Lords Sitting of 4 June 1985

Preamble
The House met at a quarter-past two of the clock: The LORD CHANCELLOR 011 the Woolsack.
Prayers—Read by the Lord Bishop of Gloucester.

Lord Crawshaw of Aintree
Richard Crawshaw, Esquire, OBE, having been created Baron Crawshaw of Aintree, of Salford in the County of Greater Manchester, for life—Was, in his robes, introduced between the Lord Diamond and the Baroness Seear.
Lord Williams of Elvel
Charles Cuthbert Powell Williams, Esquire, CBE, having been created Baron Williams of Elvel, of Llansantffraed in Elvel in the County of Powys, for life—Was, in his robes, introduced between the Lord Cledwyn of Penrhos and the Lord Barnett.

Currency Denominations
2.43 p.m.
The Earl of Kinnoull: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in the light of popular opinion, a £2 note will now be issued before the £1 note is finally withdrawn.
Lord Brabazon of Tara: My Lords, no. The possibility of issuing a £2 note was fully considered before the £1 coin was introduced. In practice it would probably circulate much as the £1 note does now and would therefore reach the same sorry state just as quickly.
The Earl of Kinnoull: My Lords, I thank my noble friend for that disappointing reply. Is he aware that we are the only country now within Europe—and including the United States—with a heavy preponderance of coinage to paper currency? Who are the committee which recommend this policy? What is their justification, and will they publish their report?
Lord Brabazon of Tara: My Lords, as regards being the only country to do this, other countries have tried two unit notes and they have not, on the whole, been successful: France and the United States of America are examples. Other countries have also introduced coins instead of notes. Australia, New Zealand, Germany and France have all replaced their lower value notes with coins. As for the composition of the committee, I am afraid that I do not have those details with me. I shall have to write to my noble friend.
Lord Barnett: My Lords, does the Minister agree that there must be very few countries around the world
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where the lowest value of a note starts at £5, unless the Government have in mind to bring down its value to a level that we have not yet seen? Will he not seriously put to his right honourable friend the Chancellor of the Exchequer—despite what the noble Earl is whispering in his ear—that the vast majority of people in this country would much prefer a lower denomination note? Following the answer he gave us just now, would he not accept that most people would prefer to pay the £3 million cost—and the cost is the only real argument we have ever been given on this matter—rather than have a note starting at £5?
Lord Brabazon of Tara: My Lords, the cost of £3 million is not the only reason for our having withdrawn the pound note. The fact is that the notes were becoming increasingly tatty. They were being returned to banks much less than they used to be and were circulating like coins. That is why the notes became very tatty. I find the coin most attractive—
Noble Lords: No!
Lord Brabazon of Tara:—and many people will soon get used to it.
The Earl of Lauderdale: My. Lords, is my noble friend aware that the tattiness of English pound notes does not apply to Scottish pound notes? The discriminating person could go to Scotland for a supply of clean notes which he can use down here.
Lord Brabazon of Tara: My Lords, not being a frequent visitor to Scotland, I cannot say how tatty their notes become. But I can say again that the pound coin, the Scottish pound coin and the Welsh pound coin are just as good.
Baroness Burton of Coventry: My Lords, is the Minister aware that the notes became increasingly tatty because of the poor quality paper that was used for them? Does he recall that the last time this matter was raised he was told that the notes in Hong Kong lasted five times as long? Why could we not have a better quality paper?
Lord Brabazon of Tara: My Lords, it was considered whether to make notes out of a better quality paper or from plastic. However, the tougher material would not solve the main problem which is, as I have mentioned, that the pound circulates like a coin nowadays. The coin also has advantages for use in vending and slot machines.
Lord Campbell of Croy: My Lords, is my noble friend aware that the pound coin is not becoming popular, despite what he said, and that this is reflected in a healthy import of Scottish pound notes which can still continue to be issued south of the border?
Lord Brabazon of Tara: My Lords, as I said, it is perfectly possible for Scottish pound notes to circulate south of the border, but in time they will deteriorate in the same way as the English pound notes.
Baroness Macleod of Borve: My Lords, while I entirely agree with the question put down by my noble

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friend Lord Kinnoull, may I ask my noble friend the Minister whether he is aware that charities will suffer greatly because the lowest denomination note that can be put into an envelope is £5? That is one of the reasons why I would back my noble friend Lord Kinnoull, for many of those who contribute to and support charities could not afford to donate a £5 note. That is why I want a £2 note.
Lord Brabazon of Tara: My Lords, I shall certainly take note of what my noble friend has said.
Lord John-Mackie: My Lords, the Minister has said that notes were unsuccessful in some other countries. In what way were they unsuccessful?
Lord Brabazon of Tara: My Lords, I gather that they were unpopular.
Lord Monson: My Lords, can the noble Lord say whether Her Majesty's Government are yet in a position to disprove my earlier contention that abolition of the pound note is costing British taxpayers collectively a net £14 million per annum in the form of additional wear and tear on their clothing?
Lord Brabazon of Tara: My Lords, 1 have absolutely no evidence for that figure. I think it is very unlikely to be true.
Lord Leatherland: My Lords, may I ask the noble Lord whether he would not agree, when it is said that these notes are getting tatty, that that is in full keeping with general policy?
Lord Brabazon of Tara: My Lords, certainly not. Perhaps they are becoming tatty, but at least they are holding their value better than they used to do.

South Africa: New Constitution
2.51 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 disassociate themselves from South African Government policies, including the new constitution.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, we have repeatedly made clear our abhorrence of the policy of apartheid and the repressive measures used to enforce it. We acknowledge that the new constitution is seriously flawed since it does not recognise the political rights of South Africa's blacks but we still believe it should be given the chance to contribute to the process of reform.
Lord Hatch of Lusby: My Lords, is the noble Baroness aware that there has been some concern about her previous Answers which apparently have given a degree of approval to the new constitution? Is she further aware that when I first visited South Africa at the beginning of the establishment of apartheid all
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the Africans in the Cape and the coloureds had a limited form of parliamentary franchise and that all Africans throughout the country had an indirect form of franchise? Does she recognise how far that country has declined from those standards and how far it has to go before it can reach even that admittedly very discriminatory system of 30—odd years ago?
Baroness Young: My Lords, I do not in any way accept the first part of the noble Lord's supplementary question and I would reaffirm what I have said on earlier occasions: that it remains our view that the constitution should be given the test of time and may contribute to the process of reform.
Lord Cledwyn of Penrhos: My Lords, will the noble Baroness confirm whether the South African Government are proposing to announce an interim government for Namibia on 17th June? If that is the case, would she not agree that that would be in contravention of Resolution 435 of the United Nations? Can she say what is the policy of Her Majesty's Government at present towards that policy of the South African Government?
Baroness Young: My Lords, as I am sure the noble Lord the Leader of the Opposition will understand, that is a question about Namibia, which is outside the terms of the Question; but if he cares to put down a Question on that subject of course I should be willing to answer it.
Lord Cledwyn of Penrhos: My Lords, with great respect, I beg to differ from the noble Baroness. The Question is clear. It is a Question about our association with South African Government policies. In view of the proximity of the date of 17th June, this is clearly a matter, an urgent matter, of South African Government policy. I must press the noble Baroness to give me a full reply.
Baroness Young: My Lords, when a Question is as widely drawn as this, one can of course go very far outside it. But I should be very happy to answer the noble Lord's question if he puts it down on the Order Paper.
Lord Gisborough: My Lords, can my noble friend say whether the Government are prepared to give credit for all the many reforms that have already taken place and which are being planned, particularly by the business sector in South Africa, in an almost impossible political situation?
Baroness Young: My Lords, what I can do is to confirm that the involvement of Indians and coloureds in the Parliament has probably been a major factor in the decision to repeal the Mixed Marriages Act, Section 16 of the Immorality Act, and the Political Interference Act, which restricted membership of political parties on racial lines.
Lord Molloy: My Lords, is the noble Baroness aware that her first Answer will do very much to help destroy those on the other extreme wing of politics who are eagerly looking for any excuse to attack Great Britain, and that sometimes they have been provided

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with that kind of evidence from the Government? Her Answer today will do a lot to alleviate the attacks that are being made on Great Britain, paricularly by our friends who hate to see us being attacked by the other extremists. Will she bear in mind that this is the course we must continue and that we must not lend ourselves unwittingly to be recruiting sergeants of another evil?
Baroness Young: My Lords, I think the Answer to the original Question made clear the Government's position on this matter.
Lord Mishcon: My Lords, will the noble Baroness forgive me if I return to the supplementary question that was asked by my noble friend Lord Cledwyn, the Leader of the Opposition? May I emphasise to her and to the House the propriety of that question—
Noble Lords: Speech!
Lord Mishcon: My Lords, may I question whether her reply was a correct one, bearing in mind that the Question relates very clearly to the Government's association or disassociation with the policies of the South African Government and merely includes the constitution? Would she therefore be good enough to reply to my noble friend's supplementary question?
Baroness Young: My Lords, I should greatly regret it if the noble Lord, Lord Mishcon, or the noble Lord the Leader of the Opposition felt that there had been any discourtesy on my part. I am happy to answer questions, in so far as I am able to do so, on the constitution and on the particular point in the Question. But the whole question of Namibia, on which the Government's policy is quite clear, is another matter.
Lord Avebury: My Lords, does the Minister agree that South Africa has reached a very critical point at which, if the majority of the people of that country are not given some hope of association with political power, the vast majority of them will turn to other means of expression? Would the Government not therefore agree that it is time they did something more than mere ritual condemnation of apartheid, as they do on these occasions? Can the noble Baroness say what plans the Government have for showing in a more practical manner their disassociation with the policies of that Government?
Baroness Young: My Lords, the Government are determined to maintain pressures for change, but we must remain engaged politically, diplomatically and economically with that Government. We believe that it is vital to use all our influence and contacts to press the South African Government to introduce major reform urgently and to talk to the genuine leaders of the black community.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that those of us who are anxious to encourage the South African Government in the reformist policies which they are now adopting find our task made much more difficult by questions of this kind?
Baroness Young: My Lords, I thank my noble friend for his supplementary question.
Lord Diamond: My Lords, with apologies to many Members of your Lordships' House, will the noble Baroness and all her colleagues be good enough to dissociate herself and themselves from the use of the word "disassociation"?
Baroness Young: My Lords, if I have put things less felicitously than I should have done I am sure that the noble Lord, Lord Diamond, understands exactly what I was saying, and the Government's policy.
Lord Hatch of Lusby: My Lords, if I may return for a moment to the constitution, am I right in interpreting the noble Baroness's reply to me as advice to the vast majority of the population of South Africa to connive at the present constitution and do nothing while we wait and see what happens, in view of the fact that 20 million of the 28 million inhabitants of South Africa are black and have no representation in that constitution? Furthermore, when she is using her influence with the South African Government is she prepared also to talk to the United Democratic Federation and to the African National Congress, who are parties to the political system in South Africa today? If not, why not, in view of talks between the British Government and organisations like SWAPO and UNITA?
Baroness Young: My Lords, when the noble Lord comes to read in Hansard the Answer which I gave to his original Question he will see that I have made plain that we see this constitution as a step in the direction of reform, but of course we wish to see further measures. On the other part of the supplementary question, I should like to make it quite plain that we talk to SWAPO as a party to the negotiations on Namibia. We have never condoned SWAPO's use of violence. The ANC is committed to the overthrow, including by violent means, of a Government with which we have full diplomatic relations.
Lord Morris: My Lords, may I ask my noble friend how Her Majesty's Government can dissociate themselves from a policy with which they are not associated in the first place?
Baroness Young: My Lords, I think I have made quite clear the Government's position on the matter of apartheid. I do not wish to repeat what I have already said.

The Arts: Business Sponsorship Awards
3 p.m.
Viscount Mersey: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the total value of all applications received so far this year for awards under the Business Sponsorship Incentive Scheme for the Arts.
The Chancellor of the Duchy of Lancaster and Minister for the Arts (The Earl of Gowrie): My Lords, the total value of applications received since 1st January 1985 for awards under the Business Sponsorship Incentive Scheme is £1 million. This represents an inflow of £2·8 million of new sponsorship; or £3·8 million to arts funding generally.
Viscount Mersey: My Lords, I thank my noble friend for that very encouraging reply. I wonder whether he can enlighten me on the position of trade unions? Do they become eligible under this scheme?
The Earl of Gowrie: My Lords, I have considered representations made about the eligibility of trade unions. I am happy to accept applications from trade unions and other professional associations provided that these are for genuine sponsorship and not patronage; that is to say, a payment to an arts organisation for the purposes of promoting the name, product or services of the sponsor. We are thoroughly in favour of patronage but this scheme pertains to sponsorship.
Lord Strabolgi: My Lords, as the scheme has been so successful—for which I congratulate the noble Earl—may I ask whether he is aware that the finance will probably run dry by September? Will he consider earmarking further funds now as a help to potential sponsors who are planning sponsorships at the moment as it is difficult for them to have to wait until next April to know whether or not they are going to get support?
The Earl of Gowrie: My Lords, I am grateful to the noble Lord, Lord Strabolgi, for his generous tribute. I have no intention of jeopardising the success of the scheme.
Lord Strabolgi: My Lords, the noble Earl may not be aware that I was trying to be helpful. I was not asking him to jeopardise the scheme. I was asking him to give the scheme another nudge by earmarking further funds now so that everybody knows where they are.
The Earl of Gowrie: My Lords, I was aware that the noble Lord was trying to be helpful; and so was I, which was why I answered in the way that I did.
Lord Annan: My Lords, would the noble Earl agree that it is for each institution in the field of the arts or the performing arts to seek sponsorship and support from the private sector as best it may? Would he not agree that healthy competition between institutions is quite a favourable thing, and that each institution should try to obtain or persuade certain people who have golden fingers to join their board or their company?
The Earl of Gowrie: My Lords, I am very much in favour of competition. I was, however, worried about the fact that there were some criticisms of the scheme that it went to those who were especially adept at sponsorship or had been involved previously; and therefore from the 1st April we now have pound for pound matching arrangements for first-time sponsors giving £1,000 or more.
Lord Harmar-Nicholls: My Lords, am I to understand that the helpful reply that the noble Earl gave to the noble Lord, Lord Strabolgi, means that it is likely that the extra help will be forthcoming to avoid the ending of the scheme which has had a very excellent beginning? Is that what it means?
The Earl of Gowrie: My Lords, what it means is that there are no shortages of funds at the moment, and I do not anticipate the funds running out.
Lord Barnett: My Lords, may I, too, congratulate the noble Earl on this scheme? That is rare, as he appreciates. With his other Treasury hat on would he care to give an assurance to the House that none of these funds will be taken into account when the Treasury come to make allocations to the arts?
The Earl of Gowrie: My Lords, it is a very curious and rare event on two counts: for the noble Lord to congratulate me; but, on the other hand, to make a muddle about arrangements between spending Ministers and the Treasury. He has succeeded in doing both in one day.
Lord Barnett: My Lords, with respect, I asked a straightforward question and I am asking the noble Earl for that assurance. That is all.
The Earl of Gowrie: My Lords, obviously any assurances involving public expenditure—as the noble Lord knows very well and better than most people in this House—are heavily qualified. I am, however, confident that this scheme is safe.
Viscount Mersey: My Lords, if any one new arts organisation attracts more than one new sponsor a year is it eligible for more than one award?
The Earl of Gowrie: My Lords, I think at the moment it would be only fair to those who are coming forward in large numbers to distribute awards evenly; but certainly if there were any shortage of applications I would consider that point.
Lord Grimond: My Lords, I think a slightly delphic reply was given by the noble Earl. Am I right in thinking that the Treasury or the Government have given assurance to universities that if they raise money from companies, and so forth, this will not be deducted from their grants? Is this the case with the arts?
The Earl of Gowrie: My Lords, I think the issue of universities and their relationship with private funding organisations is very wide of my scheme for the arts. Therefore I do not feel that I can answer the noble Lord, Lord Grimond, on that. As to my answers being delphic. I have not tried to be delphic. I have tried to be succinct. I am confident about the scheme. I welcome the welcome that it has had and I have no intention of seeing it put in jeopardy.

Public Health Laboratory Service
3.8 p.m.
Lord Hunter of Newington: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what changes they propose in the relationship of the Public Health Laboratory Service with local government and the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington): My Lords, a comprehensive review of the Public Health Laboratory Service has now been completed and its report has gone to the National Health Service and a wide range of medical, scientific, local authority and staff side bodies for consultation. We will not be taking decisions on the major recommendations until after consultation is complete.
Lord Hunter of Newington: My Lords, I thank the noble Baroness for that reply. Are the Government aware of the fact that there is grave concern within this service, which has been excellent in the past, which is unique in the world, and which to many people does not seem to have any indications of need for change?
Baroness Trumpington: My Lords, I should like to echo the words of praise given by the noble Lord, Lord Hunter. In order to reassure people, the terms of reference of the review were that it was done as part of its normal accountability responsibilities towards non-departmental public bodies. The DHSS commissioned a comprehensive review of the PHLS with the following terms of reference: to review the effective, efficient, and economic operation of the PHLS including its functions and its most appropriate organisation and staffing in terms of numbers, grades, and manpower costs. But it was not a money-saving exercise.
Lord Molloy: My Lords, is the noble Baroness aware that this laboratory service is acknowledged not only in Great Britain, and not only by the medical services but throughout the world, as a service par excellence. Many people who are deeply involved and acquainted with and know all about this remarkable service, as Lord Hunter said, feel that it does not require any examination. But if there is to be one, would it also be possible for both Houses of Parliament to debate what might be proposed? As I have said, this service is highly regarded throughout the world.
Baroness Trumpington: I think I have already reiterated the original expressions of congratulation to the service in my reply to the noble Lord, Lord Hunter. If the noble Lord would care to look at my original reply he will find the answer to the other part of his question.
Lord Kilmarnock: My Lords, would the noble Baroness assure the House that there is no threat to the excellent system and service of public analysts?
Baroness Trumpington: My Lords, as I have already said, no decisions are being taken until the consultations are complete.
Lord Ennals: My Lords, while very much echoing
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the tributes that have been paid to the 52 laboratories that have been under survey for the Director of Service for the National Health Service, may I ask this question? Bearing in mind the main recommendation in the review report is that they should be taken over and administered by local health authorities, can the noble Baroness say what would happen if a local health authority with difficulties in financing were not to be willing to take over the administration of the laboratory? Can she give an assurance that none of the laboratories will be closed whatever the result of the consultation?
Baroness Trumpington: My Lords, I am rather surprised at the question put by the noble Lord, Lord Ennals, because I have already said that no decisions will be taken until consultation is complete.
Lord Ennals: My Lords, the noble Baroness will understand that it is at least reasonable, in the light of her tribute as well as others, that one should ask for an assurance that as a result of an inquiry into the method of administration of these laboratories none of their work is going to be undermined, bearing in mind such cases as we have had on AIDS and Legionnaires' disease. All I asked for was an assurance that none of the laboratories were going to close as a result of the review.
Baroness Trumpington: My Lords, questions, as I have already said, relating to the implementation of the report are hypothetical and should not be prejudged. However, we can see no reason why any of the report's proposals need adversely affect the ability of the Public Health Laboratory Service to act effectively in any future outbreaks. I would also say that there is no question of dismantling the service.
Lord Taylor: My Lords, may I ask the noble Baroness whether she is aware of the value of the service as a "police force" for both the National Health Service and the work of the local authorities? Both of them require checking from time to time and is the noble Baroness aware that this is precisely the service which the Public Health Laboratory Service provides? I hope therefore that it will remain separate.
Baroness Trumpington: My Lords, the report does not make any recommendations for changing the relationship between the Public Health Laboratory Service, the National Health Service and the local authorities.

Streatham Park Cemetery Bill
Read a second time, and committed to an Unopposed Bill Committee.
Alexandra Park and Palace Bill
Read a second time, and committed to an Unopposed Bill Committee.

Industrial Development Bill [H.L.]
3.12 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, I beg to move that the Commons amendments he now considered.
Moved, That the Commons amendments be now considered.—(Lord Lucas of Chilworth.)
On Question, Motion agreed to.

Industrial Development Bill [H.L.]

  COMMONS AMENDMENTS
  [References to the Bill are to [Bill 102] as first printed for the Commons]
  1 Leave out Clause 5.
  2 Clause 7, page 4, line 16, leave out from beginning to ("this") in line 17.
  Lord Lucas of Chilworth: My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 and 2. Since I introduced this Bill earlier this year, it has passed through all its stages in the other place, where the Government introduced amendments. These amendments were technical or procedural and they do not alter the nature or effect of this legislation.
  The first amendment removes Clause 5 from the Bill. That clause sought to exempt the English Industrial Estates Corporation from development land tax. My right honourable friend the Chancellor of the Exchequer said in his Budget statement that the Government would be abolishing this tax for everyone. The Finance Bill will now repeal the 1976 Development Land Tax Act and therefore Clause 5 of the Industrial Development Bill is superfluous. I did mention this during the debate on the Second Reading of the Bill and I said at that time that the Government would be introducing an amendment to delete Clause 5. This has now been done.
  The second amendment is consequential on the first, and it removes a reference to Clause 5 in Clause 7 of the Bill. I beg to move.
  Moved, That this House do agree with the Commons in the said amendments.—(Lord Lucas of Chilworth.)
  Lord Bruce of Donington: My Lords, we on this side of the House thank the noble Lord for his explanation. No words of mine are required in amplification, and we support the amendments.
  On Question, Motion agreed to.

Education (Corporal Punishment) Bill
3.15 p.m.
Baroness Cox: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committe.—(Baroness Cox.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Restriction on corporal punishment of pupils]:
The Chairman of Committees (Lord Aberdare): I have to point out that if Amendment No. 1 is agreed to I cannot call Amendment No. 2.
Baroness David Baroness David moved Amendment No. 1:
Page 1, line 8, leave out from ("staff") to end of line 10.
The noble Baroness said: This Bill we are now about to consider in Committee was condemned from every side of the Chamber on Second Reading as unworkable and as a totally inadequate and pusillanimous response to the ruling of the European Court and to leading educational thinking in this country. The long list of pejorative adjectives applied to this bill range from just "bad" to "dotty" and "bizarre". In the amendments we are putting forward we are aiming at radical changes to the Bill which would make it an adequate response to the court and in line with forward thinking in the educational world and in the world of social reform, which is where your Lordships have shown great good sense and initiative in the past when introducing important social legislation. It is easier in many ways for this Chamber rather than another place to initiate legislation of that kind.
This Bill is not, as my noble friend Lord Mulley said on Second Reading, a terribly important Bill; but that is not a reason for us to collude in allowing a very foolish Bill to reach the statute book unamended. The first block of amendments I shall now move will ensure that corporal punishment is abolished through-out the state and independent sectors in England and Wales. The amendments in this block are 1, 9, 15, 19, 20, 22, 34, 35 and 36 and they include the opposing of the Motions, That Clauses 2 and 3 and the Schedule shall stand part of the Bill.
Amendment No. 9: page 2, line 11, leave out subsection (5).
Amendment No. 15: Page 2, line 25, leave out sub-paragraph (iii) and insert ("(iii) at any independent school.")
Amendment No. 19: Page 2, line 34, leave out ("or")
Amendment No. 20: Page 2, line 35, leave out paragraph (c).
Amendment No. 22: Page 2, line 40, leave out subsection (7).
Amendment No. 34: Clause 4, Page, 4, line 21, leave out subsections (1) to (4).
Amendment No. 35: Page 5, line 8, leave out ("and the Schedule to this Act")
Amendment No. 36: Page 5, line 12, leave out ("and the Schedule to this Act")
A further block of amendments have the same effect for Scotland. These amendments are Nos. 38, 45, 51, 56, 57 and 61.
Amendment No. 38: Clause 5, Page 5, line 24, leave out from ("staff") to end of line 27.
Amendment No. 45: Page 6, leave out lines 9 to 19.
Amendment No. 51: Page 6, leave out lines 25 to 29 and insert ("(iii) at any independent school.")
Amendment No. 56: Page 6, leave out lines 33 to 36.
Amendment No. 57: Page 6, line 37, leave out from beginning to end of line 10 on page 7.
Amendment No. 61: Page 7, line 27, leave out from beginning to end of line 24 on page 9.
The Government have accepted that they must comply with the judgment of the European Court and that abolition is the only alternative to the opt-out scheme contained in the Bill. On Second Reading in another place, Sir Keith Joseph rejected the third

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possibility (a dual system of beating and non-beating schools) as causing enormous practical difficulties and being hugely expensive, which would mean that the existing provision of schools would virtually have to be doubled.
Support for this series of amendments should therefore unite those who believe that corporal punishment has no place in the educational system, those who believe the opt-out scheme to be unfair and divisive, creating resentment and worsening discipline, and those who, while undecided themselves, are prepared to accept the unanimous view of teacher, local authority, administrator and professional organisations, that abolition is preferable to implementation of the Bill in its present form.
To make the case fully, I must outline the arguments against corporal punishment. It is degrading and counter-productive; it can be physically, emotionally and sexually damaging. It is anti-educational. The Plowden Report on Primary Education in 1967 said:
"The kind of relationship which ought to exist between teacher and child cannot be built up in an atmosphere in which the infliction of physical pain is regarded as a normal sanction."
The noble Lord, Lord James of Rusholme, unfortunately, is too ill to be here today, but I am going to quote from his speech made on Second Reading of the Bill introduced by my noble friend Lady Wootton, the Protection of Minors Bill, on 19th December 1973. I am very glad that she is here today and I hope that she will be speaking.
The noble Lord, Lord James, said:
"The harm of corporal punishment goes a good deal further than its effect on the frightened child. I am referring to the more subtle damage to the atmosphere of an educative community and to the proper development of the individuals in it when authority has to rest on the infliction of physical pain"—[Official Report, 19/12/73; col. 947.]
Corporal punishment is not a deterrent. The same children get beaten repeatedly and very often for the same offences. It passes on the message that violence is an acceptable solution to problems. The Association of Educational Psychologists, in a submission to the Government, said:
"Children who are beaten tend in their turn to beat and to bully".
Corporal punishment is not dying out of its own accord, at least not in England. Back in 1937 a joint NUT—Association of Education Committees' memorandum to the Board of Education said:
"Corporal punishment is rapidly disappearing from public elementary schools".
But the latest information comes from a survey in 1984 of 60 of the 89 LEAs which then retained corporal punishment. This showed that it was in use in 81 per cent. of secondary schools. Thirty-two of the 104 English and Welsh LEAs have published statistics of corporal punishment officially recorded in punishment books. These confirm its very widespread use.
I now come to the arguments against the opt-out scheme that is proposed in this Bill. It is unfair and discriminatory and will create resentment and worsen discipline. It will force schools and local authorities to waste time and money on unnecessary administration. It will promote tension between pro-beating schools and anti-beating parents, between children and their
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parents, between two parents who have different views. It will deny protection to some of the children who most need it. Parents who knock their children about at home are most likely to give school permission to use corporal punishment. It is only a temporary solution.
European human rights machinery has already caused the United Kingdom to circulate all LEAs saying that corporal punishment may, in certain circumstances, constitute degrading treatment in breach of Article 3 of the European Convention, and the next case alleging a breach of Article 3 has been ruled admissible. Strasbourg rulings will inevitably force abolition on the Government in time. It has been condemned almost universally, in particular by teachers and administrators, and even the Government recognise the unfairness and impracticality of what the Bill proposes. Speaking for the Government during the European court hearing of the Campbell and Cosans case, the then Lord Advocate, the noble and learned Lord, Lord Mackay of Clashfern, said:
"It would not be feasible to have a system in which children in the same class were differently treated in this respect according to the view of their parents, because it must be fairly fundamental practice of any reasonable system of discipline in a school that it should be seen to be fair".
Yet that is what this Bill proposes.
There is the devolution argument. Some argue in support of the Bill that parental choice must prevail, and that the right to choose corporal punishment for their child should devolve to them. But once a practice has been so widely condemned by expert opinion and by education practitioners, it ceases to be a matter which, in the interests of children, can legitimately be left to parental choice. The issue is one of human rights—the right of children to protection from a degrading and potentially damaging assault in an institutional context. The wording of Clause 1 of the Bill spells out that in legal terms corporal punishment would constitute a battery if teachers' traditional defence was removed.
There is overwhelming opposition to the Bill. The Government, in sponsoring this Bill, are ignoring the results of their own consultation carried out last year. They are imposing the opt-out scheme on the education system against the wishes of all teacher organisations, both local authority associations and the Society of Education Officers—all of whom would prefer abolition. A massive coalition of professional education and child welfare organisations favour abolition.
I have a list of 20 of these and I shall name just a few: the Association of Directors of Social Services; the British Psychological Society; the National Childrens' Bureau; the National Council of Voluntary Child Care Organisations; and the Royal College of Psychiatrists. All the teacher organisations would prefer abolition to an opt-out scheme. The National Union of Teachers, the National Association of Head Teachers and the Secondary Heads Association have explicitly abolitionist policies, as do the Scottish, Welsh and Irish teachers' organisations. The three organisations which do not have an explicitly abolitionist policy—the Assistant Masters and Mistresses Association, the National Association of

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Schoolmasters/Union of Women Teachers, and the Professional Association of Teachers—have indicated that they accept the inevitability of abolition, and have argued against the Bill in the strongest terms.
The NAS/UWT stated:
"The Government's plans are impracticable and cannot be justified in operational terms. They are morally indefensible in that they allow different sanctions for the same offence and therefore pose a serious threat to a school's pastoral system, since staff and pupils alike will quickly realise how manifestly unfair any attempt to discriminate in this way must be".
The AMMA called on,
"all MPs with an interest in education to oppose the proposed legislation, which is little more than an ill-conceived compromise born out of expediency".
The Professional Association of Teachers said in its submission that,
"any arrangements whereby corporal punishment may be administered to some pupils and not to others is unworkable and unjust".
Both local authority associations and the Society of Education Officers argue against the Bill in strong terms. The society says that it,
"takes the view that any form of exemption scheme, though one might be devised and made to work, would be unsatisfactory, unfair and divisive. If one were introduced it could, by creating a sense of injustice, be very damaging to the ethos of a school and could eventually undermine a school's discipline…It would be preferable for the Government to grasp the nettle immediately and issue a policy statement announcing the aboliton of corporal punishment in schools within a specified time scale".
There are the views of the churches. In July, 1982 the Church of England General Synod Board of Education issued a circular calling on its schools to phase out corporal punishment and ultimately abolish the practice. In June, 1983 the Catholic Education Council called on its schools to phase out beating. The Free Church Federal Council has also come out against corporal punishment.
Finally, there is our position in Europe which is one of isolation. The United Kingdom is alone in Europe in permitting school corporal punishment. European teachers' organisations are absolutely opposed to its reintroduction. The only regime to have reintroduced corporal punishment was that of Nazi Germany.
So all informed educational thinking and policy is against this Bill. It was the opposition of the teachers' unions and the local authorities which the Government used as the reason to resist the Protection of Minors Bill of my noble friend Lady Wootton in 1973. The Government very definitely cannot put that forward now as a reason to oppose these amendments. Thinking has moved on and moved very far in those 12 years. I commend these amendments to your Lordships and I appeal to your good sense and sense of justice in asking you to support them. I beg to move.
Baroness Wootton of Abinger: I wish to say only a very few words, as my noble friend has put so powerfully the case for the abolition of corporal punishment in schools. She made reference to a Bill which I attempted to introduce in this House and which would have done away with this menace a good many years ago. But the time was not ripe. Since then many children have been beaten, unjustly perhaps in the judgment of many of us, and certainly inappropriately as a tool of education. I very much hope that your Lordships will support these
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amendments merely because they do not so much amend the Bill as make sure that we shall no longer have corporal punishment in any form in our schools. It is surely out of keeping with the spirit of the times. It is out of keeping with our feeling for children. There is no evidence that it is an effective deterrent, because the children who get beaten once tend to get beaten many times. They are not put off. They seem to get the habit.
With all this evidence that my noble friend has presented and has indicated is available, I hope very much that your Lordships now feel that the time has come when we should not behave like little savages and hit our children, or cause our children to be hit by people who are not their parents but who are in charge of them during school time and about whom their parents have only very limited information. So I hope very much that your Lordships will support wholeheartedly the case that my noble friend has so powerfully put.
3.30 p.m.
Lord Alexander of Potterhill: If I have to choose between the Bill and abolishing corporal punishment, I go for abolishing corporal punishment because the Bill is, in my judgment, administratively impossible. There is of course another solution, which is to pay not the slightest attention to the European Court. I have great doubts about the increasing tendency to be so concerned with human rights that we are creating a society which is so permissive that it leads to the kind of situation that we saw in Brussels last week.
I take it that the basic argument is that the possibility of corporal punishment induces fear in children and the assumption is that fear is a bad thing. In my opinion, fear is an essential element in preparing people to become competent in self-discipline. Why do we take care to cross the road? It is because we are afraid that if we do not, we might be knocked down. Fear is an essential element in human society. I speak from my own experience, but, in my judgment, we should be very careful not to create the situation in which we give the children human rights and we abolish the parents' human rights, because if the logic of this decision is carried out, it will not merely abolish corporal punishment in schools. Surely it is equally valid to abolish the right of a parent to apply corporal punishment in bringing up children. Why the one and not the other?
Traditionally in this country for over 100 years a teacher has been regarded as being in loco parentis. This Bill says that he no longer enjoys that right. It goes even further than that and I should very much like the Minister to tell me, as a teacher of long ago, what I do when a child is consistently misbehaving and disrupting the education of all the other children in his class. I may not punish him, I may not expel him and I may not suspend him. What, in fact, am I supposed to do?
Lord Stewart of Fulham: I am a little sorry that the noble Lord, Lord Alexander of Potterhill, should have mentioned the tragedy of Brussels in connection with this debate. It seems to be completely inappropriate. That was a terrible, serious event and this is a silly and trivial Bill. I do not think that the events in Brussels

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ought to have been brought in to be thrown in the scale of argument, one way or the other, about this Bill. But since they have been brought in, I think it is necessary to point out one very simple fact.
It is the unhappy truth at the present time that England has a worse reputation for football hooliganism than any other European country and that England is the only country which practises corporal punishment in its schools. I do not know whether it is possible to draw any logical positive conclusion from those two facts, but I am quite sure there is one negative conclusion that follows, which is that there is no ground at all for suggesting that if you beat children in school, they will be less likely to be football hooligans when they are older.
If you do not believe that—and no logical person can believe it—a great part of the argument of the noble Lord, Lord Alexander of Potterhill, falls down, because he then tried to support it by the old device that I think is called extension; that is to say, in order to discredit what your opponent in argument has said, you extend it to something much larger. You then refute the larger thing and think you have refuted the original premise. He drew a grim picture of a teacher who is faced with a recalcitrant pupil and he said that he cannot punish him and he cannot do this, that or the other. Nobody is suggesting that punishment, or any kind of sanction whatever, will be withdrawn from the schools. What we are arguing is whether this particular sanction of corporal punishment, with a solid weight of evidence against it, which no other country in Europe thinks it necessary to adopt, should be maintained. I believe that the evidence has been set out so clearly by my noble friend Lady David that the more we look at it, the more we are obliged to conclude that the only logical course is to go now for the abolition of corporal punishment in schools.
It is not a question only of how far we ought to respect the judgment of the European Court. The Government have decided that. They have decided that they will accept it. The alternative preferred by the noble Lord, Lord Alexander of Potterhill, is not available to us. The Government have not made it available. They have set us a plain choice between abolition and this Bill and if I understood the noble Lord aright, faced with that choice, he was going to choose abolition. I hope that he will do so and will support these amendments.
Lord Ritchie of Dundee: I did not have an opportunity to speak on this subject at Second Reading; otherwise I might have said a great deal. I promise your Lordships' Committee that I shall not do so now. But I should like to say a word or two, because I feel that my experience may not be one that your Lordships have all had; that is, to have been on the giving end and not on the receiving end of the cane. I cast my mind back 20 years to when I became headmaster of a small independent school for boys with educational and emotional problems. At the time I took over the school it seemed necessary, because the school was run on very liberal lines—and I assure your Lordships that I am not using the word politically—and the boys had a great deal of freedom, to have an ultimate or penultimate sanction which acted as a real deterrent. So it was that the cane was used.
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When I became headmaster I had to nerve myself to do execution. I say that I had to nerve myself because I am not naturally a violent man and it is not a particularly pleasant thing to face. It seemed that it worked. But I now have to tell your Lordships that 20 years later I view what I had to do with repugnance. I think that this is not because I am a reformed sadist, or because I have changed in any particular way, but because the climate of civilised opinion has changed. What I felt I had to do and what others no doubt felt they had to do a number of years ago we now no longer feel we have to do.
I therefore believe that your Lordships should support these amendments, because the Bill looks like creating—we have all agreed this and it has been said many times in many eloquent words—an impossible situation in the classroom with which no teacher can possibly cope. One wonders how much consultation there can have been between the Government and professional teachers who actually have to keep children under control in a classroom. I therefore urge your Lordships to support the amendments and I hope that the Government may perhaps see the light and withdraw the Bill until they feel the time is right to introduce the only logical Bill that there can be, which is one abolishing the whole practice.
Baroness Ewart-Biggs: I should like to support the amendments. As previous speakers have said, my noble friend Lady David has put the case very clearly, and so there is no point in going over it, but I should really like to stress two of the arguments. It is a startling fact that Britain is the only European country which allows the beating of school children. It is a point that one cannot really overlook and one cannot in any way justify. The other point is that no professional organisation concerned with education or child welfare favours the retention of corporal punishment. These are two very overwhelming facts and points.
There has been a good deal of talk about the parental choice which must prevail; but surely parental choice and the human rights of the parents will always prevail. If parents think that beating is in the interests of their child, surely they are the ones who must inflict it. It is surely no possible derogation of their human rights or their parental choices to remove corporal punishment from schools. Surely it is the case—I must stress this because it is an important point—that a child who has been treated brutally and badly during his childhood has every expectation of becoming a brutal grown-up. This has been proved time and again. The point made by the noble Lord, Lord Stewart, is very valid. What an extraordinary coincidence it is that we in this country have the worst record for football hooliganism and that we in this country are the only ones to retain corporal punishment in schools.
The last thing I want to say is that a great deal has been said about how corporal punishment affects the child. The previous speaker referred to how it affected him as a teacher. I should like to say one word about how it can affect a teacher who has an inherent sadism. This surely is a channel through which that kind of sadism can be brought out. I can remember my own son at school saying in total honesty that teachers

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enjoy it. It must be the case that some people in the education system have this hidden cruel characteristic and that this is indeed a channel for it. One is left wondering why the Government want to bring in this legislation. One is left wondering whether they are bringing in this legislation both to content the European Court of Human Rights and at the same time to satisfy some of the more robust and aggressive Back-Benchers and supporters in their own party. I wonder why children and teachers should pay the cost and so I most strongly support the amendments.
Lord Harmar-Nicholls: I was a little concerned about one sentence on this subject used by the noble Baroness, Lady David. She said that we in this Chamber could perhaps proceed to the extent that the amendments take us, whereas the other place could not. What did she mean by that? It can have meant only that because we are not an elected body we can ignore the general view of the electors and the people of the country more easily than can the other place whose Members have to go out to have their Membership of the House reaffirmed. It can mean only that. If that is what it meant, does it mean that we in this House ought blatantly to ignore the general feelings and the views of the ordinary people of the country who themselves do not sit in Parliament?
3.45 p.m.
That brings me to my point that I think the Government have it about right. In their Bill the Government are giving a very clear indication that they are not in favour of the flagrant corporal punishment which the noble Baroness who has just sat down explained in such extreme terms. The general message of the Bill is that we do not encourage corporal punishment, but that we recognise that many people in this country think that it has a part to play.
The noble Baroness also said that the organisations which she mentioned as supporting her amendments were unanimous. She mentioned the teachers. I do not think she has any grounds for saying that the teachers who have to carry out this punishment are unanimous on this point. Indeed, we have had two contributions in this Committee in the past minute or two from former teachers. What did they say? The noble Lord, who I thought was most convincing, made the point that he had no pleasure in doing it but that it was a sanction which he needed if he was to carry out his job as a schoolmaster correctly. He needed it not to be a sadist and not so as to do something extreme or naughty, but in order to get the kind of atmosphere in school where the education we are trying to give can be properly absorbed. What did the other noble Lord say? He came down against it because he felt that it was rather repugnant. I respect him very much for that. But the most telling sentence of his contribution was that in which he said that when he had to use it, it worked. I think those were the words he used. Those two contributions from two Members of this House who have some experience of this matter rather knock on the head the unanimity which the noble Baroness claimed.
I find no joy in either receiving pain or inflicting it. It is not good, and it is against the standards to which we all aspire, but our job is to set down the overall
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framework in which the general management of our society—and nothing is more important than proper education—can be satisfactorily carried out. It has to be carried out with the consent of the parents; never mind the foibles or the extreme views that Members of either House may have. I do not think we can disregard the general feeling in this country—certainly as I find it, and I suggest that most noble Lords have the same experience—where people by and large think that Parliament over the past few years has made a mistake in giving the impression of being too soft. It has given the impression that the kindness, the persuasion and the approach will do the job; and in my lifetime it has not. I have seen a deterioration in the general attitude of this country, whether it is in sport or in other fields, which I think has been a consequence of the actions of well intentioned, delightful and able people who have gone too soft. I do not believe that that is generally recognised by the populace at large.
As I say, I believe that the Government have got it about right. They are giving the sort of indication that a civilised group of people would want to give without overstepping the mark and so reaching the point where public confidence is lost because people think they are not being properly represented and the Government are being too soft. In view of the evidence we have heard in this Chamber I hope that the Government consider that they will be about right if they stick to the Bill as it is and not accept the amendments as they stand on the Marshalled List.
Lord Ritchie of Dundee: Perhaps I may say one word in response to the comment of the noble Lord, Lord Harmar-Nicholls, about my saying that corporal punishment worked or that it proved effective. It proved effective 20 years ago. I want to stress that and the fact that times have changed. The climate of opinion has changed. It is no longer accepted. A punishment, to be effective, must be psychologically accepted. It no longer is. That was my point.
Lord Denning: I should like to say just a few words about the European Convention on Human Rights. I have often regretted that we ratified that convention. The European Court's rulings are not binding on our courts at all. The only effect to be given to them in law arises only if we in Parliament give effect to them and make them part of our laws. But we have ratified that convention and as a matter of treaty obligations we ought to do what we can to implement it. To that extent I would agree with the objectives of the Government in promoting this Bill. Their objectives may be good but the methods I fear are bad.
Just let us take the words "corporal punishment" as describing doing anything which, apart from any justification, would constitute battery. We have to go to the common law to know what is battery. The least touching of another person is a battery. So I just have to put my hand on the shoulder of the Hansard writer, like this, and I would be guilty of a battery.
Lord Elwyn-Jones: Quite right!
Lord Denning: If a pupil is a little recalcitrant and I just tap him, then there it is. I was a schoolmaster 60 years ago. Today one only has to say, "You're not

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behaving properly. You are making too much noise", and give the pupil a tap or two and pull him along, and then one will be guilty of a battery. One would be guilty of corporal punishment, and there it is.
In many ways I support the objectives of this Bill, but as to the way it is done I share the views of many Members of this Committee who ask whether it is right that a schoolmaster should have to decide between one pupil in a class and another pupil, and to have to ask himself whether or not the parents have consented to corporal punishment. It would be quite wrong for pupils in the same class to be in different categories and for the schoolmaster to have to go around asking himself whether a certain pupil is or is not exempt. That would be quite impracticable. On that simple ground I support this amendment.
Lord Shinwell: I have had difficulty in following some of the speeches because of the unsatisfactory audition. The noble and learned Lord, Lord Denning, speaks—if I may say so with no disrespect to other Members who have spoken—with excellent clarity. One can understand what he is saying; he has the elocution that is required. I leave that part of the subject alone at present.
I venture to say to my noble friends that this problem is far more wide ranging than the one which affects school children or the teaching profession. It concerns general behaviour. It concerns the question of whether or not punishment of any kind should be inflicted at any time. It occurs to me that to venture to speak on this subject—which is one I have not discussed before in this House or another place—deserves some punishment. What kind of punishment can one inflict on me, except that one Member of the Committee might rise and dare to suggest that the noble Lord (he might describe me in such fashion) should no longer be heard? That would perhaps be troublesome and critical but it would hardly be satisfactory. Certainly it would not be very beneficial. So that course of action would not matter very much.
As I said, this is a wide-ranging problem. It concerns the general question of capital punishment. Would my noble friends not agree that it is quite impossible to arrive at a definite conclusion as to whether or not people should be hanged? This subject is one that in my time has engaged the attention of another place for 60 years or more. It has also engaged the attention of your Lordships' House. No solution has been found. It appears to me that no solution is desirable, for the simple reason that we suspect that no such thing is available. It is very difficult to find a solution.
What is my experience? I have never indulged in any teaching. I have engaged in lecturing of a kind. I would not call it lecturing—it is just talking, and talking, and doing so with no great advantage either to myself or to those who have to listen. I have been taught—but very little. My experience goes back to the occasion when I was under the age of six—probably about five years old—and had left a kindergarten in the East End of London which I joined at three years of age. I joined the Old Castle Street School just off Wentworth Street, known as Petticoat Lane.
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I remember an incident at that school when I was placed in a standard which was far higher than that to which I had been accustomed. The class was quite above my standard. I did not know what they were talking about. I was presented with an exercise book. I was supposed to write something but did not know what. I did something of which I am still ashamed. I cannot avoid thinking about it sometimes. I looked over the shoulder of the boy sitting in front of me to see what he was writing. In doing that, I moved slightly from my place and was called up by the headmaster. He was a great big fellow with one of those Glasgow brogues. There could be nothing worse than that to a child of my age at that time.
I did not know why the headmaster had called me out. He said that I was interrupting the proceedings. I was only trying to find out what the work was all about, because nobody had told me. The master told me to hold out my hand, which of course I did. He struck it with a strap. I did not like that a bit. What I disliked still more was him. Ever since, I never forgave him for what he did to me. I do not know whether that was the cause of some of the troubles I encountered in later life, but that incident convinced me not long afterwards that if someone was going to injure me, or to try to injure me, then I would protect myself.
How was I going to do that? Although I was quite young, I bought an old-fashioned punching ball which I set between two doors. I punched it and punched it. I also bought a pair of small boxing gloves. I remember those boxing gloves very well. I was asked to join a small band of my chums down at Rothesay on the Isle of Bute. I took no luggage with me. I took only my boxing gloves. When I arrived, I discovered that I could not get any supper unless I was prepared to box and show what I could do. I did the best that I could. Then I had to lie down in a tent and I used my boxing gloves as a pillow. In any event, I was determined that I would prevent people from injuring me. That led to an awful lot of trouble later.
I say to all my noble friends that I rise to agree with every one of them. The noble Baroness, Lady David, would naturally speak as she did—with sympathy, with compassion, and with a desire to help. Of course we love that sort of thing, but I can understand also the views of the noble Lord, Lord Roberthall, who is one of the finest educationists we still have left in this country. It is a delight to hear from him from time to time; I sometimes wish that we heard more from him. I find it a little difficult to agree with the noble Lord, Lord Harmar-Nicholls, but the Committee would hardly expect me to do so, anyway. I hope that he will forgive me.
What are we to do about this problem? I will tell your Lordships: very little indeed—except to behave better. I have been reading in the newspapers (I noticed an article in the Standard today by a certain writer) and have been hearing quite frequently recently, because of what happened in Brussels, horrifying things which I detest and find distasteful. Because of that, I remind myself of a speech I ventured to make at the request of the noble Viscount the Leader of the House on the occasion of my one hundredth birthday.
In that speech—and after listening to nine colleagues I found it difficult to talk—I mentioned that I did not concern myself, and did not advise those present to

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concern themselves, so much with policy in respect of the future of this country. I have said many times and I have written many times (and I have been paid for writing about it) that it is not policy but behaviour. That is what this country needs—behaviour. It needs consideration for other people: not allowing oneself to be pushed around but not trying to push other people around.
4 p.m.
I once wrote a book. Some people complained quite a lot about the book. I made a lot of money out of it, I may tell your Lordships. It was called, Conflict Without Malice. I was as mischievous as I could be and I was as clinical as I could be with all sorts of people, even with myself—I was self-critical—but there was nothing malicious about it. I say to noble Lords that although sometimes I disagree with the other side of the House and even with the Cross-Benches (though not so much there), and even with the Liberals and those in the Alliance who ran away from us in the Labour Party, there is no question of malice, nor should there be, in this assembly of ours. We are too dignified, too traditional and too useful to this country and we should carry on in the way we have done.
Of course we make mistakes; of course we shall be criticised; of course there will be demands for our abolition; but we will carry on just the same as do the pigeons in Trafalgar Square. We are as the Trooping the Colour and various other traditions in this country. I repeat that we can talk and talk about it as much as we like. God bless your Lordships, but we will find no solution.
Baroness Elliot of Harwood: I regret that I was not here for the Second Reading of this Bill, because I should have liked to speak on it. I spoke on the Bill put forward by the noble Baroness, Lady Wootton, because I have always been and always will be passionately opposed to corporal punishment and to the death penalty. I have always opposed corporal punishment and no Government will ever persuade me that it should be a part of our education system. Corporal punishment is degrading to the child and to the man who administers it. In my experience, it does not make children any easier to manage, but rather worse.
I have had experience as chairman of an education committee for a great many years. Corporal punishment does not promote good relations between teacher and pupil. The idea that some schools may opt out and some allow corporal punishment is quite silly. I cannot understand how any schoolteacher or headmaster could allow this diversity. I do not believe that even parents have the right to beat their children. There is today too much cruelty to children, and this only encourages it. Therefore I support the amendment.
Baroness Cox: I begin by emphasising the point that the reason for the Bill is to secure compliance with the ruling of the European Court of Human Rights which obliges us to change our law in order to respect the rights of parents—parents who have a philosophical conviction against corporal punishment.
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One response would have been to enforce abolition of this sanction of corporal punishment, which is the purpose of the amendment we are currently discussing. The Government believe that this would be wrong: partly because we believe that moderate and reasonable corporal punishment can be an appropriate sanction and, perhaps much more importantly, because we know that many parents and teachers share that view. I remind your Lordships of a recent poll in February of this year which showed that about 63 per cent. of parents interviewed favour the use of corporal punishment in schools and only 33 per cent. of parents favour abolition. Similarly, a sample poll of teachers in 1984 showed that over half of those interviewed are in favour of retention compared with, again, just one-third in favour of abolition.
Reference has been made to other English-speaking countries and European countries who have abolished the use of corporal punishment. In order to put the record straight I remind your Lordships that many other English-speaking countries retain the sanction of corporal punishment, including many of our Commonwealth countries such as Canada and Australia and many states in the United States of America.
Moreover, the European Court's ruling does not require abolition. It is concerned with respect for philosophical convictions. Another possibility of complying with that ruling could have been the creation of corporal punishment and non-corporal punishment schools—a dual system. I was glad to note that this found no favour with the noble Baroness, Lady David, on Second Reading because of the enormous practical difficulties, and that is a point of view which we share.
With the decision that it would be undesirable, in the Government's view, to enforce abolition, and having acknowledged that a dual system would be impracticable, we had only one other choice—an examption system. It is for that that the Bill provides. In schools which wish to use corporal punishment the Bill will give parents the right to say whether or not their children should be liable to the sanction. Some schools will decide not to introduce exemption arrangements and they will therefore automatically become non-corporal punishment schools. That will be their choice and it is right that they should be able to gauge for themselves the practicality of retaining the sanction in the light of their own circumstances. That would be a choice based on professional judgment. I emphasise that it is an essential point of the Government's case that we believe we are trusting the professional judgment of teachers and that this is much to be preferred to legislation imposing an enforced ban. I also point out that some of the teachers' unions—those mentioned by the noble Baroness, Lady David, such as the Professional Association of Teachers and the NAS/UWT—do not advocate an enforced abolition.
An exemption system has been criticised as being unfair. In our view that criticism is over-stated. There are differences now in the way in which pupils are treated: for example, where they are in adjacent schools, within the same school or even within the same class. Some mixed schools exempt girls from corporal punishment and most schools will exempt

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Schedule 4 [Highways]:
Lord Fanshawe of Richmond Lord Fanshawe of Richmond moved Amendment No. 61:
Page 105, line 21, leave out from ("shall") to end of line and insert ("become a trunk road according to the provisions of the Highways Act 1980 subject always to the prior publication of the findings and recommendations of the relevant assessment study.")
The noble Lord said: I realise that my noble friend has told us that this matter may have been overtaken by the events earlier in the evening but I still would like the opportunity for my noble friend to be aware of the very real feeling which has caused the putting down of this amendment. I should also like to hear my noble friend's reply because it might have a slightly different effect on the main amendment which was moved earlier, Amendment No. 58C. My amendment empowers the Secretary of State to order any metropolitan road to become part of a national trunk network, and it is provided in the Highways Act 1980 that a draft order must be published, time for consideration must be given and a public inquiry held; and this Bill at the moment, prior to recent events earlier in the evening, removes the safeguard. I was endeavouring to incorporate it. I believe the incorporation of this safeguard is still needed, even if the appearance of a new body having the functions of a highway authority under the Highways Act 1980 in respect of metropolitan roads does take place. I should state at this moment that I am not in favour of such a body. I would like there to be an inquiry, and for the local authorities to take over these roads.
My interest is that for nearly 25 years I was Member of Parliament for Richmond, which includes an area where the A205, or South Circulr Road as it is more usually known, crosses the area of Richmond, Kew, Barnes, and South London. Over a quarter of a century I have seen a major increase in traffic of which noble Lords on all sides of the Committee who know that part of London will be aware. To describe the narrow lanes and suburban streets in Kew, the lower Mortlake Road, Clifford Avenue, Upper Richmond Road and the traffic that spills out into Barnes High Street would take a very long time, but it is important that noble Lords on both sides of the Committee should be aware of the problem.
The situation has been acknowledged by successive Ministers of all parties. There is nothing new about it. It is not a party political issue. Indeed, the noble Lord, Lord Carmichael, sitting opposite, and I debated this matter in another place some years ago. It is acknowledged by Ministers from both parties that the situation is very grave and has to be dealt with, but so far no Government, and certainly not the GLC, have managed to cope with this major hazard in the streets of South London.
I wholeheartedly support the Bill. I gave evidence to the Marshall Inquiry in 1977 pressing for the abolition of the GLC. I think that the lack of interest by the GLC in the South Circular Road and, indeed, in the roads throughout London, over the years that the GLC has been in existence, is to be deplored. I always pressed in the other place for action to be taken to remove responsibility for these roads from the GLC
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so I am in a slightly different position from other noble Lords in the Committee this evening. I should like to see responsibility for these roads, the South Circular in particular, to be passed to the local boroughs. In this case it would be the London Borough of Richmond upon Thames, which will be only too glad to take it over.
9.45 p.m.
In any case, whatever occurs there should first be an inquiry. Why do I say this? Your Lordships may not be aware that the fears and the feelings in the area of the South Circular Road are very intense. The emotion, which may not be justified but is there, is that action might be taken to widen the roads and destroy the environment along the route of the A205. As I said earlier, this includes narrow lanes and small suburban streets where the traffic flows at great speed. In many cases heavy juggernaut lorries are using roads which are not more than 14 feet wide. The fears of the residents have increased over the past few weeks. Householders, shopkeepers, old people, and mothers are worried. Some have been encouraged to agitate for political reasons. On many occasions fears have been raised quite unnecessarily, but the fears are there and should be recognised.
The locally elected people who are responsible for the area, both on the borough council and on the GLC, led by local Members of Parliament including, in particular, Jeremy Hanley, who led a determined and skilled campaign in Richmond, have made this clear to Ministers. If it has not been overtaken by events tonight I ask my noble friend to look very carefully at my proposals.
The Secretary of State initiated an assessment study and its findings will be given consideration. I hope that they will be put before any inquiry which might be set up under the 1980 Act, if the Minister agrees that such action should take place. Again, I stress that there is no reason why such an inquiry should not take place, even on transfer to a new body.
I should like to make one other point. Many of us complain, worry and grumble about the state of traffic on the South Circular Road, but one should ask: is there an alternative? I think that there is an alternative which this Government have looked at and previous Governments have considered but which the GLC has never put into action; that is, the possibility of a West London relief road—a road built on stilts, running over the railway between Olympia and Battersea. I understand that a study on this point by my noble friend's department is now under way. Perhaps my noble friend can give me an assurance that if this relief road was made, responsibility for the South Circular Road, as it is today, the A205, can be transferred to the local borough council. This is something on which I should welcome my noble friend's comment.
As the Committee will realise, I have this evening concentrated on one area and on one road. I think it brings an essential humanity to the issue, which perhaps is needed here tonight. As for some roads, the Secretary of State may have a case for ownership and

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trunking but it surely must be incumbent on him to establish it by means of a public inquiry. I hope that there will be some support from the Committee tonight for this amendment. I should like to hear the Minister's reply. I should also like to know in detail how the voting and the result of the Division on Amendment No. 58C affects my Amendment No. 61. I beg to move.
Lord Ardwick: I said on my noble friend's amendment that I thought it gave a better and more radical solution to the problem raised by this Bill than the amendment to which I have put my name. It seems that this is true. If it proves to be the case that the Department of Transport is not to have this absolute power to trunk in London at will, then the residents along the South Circular Road will feel very much relieved. There have been many meetings and protests. There has been a great deal in the local press. There have been many letters. We have had lots of personal letters. People are frightened of what might happen.
The South Circular Road is a very peculiar road. In fact, there is no such thing as the South Circular Road. There are roads which are supposed to comprise it, which wind through the suburbs, through the shopping centres, past the schools and either fringe or divide the parks and commons. By following the signposts labelled "South Circular Road" it is possible to pick a way through South London with many twists and some loops and thus find one's way from Kew to Woolwich. Italy was once described as not so much a nation state as a geographical expression. I may say the South Circular is not so much a road as a topographical expression, the mere indication of a route.
I live on the edge of Putney Common. The South Circular Road is about 200 yards away. Over the years, we have been threatened with one motorway scheme or another. These threats have been beaten off by the vigorous action of the residents, always supported and very often led by their elected representatives. Here we thought the threat was really alive again because the Bill, as it now stands, though we are now trying to amend it, enables the Secretary of State to take over an additional 65 miles of roads in London and, by order, to make them into trunk roads irrespective of the wishes of those who live on or near such thoroughfares. We are horrified at what might be done to our suburb if the South Circular were to be trunked.
The danger was very well seen by 13 amenity societies which are watching this debate with great interest. They are 13 amenity societies which cover the districts from Kew, through Richmond, Wandsworth, Streatham, Norwood, etc. They have a very clear insight into the powers that would be vested in the Minister if this Bill were to pass with this part unamended. As they say in a letter to me:
"He would dispense with all the normal safeguards for the public, of public consultation, rights of objection and, if necessary, a public inquiry."
In the weeks that have been leading up to this, we have been told in the representations that have been made that to designate a road as a trunk road is no more than a change of name and ownership. It implies
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nothing, it is said, in the way of future development. The Ministers who gave this assurance are right. One is not challenging their good faith. But the department itself is more forthright. Last year, there was a public inquiry concerning changes that were to be desired on the North Circular Road. The department's representative described the policy in regard to trunk roads. He said:
"The Government's policy is that trunk roads in London serve an essential purpose in providing the connections between inner London and the national motorway network. Their adequacy is a matter of national concern".
That is quite right. He said nothing about the fact that it is also a matter for local concern. He added that,
"the proposed addition to the London trunk network following abolition of the GLC will make this strategic network coherent and complete".
The man from the Ministry went on to be even more specific:
"The Government is carrying out a programme of improvements to the existing trunk roads in London and is considering priorities for the new roads for which it intends to accept responsibility. These improvements should encourage"—
note these words—
"more of the longer distance traffic to use these roads".
That is exactly what we fear. Up with the juggernauts! Carry on, car commuters! Already, as the noble Lord, Lord Fanshawe, has said, there is an unacceptable heavy volume of traffic passing along the residential and shopping streets that comprise the so-called South Circular Road. And there is this danger looming up of increasing the traffic load. The people of south London are haunted by fears that they will meet the same fate as befell others in regard to the North Circular Road, which became a trunk road many years ago. The Department of Transport has upgraded that road step by step. As it has improved one stretch of road, that has attracted increased traffic so that further stretches of the road have proved inadequate. Still further schemes have been necessary to meet the new volumes.
At present 30 per cent. of the North Circular Road is still single carriageway. When the department's schemes are completed, none of it will be. At present, 27 per cent. of the road is dual carriageway with junctions at different levels. When the schemes are completed, 86 per cent. of this road going through north London, often between suburban houses and sometimes between factories, will have the standard very nearly of a motorway.
I looked at the road only this weekend. I have often driven along it, but I looked at it then from the point of view of people living along it. It must be hell. Down the middle is erected a great iron fence, sometimes with greenery growing up it which alleviates matters slightly. However, I am not trying to exaggerate when I say that it reminded me a little of the Berlin Wall. Certainly, it divides one community from another. To cross the road, people have to go 300 or 400 yards to a bridge. Ministers insist that no plans exist to improve the South Circular Road as a through route. Good! No plans perhaps, but what of aspirations and intentions? Ministers come and Ministers go, while departments remain for ever with their inexorable long-term aims and aspirations.

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provided at a place other than a school, by anyone other than a teacher employed by a local authority; or
(b) corporal punishment has been given to a pupil by a member of staff and at the time the punishment was given, the pupil was exempt from corporal punishment by him,
giving the punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of staff by virtue of his position as such.").
The noble Lord said: This amendment concerns the authorisation of corporal punishment where it is for those children for whom it is permitted. The debate that we have had so far, not only on Second Reading but on the first amendment, has provided clear evidence that what we are talking about is something which is to be taken extremely seriously. One of the problems and the disadvantages on the side of those who are still in favour of corporal punishment is that in the past it has been administered where it has been allowed rather too freely, laxly, easily and without control. This amendment is designed to make certain that it is administered only by head teachers or by teachers acting on the authority of the head teacher—that is, teachers who have been authorised by the head teacher to administer it.
I think that there is very little argument against the amendment. An amendment which was produced in another place at an earlier stage on this matter was reasonably sympathetically received by the Government who said that they would take it away and look at it again. Apparently, after having looked at it again, they did not come to any positive conclusion, but we in this Chamber look forward to hearing what decision they have come to. Certainly at that time their defence of their position, their resistance to the amendment, was not particularly well-founded. The Under-Secretary of State concerned said that once we began to introduce questions about the head, or the LEA, giving delegated authority, we would run into practical difficulties. How was the delegated authority to be given? What would happen when some or many of the staff were away from school because of illness and other special circumstances? The school would find its own way round these difficulties by giving delegated authority to all its teachers and thus the intention of the amendment would be thwarted.
4.30 p.m.
It seems to me that those arguments are not really of much substance. How is the delegated authority to be given? It presumably could be given as a general instruction, which would be known to all members of the staff, as to which teachers had authority to administer corporal punishment. Alternatively, if it was given merely to specific teachers in specific circumstances, it could be given in writing. There does not appear to be much difficulty about it. As to what happens when some or many of the staff are away from school because of illness or other special circumstances, I think both sides of the Chamber are joined in admiration for the teachers in our schools system. None of us could possibly imagine that the whole proceedings of the school would be baffled by this.
As I say, the Government said that they were going to look at this matter. I look forward to hearing what they have to say. I am quite clear that we ought to take the administration of corporal punishment seriously and we ought to require the schools to take it seriously.
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If that is so, it means that head teachers should be responsible for all corporal punishment which is given in their schools. Although certainly in larger schools they should be able to delegate the authority, ideally it should be delegated to only a limited number of people and therefore kept strictly under control.
Perhaps I may say that with this amendment goes the amendment which deals with the Scottish situation; that is, Amendment No. 39.
Amendment No. 39: Clause 5, page 5, line 24, leave out from ("staff") to end of line 31 and insert ("other than a head-teacher or teacher acting on the authority of a head-teacher, or in relation to a pupil for whom education is being provided at a place other than a school, by anyone other than a teacher employed by a local authority; or
(b) corporal punishment has been given to a pupil by a member of staff and at the time the punishment was given, the pupil was exempt from corporal punishment by him,
giving the punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of staff by virtue of his position as such.").
I beg to move Amendment No. 2.
Lord Skelmersdale: Before this discussion proceeds any further, may I ask the noble Lord, Lord Beaumont, whether he is speaking also to Amendment No. 8 with Amendments Nos. 2 and 39?
Lord Beaumont of Whitley: No. I did not think I was speaking to Amendment No. 8. Amendment No. 8 provides that corporal punishment shall only be given by the head teacher of any school. Our amendment is that corporal punishment should be given by head teachers and people acting with the authority of the head teacher.
Lord Skelmersdale: I am very grateful to the noble Lord for that clarification.
Lord Houghton of Sowerby: This Bill is concerned with what we do about a decision of the European Commission of Human Rights. This is the only reason we have this Bill at the present time. A judgment of the Commission of Human Rights has required us to decide the extent to which we will implement the decision of the European Court. There are three ways of doing that. One way is to carry out the full implication of the decision of the commission and abolish corporal punishment altogether. A second way is to accept the judgment of the commission, so far as it goes, but comply with it to the minimal extent. A third way would be to comply with the decision of the European Commission to the maximum extent, short of complete abolition. The Government have decided on the minimal compliance with the judgment of the commission. As I said, they accept it, as far as they want it to go, but they do not believe in it.
It seems to me that all the discussion henceforth on this Bill will be on what kind of a job we are going to make of the compliance, as reflected in this Bill, with the judgment of the European Commission of Human Rights. I think we must all be impressed by the fact that we are getting into something of a mess here because there are so many problems which optional compliance with the judgment of the commission will create. This amendment is justified on the ground that if we are going to accept the judgment of the commission in any degree at all, we should do it to the

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maximum extent, even if we feel that we must stop short of complete abolition. That is what this amendment seeks to do. It puts the responsibility for inflicting corporal punishment into the hands of senior members of the staff.
Listening to the debate we have just had, it seems to me that there are many misunderstandings about the position of parents in relation to corporal punishment. For example, the noble Lord, Lord Alexander, talked about the position of teachers being in loco parentis. Teachers are not in loco parentis. The term "in loco parentis" is used in the explanatory notes on the Bill but not in the Bill itself.
It seems to me that the truth of the matter is that under the common law position parents have not delegated their full authority to teachers. Under the common law they have submitted to the right of a teacher to use corporal correction to maintain order. That really is the sum and substance of what teachers are allowed to do by virtue of the position they hold. We are dealing with a common law doctrine. It will remain a common law doctrine, even when this Bill is passed.
I think we were all attracted by the clarity and simplicity of the explanation given by the noble and learned Lord, Lord Denning. He brought his incisive mind to bear upon the complexity of this problem in order to tell us what we are trying to do. The more we go through this Bill, the more we shall find that partial implementation, minimal implementation, of the judgment of the Commission of Human Rights will lead us into many difficulties and complexities of administration and possibly of the law.
As a matter of fact, we have not yet finished with the European Commission on this matter because there are cases pending which raise other issues. One of them is in relation to degrading treatment, for which apparently there is no remedy in law in this country. Yet in Article 3 of the convention there is a reference to degrading treatment and cases will be taken on that basis to the European Commission. We have to make up our minds whether we are going to try to do the best job we can on this or whether we are going to fall back into all kinds of difficulties. For that reason I support this amendment because I think we now want to fix the responsibility for the exercise of corporal punishment under the provisions of the new law. I think that is where we ought to stand.
Lord Denning: I too support the amendment, for this reason. Accepting what we have just decided, there are a number of children who will be exempt from corporal punishment. What is the result of that? Corporal punishment, in the eyes of the law, can be an assault for which at the moment the child or its parents can sue for damages in the courts. That will be an action which the parent or the child can bring in the courts. Once he is beaten in school, he can sue for damages. Hitherto the answer of the masters has been "Over the years this has been the ordinary practice of schoolmasters and people in the course of their profession". That is not to be the answer where the parent or child sues and then there is no justification because of exemption. This exemption ought to be
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clearly stated and the circumstances in which corporal punishment can be inflicted should be made as clear as possible.
This amendment seeks to say that no teacher can inflict corporal punishment unless it is the head teacher or someone properly authorised. In other words, the law ought to be clear on this matter, and this amendment would help in that direction. Therefore, I support the amendment.
Baroness David: For the same reason as the noble and learned Lord, Lord Denning, has given, I support this amendment. I am sorry to say that we are left with a Bill which we consider to be unworkable, and I think it is our duty during the rest of this Committee stage to try to make the Bill that little bit better, more understandable and perhaps rather safer in its working.
Baroness Cox: The Government believe that it would be wrong to impose this restriction on the right of a member of staff to use corporal punishment. Each teacher has in loco parentis responsibilities (or, in Scotland, vested rights). The noble Lord, Lord Houghton, implied that they do not have in loco parentis rights. The answer is that in England under common law they do have them, and similarly in Scotland in loco parentis rights are vested in them under common law by their position as teachers. Those responsibilities carry with them the duty to care for pupils and the right to use reasonable and moderate corporal punishment. The Bill will have no significant effect on that position.
However, to introduce questions about the head or the local education authority giving delegated authority we believe would give rise to many practical problems. Concern has been expressed about practical problems involved in the implementation of the Bill, and it seems that this amendment itself would create practical problems. For example, how is the delegated authority to be given? What happens if, because of illness or some other special circumstances, the school's staffing level is temporarily depleted? In the interest of expediency a blanket authority might be given to all the teachers, thereby thwarting the intention behind the amendment.
It has also to be remembered that the Bill covers the actions of a greater range of staff than teachers. For example, matrons, boarding staff and others will also have in loco parentis rights and responsibilities, and their right to resort to physical chastisement—always provided the parents have not opposed the use of corporal punishment—should not be lightly removed.
While the Bill was being considered in Standing Committee in another place the definition of "member of staff" ' was the subject of some debate. Therefore, the Government later expanded the definition to make it plain that the Bill was not intended to imply that any member of staff—for example, a caretaker—could lawfully resort to corporal punishment. It is now clear that the right applies only to teachers and others who have lawful control or charge of pupils in the sense of having in loco parentis responsibilities. I hope that the noble Baroness, Lady David, and the noble Lord, Lord Beaumont, will withdraw this amendment, which we believe would cause practical problems.
Lord Stewart of Fulham: I have been trying to get on with this. As I have said, this is still my speech, although there have been five interventions. I rose only because it has been represented to me from several quarters that there is deep and widespread feeling against the powers that the Secretary of State is given in the Bill to declare roads trunk roads without any of the usual safeguards. I was interested in the matter because I am acquainted with both ends of the South Circular Road. When I was a small boy in south-east London, I attended a school which was bang on a road which is now part of the South Circular Road. It was considered, even in the days when I attended that school, to be a rather dangerous and busy road. The school is still there and is still used, and the idea of its becoming a trunk road is extremely undesirable. More recently in my life, I have become acquainted with west London. Although the South Circular did not run through what used to be my constituency, it runs very near it; and there is other provision in the Bill for what are called "designated" roads that will affect roads in almost any part of London. The point in every case is that the Secretary of State is given almost arbitrary powers about them.
When we were debating Amendments Nos. 58C and 58D the whole burden of the Government's argument was that we should trust and admire the borough councils. Now we are being told that their wishes can be completely overridden and orders declaring trunk roads can be made without any of the rights and safeguards they used to have.
Lord Harmar-Nicholls: What amendment is this?
Lord Stewart of Fulham: I think I have listened enough to the noble Lord.
Lord Harmar-Nicholls: To what amendment is the noble Lord speaking?
Lord Stewart of Fulham: I am speaking to Amendment No. 61.
Lord Harmar-Nicholls: That is out of order.
10.15 p.m.
Lord Stewart of Fulham: I do not think so. The noble Lord seems to make up his constitutional doctrines as he goes along. I am afraid that they do not carry very much conviction with us.
I did not want to say more about this matter, but I know that there is widespread feeling against it. The Bill as it stands gives quite arbitrary powers to the Secretary of State and the rights of the boroughs and the districts in these matters ought to be restored.
Lord Fanshawe of Richmond: In view of the advice of the noble Lord the Deputy Chairman, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62 not moved.]
Lord Tordoff: I am sorry to intervene again. The fact is that we have been told which amendments on this side of the Committee have been ruled out of order. It
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would be useful to know which amendments on the Government's side are also out of order in the same context. Perhaps the noble Lord could give us an indication of these.
Lord Elton: As far as I know it is only 71A.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 62A:
Page 106, line 42, after ("(2)") insert ("Subject to sub-paragraph (4) below")
The noble Lord said: I am assured that this amendment is still in order. I can say it is purely a technical amendment to close a gap in paragraph 56 of Schedule 4, which deals with the agency agreements between metropolitan county councils and my right honourable friend the Secretary of State. Under these agreements, the MCCs act as agents for my right honourable friend in carrying out maintenance, improvement or construction work on trunk roads and motorways. As drafted, paragraph 56 provides that these agreements may be transferred by order to a successor local authority and that any agreement not so transferred will cease to have effect on abolition.
It may be that on 1st April 1986 there will still be payments outstanding from the Secretary of State for work done by an MCC before abolition or other sums due under the agreement. Equally, as a result, for example, of over-requisitions which the MCC had already received in advance of work being done, sums may be due to my right honourable friend the Secretary of State under the agreement. It would clearly be unsatisfactory from the point of view of both the MCC's ratepayers and the Secretary of State either to transfer such rights and liabilities to the local authority which is to inherit the agency agreement or simply to allow them to terminate.
The amendments accordingly provide for the residuary bodies established under Clause 55 to step into the shoes of the MCCs with respect to such outstanding rights and liabilities. This will enable the MCC ratepayers to benefit fron the sums due and for the Secretary of State also to be able to receive outstanding payments. I hope your Lordships will support this amendment, which will ensure that both parties to the agreements are fairly treated. The need for the amendment is not removed by your Lordships' decision on Amendment 58D since the MCCs will cease to be the Secretary of State's agents upon their abolition.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 62B:
Page 107, line 14, at end insert—
(" (4) All rights of a metropolitan county council arising from or in connection with any such agreement as is mentioned in sub-paragraph (1) above to receive payments from the Secretary of State and all liabilities of such a council arising as aforesaid to make payments to him (being rights and liabilities attributable to anything done or omitted under or in respect of any such agreement before the abolition date) shall be transferred on that

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date to the appropriate residuary body; and accordingly as from that date any such agreement shall have effect as respects such rights and liabilities as an agreement between the Secretary of State and the appropriate residuary body.")
On Question, amendment agreed to.
Schedule 4, as amended, agreed to.
Schedule 5 [Road traffic]:
The Deputy Chairman of Committees: In calling Amendment No. 62C, I should point out to the Committee that I cannot call No. 63 and that it is uncertain as to whether No. 62C can be called.
Lord Tordoff Lord Tordoff had given notice of his intention to move Amendment No. 62C:
Page 116, line 48, leave out sub-paragraph (1) and insert—
(" (1) For the purpose of securing the expeditious, convenient and safe movement of vehicles and other traffic, including pedestrians, and having regard to—

(a) the desirability of securing and maintaining reasonable access to buildings;

(b) the effect on the amenity of any locality affected and (without prejudice to the generality of this paragraph) the importance of regulating and restricting the use of roads by heavy commercial vehicles, so as to preserve or improve the amenities of the areas through which the roads run; and

(c) the importance of facilitating the passage of public service vehicles and of securing the safety and convenience of persons using or desiring to use such vehicles,

the Secretary of State may by order designate a road in Greater London and Part I and III of Schedule 1 to the Highways Act 1980 shall have effect as to the making of an order under this paragraph; and Schedule 2 of that Act shall have effect as to the validity and date of operation of any such order.")
The noble Lord said: Before saying "Not moved" in respect of this amendment, I want to say that should changes be made to this Bill at a later stage then, like the noble Lord, Lord Fanshawe of Richmond, in connection with his amendment, I would wish to being this back at a much later stage.
[Amendment No. 62C not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 63:
Page 117, line 3, leave out lines 3 to 8 and insert—

(" (a) the London borough councils and the Common Council;

(b) all bodies representative of those authorities; and

(c) such other bodies as the Secretary of State considers to be representative of persons likely to be affected by that designation ").

The noble Lord said: The purpose of this amendment is to ensure that the Secretary of State carries out meaningful consultations before designating a road and that the majority of borough councils to whom the roads belong agree with him on the policies to be adopted for them. Without such approval, the Secretary of State would be able to impose his policies on borough roads without local people being able to say how the roads should be run.
The Secretary of State can, by order, designate any borough road, not just ex-GLC metropolitan roads, for the purpose of facilitating the movement of traffic. He must consult with the boroughs in which the road is located, other boroughs he considers affected by the designation and any other body which he deems fit. But he, the Secretary of State, will have the final decision.
This category of designated route will be linked to London, and the Secretary of State has indicated that some 350 miles of borough roads will be categorised in this way. He does, however, have the power to extend the network at any time on these roads which form more than a third of the mileage of GLC roads which would be handed over. The boroughs will be unable to introduce any measures which prohibit, restrict or regulate traffic or parking without the approval of the Secretary of State. The same will apply to any other road if measures introduced on it affect traffic or parking on a designated route. If a borough undertakes any work on a designated road without the approval of the Secretary of State, then the Secretary of State can reverse or modify the work, as he sees fit, and charge the borough for the work he has done.
Borough councils will not be able to introduce any parking, bus priority measures, cycling facilities, pedestrian crossing facilities, lorry control or road safety measures on a designated or adjoining road if they do not meet the approval of the Secretary of State. He would then effectively be the traffic order-making authority for over half of London's main roads, 200 miles of trunk roads and 300 miles plus of designated roads. This is an unprecedented interference by central Government over local policies and individual schemes. It will lead to delays, bureaucracy, and conflict, but always with the Secretary of State having the final word.
The Government claim that the proposals they are putting forward will increase local democracy. I believe this is quite wrong, and the Government must realise it. The proposals represent an enormous increase in central Government control. They reflect the fact that the Secretary of State clearly recognises the need for London-wide co-operation and coordination of traffic planning, yet he is getting rid of the one directly elected authority with the expert teams capable of co-ordination and replacing it by Whitehall centralisation. The House of Lords Select Committee on Science and Technology has spoken out against disbanding these expert teams, and I thoroughly agree with it. I hope that the Committee will accept this amendment. I beg to move.
Lord Brabazon of Tara: Before turning to the detail of this amendment I should like, if I may, to explain a little of the background to our proposals. London has some 8,000 miles of roads. After abolition, just under 7,800 miles will be the responsibility of the boroughs, and the responsibility of the remaining 210 miles will pass to the Secretary of State. While the remaining 210 miles of trunk roads known as key routes will form the most important routes for traffic distribution in London, providing links to the national network of trunk roads and motorways, there are about 300 further miles of roads of major importance for traffic movement within London.

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protect an individual or property they are safe. I still think that subsection (3) is unnecessary. It is set out quite clearly in subsection (2) that it is only for the purpose of punishing:
"references in this section to the giving of corporal punishment are references to doing anything for the purpose of punishing the pupil".
I believe it is unnecessary but I will read what the noble Baroness has said and consider whether or not to come back at Report stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Baroness David Baroness David moved Amendment No. 5:
Page 2, line 3, leave out ("for reasons that include averting") and insert ("to avert").
The noble Baroness said: I shall also be speaking to Amendments Nos. 6, 42 and 43:
Amendment No. 6: Page 2, line 4, leave out (", or an immediate danger to the property of,").
Amendment No. 42: Clause 5, page 5, line 41, leave out ("for reasons that include averting") and insert ("to avert").
Amendment No. 43: Page 5, line 42, leave out (", or an immediate danger to the property of,").
The aim is to tighten up the exceptions to the definition of "corporal punishment". As the Minister has not agreed to the deletion of subsection (3), we can still try to improve it. Amendment No. 5 seeks to leave out "for reasons that include averting" and to substitute "to avert". "For reasons that include averting" seems to be a ridiculous and meaningless phrase and it is difficult to understand what it means. I hope that we shall have the help of the noble and learned Lord, Lord Denning, on this. "To avert" is clearer and simpler and there can surely be no objection to that.
Amendment No. 6 concerns the protection of property exemption. The existing wording appears to allow, for example, a member of staff to hit a child who is about to damage another pupil's pen, pencil, pencil sharpener or whatever. It could refer to almost anything however trivial. A statute surely should not go in for such loose wording: it should be more precise. I beg to move.
Lord Denning: I support the amendment. As the noble Baroness has said, "for reasons that include averting" means that there might be all sorts of other reasons in a personal danger and personal danger might be only one of the minor instances. I should have thought that, for clarity, it would be better to include the amendment because the phrase "reasons that include averting" may include all reasons other than averting personal danger.
Baroness Cox: I hope I may be able to clarify this. As I said in responding to previous amendments, subsection (3) is about those actions which a teacher takes to protect property or people. In both those cases such action is, by definition, on the spur of the moment and the precise combination of motivations may be difficult to disentangle. For example a teacher may slap a child—to use an example which has been used—to stop him from running on to a dangerous road, but although the prime motivation may be to
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avert immediate danger there may be other motives running through the teacher's mind, such as, "If I give this boy a smack to stop him running on to the road, I may also make him think twice about doing the same thing again when I am not here". These mixed motives could be a source of confusion and endless discussion in court.
These amendments also imply that it is wrong to take physical steps to restrain a pupil when the immediate danger is to property rather than to a person. It is difficult to accept that a teacher should stand idly by if, for example, he saw a pupil about to set fire to an empty classroom. He would need to seize hold of the pupil, exempt or not, to prevent him from committing the deed. The wording of the subsection cuts through these difficulties. If one of the motives of the teacher is to avert immediate danger that is enough. The complications of what might have been running through the mind of the teacher do not arise and I hope that that explanation might encourage the noble Baroness to withdraw her amendment.
Lord Airedale: The words in the subsection no doubt deal with the difficulties in the Minister's mind, but this is a subsection which lays down what is or is not to constitute an offence. Where we are dealing in this way with the criminal law, Parliament always endeavours to be absolutely precise. To say that it is not an offence if it is done to avert a danger is clear enough. But if one introduces a phrase such as "for reasons which include" that is wide open to definition in different ways by different courts. It is worthwhile coming back on Report, if we cannot have this now, to make this subsection clear and precise because it will become part of the criminal law.
Baroness David: I ask the Minister to take this back for further consideration. She has heard what the noble and learned Lord, Lord Denning, and the noble Lord, Lord Airedale, have said and there clearly is dissatisfaction with the wording in the subsection. I should be extremely pleased if she was willing to take it away and possibly write to me or come back with her own amendment at Report stage.
Baroness Cox: I accept this as a matter of extreme importance and I have great respect for the reservations that have been expressed. I shall naturally be very pleased to consider the points that have been raised and perhaps will write to the noble Baroness and the noble Lord. I hope to be able to explain and clarify this more effectively than I have this afternoon.
Baroness David: With that assurance, I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
Lord Stewart of Fulham Lord Stewart of Fulham moved Amendment No. 7:
Page 2, line 6, leave out subsection (4).
The noble Lord said: On behalf of my noble friend Lady David I move this amendment and with it goes Amendment No. 44, which is the Scottish equivalent.
Amendment No. 44, Clause 5: page 6, leave out lines 3 to 6.
The effect of both amendments is as follows: we have an arrangement in the Bill whereby there is to be

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a register of pupils who are liable to corporal punishment. The understanding is that pupils on that register can receive such punishment and those who are not on the register are not allowed to receive such punishment. Now we are told in Clause 2(4), or in the Scottish equivalent, Clause 5(4), that if a teacher inflicts corporal punishment on a pupil whose name is not on the register—that is, on a pupil who is supposed to be exempt from corporal punishment—this is not to be an offence. The only action available then to the parents on their child's behalf would be to bring a civil action. There would apparently be no offence committed in law.
This is rather an unusual consideration because the Government have gone to all this trouble to arrange for there to be registers, but we are told at the end of the day that even if a child is hit who is regarded as being exempt from being hit the teacher is not committing an offence.
This surely is to take the law rather lightly because, if the child is not registered as liable to corporal punishment, it should be regarded as a child not fit for corporal punishment and therefore to take physical action against it would not normally be defensible on the ordinary grounds that the teacher was acting in loco parentis or with the ordinary rights of a teacher or somebody in control of the child. Now we are told that despite the fact that the teacher will have acted in a way which is clearly wrong, this is not an offence. As I say, it is not a very reputable way of regarding the law to say that because in this case the assault is committed against a child by a teacher therefore it shall not be criminal, whereas similar assaults committed against other people, people who are not teachers, would be criminal. This is not a very creditable arrangement.
There is this point also. The parent feels that it is wrong that the child should be given corporal punishment after, as he or she has said, "I have explicitly made it known that I do not wish that to happen". We are then told that the teacher has not committed an offence but that if the parent wishes to do so he or she can bring a civil action. That is easier for some parents than for others. It is expensive and the results of it are always in doubt. Further, we have to ask the question whether this will satisfy the Commission of Human Rights. Will they regard it as adequate if Britain says, "We have not made it an offence to give corporal punishment to a child when his parents disapprove of it, but it is always open to the parents to bring a civil action against the teacher"?
I wonder whether the Government have taken any advice as to whether that will be regarded by the Commission of Human Rights as a proper compliance with their decision. I believe that the matter was not raised when the Bill was being discussed in another place, so that we have no definite statement from the Government as to what is the legal position. I hope that we may have it because the position is not satisfactory as it stands now.
Lord Harmar-Nicholls: I come to a different conclusion from the noble Lord on this. I have every sympathy for what he is asking—to make the law clear and for everybody to know where they stand—but if it is on the register that the parent does not want the child chastised and then, for some special reason, he is
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chastised, I think that the general circumstances ought to give the teachers the knowledge that they will not automatically be in breach of the law if, in the special circumstances of the particular incident, they take such steps.
I will give the noble Lord the reason why instinctively I come to my different conclusion. When I was holding junior office, on one occasion the police brought out a whole list of things concerning Trafalgar Square where they had said that they wanted to have a regulation which would make it a breach of the law if anybody scratched the plinth or if the water was disturbed or if any of the flowers were broken. If at that stage one had acceded to that request, it would have meant, however innocent the scratch and however innocent the broken flowers and however innocently the water was disturbed on a hot day, someone would automatically have been in breach of the law. The question that I put when I was asked to consider that was, "How do you deal with it now?" They said, "At the minute we have to prove damage and we have to show that there were exceptions". I said, "For my money, you have to go on doing that because if you are asking that in the case of these almost innocent and trivial things people are automatically in breach of the law. I do not think that this is good law".
In this particular instance we are now discussing, if the child is on the list of those of whom parents have said that they do not want the child to be chastised but if children are about to run across a busy road or if there is a potential danger in the laboratory and certain steps are taken, then I believe the discretion of the teacher ought to be left as the Bill seems to leave it. My instinctive reaction, while not opposed to the general feeling that the noble Lord expresses, is that I do not believe that it ought to be too easy, following an innocent action, for somebody automatically to find themselves having committed a criminal offence.
5.15 p.m.
Lord Denning: I should like to ask for an explanation of this subsection. I have read it through two or three times and I have been trying to imagine a case to which it applies. I should like to ask the Government what is the case to which it applies. For instance, there are the words:
"A person does not commit an offence".
What offence is being talked of there? There is not an offence mentioned in Clause 1. Is it the offence of assault? What is the offence? I should like that explained. Then I should like a justification of the words:
"apart from this section".
I want to have a case which is being illustrated there by the use of the words:
"apart from this section".
This clause will give the lawyers no end of arguments if it remains in its present state. I would suggest that it be redrafted so as to make it clear to any ordinary individual. For that purpose, I would support the amendment but I think it would be better if instead of the amendment being carried, the Government were to take back the clause, look at it and make it clear.
Baroness David: I too had great difficulty in understanding this subsection. I took the advice of two noble and learned Lords in this House yesterday. Their advice to me was that this subsection makes the situation worse than it is at the present moment and that it gives much greater protection to teachers who beat children when they should not than they would get at the present time. It seems to me wrong that the Bill should be doing that, if that is what in fact it means. I think we all want some clarification on this. Perhaps the noble Baroness, if she cannot explain it, will take it back and try to redraft it.
Baroness Cox: I hope that on this occasion I will be able to explain it. First, perhaps I may reply to the noble Lord, Lord Stewart of Fulham, who asked whether the Government had taken legal advice. Yes, the Government have taken legal advice and have been told that the Bill as it is now worded fully meets the requirements of the European Convention. I am afraid that the Government cannot accept this amendment because, without subsection (4) of Clause 1, a teacher might be the subject of criminal proceedings simply because of a contravention of exemption arrangements. Perhaps I may amplify that. As the law stands at the moment, a teacher committing a battery on a pupil may face proceedings in a civil court or in a criminal court if the action were to involve immoderate and unreasonable corporal punishment. The Bill does not remove the prospect of criminal proceedings where that prospect now exists, but subsection (4) ensures that no new crime is brought into being by this Bill. In other words, no criminal offence is committed simply by failure to comply with exemption arrangements.
If a teacher were to make an error and inflict reasonable corporal punishment on a child for whom exemption had been claimed the teacher would not thereby become the subject of criminal proceedings. In other words, the remedy provided by the Bill is a civil one and we believe that that is the way it should be. This is because we are surely not talking about criminal actions when considering breaches of exemption arrangements. Civil proceedings are onerous enough and teachers, like most of the rest of the community, are likely to want to avoid such proceedings if possible. I think it would be wrong to expect teachers to take care and control of children and then to expose them to criminal proceedings for contravention of exemption arrangements. I hope that, with that clarification, the noble Lord, Lord Stewart, and the noble Baroness will withdraw the amendment.
Lord Denning: I think that I understand from that explanation that a teacher who goes beyond the bounds or whatever it may be is not to be liable for any criminal offence. He is not to be taken to the criminal courts for an assault or anything like that and the only question here is one of civil action. If so, I would hope that this subsection does not involve the committing of any criminal offence, because assault is a criminal offence too.
Baroness Cox: Were a teacher to inflict immoderate and unreasonable corporal punishment, then he or she would be subject to criminal proceedings as is the case now.
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The situation with regard to this amendment is to make sure that were a teacher inadvertently pehaps to apply corporal punishment to a pupil who had been exempt from corporal punishment by parental wish, that teacher would not, for those reasons, be subject to criminal proceedings; but that would be a civil matter.
Lord Marsh: Listening to the amendments and the discussion on this Bill it seems to me the most unbelievably bad Bill in its effect that one has ever encountered. Whatever view one takes in terms of for or against corporal punishment, since Parliament has decided to go down this particular path it seems to me that we are in danger of making the position of teachers almost impossible. As I understand the amendment, it places a teacher in a situation where, if he or she—in a moment of anger with a particularly irritating child, and all parents know that all children are at times particularly irritating—slaps it across the leg and it happens to be the child of an over-protective parent, the teacher then finds himself or herself faced with criminal proceedings. That seems to me to be absurd in the extreme. If the teacher uses excessive force on the child, then quite rightly, as with any other person, that teacher is open to criminal proceedings, as I understand it. But to place a teacher in a situation where, for slapping a child across the back of the legs in a matter of irritation or of the moment, automatically he or she is subject to criminal proceedings, is an absurdity, and I would have thought the Bill contains enough absurdity not to increase the quantity.
Lord Stewart of Fulham: I must say that the more we discuss this passage I find it more and more difficult to follow. But I have noted what the noble Baroness has said. We may want to return to this at a later stage; but for the present I would ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Somers Lord Somers moved Amendment No. 8:
Page 2, line 10, at end insert—
("( ) Corporal punishment shall only be given by the Head Teacher of any school.")
The noble Lord said: This amendment is purely to reserve the action of corporal punishment to the headmaster who is considered to be a responsible person and to prevent its use by other members of the staff who may or may not be responsible people; one cannot tell these days. I think it much wiser on the whole to confine it to the headmaster who will use it justifiably or not as he thinks right. Therefore, I beg to move.
Baroness Cox: The arguments which relate to the amendment put forward by the noble Lord in this context are perhaps similar to those which were discussed with regard to the earlier amendments of delegation of authority from a head or from a local authority to other teachers. But I think it could be said that they apply with even greater force to restricting the right to use corporal punishment to the head teacher alone. I think it might help if we remember that the definition of corporal punishment is necessarily broad; a point which we have already

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made. It covers not just the caning or the use of the tawse but also the much more immediate, ready, and much milder forms of corporal punishment such as smacks or slaps, which is just the kind of physical chastisement which is often used particularly on young children, in, say, primary schools. Some head teachers may by choice reserve to themselves the right to use corporal punishment and if they so decide then obviously that is fine and is fully to be respected. But given the range of staff with in loco parentis rights and responsibilities, the Government believe that it would be wrong to impose restrictions of the kind put forward by this amendment by legislation.
Lord Somers: I think I was perhaps unwise enough to confine my interpretation of corporal punishment as being the use of the cane. But of course if it is a matter of merely slapping a pupil's hand, naturally one does not want to confine that purely to the headmaster. Therefore I withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (The Earl of Listowel): Before I call the next amendment I should draw the attention of the Committee to the fact that if this amendment is agreed to I cannot call Amendments Nos. 11 to 13.
[Amendment No. 9 not moved.]
The Deputy Chairman of Committees: If the next amendment, No. 10, is agreed to, I cannot call Amendments Nos. 11 to 13.
Lord Somers Lord Somers moved Amendment No. 10:
Page 2, line 11, leave out subsection (5) and insert—
("( ) A pupil shall be exempt from corporal punishment only if, in the opinion of a registered medical practitioner, such punishment would cause him physical or psychological damage, and a certificate from such practitioner has been produced.").
The noble Lord said: I move this amendment because of an impossible position in which the teacher will be placed under this Bill as it stands. That is the discrimination in a single class between those who are subject to corporal punishment and those who are not. That makes the teacher's position absolutely untenable. It is essential that either we have all children subject to it—except possibly, as I have allowed for in the amendment, very special cases who I think would be very rare if they existed at all—or none. Personally I would prefer all.
While I am moving it, I must say to those noble Lords who are so keen on abolishing corporal punishment that we have this Bill with us. It has gone through the other place and your Lordships have given it a Second Reading so we must go on with it. The only thing we can do is to make what is at present a completely unworkable Bill a workable one. That is what we are trying to do tonight. I beg to move.
Baroness Cox: I regret that the Government cannot accept this amendment because it would in effect mean that all school pupils would be liable to corporal punishment unless it were medically certified that such punishment would result in physical or psychological damage. In practice it is doubtful whether most parents would ask their doctors to certify to this effect
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and whether in fact most doctors would wish to do so. Therefore the great majority of pupils would be liable to corporal punishment regardless of their parents' wishes on the matter, and it is the case that we are obliged, as has already been stated this afternoon, under the European Convention on Human Rights, to ensure in effect that parents' wishes about corporal punishment will be respected. If the Bill were amended in the words which the noble Lord suggests, it would not meet that obligation. I hope therefore that he might withdraw the amendment.
The Earl of Onslow: I have been trying not to say this. I think this Chamber and this Parliament is about to make the most ghastly error. To paraphrase, this Bill is exactly the same as the line that gives the mother of the Kray twins the decision whether Reggie should go to Ford Open Prison or to the high security prison in the North of England, Gartree outside Leicester. We are in danger of making the most terrible asses of ourselves on this particular Bill. I do not think I have heard anybody outside the Chamber say a single good word about it. We are voting for it saying: "Well, we don't want to disturb the apple-cart, we don't want to throw things out. We know that we are making a mess. It's just a little Bill so we have to do something about it."
The European Court of Human Rights has put us in a ghastly position. We are now doing something which is nothing short of ridiculous, and the only thing I can say in favour of the situation put by the noble Lord, Lord Somers, is that it makes something which is particularly ridiculous just that much less ridiculous. I am neither anti- nor pro- corporal punishment—I do not feel strongly either way—but I think that in this Parliament and this Chamber we are in danger of making the most frightful asses of ourselves.
5.30 p.m.
Lord Somers: I really feel in rather a quandary here because I think it is essential to take out of the Bill that discriminatory aspect of it which is going to make things so impossible for teachers. I am speaking from a little experience—I have been a schoolmaster myself—and I know that that kind of thing would have made life absolutely impossible. Therefore I can only say that if we are so bound to the European convention that we dare not regulate our lives as we feel is best, then on this occasion I think that I must ask you Lordships to express your opinion.
On Question, amendment negatived.
Baroness David Baroness David moved Amendment No. 11:
Page 2, line 13, at end insert ("he has attained the age of five and").
The noble Baroness said: This is the first of a number of amendments which aim to remove whole age groups or categories of people from those liable to corporal punishment. This amendment is to exempt all pupils aged under five from corporal punishment. These young children under five are particularly likely to suffer physical damage and to be emotionally upset if they receive corporal punishment. The relevant professional organisations are strongly opposed to corporal punishment for very young children, for example the Pre-School Play Groups Association, the

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British Association for Early Childhood Education and so on.
At present the Bill allows parents of children attending nursery schools and classes maintained by local education authorities to opt them out. But it does not appear to cover other forms of pre-school education, even those supported by public funds. A later amendment, No. 16, seeks to extend the scope of the Bill to day nurseries and other pre-school provision.
Anmendment No 16: Page 2, line 30, at end insert—
("or
(iv) at a day nursery or other provision for children aged under five maintained or assisted by a local authority,").
That amendment will obviously not be moved if this amendment succeeds. I do not think that the Parliamentary Secretary put up at all a convincing case when he argued against this amendment at Committee stage in another place. He said at col. 57 on 20th February:
"I cannot accept that central Government should seek to force teachers to abandon corporal punishment for this or any other group of pupils. After all, it is the parents and the teachers who together know these children best, and if the parents believe that their children should not be liable to corporal punishment, the Bill gives them the absolute right to claim an exemption."
This Bill seems to me to put at risk precisely those children who most need protection: the ones perhaps whose parents beat them about a bit at home. I feel most strongly that no child under five should be beaten at school or play group, or whatever form of activity they attend. I beg to move.
The Countess of Mar: I find myself in a most terrible quandary here. We have had the definition of what corporal punishment is: in other words, it can be a slight tap or a good hiding. Having been a mother myself, I am well aware that a child will go to put a finger behind the bar of an electric fire, and you give the child a tap and if the child does the same thing again you tap it a bit harder. What on earth is a teacher in a nursery school to do with a youngster under five who is inquisitive—and there is something wrong with it if it is not—and the child will keep going back and back to something which is dangerous to the child itself. I think we must be very careful how we define corporal punishment, particularly with the under-fives.
Lord Marsh: I should like to follow that point, if I may, because many of the contributions that we have had on this subject have contained emotive words such as "beating" and "flogging". Quite frankly, any teacher who beats a child who is under five in any accepted way should certainly be fired and probably prosecuted, and I suspect that he would be found guilty under the law. If corporal punishment is a question of smacking children, probably sometimes in their own interests, and we are really getting to the level of saying that that must not even be allowed then I think it is an absurdity. One of the problems is that people are defining corporal punishment in the way most of us tend to think of it and, as I understand it, that is not the way it is defined in the Bill. I repeat the point that with some children some rather tougher punishment has an effect, but I think anyone who is
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talking about very small children being beaten is living in a world which none of us would want to be a party to.
Baroness Cox: As the noble Baroness, Lady David, has said, these amendments are seeking to restrict the range of pupils liable to corporal punishment, even though their parents may be perfectly content to agree to the sanction. In this particular case the ideal would be to impose a ban on any form of corporal punishment in any maintained nursery school and nursery classes and even on under-fives in primary schools. The smack on the leg or the hand would not be allowed in the light of these amendments.
It is a fact, surely, with which everyone would agree that children under five (and indeed any children) can sometimes behave very badly, and although we would all accept that those who teach and supervise them would obviously exercise the care appropriate to the age of their charges, we cannot accept that central Government should force those teachers to abandon corporal punishment altogether for this or for any other group of pupils.
We must be prepared to respect the professionalism of teachers and those who have the care of young children. I am a little worried about the implied lack of faith in the professionalism of these teachers which underpins the sense of these amendments. Therefore I hope the noble Baroness and others who support the amendment would accept that decisions should be left with parents if they wish their young children to be exempted, and that they will trust members of the teaching profession and those who have the care of young children; and that they will therefore withdraw these amendments.
Baroness David: I should like to say to the noble Countess, Lady Mar, that teachers would be perfectly all right if they prevented a child from burning itself or doing damage. That would not come into the question at all. I still feel it is very distasteful for corporal punishment, however described (and it is described as a battering in the Bill) to be applied to children under five. However, I will read what the noble Baroness has said and reserve the right to come back on this at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Stewart of Fulham Lord Stewart of Fulham moved Amendment No. 12:
Page 2, line 13, at end insert ("he has not attained the age of 16 and").
The noble Lord said: On behalf of my noble friend Lady David, I beg to move this amendment and with this are the related Scottish amendments, Nos. 47, 65 and 67.
Amendment No. 47: Clause 5, page 6, line 12, leave out ("18") and insert ("16").
Amendment No. 65: Page 8, leave out lines 7 to 10 and insert ("a parent of the pupil").
Amendment No. 67: Page 8, line 12, leave out ("or, as the case may be, himself").
The effect of them would be to make children over the age of 16 exempt from corporal punishment. This is a very different line of argument from that which we have been pursuing in regard to the under fives. In the

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first place, presumably one must admit and say to the noble Lord, Lord Marsh, that, unless it is serious, there is no point in corporal punishment at all if one is dealing with someone under the age of 16. We are therefore dealing with severe corporal punishment. The question is whether that is really a sensible way of dealing with young people of this age.
It is noticeable—we shall revert to this in a different connection later—that the law in Scotland is that a 16-year-old is entitled to decide for himself whether or not he will be liable to corporal punishment. That is why we bring in three Scottish amendments. The whole process is a little complicated because we have to deal with the problems at present in Scotland, where the 16-year-olds can decide for themselves. The net effect of the amendments I am proposing would be to make 16 the maximum age at which anyone can be regarded as liable for corporal punishment.
The question is: at what age are you going to start treating a young person as a young man or a young woman rather than as a boy or girl? I think we must all recognise that the age at which we do that is now rather earlier than it would have been, say, 20 or even 10 years ago. We ought nowadays to be able to treat young people of 16 as entirely responsible people for whom this kind of sanction would not, on any line of argument, be appropriate. We have to remember that at the age of 16 they can legally contract a marriage. There are several other things that legally they can do at this age and it becomes an absurdity to regard them also as being liable to corporal punishment.
The alteration in the Bill we are asking for here is therefore not a very great one. It is true that at the beginning of these Committee stage debates we were arguing a major question about corporal punishment as a whole. We have to accept the decision which the Committee has taken on that. But I think we should now address ourselves to this much smaller question of whether it is appropriate to use corporal punishment on people who have already attained the age of 16. I think one would find that the majority of people who have to do with the education of young people of that age would say that it really ought not to be necessary once they reach the age of 16. I hope the Committee will come round to that view.
Lord Harmar-Nicholls: Is this not really a point that we should leave to the discretion of the teacher? We have now apparently accepted the general principle that under certain circumstances corporal punishment will be doing the right thing for the pupil and for the general system we want to support. It is perfectly true that a lot of people are very adult at 16 and a teacher would be a bit stupid to think in terms of doing to a 16-year-old what he would do to an eight- or nine-year-old. Let him use his discretion on that. If the pupil is the sort of person for whom, however mildly it is done, corporal punishment would not achieve the discipline the teacher wants, the teacher would find some other form of punishment to try to achieve the discipline.
I do not think we in this Committee or those in another place ought to try to define every circumstance as specifically as that and lay it down exactly when and how the judgment of the teacher can be used. I should have thought this was the case. The
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general principle having been accepted in the Bill—we accepted it at Second Reading and we have defeated amendments since—I should have thought that the question of age was a matter that we ought to leave to the teachers.
Or is it? Perhaps I am being very naughty again; and I often am. But if we exempt the under-fives, is it a matter of trying to defeat the general principle of the Bill by this gradual softening up? Having accepted the Bill, let us not be too clever in the parliamentary tactics. Let us leave some responsibility to the people who are there and who have to face the tune when they make their decisions.
Lord Marsh: I find this such an extraordinary Bill that it is difficult to develop a particular theme with it. I find that I have a great deal of sympathy with the amendment, for two reasons. First, I think it quite wrong that a teacher may be placed in a position where he is expected by his employers to administer physical force to people who are bigger than he is. I come from the state system and on the whole I have never been in favour of hitting people who are as big as I am or even bigger—only people who are much smaller. Therefore on a quite serious point I think it is asking too much that that be expected of the teacher, if that is the tradition of the school.
Secondly, if the child is over the age of 16, there is an additional sanction which does not exist before then, which is that he is past the statutory leaving age and can be expelled. In my view, teachers are entitled to say, if they have a large lout who is uncontrollable, that he should be excluded from the school and somebody else must look after him. I am bound to say that with all the other things that this Bill does and the problems it poses to the teaching profession, if we place many more responsibilities on teachers in respect of trying to keep law and order in the school, I think they will resign en masse.
The Earl of Onslow: Presumably under this Bill the teachers are actually going to be able to flog adults when they are over 18. My son is 18 next week and he may need flogging, but that is a different question altogether. Will teachers under this Bill still be able to flog adults? It seems a rather odd way to behave.
The Countess of Mar: I have to agree with the noble Lord, Lord Stewart of Fulham. In fact I should like to see the age lowered. I shall never forget that at the tender age of 14 my father "clocked" me one round the ear and I, completely without thinking, hit him back and I knocked him over. This is going to happen with kids in school. I think girls particularly resent being hit and the instinct is to hit back. I have very little doubt about that. My husband is a teacher and my previous husband was also a teacher, and I have seen it done. I think that to expect teachers, in some circumstances, to hit children of 16 and over who are young people by that time is ridiculous.
Lord Harmar-Nicholls: Have you ever hit your husband?
Baroness Cox: Perhaps I may respond very briefly by reiterating that of course parents and teachers have

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an important disciplinary function for this age group, as for any other age group. We, in the Government, believe that we should not rule out the occasional use of corporal punishment for this age group, if this is what seems appropriate to those people who are directly involved with the situation on the spot. I am sure schools will continue to rely on the development of self-discipline as distinct from imposed discipline, but there may well be times when imposed discipline is necessary. Truly, we must and can trust the professional judgment of the teaching staff on the spot rather than make their decisions for them. Therefore I am afraid again we cannot go along with those who would wish to enforce a ban. There are many circumstances when a 16- or 17-year-old may indeed deserve and may receive corporal punishment. If the school has the authority through the Bill to use corporal punishment, why should we stand in the way of that school if it regards corporal punishment as the appropriate sanction?
The schools, of course, can always use other sanctions if they seem more appropriate. For example, the sanction of expulsion is always there for this age group. But I would hope again that we would trust the teaching profession and would not seek to impose a ban on them which would prohibit them from undertaking what seems to them to be the appropriate sanction in the particular situation in which they find themselves, confronting problems of disorder and indiscipline.
Lord Stewart of Fulham: I must say the noble Baroness always phrases it very charmingly, but she is rather obstinate about this. I listened in some respects to the arguments that were advanced about the under-fives, but this really does not seem to make sense. At present, if you are in Scotland, the lad over 16 can always avoid corporal punishment by deciding to exempt himself from it. Why should you insist that there must be the right to inflict corporal punishment on over-16s in England, although it cannot be done in Scotland? I really cannot make sense of this. I should have thought that if we are to have a Bill of this kind at all—and I share the view of the noble Lord, Lord Marsh, that it is rather unfortunate that we are having it at all; indeed I think this is everybody's view really, including the Government's—we might take the opportunity to clear up one or two anomalies, and one is this anomaly between English and Scottish law about the over-16s. I cannot feel that the case has been made out and I should like to test the opinion of the Committee on this amendment.
5.48 p.m.
On Question, Whether the said amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 100.

DIVISION NO. 3

CONTENTS

Airedale, L.

Bank, L.

Allen of Abbeydale, L.

Beaumont of Whitley, L. [Teller.]

Ampthill, L.

Aylestone, L.

Bernstein, L.

652

Birk, B.

Kilmarnock, L.

Blease, L.

Kinloss, Ly.

Blyton, L.

Listowel, E.

Boston of Faversham, L.

Longford, E.

Brockway, L.

McGregor of Durris, L.

Brooks of Tremorfa, L.

McNair, L.

Bruce of Donington, L.

Mar, C.

Campbell of Eskan, L.

Marsh, L.

Carmichael of Kelvingrove, L.

Melchett, L.

Cledwyn of Penrhos, L.

Meston, L.

Collison, L.

Molloy, L.

Darcy (de Knayth), B.

Munster, E.

David, B.

Nicol, B.

Davies of Leek, L.

Ogmore, L.

Diamond, L.

O'Neill of the Maine, L.

Donaldson of Kingsbridge, L.

Onslow, E.

Elwyn-Jones, L.

Parry, L.

Ennals, L.

Perry of Walton, L.

Ewart-Biggs, B.

Pitt of Hampstad, L.

Ezra, L.

Ponsonby of Shulbrede, L. [Teller.]

Falkland, V.

Fisher of Rednal, B.

Prys-Davies, L.

Fulton, L.

Raglan, L.

Gallacher, L.

Rea, L.

Galpern, L.

Ritchie of Dundee, L.

Glenamara, L.

Ross of Marnock, L.

Graham of Edmonton, L.

Sainsbury, L.

Greenway, L.

Seear, B.

Hampton, L.

Shaughnessy, L.

Harris of Greenwich, L.

Shinwell, L.

Hatch of Lusby, L.

Somers, L.

Henderson of Brompton, L.

Stallard, L.

Heycock, L.

Stedman, B.

Houghton of Sowerby, L.

Stewart of Fulham, L.

Hylton, L.

Taylor of Blackburn, L.

Hylton-Foster, B.

Taylor of Mansfield, L.

Jacobson, L.

Thurso, V.

Jacques, L.

Tordoff, L.

Jeger, B.

Whaddon, L.

Jenkins of Putney, L.

Wilson of Langside, L.

John-Mackie, L.

Winstanley, L.

Kagan, L.

Wootton of Abinger, B.

Kaldor, L.

NOT-CONTENTS

Airey of Abingdon, B.

Gray of Contin, L.

Alexander of Tunis, E.

Gridley, L.

Arran, E.

Grimthorpe, L.

Belhaven and Stenton, L.

Hailsham of Saint Marylebone, L.

Beloff, L.

Belstead, L.

Harmar-Nicholls, L.

Birdwood, L.

Hemphill, L.

Blake, L.

Holderness, L.

Boyd- Carpenter, L.

Inglewood, L.

Brabazon of Tara, L.

Kaberry of Adel, L.

Brookeborough, V.

Kemsley, V.

Brougham and Vaux, L.

Kinnaird, L.

Buckinghamshire, E.

Kinnoull, E.

Burton, L.

Kintore, E.

Caccia, L.

Lauderdale, E.

Caithness, E.

Layton, L.

Cameron of Lochbroom, L.

Long, V. [Teller.]

Campbell of Alloway, L.

Lyell, L.

Cathcart, E.

McAlpine of Moffat, L.

Chelwood, L.

McAlpine of West Green, L.

Coleraine, L.

McFadzean, L.

Cork and Orrery, E.

Macleod of Borve, B.

Cox, B.

Margadale, L.

Craigavon, V.

Massereene and Ferrard, V.

Craigmyle, L.

Maude of Stratford-upon-Avon, L.

Davidson, V.

De La Warr, E.

Milverton, L.

Drumalbyn, L.

Monk Bretton, L.

Elliott of Morpeth, L.

Monson, L.

Ferrers, E.

Montgomery of Alamein, V.

Ferrier, L.

Moyne, L.

Fortescue, E.

Murton of Lindisfarne, L.

Fraser of Kilmorack, L.

Newall, L.

Gainford, L.

Norwich, Bp.

Glenarthur, L.

Nugent of Guildford, L.

Gray, L.

Orkney, E.

653

Orr-Ewing, L.

Stamp, L.

Pender, L.

Stockton, E.

Portland, D.

Stodart of Leaston, L.

Quinton, L.

Sudeley, L.

Rawlinson of Ewell, L.

Swinfen, L.

Renton, L.

Swinton, E. [Teller.]

Richardson, L.

Terrington, L.

Romney, E.

Tranmire, L.

St. Aldwyn, E.

Trefgarne, L.

St. Davids, V.

Vaux of Harrowden, L.

Sandys, L.

Windlesham, L.

Sempill, Ly.

Yarborough, E.

Sharples, B.

Young, B.

Skelmersdale, L.

Young of Graffham, L.

Smith, L.

Zouche of Haryngworth, L.

Resolved in the negative, the amendment disagreed to accordingly.
[Amendment No. 13 not moved.]
5.57 p.m.
Baroness David Baroness David moved Amendment No. 14:
Page 2, line 18, at end insert—
(") No pupil in respect of whom a statement of special educational needs is maintained shall be shown in a register as liable to corporal punishment.").
The noble Baroness said: This amendment covers another group of children whom we wish to exempt and these are pupils with statements of special educational needs. This group is particularly vulnerable. Even the most ardent supporters of corporal punishment hesitate over advocating it for handicapped children. When the Education Act 1981 was being discussed the noble Baroness, Lady Young, said:
"I believe that the use of corporal punishment on handicapped children is wrong"—
and, again—
"! believe that one would find that good practice would make clear that corporal punishment applied to handicapped children must be wrong".
In response to the DES consultation which preceded this Bill, the Voluntary Council for Handicapped Children—an umbrella group representing all the organisations working in this field—wrote:
"We are convinced that the use of corporal punishment is inappropriate for any children in school and particularly undesirable when a child may have a disability or special needs".
The Royal College of Psychiatrists, in a memorandum to the Government wrote:
"Children who are suffering from handicap, emotional disturbance or severe deprivation are possibly the most likely to receive it and the most likely to be harmed".
RADAR responded to the consultation:
"We would emphasise our objection to corporal punishment of any kind. We believe that in no circumstances should physically disabled children be subject to corporal punishment, as not only is it an inappropriate method of maintaining discipline but may also physically harm the child concerned".
No organisation working with children with special needs favours the use of corporal punishment. While the integration of children with special needs into ordinary schools is increasing, the overwhelming professional view is that the potential dangers of using corporal punishment are too great a risk. As some children will be exempt because of parental preference, there can be no argument against this amendment for singling out children with statements and making them feel different. The present position is
654
that only 12 of the majority of LEAs which retain corporal punishment have banned the beating of handicapped children.
The Government's arguments against a similar amendment discussed in Committee were unconvincing. While it is true that local authority policies on making statements may vary, all children with severe disabilities and all those attending special schools will have or should have statements under the provisions of the Education Act 1981 The Parliamentary Under-Secretary said in another place:
"While by and large teachers do not use corporal punishment on children with special educational needs, to ban the use of this sanction entirely could be undesirable. I think that the Committee will accept that as a major point".
I totally fail to see that it is a major point and feel it is no argument whatsoever against the case, which I think is strong, with all those different organisations feeling very powerfully for this amendment, which I beg to move.
6 p.m.
Baroness Cox: Naturally I have great sympathy with the thinking behind this amendment. It raises sensitive issues and I believe a sensitive approach is needed in any discussion on it. But I also believe that the amendment would be undesirable in itself and because of variations in the way education authorities work in relation to statements it could well lead to inconsistencies. Perhaps I may explain.
I think it is undesirable in itself because teachers must know—they know very well—when they are dealing with pupils who need special care. A pupil with special needs—a statemented pupil—could however be someone with a slight hearing problem or someone who manifests serious behavioural and social problems. The teachers know that they must respond to each individual child. They know the pupil and they know the circumstances of each child and what is the most appropriate response to him or to her.
By and large teachers do not use corporal punishment on children with special educational needs; but to ban the possibility of its use is to remove responsibilities from the teacher and above all from the parents. Under the Bill parents, who, after all, know the children better than anyone else, have the absolute right to exempt the child from corporal punishment if they feel that is best. The Bill gives them that right and of course they can exercise it. The idea is that they should exercise it. Let us leave the schools and the parents with the joint right to decide. If one or the other decides against corporal punishment, that should be the end of the matter; and, indeed, under the Bill it would be so. So, intrinsically, the amendment is undesirable.
It could also lead in practice to some inconsistencies. For example, in a case where a child is mildly handicapped, the policy and practice of the particular local education authority involved may or may not result in his being statemented. The amendment therefore could cause a child to be affected by, or excluded from, the provisions of the Bill on the basis of criteria which are completely unrelated to the Bill itself. To that extent it would be rather arbitrary.

655
Nor is there a satisfactory dividing line any longer between those in special schools and those in ordinary schools—in other words, in all other schools—because under the Education Act 1981 those pupils with milder difficulties may well be integrated in ordinary schools, but nevertheless be given the protection of a statement. To base exclusion from corporal punishment on whether or not a child has a statement again might not be satisfactory.
Perhaps I may finish by saying that I acknowledge and respect that this is a very sensitive issue, but I believe that in such matters the best course is to leave decisions to those who really know the pupils best. The parents have the right to request exemption; the teachers would use their professional discretion in responding to each individual child. The Bill allows for that. With that recognition of the real sensitivity of these matters, I hope that the noble Baroness will not press this amendment.
Lord Beaumont of Whitley: I do not really think that the Minister has managed to answer the case for this amendment. The main argument which I understood the noble Baroness to put forward is that teachers will know the problems of the children with whom they are dealing and they will know which child they ought to be punishing with corporal punishment and which child they ought not. That is a perfectly fair argument; or at least it would be perfectly fair in any Bill except this one. But this Bill has substituted for that judgment the wishes of the parent. I have already said on Second Reading that unlike many of my noble friends I rather support the Government on this, but I cannot see that the Government can have it both ways. If they have substituted the judgment of the parents, it seems to me that they should not be arguing that the teacher should be judging between which child to punish and which not to punish. It seems to me that the case for the amendment still stands.
Lord Ritchie of Dundee: I should like to put in a word here. The noble Baroness, Lady Cox, said that teachers always know and will always have the right information about when a child is handicapped or not. In my experience of teaching handicapped children this is not always so. They should know, but they do not always know. A child may exhibit very irritating symptoms such as hyperactivity or aggressiveness which may proceed from medical causes which are known about by the experts but not always by the teacher concerned. One also has to consider that a teacher trying to cope with the difficulties of a large class may well forget in the heat of the moment that this or that child who is being a nuisance is in fact slightly handicapped. I think it is a very prevalent situation. I wish to question very strongly the statement of the noble Baroness that the teacher always knows; first, he may not know and, secondly, he may forget.
Lord Harmar-Nicholls: The last two speeches have cancelled themselves out. On the one hand it was said that teachers know; so let them use their judgment and give them the power to do it. Then the noble Lord on the Liberal Bench who said that he supported the Bill on Second Reading said that he did not like the parent
656
provision being brought in. If one faces up to it, if the teacher does not know, the parent will know. If the parent does not know, the teacher will know. To suggest that together they would not arrive at the sort of conclusion which would exempt those who ought to be exempted I find very hard to believe.
On the question of the disabled generally I am a little self-conscious about the line I find I have to take in response to the various amendments that are on the Marshalled List. I truly believe that I am as compassionate as any of those who have put their names to the amendment. I think that in looking after one's own family and from the jobs one has had in the Army and at other times one is as compassionate, as sensitive and as anti-pain as anybody else. But on this subject it is so easy to appeal emotionally. One has only to say that one ought not to slap or inflict corporal punishment on anyone disabled and immediately and emotionally one has the support of everybody who has any decency in them at all.
But in practical terms we all know—I know and I bet noble Lords here know also—that young children who are handicapped are not automatically angels. They are not automatically goody-goodies. In their early days because of their disablement they are given way to (and understandably so) by their parents and they sometimes become a little selfish and difficult. It is hard to say this to people and particularly to children who are disabled because we are expected to love without question, but we have to be practical when we are putting legislation on to the statute book. If it is the general proposition that corporal punishment in the form that it is being defined—not thrashings and not beatings but disciplining by a slap or by other things—is right, to say that because they are disabled in one way or another certain pupils are so different from the others that they must not be treated in the same way is in many ways an insult.
I believe that this is a case where the matter ought to be left to the discretion of the teacher. If it is the case that we feel that teachers are not fit to exercise that discretion, then they ought not to be appointed. In that case, perhaps we should have a Bill that pays more attention to the kind of people we allow to teach our children, so that we will have teachers whose discretion we believe is reasonably sound and can be trusted.
I will add just this. I paid some attention to the European Community and was a Member of the European Parliament for five years, as many of your Lordships know. People are saying that this is a bad Bill. I do not believe that it is a good Bill and I have many criticisms of it. But I find it very difficult to accept that people who are pro-Common Market, to the extent that so many are, can be critical about this being a bad Bill. I find that rather contradictory. This Bill is the only way possible to take into account the feelings of our own country while at the same time paying some regard to the European Court.
I am not prepared to concede that the European Court automatically and necessarily can reflect what is good for this country. I only say that in response to those who seem to be criticising the Government for this being a bad Bill while at the same time applauding things which perhaps started the whole of this trouble.
Lord Beaumont of Whitley: The European Court of Human Rights has nothing to do with the EC; it has to do with the Council of Europe. The noble Lord's objection does not really stand up.
Lord Harmar-Nicholls: I put them together. The one flows from the other: the Council of Europe and the things it does.
Lord Beaumont of Whitley: Nonsense.
Lord Parry: Perhaps we may return to the sensitive issues which were being sensibly debated by the Committee before that natural but slight digression. The issue before us is one we all know something about. Anyone who is a parent knows something about the frustration that builds up in a normal, fit individual. My wife was for seven years running a special unit in a school for very severely physically and mentally handicapped children. At the moment, my daughter is working in such a school and is enjoying herself very much.
The point about the handicapped is the immense frustration that occasionally explodes from them. We are talking about degrees of handicap which range over the whole spectrum. If a person is handicapped then the frustrations which are part of a normal human being burst through in occasional violence. In those moments of violence they are faced with another ordinary human individual, who can be frustrated too at exactly the same moment. It is essential that that situation should be removed as quickly as possible from the one-to-one confrontation to the person in authority.
I have tremendous sympathy for the expression that has come from the Front Bench about this very real problem but I believe the Committee will find that the more experienced the teacher in this particular type of very difficult teaching, the more likely it is that he or she will say, "I would very much prefer this issue to be settled up the corridor". Quite often corporal restraint is a very different thing indeed from corporal punishment—and ought to be.
Baroness David: There is one other point we ought to remember when talking about teachers of children with statements. It is that children are now being integrated in normal schools—and possibly even faster than they should be because the teachers there to receive them may not have had the necessary training. They may not understand as much as they should about children with handicaps, whether those handicaps are slight or great.
I am amazed at the arrogance of the Government in imagining that they know very much better than all the councils and bodies which have such experience of dealing with handicapped people—organisations such as the Royal College of Psychiatrists, the Voluntary Council for Handicapped Children, and RADAR. We should respect their judgment and opinions. I am extremely surprised that the Government are being so intransigent about this matter. I feel strongly about this and wish to divide the Committee.
6.14 p.m.
On Question, Whether the said amendment (No. 14) shall be agreed to?
Their Lordships divided: Contents, 89; Not-contents, 91.

DIVISION NO. 4

CONTENTS

Airedale, L.

Kagan, L.

Ampthill, L.

Kaldor, L.

Aylestone, L.

Kilbracken, L.

Beaumont of Whitley, [Teller]

Kilmarnock, L.

Kinloss, Ly.

Bernstein, L.

Longford, E.

Birk, B.

McGregor of Durris, L.

Blease, L.

McNair, L.

Boston of Faversham, L.

Mar, C.

Brockway, L.

Masham of Ilton, B.

Brooks of Tremorfa, L.

Meston, L.

Buckmaster, V.

Molloy, L.

Campbell of Eskan, L.

Munster, E.

Carmichael of Kelvingrove, L.

Nicol, B.

Cledwyn of Penrhos, L.

Northfield, L.

Collison, L.

Ogmore, L.

Darcy (de Knayth), B.

Parry, L.

David, B.

Perry of Walton, L.

Davies of Leek, L.

Pitt of Hampstead, L.

Davies of Penrhys, L.

Ponsonby of Shulbrede, L. [Teller.]

Denning, L.

Diamond, L.

Prys-Davies, L.

Elwyn-Jones, L.

Raglan, L.

Ennals, L.

Rea, L.

Ewart-Biggs, B.

Richardson, L.

Ezra, L.

Ritchie of Dundee, L.

Fisher of Rednal, B.

Ross of Marnock, L.

Foot, L.

Sainsbury, L.

Fulton, L.

Seear, B.

Gallacher, L.

Shaughnessy, L.

Galpern, L.

Shinwell, L.

Glenamara, L.

Silkin of Dulwich, L.

Graham of Edmonton, L.

Somers, L.

Greenway, L.

Stallard, L.

Grimond, L.

Stedman, B.

Harris of Greenwich, L.

Stewart of Fulham, L.

Hatch of Lusby, L.

Taylor of Blackburn, L.

Henderson of Brompton, L.

Taylor of Gryfe, L.

Heycock, L.

Taylor of Mansfield, L.

Houghton of Sowerby, L.

Thurso, V.

Howie of Troon, L.

Whaddon, L.

Hylton, L.

White, B.

Jacques, L.

Wilson of Langside, L.

Jeger, B.

Winstanley, L.

Jenkins of Putney, L.

Wootton of Abinger, B.

John-Mackie, L.

NOT-CONTENTS

Airey of Abingdon, B.

De La Warr, E.

Alexander of Tunis, E.

Drumalbyn, L.

Arran, E.

Eden of Winton, L.

Auckland, L.

Elliott of Morpeth, L.

Belhaven and Stenton, L.

Elton, L.

Beloff, L.

Ferrier, L.

Belstead, L.

Gainford, L.

Birdwood, L.

Glenarthur, L.

Blake, L.

Gray, L.

Boyd-Carpenter, L.

Gray of Contin, L.

Brabazon of Tara, L.

Gridley, L.

Brookeborough, V.

Hailsham of Saint Marylebone, L.

Brougham and Vaux, L.

Buckinghamshire, E.

Harmar-Nicholls, L.

Burton, L.

Hemphill, L.

Caccia, L.

Holderness, L.

Caithness, E.

Hunter of Newington, L.

Cameron of Lochbroom, L.

Hylton-Foster, B.

Campbell of Alloway, L.

Inglewood, L.

Chelwood, L.

Kemsley, V.

Coleraine, L.

Kinnaird, L.

Cork and Orrery, E.

Kinoull, E.

Cox, B.

Kintore, E.

Craigavon, V.

Lauderdale, E.

Craigmyle, L.

Layton, L.

Davidson, V.

Long, V. [Teller.]

659

Lucas of Chilworth, L.

St. Aldwyn, E.

Lyell, L.

St. Davids, V.

McAlpine of Moffat, L.

Sandys, L.

McFadzean, L.

Sempill, Ly.

Macleod of Borve, B.

Sharples, B.

Margadale, L.

Skelmersdale, L.

Massereene and Ferrard, V.

Smith, E.

Maude of Stratford-upon-Avon, L.

Stockton, E.

Stodart of Leaston, L.

Merrivale, L.

Sudeley, L.

Milverton, L.

Swinfen, L.

Monk Bretton, L.

Swinton, E. [Teller.]

Montgomery of Alamein, V.

Terrington, L.

Murton of Lindisfarne, L.

Tranmire, L.

Newall, L.

Trefgarne, L.

Nugent of Guildford, L.

Vaux of Harrowden, L.

Orkney, E.

Windlesham, L.

Pender, L.

Yarborough, E.

Portland, D.

Young of Graffham, L.

Rawlinson of Ewell, L.

Zouche of Haryngworth, L.

Renton, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendment No. 15 not moved.]
6.23 p.m.
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 16:
Page 2, line 30, at end insert—
("or
(iv) at a day nursery or other provision for children aged under five maintained or assisted by a local authority,").
The noble Lord said: This amendment has been tabled because we think that the Bill is defective at this point in a way that, for once, it is not meant to be. The stated intention of the Bill is to ensure compliance with the European Convention and the European Court judgment. Education is provided at public expense at day nurseries and other play groups; and nursery provision receives authority grants—some from social services and some from the LEAs. Surely they should be covered by the Bill. At present the Bill covers only nursery schools and classes maintained by LEAs. I beg to move.
Baroness Cox: The Bill does provide for an exemptions scheme covering all maintained schools, as the noble Lord said, including nursery schools and nursery classes. The Bill is concerned with provision under the Education Acts and, as such, does not apply to day nurseries. Therefore the Government must resist the amendment.
We appreciate that education authority staff may sometimes be employed at day nurseries and that amendments may be needed to seek to deny such teachers the right to use corporal punishment, but we need to see this in context. In the absence of a ban on corporal punishment for day nurseries as a whole it would be invidious to impose a selective ban on its use by education authority employees who are a part of the day nursery staff and who are faced with much the same situation as the colleagues with whom they work. Therefore the Government do not see any merit in extending the provisions of the Bill to cover the small number involved.
Lord Beaumont of Whitley: I am far from convinced by that answer that the Government have really looked at the problems and are quite clear that they are going to be covered. However, I do not think that
660
much good would be done by going further into it at this moment. I merely hope that the Government will consult their lawyers again before the Bill finally passes through your Lordships' House.
Baroness David: Would not the noble Baroness be willing to take this back to see whether it can be discussed with Ministers to ascertain whether they can look more favourably on this amendment?
Baroness Cox: I would naturally be willing to consider what has been said and, should it seem to be helpful, I shall write to the noble Lord if I can add anything to what I have already said.
Lord Cledwyn of Penrhos: With great respect to the noble Baroness, writing to the noble Lord is not sufficient. I have listened to a great deal of this debate and, if I may say so, the noble Baroness is comporting herself with great skill. Nevertheless, there are moments when one feels that it would be helpful if she would be prepared to take matters back to think about them and consult with her right honourable friend.
We are in difficulty on this and other matters, and the votes in the Committee have shown that this is not a party political matter but that there is deep feeling throughout the Committee on these issues. The amendment moved by the noble Lord, Lord Beaumont, is so reasonable that I consider it would be proper for the noble Baroness to say that she will consult with her right honourable friend and come back at a later stage.
Baroness Cox: I accept that this is an important point and, without giving any commitment, I undertake to consult further.
Lord Beaumont of Whitley: I am most grateful to the noble Baroness. I think she is not only generous but also well advised on this particular occasion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness David Baroness David moved Amendment No. 17:
Page 2, line 33. after second ("provided") insert ("or assisted").
The noble Baroness said: With this amendment I shall be speaking also to Amendments Nos. 18, 23, 28 and, on the Scottish side, Amendments Nos. 53, 54, 55, 58 and 63.
Amendment No. 18: Page 2, line 34, leave out ("education").
Amendment No. 23: Page 3, line 21, leave out second ("education").
Amendment No. 28: Clause 3, page 3, line 42, leave out ("education").
Amendment No. 53: Clause 5, page 6, line 30, leave out ("school").
Amendment No. 54: Page 6, line 30, after ("provided") insert ("or assisted").
Amendment No. 55: Page 6, line 31, leave out ("education").
Amendment No. 58: Page 7, line 21, leave out ("education").
Amendment No. 63: Page 7, line 37, leave out ("education").
In a way, this amendment has some similarities to the previous amendment. It is to ensure that pupils receiving education provided by, or assisted by, local authorities—not only education authorities but, for instance, community homes with education—are included in the scope of the Bill. At present the Bill does not cover children and young people whose

661
education is being provided other than at school at public expense by local authorities other than the education authority: for example, the social services committee in the case of community homes with education.
The amendments are intended to widen the scope of the Bill to cover such pupils. The amendments include those in community homes with education, observation and assessment centres, intermediate treatment centres, private and voluntary children's homes with education on the premises and those pupils being educated on the premises of residential care homes, private nursing and mental nursing homes.
The numbers are not insignificant. Probably over 10,000 children and young people are involved. Some but not all of them will be in care. Others will have been placed by parents, under health or mental health legislation. A recent amendment to child care law specifically enables community homes to accommodate children not in care. It is quite clear that to comply fully with the implications of the European Convention parents—both natural parents and local authority or voluntary organisation parents for children in care—must be able to opt their children out of corporal punishment.
In Committee the Government suggested, and I quote from col. 63:
"It would be inappropriate in a Bill defining an exemption scheme for institutions acting under education legislation to attempt to encompass other types of institutions".
I do not really think that the Minister should have shrugged this matter off in this manner because it is an extremely important matter. I think we must remember that corporal punishment in borstals was stopped in 1967, so that it should remain in community homes with education seems more extraordinary. The Education Act 1981, for example, concerned with the education of children with special needs, places quite specific duties on the social services and health authorities. There seems no reason why the Bill's scope should not be widened to ensure full compliance with the European Convention and the European Court judgment.
6.30 p.m.
I have a letter from the London Boroughs Children's Regional Planning Committee in which the principal adviser, John Ogden, writes:
"I am writing to express concern that the Bill's definition of 'pupil' seems to omit a number of children who are the concern of the social services departments.
"Although some of the children will be covered by other children's homes regulations, there are others who do not even have that degree of protection. Even those covered by the children's homes regulations would not be protected in the way that is envisaged by this Bill. There is a danger that there could be one standard for children in care who attended LEA schools and a different standard for children in care receiving education provided by social services in a community home".
I think that this is a very important amendment and it would be very unfair to the children in community homes with education in particular if this amendment were not agreed to. I beg to move.
Baroness Cox: As we are all well aware, this Bill is related to the provisions under the Education Acts. It
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does not extend to day nurseries nor to community homes with education, because neither comes within the responsibility of education authorities. Community homes with education are established under social services legislation, and education in them is part and parcel of social services provision. Therefore, it would be inappropriate, in a Bill defining an exemptions scheme, for provision made under education legislation to attempt to cover these homes.
Perhaps, however, I can offer the noble Baroness some reassurance by pointing out that the use of corporal punishment in community homes with education is currently being considered. At present, DHSS are reviewing regulations for various types of children's homes. That review will have regard to such implications as may arise under Article 2 of the First Protocol to the European Convention on Human Rights under which the Campbell and Cosans case was brought. Bearing in mind the fact that that review is under way, I hope that the noble Baroness might withdraw the amendment.
Baroness David: Can the Minister tell me whether that review will be made public? Will it be finished by the time we reach the Report stage of this Bill?
Baroness Cox: I am afraid I cannot give the noble Baroness the answer at the moment, but I can write to her as soon as possible.
Baroness David: In the light of that information, I think it would be wrong to press this amendment at the moment. But it is one that we feel very strongly about, and so it will certainly come back at Report stage unless there is some favourable information reaching us before then. At the moment, I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 to 20 not moved.]
Lord Stewart of Fulham Lord Stewart of Fulham moved Amendment No. 21
Page 2, line 39, leave out ("eighteen") and insert ("seventeen").
The noble Lord said: I should like, with my noble friend Lady David, to move this amendment. Previously I was urging an amendment that would have made 16 the maximum age at which anyone would be liable for corporal punishment. That having been defeated, I am now asking the Government to consider whether 17 ought not to be the right age. There are quite solid reasons for doing that. If one looks for a statutory justification of the general view that parents have a right to use corporal punishment on their children, we find this in the Children and Young Persons Act 1933, Section 1(7):
"Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer punishment to him".
There you have a statement in a statute of the right of teachers, parents and persons in lawful control of children to administer punishment to a child or young person.
The same Act defines a child as somebody who has not yet reached the age of 14, and a young person as somebody who has reached the age of 14 but not yet

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reached the age of 17. The statutory right then appears to be to administer punishment to those who are under 17. This Bill as it now stands, which makes 18 the maximum age, seems to appear to be actually raising by a year the age at which young people can be made liable for corporal punishment. Is that sense? Is that what the Government intended?
I hope we shall not be told that it is essential to leave to the teachers' judgment what you should do to a 17year-old who misbehaves. After all, the Government are engaged in trying to put on the statute book a Bill which every organisation of teachers, every professional organisation, has told them is a thoroughly bad Bill. So one really gets tired of hearing the Government say in answer to every argument put forward, "We must trust the teachers' judgment". If the Government trusted the teachers' judgment, they would not be introducing this Bill at all. So let us dismiss that one straight away.
Now there is this serious point that at present there appears to be a legal right of those in control to administer punishment to people under 17. Why, therefore, should we in this Bill have a maximum age of 18 rather than 17? It does not seem to be sense. Also, I think we should remember that at the age of 17 a young man can join the armed forces. He can be not merely a cadet or boy soldier, but a fully fledged member of the army. Is it really sensible to say that people of that age ought to be liable to corporal punishment in schools? I do not think it is.
I wish the Government would consider this one. There cannot be a solid reason for it. I can imagine what is in the noble Baroness's brief; it is a paragraph headed with the word "Resist". Then after that come the reasons for resisting. I know because I have seen that kind of document myself. But there are occasions when a Minister, of whatever rank, should suddenly say to himself or herself, meeting that word "Resist", "Why should I? There may be some sense in what is being said on the other side of the House". It really is not good enough to go on with the stock piece of recitation.
I repeat, therefore, that 17-year-olds are considered to be fit to fight for their country, to take on all the responsibilities involved in being soldiers. They are not regarded as either children or young persons, and apparently they are not regarded as being liable to corporal punishment by their parents. Why then, in this Bill, should we have the limit of 18? I ask the noble Baroness most earnestly to look at this. I hope that if she cannot give us a favourable reply now, at least she may say that the Government will reconsider this matter seriously before the Report stage arrives.
Baroness Cox: The noble Lord will have a certain amount of sympathy with me as he knows what it is like to have a brief which says "Resist". But I hope I have shown, during the course of this debate, that I listen and I am prepared to take very seriously the arguments which are put forward. As I understand it, the noble Lord is concerned with the relationship between the Bill and Section 1 of the Children and Young Persons Act 1933 and its Scottish equivalent. Section 1 of that Act concerns cruelty to a person under 16 and has no relevance to youngsters over that
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age. For them, the fact that subsection 1(7) safeguards the common law right of those having lawful control or charge of a child or young person to administer reasonable and moderate corporal punishment is immaterial. Section 1 is about protecting those under 16 from cruelty.
The right of persons who are in loco parentis to use corporal punishment on minors in their care—the right with which we are today concerned—is quite separate and is a common law right. It applies in respect of any minor—that is anyone under 18. Therefore there is no case for substituting an age lower than 18 in Clause 1 of the Education (Corporal Punishment) Bill as the noble Lord has argued.
I would perhaps add one further point. Clause 1 restricts the in loco parentis right to use corporal punishment on pupils as defined in subsection (6). Limiting the upper age limit for pupils to 17 rather than 18 would have the effect of removing the 17-to-18-year-olds from the scope of the Bill and they would then remain liable to corporal punishment, irrespective of their parents' views. That would be an outcome which I no less than the noble Lord would find unwelcome, albeit perhaps for different reasons. I hope that with that in mind he might withdraw the amendment.
Lord Stewart of Fulham: I am not happy with this. It has turned out very much as I thought it would. But I think that on the whole I shall ask leave now to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 22 to 25 not moved.]
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Houghton of Sowerby: I shall not detain the Committee more than a few moments, but there is one matter that arises on Clause 1 which I think is in need of further consideration, though probably at a later stage in the Bill. So long as we retain corporal punishment, even under the terms of the Bill, we are likely to be at variance with the code of conduct set out in the European Convention on Human Rights and Corporal Punishment. I refer to the troublesome question of Article 3, which says:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
Under Article 26 of the convention those who may be appealing to the European Commission of Human Rights must have exhausted all domestic avenues of redress before any complaint can be admitted to the European Court. Under Clause 1 we still have subsection (4) to which the noble and learned Lord, Lord Denning, scornfully referred earlier in the day. It reads:
"A person does not commit an offence by reason of any conduct relating to a pupil which would, apart from this section, be justified on the ground that it was done in pursuance of a right exercisable by a member of the staff by virtue of his position as such".
In exercising that right the person's conduct may exceed what might be regarded as justified from some points of view, but it may not constitute an offence under the Bill.
There is a case which has been before the European Commission recently on the question of degrading

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treatment. The British Government sought to divert the case from going to the European Commission on the ground that the applicants had not exhausted their domestic sources of redress. But because of a previous case that was decided in the English courts on the question of degrading treatment where the applicants failed, the European Court decided in the case of Townend v UK on 6th March 1985 that:
"In the absence of any effective remedy under English law against degrading treatment of a pupil the applicants cannot be said to have failed to exhaust domestic remedies as required by Article 26 of the Convention".
So this is now wide open.
If applicants wish to plead that the punishment inflicted upon a child amounts to degrading treatment, they can still go to the European Court for a judgment against the British Government because there is no effective remedy in English law for a charge of that kind. Apparently in English law we have no such thing as degrading treatment, but there is such a thing under Article 3 of the European Convention on Human Rights.
6.45 p.m.
The question is, are we now to have these battles going on? Notwithstanding our attempt to meet the judgment in the case of Campbell and Cosans, which is the main case upon which the Bill rests, we shall still he in conflict with the European Court on the area that we retain subject to corporal punishment. The fact that a parent may not have claimed exemption for the child from corporal punishment does not in any way restrict his right to go to the European Court to complain of a mischief for which there is no remedy in English law. What then in future will be the relationship between ourselves and the European Convention in the troublesome field of the treatment of children in our schools? It seems to me that it will never end if a charge can be brought before the European Commission on Human Rights which has no standing in the English courts.
The one case in which remedy was sought failed. The remedy was sought in the case of a girl of 15 years of age who was seen by a headmaster from his study window to be smoking in the grounds of the school. Smoking by pupils was against the rules of the school. That child was punished by a male headmaster in front of the school, and the parents took the case to the county court for an award of damages, but they lost. They then took it to the European Commission on Human Rights, and it is on the case decided in the English court that the European Commission has decided that there is no domestic remedy in this country for persons who claim that their child has been subject to degrading treatment.
Therefore cases where excessive punishment may have been meted out to a child who has been exposed to corporal punishment by the parents' decision may still go to the European Court for a judgment on the degree of severity imposed. It seems to me that those complexities ought to be borne in mind and we should not be under the illusion that we are making a clean job of it by the clause that we have in front of us.
I conclude by saying that the extraordinary thing about the Bill is that we get down to the technical complexities, devote ourselves to the minutae of
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administration in schools and every now and again a noble Lord, bursting with impatience and frustration, denounces the whole Bill as silly, ridiculous and unworkable. He then subsides, goes out to recover, we get on with the job, he comes back and there is another outburst. We seem to be debating the Bill in Committee with a mixture of sober consideration of its detail and emotional outbursts from noble Lords who can stand it no longer.
Baroness Cox: The noble Lord said that he was prepared to return to this. I recognise the importance of the points that he raises, and in view of the complexity of the issues I shall be taking advice on them. It might be relevant to mention at the moment that we are aware that there are cases before the European Commission of Human Rights in which the claim is made that corporal punishment amounts to inhuman and degrading treatment. But the Government are defending all those cases. Perhaps it is appropriate to say that opponents of corporal punishment should not necessarily jump to conclusions about the outcome of those cases. As I have said, the issues are complex, and there will be an opportunity to return to them. I shall certainly take advice on the important points that the noble Lord raises.
Clause 1 agreed to.
Clause 2 [Exemption from corporal punishment not ground for suspension, etc.]:
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 26:
Page 3, line 27, leave out ("a") and insert ("any particular").
The noble Lord said: Perhaps it would be for the convenience of the Committee, with Amendment No. 26 to discuss Amendment No. 27, and also Amendments Nos. 70 and 71, which are the ones applying to Scotland.
Amendment No. 27: Page 3, line 29, after ("that") insert ("he is exempt from corporal punishment by members of the staff for the purposes of section 1 of this Act, or that").
Amendment No. 70: Clause 5, page 8, line 44, leave out first ("a") and insert ("any particular").
Amendment No. 71: Page 8, line 45, after ("that") insert ("he is exempt from corporal punishment by members of the staff for the purposes of section 48A of this Act, or that if he were not so debarred in those circumstances he would not be adequately amenable to discipline by reason of his being so exempt").
This clause, Clause 2, was inserted by the Government during Report stage in another place. I must say that I rather think they could have spared themselves the trouble because I cannot make any sense of it at all. I do not know whether anyone else in this Chamber, including the noble and learned Lord, Lord Denning, can do so. It seems to me that undoubtedly it is a clause which will provide considerable livelihood to the legal profession. To start with, it has three negatives operating on each other in the main argument:
"A person shall not be debarred … on the grounds that, if he were not so debarred … he would not be adequately amenable to discipline".
I am unable to find my way through it. Thus these amendments are really probing amendments.
As far as I do understand it, the clause seems ambiguous. Does it mean that LEAs must have at least

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one school which admits children whose parents opt them out? Alternatively, does it mean that all their schools must not refuse admission on these grounds? Does the clause specifically forbid refusal of admission, etc., on grounds of exemption? Does the clause apply to independent schools? I am not so much asking those specific questions as asking the Government to explain to us and to posterity what on earth the whole thing is about.
Baroness Cox: Each part of this group of amendments is rightly concerned with ensuring that this clause, introduced at Report stage in another place, adequately protects a pupil from debarment, under which I include refusal of admission on account of his parents' wish to exempt him from corporal punishment. We are confident that the clause, as it stands, fulfils that requirement, but I should like to comment on the amendments.
The first amendment seeks to replace refusal to admit a pupil to a school because of his exempted status by refusal to admit him to a particular school. For practical purposes the terms are in our view perhaps synonymous. But we must bear in mind of course that parents do not have an absolute right to a place in a school of their choice. For example, the places available may be oversubscribed.
The second amendment seeks to ensure that a pupil's exempt status should not in itself constitute grounds for debarment. We fully subscribe to the sentiment of this amendment and believe that the other provisions of the Bill, together with the regulations, would generally be adequate to meet the situation. For pupils being considered for admission to a school, we will be providing a safeguard through the regulations so that questions about corporal punishment will be put to parents only after the school place has been secured. So far as pupils already in a school are concerned, debarment on account of exempt status would, in the case of a maintained school, constitute unreasonable conduct in respect of which the Secretary of State or the parent could take action. We believe that these factors, taken together with the right of parents to change their minds, would broadly meet the situation.
Perhaps I may say that the Committee may therefore wonder, rather like the noble Lord, Lord Beaumont of Whitley, why the Government decided to introduce Clause 2 at all. I shall explain. We did so as a response to some of the lingering doubts on these issues in another place and in recognition of the possibility that a school might decide to debar an exempted pupil who had been misbehaving badly on the grounds that, being unable to use corporal punishment, they could not control him. We had no wish to stop a school from debarring a pupil if his behaviour was thought to merit such action. Our purpose was to undermine any tendency on the part of a school to bring exempt status into the reckoning whenever the possibility of debarment was under consideration.
We believe, therefore, that the proposed addition to Clause 2, to which the noble Lord has spoken, is not necessary. The grounds referred to in Clause 2 are the actual grounds for the pupil's debarment, not simply
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the reasons as they may be articulated to the parent by the school. We believe that, although a school may attempt to explain a debarment simply in terms of the pupil having an exempt status, its real grounds might go deeper than that. In our view these real grounds will invariably be those mentioned in Clause 2: that is, that the child will not be adequately amenable to discipline if he has exempt status. For this reason we believe that Clause 2 prohibits debarments which appear simply to be based on the pupil's exempt status.
In our view, therefore, Clause 2, together with the other provisions to which I have referred, will be adequate to prevent schools attempting to evade the legislation by debarring pupils. I trust that, in the light of those explanations, the noble Lord and the noble Baroness may be prepared to withdraw their amendment. Perhaps I may say also that if that explanation has not succeeded in clarifying the situation and it is felt still to be unclear, we would perhaps be willing to take advice on drafting to make it more clear.
Lord Beaumont of Whitley: I am most grateful to the noble Baroness for her explanations. I still shall have to take it away, put a cold towel round my head and examine exactly Oat has been said and what is the result. I am extremely grateful to the noble Baroness for saying that she will be prepared to have a look at the redraft. I should be grateful if she would look at the redrafting before the next stage. We shall also look at the explanation and what it looks like in the light of that. Perhaps we may come back to this matter at that stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]
On Question, Whether Clause 2 shall stand part of the Bill?
Baroness David: I spoke to this with the first amendment, the abolition amendment. The other reason I wished to speak to it was to try to find out what it meant. That has been clarified a little—at least, I hope it will have been clarified—by the amendment of the noble Lord, Lord Beaumont. Thus I shall not be speaking to this.
Clause 2 agreed to.
Clause 3 [Registration of parental views]:
[Amendment No. 28 not moved.]
Baroness David Baroness David moved Amendment No. 29:
Page 4, line 3, at end insert—
("(3A) While regulations are in force, the local education authority may direct the responsible body for any school maintained by the authority not to maintain a register under the regulations in respect of pupils at that school or any class of such pupils.
(3B) Any direction made under subsection (3A) above may apply either to all schools maintained by the authority or to such schools or classes of schools as the local education authority may direct.").
The noble Baroness said: The aim of this amendment is to ensure that local education authorities, as well as governing bodies, can abolish corporal punishment in schools which they control.

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For Scotland, the Bill gives the power to the local education authority to decide whether or not to keep a register, and thus keep corporal punishment. That is in Clause 5, page 8, line 22.
At the Second Reading in another place, Robert Dunn, the Parliamentary Under-Secretary of State, said on 28th January, at col. 106 of Hansard:
"The Bill is based upon a principle which should unite every Member of the House—the principle that local education authorities should decide whether to permit the application of corporal punishment in their schools, and those local authorities that so decide will allow school governors and parents to decide the matter in each school".
That seems to be giving it with one hand and taking it back with the other. I do not understand it.
However, it does not seem to be the principle on which the Bill is based. This amendment should achieve this principle by specifically giving governing bodies of county as well as voluntary schools the power to decide whether or not to keep a register of pupils liable to corporal punishment and thus to decide whether or not to keep corporal punishment. The Bill appears to override any powers that local education authorities may have to abolish.
At a later stage of the Bill, Mr. Dunn retreated from his statement of principle to suggest that the Bill was neutral over the respective powers of LEAs and governing bodies. However, he also admitted that if asked to choose the Government would favour giving the power to decide to the governing body. The noble Baroness, Lady Cox, echoed the belief that the Bill was neutral when she said at Second Reading on 3rd May, at col. 517 of Hansard:
"if a local education authority can legally abolish corporal punishment now, the intention is that the Bill will not allow the governing body to overturn that decision".
Without this amendment, the Bill throws into doubt the position of those 23 (soon to be 43) English and Welsh LEAs who have already successfully abolished corporal punishment in the schools they control. It would be quite wrong to leave that position in doubt, with the likelihood of unconstructive legal action between parents, local authorities and governing bodies. The amendment would simply bring the English and Welsh provisions into line with those for Scotland. I take it that, as the noble Baroness said in answer to a direct question from me on Second Reading, the intention is that the Bill will not allow the governing bodies to overturn the previous decisions of the LEA, this amendment will be acceptable to the Government. I beg to move.
7 p.m.
Baroness Cox: This amendment would increase the power of local education authorities at the expense of individual schools. At present school articles of government are the means by which responsibility for the conduct of a school—and that includes discipline and corporal punishment—is assigned. These articles of government vary between authorities and sometimes between schools within an authority, but usually they assign ultimate responsibility for discipline to school governing bodies, albeit often in somewhat imprecise terms.
Some articles of government offer LEAs general override powers. That is, they are drawn up so as to
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give the LEA the power to override the decisions of the governing body. Some LEAs have used such provisions to impose an authority-wide ban on corporal punishment.
Some LEAs have also achieved the same end by using their position as employers. Either through negotiation with teachers' unions or by recourse to general provisions within the teachers' contracts of employment, the LEAs have reached a position where the teachers are left in no doubt that, as employees, they are not expected to use corporal punishment.
That is the background against which this amendment must be considered. It is at present a grey area of overlapping and sometimes conflicting responsibilities and powers. The amendment seeks clarity and certainty. It aims to resolve the issue by giving LEAs the unequivocal right to ban corporal punishment.
I accept that the present position is unsatisfactory and that Parliament should settle the respective powers of headteachers, governing bodies and LEAs in relation to school discipline. But we are opposed to the amendment on two grounds.
First, it sides with the LEAs against the schools. That is not the right direction in which to seek a solution. The partnership between LEAs and schools is complex, but if the Government had to make a choice between giving control of corporal punishment to LEAs and giving it to schools, they would opt for the latter. That would be in line with the Government's reasoned case for a new legislative framework for schools as set out in the recent White Paper Better Schools.
The second reason why we are not happy with this amendment is that it tries to tackle the question of corporal punishment in isolation. The issue of corporal punishment is related to discipline and that in turn is related to the conduct of schools; and, indeed, the whole relationship between heads, school governing bodies and LEAs on a wide variety of topics must be considered together. The White Paper envisages a new approach, a rational approach, in which all aspects are considered alongside each other; it foreshadows legislative proposals to bring clarity out of this grey area. That is the context in which changes should be discussed, and I hope that the noble Baroness might understand and perhaps consider withdrawing her amendment on that argument.
Perhaps I may just add this. The noble Baroness referred to the point that I made on Second Reading, when I said that it is not our intention that the Bill should be neutral on this question. But I think we need to distinguish between decisions about the keeping of registers, on which Clause 3 has something to say, and decisions about the use of corporal punishment as a general principle.
The point is that Clause 3 has to place on some party the responsibility for deciding whether a register is to be maintained, and if that party decides that a register is to be maintained, to ensure its proper maintenance. Where a local education authority has taken the prior decision to abolish corporal punishment and has the legal right to do so, a decision by the governing body to keep a register will, in the Government's view, have no practical effect.
Baroness David: In order to be absolutely clear, do I take it that those local education authorities which have now banned corporal punishment in their schools will be able to stick to that, whatever the governing body wants to do? May I have a clear answer to that question?
Baroness Cox: As I understand it, that is the situation which pertains.
Baroness David: In that case, I shall read very carefully all that the noble Baroness has said and reserve the right to come back on Report. However, for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): The next amendment is Amendment No. 30. If this amendment is agreed, I shall not be able to call Amendments Nos. 31 and 32.
Baroness David Baroness David moved Amendment No. 30:
Page 4, line 7, leave out from ("staff") to end of subsection (4) and insert ("unless it appears to the responsible body or, as the case may be, local education authority that—

(a) a parent of the pupil has consented in writing by means of a form to be prescribed in the regulations to the inclusion of the pupil's name in the register; and

(b) no other parent of the pupil dissents from that consent.

The inclusion of a pupil's name in breach of such provision shall be of no effect.").
The noble Baroness said: This is an important amendment and its aim is to turn the Bill into an opting-in rather than an opting-out measure, so that pupils would be liable for corporal punishment only when a parent has consented in writing and no other parent has dissented. The opt-out scheme in the Bill as it stands is a recipe for conflicts between parents and school over whether school received an exemption form. Court cases and complaints to the European Human Rights Commission will result. Just such a case is already the subject of a complaint to Strasbourg—the school denied receiving a form signed by the parents saying that their son was not to be caned, and so the parents are now going to court over it.
There will be circumstances in which a school may have no indication of parental opposition to beating, but it would be wrong and dangerous to assume that parents have no objection. Exemption forms could be lost in the post, eaten by the caretaker's dog, or mislaid by children if they are entrusted with taking them home. Many things could happen to those letters: the school may have the wrong address for the pupil; in some circumstances pupils may be moving around, staying first with one parent and then another, and then perhaps with grandparents; some parents will know little English or be illiterate; some parents never reply to any school communication. Surely children of such parents need particular help and understanding rather than being liable to corporal punishment.
The opt-out scheme will imply that very many parents do not in practice have the rights guaranteed under the convention. This is an important amendment and it will ensure that the people who are on the register are really those who are willing to have
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corporal punishment inflicted on their children. I am careful not to say beating and flogging. I beg to move.
Lord Airedale: I should like to support this amendment. Those of us who think that the time for corporal punishment in schools in this country is now over and that anyway our friends in Europe quite soon will drag corporal punishment out of our schools, should like to see the general rule that in the meantime there shall not be corporal punishment in schools, except in those cases where parents have signified in writing that they consent to having their children subjected to corporal punishment.
Baroness Phillips: As an ex-teacher, I feel that we must get this Bill into some perspective. One has the picture of teachers beating children up and down the corridors in every school every day. Nothing could be further from the truth. In fact, judging from my experiences in 20 years of teaching, as the chairman of a board of governors for a long time and in constant contact with schools, in London at any rate—and I think that they are very typical—the number of times corporal punishment has been administered has been very small and it has been in very few schools.
I did not attend the Second Reading debate on this Bill because I felt that it was all such complete nonsense that it did not merit any attention at all. In fact, I should like to see a Bill to protect the teachers against some of the children, but that is another matter altogether. The teachers do not get any support or help.
However, I think that we must be very careful over the use of the word "staff". For many years no staff have ever had permission to administer corporal punishment; it has had to be a head teacher. Therefore, I wonder whether some of the people who have drafted the Bill really know what goes on in schools. So far as I recall, a punishment book had to be maintained. I am intrigued by the word "debarring". I did not realise that a head teacher had to inform a child, or a parent, if they did not want the child in the school. This was news to me.
I begin to see that there are far more powers entrusted in governing bodies and LEAs than I had ever envisaged. But I feel—and this is not in any way to speak against my noble friend's amendment—that the Bill has been put together, as with all too many things that now come before us, without an in-depth knowledge of what is going on in the schools today.
Baroness Cox: Perhaps I may help by clarifying the reasons which underpin the wording of the Bill as it now stands. Under the wording of the Bill, a pupil will be exempt from corporal punishment if one or both of his parents indicate in writing that such is their wish. That is a straightforward principle. It will be translated into practice through regulations.
Schools wishing to use corporal punishment on pupils will be required to enter the pupil's name on the register and to send a standardised form to parents seeking their views. Parents will be given six weeks in which to return the form to the school. If the parents say on the form that they wish the pupil to be exempt, the pupil's name will be deleted. If the parents say that they are content for the pupil to be liable to corporal

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punishment, the register will record the fact. It is felt that it is much safer to have the recording done on that basis rather than on the alternative basis.
If the parents do not reply, a follow-up letter will be sent. Then after six weeks the school can assume that the parents do not have any strong feelings on the matter; and providing that they notify the parents of their decision they can, if they wish, record the fact in the register and the pupil will then be liable to corporal punishment.
It is with this group of parents—those who do not respond to the school's approach—that this amendment is concerned. The amendment would mean that the children of those parents would be exempt. This would reduce the number of children liable to corporal punishment, although that may not be the parent's explicit wish. It is the Government's view that parents who are indifferent, or who do not take the trouble to return the form to the school, are really saying in effect, "We leave the decision to the school". The school is then entitled to apply the disciplinary arrangements that it believes to be best.
It might be asked: what if the parents are not so much indifferent as uncertain? What if they cannot make up their minds in the six weeks? There are two answers to those questions. First, this Bill stems from a judgment of the European Court of Human Rights. The judgment concerned philosophical convictions which are at the least very positive beliefs. If parents cannot make up their minds, it is highly unlikely that their views amount to a strongly-held conviction. Until they do make up their minds the schools should be allowed to do what they think best. Secondly, if it takes parents longer than six weeks to come to a decision then all they have to do is simply write to the school as soon as they have decided, and the pupil can be made exempt by the school.
It might also be asked: what if it is neither indifference nor uncertainty which lies behind a non-response? I think the point was made by the noble Baroness, Lady David: what if a form has been lost in the post, or eaten by the caretaker's dog? It is admitted that such things could happen, but there will be safeguards. As I said, we propose that the school should be allowed to record the fact of non-response only if the school has taken steps to notify the parents of its decision to make the pupil liable to corporal punishment.
Of course, it could happen that the forms are lost or that a succession of misunderstandings take place. No system can be guaranteed against all eventualities. But as a long-stop measure we propose that regulations will allow parents to ask for (and the school will then be obliged to provide) a copy of the entry in the register relating to their children. That should again reduce to an absolute minimum the number of mistakes which might arise. I hope that in the light of that rather full explanation of the procedures we have in mind that the noble Baroness and the noble Lord might reconsider their amendments.
Lord Airedale: In trying to provide against all eventualities, if there is a simple rule that the child's name does not go on the register unless you have in your possession a letter from the parents saying, "I agree to having my child subjected to corporal
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punishment", that provides complete certainty. What the noble Baroness has been talking about has been a lot of surmise as to what the parents might have thought, and whether the letter might have got lost in the post. Why not go for the answer which gives the certainty?
Baroness David: I agree entirely with the noble Lord. Nothing that the noble Baroness has said makes sure that letters will arrive and that they will be paid attention to. It does nothing about the illiterate or those who do not understand the English language. The only safe way is to have an opting-in rather than an opting-out measure. I shall divide the Committee on this.
7.15 p.m.
On Question, Whether the said amendment (No. 30) shall be agreed to?
Their Lordships divided: Contents, 64; Not-Contents, 90.

DIVISION NO. 5

CONTENTS

Airedale, L.

Kagan, L.

Allen of Abbeydale, L.

Kaldor, L.

Ampthill, L.

Kilbracken, L.

Barnett, L.

Kilmarnock, L.

Beaumont of Whitley, L. [Teller.]

Kinloss, Ly.

Lawrence, L.

Birk, B.

Longford, E.

Blease, L.

McNair, L.

Brockway, L.

Mar, C.

Buckmaster, V.

Munster, E.

Campbell of Eskan, L.

Nicol, B.

Cledwyn of Penrhos, L.

Northfield, L.

Collison, L.

Parry, L.

Darcy (de Knayth), B.

Phillips, B.

David, B.

Pitt of Hampstead, L.

Ennals, L.

Ponsonby of Shulbrede, L. [Teller.]

Ewart-Biggs, B.

Fulton, L.

Prys-Davies, L.

Gallacher, L.

Rea, L.

Galpern, L.

Ritchie of Dundee, L.

Glenamara, L.

Rochester, L.

Graham of Edmonton, L.

Ross of Marnock, L.

Greenway, L.

Sainsbury, L.

Grimond, L.

Seear, B.

Hanworth, V.

Shaughnessy, L.

Harris of Greenwich, L.

Stedman, B.

Henderson of Brompton, L.

Stewart of Fulham, L.

Heycock, L.

Taylor of Blackburn, L.

Hirshfield, L.

Taylor of Mansfield, L.

Houghton of Sowerby, L.

Thurso, V.

Howie of Troon, L.

Whaddon, L.

Jeger, B.

Wilson of Langside, L.

John-Mackie, L.

Winterbottom, L.

NOT-CONTENTS

Airey of Abingdon, B.

Cameron of Lochbroom, L.

Alexander of Tunis, E.

Campbell of Alloway, L.

Allenby of Megiddo, V.

Chelwood, L.

Arran, E.

Coleraine, L.

Auckland, L.

Colwyn, L.

Belhaven and Stenton, L.

Cork and Orrery, E.

Beloff, L.

Cox, B.

Belstead, L.

Craigmyle, L.

Boyd-Carpenter, L.

Davidson, V.

Brabazon of Tara, L.

Denning, L.

Brookeborough, V.

Dilhorne, V.

Brougham and Vaux, L.

Drumalbyn, L.

Bruce-Gardyne, L.

Eden of Winton, L.

Buckinghamshire, E.

Elton, L.

Burton, L.

Ferrier, L.

Caithness, E.

Fortescue, E.

there can be no organisation working to help disabled people which does not support that campaign. There are, too, numbers of distinguished and learned people with whom this theory has found favour. No such allowance has been made to date, but important background events have occurred. It is most encouraging to find that the Office of Population and Censuses has a comprehensive two-year survey in operation which is expected to be finished by the end of next year, or soon after. This information will follow up the findings of the Amelia Harris report of about 15 years ago. Having had the privilege of seeing the inquiry form used in the survey, I am most impressed by its construction and I sincerely believe that it will help to extract that measurement of the extent of handicap from both physical and social causes without which it is totally impossible to create a scale for any such allowance.
Alas, the survey must take two years but having waited for so long for any Government to undertake it, everything possible should now be done to help it to achieve maximum results; that is, to reveal the full story of these people's difficulties, some of whom find it very hard to explain their own situation. I am more hopeful than ever before in the whole duration of the campaign that the picture that will be revealed by the survey will be the most important tier in the showcase we have laboured to build. For this reason it is imperative that, in the meantime, no move is made to jeopardise its future. Today there are very wide differences between what is paid to those extensively disabled, as other noble Lords have described, through illness or condition, or from private accidents such as in the home, compared with those who were industrially disabled or the victims of road and other accidents.
Nobody can pretend that any amount of ingenuity can do much to retrieve the enormous opportunities that are offered by life and that can be lost through a disastrous calamity. However, cash has the power to provide helpers, homes and hope; and for lay well-wishers wanting to help and provide something along the way it is the only way to try to compensate. If preference is given to one type of disability over another one creates yet another less than logical class society.
There have been many disabled people with the good fortune to be eligible for high awards to start them off on very useful careers. Others made the most of whatever came their way, like the late stage and television actor Michael Flanders. He told me that after being felled by a severe attack of polio at the end of the war it was his war gratuity that made it possible for him to go to Oxford, where he met up with Donald Swann, and to compose an unforgettable stage image that turned him into a high taxpayer. He could, he said, so easily have been someone depending on social security.
That gratuity was a sort of life raft. Many of us, for instance, who were clobbered by polio at the age of 12 or thereabouts had no such life raft or grant to help us back to life and to help us show our paces. Some of us had parents prepared to make huge sacrifices and who did not necessarily feel guilty in any way, may I explain to my noble friend Lady Faithfull? They made
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huge sacrifices in caring for us, unpaid. But the less lucky ones among us ended up in residential establishments for life, at great expense to the nation.
Where there is reference to vaccine-damage victims of course our hearts are torn. But those of us who have suffered these foul diseases which can be prevented realise what good fortune so many hundreds of thousands of children have had to be saved from our fate or, worse still, from being killed by such diseases. They have been saved by vaccination.
I am told that the rate of vaccination in the United Kingdom is falling and is already alarmingly low for polio. The threat of an epidemic is there. How could anyone increase that threat. Of course they could do so by sending out frightening accounts of the sad cases of vaccine damage. I know that that would not be the wish of anyone taking part in this debate, but it is important that that should not act as a deterrent to this terribly important preventive measure of vaccination. I beg of everyone not to put the clock back now.
At this late stage let me admit that in an oblique way I have an interest in this matter—an interest which is almost an embarrassment. Certainly it is not my wish to obstruct any payment of funds to disabled people and their keepers. It is probably only those of us from among that number who understand the real struggle of financial survival for severely disabled people. I say that even in the knowledge of eligibility to invalidity allowance, attendance allowance, mobility allowance and other small additions and with the realisation that mostly these have been new and merciful payments over the past 15 years.
I have with me the memory of the introduction of the attendance allowance as the first measure placed on the statute book by the 1970 Conservative Government, with Sir Keith Joseph as Secretary of State for Social Services, and not forgetting the work which was contributed towards it by the noble Lord, Lord Ennals, in the earlier stages. That moment was wonderful and is marked indelibly on my memory. It seemed that for the first time someone outside the family was giving us a hand and somehow we were being included at last.
I may have appeared to have waxed unbearably sentimental, but I wanted to make it very much known how worth while it is to fix fair allowances that will not favour one variety of case more than another. We should urge that the very most be made of the survey and expect to achieve a code of practice without fear or favour, despite the knowledge that within restricted resources we cannot hope for vast expenditure now. Nevertheless, we should be jolly sure of making a weighty and important claim for the earliest attention to prevent unfairness in the future and to help others who are now left out. I believe that this is a case where a bird in the hand is not worth two in the bush, for those birds in the bush find it hard to perch on the branch without the prospects and hope of future help. With luck, the survey will alert the Government to their plight. Thank you, my Lords.
4.25 p.m.
Lord Edmund-Davies: My Lords, I seek to make an extremely short contribution to this most important debate which has in large measure, and understandably, been confined to the extremely important

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topic of damages for vaccine injury. The topic that I have in mind is of far wider importance. In intervening I naturally apologise to your Lordships' House for not having put down my name to speak, but I had every reason to think that I should be away from London today. Having made that apology, I can assure your Lordships that my contribution will be in inverse ratio in brevity to its importance.
It is a topic which was touched upon by the noble and learned Lord, Lord Denning. It is the topic of the quantification of damages—damages in cases where there has been the committal of a civil wrong (a tort) and proceedings are instituted in respect of such damage, and also in cases of strict liability, which is a topic that the Royal Commission deliberated upon for a long time and on which it made very clear recommendations.
The problem is this. In the civil courts a judge has to deal with a case of personal injury. Liability is established, or fault may not have to be established because it is a case of strict liability. The problem that arises is, how much? Under our common law the judge has to peer into the future. He can have positive evidence as to the financial loss to date. He can have detailed evidence about the nature of the injuries—the pain and suffering and matters of that kind—but the plaintiff has not recovered. His injuries may last for a very long time. How long, and how intense and grievous are the injuries?
Sometimes the problem is virtually insoluble. It involves peering into the future, and the glass can be very dark indeed. I confess that at times I have found myself on the bench confronted by that task, saying to myself, "Really, what are you doing more than making an intelligent guess?" The guess—estimation is perhaps a better word, and more acceptable to the judiciary—has to be made at the time the case is being disposed of.
An example which comes easily and readily to my mind of the sort of problem is this. There is, we are told, a threat of impending, supervening epilepsy. The evidence of the expert medical witnesses may vary a great deal, some saying that there is a probability, others that there is a remote possibility, and with many shades of opinion in between those two extremes. The judge has to come down in favour of one side or the other. I repeat that the problem can be one involving acute anxiety, leaving the judge at the end of the day, having made his award, far from satisfied that what he has done is likely to be borne out by the events as they happen in the future.
That is very bad. The Royal Commission thought so, and it made some recommendations involving the making of an interim award in relation to those matters which had been established but enabling the plaintiff to come back in the future if events occurred which his legal and medical advisers thought merited a return to the court for further consideration. That is not a new matter in this country. The Criminal Injuries Compensation Board, whose practice I have seen as an observer at its sittings, does precisely what the Pearson Report recommended. It has the capacity to make an interim award. To take again the case of suspected supervening epilepsy, a nominal award can
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be made in relation to that as it presents itself at the time of the hearing but leaving it open to the injured plaintiff, injured as a result of a criminal assault, to come back to the court in the future if the glass has darkened and his injury, his epilepsy, has supervened.
Many arguments were advanced, chiefly from the insurance side, against making interim awards in the civil courts. The state has taken on the liability in respect of criminal injuries and has enabled interim awards to be made. This is a matter, I respectfully suggest, that calls for earnest consideration. It is a signal example of inconsistency in the existing provisions. I warmly support the speech of the noble Lord, Lord Allen of Abbeydale.
4.32 p.m.
Lord Elwyn-Jones: My Lords, this has been an important and moving debate. We have touched upon the sufferings and handicaps of those in our society who have been afflicted mostly through no fault of their own. We have looked at and seen the variety of misfortune that can arise. We have to face conflict as to how the matter should be dealt with. The message that has emerged most strongly to my mind is that what our society and our country really lacks is a coherent policy towards disabled people.
The Lord Chancellor: My Lords, will the noble and learned Lord repeat his last remark?
Lord Elwyn-Jones: My Lords, I shall gladly do so. What the country and our society really lacks is a coherent policy towards disabled people. I had thought that the noble and learned Lord would perhaps be familiar with those words because they were his very own, stated at the end of a debate on this kind of subject a year or two ago. I hope that I shall not be deemed impertinent if I ask the noble and learned Lord what steps are being taken to achieve a coherent policy towards disabled people. There are those throughout our society who have been awaiting it a long time. I do not blame any one particular Administration for having given an inadequate answer.
The debate was opened by the noble Lord, Lord Allen of Abbeydale, who once again showed his compassion, added to, in his case, by his chairmanship of MENCAP. It is a reaction with which I am also, if I may say so, familiar, as president of the Mental Health Foundation. Injury to the mind and to the brain caused by vaccine damage has been one of its most tragic features. When we discussed that particular issue during the debate in December 1982, I think it was, initiated by the noble Lord, Lord Campbell of Alloway, a speech was made by the noble Baroness, Lady Faithfull, who has always been greatly involved in this field, especially where children are concerned. The debate arose at a time when there was need to inspire confidence about vaccination. The noble Baroness quoted from a study produced by the Association of Parents of Vaccine Damaged Children, suggesting three ways in which an improvement could be made: first, by promoting vaccines that are safe and can be shown to be safe (that was the theme on which the noble Lord, Lord Winstanley, spoke, and I apologise to him for my brief intervention); secondly,

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But here we come along writing in a statutory right to corporal punishment in, certainly, those schools that are left. As soon as this is passed the hope to get elimination goes. It would have been so much easier without it. I have never been one who has favoured Scottish clauses in what are virtually English Bills. This is an English Bill. We have been dragged in and forced—it may well be against the wishes of the Scottish Office; I am perfectly sure that it would be against the wishes of the Scottish Office—into this rather stupid business of giving a double standard within whatever schools there may well be left with this right in Scotland.
I do not think the fact that we are in the Bill is something that we have to be proud of. But, being in the Bill, could not we have gone our own way and done the elimination for that 8 per cent. which everybody—COSLA, the teachers, everybody—wants? It may well be that they have not done the consultation properly. It may well be that they have not sounded the business of getting the alternatives; but we could have done that.
I know that there is a weakness in the second clause so far as Scotland is concerned. We do not deal with governing bodies. You see, we have not got the shadow of so-called public schools over us in Scotland where the real public schools try to ape the others. The public schools come under the local authorities. But I still think that the Scottish Office have done a bad job in this matter in getting themselves mixed up in this Bill and in getting mixed up in the way that they have.
Lord Gray of Contin: The noble Lord is as dedicated to the continuation of the United Kingdom as I am and he will appreciate that Scotland is subject to the ruling of the European Court in the same way as is the rest of the United Kingdom. Therefore, although there are only 8 per cent. of Scottish children affected by this Bill, it is important we include Scotland in order that we comply with the ruling of the court.
The noble Lord suggested that we should have taken more stringent action in order to ensure that corporal punishment was eliminated entirely; but he is a tolerant man, he is a moderate man and I think that he would agree with me that when in Scotland we have achieved by voluntary means elimination of corporal punishment as it affects 92 per cent. of the children, it is not unreasonable to use methods of persuasion rather than dictation in order ultimately to achieve 100 per cent.
Lord Houghton of Sowerby: Perhaps I may give my noble friend a rest just for a moment. The noble Lord just now said that it was necessary to put Scotland in this Bill in order to comply with the judgment of the European Court of Human Rights in respect of the 8 per cent. of the Scottish children still subject to corporal punishment. But the judgment of the Court of Human Rights does not require this form of compliance at all. What it said was that corporal punishment should not be retained at all; and the compliance that the Minister is talking about is not a compliance with the judgment of the court. It is merely to bring it into line with what the Government wish to do to meet the judgment of the Court, which is an entirely different matter.
Lord Gray of Contin: I think the noble Lord is playing with words a little; but he raised this matter under an earlier "clause stand part" debate. My noble friend gave him the assurance that what he had said would be very carefully read so that it could be considered at a later stage. I do not think I would wish to add anything further to that which my noble friend said at that time.
Lord Ross of Marnock: The noble Lord was not all that long in the other House, but if he had been there he would have known my complete objection to including Scotland, especially in those traditional areas of government where Scotland has its own law. If he looks at Clause 5 when we come to it, and to which the other amendment relating to this point in Scotland is concerned, it says: "the Education (Scotland) Act 1980 shall be amended". Not a British Act, not a United Kingdom Act, but the Scottish Act. If you want to amend the Scottish Act you have Scottish legislation, you have a Scottish Act, and I claim that if we had a Scottish Act we would never have had these words which will be around our necks in respect of our fairly good reputation so far as corporal punishment is concerned because as soon as it is passed the pressure from the Scottish office, I am perfectly sure, will end and we can thank our English friends for having misled us in that way.
Lord Beaumont of Whitley: If we might just revert now from amendment No. 72 back to Amendment No. 33, may I say that I have the greatest respect and sympathy with the arguments which have been deployed by the noble Lord, Lord Ross of Marnock, over the past few minutes. But I still want to get back to the answer that we had from the Minister on Amendment No. 33. If I understand her aright, she was saying that punishment books are kept in all schools; and that it is not open to schools not to keep them. If that is so, why does it matter that they are administered by local education authorities and that it is not laid down in an Act of Parliament? No one would accuse noble Lords on these Benches, or me, I think, of not being very firmly in favour of devolution on almost any occasion when we possibly can. But I do not see the point of saying that this amendment should not be in the Bill. If it were open for local authorities to differ, if they could say that punishment books might not be kept in some local authorities, and it was open to some schools in their area not to keep them, then one could consider the merits of the matter and one could come to the conclusion that this was a right opportunity and a right occasion for local option. That is not the case as I understand it. The case is that there is no option. If there is no option why do we not write it into the Bill?
7.45 p.m.
Baroness Cox: The situation can be summarised very briefly. The punishment books recording instances of corporal punishment are kept by schools because of paragraph 6 of DES Administrative Memorandum 531 which states:
"Punishment book. This book must record all cases of corporal punishment. The headmaster or headmistress is responsible for its completeness and accuracy".
It therefore seems redundant to have to bring this into the Bill in the form of a specific amendment. The

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situation is working well and that is why the Government does not see it necessary to accept this amendment.
Baroness David: I do not think that I shall divide the House at this late hour. I should like to read what the noble Baroness said as there was quite a gap between her first reply and my speaking in reply now. But my sympathies are very much with the noble Lord, Lord Beaumont, in fact. If it is there, and it has to be done, and we have this extraordinary Bill, why not put this into it? But I shall read what has been said and if I feel inclined I can come back at Report stage: and Scotland can decide what it does about making the wording right.
Lord Houghton of Sowerby: May I raise a point of order? It is now a quarter to eight and it is customary on a Tuesday evening when the supper is being served to have a break for supper. It seems to me that we are tending to get into the bad habits of another place which long ceased to have a break for a evening meal and plodded on and did the work. I do not mind plodding on and doing the work, but I think that if that is so then better arrangements will have to be made for refreshments after we have completed the Committee stage of this Bill and we should not be told that the service of refreshments ceases at twenty minutes past eight. I think therefore that if the noble Lord the Chief Whip, or his representative, thinks that the Committee can keep going during the supper break then some more civilised arrangements should be made for us to be fed when we have finished the Committee stage. Some of us have to go a long way on the Water (Flouridation) Bill to follow and I do not think it is fair that we should go on and on just to meet the convenience of the Benches opposite. I therefore hope that we can now have a break of one hour to get some refreshment and come back to finish the Committee stage of the Bill.
The Earl of Swinton: As I understood, it was agreed between the usual channels in the light of the business today that there should not be a break for dinner. I do not think that I can give an undertaking to the noble Lord but obviously I shall bear it in mind and pass it on to those greater and better than me who may think twice on another occasion. I apologise. I hope the noble Lord will be able to get some refreshment; I am sure that he deserves it.
Amendment, by leave, withdrawn.
[Amendments Nos. 34 to 36 not moved.]
Clause 4 agreed to.
Clause 5 [Restriction on corporal punishment of pupils—Scotland]:
[Amendment No. 37 not moved.]
Baroness David Baroness David had given notice of her intention to move Amendment No. 38:
[Printed earlier: col. 614.]
The noble Baroness said: This amendment was taken with Amendment No. 1 and the whole abolition list of amendments. The situation of course is rather different in Scotland as we know full well from what the noble Lord, Lord Ross, has been saying. I do not
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know whether he wishes to speak on this now as he has already referred to it. So far as I am concerned I would not move it as I mentioned the whole of the Scottish amendments when speaking to Amendment No. 1. The whole block so far as I am concerned would not be moved.
[Amendments Nos. 38 to 72 not moved.]
On Question, Whether Clause 5 shall stand part of the Bill?
Lord Wilson of Langside: In giving notice of my intention to oppose the Motion. That this clause shall stand part of the Bill, my object is to exclude Scotland from the operations of the Bill. I will speak to Clause 5 and also to my Amendments Nos. 73 and 77,
Amendment No. 73: Clause 8, page 10, line 3, leave out (", 2 and 5") and insert ("and 7")
Amendment No. 77: Page 10, line 7, leave out subsections (3) and (4) and insert—
(" (3) This Act extends to England and Wales only with the exception of section 6 which applies to Northern Ireland.")
I should say that there is a misprint on Amendment No. 73. It should read as follows:
"leave out (', 2 and 5') and insert (`and 2')".
My object in seeking to exclude the application of this unhappy Bill to Scotland I will come to in a moment, but the noble Lord, Lord Gray of Contin, said something which, frankly, puzzled me, when he was replying to the noble Lord, Lord Ross of Marnock. He said that we must include Scotland in the Bill in order to comply with the decision of the European Court. I look forward with interest to his explanation to your Lordships as to why that is so, because I should have thought that if we had simply continued with the process to which the noble Lord, Lord Ross, referred in his intervention, that would equally have been compliance. I am grateful to the noble Lord, Lord Ross of Marnock, for making it unnecessary for me to remind your Lordships that in Scotland we have a separate system of education in which traditionally we have, certainly in the past, taken great pride. Indeed it is one of the significant causes for our national pride.
I seek to exclude Scotland from the Bill, not simply because, as has been said perhaps to the point of tedium already in the course of this debate and also during Second Reading, it would be altogether damaging if this bizarre and bureaucratic measure were adopted, but because this measure is unworkable—unworkable in the sense that any attempt to work it would, I should imagine from my discussions with teachers and others with knowledge of the educational field, inevitably be disruptive of discipline. I am grateful also to the noble Lord. Lord Houghton of Sowerby, for, on Second Reading, describing the Bill as "dotty", because that really sums up the situation.
The question really is: was there an alternative? I should have thought that the alternative embarked upon, as the noble Lord, Lord Ross of Marnock, has told us, almost 20 years ago was surely to complete that process. Is there any obstacle to doing that? Over 90 per cent. of the pupils of Scotland are exempt from corporal punishment. Why has that process not been continued? Surely, with goodwill and governmental effort, local and national, the process could readily have been completed at least as soon as the effective

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would be enhanced and not diminished. I have, however, given up all hope of consistency.
The noble and learned Lord reminded me that I had used the epithet of "coherence". I have not quite given that up. I think a coherent policy is probably too ambitious an aim at the present time, but I suggest that we ought to apply a little coherent thought to what is inherently an extremely difficult problem. Some of the difficulties were adumbrated by the noble Lord, Lord Allen of Abbeydale, himself and by the noble Lord, Lord Airedale, when they were talking about product liability.
There are two questions which hold up an international agreement on this point. There is already a convention in existence between the 21 member states of the Council of Europe; there is also a series of meetings, of which I think the next will be later this month, in the organs of the Community on this very subject. But the two related questions which have held up decision are, first, what is called development risks, or sometimes state of the art defence, and secondly, statutory limits to a claim.
The Germans favour statutory limits and have them, I think, as part of their domestic law. That creates a great deal of injustice and great inconsistency. There is also state of the art defence. I am not going to argue the case at length, I am only going to say that there is, as the noble Lord, Lord Airedale, pointed out in relation to an ingenious case which he raised himself, an inherent injustice about asking people to pay for what they could not possibly have foreseen.
Of course, if you keep a dangerous animal on your premises you are subject to strict liability, but that is because keeping a dangerous animal on your premises, or doing something which can be called analogous to it, is a risk which you ought to have known about. Everybody of course knows that all new products may carry a risk which one does not foresee, but there is something inherently wrong about asking people to pay tort damages for something that nobody could have foreseen at the time.
What is more, it is unlikely to do humanity any good. Taking the case of pharmaceuticals, for instance, a great deal more good has been done by developing pharmaceuticals—although I am no advocate of some of the companies—than has harm. If they know that they are going to be liable for the unforeseeable they can neither insure—because you cannot insure against the unforeseeable, as any underwriter will tell you—nor will they be prepared to lay out money on research and development. That would not reduce the inconsistencies and would not, I think, advance humanity or its cause.
What is true is that we are seeking, through the Economic Community, to develop a directive which would take account of the two disputed items. Of course a great number of international conventions have applied statutory limits of one sort or another, so it must not be thought that I am inherently against them, but it is the case, as was pointed out by the noble and learned Lord, Lord Fraser of Tullybelton, some years ago, that the European Convention of 21 nations got it wrong, and probably the Germans have originated a device which would do more harm than good in the opinion of a great number of people. It is,
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however, possible that in the next 14 days or so something more hopeful may happen.
I now turn back—staring, I am afraid, at the clock—to the question of vaccine damage. I must reiterate what I said earlier in my speech: that to do what was passionately argued for by the noble Lord from the Liberal Benches, and by my noble friend Lord Campbell of Alloway, would create a greater inconsistency than it would remove. I do not say that it is wrong for that reason. I do say, however, that I challenge at least two of the assumptions upon which the speeches were made, and particularly that of the noble Lord, Lord Winstanley. However, I may now be doing him an injustice and, if so, I apologise in advance.
I spoke about this, it will be remembered, in December 1982. I was then anecdotal, which I am not going to be today, because I had had rather a poignant personal experience, which I then related, concerning the polio injection which was then under discussion.
Whether it is whooping cough or polio, the same two questions arise. The first is that it is said that we encourage the vaccination for the sake of society knowingly exposing the child to risk of brain damage of a permanent kind. I challenge that. If that was what we were doing we should be guilty, as I said in December 1982, of a great moral wrong. We have no right to sacrifice an innocent child incapable of deciding for itself for the sake of other children, but that is not what is being done. What is being done is what I did in the incident that I related. I ascertained from the medical authorities that, in relation to the polio injection, the chances of an unvaccinated child suffering permanent damage would be very much greater than if it were vaccinated. In other words, vaccination was done for the sake of the child.
In relation to whooping cough, which I spoke about in December 1982, I evaluated the chances then—subject to any improvements which have been made since, I fancy they are not out of scale now—that the chances of permanent damage or death from not being vaccinated were then 1:6,000 and if vaccinated in a course of three injections the chances of damage were 1:100,000. In other words, we encourage the parents of a child to have it vaccinated because the chances of damage are very much less and we do it in the interests of the child itself. To say for that reason that the child who belongs to the class of 1:6,000 and is unvaccinated owing to the imprudence of his parents should be given a lower and less satisfactory compensation than the child who had prudent parents and had it vaccinated but subjected it to a risk of only 1:100,000 would be creating an anomaly and an injustice which no one could seriously justify.
I do not think this is an easy problem. I must end on that note without answering many of the fundamental questions. The truth is that we shall have to live both with the tort system and with the system of state compensation allowances, such as mobility and disability allowances, for a long time to come. There will be numerous inconsistencies long after I have passed from the scene.
Throughout this debate I have been painfully conscious of the shades of my old and admired senior, Colin Pearson, whom I invited into my room in 1973

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and who modestly, humbly and with great public spirit undertook the burden of this vast task which I persuaded him to accept and which yielded an admirable report—with much of which I do not agree—of over 1,000 pages. Were he present here today, I frankly concede that he would have to say that not everything he would have liked has been done. I do not think that, in the light of wisdom of another, and, I hope, better world, his shade would be quite so reproachful as that sentence might have implied.
The problem is much more complex than has been acknowledged. I should have told him that, in the field for which we are wholly responsible—that is, the first system of monetary compensation—we have improved the relevant part of the scheme to a large extent over the last six years. I make no party point for or against this present Administration. In real terms, not in cash terms, the benefits under the first system have increased by 35 per cent., against which one has to set off the increased numbers of persons in the population. I shall not do that sum. There is a real advance amounting to not less than £150 million in the annual expenditure in real terms on the first system.
We have not abolished inconsistency. We have never had a coherent policy. My recollection of the legal complexities goes back to the Workmen's Compensation Act 1925. We are improving a little in coherent thought about what is a difficult, complex and an agonising subject.
Lord Campbell of Alloway: My Lords, before my noble and learned friend the Lord Chancellor sits down, may I ask him a short question on a point over which we are at issue? Does he agree that paragraph 1398 of the Pearson Report supports the assertion for which I contend—that the inoculations are given (I quote) "to protect the community"? That is not my idea, but an assertion which has a respectable basis.
The Lord Chancellor: My Lords, I should never have thought that it was not respectable even if my noble friend had been the only person to advance it, but I said that others, almost every other speaker except myself, had made that assumption. It is the assumption I challenge, not its respectability.
Lord Allen of Abbeydale: My Lords, this is not the occasion for another speech, but there are one or two points I should like to make. I begin by saying that I was particularly glad that the noble Lord, Lord Winstanley, referred to the helpful speech of the noble Lord, Lord Henderson of Brompton, on an earlier occasion, because I know that the noble Lord, Lord Henderson, particularly regrets not being able to contribute today. I was also very pleased that my noble and learned friends Lord Denning and Lord Edmund-Davies referred to some of the other important recommendations of the Pearson Commission; for example, in relation to assessment of damages, periodic payments and road traffic, all of which we could debate for a long time. I am pleased that the noble and learned Lord. Lord Edmund-Davies, scored a hit, as I understand it.
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I am grateful to the noble Baroness, Lady Lane-Fox, for apologising for her late arrival. She had already told me that it was inevitable, but I was anxious that she should have an opportunity to put her point of view, which she did so eloquently, and which I am sure we were all pleased to hear and have on the record.
Having listened to the noble and learned Lord the Lord Chancellor, I should like to say how grateful I am that he thought it appropriate himself to answer this debate. I began by saying that I had no ambition to remove all inconsistencies; it was a question of moving the boundary lines. The underlining theme of the Pearson Report was the fact that tort and social security had grown up without any regard to one another, and how they could be fitted together and how extraordinarily difficult it was to do that.
The noble and learned Lord referred to the Council of Europe Convention on Product Liability, but as that rules out the state of the art defence I have always understood that on our view so far we would not be able to ratify that convention. Although I listened carefully, I do not think he said anything about the question we raised on sticking at an unindexed £10,000. Perhaps he will think about that in the light of the points which have been made.
All that remains for me to say is that the one thing the debate has established beyond peradventure is that this is difficult territory. I am very grateful for the views which have been expressed. I think the problems are very formidable and speak for themselves. I am afraid that in sitting down I cannot give an undertaking that I will never again return to these issues. I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.

Industry Year 1986
5.10 p.m.
The Earl of Shannon The Earl of Shannon rose to call attention to Industry Year 1986; and to move for Papers.
The noble Earl said: My Lords, in opening this debate I should like to say how grateful I am that so many and eminent noble Lords have signified their intention of participating. Most particularly I should like to welcome the contribution of the right reverend Prelate the Bishop of Ripon, who will be addressing your Lordships for the first time. We await his participation with interest. I rise to draw your Lordships' attention to Industry Year 1986. Many of your Lordships may well ask, "Why is this necessary; and, anyway, what is it?" Perhaps a little introduction may be necessary.
We are the country which invented the Industrial Revolution and for at least a century we took great pride in our industrial achievements. We were proud of such men as Bessemer, Stephenson, Arkwright, Watt, Brunel and many others who made this industrial supremacy possible. They helped to make our country the manufacturing centre for most of the world. "Made in Britain" was the hallmark of everything that was good, solid, reliable and of advanced design and technology.
How sadly has this position deteriorated. Even at the Great Exhibition of 1851, when we thought that
Lord Gray of Contin: I am not suggesting that the noble and learned Lord was unconscious. I am suggesting that I took from his remarks that he agreed with the noble Lord, Lord Ross of Marnock, that it would be preferable to have included in the legislation that which I suggested. But if I misunderstood the noble and learned Lord, I unreservedly apologise to him.
I should like to say something about why we think that Clause 5 is necessary. In public sector schools in Scotland, as the noble and learned Lord, Lord Wilson, well knows, it has been the long-standing aim to work towards complete abolition of corporal punishment and, notwithstanding the proposed legislation, that aim remains. Most education authorities will have completed the process of abolition before enactment of the provisions and, at most, the legislation should apply to only some 8 to 10 per cent. My figure is 10 per cent.—but I accept the guidance of the noble Lord, Lord Ross of Marnock, and his 8 per cent.—of the Scottish pupils in the public sector.
We believe, however, that authorities should proceed to abolition on a voluntary basis and after consultation with all of the local interests involved. But until total abolition has been secured, it is necessary to make provision in respect of those pupils who will remain liable to receive corporal punishment. Further, the fact that an education authority has given a direction that corporal punishment should not be used in its schools does not in itself set aside a member of staff's common law right to administer such punishment.
Noble Lords will appreciate therefore that, for this important reason, it is necessary to introduce a provision that a member of staff's existing right to use reasonable and moderate corporal punishment cannot be justified, not only in circumstances where the pupil has been exempted through parental choice, but also where the education authority itself has abolished corporal punishment. The Bill is also necessary to ensure compliance with the judgment of the European Court so long as corporal punishment exists. This clause contains much the same provisions as are included in Clauses 1 to 4 which apply to England and Wales and which we have already discussed in detail.
There are a number of other differences in the Scottish provisions, although, as I have indicated, by and large the provisions reflect closely the intention for the rest of the country. One of those differences relates to the position of young persons; that is, pupils aged 16 and 17 years. It is the intention that where views on the use of corporal punishment are to be canvassed in the case of young persons, it will be the young persons themselves whose views are sought. This mirrors the position accorded to young persons in other aspects of Scottish educational legislation; for example, placing requests.
The Scottish provisions also reflect the different system of school government north of the border by recognising the position of education authorities as school managers and leaving to them decisions as to the introduction and maintenance of corporal punishment registers.
The noble and learned Lord, Lord Wilson of Langside, referred also to his Amendments Nos. 73 and 77 and although they are related to another clause
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I shall briefly deal with them in answer to the points which he made. What we are talking about are amendments designed to change the commencement and extent provisions of the Bill so that it does not apply to Scotland, and to leave only Clauses 1 and 7 to be brought into force by a commencement order. This is, of course, unacceptable, as we have made clear on several occasions during the course of our consideration of the Bill. The legislation—
Lord Wilson of Langside: I am sorry to interrupt the Minister, but it is not Clauses 1 and 7. I explained that there was a misprint and that Amendment No. 73 should read at the end "and insert (`and 2')", not "(`and 7')".
8.15 p.m.
Lord Gray of Contin: I accept what the noble and learned Lord said and I am sorry I did not note that at the time he spoke to the amendment. The position in Scotland is, of course, very much different from that in other parts of the United Kingdom. There has been substantial progress with regard to the policy of voluntary elimination, as I have described already; so much so that only a small percentage of pupils in Scotland will be affected by this legislation. But unless and until the process of voluntary abolition is completed, we must ensure that in those areas where pupils are still liable to receive corporal punishment there must be respect for the philosophical views of parents who are opposed to its use.
I hope that in view of that explanation the noble and learned Lord will feel that he does not wish to press his amendments, and, so far as Clause 5 is concerned, I trust that I have been able to persuade my noble friend Lady Elliot, the noble Lord, Lord Ross of Marnock, and his noble friends, and the noble and learned Lord, Lord Wilson of Langside, who moved so succinctly that the clause be not part of the Bill, that it is right that it should be included. I am afraid I must insist that it remains part of the Bill.
Lord Wilson of Langside: I am most grateful to the Minister for his careful reply. He was good enough to say that my Motion had been presented succinctly, but apparently not sufficiently succinctly to enable him to understand what at the outset I was getting at. It is for your Lordships to say whether that was due to a lack of clarity on my part or to a bit of obtuseness on his. But one of the questions I was asking—and I am not satisfied with the answer which the noble Lord has given—was why the Government could not have applied themselves to the problem of continuing the elimination by voluntary means in the time which has been taken up with the preparation and presentation of this Bill. After all, it will be some time before the Bill is passed by this House, receives Royal Assent and is eventually brought into effect. One question I wish to ask is: why was the time not used to press on with the elimination by the voluntary process?
I shall not detain your Lordships' Committee tonight. I shall certainly come back to this point because I am not at all satisfied. I do not think that the Government have given an explanation. What I tried to suggest was the incompetence of the Government's handling. No reference was made to the fact that there was no consultation at all with the Educational Institute of Scotland. How extraordinary.
Lord Ross of Marnock: I intervene only to ask the noble and learned Lord a question. Is he surprised that there has been no contact with the Educational Institute of Scotland? The noble and learned Lord seems surprised.
Lord Wilson of Langside: I am not surprised by anything in the sphere in which we operate in the Palace of Westminster. I was very naïve when I first came here. I am still naïve, but not all that much. I beg leave to withdraw at this stage my opposition to Clause 5, but I shall certainly raise it again at the next stage of the Bill. I shall not move my two amendments.
Clause 5 agreed to.
Clause 6 [Northern Ireland]:
On Question, Whether Clause 6 shall stand part of the Bill?
Lord Blease: I intervene very briefly in this Committee Stage of the Bill on a point of clarification. I have been sitting through the debate and am very conscious and very aware of the sympathetic understanding of the noble Baroness in connection with this very difficult, ponderous and complicated piece of legislation. I do not wish to burden her further with Northern Ireland affairs, but this question has been the subject of some discussion in Northern Ireland. Perhaps the noble Baroness can clarify one or two points.
The explanatory notes to the Bill refer to Northern Ireland. The Bill says:
"Clause 6 applies to Northern Ireland and provides that an Order in Council which is made under the Northern Ireland Act 1974 for purposes corresponding to those of the Bill is to be subject to annulment in pursuance of a resolution of either House of Parliament rather than to affirmative resolution procedure".
Does that mean that if or when this Bill is given the Royal Assent, the corresponding legislation will then be provided in Northern Ireland by an Order in Council? Am I correct in assuming that the procedure arrangements under the Northern Ireland Act 1974 do not allow for amendments to such an Order in Council? If this is so, whatever the final provisions of this Bill, will they be incorporated in total in the text of a proposed Northern Ireland Order in Council and become the law of Northern Ireland? I do not know whether that confuses the matter or whether clarification is possible at this stage. I would welcome some clarification.
Baroness Cox: This clause provides simply that the Order in Council extending the provisions of the Bill to Northern Ireland be subject to the negative resolution. Regulations made under Clauses 3 and 5 will be subject to annulment in pursuance of a resolution in either House. But for Northern Ireland it is important that we follow the same course for the Order in Council and I trust that your Lordships will agree to the Motion on those grounds, that it is one of compatibility.
Lord Blease: That might certainly be understood by the legislators and perhaps by some Members of this Committee, but to the ordinary public and to a number of persons in education in Northern Ireland to whom I have spoken it is not clear what is proposed in
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the Order in Council or whether there will be further consultations in this respect.
Baroness Cox: I shall study very carefully the points which the noble Lord has raised and will be very happy to take advice and write to him.
Lord Blease: I am obliged.
Clause 6 agreed to.
Clause 7 agreed to.
Clause 8 [Short title, commencement and extent]:
[Amendment No. 73 not moved.]
Baroness David Baroness David moved Amendment No. 74
Page 10, line 3, leave out from ("force") to end of subsection (2) and insert ("not more than six months after the day on which the Act is passed.").
The noble Baroness said: With this amendment I shall speak also to Amendment No. 75.
Amendment No. 75: Page 10, line 3, leave out from ("force") to end of subsection (2) and insert ("on 1st January 1986.").
These two amendments refer to the date on which the Bill will come into force. They provide a date for implementation earlier than the Secretary of State might otherwise decide. We understand that the Government intention is that the Bill should come into force in September 1986. This is four-and-a-half years after the European Court ruling in the case of Campbell and Cosans. It seems intolerable that parents should have to wait a further year after the passing of the Bill before they get the rights which are supposed to be guaranteed by the Convention.
Schools and LEAs have known of the Government's proposals since July 1983 and therefore have had ample time for preparation. A Government who so constantly say they are committed to law and order should take seriously meeting international treaty obligations without this sort of unjustified and quite unnecessary delay. I beg to move.
The Deputy Chairman of Committees (Lord Hayter): Amendments Nos. 74 and 75 are alternatives.
Baroness Cox: This amendment seeks to bring the legislation into effect by January 1986, but it is the Government's view that that would give schools insufficient time to review their disciplinary arrangements and to canvass the views of parents and to reach decisions about the provisions for exemptions. It is perhaps important to remember that in the first, ear of operation schools wishing to use corporal punishment will need to establish their own ways of working and will also have to canvass the views of parents of all pupils likely to be on roll at the operative date. This is a much bigger exercise than the one which will be undertaken in subsequent years when the schools will need only to deal with each new intake.
When introducing legislation of this kind which can affect the disciplinary arrangements of so many schools it must be right to give the schools adequate warning and time for preparation. Those schools which have used corporal punishment and placed much reliance on it will need a transitional period to make the necessary adjustments. Therefore the

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Government believe that a more realistic timetable and one which we at present envisage would be to look towards 1st April 1986 as the first date on which schools could canvas parents and begin to set up registers, and then 1st September 1986 as the date for the full implementation of the scheme. That was the thinking behind the timetable.
Baroness David: As I said when I moved the amendment, schools and the LEAs have known of the Government's proposals since July 1983, and so they really have had plenty of time to think what they are going to do. I dare say that they should like to push the whole thought of the Bill out of their minds, as it is such a ridiculous Bill, and in that case they may not have made the preparations. However, I do not think that it is worth taking this matter any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 75 to 77 not moved.]
Clause 8 agreed to.
Schedule agreed to.
House resumed: Bill reported without amendment.

Water (Fluoridation) Bill
8.30 p.m.
Report received.
Clause 1 [Fluoridation of water supplies at request of health authorities]:
Lord Monson Lord Monson had given notice of his intention to move Amendment No. 1:
Page 2, line 17, at end insert—
(" (6A) If at any stage it appears to the statutory water undertaker that the concentration of fluoride in the water supplied to consumers in the area in question has risen to 1·5 milligrams per litre or over the statutory water undertaker shall cease further fluoridation and inform the Secretary of State immediately.")
The noble Lord said: My Lords, this amendment—together with the related although not strictly consequential Amendment No. 2—is, in the literal sense of the word, vitally important in that it concerns the health and safety of the people of this country.
Amendment No. 2: Page 2, line 17, at end insert—
("(6B) The Secretary of State on receiving the information set out in subsection (6A) of this section shall order an investigation into the causes of the concentration of fluoride in the water supplied exceeding 1·5 milligrams per litre and into the health if any suffered by any person as a result of this concentration ").
Having said that, the hour, once again, is late. It is much later than forecast. For the third time the hour is late for our deliberations on this Bill. What is more, I sense that the House is anxious above all to come to a decision on the equally important matter of democratic control over the issue of fluoridation. As matters stand, democracy has been relegated to a pretty minor role in this Bill so far. I therefore propose neither to move this amendment nor the accompanying amendment, Amendment No. 2, today—but I intend to move them on Third Reading.
[Amendments Nos. 1 to 3 not moved.]
Lord Charteris of Amisfield Lord Charteris of Amisfield moved Amendment No. 4:
After Clause 1, insert the following new clause:
("Alternative supplies.
. In any area where a fluoridation order is made the statutory water undertaker shall make available an adequate supply of unfluoridated water to any person resident in that area upon the request of such a person in writing and upon the presentation of a doctor's cetificate certifying that fluoridated water may carry a serious risk of harm to the health of such a person in any of the circumstances set out in Schedule (Health Risks).").
The noble Earl said: My Lords, in rising to move this amendment, I have only one simple point to make. If there is any chance of any person being harmed by drinking artificially-fluoridated water, it is only a matter of common justice that there should be a provision for such a person, on producing an appropriate doctor's certificate, to be provided with unfluoridated water to drink. The point is, to my mind, simply this: is there any possibility of harm? It seems to me that anyone who says there is no possibility of harm is flying in the face of a considerable body of evidence. There is much of this, but for the sake of brevity I shall limit my remarks to one piece of evidence only. If that evidence has any validity, then it should be enough.
I am referring to the research carried out in 1972 in Holland by Dr. H. C. Moolenburg. By the carefully-monitored use of blind and double blind tests, Dr. Moolenburg and his colleagues found a distinct relationship between certain ailments suffered by their patients and the drinking of fluoridated water. Such ailments included—if I may regale your Lordships with them for a moment—stiffness in the joints (from which most of us suffer) and in the bones, muscle weaknesses, nausea, diarrhoea, migraine, mouth ulcers and kidney complains. When fluoridated water was withdrawn from the diet, then these symptoms tended to disappear. And when fluoridated water was returned to the diet, so the symptoms returned. Dr. Moolenburg summarised the study in these words:
"We, as a group of family physicians, found that between 1% and 5% of our patients reacted adversely on fluoridated water. That these complaints had such a general character that they could be recognised when you looked for them but that these complaints were always overlooked when you did not realise what you saw. That, contrary to what we thought in the beginning, we were not observing rare allergic phenomena but low grade poisoning. And, that all complaints but the joint troubles, cleared up in, at most, five days after stopping the intake of fluoridated water".
I understand that the validity of that study was upheld by a court of law in Holland. I do not believe that just because this piece of evidence and many others—including the work of the late Dr. Walbott of Detroit and the work which Dr. Cedric Wilson is now doing at Strathclyde University—are awkward means that they ought to be ignored. On the contrary, I believe that they ought to be taken seriously. I beg to move.
Lord Sandys: My Lords I am very happy to support this amendment which the noble Lord, Lord Charteris of Amisfield, has so eloquently moved on this particular subject. It is very clear that the alternative supply is one which commends itself as the only possibility in the circumstances. It is a particular problem to which we have referred throughout our discussions on this Bill; but in the background there has been the judgment of Lord Jauncey. Perhaps I may draw the attention of

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my noble friend to page 387 of Lord Jauncey's judgment in the Strathclyde-McColl court action, where Lord Jauncey said this:
"Section 130 of the Medicines Act 1968 defines 'medicinal product' and I am satisfied that fluoride in whatever form it is ultimately purchased by the respondents falls within the definition".
The noble Lord, Lord Charteris, has referred in terms which describe fluoride in very much more colourful language. It is extremely clear that we should address ourselves in the first instance to Lord Jauncey's judgment. If there is an acceptance of his judgment and if there is confirmation by his judgment in the High Court that fluoride is a medicinal product and is being used for a medicinal purpose, then we are on very firm ground. We are on firm ground because we are then able to state in the clearest terms that fluoridation as proposed in this Bill is a form of mass medication. The noble Lord, Lord Charteris, has proposed an alternative water supply. In doing so he is giving the opportunity of choice. For that I think he should be most warmly commended.
I shall not digress further on Section 130 of the Medicines Act 1968, although I could do so at considerable length, and also on the National Health Service Act 1977. Sufficient to say at this stage that alternative water supplies should be considered as a possibility, particularly in the case of those who are affected by particular ailments; and these are set out in the amendment. We considered a number of aspects in Committee relating to the situation as far as sufferers from particular ailments are concerned and this amendment appears to be one solution. I hope the Government will give it very serious thought and will commend it.
The Earl of Kinnoull: My Lords, I, too, support the nobler Lord, Lord Charteris, and congratulate him on the powerful case that he made on this amendment. I am only sorry that he was not available at Committee stage to give us the wisdom of his advice, because if anyone had any doubts about the medical arguments on the efficacy of the fluoridation of water they would have been compelled by his arguments. There are, in fact, arguments on both sides, whatever my noble friend will say later.
I believe that this is a reasonable amendment. It offers the water authorities the choice of providing, obviously, bottled water or they can provide what I learned recently from a small company in Cheshire is new technology called the crystal water column. It is an apparatus which can be fixed to the water tap and will remove fluorides and nitrates at relatively little cost. I hope that such an apparatus can be considered sympathetically by the Government. It would not cost water authorities very much and would meet the arguments of the noble Lord, Lord Charteris.
Baroness Gardner of Parkes: My Lords, I am, of course, opposed to the amendment as it is quite unnecessary. It would make the whole position horribly expensive. Every patient who imagines he has anything wrong will be ready to believe that fluoride in the water is the cause of it. All such people will automatically demand an alternative supply. The noble Earl, Lord Kinnoull, said that one can purchase a small apparatus which can be fitted inexpensively. I think it only right that people who do not want
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fluoride in the water should buy and fit such equipment for themselves. To make equipment available out of the public purse would be too much.
There is, of course, another easy way of having non-fluoridated water, and that is to move to an area where there is no fluoride. We must not lose sight of the fact that there is no question of this Bill enforcing the fluoridation of water throughout the United Kingdom. It is simply a permissive Bill to legalise fluoride in places where it is already being used. The provisions in the Bill for places where there would be a new supply of fluoridated water are fairly stringent on consultation and people are, therefore, well protected.
I also ask the supporters of this amendment to consider that the report referred to by the noble Lord, Lord Charteris, was produced, he said, in 1972. That is 13 years ago. Is the noble Lord trying to convince me that countries like Australia, where the total water supply is fluoridated, have, in 13 years, not considered very carefully such a report? Surely they must have done so, weighed up the value of it and decided that they were very much in favour of continuing to fluoridate the water. If there is a serious risk I cannot believe that the population of Australia would not have demanded that the matter be seriously reconsidered. I know from personal relations and many friends that nobody thinks twice about the fluoridated water supply. They accept it, take it for granted and are delighted that their children's teeth are so much better for it. Certainly there is no thought whatever of offering an alternative water supply to them.
The noble Earl, Lord Kinnoull, has presented an interesting suggestion that one can buy a small attachment for the tap. There will always be people who have personal preferences. There have been arguments about whether or not we should have softened water to drink. Some people install water softeners and some do not. These are matters of personal choice to which everyone is entitled and I am pleased to hear that an inexpensive appliance is available. However, I certainly hope that no family with children visiting it will ever use it, because that would be losing the great benefit to children's teeth which we all want to see.
8.45 p.m.
Lord Burton: My Lords, in Committee I drew attention to the effect on livestock of the escape of fluoride from the British Aluminium works at Fort William. Has any inquiry been made during the interim by my noble friend on the Front Bench, or by his officials, as to what happened in that area? The teeth of sheep became brown, twisted and fragile. When calves lost their milk teeth a few very weak teeth came through and the animals were of no use because they had no teeth for their adult life.
That happened up to seven miles from the factory. Fluoride escaped from the factory. Five or six years ago a new factory was built and the effluents have been properly treated. Since then the animals' health has not been affected. They can be put back on the land concerned because they now survive. When the fluoride was being discharged it was impossible to keep animals on the land.

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If there is any doubt about this and no inquiry has been made I recommend a very good paper which has been produced by Professor Body. Furthermore, the veterinary officer in Fort William—a Mr. Carmichael, who has since retired—was also very well acquainted with what happened and he can give the Ministry full information. If Ministers were to look at what happened to these animals they would very strongly question whether it is a good idea to supply fluoride to human beings.
Lord Beaumont of Whitley: My Lords, I was not intending to speak at this particular stage but I am provoked into doing so by listening to the speech of the noble Baroness, Lady Gardner of Parkes. I cannot go along with the arguments which she put forward. They should not weigh very much with your Lordships. I cannot agree with the idea that all patients are fools who will immediately blame all their ills on fluoride. Of course there are a small number of hypochondriacs who choose any particular excuse. They are small in number. One year it may be fluoride and another year something else but that is not a major reason for not doing something worthwhile.
What I really objected to was the shifting of the burden of what you should do onto the people who wish not to have fluoride added to their water. We start from the right to have water more or less as it comes. I know that in some parts of the world it naturally contains fluoride and I know that in other parts of the world it contains no fluoride or virtually no fluoride. But that is where we start. That is the basic position to which all citizens surely are entitled. To say that if we want to avoid fluoride we must not object to the Government putting in fluoride but must either pay for gadgets ourselves or actually move to different parts of the country to avoid the efforts of the Government is to put the position entirely the wrong way round. It is not at all an acceptable suggestion in relation to what are our basic rights and liberties. I do not think that the noble Baroness has in fact put up a serious argument against this amendment.
Baroness Gardner of Parkes: My Lords, before the noble Lord sits down, may I draw to his attention the fact that I did not say, "You must move"? I said, "Your may move", or "You could move". I was not suggesting any compulsion. I was saying that in this country people still have that free choice.
Lord Beaumont of Whitley: My Lords, since, according to the noble Baroness, I have not sat down, I will go on to say that one should not have to move in order to get a supply of water as it is normally and naturally produced in the area where one was born or in which one had originally settled.
Lord Houghton of Sowerby: My Lords, I think that the whole idea of enforcing a prescriptive medicine on the consumers of water is wrong in principle and I think it is quite monstrous that people should have this imposed upon them for the satisfaction of a minority interest, a minority health interest throughout the community.
But of course this country has gone from shocking neglect of children in the past century to a
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mollycoddling attitude towards children today. I think grown-up people are now being regarded as second-class citizens, where children are concerned; they must be spared pornography, they must be spared nasty videos; children must be sheltered from all the cold and bitter winds of life. Restrictions must be put upon grown-up people to achieve that purpose.
I think that if this is going to be undertaken, there should be the right of individuals to contract out of it and have a replacement of the water service that they find unacceptable. This, I think, is the right of every citizen. Otherwise he may be left either to buy it in bottles or catch rainwater or something of that kind in order to get away from water medicated in a way that he finds unacceptable.
We shall come a little later to the question of consultation, but it seems to me that the whole trend of propaganda in this matter from Government, from certain scientific and medical quarters, is towards getting this done overall. The Government have shrunk from asking Parliament to enforce this measure nationally by law. They have therefore adopted the device of using the health authorities for the purpose. Previously the local electorate had some say in what should be done. But now that has been taken away and it is to be in the hands of a selected, not directly elected, health authority. They are the people who are given the responsibility of applying to the water authority to implement fluoridation of the water supplies.
I think that with all this influence behind the virtues of fluoridation, brushing aside the rights of individuals is surely against some of our human rights which we were discussing on an earlier Bill a little while ago. I therefore feel that this matter has to be taken more seriously than it has been and that people are entitled to have as much consideration in this direction as in many others under the local health services; for instance, special foods and grants of one sort or another to meet personal requirements as prescribed by doctors and health authorities. But in this instance apparently the citizen will be regarded as having no rights, apart from drinking the water that is laid on for him, with no direct voice himself in whether or not it should be laid on.
In those circumstances I think we must attach a great deal more seriousness to what we are doing in your Lordships' Chamber at the present time. I strongly support this amendment. It may seem a concession to cranks or those with fads who do not want to drink medicated water, but it seems to me that it is a clear right of the citizen to have water as it comes, or as it has come in the past, and not be forced to put up with this new version of water supplies laid on expressly for the purpose of safeguarding the teeth of children who ought really to be consuming a much better diet and so deal with the tendency to caries in a more sensible way.
The Earl of Caithness: My Lords, it might be helpful if in speaking to this amendment I refer also in a little detail to the accompanying schedule to which it closely relates. I have to say that neither this proposed new clause nor the schedule has any scientific or medical basis and they are entirely unjustified. If agreed, they could only serve to raise quite unwarranted alarm

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among members of the public as to the safety of water fluoridation.
It simply is not the case that any of the conditions listed in the schedule will be aggravated by the supply of fluoridated water. Taking the ailments in the order listed in the schedule, the 1976 Royal College of Physicians' report noted that the evidence did not suggest that fluoride in water at one part per million caused any increase in the incidence of, or mortality from, any renal disorder. Lord Jauncey also concluded that there was no reasonable likelihood of harm to kidney patients resulting from fluoridation.
With regard to allergic reactions, perhaps I may dwell on this point because this was very much stressed by the noble Lord, Lord Charteris of Amisfield. He dealt in some details with this. He mentioned the work of a Dr. Wilson which involved the injection of fluoride into the abdominal cavities of guineapigs. This is obviously very different from the drinking of fluoridated water. I am advised that Dr. Wilson's work does not show that even this unnatural type of exposure causes allergy in guineapigs.
The noble Lord referred then to Dr. Moolenburg's work in Holland and I have to advise him that this work has not been accepted by reputable medical opinion. If it had been, there would have been a much greater reaction to it, as mentioned by my noble friend Lady Gardner of Parkes. The work was not properly scientifically controlled and Dr. Moolenburg's work relates to suggestions that fluoridation causes allergies. Dr. Moolenburg's work was not upheld in the Dutch courts, as the noble Lord implied, where the question of fluoridation was decided purely on a legal issue.
I can tell the noble Lord that the American Association for the Study of Allergies stated in 1971 that,
"there is no evidence of allergy or intolerance to fluoride as used in the fluoridation of community water supplies".
They reaffirmed this statement in 1980, well after Dr. Moolenburg's work. The comments of the American association were also the unanimous view of the British Society for Allergy and Clinical Immunology in 1982.
Before I move on to diabetes, I have one further point on allergies which I should just like to clear up, and that relates to the work of a Dr. Waldbott, also mentioned by the noble Lord. Dr. Waldbott has alleged that various conditions are linked to the drinking of water fluoridated at one part per million. The tests carried out to demonstrate these links have all been inadequate and some merely anecdotal. Dr. Waldbott used concentrations of fluoride in his test well in excess of those to be found in public fluoridated water supplies.
None of the many conditions listed by Dr. Waldbott is more prevalent in areas with a naturally or artificially fluoridated water supply. Investigations of individual cases of supposed intolerance to fluoridated water have failed to confirm fluoride as a cause and there is no evidence therefore to support the noble Lord's contention of problems with allergies.
9 p.m.
Moving to diabetes, the department is aware of suggestions that fluoride might cause diabetes by blocking the action of enzymes in glucose metabolism,
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but that has simply not been substantiated. As far as thyroid disorders are concerned, fluoride is not concentrated by the thyroid and does not influence the uptake of iodine. After reviewing all the relevant studies, the Royal College of Physicians concluded that:
"there is no evidence that fluoride is responsible for any disease of the thyroid".
Similarly on the subject of arthritis, the Royal college concluded that:
"there is no evidence that the prevalence of any musculo-skeletal disorder is increased in areas with fluoride at a concentration of one milligram per litre in water".
Finally, with regard to heart diseases there is simply no epidemiological evidence to support the suggestion that fluoride increases the prevalence of arteriosclerosis. Indeed, studies in the United States and the United Kingdom have tended to show a lower mortality rate from cardiovascular disease in fluoridated and naturally high fluoride areas. The 1976 report of the Royal College of Physicians noted that:
"there has been no increase in mortality from coronary disease in Birmingham since it was fluoridated in 1964, relative to low fluoride parts of its region".
More generally, I should like to stress that, much as it may disappoint opponents of this Bill, the simple fact is that the medical profession, as instanced, for example, by the support of the British Medical Association, believes fluoridation to be a safe and effective means of reducing dental decay. During the initial 11-year test period following introduction of fluoridation, the research committee set up by the Government of the day specifically approached every general practitioner in the study areas of information about any patient who might be suffering ill-effects from fluoridation. Only two possible cases were reported and neither was shown to have anything to do with fluoridation. It remains the case that general practitioners are not expressing concern to the department about the safety of fluoridation, and this is also the position of our independent expert medical advisers who advise the department.
I turn now to some more detailed points. My noble friend Lord Sandys referred to mass medication which I dealt with at some length at the Committee stage, and so perhaps he will agree that I should not again go into it in depth. He also said that fluoride should be under the Medicines Act. But it is our advice that neither the chemicals we use nor fluoridated water with them are medicinal compounds within the meaning of that Act.
The noble Lord, Lord Burton, asked whether we have been doing any work between the occasion when he last spoke and today. Looking round the Chamber I like to see how healthy the noble Lord, Lord Monson, my noble friend Lord Kinnoull and the noble Lord, Lord Burton, look, compared to my noble friend and I who are looking pale and wan from hours spent in the department trying to make sure that we have our information ready to hand.
The noble Lord, Lord Burton, in particular referred to animals. I have to tell him that fluoridation of water supplies at one part per million does not harm livestock. The problem that he told us about related to animals that were affected as a result of pollution from factories emitting fluoride. As I think I said at an earlier stage in our proceedings, that is now closely

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controlled. In his argument he admitted that since more safety measures had been introduced, the situation has improved significantly at Fort William.
The noble Lord, Lord Beaumont of Whitley, mentioned "natural water". I do not think that there is such a thing. All water has fluoride in it and it varies from hard to soft. I prefer soft water with my whisky! There is no such thing as pure natural water throughout the country. It varies from place to place as one goes round the country. I do not think that the noble Lord can be that precise.
Lord Beaumont of Whitley: I made that point, my Lords.
The Earl of Caithness: My Lords, I am grateful to the noble Lord. I was only stressing it, which rather proved the flaw in his argument.
I turn now to the noble Lord, Lord Houghton of Sowerby. I should like to deal with some of his points in detail. He mentioned at the Committee stage that he had a case which proved that fluoride in water was detrimental. After that he kindly gave me the file, and we have in the department gone through it in great detail. Perhaps if he agrees, this would be an opportune moment for me to say something on that. Most of the file is concerned with the case of Mrs. Emily Jones. It is alleged that Mrs. Jones suffered from severe skeletal fluorosis and that that resulted from drinking water with a natural fluoride content of 1·5 parts per million.
I am advised that the evidence presented shows that the lady in fact had features of rheumatoid arthritis which has nothing to do at all with fluoride. The X-ray enclosed in the file shows no features of skeletal fluorosis such as bony exostoses or calcified or ossified ligaments. The medical history does not include fluorosis since it appears that the arthritic condition did not improve despite 14 years on a low fluoride mains water supply.
Indeed, it would appear that Miss Keyes, who supplied the file to the noble Lord, is the only person besides him who believes that Mrs. Jones had fluorosis. It is clear from the papers presented that that view was not shared by the coroner and therefore not by the pathologist who carried out the post-mortem. Indeed, Miss Keyes herself says that Mrs. Jones had a fluoride level of 2,000 parts per million in one of her bones. That might sound a lot, but that is a perfectly natural occurrence and is perfectly normal in an 82-year-old woman. It is not an indication of skeletal fluorosis.
I shall not weary your Lordships with all the inaccuracies in the information supplied to us, although I recognise that it was done in wholly good faith by the noble Lord. Suffice it to say that no symptomatic case of skeletal fluorosis attributable to water consumption has ever been recorded in temperate climates where the level of fluoride in the water supply has been less than four parts per million; and we are going nowhere near that figure.
In her file of papers Miss Keyes alleges that symptoms of fluorosis in man go unrecognised and are seldom diagnosed. In fact the only reason why skeletal
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fluorosis is seldom diagnosed in this country is that it is almost non-existent from any cause. Its radiological features are distinctive and any clinician who found a case would undoubtedly publish details precisely because it is so rare. Against that background one can only conclude, to use a phrase which I recognise will irritate the opponents of the Bill and in particular my noble friend Lord Sandys, that there is still no evidence here of harm from fluoridated water.
The noble Lord, Lord Houghton, said that those of us who favoured the fluoridation of water supplies were in a small minority. I beg to differ with him. I think that we are in the majority, and the opinion polls and the evidence that we have to date suggest that we are. If, however, he is right, why does he worry? This is merely an enabling Bill. It will enable the health authorities, with the water authorities, to fluoridate should they think it right to do so after consultation. We come on to that in due course. As the House will be well aware, my noble friend Lady Trumpington withdrew an amendment to bring back a wider and much more generous amendment, bearing in mind the points made at Committee.
I have dealt with this matter in some detail. I think it has been necessary" to do so. Against the background about which I have spoken, I hope that your Lordships will feel that the suggested amendment is not justified.
Lord Burton: My Lord, before my noble friend sits down, may I ask him this? If it is so beneficial, why are we the only country in Western Europe, except for Southern Ireland, adopting this policy? And why is India trying to remove fluoride if it does not have a deleterious effect on the human body?
The Earl of Caithness: Oh, my Lords, I should love to answer that in great detail. I can tell my noble friend about various countries in Europe. I can tell him about Sweden and the Netherlands, where they still want it. I can tell him about the problems of water supply in France from all the little different sources and how uneconomic it is. If my noble friend would like me to go into a lot of detail on that, perhaps he will please put down an amendment. I should be very happy to deal with it all and so would my noble friend.
Lord Monson: My Lords, I can only express disappointment at the Government's inflexible response to my noble friend's very reasonable amendment. First, may I reply to the noble Baroness, Lady Gardner of Parkes? She spoke of individuals who are suffering, or who believe that they are suffering, from some ailment or other which they ascribe to the presence of fluoride in the water, being able to demand an alternative water supply. However, the amendment says nothing of the kind. It does not provide for that possibility. What the amendment does is stipulate that an alternative water supply would be made available only in the event of a doctor writing out a certificate which certified that fluoridated water may carry a serious risk of harm to the health of the individual concerned. From the noble Earl's reply, it seems to me that the Government are claiming that they are almost infallible in this matter and that any doctor who questions their quasi papal infallibility (and, believe me, there are plenty who do) must be either fools or dishonest members of their profession who would—
The Earl of Caithness: My Lords, perhaps I may just interrupt the noble Lord. I think he is being grossly unfair. The Government base what has been said today on firm and independent evidence. It is not just the Government's view, it is independent and very superior medical advice.
Lord Monson: My Lords, perhaps the noble Earl will agree that not all doctors are agreed on this matter. They really are not. I certainly refute the idea. If the Government are right, then of course they have nothing to worry about in accepting the amendment because there will be no doctors' certificates. If all doctors agree that fluoride cannot cause harm, why should any doctor's certificate be issued in the first place?
The amendment can only be of concern to the Government if the Government turn out to be mistaken and doctors' certificates are issued. I submit that the Government's position might be tenable if at least 99 per cent. or more of doctors, physiologists and others throughout the civilised world agreed that fluoride was harmless and that there was no conceivable possibility of any research in the future proving it to be otherwise. However, that is not the case. I think the Government, if they are honest with themselves, will agree that that is not the case. Therefore, I submit that their position is not tenable.
Lord Winstanley: My Lords, before the noble Lord sits down, may I say this? In relation to the point that he made that not all doctors agree on this matter, I wonder whether he can tell the House any particular matter on which all doctors agree. Doctors, as people, do not all agree. The fact that one or two disagree on this particular matter does not invalidate the firmly-held belief of the overwhelming majority of doctors.
Lord Monson: My Lords, I agree that if it were the case of only one or two doctors disagreeing, there might be something in what the noble Lord has said.
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However, I submit that there are far more than just one or two.
Viscount Hanworth: My Lords, I think this amendment is very reasonable. However, what worries me about it is how the unfluoridated water could reasonably be made available. Were it not for that fact, I should support the amendment completely.
Lord Charteris of Amisfield: My Lords, as has been already said, doctors never agree. Unfortunately, I do not share with the noble Earl this great learning which he has displayed to us this evening about medicine. I shall study very carefully what he has said. The question now is whether or not we should divide on this issue. Here I am in a slight state of bewilderment since I am not familiar with these affairs. However, I believe that if this amendment was passed, it would lead to financial implications which possibly may be outwith the powers of this House. Thus, if I may, I should like to reserve the right to come back to this question on Third Reading. Otherwise, I beg leave to withdraw the amendment.
Baroness Trumpington: My Lords, I am not absolutely sure of the mechanism for this, but I would prefer the noble Lord not to withdraw his amendment but rather that he should put the matter to the test. It was discussed in Committee.
The Deputy Speaker (Lord Ampthill): My Lords, the noble Lord has asked leave to withdraw the amendment. Therefore, the Question is: Is it your Lordships' pleasure that this amendment be withdrawn?
Noble Lords: No!
The Deputy Speaker: My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say, "Content"; to the contrary "Not-content". I think the "Not-Contents" have it. The "Not-contents" have it.
On Question, amendment negatived.
9.15 p.m.
Lord Beaumont of Whitley Lord Beaumont of Whitley moved Amendment No. 5:
After Clause 2, insert the following new clause:
("Review.
.A health authority shall be under a duty to review an application or withdrawal of an application made pursuant to section 1(1) of this Act not later than at the expiration of a period of 5 years from the date of such application or withdrawal and at the expiration of every five year period thereafter in the light of all relevant medical and scientific evidence known to it and in the light of any shift in public opinion in the area affected on the question of compulsory fluoridation of the public water supply.").
The noble Lord said: My Lords, this is a very simple amendment. I seek to ensure that this matter is not lost sight of. From the discussions that we have had in your Lordships' House, there can be no doubt that, whatever the majority may be on one side or the other—and I shall not cross swords with the Government spokesman on this—this is a matter which arouses a considerable amount of interest and controversy. Probably it would be true to say that it is not a matter that would be lost sight of. However, I am chronically indisposed to give people powers to do things like adding various chemicals to water without keeping the whole matter under control and review. I do not want to put it any stronger than that.
The amendment suggests that there should be a review every five years and I think that that would be a sufficient safeguard of the interests of the public. I look forward to hearing the Government's response. I beg to move.
Lord Winstanley: My Lords, I have disagreed with my noble friend on so many matters in relation to this Bill that I thought I might rise very briefly to say that I do not for a moment quarrel with him on this matter. My noble friend has an admirable record in public life in opposing pollutants of one kind or another and of doing what he can to preserve our environment. I hope he will accept that some others of us, who perhaps are on the opposite side in this Bill, have also worked very hard over matters of pollutants and, with regard to this Bill, would not be persuaded had we not looked with extreme care at the possible dangers.
My only question on this amendment is whether or not it is necessary. I anticipate the noble Baroness, Lady Trumpington, saying that she would expect health authorities to keep these matters under continuous review, and not just to hold a review every five years. I believe that this amendment which has been moved and which I support is not really necessary, and I hope that in due course that is what the Minister will tell us.
Lord Houghton of Sowerby: My Lords, I have no confidence in continuous reviews. I know from my own experience how that phrase is misused to hide an intention to do damn all. I believe that some term should be set for the implementation of an application when it is made by a health authority. Only if that is done will they monitor the working of the scheme carefully and get away from the unrecorded propaganda on this process in the way which may be needed to keep a check on its efficacy or its possible
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harmful effects. What the period should be is, I think, open to dicusssion. It may be that five years is too short and that 10 years might be better. However, I think that the need to review the continuation of fluoridation when applied for by a health authority should exist. Otherwise I do not know how the inertia of a health authority can be overthrown.
There is no method of election which will make known the wishes of the electorate through the process of pressure on health authorities. In those circumstances I think that the Government should be quite reasonable about this and accept the amendment, or indicate that they are willing to accept an amendment with a different time limit. This is the only way in which some of the fears and anxieties can be relieved.
I stress that it is no good using a steamroller on a subject which is so highly emotional, which has been controversial for so long, and upon which there are so many differences of opinion by those who claim knowledge, expertise and experience. I beseech the Government to have some regard for these feelings. We may not be as rational as we ought to be about some things in life. The human being is an emotional animal and is bound to respond to emotional situations and emotional feelings. I had better say "species" in place of "animal", although I do not regard the word "animal" as in any sense a depreciation of the human species. I make that observation in passing only because the noble Baroness was expressing some surprise on the Bench opposite at the use of the word. Anyway, that is how I feel, and I think that the amendment should be accepted at least in principle.
Viscount Hanworth: My Lords, five years ago I would, without any doubt, have supported this Bill. But since then there has been more evidence that just possibly fluoridation might have adverse effects. As we know, it is a form of compulsory medication and it must be justified as such. Therefore, a review in the light of all the facts, and particularly the medical facts, must be made. It is important to place a time limit on doing this, because otherwise it goes by default. I strongly support the amendment.
Lord Prys-Davies: My Lords, I too strongly support this amendment. In Committee we discussed an amendment proposing that the Act itself should be renewed annually, but the Committee could not support that particular amendment and the noble Lord, Lord Monson, did not press it to a Division. But I believe, with the noble Lord, Lord Beaumont, that the health authority itself should be under an express statutory duty periodically to review its decision on fluoridation. It may be that the period of five years is not quite correct, but it should do so periodically.
There are two reasons. First, it is a highly controversial issue. Many consider it to be unethical. All over the country honest and sincere people hold different views about it. There could be a decisive shift in public opinion in the course of time. The second reason has been touched upon by the noble Viscount. The balance of the scientific evidence for and against

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fluoridation may change, may be changing currently, and certainly may change over the passage of time.
Of course we appreciate that a decision taken by a health authority is not irreversible, but the best way—indeed the only way—of ensuring that the health authority will always be responsive to a shift in public opinion, to a shift in the balance of the medical argument, is by introducing into the Bill a positive duty to review its original decision periodically in the light of the up-to-date evidence. I agree with my noble friend Lord Houghton that if this duty is built into the Bill it is a duty which the health authorities cannot evade. Therefore, I wish to support the amendment.
Lord Monson: My Lords, I too am happy to support this amendment. Surely one can only logically oppose it if one believes that from the middle of 1985 onwards scientific and medical knowledge is going to be frozen at its present level, that it is going to remain static and that there will be no further advance in the relevant scientific and medical evidence. Thank goodness, that is not likely to happen, and for that reason the amendment must be supported.
Baroness Trumpington: My Lords, to borrow from a remark of the noble Lord, Lord Houghton, if ever there was a steamroller to crack a nut, then this is it. This new clause would impose upon health authorities a requirement which is as cumbersome as it is unnecessary. Health authorities, under the Bill as it is currently drafted, will remain free to reconsider their policy on fluoridation at any time. I cannot see what can possibly be gained by obliging a health authority to do this every five years from the time of making or withdrawing an application for fluoridation. Indeed, this could lead to quite ridiculous results. For example, if health authority A requested water fluoridation from water authority B and then withdrew its application (having been told by B that it was technically impracticable in that area) then under the noble Lord's amendment health authority A would nevertheless have to review fluoridation every five years until eternity. This cannot be regarded as sensible.
I appreciate that the intention behind the amendment is to ensure that health authorities take account of any new medical and scientific evidence or evidence on public opinion which comes to light after the initial decision on fluoridation has been taken. This does not require any new statutory obligation to be placed upon health authorities. My department continually monitors the literature on the safety and efficacy of fluoridation and brings significant new material, such as the Knox report published earlier this year, to the attention of health authorities. In the wholly hypothetical case that reasons were ever found for belief that fluoridation was unsafe—for which I must stress that there is no evidence from over 40 years of study of artificial fluoridation schemes—health authorities would be asked to cease fluoridating immediately, and if necessary the Secretary of State's powers of direction could be used. There is no question in such circumstances of leaving health authorities to take their own decisions when, under the noble Lord's amendment, their next
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five-yearly review became due, possibly in four years and eleven months' time.
I am wondering whether my words are of total lack of interest.
Lord Graham of Edmonton: Not at all, my Lords.
Lord Ponsonby of Shulbrede: No, my Lords.
Baroness Trumpington: My Lords, with regard to shifts in public opinion, evidence on this can be presented at any time to health authorities. In particular, the community health councils—which Parliament has established to represent consumer opinion on the health service—are free to make representations at any time. That said, fluoridation to be fully effective requires that children drink fluoridated water for the whole period of tooth formation from birth to the age of 14 years. It is simply wasting health service money to seek to operate fluoridation on other than a long-term basis. Hence I do not see why minimal and transitory shifts in public opinion, whether for or against fluoridation, should be regarded as justification for operating a stop-go policy every five years. Fluoridation should be regarded as a long-term investment and there should be very strong grounds for any decision to withdraw from fluoridation once it has been initiated. In the Government's view, this amendment is fundamentally misconceived and would serve no useful purpose. I hope that the amendment will be withdrawn, but if not I must ask your Lordships to reject it.
Lord Monson: My Lords, before the noble Baroness sits down, she mentioned the period of a child's tooth formation as being between the ages of nought and 14 years. Is it not the case that there has never been any scientific evidence to show that children's teeth are in any way improved by the ingestion of fluoride once they reach the age of six, by which time the second teeth are fully formed within the gums?
Baroness Trumpington: My Lords, I have sat down, and the noble Lord is not correct.
Lord Beaumont of Whitley: My Lords, I thank my noble friend Lord Winstanley for his remarks. He and I see eye to eye on many subjects, and this amendment is not about medical evidence but purely about watchdogs on public concerns. I tend to agree with the noble Lord, Lord Houghton, when he says that he does not particularly trust ongoing reviews and that he should like periodic checks. I, too, should like periodic checks. I am delighted that there is an ongoing review, as the noble Baroness has said. It seemed to me that she destroyed a lot of her case for saying that this was a cumbersome amendment. If the department is consistently monitoring the whole situation, presumably it would be extremely easy every five years to muster the evidence and consider it; it would not in any way be a cumbersome matter.
I believe that citizens should have their rights. It seemed to me at one moment, when the noble

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Baroness was talking about not paying attention to minimal shifts in public opinion every five years, that this was something which the Conservative Party might be taking up as a doctrine. Indeed, I rather hope not. I think that in all matters we should have a look every five years at a lot of what is going on. I am afraid I did not quite follow the arguments by the noble Baroness about Health Authority A and Health Authority B, but I have no doubt that if there is a major fallacy in this amendment and if your Lordships decide to put it in the Bill, we can iron out that fallacy or that minor point at Third Reading. As it is, I think that it is a matter of public interest that there should be periodic surveillance and I should like to test the opinion of your Lordships' House.
9.31 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 38; Not-Contents, 47.

DIVISION NO. 6

CONTENTS

Airedale, L.

Hirshfield, L.

Arran, E.

Houghton of Sowerby, L.

Barnett, L.

Kilbracken, L.

Beaumont of Whitley, L. [Teller.]

Killearn, L.

Kinnoull, E.

Boyd-Carpenter, L.

Kitchener, E.

Burton, L.

Lawrence, L.

Campbell of Eskan, L.

McNair, L.

Charteris of Amisfield, L.

Mar, C.

Craigmyle, L.

Monk Bretton, L.

David, B.

Monson, L. [Teller.]

Davidson, V.

Moyne, L.

Ennals, L.

Parry, L.

Falkender, B.

Ponsonby of Shulbrede, L.

Falkland, V.

Prys-Davies, L.

Galpern, L.

Sandys, L.

Graham of Edmonton, L.

Taylor of Blackburn, L.

Gray, L.

Wilson of Langside, L.

Grey, E.

Yarborough, E.

Hanworth, V.

NOT-CONTENTS

Allenby of Megiddo, V.

Layton, L.

Ampthill, L.

Lindsey and Abingdon, E.

Beloff, L.

Long, V. [Teller.]

Belstead, L.

Lucas of Chilworth, L.

Blake, L.

Lyell, L.

Brabazon of Tara, L.

McFadzean, L.

Caithness, E.

Macleod of Borve, B.

Cameron of Lochbroom, L.

Morris, L.

Campbell of Alloway, L.

Murton of Lindisfarne, L.

Colville of Culross, V.

Redesdale, L.

Colwyn, L.

Richardson, L.

Crathorne, L.

Rochdale, V.

Darcy (de Knayth), B.

St. Aldwyn, E.

Elliott of Morpeth, L.

Sandford, L.

Elliot of Harwood, B.

Sharples, B.

Elton, L.

Skelmersdale, L.

Gardner of Parkes, B.

Stodart of Leaston, L.

Glanusk, L.

Swinton, E. [Teller.]

Glenarthur, L.

Trefgarne, L.

Grimston of Westbury, L.

Trumpington, B.

Hailsham of Saint Marylebone, L.

Westbury, L.

Wise, L.

Hooson, L.

Young, B.

Lauderdale, E.

Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendment No. 6 not moved.]
9.39 p.m.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 7:
Insert the following new clause:
("Notice of health authority meeting.
. A public notice of the date, time and place of the meeting of the health authority to consider and vote on a motion that the health authority shall make or withdraw an application under section 1(1) of this Act shall be given by publishing it in three consecutive issues of one or more newspapers circulating in the area to be affected by it twenty-one clear days at least before the meeting.").
The noble Lord said: My Lords, looking ahead at Amendment No. 8, we note that the Government acknowledge it is important that the decision whether or not to implement fluoridation should be taken at a meeting which is open to the public. That is common ground.
Amendment No. 8: After clause 3, insert the following new clause:
("("Publicity and consultation.
.—(1) This section applies where a health authority propose—

(a) to make or withdraw an application; or

(b) to terminate a scheme which may be operated by virtue of section 3 of this Act (a "preserved scheme").

(2) At least three months before implementing their proposal, the health authority shall—

(a) publish details of the proposal in one or more newspapers circulating within the area affected by the proposal; and

(b) in the case of an authority in England and Wales, give notice of the proposal to every local authority whose area falls wholly or partly within the area affected by the proposal.

(3) Before implementing the proposal the health authority shall consult each of the local authorities (if any) to whom they are required by subsection (2)(a) above to give notice of the proposal.
(4) The health authority shall, not earlier than seven days after publishing details of the proposal in the manner required by subsection (2)(a) above, republish them in that manner.
(5) Where a health authority have complied with this section in relation to the proposal they shall, in determining whether or not to proceed, have such regard as they consider appropriate—

(a) to any representations which have been made to them with respect to it; and

(b) to any consultations held under subsection (3) above.

(6) The Secretary of State may direct that this section shall not apply in relation to any proposal of a health authority to withdraw an application or to terminate a preserved scheme.
(7) Where, at any meeting of a health authority, consideration is given to the question whether the authority should make or withdraw an application or terminate a preserved scheme, section 1(2) of the Public Bodies (Admission to Meetings) Act 1960 (which would have allowed the authority to exclude the public from the meeting in certain circumstances) shall not apply to any proceedings on that question.").
The purpose of giving the press and public the right to attend meetings is for them to inform themselves of what is going on. It is a right given to the citizen to observe and hear for himself what is going on and not merely to have to rely on a report in the press. That being a basic civic right, a member of the public should not be deprived unwittingly of the opportunity to exercise that right, and yet that could easily happen. It is implied in Amendment No. 8, or I believe that it is intended to be implied, that adequate public notice of the time and place of the meeting must be given to the public.
However, we noted in Committee that the statutory provisions in the Public Bodies (Admission to Meetings) Act 1960 merely requires a notice posted at the office of the authority three clear days before the meeting or, if the meeting is convened at shorter

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notice, at the time it is convened. We would hope that the authority would not be content merely to exhibit this one single notice on a notice board in its head office but would also circulate the notice widely. We would hope also that the authority would not be content to give less then three days' notice but would give as much notice as possible. But on both aspects the Bill is silent, and therefore we have to fall back on the provisions contained in the 1960 Act to which I referred.
It is our submission that the statutory provisions in the 1960 Act for giving notice of the time and place of a meeting are inadequate. A health authority pleading the 1960 Act could rely, as I have said, on a single notice exhibited in its office, giving no more than three days' notice and possibly less than that. In our submission, if it were to proceed on that basis the holding of the meeting would be almost useless and the giving of a right to members of the public to attend would be almost useless, because effectively the public would be excluded from the meeting. It would be the meeting that never was. That should never happen, and that is why we invite the House to give support to Amendment No. 7 and the underlying principles. I beg to move.
Baroness Trumpington: My Lords, I must ask my noble friends and noble Lords opposite to reject this new clause. I have to say that I think it is completely unnecessary to place this statutory obligation upon health authorities. Under the Government's own new clause on consultation, the health authority's plans for fluoridation will be fully publicised in newspapers, and indeed many health authorities may choose to take that opportunity to inform the general public when and where their decision is finally to be taken. Moreover, I understand that it is a common practice for health authorities to make their meeting agendas and venues available to the local press, as well as to interested bodies such as community health councils, health service trade unions and local councils. Local interest in fluoridation will certainly be reflected in the press, which may be relied upon to publicise the matter widely and to report the outcome of health authority discussions on the issue.
9.45 p.m.
There are two main reasons why we are unwilling to make this a statutory obligation. First, I think that it is very important to put the matter in perspective. Fluoridation is only one among very many important decisions taken by health authorities. The Government do not consider it appropriate to make this extra provision just for this one particular category of decision. Secondly, it is not entirely clear what purpose this provision would actually achieve. The public can of course attend health authority meetings, and indeed many choose to do so. However, as at local authority meetings, they cannot speak or take any part in debate. Indeed it would be most improper for them to seek to influence the actual course of a health authority meeting.
What is far more important than the actual presence of the general public at the meeting is that the public should have ample opportunity to make their views
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known to the authority prior to the meeting, so that the health authority can take them sensibly into account. Noble Lords will be aware that we have specifically provided for this already and I therefore ask that this amendment be withdrawn. If it cannot be withdrawn, I would urge noble Lords to reject it as constituting a wholly unjustified imposition upon health authorities.
The Earl of Kinnoull: My Lords, if the noble Baroness says that the health authorities "may" take the opportunity to include in their published notice their intention to introduce fluoridation, I am not quite sure why she is not prepared to say "must" take the opportunity, because really that is the whole issue. There is this doubt that a district health authority could consider this very short notice, even having published a notice saying that they were going to take this decision. It is the fact that they are denying the possibility of the public being present that I think moves the noble Lord's amendment. I must say that I would support the amendment, because I think there is nothing between the Government and the amendment, if I were certain that the district health authority would publish the date of the meeting at the time they published the notice of their intention. There is nothing really at fault there.
Lord Ennals: My Lords, I must say that I found the noble Baroness's reply very unconvincing indeed and I entirely agree with every word that was said by the noble Earl, Lord Kinnoull. The noble Baroness is not saying that what is contained in Amendment No. 7 is not an extremely good idea. She just says that she knows it is going to happen anyhow. Just how can she be sure it will happen anyhow? She cannot speak on behalf of health authorities. They act for themselves.
Here is a decision which is, after all, a fairly unique one. It is not like the closure of a hospital. Yes, my Lords, that is very important and people will want to be involved in that; but this is a very fundamental decision and it may be right. I am not arguing that it is not a right decision. That is not the question at all. The question is whether they should be given plenty of notice on an issue that is extremely controversial, so that people may know by advertisements in the press of the conditions set out here. If, as the noble Earl, Lord Kinnoull, says, and the noble Baroness is saying, the health authorities would do this, in Heaven's name why not put it in the Bill?
Baroness Trumpington: I am allowed to speak again, I think—and if I am wrong I apologise—but I believe that the noble Lord has not understood what I said. May I just say again that under the Government's own new clause on consultation the health authorities' plans for fluoridation will be fully publicised in the newspapers, and I went on—
Lord Ennals: My Lords, I absolutely accept that, and I was just going on to give the noble Baroness some congratulations. As she will realise, the reason I did not move Amendment No. 6 was that she was wise enough to write virtually the identical words of Amendment No. 6 in the names of myself and my noble friend Lord Prys-Davies into her new clause.

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What I do not understand is why she was not prepared to follow our wording with a little more accuracy and precision in what she had to say at this point in the new clause.
I do not intend to press this amendment to a Division, because I think that the case is overwhelming and, if the Government are prepared to say that they will at least look at this again, we shall be able to deal with it on Third Reading. So I ask the noble Baroness to say that she is prepared to look seriously at the arguments put forward in what has admittedly been a very brief debate. There is nothing between us, except that one says, "We hope it will happen" and the other says, "It must happen."
The Deputy Speaker: The Question is that this amendment be agreed to?
Lord Ennals: My Lords, I beg leave to withdraw the amendment.
The Deputy Speaker: Is it your Lordships' pleasure that this amendment be withdrawn?
Baroness Gardner of Parkes: No.
The Deputy Speaker: The Question is that this amendment be agreed to?
On Question, amendment negatived.
Lord Houghton of Sowerby Lord Houghton of Sowerby rose to move, pursuant to Standing Order No. 60, That the House do now resolve itself into a Committee to debate Amendments Nos. 8 to 12.
The noble Lord said: My Lords, there is nothing in this Motion of a dilatory or obstructive nature—
Noble Lords: Hear, hear!
Lord Houghton of Sowerby: There is nothing in this Motion of a dilatory or obstructive nature—
Noble Lords: No.
Lord Houghton of Sowerby: Do I have to say it again? I am relying on Standing Order No. 60, which was made on 27th March, 1621—an event which not even the noble Lord, Lord Shinwell, can remember. It begins:
"To have more freedom of debate, and that arguments may be used (pro and contra) Committees of the whole House are appointed, sometimes for Bills, sometimes to discuss matters of great moment".
This is a recommittal Motion—that is all—and there is no mischief in it. I remind the noble Baroness very briefly of the course of events. She will recall that at the Committee stage on 25th April, at col. 1266 of the Official Report, she came to her Amendment No. 32, which is set out there. But she went on to say:
"I am not now proposing to move Amendment No. 32. It may be helpful to your Lordships if I give a very brief explanation".
What she explained was that after she had put down her amendment she took account of other amendments that were down dealing with the same subject. Indeed, we have just been debating one of
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them which is on the Marshalled List, dealing with the Public Bodies (Admission to Meetings) Act.
But in not moving her amendment she said that on reconsideration it probably did not go far enough and she wanted to take it back to give further consideration to the matter and bring forward a revised version. That is what she did, and Amendment No. 8 on our Marshalled List is the revised and improved version of Amendment No. 32, which she did not move after it had been tabled in Committee stage earlier on.
I think the noble Baroness will agree that she tabled her amendment in Committee stage late and did not bring it forward for debate at Committee stage, so that the customary opportunity of dealing with it in full in Committee did not arise. Naturally, when a Minister indicates a willingness to take something back, or not even to bring it forward without further consideration in the hope of improving it, we take her at her word and do not harass her too much in Committee. That is what happened.
I hope that my motive in this matter will be accepted as absolutely pure. It is merely to get greater freedom on these amendments, particularly on the noble Baroness's amendment, than we would usually get on Report stage. The proceedings do not constitute a Committee stage requiring another sitting of the House to complete the Report stage. As soon as these amendments are disposed of the Report stage will be resumed straight away. It is merely an interlude during which we are given that greater freedom of debate on these amendments, including her own, without having to come to the House each time and say "By leave" in order to speak again.
I hope that the noble Baroness will not be difficult about this. I do not want to disturb her state of happiness at the moment but I should regard it as an act of serious discourtesy, quite honestly, if in rejecting this Motion she implied that there was more to this than I had stated. It is literally what I have said that I intend and no more will happen than that we can go into Amendments Nos. 8 to 12 a little more freely than under the procedural condition of the Report stage. I do not think that that is unreasonable, bearing in mind that we are dealing with an amendment that appears for the first time in its present form on Report, after not having had adequate opportunity for debate on that amendment in Committee.
That is all I need say. I am sure that my noble friends, and I hope noble Lords everywhere, will take it amiss if the noble Baroness brushes aside this very reasonable request, which is a procedural matter and which has no ulterior motive whatsoever except to deal, as I shall indicate in due course, with the fact that what we are about to discuss here is the last bastion of freedom remaining in this Bill, because it is on consultation between the health authority and the public that the matter will ultimately rest.
That is why the provisions for that consultation are vitally important. They must be seen to be complete and fully observed. That is what makes this particular phase on this Bill of such great importance. Everything else has gone. The noble Baroness has rejected everything and has even described some amendments as ridiculous. We have been very patient, if I may say so, in listening to the forthright condemnation from

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the Front Bench opposite of amendments and arguments put forward by my noble friends and myself. Here is an opportunity for a little sweet reasonableness at this hour of night in order that we can get on to the Committee phase of these amendments, get on with the Bill and resume the Report stage as soon as we have disposed of the amendments in Committee. I beg to move.
Moved, pursuant to Standing Order No. 60, That the House do now resolve itself into a Committee to debate Amendments Nos. 8 to 12.—(Lord Houghton of Sowerby.)
10 p.m.
BaronessTrumpington: My Lords, of course I would never ever dream of thinking that any of the motives of the noble Lord, Lord Houghton, were anything but crystal pure, clear water with a dash of fluoridation. I have to say that I can see no justification for the Motion of the noble Lord, Lord Houghton, that the House should resolve itself back into a Committee to consider the new clauses and consequential amendments on consultation. It is simply not the case that consultation was not extensively debated at the Committee stage or that any new facts have emerged subsequently.
Indeed, no fewer than five amendments were discussed on this issue—moved by my noble friends Lord Sandys and Lord Kinnoull, and by the noble Lord, Lord Prys-Davies. In fact, of the eight-and-a-quarter hours which the Bill's Committee stage lasted, approximately two-and-a-half hours were spent discussing consultation. In other words, consultation was one of the subjects which received the most attention at Committee stage.
On this basis alone it seems rather unreasonable to suggest that consultation should again be discussed in Committee. It is of course true that the Government amendment on consultation was not discussed directly in Committee. This was for the very simple reason—as the noble Lord, Lord Houghton, explained—that I withdrew it. But I did so in order that it could be amended to take account of the views expressed by noble Lords at Committee stage.
Indeed, I am particularly surprised that the noble Lord, Lord Houghton, should feel it necessary that the new clauses in his name and mine on the subject should be referred back to Committee since, in their essentials, they are very similar. Equally, it will be seen that provisions which appear in my clause but not in that of the noble Lord, Lord Houghton, have been added either for technical reasons or to meet points raised by other noble Lords.
Thus, subsection (4) is designed to meet the essentials of an amendment tabled at Committee stage by my noble friend Lord Sandys. Similarly, subsection (7) meets specifically an amendment tabled by the noble Lords, Lord Ennals and Lord Prys-Davies. Subsection (5) reflects the wish of your Lordships that there should be a specific obligation upon health authorities to consult local authorities on their proposals for fluoridation. Subsection (6) preserves the principle about which several of your Lordships have expressed concern: that there should be adequate
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powers to terminate fluoridation schemes in the wholly hypothetical eventuality that there were doubts as to their safety.
This is not an appropriate time for me to make a detailed presentation of the Government's amendment on consultation. I hope, however, that what I have said will be sufficient to convince your Lordships that consultation was fully discussed at the Committee stage and that the Government amendment—which closely resembles that of the noble Lord, Lord Houghton—is in fact a synthesis of the views expressed there. This illustrates how carefully the Government have listened to the views of your Lordships.
If we are to agree with the Motion of the noble Lord, Lord Houghton, to return to Committee stage, then we may have this kind of procedure applied to every Government amendment put down at Report stage in every Bill from now on. I have to say that I would regard it as a sign of ingratitude, to say the least, if after the Government have bent over backwards to meet the wishes of my noble friends and noble Lords opposite our reward were to be that the amendments in question were sent back to Committee for what could only be time-wasting purposes. This Bill is not party political. My amendment has not been bounced at your Lordships out of the clear blue sky. There is no case for this Motion and I urge your Lordships to reject it.
Lord Moyne: My Lords, much as I admire so much of what the noble Lord, Lord Houghton, has said on this Bill, I cannot support him on this Motion. The reason is the hour on the clock. So many arguments have been advanced so succinctly and so well that it seems to me unnecessary at this time of night that we should all speak several times. If it had been three o'clock in the afternoon I would have supported this Motion wholeheartedly. I am simply speaking from a commonsense point of view.
Lord Monson: My Lords, the argument of the noble Lord, Lord Moyne, proves—if proof were needed—the Government's skill in arranging for these debates to be held so late in the evening. This is not a party political Motion, as must be obvious. Nor is it an underhand, tactical delaying Motion, as the noble Lord, Lord Houghton, has explained—despite the slightly cynical laughter emanating from the proponents of fluoridation when he said so.
We have, after all, a recent precedent in the Insolvency Bill where a large number of clauses were re-committed. I believe a whole day was lost. By way of contrast, agreement to this Motion would not materially hold up proceedings and would allow proper discussion of the Government's new clause which, on their own admission, they had not got right in Committee. As a matter of interest to your Lordships, the Government had not even got it right as recently as last Thursday. Since last Thursday the Government's consultation amendment has been revised yet again, albeit in a relatively minor way; one particular subsection was revised. If the Government, with all the back-up at their disposal, cannot get an

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amendment on this undoubtedly complex question right until only one working day before the Report stage, then surely this proves the necessity for recommitment.
Lord Sandys: My Lords, while listening to my noble friend Lord Moyne, and agreeing with him that the hour is late, I feel that there is one matter of substance which all your Lordships should recollect; that is, we are a deliberative Chamber. This Motion will permit your Lordships' House to deliberate on an issue which, while fully recognising every word that the noble Baroness has said in regard to the concessions which she has made and consideration given, will permit that degree of flexibility.
If the Government deny us that flexibility it will, of course, be necessary to apply the usual procedures for a Report stage. Due to the skills of your Lordships it may be possible to achieve perhaps half or three-quarters of the intention of the noble Lord, Lord Houghton. Nevertheless, I do not agree on the substance that it would be necessary, in the words of the noble Baroness, to re-commit clauses on every Bill. The noble Lord, Lord Houghton, quoted standing orders in detail and has taken legal advice on this matter. He referred to a standing order which dates back, I think he said, to 1621. It is a standing order which has been used, and used with care and value, on particular Bills. The noble Lord, Lord Monson, mentioned the most recent use of it on the Insolvency Bill. However, I believe that it would be for the benefit of consideration if we adopted the suggestion of the noble Lord, Lord Houghton.
The Earl of Kinnoull: My Lords, I support the noble Lord, Lord Houghton. I believe there is a weakness in the Government's case in advising the House not to accept the procedural point he is making. First, the kernel of this Bill is consultation. Secondly, in another place the Government promised as far back as February that they would produce an amendment. We have not yet had the chance to speak to the Government's amendment. We have been denied that.
When one looks at the words of the Companion to Standing Orders one sees that recommitment is leaving the Report stage to its proper function as an opportunity to review and perfect the Bill as amended in Committee.
Whatever the hour of night—perhaps some of us speak better after dinner than before it and we have been going for 14 minutes on this procedure Motion—I think we owe a duty to the Bill to consider it properly. Therefore, I support the noble Lord, Lord Houghton.
Lord Ennals: My Lords, I too want to support the noble Lord, Lord Houghton. As he pointed out, and as has been said by noble Lords on all sides of the House, we are, after all, concerned with the central crucial issue of this debate—that of consultation. I do not believe that this House, this reforming chamber, has had adequate time to discuss this most important part of the Bill.
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We have been discussing a number of other issues, and as the noble Baroness said, and as she knows, I welcome the fact that she has tabled a new clause which eventually will be discussed. But I have to say that that new clause, unless I am corrected, was only tabled on the day before the House rose for the recess. If it was two days then no doubt I shall be corrected.
I must say that on a number of occasions—and this will be recalled by those on the Front Bench—I asked when the new clause would be tabled. Day after day, the new clause was not tabled. As I said, to the best of my knowledge it was tabled the day before the House rose. We are now getting to the stage where we may be discussing the new clause proposed by the noble Baroness together with amendments that have been proposed to it. It is a very difficult and short time to get amendments down to it.
I believe therefore that the noble Lord, Lord Houghton of Sowerby, was absolutely right to make the proposal that he did. I know the noble Baroness said right at the very beginning that he was crystal clear, as pure as unfluorided water, or whatever the effect was; and whatever term the noble Baroness used in praising my noble friend, at the end she referred to time-wasting purposes. I have to say to her that if she had just readily agreed to the proposal put forward by my noble friend, we would now be discussing the issue instead of discussing procedural questions. I think she ought to realise that to start now, in the Report stage, at ten minutes past ten—or it may well be later than that before this debate ends—on the most crucial part of this Bill is simply not good enough.
It is for that reason that I support the proposal made by my noble friend.
The Earl of Caithness: My Lords, as my noble friend has already spoken, I feel that it is only right to speak once more from these Benches, in this sense on her behalf. I would just remind—
Lord Houghton of Sowerby: Would the noble Earl allow me to rise on a point of order?
The Earl of Caithness: There is no point of order.
Lord Houghton of Sowerby: My Lords, this is a procedural matter. Where is the authority on the Front Bench opposite to deal with the proceedings of the House at this moment? That is what I want to know. This is not a departmental matter, it is not a matter relating to a particular department. It is a matter relating to the procedures of the House and we ought to have on the Front Bench opposite either the Chief Whip or his deputy so that we know who we are dealing with.
The Earl of Caithness: My Lords, it is quite clear that the procedure of this House is that it is the Whip on duty, and I am the Whip on duty in lieu of the Chief Whip. We are discussing the procedure of the House; but I should like to remind the noble Lord we are still in the Report stage.
I should like to remind the House that the Government amendment was discussed inter alia, but not specifically, at the Committee stage. The noble

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Lord, Lord Sandys, said that we were a deliberative chamber. We spent one hour and 50 minutes on his amendments alone, which refer to consultation. There was considerably more time spent on consultation, and let us bear in mind when we look at the passage on recommitment what the Companion says:
"Bills have been re-committed where important amendments were tabled in Committee of the Whole House too late for them to be properly considered at that stage".
That does not apply here. These are not the circumstances here. I quote again:
"or where amendments, on a subject which had not been considered in Committee, were tabled at a later stage and required detailed examination. Decision on such amendments may then be reached on Re-commitment".
My Lords, considering that we spent at least 2½ hours discussing consultation in Committee, I think there is no case to take the House back into Committee at this point.
10.15 p.m.
Lord Ponsonby of Shulbrede: My Lords, we have spent some 19 minutes on this procedural matter. If we proceed to a Division, I hazard that it will be another 10 or 15 minutes before we get back to continuing our proceedings on the Water (Fluoridation) Bill. I wonder whether the noble Baroness would consider the fact that we might make much quicker progress if the Government accepted the Motion moved by my noble friend Lord Houghton. All we are actually talking about is whether people can speak once or twice on particular amendments which are tabled. We are not talking about lengthening the proceedings to another day.
As I said, we have already spent 20 minutes on this procedural point. We shall spend another 10 minutes if the Government do not agree to this point. It is not a question of re-commitment. These clauses and amendments have not been committed so far. We are talking about the commitment of these clauses and the amendments to them. As has been said by the noble Lord, Lord Monson, it is considered by those closely concerned with the Bill that this is a crucial issue within it. I should have thought that the House would make the speediest progress if the noble Baroness could accept the Motion of the noble Lord, Lord Houghton, and we could then proceed post-haste with the next amendment in her name.
Baroness Trumpington: My Lords, with the leave of the House, I think that the most speed could be gained if the matter were put to the test.
Lord Houghton of Sowerby: My Lords, it will not be put to the vote for a moment or two. I am sorry, but if noble Lords on the Front Bench opposite are so unskilled in the art of parliamentary activity and understanding, it is their fault and not mine. There is less understanding of the Opposition's position being shown in this matter than I was accustomed to over many years in another place. After all, Oppositions are regarded as having some claim upon the consideration of the Government of the day and upon the time of the House—more particularly on the time of the House. A certain amount of time is customarily allotted to Opposition Members or parties.
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Had I wished to deal with this matter in what I would call a confrontational way, I should have put down the Motion on the Order Paper for debate and if necessary for Division of the whole House. That was open to me. Had I adopted that method and had the Motion been carried, we should have gone into Committee on the amendments and it would have required another day to deal with the Report stage. I said at once that I did not wish to follow that course because it would appear to be a form of obstruction. The alternative method was the present one. The matter could be taken in the course of the Report stage on the Bill and would constitute only a brief intervention in the proceedings on Report solely to allow a little greater freedom in debate. That is not to say that all of us wanted to speak several times. But it would spare those of us who wished to speak more than once, or to examine—
Lord Beloff: My Lords, will noble Lord give way?
Lord Houghton of Sowerby: My Lords, is the noble Lord trying to assist me or is he not? I am sorry, then, I cannot give way.
Lord Beloff: My Lords, will the noble Lord give way?
Lord Houghton of Sowerby: My Lords, I am sorry, I cannot give way.
Lord Beloff: My Lords, will the noble Lord give way?
Lord Houghton of Sowerby: I am sorry, I cannot give way, my Lords.
Noble Lords: Order!
Lord Beloff: My Lords, I beg to move, That the Question be now put.
Lord Houghton of Sowerby: No, no, no, no, my Lords. I resume what I was saying. This would have given only a little more licence in the course of debate to deal with these amendments.
I am very sorry indeed that the Government have not been forthcoming. I know that one can speak at length on a matter of this kind. I have no desire to do that. But if it is time that we are trying to save, surely people with experience of the House will realise that it is not being saved by being obstructive.
The Earl of Swinton: My Lords, I understand that it has been moved, That the Question be now put. That is not debatable and should be put to the House straight away.
Lord Houghton of Sowerby: My Lords, it is a matter for the noble Lord on the Woolsack to decide whether the Question shall be put. If I may say so, it is not a matter for the noble Earl. I shall continue speaking unless the noble Lord on the Woolsack intervenes to say that I must resume my seat because he proposes to put a Motion to the House. If he does that, obviously I shall obey his ruling, but in the meantime I ask the

719
Front Bench opposite to think again for the final moment on this matter. Whatever happens to this Motion, the debate on the amendments must go on.
Baroness Trumpington: My Lords, I should be grateful, and I think the House would be grateful, if the noble Lord could get to the end of his remarkable speech.
Lord Houghton of Sowerby: My Lords, I am sorry, but I cannot help what the House may want. The House is doing nothing to help me and I do not propose to do anything to help the House. I am advised that the thing to do in order to quieten the restiveness of the noble Lords opposite is to get on with the Motion and let us proceed from there. However, I was about to say that we have still to get through the amendments, whether in Committee or on Report. The House can have it whichever way it likes. However, noble Lords opposite must not expect any accommodation from this side of the House on getting things through more quickly their way than they would have done our way. They certainly would have gone through them quickly enough our way. The noble Baroness would have been on her feet long ago, moving her Amendment No. 8 and we should now have been well into the debate on that amendment. But they are so stubborn about this. They do not understand the workings of Parliament and the feelings of opposition, especially on an issue of this kind. Thus, all I can say is that I move my Motion.
10.21 p.m.
On Question, Whether the House do now resolve itself into a Committee on the Bill to debate Amendments Nos. 8 to 12?
Their Lordships divided: Contents, 23; Not-Contents, 49.

DIVISION NO. 7

CONTENTS

Arran, E.

Kilbracken, L.

Beaumont of Whitley, L.

Kinnoull, E.

Burton, L.

McNair, L.

Charteris of Amisfield, L. [Teller.]

Monson, L.

Napier and Ettrick, L.

Craigmyle, L.

Parry, L.

David, B.

Phillips, B.

Ennals, L.

Ponsonby of Shulbrede, L.

Falkland, V.

Prys-Davies, L.

Graham of Edmonton, L.

Sandys, L.

Gray, L.

Wilson of Langside, L.

Houghton of Sowerby, L. [Teller.]

Yarborough, E.

NOT-CONTENTS

Allenby of Megiddo, V.

Crathorne, L.

Ampthill, L.

Darcy (de Knayth), B.

Beloff, L.

Davidson, V.

Belstead, L.

Elliot of Harwood, B.

Blake, L.

Elton, L.

Brabazon of Tara, L.

Gardner of Parkes, B.

Caithness, E.

Glanusk, L.

Cameron of Lochbroom, L.

Glenarthur, L.

Campbell of Alloway, L.

Gray of Contin, L.

Colville of Culross, V.

Grimston of Westbury, L.

Colwyn, L.

Hailsham of Saint Marylebone, L.

Cork and Orrery, E.

720

Lawrence, L.

Redesdale, L.

Layton, L.

Rochdale, V.

Lindsey and Abingdon, E.

St. Aldwyn, E.

Long, V. [Teller.]

Sandford, L.

Lothian, M.

Shannon, E.

Lucas of Chilworth, L.

Sharples, B.

Lyell, L.

Skelmersdale, L.

Macleod of Borve, B.

Swinton, E. [Teller.]

Mar, C.

Trefgarne, L.

Masham of Ilton, B.

Trumpington, B.

Monk Bretton, L.

Winstanley, L.

Morris, L.

Wise, L.

Murton of Lindisfarne, L.

Young of Graffham, L.

Resolved in the negative, and Motion disagreed to accordingly.
10.30 p.m.
Baroness Trumpington Baroness Trumpington moved Amendment No. 8:
[Printed earlier; col. 708.]
The noble Baroness said: My Lords, there has been wide concern in this House and in another place that there should be public consultation before a decision is taken on whether or not to initiate a fluoridation scheme. This clause provides that local authorities should specifically be consulted on proposals for fluoridation schemes and that three months' notice should be given in the local press in order to allow interested local bodies and individuals also to make representations. Before explaining the detail of this clause, I should like to stress that these provisions are additional to the statutory requirement which already obliged health authorities to consult community health councils.
Subsection (1) of the new clause defines the scope of the clause as applying to proposals by health authorities to apply or withdraw an application for fluoridation or to terminate an existing fluoridation scheme covered by Clause 3 of the Bill. Subsection (2) requires a health authority to give advance notice of at least three months of a proposal under subsection (1) above. Notice is to be given directly to the relevant local authorities in England and Wales and in addition health authorities (including the Scottish health boards) are to advertise their intentions in at least one newspaper circulating in the locality.
Subsection (3) specifically requires health authorities in England and Wales to consult local authorities upon their proposals. Subsection (4) obliges a health authority to republish its proposals at least seven days after their publication under subsection (2) above. Subsection (5) obliges the health authority to have such regard "as they consider appropriate" to the representations they receive and the outcome of consultation with local authorities when the time comes to decide whether or not to initiate or continue with fluoridation. I make no apology for the inclusion of the words, "as they consider appropriate". It is intended to ensure that health authorities can consider representations on their merits and not simply by volume or by strength of emotion generated.
This must be right when serious decisions on public health are to be taken. To illustrate this, I might ask your Lordships to imagine that a health authority received 5,000 letters suggesting that fluoridation should be rejected on the grounds that it caused AIDS.

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Since my department is aware that this proposition rests solely on the observation that San Francisco is fluoridated, I am sure your Lordships would agree that a health authority would be quite entitled to disregard such correspondence in its deliberations!
Subsection (6) allows the Secretary of State to direct that a health authority wishing to withdraw an application for fluoridation or terminate a preserved fluoridation scheme under Clause 3 may do so without engaging in public consultation. The sole purpose of this subsection is to preserve the assurance given by the Government in another place that it would be possible to stop all water fluoridation immediately if this were ever to be found necessary on safety grounds. Needless to say, we see no reason why this should ever be the case and this provision is provided purely on a contingency basis. I would also stress that this subsection does not provide any power for the Secretary of State to dispense with the requirement for public consultation prior to consideration of new fluoridation schemes.
Finally, subsection (7) of this new clause fully meets the purpose of the amendment which stands in the names of the noble Lords, Lord Ennals and Lord Prys-Davies, by obliging health authorities to meet in public to consider fluoridation when public disorder prevents this.
The Government believe this amendment fully and fairly meets the concern that local authorities and local people and organisations generally should be able to make their views known before a health authority takes the final decision on whether or not to apply for fluoridation. I commend the new clause to your Lordships. I beg to move.
Lord Ennals Lord Ennals had given notice of his intention to move, as amendment to Amendment No. 8, Amendment No. 9:
Subsection (3), at end insert—
("and shall only proceed with the proposal if the consultations produce in each case an affirmative response from the local authorities concerned.").
The noble Lord said: My Lords, I want to speak to the Government's amendment which has been proposed by the noble Baroness and to refer to the principles contained in Amendment No. 9, but I do not intend to move it this evening. I wish to give notice that I will move an amendment either in these terms or in similar terms when we reach Third Reading. It would be unfair to your Lordships, at this hour of night, not that we should debate it, but that we should seek to have a Division on this when clearly so many noble Lords who are deeply concerned about consultation one way or the other cannot be here.
I want first to thank the noble Baroness and to say how much I appreciate the advances that have been made in the new clause that she has produced. I hope that she will laugh as long as she can because the opportunity will not last long. I very much appreciate subsection (7), which relates to health authorities and the importance of public meetings. I welcome subsection (3), which concerns consultation with local authorities. It is about consultation with local authorities that I wish to raise an issue.
I recognise that what the noble Baroness has done is a considerable advance on the situation as it was at the Committee stage. I give her credit for that, but I hope to persuade her and the Government to move further forward than they have so far. Clearly the Government are open to persuasion because in Committee stage they were persuaded, and I wish to persuade them to go a stage further.
The whole question is: how does the consultation take place? I am advised that since I am not moving the amendment I should not proceed, but I should have thought that it would have been helpful for the House that I should comment on the new clause, which is what I propose to do unless I am advised otherwise.
We have to ask what consultation really means. A health authority wants to reach a decision and wishes to consult, as it is now obliged to do. It goes to the local authority, says what it has in mind and asks for views. The local authority has no instructions about how it should act when consulted by the health authority. Does the local authority have to take a decision? Is it simply necessary that the local authority is informed of what has been done? Should the local authority take a decision and convey it to the health authority? If it were to take a decision which was contrary to that of the health authority (whether it was against or whether it was for) surely it would be unsatisfactory that the health authority should proceed after it knows the views of the local elected authority and knows that that body takes a different view from the health authority.
We are in a difficult situation. The only two bodies referred to, except in terms of consultation—the only two bodies that have to take decisions—are two bodies that are not elected. The health authority is a nominated body. We know from the National Association of Health Authorities that the vast majority of health authorities are in favour of fluoridation. They may be right, they may be wrong: but that is their view.
The other body which has to take a decision is of course the water authority. It is not obliged to do what it is asked to do by the health authority. It can decide for itself. Yet the water authorities and the water authorities' association have made it absolutely clear—and I quoted their letters to your Lordships' House—that they did not wish to be put into a situation where they had to take a decision on something relating to the health of the nation, which was, quite frankly, not an area in which they believed they had competence. I referred to this at Second Reading and I certainly will not read it again now. Their competence was a technical competence as to whether they could effectively fluoridate the water: they did not wish to be put into a position where they had to take a decision. That is the dilemma that has been created and I know that it was considered by your Lordships at the Committee stage.
There is only one body which has now been brought into the act which can, in a sense, take a decision on behalf of the people. I think that there is something which unites so many Members in this House, including those who have put their names to the amendment that I am not formally moving tonight. Those who have put their names to that amendment take different views about the value or otherwise to the

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health of the nation of fluoride. But what we are concerned about is the right of the public to be consulted and to decide.
When this amendment was tabled, it was with the view that consultation by the local authority should be binding, that they should take a decision that the health authority would not be able to proceed until there was agreement among the members to give to ordinary people the opportunity of lobbying their local councils. Local councillors have to stand for election: members of the water authority do not and members of the health authority do not. Therefore, if there is strong feeling one way or the other, then that view will be reflected in the decision that will eventually be taken by the elected local authority.
My contention therefore is that, if there is to be consultation, then consultation, to be meaningful, must lead to a decision; and if that decision is taken by the local authority then that decision is one that should be carried out. Otherwise, it seems to be almost a meaningless process in relation to a properly elected authority. I put forward the arguments. Firstly, freedom of choice by the public would be denied if a decision taken by the local authority were not to be carried out. The public would have no way of expressing their view in a way that would lead to a decision. They could express their view to the health authority, to the local authority, to the water authority, yet, whatever they did, there would be no one who was bound to come before them again and have to stand at the next election.
I believe that this question of accountability does really lie at the heart of the matter. If I had my own way, I should prefer a local referendum in order that everyone could say whether their water should be fluoridated or not. We have to recognise that there are arguments on both sides. I recognise the arguments that have been put forward by the Fluoridation Society, by the dental profession, by the British Medical Association, and there is much evidence to show the tremendous advantage to the dental health of our people, of people getting the right amount of fluoride. But if we look at the other side we know that it is very expensive. The figures that have been brought to my attention suggest that the capital cost, if it were to be carried out throughout the country, would be about £150 million and that the operational costs to ensure that the fluoridation was effectively carried out throughout the country, if that were to be the decision of the water authorities, would be of the order of £20,500 million. Secondly, there is no way—
The Earl of Swinton: My Lords, if the noble Lord will give way, I think he is taxing the patience of the House a bit by speaking to an amendment that he says he is not going to move. I think that his own Chief Whip has advised him that this is perhaps not a very desirable procedure. Perhaps he will take a message from this side of the House that he is straying a bit.
Lord Ennals: I am sorry; I needed advice.
Lord Ponsonby of Shulbrede: I think the position is clear: if my noble friend Lord Ennals was not moving his amendment he should have spoken very briefly,
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but if he had moved his amendment it would have been quite in order for him to speak for as long as he did or for even longer. No doubt the noble Earl wishes to determine whether he is moving the amendment or not.
10.45 p.m.
Lord Ennals: I am advised that in order to proceed with my speech, which I wish to do, I must move my amendment. But I indicate that I shall not put it to the vote this evening. I shall put this or a similar amendment to the vote when we reach Third Reading.
I was arguing that there are cases to be considered against fluoridation. The expense is one that I am not going to be taking into consideration for the moment, but, on the question of the effect upon health, I have to say that there is no way of ensuring that the public, who use 340 litres of water per head per day, will ingest the appropriate amount of fluoride in water. After all, it is perfectly clear that very heavy drinkers, particularly of beer, who consume a very large amount of water, or for that matter those who drink a very large amount of tea, will ingest far more fluoride than those who are abstemious both in relation to beer and in relation to tea, so the public will get different amounts of fluoride ingested according to their own personal habits.
There is another factor. On Second Reading I argued the case for fluoride in milk and have had many letters from those who agree that this is an ideal way out. The alternative is a powerful argument in favour of leaving it to local authorities. Those local authorities who have responsibility for education could decide as between fluoride in water and fluoride in milk for children by free choice of their parents.
This is one of the results of the important decision that was taken by the EC. I quote from the Commission Regulation (EEC) No. 237/85 of 30th January 1985:
"Whereas Commission Regulation (EEC) No. 2167/83 established the list of products qualifying for Community aid; whereas experience has shown that it is appropriate, within the context of measures to protect the health of young children that, subject to certain conditions, the Member States should be able to permit the addition of fluoride to whole or semi-skimmed flavoured milk and yoghurts intended for schoolchildren".
That was a decision recently taken, and the same local authority could decide whether it was going to take advantage of the milk subsidy, which would enable children to have fluoride in milk at the choice of their parents, or whether the water should be fluoridated in the same area. It would not do both, because otherwise an excess of fluoride would be ingested by the public.
It has already been recognised in debates on earlier amendments that it would be unwise for too much fluoride to be taken. I have to admit that I sought to table an amendment on fluoride in milk for consideration at Report stage and that it was ruled as being outside the range of the Bill. But certainly it is very relevant, as I think all Members of the House would agree, to the amendment which I have moved.
I have already quoted the regulation concerned. I said that several letters had been received. Perhaps I may read a couple of paragraphs from one of them. This is from Sir William Richardson writing from Hastings. He said:

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"If the Government has any sense they would concentrate on children by restoring the former school milk scheme rather than forcing water fluoridation on a hostile public.
"Fluoridised milk would be included, but parents could decide whether their children took the fluoridised or plain milk, a right that is impossible with water fluoridation.
"The cost would be less than that of water fluoridation, and would be helped by sharing in the £50 million subsidy that the EEC are offering to member countries that will give a daily milk drink to children in schools. Fluoridised milk is included in the EEC subsidy."
Thus, an elected local authority could have an alternative. In addition to saying yes or no to fluoridated water, it could take the milk option, as giving freedom of choice. That surely is a principle which would be supported by this Government.
To conclude, your Lordships need not support my views on fluoride in milk. Those are views that I hold, but they are not necessary for this amendment to be a convincing one. The real issue is: should people be given a choice and should those who are responsible to the public be the people who are required to make the choice? They may then resist or support the pressure that is brought upon them by their constituents. In conclusion, my Lords, I wish to move my amendment and to hear the views that are expressed by your Lordships.
Lord Charteris of Amisfield: My Lords, I am not absolutely clear whether this amendment is being moved or not, but I should nonetheless like to express myself in complete agreement with what the noble Lord, Lord Ennals, has said about it. I start by congratulating the noble Baroness and thanking her for having, as one might say, come up with her amendment. I do not think it is good enough, though. A point that has not really been mentioned in the debate this evening is that putting fluoride in the water supply is a very serious matter, quite apart from the medical side, because it is being put in not to make the water wholesome and drinkable, but to medicate us. That is a matter which I think has been described, not without justice, as an infringement of the liberty of the individual.
Your Lordships may agree or disagree with this, but I think it is a real point and, because it is so important, surely there ought to be a bit of genuine, democratic consideration in it. Therefore I think that the noble Baroness's amendment is in its own way a bit of medication. But I am afraid it is really eyewash and I think we should put some bite and teeth into it so that the people who are to be forced—against their will perhaps—to drink fluoridated water will have a real opportunity to say whether or not they want to and, if they say they do not want to, they should be listened to.
Lord Moyne: I should like to express appreciation of the noble Baroness's amendment and to offer her thanks, since I was one who made written representations. It is a splendid amendment so far as it goes, but it does not define what is consultation, and uncertain law is the worst kind of law. If the following amendment, No. 9, is passed, that will make the position abundantly clear. Everybody will be satisfied and we need debate the matter no longer. I understand that the noble Lord, Lord Ennals, is not going to move his amendment now, but if—
Baroness Trumpington: My Lords, he has moved it.
Lord Moyne: Yes, my Lords, but regardless of that, I wonder whether between now and Third Reading the noble Baroness will adopt the principle of defining "consultation" by means of the affirmative resolution procedure. I hope she will accept the amendment; that is what I am asking. I can say no more than that.
Lord Sandys: My Lords, I should like to associate myself, as I have on the amendment, with the noble Lord, Lord Ennals, and I should like to start my remarks by thanking the noble Baroness. Lady Trumpington, for giving so much time to the redraft of Amendment No. 32 on Committee and now producing it in the form of Amendment No. 8 on Report.
One recognises, having been associated with some of these operations, the difficulty involved in drafting and the accommodations to be reached. But it is clear from the remarks made earlier by all my noble friends that there is one further pace to be taken—I think the noble Lord, Lord Ennals, has put his finger on it, as indeed my noble friend Lord Moyne has done—to enlarge the spirit of consultation into the fact of consultation in this Bill. No amount of assurances which the noble Baroness has given to us will be written into the Bill. The Act, on publication, will be bereft of these valuable assurances. It is only the words which your Lordships and another place actually write into this Bill that will be seen and used before the courts. So I feel that Amendment No. 9 will be a very valuable addition to Amendment No. 8. I do so for one particular reason. Perhaps my noble friend Lord Kinnoull will permit me to quote him on Committee, because this stood out to me in rereading through the proceedings on Committee, when he said, at col. 872, of Hansard on Thursday, 18th April:
"We are at a sensitive stage and the Government must realise that a high percentage of people distrust fluoridation, whatever the medical people say …",
and so on. It is a fact that there is a sense of uncertainty, distrust and outright opposition, and I think, in order to achieve all that the noble Baroness undoubtedly wishes—and I thank her for promoting all subsections of that clause including subsection (4), which she attributed to some of the pressures brought by myself and others—that it is very desirable to enlarge her amendment by the amendment of the noble Lord, Lord Ennals, if possible.
The Earl of Kinnoull: My Lords, before my noble friend replies to the noble Lord, Lord Ennals, I should first like to congratulate Lord Ennals on his amendment and also of course my noble friend on her amendment. I hope that the fact that the noble Lord, Lord Ennals, has moved his amendment, means there will not be some plot to try to annul the amendment and therefore frustrate it coming up to Third Reading, because I think it is very important that it should come up as it is such an important subject of this Bill. I know my noble friend would not advise any Members to do so.
I should like to congratulate my noble friend because she has gone some distance in arranging to publish, then to republish, then to serve a notice on

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each district local authority, and then to have a duty to consult each district local authority. Then, of course, as the noble Lord, Lord Ennals, said, we do not have the problem because all this appointed body has to do is to "have regard to" whatever representation has been made. I must admit I find that wholly unacceptable, and I therefore feel it really has to be improved upon, in a way that the amendment of the noble Lord, Lord Ennals, will do.
There is another factor which really came up in a previous amendment, when we were talking about reviewing every five years. There is no provision in my noble friend's amendment—the Government's amendment—to consider how local authorities are consulted over a review period. It is terribly indefinite and I hope that on Third Reading we can perhaps improve that as well. Finally, I support very deeply the efforts that my noble friend has made and the amendment of the noble Lord, Lord Ennals.
11 p.m.
Lord Houghton of Sowerby: My Lords, I agree with noble Lords who have already spoken that we must get a little more democracy into this Bill. I join other noble Lords in congratulating the noble Baroness on having succeeded in getting rather more than there was. I must say, however, that it is an indication of the state of the Government if the noble Baroness had to fight with them to get more democracy into this Bill, which the Opposition in another place failed to get. It shows that at times your Lordships perhaps carry rather more weight with the Government than the Opposition in another place, because we are the only Chamber in which the Government can be defeated.
However, I embarrass the noble Baroness—cross as I have been with her—by saying that I am glad she made this attempt with this measure of success, and I hope that nothing that we say now will diminish her own self-esteem, if I may say so, in this matter, and ours too. There must be some long-stop somewhere in the field, where bureaucracy and authority can hold sway under this Bill. I deplore the fact that gradually the electors in the various local authorities and communities have had taken away their democratic right to decide on this matter. They have now been regarded as incompetent to decide for themselves. It must be left to health authorities, with emphasis on the authority, and we know how health authorities are composed. They are largely selected by the Government of the day for a term of office but with some measure of representation from elected bodies.
I had it in mind at one stage, and I have not entirely given up the idea to move an amendment to double the representation of local authorities on the health authorities when they are taking a decision on this matter, in order to reinforce the democratic element in this question. I did not understand why my noble friend Lord Ennals had not moved his amendment, or why he should not. We are not in Committee. We are on Report and the amendments, as I understand it, are being taken in the order in which they are on the Marshalled List. If the House decides to adopt one of these amendments, that will amend Amendment No.
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8 and Amendment No. 8, as amended, will then be put to the House. That is how I understand the procedure. So I do not think we need to get into a procedural muddle now as to whether or not we are moving things. I think that we are.
Although I am not making any threats on the matter, it is open to the House to decide on any of these amendments, because the noble Baroness's Amendment No. 8 is virtually the substantive Motion before the House at the moment. I would link the proposal in Amendment No. 9 with subsection (2) in my Amendment No. 11, which is another reinforcement that consultations under Amendment No. 9 should produce in each case an affirmative response from the local authorities concerned. I take it in my amendment just that little bit further and say that the response must be that of a decision of the whole council. That reinforces the democratic principle just that little more and I hope that the two things may be related in deciding what we are going to do. I feel that the Government should go the whole hog in meeting reasonable claims to influence public opinion on what the relative authorities are going to do. They have no power of veto any more and no power to displace the health authority if they do not agree with what it does.
It is very important to avoid any suggestion that this consultation is a sham. We know how much consultation is regarded as a sham in public life today. Few people attach importance to consultation because they feel that you are consulted but that the decision has already been taken before they ask you. In many instances it is probably literally true that consultation is a motion to be gone through. Here we want to give it reality. If the Government want the goodwill of all those who have been opposing this Bill—and there are many outside the House who oppose it—if they want to restore some confidence in what they are doing, they should have regard to the desire of those who oppose fluoridation to have the opportunity to make their views known to the health authority in a manner which they will understand and take notice of. That is implicit in my noble friend's amendment. I hope that we can get some favourable response on this from the Front Bench opposite.
In conclusion, one of the features about work in your Lordships' House is the inflexibility of the Government Front Bench. Whether those noble Lords and noble Baronesses who hold office lack the authority to come to terms with the House I do not know, but I get the impression, having spent 25 years in another place, that you can get sense out of the Front Bench of the Government when you are in Opposition. We did it for 13 years in Opposition. If we had not been able to do that in 13 years in Opposition, there would have been a revolution. Here in this House we have the briefs read out to us. The inflexibility of the Government's stance is made clear because it is all written down; the formula is the same every time. One wonders whether one is speaking to disembodied ministerial voices or to real people.
I feel very strongly that something has to be done to liven up the proceedings in your Lordships' House on matters of this kind. We must be more alert to the importance of the business we are doing and not put up with the complacency and the false courtesies of the

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last generation. Let us get to grips with some of these things and deal with them in a franker way. Let us have some overtures from the Government side to get the co-operation of the Opposition by meeting their wishes and not by exchanges of courtesies.
Lord Burton: My Lords, so far as it goes, I, too, should like to welcome the amendment of my noble friend Lady Trumpington, if I may call her "my noble friend" this evening, having consistently voted against her. However, the noble Baroness rejected a short time ago the proposal that health boards should reconsider the matter every five years. As I read it—I hope I am wrong—if an authority is fluoridating at the moment, it looks as though there will be no opportunity for the public to be consulted. This amendment instructs the authority to consult. But if they are already fluoridating, I cannot see that the public in that area will be consulted at all. Perhaps I am wrong; I hope so. If not, perhaps my noble friend will manage to put it right on Third Reading. However, bearing in mind that the Government are trying to save public expenditure, I really find the proceedings in regard to this Bill amazing. As the noble Lord, Lord Ennals, said in comparing fluoridating water and fluoridating milk, this will cause very considerable additional expenditure. It seems to be largely wasted expenditure, as far as I can see. It might just as well go into milk and save a great deal of money.
Baroness Gardner of Parkes: My Lords, although the debate seems to have ranged over Amendment No. 8, which I welcome, we are actually debating Amendment No. 9 moved by the noble Lord, Lord Ennals, as an amendment to Amendment No. 8. His speech was very lengthy and ranged over all sorts of arguments about beer and tea, without going on to make the point that however much beer or tea one drinks, the concentration of one part per million means that one would need to have an almost inhuman, impossible capacity for drinks to be able to reach a danger level. That point was not mentioned.
The noble Lord's amendment as set out on the Marshalled List would produce a situation where local authorities could dictate to the health authorities and those authorities would have the right to a decision taken away from them. The amendment states that the health authority, in consultation with the water authority,
"shall only proceed with the proposal if the consultations produce in each case an affirmative response".
That is surely giving the veto which the noble Lord, Lord Houghton, said did not exist. He said that the local authorities had no right of veto. But surely the amendment to the amendment would give them exactly that—a right to veto.
That would be very wrong. I believe that health decisions should be made by health authorities and not by local authorities. The noble Lord, Lord Houghton, spoke about health decisions made by local authorities in the past; indeed they were. I was chairman of a local authority health committee, but that was prior to the formation of area health authorities and now district health authorities. Under the restructuring of the Health Service what was
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formally the local authority element of health has been transferred to those other bodies.
There is really quite good representation of local authority interests on district health authorities. I did not speak earlier because I know we are all rather tired and do not want to continue for too long, but on many of these points this evening I could have risen to my feet to say that the community health councils receive every paper from every district health authority meeting long before the health authority meetings. I am sure that the noble Lord, Lord Ennals, knows this very well. There is no reason whatsoever for the public not being informed through the community health authority, because every community health authority includes someone who is anti-fluoride. I cannot accept the points which have been made.
The noble Lord, Lord Charteris, commented that fluoridation was meant to medicate us. I do not accept that view. He cannot claim one moment that fluoridation is medication and then claim the next moment that it is not right that health authorities should deal with it. If his argument is that fluoridation is medication, surely health authorities above all are the people to deal with it.
To introduce in this amendment a veto on the part of local authorities would be very wrong. That would be to underestimate the intelligence and integrity of district health authorities and of health authorities in general. I myself have experience of health authorities. I clearly remember a paper coming to one area health authority that is now a district authority, concerning the closure of a particular obstetrics department. That paper went out for consultation and as a result the unit was not closed; an entirely different unit was closed. Great attention was paid to public consultation in that case.
I believe that people are becoming a little jaded in their ideas when they say that there is no real interest and that no one listens to public consultation. If people really believe that, why are they pressing for these amendments to the Bill? It is because we believe in public consultation and believe that it is effective that it is being included in the Bill's provisions.
The noble Lord, Lord Houghton, says that we should be more alert, but we are all pretty alert for 11.15 at night. Personally I am strongly opposed to this amendment. My final comment concerns the words, "in each case". This means that if a health authority comes under two or possibly even three different district councils, each one of those district councils would have to give an affirmative reponse. So any one of those three councils could thwart the wishes of the other two. Amendment No. 9 is at fault technically, as well as in its general principles. I certainly oppose it.
11.15 p.m.
Baroness Trumpington: My Lords, I hope your Lordships still have a sense of humour at this time of night because I am afraid that I have to start with an apology. It is most extraordinary that when I was going through all my notes and words of so-called wisdom I noticed a mistake in the typing. It was, I thought, taken out; but in the stress of combat this evening it went in. It is ridiculous and I not only have to put Hansard

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right but tell your Lordships that when I was discussing subsection (7) of the new clause, which fully met the purpose of the amendment in the name of the noble Lord, Lord Ennals, and the noble Lord, Lord Prys-Davies, by obliging health authorities to meet in public to consider fluoridation, I said "when" public disorder prevents this and it should have been "unless". I apologise, but I must get the record right and it is quite a "funny".
In reply to one of the questions put by the noble Lord, Lord Ennals, the local authority has the opportunity under the new clause to take a decision on fluoridation and to communicate it to the health authority. The health authority is not obliged to follow the decision of the local authority. How the local authority reaches its decision is a matter for the local authority to decide.
I shall now refer to Amendment No. 9, moved by the noble Lord, Lord Ennals. The effect of the amendment is very similar to the amendment moved by my noble friend Lord Sandys in Committee. The amendment seeks to allow fluoridation to proceed only with the agreement of local authorities in the areas concerned. As I trust will be evident from the Government's new clause on consultation, the Government have bent over backwards, as I promised in Committee, to accommodate the views of those who feel that elected local authorities should be consulted by health authorities before any decision is taken to implement water fluoridation. Indeed, in subsection (3) of the new clause we have introduced just such a statutory obligation.
The amendment before us is, however, a different proposition. For the first time a health authority would be allowed to exercise its statutory responsibility for the introduction of preventive health measures only with the agreement of local councils. This is clearly constitutionally wholly improper given that local authorities no longer have any statutory responsibility in this area. Indeed, as the noble Baroness, Lady Fisher of Rednal, pointed out in an earlier debate, they no longer have any access to the appropriate medical and dental expertise. In addition, it should be remembered that the cost of fluoridation is borne by the health authority and not by the local authority. Under the noble Lord's amendment the local authority would be able to prevent a health authority from spending its own money on fluoridation and would also, in fact, be albe to prevent a health authority ending funding for an existing fluoridation scheme.
I know of the keen interest of the noble Lord, Lord Ennals, in the Borrow dental milk foundation, which is a charity that does very good work. The Government's view on fluoridated milk is that water fluoridation has significant advantages over all other methods of fluoride supplementation, including fluoridated milk. It reaches everyone in a given community and is not dependent on a high level of parental or personal motivation. Moreover, water fluoridation confers a benefit on the developing teeth of children, as we all know, all the time they are being formed, from the ages that I have mentioned previously.
Our view is that the supply of fluoridated milk to children in schools would be a less effective and
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therefore less desirable measure than either water fluoridation or, where this is either not feasible or not acceptable to local opinion, the use of other methods of fluoride supplementation such as fluoride tablets. This is because of a number of drawbacks particularly associated with fluoridated milk; namely, there is no certainty that the milk would be drunk by the intended recipient or in the desired quantity.
There would be significant difficulties of distribution during the school holidays and the fluoride would not begin to be received early enough by the children. Also, there would be likely to be consumer resistance to the product on the part of older children who may grow less fond of milk in general and of parents who are likely to prefer their children to drink fresh milk rather than UHT fluoridated, flavoured and marketed by the Borrow foundation. Local authorities in areas without water fluoridation may, however, wish to supply fluoridated milk to their schoolchildren. The supply of school milk in general is entirely a matter for them and the Government would not wish to intervene. The EC has agreed that dental milk should qualify for the same subsidy as non-fluoridated milk. It is not giving preference to fluoridated milk over non-fluoridated water.
I am grateful for the bitter-sweet remarks of the noble Lord, Lord Charteris. I am afraid that we must agree to disagree. In reply to the noble Lord, Lord Moyne, there is no requirement to define consultation in the Bill. The term appears frequently in the statute without any such definition. In layman's terms, the expression means simply to take the views of a person or body. I was grateful to the noble Lord, Lord Houghton, for his kind remarks, as far as they went.
In conclusion, I must repeat what I said on the earlier parallel amendment by the noble Lord, Lord Sandys, at the Committee stage. It is clearly wrong that the final decision on fluoridation should rest other than with those bodies which have the statutory responsibility for carrying out the functions inherent in fluoridation. Bodies, whether elected or not, which have no responsibility for either preventive health measures or the provision of the water supply should not have the right of veto over water fluoridation. This principle was clearly accepted by your Lordships at Committee stage. The new clause does not provide for consultation on continuance of existing schemes. This is because consultation took place on such schemes when they were initiated and often decisions were taken by elected local authorities. With those words, I would urge your Lordships to reject this amendment, if it is not withdrawn.
Lord Ennals: My Lords, I have listened with great care to the noble Baroness. I trust that she will not only listen, as she has, but that she will read in Hansard tomorrow the words of wisdom not only of the mover of the amendment but of those who supported the amendment. She has already proved, by the new clause that she has tabled, her willingness to be converted by great wisdom. In this hopeful and charitable mood, and in the hope that the noble Baroness will not only read and listen but learn from what has been said in this exchange, I shall now withdraw this amendment. However, unless the

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Government are able to make some change I shall return to the issue on Third Reading.
Amendment, by leave, withdrawn.
Lord Monson Lord Monson moved, as an amendment to Amendment No. 8, Amendment No. 10:
Subsection (5), line 3, leave out ("such regard as they consider appropriate") and insert ("regard").
The noble Lord said: My Lords, this amendment is not as ambitious or far-reaching as the amendment which has just been withdrawn, but I should like to think it is important and potentially useful nevertheless.
The noble Baroness has told us on two or three occasions this evening that she has leant over backwards in the new clause contained in her Amendment No. 8 to accommodate the views of those of us who want greater democratic control over the issue of fluoridation. I entirely accept that she has done her best, and we are very grateful to her for doing so. But unfortunately it is evident that she has been working under very tight constraints and has been given relatively little latitude. The concessions made since the abortive Government amendment, Amendment No. 32, tabled at the Committee stage are, I am afraid, all too few, and I am afraid also that I cannot join in the general words of welcome given by other noble Lords to the new clause.
We have been granted two minor concessions, so far as I can see. The first is the suggestion that publication of the relative proposals be made on two separate occasions rather than on only one. That is a welcome but fairly trivial concession. I suspect also that it is a somewhat inadequate one. Many of us feel that publication on at least three separate and well spaced occasions is the minimum acceptable. Then we come to the other concession, if such it be—namely, that health authorities are obliged to notify local authorities as well as the public at large of their proposals. Surely any local authority whose members were neither senile nor illiterate would have got to hear about the proposals in any case.
I am sorry to be so disparaging about the concessions, but so far as I can interpret them they are not concessions of any real substance. Almost the chief defect of the new clause is that it only obliges health authorities to:
"have such regard as they consider appropriate … to … representations … made",
to them. That means in effect that they need have no regard to representations if they feel that they are, for example, intellectually ill-founded.
My amendment, Amendment No. 9, to the Government amendment, would simply oblige health authorities to have regard to the overall tenor of all representations received. It would not, I need hardly say, oblige them to act in total conformity with those representations. They could still decide to override them in the last resort; but it would oblige them to take the representations a little more seriously than would be the case if the new clause were left unaltered. I beg to move.
Lord Sandys: My Lords, I should like to support the noble Lord, Lord Monson, in this amendment. At the
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Committee stage I cited a particular case at col. 819 of Hansard, where the Severn-Trent Water Authority rejected entirely the views of parish councils, district councils and county councils. I think that a particular instance like that shows the need for strengthening this part of the clause. It would seem to me desirable to move the words as set out in the amendment and retain those parts which give a very clear instruction to have regard.
There must be a very large number of instances in which health authorities have set aside public opinion. There may equally be occasions when health authorities have taken it into consideration. But to strengthen the clause in the Bill to ensure in the clearest terms that the health authority must have regard is a way to make the law clearer and to establish a principle which is quite unequivocal.
Baroness Trumpington: My Lords, I must stress that the words in subsection (5) of our new clause on consultation, which this amendment seeks to delete, have been inserted for a specific purpose. That purpose is to ensure that health authorities are free to judge the representations made to them on their merits and not simply according to the volume of voices in favour of a particular standpoint, whether for or against fluoridation.
The Government will certainly expect health authorities to take seriously the views of local authorities in England and Wales but at the end of the day they cannot be decisive. This is simply because, as we have repeatedly explained, these local authorities possess neither responsibility not expertise in the field of preventive health measures or the provision of the public water supply. The views of local authorities will represent an important test of public opinion. But they will not be the only such test, as health authorities will have also to consider the views of community health councils, which have been appointed by Parliament to represent consumer opinion in health service matters, as well as the results of local representations by other local bodies and individuals.
I hope that what I have said will be sufficient to persuade the noble Lord, Lord Monson, to withdraw his amendment. If not, I regret that I shall have to ask your Lordships to reject it as, in our view, its acceptance would be contrary to rational and responsible decision-taking by health authorities on fluoridation.
11.30 p.m.
Lord Monson: My Lords, the noble Baroness has put me in something of a dilemma. It seems that we are getting further and further away from democratic control over the whole issue. To say that local authorities have no expertise in medical matters may well be true; but we are talking about issues other than purely medical ones, are we not? It is a difficult point. It seems to me that my amendment, if accepted would not oblige health authorities to act against their better judgment. They would have merely to pay rather more attention to representations made, from whatever quarter, than would otherwise be the case. Perhaps it is a matter of fine legal definition and a matter of

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drafting. My original impulse was to put this matter to the test. However, in the absence of support from any other quarter of the House than from the noble Lord, Lord Sandys, for whose support I am very grateful, I beg leave to withdraw this amendment for the time being.
Amendment, by leave, withdrawn.
On Question, Amendment No. 8 agreed to.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 11:
After Clause 3, insert the following new clause:
("Consultation.
.—(1) A Health authority shall be under a duty to consult the appropriate District Council or Councils in relation to the making or withdrawing of any applications under section 1(1) of this Act.
(2) The advice to be given by the local authorities so consulted shall be decided by resolution of the whole Council.").
The noble Lord said: I need not keep the House more than a minute or two on this. Subsection (2) of Amendment No. 11 is the material proposal. If your Lordships look at subsection (3) of Amendment No. 8, you will see that it says:
"Before implementing the proposal the health authority shall consult each of the local authorities … to whom they are required by subsection (2)(b) above",
etc. It says,
"shall consult each of the local authorities".
I want this to be something quite specific, a kind of statutory resolution by the councils concerned. This is a formal consultation under Act of Parliament to take a step which they are authorised to take by Act of Parliament. We want to ensure that it is not just a letter from one official to another official, or a decision of a general purposes committee, or whatever. We should require the councils to take a decision to the full council. I do not think that is unreasonable.
If I may anticipate something the noble Baroness may say, it is not sufficient to leave it to the councils. Anybody with experience of councils knows how sloppy some of them are. Perhaps I may say that some are rather more than sloppy. Anybody who happened to be on a Royal Commission for as long as I was, to go into standards of public life, would know what some authorities were like. Therefore, I think there should be no hesitation in laying down the law about a resolution of the whole council.
My Lords, I beg to move Amendment No. 11.
Baroness Trumpington: My Lords, at the outset I should like to say that I welcome in principle the amendment of the noble Lord, Lord Houghton, in relation to the proposals on consultation and publicity, which are very similar to my own proposals, although I hope to persuade the noble Lord to withdraw his new clause in favour of mine. I should like to put on record my personal satisfaction that it has been possible to achieve so much common ground, be it never so late.
In the Government's view, there are some minor sins of commission, together with some sins of omission, in the amendment of the noble Lord, Lord Houghton of Sowerby, which lead me to recommend to the House to prefer the new clause which stands in my name. The first sin of commission, if I may so call
736
it, lies in subsection (2) of the new clause on consultation which is in our view unnecessary. The Government see no reason to lay down in statute how local authorities should arrive at their advice to health authorities; this is a matter which should be left to them to decide. Secondly, we see no reason to stipulate, as in subsection (2) of the new clause on publicity, that health authorities should publish details of the proposal:
"in such form and manner as may attain the highest degree of comprehension by consumers",
simply because in our view such a phrase could not constitute a satisfactory legal test. I may say that the noble Lord may be less keen on pressing this point when I tell him that experience suggests that for health authorities successfully to campaign for fluoridation in any case requires them to adopt a high publicity profile.
Turning to sins of omission, I hope the noble Lord, Lord Houghton, will accept that our clause has certain useful additional provisions not contained in his clauses. First, we provide in subsection (2)(b) for both district and county councils to be consulted on fluoridation. Secondly, we provide in subsection (4) for health authorities to republish their newspaper notification of their plans for fluoridation. Thirdly, in subsection (6) we provide for the wholly hypothetical situation where fluoridation has to be immediately withdrawn. Finally, in subsection (7) we cover the point raised earlier.
I am sure that the noble Lord, Lord Houghton, and your Lordships generally will agree that these are worthwhile provisions, and I hope that the noble Lord, Lord Houghton, will feel able to withdraw his alternative clauses, recognising the extent to which his views have been taken into account.
The Earl of Kinnoull: My Lords, before the noble Lord, Lord Houghton, replies, may I point out that I believe he was speaking only to Amendment No. 11 and not to Amendment No. 12, which deals with publicity, but I may be incorrect in saying that.
Lord Houghton of Sowerby: My Lords, I did not hear that.
The Earl of Kinnoull: My Lords, I think that the noble Lord is moving only Amendment No. 11 and not speaking to Amendment No. 12 about publicity, but I may be wrong. My noble friend replied to Amendment No. 12 as though the noble Lord had moved it.
Before the noble Lord replies, perhaps I may ask my noble friend the Minister a question which I should have asked her earlier, to which I am sure she will give a very quick reply. In her new clause on consultation she talks about the health authority notifying local councils in England and Wales and I am not at all sure—and I do not think this has been raised this evening—why that does not also cover Scotland. In Scotland we have district councils as well. Can my noble friend reply to that question?
Lord Houghton of Sowerby: My Lords, I shall beg leave to withdraw my amendment and I shall consider

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what has been said. However, if I may say so with great respect, I wish the Government would introduce a different form of words into their technique of rejection. Why is it that the Government always see "no reason"? Where do they get that from? They may not see sufficient reason, but I cannot understand why, when we make a proposal which has some merit, the Government see "no reason". However, I shall let that pass for the sake of goodwill at this time of night, and beg leave to withdraw the amendment. I shall consider what else to do at a later stage. I should like to get on to Amendment No. 12, which is perhaps a rather more important amendment.
Amendment, by leave, withdrawn.
Lord Houghton of Sowerby Lord Houghton of Sowerby moved Amendment No. 12:
After Clause 3, insert the following new clause:
("Publicity
.—(1) This section applies where a health authority propose—

(a) to make or withdraw an application; or

(b) to terminate a scheme which may be operated by virtue of section 3 of this Act (a "preserved scheme").

(2) At least three months before implementing their proposal the health authority shall publish details of the proposal in such form and manner as may attain the highest degree of comprehension by consumers in one or more newspapers circulating within the area affected by the proposal.").
The noble Lord said: My Lords, the material point lies in the second subsection, which is the only change from the formula in Amendment No. 8. This is prompted by very hitter experience of statutory notices by local authorities which have been just about as uninformative and as stupid as anyone could imagine.
I shall never forget the enormous local controversy and the terrific expense involving a Select Committee of your Lordship's House in connection with the notorious case of the Burnley dogs. What happened was that the local authority passed a motion at a council meeting to make application to the Home Secretary for power to exercise certain rights under a provision in the Burnley Corporation Act 1876. The local authority published a statutory notice. They said that any representations that the public wished to make should be sent in by a certain date. They got three letters. The proposition was to ban dogs from all public parks in Burnley.
The Home Office queried this. But no, they went on. When they posted the statutory notices on the park gates, in no time they had a "demo" of 3,000 people with dogs. From then on there was a long-drawn-out battle between the dogs and the people and the parks. It lead to High Court proceedings, dog protection societies sprang up, and there were unlawful acts of breaching the prohibition which lead to prosecutions. It was an awful mess. Indeed, it was the Select Committee of your Lordships' House that got Burnley out of that mess by a compromise solution which was proposed by the Select Committee. It was something awful, and merely because the local authority had no more nous than to put up a statutory notice which merely referred to a section of an Act of Parliament passed in 1876.
I do not say that that sort of nonsense would ever be repeated elsewhere. It took place a number of years ago and I think all authorities have been improving their public relations since then. I hope so. But what I want is that what they put out shall convey to the reader exactly what it is about. I propose that the details shall be published
"in such form and manner as may attain the highest degree of comprehension by consumers in one or more newspapers circulating",
and that is already in the formula in Amendment No. 8. The effective provision is:
"in such form and manner as may attain the highest degree of comprehension by consumers".
I hope to God that the Government are not going to say that they see no reason why consumers should have it put to them in a comprehensible way; that they will get it anyhow; and that anyway there will be enough rumpus locally to give them all a clue that there is something doing that they ought to object to. No; let us have a little imagination for once.
The public do not pick up these things from the casual announcements in newspapers, unless newspapers wish to make an issue of it themselves. The curious thing was that in Burnley the newspapers did not make an issue of it until there was a protest, and until the dogs and the people were on the streets. Although this is not a typical case it is one that sticks in my mind so much that we must ensure that local authorities put it across—that is what we want—so that people know what is in the offing. They can then stimulate whatever activities they want to get their point of view put to the local authorities and to the health authority. May we at this hour just have a gesture of understanding from the Front Bench opposite to say that this is a good idea, and at least good enough to be accepted?
Baroness Trumpington: My Lords, I must apologise that I took the clause on publicity with the clause on consultation, so I have already spoken to that. This gives me the opportunity to answer my noble friend who asked me why the Scottish health boards are not required to consult their local councils. The purpose of subsection (2)(b) is to allow elected local authorities to be consulted before the final decision is taken by health authorities and statutory water undertakers in England and Wales. No such provision is needed for Scotland as the final decision there will rest with water authorities, which are the elected regional and island councils.
Lord Houghton of Sowerby: My Lords, did I get a reply, or just a comment?
Baroness Trumpington: My Lords, I think the noble Lord has had his chips.
Lord Houghton of Sowerby: My Lords, I may not have heard perfectly all that the noble Baroness said, but in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Interpretation, etc.]:
Baroness Trumpington Baroness Trumpington moved Amendment No. 13:
page 3, line 31, after ("1978)") insert—
(" "local authority" means the council of a county or district, the council of a London borough or the Common Council of the City of London;")
The noble Baroness said: My Lords, this is a technical amendment to add "local authority" to the list of definitions which is required by the Government's new clause on consultation. I beg to move.
On Question, amendment agreed to.
Lord Monson Lord Monson had given notice of his intention to move Amendment No. 14:
After Clause 4, insert the following new clause:
("Duration.
.—At the end of the period of two years beginning with the day on which this Act comes into force all regulations, resolutions and instructions issued pursuant to this Act shall expire unless they are continued in force by a resolution of each House of Parliament.")
The noble Lord said: My Lords, in view of the lateness of the hour I do not propose to move this amendment tonight, but I reserve the right to do so at the next stage.
[Amendment No. 14 not moved.]
Lord Sandys Lord Sandys had given notice of his intention to move Amendment No. 15:
After Clause 5, insert the following schedule:
("Health Risks.
Any person with the following medical condition may suffer additional harm to their health if they consume water to which fluoride has been added in a concentration of one milligram per litre:—

(a) Diseases of the kidneys;

(b) Allergic reactions;

(c) Diabetes;

(d) Diseases of the thyroid gland;

(e) Arthritis;

(f) Heart diseases,

and any other condition which the Secretary of State may by order authorise to be added to the above list.")
The noble Lord said: My Lords, this schedule was spoken to with Amendment No. 4. In view of the fact that Amendment No. 4 was negatived, this schedule therefore is left in a very unfortunate condition and I do not propose to move the amendment.
[Amendment No. 15 not moved.]

Family Law (Scotland) Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments ordered to be printed.
House adjourned at thirteen minutes before midnight.