee is a lot further away than is Glasgow.
Lord Hughes: My Lords, it is Gleneagles.
Lord Ross of Marnock: My Lords, even better. I hope my noble friend has his golf clubs with him. This is a considerable improvement; there is no doubt about it. It seemed that you could appeal to the Secretary of State but he did not need to consider your letter of your objections before he made any decision. This makes it clear. It is what I would expect a fair-minded man like the noble and learned Lord the Lord Advocate to accept. I am very glad he has done it. The wording is quite good, too.
Clause 32 [Snow gates]:
The Deputy Speaker The Deputy Speaker My Lords, before I call Amendment No. 23, I would point out that if it is agreed to I cannot call Amendment No. 24.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 23:
Page 23, line 15, leave out from ("when") to end of line 25 and insert ("snow is rendering or has rendered that road unsafe for such traffic; and where in the opinion of a constable such an occasion has arisen as respects a road he (or, where the constable is a chief constable, a person acting on his behalf) may, until the road is once again safe for vehicular traffic, close and secure any snow gate on the road against all such traffic except that engaged in the provision or restoration of essential services.
(2) In subsection (1) above—
"constable" and "chief constable" shall be construed in accordance with sections 50 and 51 of the Police (Scotland) Act 1967 (interpretation);
"engaged in the provision or restoration of essential services" means in the opinion of a constable so engaged; and
"safe" means in such opinion safe.").
The noble and learned Lord said: My Lords, your Lordships will remember that at Committee stage I
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undertook to re-examine this clause in the light of the comments made during that stage. I have reconsidered the clause and the points that were then made, and I hope that this amendment satisfies your Lordships. I think it is a good deal simpler than we had before, and covers the two ideas of danger that has already occurred, or in respect of what has already happened, and what may be happening at the time. At the same time as meeting these points we have taken the opportunity to make it clear that any constable may close the gates when he judges it necessary to do so, and that where the chief constable decides to close the gates he may arrange for this to be done by, for example, a snow-plough driver employed by the local authority, on his authority. This was an improvement suggested to us by the chief constables. I think that it is a practical suggestion to meet a practical situation. I beg to move.
Lord Ross of Marnock: My Lords, I am glad that the Government have looked at this clause, because it was in a pretty awful state. I am very glad that we have got rid of it, because if we accept this it will rule out my next amendment, a very important amendment, and will get rid of the words "precipitation or accumulation of snow". I think a special medal should be struck for the draftsman who thought of that one. But at the same time I do not think they have done very well—at least they could have done it much more neatly—in meeting the wishes of chief constables. My first objection would be to the fact that the wording says, "snow is rendering", and so on. Why not just use the word "made"? Why put "rendered"? What great glory is there in using the longer word? I think that "Mr. Precipitation" has come back again in respect of falling snow.
My second point is that I do not think it is a good idea, after you have a simple clause like this, to have to resort to an interpretation as to what you really mean. For example, it refers to a constable
" '… engaged in the provision or restoration of essential services' means in the opinion of a constable so engaged; and 'safe' means in such opinion safe".
Quite frankly, with the putting of these words "in his opinion" in places, we do not require this. This is bad drafting. I can understand the difficulties the draftsmen have had, because they had to go through all these Acts of Parliament and so on, but they could have paid a little more attention to this one since they realised how wrong it was. I know you have to cover the business of an argument about whether it is right to re-open a gate, and someone may have damage done and then they could sue the chief constable. This is what the chief constables were worried about, I am perfectly sure: as to whether or not, in exercising a function, they had acted unwisely. It would have been quite easy to cover that by putting these words into the body of the clause instead of using this very ugly and awkward way of doing it by putting in virtually an interpretation, and a rather queer one at that, at the end of the clause. So while I am prepared to accept these amendments now, I hope the Government will appreciate that they are far from finished with this and that they have not cleared it up.
[Amendment No. 24 not moved.]
Clause 60 [Temporary prohibition or restriction of traffic etc. on roads for reasons of public safety or convenience]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 25:
Page 40, line 4, at end insert—
("(5) A person who contravenes a restriction or prohibition imposed by virtue of subsection (1) above commits an offence.").
The noble and learned Lord said: My Lords, I would like to move Amendment No. 25 and to speak at the same time to Amendment No. 71.
Amendment No. 71: Page 109, line 9, at end insert—

(". Section 60(5) (contravention of temporary res-triction or prohibition of traffic or foot passage on road).

Level 2."

Clause 60 allows a road authority by order temporarily to prohibit or restrict traffic and foot passage on roads for reasons of public safety or convenience. Amendments Nos. 25 and 71 provide that it will be an offence to contravene such an order. This seems to be obviously appropriate, and I beg to move.
Clause 64 [Maintenance of vaults and cellars etc.]:
9.24 p.m.
Lord Ross of Marnock Lord Ross of Marnock moved Amendment No. 26:
Page 41, line 7, leave out ("things").
The noble Lord said: My Lords, I think I have got to apologise to your Lordships in that, for some reason or other, I was not present during the Committee stage when we came to this particular point. This is one I feel very stongly about. It may well be that it goes back to my days as a schoolmaster when I taught English. I always regarded a person who used the word "things" as a person with an inadequate vocabulary. It was not a matter which I used to apply to the draftsmen and I think that the way they had drafted this particular clause is really shocking. We have got "things'; in line 7; we have got "things" in line 9; and I think we have "thing" in line 21. This is proclaiming an inadequacy of words. That does not do justice at all to the reputation of the Scottish Office.
I would have thought the noble and learned Lord the Lord Advocate would have paid some attention to this aspect. After all, he is the boss of the draftsmen. They are not employed by the Scottish Office but are employed by the Crown Office; from my experience, I think I am right in saying that.
I should also apologise because I said that I would examine this clause and draft something much better. Unfortunately, we have been spawning legislation in the Scottish Office. We have dealt with tourism, inshore fishing, education, tenants' rights—and another local government Bill about valuation and rating is coming. Certainly my staff has been expanded very considerably by the arrival of my noble friend Lord Carmichael—but even the two of us find it hard going handling four or five Bills at the one time. It is rather like a juggler keeping balls in the air all the time. If there are too many, one is going to fall. I have to proclaim my inadequacy in this respect; I am not a good juggler. I was a good juggler but I am getting
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rather creaky in my joints, and my eyesight is not what it was, so maybe one or two slip through—I am very glad that the cavalry have arrived back again.
Surely the noble Lord, Lord Lyell, could pay some special attention to this. He must agree with everything I have said about resorting to using the word "thing"; it is awful. In a country so proud of its education standards, to have this word in an important Scottish Bill is just too much. An improvement could be achieved simply by use of punctuation and dropping the word "things", certainly at the beginning. One could probably exercise a little more ingenuity in respect of the last "thing" that is mentioned in this clause. I hope, again, that the noble and learned Lord the Lord Advocate will not be satisfied with second best because this is pretty poor stuff. I expect far better from the Scottish Office.
My amendment would take out "things", and the subsection would still make sense. It would read:
"(1) As regards any road, the following shall be kept in good condition and repair".
That makes sense, does it not? I also object to the description of certain items—for example
"arch, cellar and tunnel".
Is a tunnel a "thing"? Even the most elementary definition of a "thing" is something quite substantial.
I do not want to go on because it is getting far too late and I know that my noble friend may want to contribute to this debate before he leaves for Gleneagles and all points north. I hope that the noble and learned Lord the Lord Advocate appreciates that I am serious about this point and that I am not joking. I think it is a dreadful clause—in a dreadful Bill admittedly; but still, that does not mean we should accept it without some criticism. I beg to move.
The Earl of Selkirk: My Lords, I should like to support what has been said by the noble Lord, Lord Ross of Marnock. This wording is rather schoolboyish and we could do better. The word "things" could be left out altogether. I humbly suggest that we use instead the phrase,
"the following structures".
They are structures or structural features. Such wording would make this clause a little more dignified. In fact, the word "things" is wrong because one thing a "thing" is not is an open space; that it is jolly well not. It is really quite the wrong word to use. I do not suppose it will make a great deal of difierence to the law of this country but this clause might read a little better in ordinary English.
Lord Hughes: My Lords, I should not like to leave—as my noble friend Lord Ross of Marnock put it—for Gleneagles and points north (because that is a correct description of where I am going) without making it quite clear that I am in full agreement with him. I am not leaving at this point because I disagree with my noble friend.
As the noble Earl has said, this amendment would at least make the clause seem more presentable, rather than leave it looking, as it does at the moment, as though we were stuck for a word. I am quite certain that for an advocate of the distinction of the noble and learned Lord the Lord Advocate himself it cannot

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appeal to him that this word is the best possible way of dealing with the situation. The Lord Advocate will forgive me if I do not wait for his reply, but I will have the pleasure later on of reading what is reported. I have a feeling that I am leaving at a very entertaining part of the proceedings.
Lord Mackay of Clashfern: My Lords, I am grateful to the noble Lords for their comments on this clause and certainly if we are able to think of a better word we shall do so. Up to now we have not been able to do so. We had hoped that the noble Lord, Lord Ross, would help us, but I appreciate the task which he so eloquently described to us. So far we have not been able to think of anything better but we shall not discontinue our efforts.
Lord Ross of Marnock: My Lords, I am glad to hear that the Government have not finished. Now that the noble and learned Lord the Lord Advocate has got the Telecommunications Bill out of his blood it may be that he, too, will be able to look at these rather awkward pieces of legislation because we cannot let a thing like this go on. The noble Earl, Lord Selkirk, is right. This is schoolboy stuff. We can do better. I think we should write that at the bottom of this particular report sheet—we can do better and we have got to do better. With those remarks, I certainly shall withdraw the amendment.
Amendment, by leave, withdraw.
Clause 66 [Power of roads authorities to stop up roads by order]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 27:
Page 42, line 13, leave out ("or cyclists") and insert (", cyclists or both").
The noble and learned Lord said: My Lords, this is a drafting amendment which makes it clear that the provision will allow for reserving a right for either pedestrians or cyclists or both. I beg to move.
Clause 69 [Provisions supplementary to sections 66 to 68]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 28:
Page 43, line 29, leave out ("other") and insert ("another")
The noble and learned Lord said: My Lords, with your Lordships' leave I should like to move Amendments Nos. 28, 29 and 30 together.
Amendment No. 29: Page 43, line 30, leave out ("are") and insert ("is")
Amendment No. 30: Page 43, line 44, leave out second ("the") and insert ("a")
These three amendment make slight drafting changes. Amendment Nos. 28 and 29 make "means of access" singular to clarify that only one alternative means of access is needed prior to stopping up a private access. The way it was in before was slightly ambiguous. Amendment No. 30 replaces the definite article in the
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term "the special road" with the indefinite article because there is no previous mention of special roads in the clause and no necessary implication that proceedings under Clause 67 or Clause 68 will be as regards a special road. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 31:
Page 44, line 8, leave out subsection (7).
The noble and learned Lord said: My Lords, may I speak to Amendment Nos. 31 and 34 together.
Amendment No. 34: After Clause 70, insert the following new clause: Expenses incurred under section 67 or by virtue of section 68 or 70.
(". Any expenses incurred under section 67, or by virtue of section 68 or 70, of this Act by a local roads authority shall be deemed for the purposes of section 3 of this Act to be incurred in road construction or improvement.")
These amendments remove subsection (7) from Clause 69 and put in a free-standing clause in an improved form as it applies equally to Clause 70. If it was in Clause 69 alone it would be somewhat ambiguous in that application. I beg to move.
Lord Ross of Marnock: My Lords, we appreciate what is done here. We think it is right and thank the noble and learned Lord the Lord Advocate for it.
Clause 70 [Stopping up private access to land or premises by agreement]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 32:
Page 44, line 21, leave out ("under") and insert ("by virtue of).
The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 32 and 33 together.
Amendment No. 33: Page 44, line 34, leave out ("under") and insert ("by virtue of").
These are minor drafting amendments. There is no direct power in the clause to stop up a private access, so stopping up cannot be achieved directly under the clause. It is for this reason that we have added the words "by virtue of. I beg to move.
Lord Ross of Marnock: My Lords, it is a very important amendment. The Minister said that he was adding the words "by virtue of. As I understand it, he is not doing that. He is leaving out the word "under" and inserting the words "by virtue of. That may be right. The next amendment is Amendment No. 34. There is something there that rather intrigues me. Instead of "under" or "by virtue of the section, we have them both. It states:
"Any expenses incurred under Section 67".
"Under" is the offending word in the present amendments. Amendment No. 34 continues:
"or by virtue of Section 68 or 70, of this Act".
It is intriguing why we have them both.
I have a note here of a further thing that I spotted, and that is in Amendment No. 69. This may save the

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Lord Advocate giving an answer which may not quite fit. It states:
"A power conferred on a roads authority by, under or—by virtue of.
We have the whole lot this time. Can the Lord Advocate sort all that out for my simple mind: why, first, the word "under" should not be used and the words "by virtue of inserted; why then "under"' and also "by virtue of are used; and why then it can be:
"by. under or—by virtue of
in respect of a power conferred? That is Amendment No. 69 when we come to it. If we are to do this thing fairly, we want to be absolutely sure of consistency and accuracy. There may well be an answer, but I have to be convinced.
Lord Mackay of Clashfern: My Lords, the noble Lord is of course perfectly right that the words "by virtue of are being substituted for the word "under". I said originally, I think, that the word "under" was not accurate and I was wishing to add "by virtue of. That was intended to be instead of the word "under". The reason that the word "under" is not accurate in this particular context is that there is no direct power under the clause to stop up a private access; but the clause empowers the road authority to enter into an agreement to stop up the access, and it is under the agreement, and therefore by virtue of the clause, that the access is closed. It depends on the phraseology in the particular provision. If the provision does it directly itself, it would be appropriate to say "by". If the provision contains a direct authority, it would be "under". If the provision contains an authority to enter into something else, then it is "by virtue of. That is the reason for these three phrases or words occurring in Amendment No. 69. It depends on the context, as I am sure the noble Lord appreciates.
Lord Airedale: My Lords, I think that the Lord Advocate is to be congratulated on that explanation.
Lord Ross of Marnock: My Lords. I add my congratulations and my admiration of the Lord Advocate for the lucidity of his explanation. I am very glad that he thought of it himself and it was not designed for him in any brief from a draftsman or a civil servant, because they would have got it all wrong.
Clause 73 [Provisions supplementary to section 72]:
9.38 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 35:
Page 47, line 3, leave out from ("position") to ("and") in line 5 and insert (", clearances for the passage of vessels and dimensions of the proposed bridge;").
The noble and learned Lord said: My Lords, this amendment is intended to make a simplification. It makes a small change to the required content of plans and specifications to be attached to an order or scheme for the construction of a bridge over navigable waters. It is modern practice to make such an order or scheme before the bridge design is complete; and it is not realistic in practice, as we have discovered on this particular provision, to have a requirement to specify
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details about the spans, headways and waterways. I hope that your Lordships will agree that it would be sufficient for the navigation authority and others to know the dimensions of the proposed bridge and the clearance for vessels. That is really what they need to know. I beg to move.
Clause 75 [Power to divert waters when constructing or improving public road etc.]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 36:
Clause 75, leave out clause 75 and insert the following new clause: ("Power to divert waters when constructing or improving public road etc.
.—(1) Subject to subsections (2) and (3) below, the roads authority may divert, or carry out works in relation to, inland waters (whether natural or artificial) or tidal waters where, in the opinion of the authority such diversion is, or as the case may be works are, necessary for the construction, improvement or protection of a public road or of a site or facilities provided under section 53 of this Act.
(2) Before proceeding under subsection (1) above, the roads authority shall—

(a) serve on the owner and the occupier of any land affected, and on any navigation authority concerned with or having jurisdiction over the waters or over the area comprising those waters, notice of their intention so to proceed, describing the proposed diversion or works and informing them that they may object to the proposed diversion or works by notice to the authority within 28 days after service of the notice of intention on them; and

(b) consult any local authority in whose area the waters are situated and any other body acting under statutory powers, being powers the exercise of which may, in the opinion of the roads authority, be affected by the works:

Provided that, as regards any diversion or works, consultation under paragraph (b) above shall not be required with an authority or body receiving notice under paragraph (a) above.
(3) Where such objection as is provided for in subsection (2)(a) above is made in accordance with that subsection and is not withdrawn, then—

(a)if the roads authority is the Secretary of State, he shall not carry out the diversion or works without having considered the objection; and

(b) if the roads authority is a local roads authority they shall not carry out the diversion or works without the consent of the Secretary of State who may grant such consent either unconditionally or subject to such terms and conditions as he thinks fit and whose decision shall be final.").

The noble and learned Lord said: My Lords, this amendment is intended to provide a requirement to serve notice on the navigation authority concerned and give that authority the right to object to proposed works, to divert waters in connection with construc-tion or improvement of a public road. The amendment also compresses the clause by drawing all provision about notices and consultation into one subsection and I think that achieves a simplification. I beg to move.
Clause 81 [Determination of questions arising out of section 80]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 37:
Page 54, line 29, leave out subsection (3).
The noble and learned Lord said: My Lords, this is a drafting amendment which removes an unnecessary

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reference to the Arbitration Act of 1950. I beg to move.
Clause 83 [Removal of builders' skips causing danger or obstruction]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 38:
Page 55, line 29, at end insert—
(" ( ) Subsections (1) and (2) above are without prejudice to section 121(1A) of this Act.").
The noble and learned Lord said: My Lords, this amendment is the first of a series in which the other amendments are Nos. 39, 52, 53, 54 and 72.
Amendment No. 39: Clause 84, page 56, line 3, at beginning insert ("Without prejudice to sections 57 and 121(1A) of this Act")
Amendment No. 52: Clause 121, page 77, line 31, at end insert—
("(1A) A person who, without lawful authority or reasonable excuse, places or deposits anything in a road so as to obstruct the passage of, or to endanger, road users commits an offence:
Provided that no person shall, in respect of the same actings, be convicted both under the foregoing provisions of this subsection and under sections 57(2), 87, 92, 97(a) or 98 of this Act, or subsection (8) of this section, of an offence.").
Amendment No. 53: Page 77, line 37, at beginning insert ("Without prejudice to subsection (1A) above,").
Amendment No. 54: Page 78, line 23, at beginning insert ("Without prejudice to subsection (1A) above,").
Amendment No. 72: Schedule 7, page 109, line 41, at end insert—

(". Section 121 (1A) (placing or depositing in road something which obstructs or endangers road users).

Level 2.")

My Lords, these amendments result from the undertaking which I gave to the noble Lord, Lord Carmichael of Kelvingrove, to consider whether Clause 57 might cover cases of danger to road users resulting not directly from something that was already set up, as it were, but from thorns strewn over the road during hedge cutting operations. I think the noble Lord mentioned that it was raised with him as a practical problem by one of the local authorities.
I think I said at the time that my impression was that it was probably covered, but having looked at the matter in more detail I think it is wise to make these amendments to make sure that what the noble Lord had in mind was as a practical matter covered. So Amendment No. 52 makes it an offence to place or deposit anything on a road which endangers or obstructs the passage of road users, but provides or ensures that offenders cannot be prosecuted twice for the same offence where there is an apparent overlap in other clauses. That is the point in the way: the other clauses appear to me almost to cover all of these; but to make it certain, we thought we should put this in. But we have also to make sure that the person cannot be prosecuted twice for the same offence in respect of the same subject matter. The Amendments Nos. 38, 39, 53, 54 and 72 are a necessary result of that proposed new offence. I beg to move.
Lord Carmichael of Kelvingrove: My Lords, I am most grateful to the Lord Advocate for having looked at this point. It was actually the Automobile Association, through I think their legal department, who had some problems with this very subject with
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ferns or nettles or something on the road that caused difficulties to certain vehicles on the road.
I am grateful for the very interesting way the Lord Advocate has sought to understand and meet my difficulties. There is only one point on the objections I raised: I wonder whether he could speak a little more fully on what powers there are so that this obstruction on the road can be abated or removed? What powers are there for the police to make sure that this obstruc-tion is removed, or this nuisance is removed and how will it be dealt with in terms of fines? I refer to section 160(4) of the Highway Act 1980. This applies to the Greater London Council but it seems appropriate in this particular instance. Perhaps it would be possible in some way to strengthen the powers of local authorities to deal with an obstruction although they may very well be the people—particularly in dealing with rural roads—who are causing the obstruction. The subsection states:
"In the circumstances mentioned … above the highway authority or, as the case may be, the Greater London Council may by notice require the person causing the obstruction to take such steps as may appear to the highway authority or. as the case may be, the Council to be necessary, and as are specified in the notice, to mitigate or discontinue the obstruction".
I wonder whether there are any provisions in the amendments to cover the two points. First, how can the offender be forced to remove the obstruction and, secondly, what would be the fine, and where is the provision for the fine if the person is convicted? How does that fine compare with a fine under the Act that I have quoted? I appreciate that it is unfair to ask the Lord Advocate at this time to give any positive view on the Act that I have just quoted—the Highways Act 1980—but perhaps the information that 1 have given him will be of assistance.
The motoring organisations have tried to point out to me the very real problem here. Perhaps it is covered in other parts of the Bill which the motoring organisations and myself have not been able to pick up. However, if the Lord Advocate cannot give an answer now. perhaps he will think about it and come back to it at a later stage. I am grateful for the efforts that he has made to meet the problem that I raised earlier. This is just another aspect of it that perhaps has not been totally met by the amendments.
Lord Mackay of Clashfern: My Lords, my impression is that the cleansing provisions would deal with the kind of point that the noble Lord has in mind so far as removal is concerned. With regard to the fine, it is level 2 on the standard scale, which as at this date is, I think, £50; I speak from memory. The figures are given at the moment in the schedule, though we are proposing later to take them out for the reason that they will become outdated, and it might be misleading to leave them there. Yes, £50 is the amount of the penalty under level 2 at the present time. Perhaps I may later have an opportunity to reply more fully to the noble Lord on the first aspect of what he mentioned in relation to the statute to which he referred. But I think I have answered the principal points that he has made, and I am obliged to him.
Clause 84 [Power to remove structures from roads):
9.38 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 39:
[Printed above.]
Clause 87 [Restriction on placing bridges, beams, rails etc. over roads]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 40:
Page 57, line 23, after ("may") insert (", within 28 days of the refusal or consent,").
The noble and learned Lord said: My Lords, this amendment limits to 28 days the time for lodging an appeal with the sheriff against a refusal of consent or a grant of conditional consent for placing apparatus over a road. It seems right to have a limit to the time in which one can appeal. I beg to move.
Clause 90 [Protection of road users from dangers near a road]:
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 41:
Page 59, line 31, leave out ("may") and insert ("shall").
The noble Earl said: My Lords, I beg to move this amendment. It concerns a point that I have raised on more than one earlier occasion. Here the word, "obstruction" includes visual obstruction. It is defined as constituting, "a danger to road users". To my mind, in those circumstances there should be an obligation on the local authority, or for that matter on the frontager if he is a private person, to see that the obstruction is removed. It should not be left as a matter of choice, which is what the word "may" means. There should be an obligation that the obstruc-tion be removed.
I think that this arises in particular on roads with sharp corners where there may be a pile of soil or something else which makes the view very much worse. I am glad to make this proposal because here most of the obligations are on frontagers, those on each side of the road. It think that there should be a certain degree of obligation directly on the local authority itself, which is the major authority when it comes to seeing that the roads are in good condition. It is for these reasons that I should like to suggest that the word "may" should be "shall", to make it clear that there is an obligation to see that the danger is removed. I beg to move.
Lord Airedale: My Lords, surely this amendment must be right. The effect of the clause as it stands is to say that if the authority is of the opinion that something constitutes a danger to road users it may please itself whether or not it takes the appropriate steps to remove the danger. We really cannot leave it like that, can we?
Lord Mackay of Clashfern: My Lords, I would respectfully doubt whether the clause, as it is worded,
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has exactly the sense that the noble Lord, Lord Airedale, says. I am, however, extremely happy to accept the amendment, so possibly we need not conduct the theoretical argument any further.
The Earl of Selkirk: My Lords, I thank the noble and learned Lord on this occasion.
Lord Ross of Marnock: My Lords, may I also thank the noble Lord and say that I wish that we had had his retrospective presence when we discussed exactly the same point with the Minister of State, Lord Gray of Contin, in respect, I think, of the repairs clause? Obviously, the Government were giving a new right, they put in the word "may", and would not look at the need to put in the word "shall" to make it mandatory upon the Secretary of State. Solomon has come to judgment! I give notice that at the next stage of that Bill I shall repeat my amendment and I shall quote the Lord Advocate. It is a very good decision that he has made here. I knew that if the noble Lord, Lord Lyell, remained by his side we would get some good results.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 42:
Page 59, line 34, after ("may") insert (", subject to subsection (6)(a) below,").
The noble and learned Lord said: My Lords, in moving Amendment No. 42 I should like to speak also to Amendment No. 46.
Amendment No. 46: Page 60, line 24, leave out from ("person") to ("the") in line 25 and insert ("who considers that in all the circumstances he should not be required—

(a) to pay such expenses as are mentioned in subsection (1) above, may within 28 days of the first written intimation to him by the roads authority of their intention to recover those expenses from him; or

(b) to take such steps as are specified in a notice served on him under subsection (2) above, may within 28 days of such notice, refer").

At Committee stage the noble Lord, Lord Carmichael, drew attention to the wide powers conferred on roads authorities by Clause 90 and the apparent lack of safeguards for the owner of land against improper or insensitive use of those powers. After consideration of the points made by the noble Lord and by others, I am happy to say that it seems right to extend the provision for appeal to the sheriff in circumstances where the owner of the land affected considers that he should not be required to carry out the work demanded by the roads authority or to pay for work done by that authority. The amendment makes that provision in the sense, I think, that the noble Lord indicated. I hope that it is acceptable.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Lord Advocate for having taken the trouble to find a form of words that expresses fairly well what I was trying to explain to the Committee. I thank him.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 43 and 44.
Page 59, line 39, leave out ("a fence made with electric wire") and insert ("an electrified fence").
Page 60, line 1, after ("wire,") insert ("electrified fence",).
The noble and learned Lord said: If your Lordships agree, I should like to take these amendments en bloc. During the Committee stage your Lordships remarked upon the sweeping nature of this clause. As presently drafted, subsection (2)(b) of Clause 90 would catch any fence made with what is described as electric wire even if there was no intention of passing an electric current through the wire. The amendments limit the scope of the provision to fences carrying electricity. I beg to move.
Lord Ross of Marnock: My Lords, what is an electrified fence? I can understand the difficulties about electric wire. The only time I have ever heard of electric wire is in a celebrated poem:
"Across the electric wire the news came,
The King is no better, he is just the same".
I think that dates from the early part of the century. I can understand electric wire, but I cannot understand electric fence. It is capable of being electrified but it is not always electrified, as I understand it. It is a point that we want to get clear and it is another matter for the noble and learned Lord the Lord Advocate to ask his advisers to have a look at.
It is better than it was, but I still do not think that it is quite right. It would imply that the fence is constantly live and, as I understand it, these fences can be switched on and off on occasion.
Lord Mackay of Clashfern: My Lords, the point is that the danger arises from the fence as electrified. But obviously I am happy to consider what the noble Lord has said to see if we can get it even better.
The Earl of Selkirk: My Lords, may I suggest that an electric light is not always turned on?
Lord Ross of Marnock: My Lords, I know, and that is why it is wrong.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 45:
Page 60, line 5, after ("notice,") insert ("to").
The noble and learned Lord said: My Lords, this is to correct a printing omission. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 46:
[Printed above.]
Clause 92 [Deposit of mud from vehicles on roads]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 47:
Page 61, line 9, leave out ("carriageway") and insert ("road").
The noble and learned Lord said: My Lords, this amendment extends to footways and footpaths the offence of dropping mud et cetera from vehicles on to the carriageway so as to cause danger or substantial inconvenience to road users. The noble Lord, Lord
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Carmichael, drew to my attention at the Committee stage that mud sprayed from vehicles on to the footway was equally dangerous and distressing to pedestrians as it was to traffic on the carriageway. That very much commended itself as a sensible improvement to the Bill, and I am grateful to the noble Lord for making the suggestion, and I hope that your Lordships will accept the amendment.
Lord Carmichael of Kelvingrove: My Lords, I am most grateful to the noble and learned Lord the Lord Advocate. As regards changing "carriageway" to "road" I should like to ask the noble and learned Lord a question relating to an earlier matter as regards which we should perhaps have put down an amendment. I understand that it has to be "road" because "carriageway" is merely the road upon which a carriage or vehicle will drive. Therefore, the road presumably extends from the heel of the pavement to the heel of the pavement—if we still have pavements; I am not sure whether we do have them in Scotland. Is that why the roads authority is now totally responsible for the removal of, for instance, snow and therefore there would need to be a much more complicated definition than "road" if the roads authority were not responsible for removing, for example, snow from the frontages of commercial and domestic premises? Is that one of the reasons behind the fact that we have been trapped into a situation where the roads authority on the day of a snowfall will need to get out and clear all the snow from the pavements and what we still call the road?
Because we have become trapped in words we have also become trapped in a very practical way. The roads authority will be doing a great job if they merely manage to keep the roads clear and traffic flowing, without also clearing the frontage of every shop and domestic premises in the area. I really want to get an explanation from the noble and learned Lord the Lord Advocate as to whether this was one of the reasons why we were unable to deal with the snow problem much earlier.
Lord Mackay of Clashfern: My Lords, so far as the structure of the Bill is concerned we have tried to distinguish between the carriageway, the footway, the footpath and so on so as to make it plain when we are dealing with, for example, only a carriageway. But "road" is defined to include the carriageway and also the footway, if there is one—in other words, the pavement as well. So it covers the whole lot and it makes it easier precisely to define the scope of any obligation. To take this example the noble Lord pointed out to me that before we did it only for the carriageway. That was not satisfactory for the reasons which he gave. We are able to make it precise as covering also what we might call the pavement or the footway simply by using the word "road". That extends to cover the whole thing. That is the explanation of why we do it this way. I beg to move.
Lord Ross of Marnock: My Lords, I understand that it is comprehensive, and it is right in respect of things that fall off the back of a lorry. They might not just fall on the carriageway; they might fall on the pavement. But it is rather sad from a local authority's point of view when in using the word "road", it includes the

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pavement and we place upon them a new obligation (such as my noble friend Lord Carmichael mentioned) of clearing what used to be called the "pavement".
It is terrible that we are losing all these words. Not only are "turnpike" and "highway" going but even "pavement" goes. It is far too simple. People understand what a pavement is. We cannot possibly have it in legislation if it is as simple as that! It is a very important matter from the point of view of a local authority, and expense. We shall probably need to wait until the next stage of the Bill to get this cleared up. The noble and learned Lord the Lord Advocate had a little experience of this on about 19th January when pavements in Scotland—whether you call them parts of roadways, extensions of this, that, or the next thing—could not be seen. It was quite impossible for the local authorities to undertake the business of clearing them, which is a new obligation on them and to which they object. But it would be quite out of order in respect of this amendment.
I am grateful to my noble friend Lord Carmichael for giving me a chance to raise this point and I hope that the Government will look at it. It is not included in this particular clause, but what the Government are doing here is right. I have already said that I am very grateful to them. I just do not know how the word "carriageway" has managed to escape the modernising eyes of the civil servant and the draftsman. As regards its original meaning, the carriage goes on the way, but very few carriages as such go on it now. It might have been a motorway or a vehicleway. Ordinary folk would just call it the road. But then it is no longer the road.
I hope that the noble and learned Lord the Lord Advocate appreciates the kind of muddles we can get into by his misguided decision to get rid of highways and streets and by calling everything roads. It has not simplified matters at all, as, indeed, we have seen here. However, I have no objection at all to this amendment.
Clause 93 [Extraordinary expenses in repairing roads damaged by heavy vehicles etc. ]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 48:
Page 62, line 12, leave out ("(3)") and insert ("(4)").
The noble and learned Lord said: My Lords, this is a drafting amendment. I beg to move.
Clause 97 [Damage to wads etc. ]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 49:
Page 64, line 42, at end insert ("or").
The noble and learned Lord said: My Lords, in moving Amendment No. 49, I should also like to speak to Amendment No. 50.
Amendment No. 50: Page 65, line 1, leave out paragraphs (d) and (e),
Amendment No. 50 removes from the Bill the offence of wilful damage to things associated with a
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road. Amendment No. 49 makes a minor adjustment to the remaining provisions of the clause to accommo-date that change. Having looked at the matter in the light of a point raised by the noble Lord, Lord Carmichael of Kelvingrove, in Committee, I am satisfied that wilful damage to road accessories is covered by the crime of vandalism in Section 78 of the Criminal Justice (Scotland) Act 1980, and there is no need for duplication of the offence in this Bill. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 50:
[Printed above.]
Clause 107 [General provisions as to acquisition of land]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 51:
Page 69, line 21, after ("or") insert ("sections").
The noble and learned Lord said: My Lords, this is a simple drafting amendment. I beg to move.
Clause 121 [Miscellaneous summary offences]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 52, 53 and 54:
[Printed earlier: col. 439.]
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 55:
Page 78, line 41, after ("paragraphs") insert ("of this proviso").
The noble and learned Lord said: My Lords, this is a very minor drafting amendment. I beg to move.
Clause 123 [Penalties and mode of trial]:
10.5 p.m.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 56:
Page 79, line 27, after ("offence") insert ("and").
The noble and learned Lord said: My Lords, if I might I should like to take 56, 57 and 70 together.
Amendment No. 57: Page 79, line 28, leave out from ("offence") to end of line 30.
Amendment No. 70: Page 108, line 27 to page 110, line 8, leave out column 3.
Their combined effect is to delete references to the financial value of maximum penalties for offences under the Bill. When the Bill was drafted it seemed appropriate to set out these values, and your Lordships have seen these. As the sums concerned are likely to change over time, however, and indeed will change on 1st May 1984 as a result of a statutory instrument, the figures in the Bill will become outdated and their retention would not, in the light of the circumstances, be helpful and might even be misleading to the users of

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the statute. In these circumstances it is better that they should be omitted and these amendments so provide. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 57:
[Printed above.]
Clause 132 [Appeals to Secretary of State: general provisions]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 58:
[Printed earlier: col. 429.]
The noble and learned Lord said: My Lords, this amendment was taken with Amendment No. 18. I beg to move.
Clause 136 [Regulations, orders and schemes]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 59:
Page 88, line 9, after ("instrument") insert ("—(a)").
The noble and learned Lord said: My Lords, with permission I should like to speak also to Amendments Nos. 60 and 61.
Amendment No. 60: Page 88, line 10, leave out ("—(a)") and insert ("and").
Amendment No. 61: Page 88, line 20, leave out ("be of no effect unless it is") and insert ("not be made under subsection (1) above unless a draft of the instrument has been laid before Parliament and has been").
These amendments provide that regulations and orders subject to affirmative resolution in both Houses should be laid in draft rather than final form. This procedure would reduce parliamentary time in situations where amendments were found necessary; for example, in the light of your Lordships looking at them before the debate actually took place before the regulations or orders had been approved. There is a misprint in Amendment No. 61 as printed in the Marshalled List. There is an extra word: "to". It should read, "not be made". I beg to move.
Lord Ross of Marnock: My Lords, it really is nonsense that we should be doing this at such a time and be denied full consideration. This is an important amendment and I doubt whether people realise the importance of it. My noble friend Lord Carmichael, who was at the Ministry of Transport as a Minister, was just reminding me not long ago that if you introduced the Highway Code under a regulation you just could not amend it. It was there. So you had to let it go through and introduce it again knowing it was wrong and make the change, whereas if you introduce it in draft form the changes that come in relation to the advice you get from outside departments and from the House can be adopted and then approved in final form. This was the way I believe with even teachers' salaries when in those days they used to be introduced
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by form of regulation in the House. It is not done very often now; but it has a lot to commend it in respect of the importance of what is being done. I am grateful to the Lord Advocate for having put this in the Bill, but regret that we have not proper time to go into the importance of it.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 60 and 61:
[Printed above. ]
Clause 139 [Application of Act to Crown land]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 62:
Leave out clause 139 and insert the following new clause:
("Application of Act to Crown land.
139.—(1) Subject to the following provisions of this section, nothing in this Act shall apply in relation to any land belonging to Her Majesty in right of the Crown or otherwise, or belonging to a government department, or held in trust for Her Majesty for the purposes of a government department.
(2) The appropriate Crown authority in relation to any land and a roads authority may agree that any provisions of this Act specified in the agreement shall apply to that land and. while the agreement is in force, those provisions shall apply to the land accordingly, subject however to the terms of the agreement.
(3) An agreement under subsection (2) above may contain such consequential and incidental provisions, including provisions of a financial character, as appear to the appropriate Crown authority to be necessary or equitable, but the approval of the Treasury shall be required in so far as those provisions are of a financial character in an agreement which relates to land referred to in subsection (4)(b) below.
(4) In the foregoing provisions of this section "the appropriate Crown authority" means—

(a) in relation to land belonging to Her Majesty in right of the Crown or otherwise, the Crown Estate Commissioners or such other government department or other person as has the management of the land in question; and

(b) in relation to land belonging to a government department or held in trust for Her Majesty for the purposes of a government department, that department;

and if any question arises as to what authority is the appropriate Crown authority in relation to any land, that question shall be referred to the Treasury, whose decision shall be final.").
The noble and learned Lord said: This clause has been revised somewhat to accord with Her Majesty's wish that the Bill should not apply automatically to Her Majesty's private estates, although, as with Crown lands, provision should be included to enable agreement to be made for application of any of the Bill's provisions to those estates. The effect of the clause otherwise remains unchanged. I beg to move.
Lord Ross of Marnock: My Lords, this too is an important clause, if you go to subsection (4)(b) it says:
"in relation to land belonging to a government department".
That is important as to how you decide which land is related to a Government department. I remember that quite recently there was a case in respect of the sale of land and properties at Hamilton—Hamilton College—and that one of the devices which was used by some people to apologise on behalf of the Scottish Office for what happened was, "Oh, but it is not Crown land; it belongs to a college". But it was a Government department which had bought the land and which had put up the buildings, and in respect of which the troubles arose.

449
This, too, is a clause on which we could have spent a little more time, but it is certainly better than it was. I think we have got to take the necessary action in respect of the different kinds of Crown land, whether it be in relation to Her Majesty's private estates or in relation to Crown land held by the Crown Estates Commissioners, or in relation to a Government department, which is also Crown land. Much as I should have liked to expand my thoughts on this subject, I am certainly prepared, even with this cursory examination of it, to accept the amendment.
The Earl of Selkirk: My Lords, may I ask whether this includes the Duchy of Cornwall, for instance, which I gather does not belong to Her Majesty?
Lord Mackay of Clashfern: My Lords, so far as I understand the question this does not arise in relation to this matter.
Clause 144 [Interpretation]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 63:
[Printed earlier: col. 422. ]
The noble and learned Lord said: My Lords, I spoke to this amendment earlier. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 64 and 65:
Page 91, line 24, leave out ("section 25(1)") and insert ("subsection (1) of section 25")
line 27, leave out ("cleansing") and insert ("such cleansing as an islands or district council are required by sub-sections (1) and (3) of that section to undertake").
The noble and learned Lord said: My Lords, with your Lordships' permission, I should like to take Amendments Nos. 64 and 65 together.
These are drafting amendments. Amendment No. 65 extends the definition of "maintenance" to include the power to the appropriate roads authority to cleanse special roads and trunk roads which, as regards cleansing, are not provided for under the Local Government and Planning (Scotland) Act 1982. I beg to move.
Lord Ross of Marnock: My Lords, we are taking these together, so I will put just one very quick question. If your Lordships look at line 26 your Lordships will see the words:
"restriction of powers of local authorities as regards street cleansing".
I hope we are going to get rid of the word "street". We cannot have Scottish legislation tainted with the word "street"! We have gone to so much trouble to remove it from the Bill, stemming from the Acts of 1839. Here we have the word which does all the damage daring to creep into the legislation. Will the noble and learned Lord the Lord Advocate give a pledge that he will look at this to see if he can "cleanse" this particular phrase and get rid of this rather dirty word "street"?
Lord Mackay of Clashfern: My Lords, "cleanse" is appropriate in this situation, I suppose. This is a
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sidenote to the provision, and it is intended to be helpful by way of reference. Certainly I will look at what the noble Lord has said.
Lord Ross of Marnock: My Lords, everyone understands it, but we spent pages and pages of Schedule 8 getting rid of the word "street", which everyone understands and which it would be helpful to leave. And we have not even had a proper opportunity to look at this tonight.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 66:
Page 91, line 32, at end insert—
(" "obstruction") includes obstruction of view;").
The noble and learned Lord said: My Lords, my noble friend Lord Selkirk helpfully drew attention in Committee to the importance of preventing obstruc-tion of view for traffic. Clause 80 provides for that, but only at corners, bends and junctions. In the interests of road safety it is desirable to enable clear views to be ensured where necessary in other circumstances. The amendment seeks to achieve this by providing that any reference in the Bill to an obstruction includes— and, of course, that depends on the circumstances— obstruction of view. I beg to move.
The Earl of Selkirk: My Lords, I should like to thank my noble and learned friend the Lord Advocate very much for this. I think this is an extremely good amendment. Whether it was intended to be covered elsewhere I do not know, but it now makes it quite clear that the word "obstruction" is not necessarily physical; it can also be visual. I believe it is of quite far-reaching importance, and I am very grateful to my noble and learned friend.
Lord Ross of Marnock: My Lords, this could include the obstruction of view by smoke from stubble burning. I have had to hold back my noble friend Lord John-Mackie from making a speech on this. But as long as we understand that that is included, I shall be quite pleased.
Lord John-Mackie: My Lords, with the leave of my noble friend, straw burning is an ad hoc operation, not necessarily a permanent obstruction. It would be difficult to include straw burning. I think that the noble Lord would be better not to push the straw burning and leave it to the noble Lord, Lord Alport's Bill which will deal with it better than this can.
Lord Mackay of Clashfern: My Lords, I shall resist the temptation to intervene between the noble Lords opposite.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 67:
Page 93, line 37, after ("than") insert ("a").
The noble and learned Lord said: My Lords, this is a simple drafting amendment. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 68:
Page 94, line 14, leave out subsections (4) to (7).
The noble and learned Lord said: My Lords, if I may, with leave I will take Amendments Nos. 68 and 69 together.
Amendment No. 69: After Clause 144, insert the following new clause:
(" Further provision as to interpretation and certain ancillary powers.
.—(1) A power conferred on a roads authority by, under or by virtue of this Act to provide, erect, construct, lay or plant includes a power to alter, remove, re-lay, or, as the case may be, re-plant; and in relation to the power conferred by section 24 of this Act also includes the power temporarily to close:
Provided that the foregoing provisions of this subsection shall not apply where the context otherwise requires or where or in so far as such application would result in overlap with, or would admit avoidance of, express provisions of this Act.
(2) The power conferred on a roads authority by section 1(1) or 2(1) of this Act to determine the means of exercise of a public right of passage includes the power to redetermine by order under this subsection such means of exercise.
(3) Subsections (1) and (2) of section 69 of this Act shall apply in relation to an order under subsection (2) above as they apply to an order under section 66 or 67 of this Act.
(4) A local roads authority shall have power to carry out any works necessary for giving effect to an order by them under subsection (2) above; and in so far as the carrying out of any such works, or any change in the use of land resulting from any such order, constitutes development within the meaning of the Town and Country Planning (Scotland) Act 1972, permission for that development shall be deemed granted under Part III of that Act.").
These are complementary amendments. Their effect is to take out Clause 144 and transfer to a separate clause provisions relating to certain powers of roads authorities. The noble Lord, Lord Ross of Marnock, pointed out to us at Committee stage that he regarded it as inappropriate to have these powers in the interpretation clause. Having heard what he said, I feel that he is absolutely correct about this and we have therefore given effect to that point by these amendments. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 69:
[Printed above. ]
Lord Mackay of Clashfern Lord Mackay of Clashfern moved amendment No. 70:
[Printed earlier: col. 446. ]
The noble and learned Lord said: My Lords, I spoke to this with Amendment No. 56. I beg to move.
Lord Mackay of Clashfern: My Lords, I beg to move Amendment No. 71:
[Printed earlier: col. 433. ]
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 25. I beg to move.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 72:
[Printed earlier: col. 439. ]
Schedule 8 [Minor and consequential amendments]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendment No. 73:
Page 114, line 9, at end insert—
("The Trespass (Scotland) Act 1865 (c. 56)
.—(1) The Trespass (Scotland) Act 1865 shall be amended in accordance with this paragraph.
(2) In section 2 (interpretation), at the end there shall be added the following definition—
"Road" shall mean and include any way, other than—

(a) a waterway; or

(b) without prejudice to section 97(c) (damage to roads by fire) or 121(3) (camping in a road) of the Roads (Scotland) Act 1984, a road within the meaning of that Act.".

(3) In section 3 (offences), the words "private", where it occurs for the second time, and ", or on or near any highway." shall cease to have effect.").

The noble and learned Lord said: My Lords, with your Lordships' leave, I should like to speak also to Amendments Nos. 74 to 102 en bloc.
Amendment No. 74: Page 114, line 33, at end insert—
("The Entail Amendment (Scotland) Act 1875 (c. 61)
. In section 3 of the Entail Amendment (Scotland) Act 1875 (interpretation), in paragraph 5 of the definition of "Improvements"—

(a) for the words "private roads" there shall be substituted the words "roads (other than roads within the meaning of the Roads (Scotland) Act 1984)"; and

(b) for the words "roads or streets" there shall be substituted the words "private roads (within the meaning of the said Act of 1984)".

The Settled Land Act 1882 (c. 38)
. In section 25 of the Settled I and Act 1882 (description of authorised improvements)—

(a) in paragraph (viii) for the words "private roads; roads or streets" there shall be substituted the words "roads (other than roads within the meaning of the Roads (Scotland) Act 1984); private roads (within the meaning of the said Act of 1984)"; and

(b) in paragraph (xvii), the word "streets" shall cease to have effect."

The Electric Lighting Act 1882 (c. 56)
.—(1) The Electric Lighting Act 1882 shall be amended in accordance with this paragraph.
(2) In section 12 (incorporation of certain provisions), after the words "North of Scotland District" there shall be added the words "and as if 'street' meant 'road' as defined in this Act.".
(3) In section 13 (restriction on breaking up private roads etc.)—

(a) for the words "street which is not repairable by the inhabitants at large" there shall be substituted the words "road which is not a public road (within the meaning of the Roads (Scotland) Act 1984)"; and

(b) for the word "street", where it occurs for the second time, there shall be substituted the word "road".

(4) In section 14 (restrictions as to above-ground works—

(a) for the word "street" there shall be substituted the word "road"; and

(b) for the word "local", in both places where it occurs, there shall be substituted the word "roads".

(5) In section 15 (power of undertakers to alter position of pipes and wires), for the word "street" wherever it occurs, there shall be substituted the word "road".
(6) In section 32 (interpretation), for the definition of "street" there shall be substitued the following definitions—
"The expression "road" means any way (other than a substitute road made under section 71 (1) of the Roads (Scotland) Act 1984 or a waterway) within the area in which the undertakers are authorised to supply electricity by this Act or by any licence, order, or special Act, whether or not there is over that way a public right of passage and whether or not it is for the time being formed as a way; and the expression includes a square or court, and any part of a road; and
The expression "roads authority" has the same meaning as in the Roads (Scotland) Act 1984.".

453
(7) In section 36 (application of Act to Scotland), the definition of "local authority" shall cease to have effect.").
Amendment No. 75: Page 115, line 10, at end insert—
("The Military Lands Act 1892 (c. 43)
.—(1) The Military Lands Act 1892 shall be amended in accordance with this paragraph.
(2) For section 13 (power to stop or divert footpaths) there shall be substituted the following section—
"13. In relation to a footpath crossing or near to land leased under this Act. the Roads (Scotland) Act 1984 shall have effect as if in subsection one of section sixty six thereof (power of roads authorities to stop up roads by order) there were added to the grounds for stopping up a road the ground that the road crosses or runs inconveniently or dangerously near to such land.
In this section "footpath" has the same meaning as in the said Act of 1984.".
(3) In section 25 (application to Scotland)—

(a) subsection (7) shall cease to have effect; and

(b) at the end there shall be added the following subsection—

(10) In section 16 of this Act—

(a) for the references to "highway" there shall be substituted references to "road"; and

(b) after the word "footpath" in subsection (2) there shall be inserted the words "within the meaning of the Roads (Scotland) Act 1984".")

Amendment No. 76: Page 115, line 37, at end insert—
("The Electric Lighting (Clauses) Act 1899 (c. 19)
.—(1) The Schedule to the Electric Lighting (Clauses) Act 1899 shall be amended in accordance with this paragraph.
(2) In section 1 (interpretation)—

(a) after the definition of "railway" there shall be inserted the following definitions—

"The expression 'road'" has the same meaning as in the Public Utilities Street Works Act 1950 except that the expression 'public road' has the same meaning as in the Roads (Scotland) Act 1984:

The expression 'roads authority' has the same meaning as in the said Act of 1984:"; and

(b) in the definition of 'tramway', for the word 'street' there shall be substituted the word 'road'.

(3) In section 11 (additional provisions as to works), for the word "streets" there shall be substituted the word "roads".
(4) In section 12 (powers for execution of works)—

(a) for the words "street or part of a street not repairable by the inhabitants at large" there shall be substituted the words "road which is not a public road";

(b) for the word "streets" there shall be substituted the word "roads"; and

(c) for the word "street", where it last occurs, there shall be substituted the word "road".

(5) In section 13(1) (street boxes) for the word "street", in both places where it occurs, there shall be substituted the word "road".
(6) In section 14 (service of notice of works etc.)—

(a) in subsection (1)—

(i) at the beginning there shall be inserted the words "subject to subsection (2) below,";

(ii) for the words "street or public bridge" there shall be substituted the words "road, or any bridge comprised in a road and over which there is a public right of passage,"; and

(iii) in paragraph (a), for the word "street" there shall be substituted the word "road"; and

(b) for subsection (2) there shall be substituted the following subsections—

"(2) Where the road (or bridge) in, under, along or across which the works are to be placed is a public road, subsection (1) above shall apply with the substitution for any reference to a local authority of a reference to the roads authority; except that where the roads authority is the Secretary of State—

(a) paragraph (c) of that subsection shall not apply in relation to amendments or conditions imposed by him or to disapproval by him; and

(b) paragraph (e) of that subsection shall apply as if the words "or by the Secretary of State" were omitted.

(3) Subject to subsection (2) above, in subsection (1) above "local authority" means the regional or islands council".
(7) In section 15 (exercise of powers of undertakers in relation to private streets, railways, tramways and canals)—

(a) for the words "street or part of a street not repairable by the local authority, including, where the area of supply is not wholly in a county borough, the county council" there shall be substituted the words "road which is not a public road";

(b) in paragraph (a), for the words "street or part of a street" there shall be substituted the word "road"; and

(c) in paragraph (d), for the word "street" there shall be substituted the word "road".

(8) In section 16 (notice of desire to break up streets, etc. on behalf of undertakers)—

(a) for the words "street or part of a street", in both places where they occur, there shall be substituted the word "road"; and

(b) for the word "streets" there shall be substituted the word "roads".

(9) In section 17 (alteration of wires, pipes, etc. under streets), for the word "street", wherever it occurs, there shall be substituted the word "road".
(10) In section 21 (laying of mains etc.)—

(a) in subsection (2), for the words "street or part of a street" there shall be substituted the word "road"; and

(b) in subsection (3)—

(i) for the words "street not repairable by the local authority" there shall be substituted the words "road which is not a public road and"; and

(ii) for the word "street", where it occurs for the second and third times, there shall in each case be substituted the word "road".

(11) In section 22 (laying of electric line under special agreement)—

(a) for the words "local authority", where they first occur, there shall be substituted the words "roads authority (or, in the case of a road which is not a road within the meaning of the Roads (Scotland) Act 1984, the regional or islands council)";

(b) for the word "street", in both places where it occurs, there shall be substituted the word "road"; and

(c) for the words "local authority", where they occur for the second time, there shall be substituted the words "roads authority or council (as the case may be)".

(12) In section 24 (manner in which requisition is to be made)—

(a) in subsection (1)—

(i) for the words "street or part of a street", wherever they occur, there shall be substituted the word "road";

(ii) for the words "the local authority have the control and management of the public lamps" there shall be substituted the words "a roads authority maintain under section 34 of the Roads (Scotland) Act 1984 the lighting"; and

(iii) for the word "local", where it occurs for the second time, there shall be substituted the word "roads"; and

(b) in each of subsections (2) and (3), for the word "local" there shall be substituted the word "roads".

(13) In section 26 (provisions on requisition by local authority)—

(a) for the word "local," in both places where it occurs, there shall be substituted the word "roads"; and

(b) for the words from "lighting" to the end there shall be substituted the words "lighting maintained by them in the road in respect of which the requisition is made".

(14) In section 77 (responsibility of undertakers for damages), for the word "street" there shall be substituted the word "road".
(15) In the Appendix, in the words setting out section 12 of the Electric Lighting Act 1882, after the words "North of Scotland District" there shall be added the words "and as if 'street' meant 'road' as defined in this Act.".").
Amendment No. 77: Page 116, line 18, at end insert—
("The Defence of the Realm (Acquisition of Land) Act 1916 (c. 63)
. In section 15 of the Defence of the Realm (Acquisition of Land) Act 1916 (application to Scotland), at the end there shall be added the following paragraph—
"(d) for references to "highway" and "street" there shall be substituted references to a road within the meaning of the Roads (Scotland) Act 1984."
The Electricity (Supply) Act 1919 (c. 100)
. In section 22 of the Electricity (Supply) Act 1919 (way-leaves)—

(a) in subsection (2)(g), for the word "streets", in both places where it occurs, there shall be substituted the word "roads"; and

(b) in subsection (4), for the words "street or public bridge" there shall be substituted the words "road, or any bridge comprised in a road and over which there is a public right of passage".").

Amendment No. 78: Page 116, line 41, at end insert—
(" ( ) In section 119(3) (power of local highway authority to borrow for purposes related to running public service vehicles)—

(a) for the word "highway" there shall be substituted the word "roads";

(b) the words "for the purpose of the payment of the consideration for a transfer under section fifty-three of this Act or" shall cease to have effect; and

(c) at the end there shall be added the words "of this Act".").

Amendment No. 79: Page 117, line 46, at end insert—
("The Public Order Act 1936 (c. 6)
. In section 9(1) of the Public Order Act 1936 (interpretation), in the definition of "public place", after the word "highway" there shall be inserted the words ", or in Scotland any road within the meaning of the Roads (Scotland) Act 1984,".").
Amendment No. 80: Page 118, line 9, at end insert—
("The Requisitioned Land and War Works Act 1945 (c. 43)
. —(1) The Requisitioned Land and War Works Act 1945 shall be amended in accordance with this paragraph.
(2) In section 15(2)(c) (stopping up or diversion of roads), for the words, "Trunk Roads Act, 1936" there shall be substituted the words "provisions of the Roads (Scotland) Act 1984 relating to trunk roads".
(3) In section 60(3) (application to Scotland), after the word "Gazette;", in the second place where it occurs, there shall be substituted a reference to a road within the meaning of the Roads (Scotland) Act 1984;".
The Fire Services Act 1947 (c. 41)
.—(1) The Fire Services Act 1947 shall be amended in accordance with this paragraph.
(2) In section 3 (supplementary powers of fire authorities)—

(a) in subsection (l)(c), for the word "street", in both places where it occurs, there shall be substituted the word "road"; and

(b) in subsection (2), for the words from "trunk road" to the end of paragraph (a) there shall be substituted the words "public road a fire authority shall (where they are not themselves the roads authority) obtain the consent of the roads authority; and—

(a) without prejudice to the foregoing provisions of this subsection, the said powers shall not be exercised in a district except after consultation with the council of the district,".

(3) In section 14(3)(a) (marking of positions of fire hydrants), for the word "street" there shall be substituted the word "road".
(4) In section 30(5) (powers of firemen and police in extinguish- ing fires), for the word "street", in both places where it occurs, there shall be substituted the word "road".
(5) In section 38(1) (interpretation), for the definition of "street" there shall be submitted the following definitions—
" 'road' has the same meaning as in the Public Utilities Street Works Act 1950; and
'roads authority' has the same meaning as in the Roads (Scotland) Act 1984;".")
Amendment No. 81: Page 118, line 16, at end insert—
("The Electricity Act 1947 (c. 54)
.—(1) The Electricity Act 1947 shall be amended in accordance with this paragraph.
(2) in section 9(3) (application of certain provisions of the Electric Lighting (Clauses) Act 1899), for the words "street or public bridge" there shall be substituted the words "road, or any
456
bridge comprised in a road and over which there is a public right of passage".
(3) In section 50(3) (exercise of powers relating to breaking up streets, etc.), for the word "streets" there shall be substituted the word "roads".").
Amendment No. 82: Page 132, line 46, leave out second ("of) and insert ("or").
Amendment No. 83: Page 133, line 15, at end insert—
("The Prevention of Crime Act 1953 (c. 14)
. In section 1(4) of the Prevention of Crime Act 1953 (inter-pretation) after the word "highway" there shall be inserted the words ", or in Scotland any road within the meaning of the Roads (Scotland) Act 1984,".").
Amendment No. 84: Page 133, line 40, at end insert—
("The Land Powers (Defence) Act 1958 (c. 30)
. In section 9(4) of the Land Powers (Defence) Act 1958 (supplementary provisions with respect to stopping up and diversion of highways), for the words from the beginning to "right of way", where it first occurs, there shall be substituted the words—
"(4) In section 8 of this Act and this section, in their applica-tion to Scotland, "highway" means a road within the meaning of the Roads (Scotland) Act 1984: ").
Amendment No. 85: Page 134, line 25, at end insert—
("The Manoeuvres Act 1958 (7 & 8 Eliz. 2. c. 7)
.—(1) The Manoeuvres Act 1958 shall be amended in accordance with this paragraph.
(2) In section 3 (powers to close roads)—

(a) in subsection (1), for the words "Special Roads Act, 1949" there shall be substituted the words "Roads (Scotland) Act 1984"; and

(b) subsection (5)(a) shall cease to have effect.

(3) In section 9 (interpretation), after the definition of "authorised forces" there shall be inserted the following definition—

" "highway", in relation to Scotland, means a road within the meaning of the Roads (Scotland) Act 1984; "").

Amendment No. 86: Page 134, line 47, at end insert—
("The Road Traffic Act 1960 (c. 16)
. In section 257(1) of the Road Traffic Act 1960 (general interpretation), for the definition of "road" there shall be substituted the following definition—
" 'road' has the same meaning as in the Roads (Scotland) Act 1984;".").
Amendment No. 87: Page 135, line 6, at end insert—
("The Pipe-lines Act 1962 (c. 58)
.—(1) The Pipe-lines Act 1962 shall be amended in accordance with this paragraph.
(2) In section 15 (power to place pipe-lines in streets)—

(a) in subsections (1) to (9), for the word "street", wherever it occurs, there shall be substitued the word "road":

(b) in subsection (4) in each of paragraphs (c) and (d), for the word "highway" there shall be substituted the words "road over which there is a public right of passage";

(c) in subsection (7), for the words from "shall be determined" to the end there shall be substituted the words "shall be referred to the arbitration of a single arbiter appointed by agreement between the parties concerned or, in default of agreement, by the sheriff; and in any such arbitration the arbiter may, and, if so directed by the Court of Session, shall, state a case for the decision of that court on any question of law arising in the arbitration."; and

(d) for subsections (10) and (11) there shall be substituted the following subsection—

"(10) In this section, except where the context otherwise requires—
"appropriate authority", in relation to a road, means—

(a) where the road is a public road, the roads authority;

(b) where the road is a prospective public road, the roads authority and the road managers;

(c) where the road is neither a public road nor a prospective public road, the road managers;

"carriageway" has the same meaning as in the Roads (Scotland) Act 1984;
"prospective public road" shall be construed in accordance with section l(4)(b) of the Public Utilities Street Works Act 1950;

457
"protected road" means—

(a) a special road;

(b) a trunk road; or

(c) such other road as is for the time being classified by the Secetary of State under section

11 (1) of the said Act of 1984 as a protected road for the purposes of this Act;
"public road" has the same meaning as in the said Act of 1984;
"road" and "road managers" have the same meanings as in the said Act of 1950; and
"roads authority", "special road" and"trunk road" have the same meaning as in the said Act of 1984.".
(3) In section 16 (modification of street works code in applica- tion to pipe-line works)—
(a) in subsection (1)—

(i) for the word "street", where it occurs for the first and fourth times, there shall in each case be substituted the word "roads";

(ii) for the words "street which is a maintainable highway or is prospectively a maintainable highway" there shall be substituted the words "road which is a public road or prospective public road";

(iii) for the word "street", where it occurs for the third time, there shall be substituted the word "road"; and

(iv) for the word "arbitrator" there shall be substituted the word "arbiter"; and

(b) in subsection (2)(b), for the word "arbitrator" there shall be substituted the word "arbiter".
(4) In section 66(1) (interpretation), in the definition of "in" for the word "street" there shall be substituted the word "road".").
Amendment No. 88: Page 135, line 39, at beginning insert—
(" .—(1) The Countryside (Scotland) Act 1967 shall be amended in accordance with this paragraph.
(2) In section 46 (protection and maintenance of public rights of way)—

(a) in subsection (2), for the words "footpath at the side of a road" there shall be substituted the word "footway"; and

(b) in subsection (3), after the words "than a" there shall be inserted the word "public".

(3) In section 47 (interpretation), at the end there shall be added the following definition—
"; and
'public road' has the same meaning as in the Roads (Scotland) Act 1984.".
(4) ").
Amendment No. 89: Page 135, line 39, leave out ("of the Countryside (Scotland) Act 1967").
Amendment No. 90: Page 136, line 12, at end insert—
("(5) In section 78(1) (interpretation)—

(a) after the definition of "enactment" there shall be inserted the following definition—

" 'footway' has the same meaning as in the Roads (Scotland) Act 1984;"; and

(b) for the definition of "road" there shall be substituted the following definition—

" 'road' has the same meaning as in the Roads (Scotland) Act 1984;";").

Amendment No. 91: Page 138, line 31, at end insert—
("The Countryside Act 1968 (c. 41)
. In section 32 of the Countryside Act 1968 (traffic regulation orders for the countryside)—

(a) in subsection (8), for the word "highway" there shall be substituted the word "roads";

(b) in subsection (10)—

(i) in the definition of "Crown road", for the word "highway" there shall be substituted the words "public road";and

(ii) for the definition of "road" there shall be substituted the following definitions—

" 'road', 'public road' and 'trunk road' have the same meanings as in the Roads (Scotland) Act 1984.".").

Amendment No. 92: Page 139, line 16, at end insert—
("The Caravan Sites Act 1968 (c. 52)
. In section 13(1) of the Caravan Sites Act 1968 (twin-unit caravans} for the word "highway" there shall be substituted the word "road".").
Amendment No. 93: Page 142, line 13, at end insert—
("The Road Traffic Act 1972 (c. 20)
.—(1) The Road Traffic Act 1972 shall be amended in accordance with this paragraph.
(2) In section 14 (motor racing on highways) for the word "highway" there shall be substituted the word "road".
(3) In section 15(1) (regulation of motoring events on highways), for the word "highway" there shall be substituted the word "road".
(4) In section 20 (regulation of cycle racing on highways), in each of subsections (1), (2) and (5), for the word "highway" there shall be substituted the word "road".
(5) In section 34 (requirements as to employment of persons to attend to locomotives and trailers), in each of subsections (1) and (2), for the word "highway", wherever it occurs, there shall be substituted the word "road".
(6) In each of sections 36A(4) and 36B(8) (interpretation), for the words "1970" there shall be substituted the words "1984".
(7) In section 38(2A)(b) (duty of local authorities to promote road safety), for the word "highway" there shall be substituted the word "roads".
(8) In section 57(7) (power to prohibit driving of excessively heavy goods vehicle), for the words "highway authority other than the Secretary of State" there shall be substituted the words "local roads authority".
(9) In section 160 (weighing of motor vehicles)—

(a) in subsection (1), for the word "highway", in both places where it occurs, there shall be substituted the word "roads";

(b) in subsection (2)—

(i) for the word "highway" there shall be substituted the word "roads"; and

(ii) for the word "arbitrator" there shall be substituted the word "arbiter"; and

(c) in subsection (4)—

(i) for the word "highway" there shall be substituted the word "roads"; and

(ii) the words "the Lord Chief Justice of England or, as the case may be," shall cease to have effect.

(10) In section 196 (general interpretation)—

(a) after the definition of "bridleway" there shall be inserted the following definition—

" 'carriageway' has the same meaning as in the Roads (Scotland) Act 1984;";

(b) in the definition of "footpath", at the end there shall be added the words—

"(whether or not associated with a carriageway)";

(c) for the definition of "highway authority" there shall be substituted the following definition—

" 'local roads authority' has the same meaning as in the Roads (Scotland) Act 1984;";

(d) after the definition of "prescribed" there shall be inserted the following definition—

" 'public road' has the same meaning as in the Roads (Scotland) Act 1984;";

(e) for the definition of "road" there shall be substituted the following definitions—

" 'road' and 'special road' have the same meanings as in the Roads (Scotland) Act 1984;"; and

(f) after the definition of "trolley vehicle" there shall be inserted the following definition—

" 'trunk road' has the same meaning as in the Roads (Scotland) Act 1984;".

(11) In section 200 (provision, etc., of weighbridges), for the word "highway", wherever it occurs, there shall be substituted the word "roads".
(12) In Schedule 4 (prosecution and punishment of offences), in column 2, in the entries relating to sections 14, 15 and 20, for the word "highways" there shall in each case be substituted the word "roads".").
Amendment No 94: Page 147, line 2, at end insert—
("The Gas Act 1972 (c. 60)
.—(1) The Gas Act 1972 shall be amended in accordance with this paragraph.
(2) In section 39(2) (application of Pipe-lines Act 1962), for the word "street", in both places where it occurs, there shall be substituted the word "road".
(3) In Schedule 4 (gas supply code)—

(a) in paragraph 1—

(i) in sub-paragraph (1), for the word "street", wherever it occurs, there shall be substituted the word "road";

459

(ii) in sub-paragraph (2), for the word "street", where it occurs for the first, third and fourth times, there shall be substituted the word "road", and for the words from "highway" to "of the street" there shall be substituted the words "roads authority or road managers";

(iii) in the proviso to sub-paragraph (3), for the word "street", wherever it occurs, there shall be substituted the word "road";

(iv) in sub-paragraph (4), for the words from "street" to "the public expense" there shall be substituted the words "road or bridge which does not constitute a road within the meaning of the Roads (Scotland) Act 1984", and the words "In the application" to "1970" shall cease to have effect;

(v) in sub-paragraph (5), for the word "street" there shall be substituted the word "road"; and

(vi) in sub-paragraph (6), for the words from "15" to "mains" there shall be substituted the words "125 of the Roads (Scotland) Act 1984 (restriction on laying of apparatus"; and

(b) in paragraph 36, for the definition of "street" there shall be substituted the following definitions—

" "road", "roads authority" and "road managers" have the same meanings as in the Public Utilities Street Works Act 1950.".").

Amendment No. 95: Page 147, line 24, at end insert—
(" (8) In section 77(4), for the words "69 and 70(2)" there shall be substituted the words "and 69".
(9) In section 80 (general interpretation)—
(a) in subsection (1)—

(i) there shall be inserted in the appropriate places in alphabetical order the following definitions—

"carriageway" has the same meaning as in the Roads (Scotland) Act 1984;

"local roads authority" has the same meaning as in the Roads (Scotland) Act 1984;

"roads authority" has the same meaning as in the Roads (Scotland) Act 1984; "; and

(ii) for the definition of "road" there shall be substituted the following definition—

" "road" has the same meaning as in the Roads (Scotland) Act 1984; "; and

(b) subsection (2) shall cease to have effect.").
Amendment No. 96: Page 149. line 8, at end insert—
("The Safely of Sports Grounds Act 1975 (c. 52)
. In section 17(1) of the Safety of Sports Grounds Act 1975, in the definition of "means of access", for the word "highway" there shall be substituted the word "road".").
Amendment No. 97: Page 150, line 4, at end insert—
("The Electricity (Scotland) Act 1979 (c. 11)
. In section 12(6) of the Electricity (Scotland) Act 1979 (application of certain provisions in relation to compulsory purchase of land), for the words "street or public bridge" there shall be substituted the words 'road, or any bridge comprised in a road and over which there is a public right of passage, ".").
Amendment No. 98: Page 155. line 10, at beginning insert—
(" .—(1) The Civil Aviation Act 1982 shall be amended in accordance with this paragraph.
(2) ").
Amendment No. 99: Page 155, line 10, leave out ("of the Civil Aviation Act 1982").
Amendment No. 100: Page 155, line 15, at end insert—
("(3) In paragraph 4 of Schedule 2 (application to Civil Aviation Authority of enactments relating to statutory undertakers)—

(a) the words "section 39 of the Roads (Scotland) Act 1970" shall cease to have effect; and

(b) at the end there shall be added the words "; section 133 of the Roads (Scotland) Act 1984.".").

Amendment No. 101: Page 155, line 21, leave out ("inserted") and insert ("substituted").
Amendment No. 102: Page 156, line 42, at end insert—
("The Litter Act 1983 (c. 35)
. In section 7(1) of the Litter Act 1983 (litter bins in Scotland), for paragraph (a) there shall be substituted the following paragraph—
"(a) in or adjacent to any road (within the meaning of the Roads (Scotland) Act 1984) maintainable or maintained by a local authority,".
The Prevention of Terrorism (Temporary Provisions) Act 1984 (c. )
. In section 2(3) of the Prevention of Terrorism (Temporary Provisions) Act 1984, after the word "highway" there shall be inserted the words ", or in Scotland any road within the meaning of the Roads (Scotland) Act 1984,".")
These amendments make consequential amend-ments to a number of statutes in conformity with the new arrangements and structure povided by the Bill. I sought to explain earlier that this is the most practical way of achieving consistency of structure between this codifying measure and other enactments. I beg to move.
The Earl of Selkirk: My Lords, I take it that the first one would be paragraph 5 of Schedule 8. 1 wondered why "5" is not included or "5(a)"' I imagine it should be included in that position.
Lord Mackay of Clashfern: My Lords, that is my understanding, that it will go in that place and the appropriate numbering will go in.
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 74 to 102:
[Printed above: cols. 452–460. ]
The Deputy Speaker (Lord Murton of Lindisfarne): My Lords, with the agreement of the House, I put Amendments Nos. 74 to 102 en bloc. The Question is that these amendments be agreed to.
Lord Ross of Marnock: My Lords, I should draw attention to Amendment No. 74 where we have the words:
"street which is not repairable by the inhabitants at large"—
substituted by the words—
"road which is not a public road (within the meaning of the Roads (Scotland) Act 1984).
Then if we go to page 14 of the Marshalled List—there are 18 pages of amendments to this schedule which we clearly ought to examine carefully—in relation to the Electric Lighting (Clauses) Act 1899, we find it says:
" 'street or part of a street not repairable by the inhabitants at large' there shall be substituted the words 'road which is not a public road'."
Why is there the difference in the definition there? There should be consistency in something as misleading and confusing as all this.
Lord Airedale: My Lords, I wonder whether we are going to get ourselves into the Guinness Book of Records for the largest number of amendments that have ever been taken en bloc.
Lord Mackay of Clashfern: My Lords, I am sorry that I cannot answer that question. These amendments would be described by many of my colleagues. I think, as drafting amendments in the ordinary situation. Whether it helps to repeat that for the number of times that it would be necessary I am not certain.
Lord Ross of Marnock: My Lords, with all due respect, they are not drafting amendments. These are not in the original Bill. They were not there at Committee stage; were not put in at Committee stage or promised at Committee stage. They were completely new arising from the examination of legislation; and. as I have said, they will not be the end. There are 18 pages of these amendments. This increases the size of the schedule which when first we saw it consisted (I think) of 25 pages. By the time this is finished, it will consist of 46 plus 18, which is 64.
Lord Mackay of Clashfern: My Lords, with the leave of the House, I would add that so far as the question of the noble Lord, Lord Ross of Marnock, is concerned, the two passages to which he drew attention are perfectly consistent because they are related to the context in which the word appears. One has to take account of context in making these amendments.
Schedule 10 [Repeals]:
Lord Mackay of Clashfern Lord Mackay of Clashfern moved Amendments Nos. 103 to 117:
Page 158, line 16, at end insert—

("28 & 29 Vict. c. 56.

The Trespass (Scotland) Act 1865.

In section 3, the words "pri- vate", where it occurs for the second time, and ", or on or near any highway.".")

line 18, at end insert—

("45 & 46 Vict. c. 38

The Settled Land Act 1882

In section 25 (xvii), the word "Streets".

45 & 46 Vict. c. 56.

the Electric Lighting Act 1882.

In section 36, the definition of "local authority".")

line 26, at end insert—

("55 & 56 Viet. c. 43.

The Military Lands Act 1892.

Section 25(7).")

line 35, at end insert—

("9 Edw. 7 c. 34.

The Electric Lighting Act 1909.

In section 25, the definition of "road".")

line 38, at end insert—

("9&10 Geo. 5 c. 50.

The Ministry of Transport Act 1919.

Schedule 2. ").

line 49, after ("words") insert ("for the purpose of the payment of the consideration").

Page 159, line 50, at end insert—

("7 & 8 Eliz. 2 c. 7.

The Manoeuvres Act 1958.

Section 3(5)(a),").

Page 160, line 6, at end insert—

("1965 c. 36

The Gas Act 1965.

In Schedule 1, paragraphs 7(3) (c)and 12(l)(c).")

column 3, leave out lines 10 and 11 and insert ("and "local high way authority".")

line 40, at end insert—

("1972 c. 20.

The Road Traffic Act 1972.

Section 13(b). Section 19(2)(b). In section 160(4), the words "the Lord Chief Justice of England or. as the case may be,".).

Page 161, line 33, at end insert—

("1972 c. 60.

The Gas Act 1972.

In Schedule 4, in paragraph 1(4), the words from "In the application" to "1970".")

line 42, at end insert—

("1973 c. 65.

The Local Government (Scotland) Act 1973

In Schedule 14, paragraphs 1 to 30, 31(b), 32 to 41, 43 to 50, 51(a) and (b), 52 to 54, 57, 58, 74, 76 to 79, 87 and 88.")

line 45, column 3, at end insert—

("In section 62(1), the words from "In this subsection" to "public". Section 106(4).")

line 45, at end insert—

("1975 c. 21.

The Criminal Procedure (Scotland) Act 1975.

In Schedule 7D, paragraphs 1 and 47.").

Page 162, line 15, at end insert—

("1982 c. 16.

The Civil Aviation Act 1982.

In paragraph 4 of Schedule 2, the words "section 39 of the Roads (Scotland) Act 1970;".").

The noble and learned Lord said: My Lords, Amendments Nos. 103 to 117 make0020minor repeals arising from this Bill. I beg to move these amendments en bloc.
House adjourned at twenty-three minutes past ten o'clock.