Lords Sitting of 8 April 1986

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

Coolscar Limestone Quarry, Yorkshire Dales
Lord Hunt: 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 are yet in a position to make a statement about the application of Eskett Quarries Ltd. to extend their operations in Coolscar Limestone Quarry, in the Yorkshire Dales National Park.
The Minister of State, Department of the Environment (Lord Elton): My Lords, my right honourable friend the Secretary of State for the Environment is urgently considering the applications by Eskett Quarries Ltd. and hopes to come to a decision shortly.
Lord Hunt: My Lords, I am grateful to the noble Lord for that Answer. Does he recall that when I raised this Question with him four and a half months ago, on 28th November last year, he assured me then:
"the decision should be made very soon"—[Official Report, col. 971.]?
As it is now more than eight months since the inquiry into that matter was concluded, can the noble Lord tell the House what further considerations have arisen to delay so long a decision by his right honourable friend?
Lord Elton: My Lords, this is a sensitive and very complex case. I have to say to the noble Lord that I do expect a decision to emerge—I am tempted to use the words "very soon", but they are identical to the words I used in November, and I wish to convey a greater sense of immediacy than that.
Lord Molson: My Lords, can my noble friend say whether, as I hope is the case, under planning legislation it is possible to take into account the quality of the limestone, so that limestone that is valuable for industrial purposes is not indiscriminately used simply as ballast for roads or for railways?
Lord Elton: My Lords, the quality of the limestone is certainly relevant to the case.

Holiday Resort Beaches: Pollution
2.39 p.m.
Lord Campbell of Croy: 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 are satisfied that beaches used by holidaymakers at resorts in the United Kingdom are free from pollution.
Lord Elton: My Lords, about half the United Kingdom bathing waters meet the exacting standards set out in the EC bathing waters directive. Some £200 million has been spent on relevant schemes in the last five years and the authorities plan to spend about £150 million more in the next five years. A survey is being made of more than 350 of the most popular bathing waters in the United Kingdom. That will be published and will provide a basis for planning any necessary further actions.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that reply, which is reassuring to some extent. However, why are only 27 of our beaches (which is considerably less than half) designated as being free from pollution in accordance with the EC criteria? And apparently none of them is in Scotland. Can the Government dispel the impression that the other beaches are below standard or are unsafe, because they surely cannot be worse than some of the beaches in the Mediterranean, which is a closed sea?
Lord Elton: My Lords, as to the first of my noble friend's supplementary questions, the directive does not set out precise criteria for the indication of beaches. It was considered appropriate to base selection on the use of bathing water rather than the use of the adjacent beach. Most bathing waters are relatively lightly used compared with the use made of beaches. As to the other beaches, I am advised that even where the waters do not meet the standards there is no health risk. Many schemes to bring about further improvements are nonetheless in progress.
Lord Cledwyn of Penrhos: My Lords, is the noble Lord aware that the beaches on the west coast of Wales are in a disgraceful state? I saw them for myself over the Easter Recess. The noble Lord told us of a very large sum of money that is being spent in various ways, and there is a further £150 million to come. Can he say how that money is being spent; through which agencies it is being spent; and precisely on what it is being spent? Can he further say whether the places that are now vacant on the Lancashire and Western Sea Fisheries Committee following the dismantling of the metropolitan authorities have been filled by the successor district councils?
Lord Elton: My Lords, as to the noble Lord's first supplementary question, I was not aware until he told me that the beaches of West Wales were in a disgraceful condition. The European directive is concerned with the biological state of the water in which the swimmers swim and not with the aesthetic condition of the beaches above the bathing line, if I may so phrase it. The money is being expended through the agencies of the authorities responsible for the quality, among other things, of outfall waters.
The joint committee to which the noble Lord referred was funded in part by two of the metropolitan county councils; namely, Greater Manchester and Merseyside. He is correct in his belief that a great

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number of the districts in Greater Manchester and in Merseyside do not feel that the condition of fisheries on the west coast is their direct concern. Therefore, they have decided not to continue with the funding. That is of course a decision for them.
Lord Winstanley: My Lords, the noble Lord will recollect that I put questions to him on this specific matter in a debate in your Lordships' House very recently. Is he yet in a position to say whether the Government will now take over the very important role of monitoring coastal pollution in an area from Cardigan Bay to St. Bees Head, which includes discharges from Sellafield and which was formerly being undertaken by the body to which he has just referred?
Lord Elton: My Lords, I respectfully remind the noble Lord that the Question is about beaches used by holidaymakers at resorts in the United Kingdom, whereas the joint committee is a committee examining the quality of water and its effect on fish and shellfish, which is a different matter.
Lord Inglewood: My Lords, may I ask my noble friend to ensure that the beaches at West Cumberland are made as clear of pollution as is possible because of the very special risks there from pollution from Sellafield and surrounding works? There is considerable anxiety in that neighbourhood and I should like to feel that people are free from anxiety as well as from the actual pollution.
Lord Elton: My Lords, the Government are aware of and, or course, share the concern about the Sellafield question. My noble friend will be aware of the vigorous steps we have already taken on that matter.
Lord Underhill: My Lords, is not the reply that the noble Lord gave to my noble friend Lord Cledwyn one of great concern? Is not this a matter of seriousness that arises from the abolition of the metropolitan county councils? Do not the Government have some responsibility to do something about it?
Lord Elton: My Lords, the facts are as I stated. The decision rests with the districts, as I stated that it did, and they have taken it in the sense in which I said that they had. My understanding is—and I have to say that I would need to take advice on the detail—that the staff of the joint committee is likely to be reduced but that the work will not cease.
Lord Campbell of Croy: My Lords, can my noble friend confirm that for the large majority of United Kingdom beaches it is sewage that is the polluting substance which is being assessed and not radioactivity from man-made sources, which is infinitesimal in comparison?
Lord Elton: My Lords, my noble friend is perfectly right. I should like to repeat the assurance I gave earlier that the quality of bathing water polluted by sewage does not become a health hazard until it becomes such aesthetically that one would not wish to take the risk anyway.
Lord Northfield: My Lords, can the noble Lord say just when, approximately, we shall be able to meet the EC quality objectives on most of our beaches? The noble Lord gave the money which is to be spent, but how long will it take to clear up the rest of them?
Lord Elton: My Lords, I think it will take a considerable time. I cannot be more precise than that.
Lord Ezra: My Lords, will the noble Lord indicate what the Government are doing about the report of the Keep Britain Tidy group on the deposition of litter at sea and the consequent littering of beaches? Is the noble Lord aware that this report was referred to with some concern in the last report of the Royal Commission on Environmental Pollution?
Lord Elton: My Lords, I am grateful to the noble Lord for drawing attention to the valuable work of Keep Britain Tidy. I have to say that the clearance of litter from beaches is, of course, the responsibility of the local district councils.

Criminal Injuries Compensation Board: Workload
2.46 p.m.
Lord Taylor of Blackburn: 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 are aware of the number of outstanding cases awaiting payment from the Criminal Injuries Compensation Board and what action they are taking to improve the position.
The Parliamentary Under-Secretary of State, Home Office (Lord Glenarthur): My Lords, we monitor continuously the workload of the Criminal Injuries Compensation Board, including the number of outstanding cases. At the end of 1985 there were some 48,000 applications at varying stages of resolution. The financial provision for the board in 1986–87 allows for an increase in staff and in compensation, which will help the situation, and we are assessing the appropriate provision for 1987–88 and future years.
Lord Taylor of Blackburn: My Lords, while being grateful for the Answer that the Minister has given to the House, I should also be very grateful if he could speed up the process still further. Is the noble Lord aware that there are a number of cases that have been going on for some time? I am sure it gives the Minister concern, as well as all Members of this House.
Lord Glenarthur: My Lords, about 75 per cent. of the cases are resolved in a year or so, but the rising volume of applications to the board over a number of years has substantially increased the board's workload. However, this is a matter which is continually kept under review, as I indicated in the original Answer.
Lord Allen of Abbeydale: My Lords, is it the practice to make interim payments if the final conclusion is likely to take some time?
Lord Glenarthur: My Lords, in some cases, yes, interim payments are awarded.
Lord Elwyn-Jones: My Lords, can the noble Lord say how many outstanding cases awaiting payment now exist? Is not shortage of staff a relevant factor?
Lord Glenarthur: My Lords, the number of applications received in 1985 was 38,000. That was higher than in any previous year and 4,100 more than in 1984. The number of cases in progress, therefore, has increased by nearly 8,000, so the number actually in delay at various stages is about 48,000.
Lord Mishcon: My Lords, is the noble Lord the Minister aware of the report of the compensation board for the year 1984–85, which I believe was published in December 1985? It includes the following two sentences. The first reads:
"In the past 10 years the number of applications received by the Board has increased by 145 per cent. without any corresponding increase in staff."
The second sentence reads:
"In the Board's view it is essential that early action should be taken not only to redress the balance but also to provide sufficient resources to match the inevitable increase in demand in future years."
Having regard to the Minister's statement that monitoring is continuous by his Ministry, can he kindly tell the House what numbers by way of increase are now proposed in resources for the following year?
Lord Glenarthur: My Lords, in 1983 the board's staff complement was increased by 20 (that is, from 163 to 183) and a further increase of 13 staff has recently been agreed. My right honourable friend the Home Secretary is aware of the difficulties and is considering whether it is possible to provide further increases of staff. So far as concerns finance, for Great Britain as a whole provision has been made for £44.7 million compensation and £5.2 million worth of administration expenditure. This will allow for an increase in staff and in compensation in the terms that I gave. I can give further figures about the overall expenditure if the noble Lord would like to have them.
Lord Donoughue: My Lords, will the noble Lord explain why some victims of the atrocity at the Grand Hotel, Brighton, have been paid and some have not? If the explanation relates to an interpretation of the legal implications of certain persons having been arrested in relation to that crime, does he not agree that the role of the compensation board is to compensate those who have been injured and has nothing to do with those who may have inflicted the injury? In replying, will the noble Lord bear in mind that Members on all sides of this House feel compassion for those who were injured, consider that they should be compensated and hope that the compensation will not be delayed by what I think might be called bureaucratic legalism?
Lord Glenarthur: My Lords, I share the views of the noble Lord and the sympathy which he has expressed for those who were injured as a result of the Brighton bomb outrage; but it is the board's established practice not to make awards while related criminal proceedings are pending. Even in cases which are apparently as
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clear cut as bomb outrages, the board considers itself bound not to take action which might prejudice the fair trial of a defendant. Nevertheless, I note the noble Lord's point.

Tourism Industry in United Kingdom
2.52 p.m.
Baroness Lane-Fox: 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 are satisfied with the state of the tourism industry in the United Kingdom.
The Secretary of State for Employment (Lord Young of Graffham): My Lords, in view of the record figures for incoming tourism during 1985 which were announced in February, we are satisfied that the industry is making a significant contribution to the economy. These figures saw overseas visitor spending increase by 19 per cent. on the 1984 figure, which was itself a record.
Baroness Lane-Fox: My Lords, is my noble friend aware that those of us who live in London and who see and hear the number of foreign visitors can hardly be surprised at the good news contained in his reply? In thanking him for that reply, may I ask whether he can tell us of any plans for maintaining and perhaps extending that development?
Lord Young of Graffham: My Lords, we live at a time when tourism continues to enjoy a worldwide growth, and it is important for the prospects for employment and growth in the United Kingdom economy that we take our fair share of tourists and encourage them to return. The Government play their part by giving support in the form of grant-in-aid to the tourist boards, but in this regard we look primarily to the industry itself, which I know is making great efforts to improve the standards of service, welcome, accommodation and tourist attractions. At the end of the day we must do all that we can to ensure that our visitors want to come back.
Baroness Seear: My Lords, is the Secretary of State satisfied with the training provision in the tourist industry in relation to catering, service and knowledge of languages for the people who will be serving our visitors in this coming year?
Lord Young of Graffham: My Lords, I am rarely satisfied on matters of training. All I can say is that YTS is making a significant contribution to the professionalism of the tourist industry and that for the very first time there is a national two-year training programme which can lead to improved standards. However, I suspect that we still live in a world where we equate service with servility and it is difficult to persuade young people of the worthwhile occupations that exist within the tourism industry.
Lord Ponsonby of Shulbrede: My Lords, can the noble Lord say whether he is satisfied that there is a

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sufficiency of hotel rooms in central London to cope with the tourist demand?
Lord Young of Graffham: My Lords, we are looking forward to receiving a report which will consider the adequacy of hotel rooms. I suspect that there are not a sufficient number, but I also know that this is a matter for local democracy in terms of town planning.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that the Government could help the tourist industry very much by getting the Shops Bill on the statute book as quickly as possible and by proceeding to amend our archaic, if slightly comic, licensing laws?
Lord Young of Graffham: Yes, my Lords.
Lord Bruce of Donington: My Lords, although I appreciate the positive news that the noble Lord is able to give us, will he take the opportunity at some time of reminding some hotels, and particularly those in London, of the dangers inherent in grossly overcharging, and will he ask them whether it would perhaps be better to look after the long-term interests of the industry rather than take the opportunity, which they all too frequently do, of a short-term rip-off?
Lord Young of Graffham: My Lords, I have always found that those who take short-term advantage of situations pay the price. I hope very much that the tourism industry and hotels in central London and throughout the United Kingdom are aware of conduct which is in the industry's best long-term interest. However, I must say that the spending of overseas visitors to the United Kingdom—and they contributed £5,500 million in 1985, which, as I said, was an increase of 19 per cent.—is still a minor part of the total spend on tourism in this country, which was £13,000 million. The majority of the money spent on tourism in the United Kingdom is still spent by Britons travelling in Britain.
Lord Molloy: My Lords, does the noble Lord agree that the Shops Bill applies only to one single day but that the archaic licensing laws apply to every day and are an embarrassment every day? Can he further say whether the Government are prepared to look at the debate that took place in this House last night and the tremendously erudite and realistic propositions contained therein, which I think will undoubtedly help the tourist industry?
Lord Young of Graffham: My Lords, I shall read that debate with great interest, and I hope that the conditions that prevail inside your Lordships' House may one day prevail throughout the country.

Business
2.57 p.m.
The Earl of Swinton: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend Lord Lyell will, with the leave of the House, repeat in the form of a Statement an Answer to a Private Notice Question in another place on the safety of members of the Royal Ulster Constabulary and their families.

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

Highways (Amendment) Bill
Lord Dean of Beswick: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Dean of Beswick.)
On Question, Motion agreed to.

Latent Damage Bill [H.L.]
2.59 p.m.
The Lord Chancellor: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Lord Hacking Lord Hacking moved Amendment No. 1:
Before Clause 1, insert the following new clause:
("Amendment of Limitation Act 1980, s.2.
.—(1) The Limitation Act 1980 shall be amended as follows.
(2) In section 2 before the words "An action founded" there shall be inserted the words—
"Save for an action for damages for negligence to which section 2A applies".
(3) After section 2 there shall be inserted—
"2A. An action for damages for negligence shall not be brought after the expiration of 6 years from the date (or, if more than one, from the last of the dates) on which the breach of duty, either by act or omission, occurred and upon which such action (but for this section) would be founded".")
The noble Lord said: This amendment concerns the problem arising out of the accrual point for causes of action. Some Members of the Committee may remember that I asked an Unstarred Question that directed the attention of your Lordships' House to this problem on 10th February. However, for those noble Lords who did not attend that debate, it may be helpful if I say a few words about the problem. The Bill is concerned with limitation of actions and focuses particularly on the problem of latent damage. Limitation is under statute a procedure by which claims cannot be brought after certain specific periods of time. Concerning negligence and contract, with the

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exception of personal injuries, the period is six years from the point of the accrual of the action.
For many years, it was accepted that the accrual point in negligence and in contract and under statutory duty occurred roughly at the same time; namely, when the wrongful act was perpetrated. In more recent times, there has been a widening of time between the accrual point for causes of action in contract and the accrual point for causes of action in negligence. This happened because the courts, and particularly the Court of Appeal, led by my noble and learned friend Lord Denning, focused on the problem of latent damage in cases like Sparham-Souter, and in Anns v. London Borough of Merton. The Court of Appeal took the view that while actions in negligence started at the accrual point, that accrual point did not occur until damage had been sustained. It took this view for the logical reason that the plaintiff was not suing for anything until he was suing for damages. Until he had been damaged, he was not in a position to sue.
As a result, the accrual point for actions in negligence moved a long way on in time from the date when the original wrongful act was perpetrated. For example, in cases of latent damage to buildings, that event did not occur until significant cracks or other significant damage took place in the building. That will be a long time after the wrongful act was done—the wrongful act that would be the starting point for the accrual of action in contract. The result has been that actions are often found to be statute-barred in contract, starting from the date of the defect, but are still actions that can be brought in tort.
Under the preamble of the Bill, and under the ambit of the Law Reform Committee, this amendment seeks in effect to bring together the starting point for the period of limitations of actions for negligence to the same point in time as that of contract. The purpose is to bring the commencement date for the period of limitation for actions for damages into line with the commencement date for actions for breach of contract. It is on that basis that I ask the noble and learned Lord to consider the amendment.
Lord Denning: I hope that your Lordships will not accept the amendment. We have had these cases of builders putting up houses on a rubbish heap, not providing proper foundations and the like, and after many years a house begins to sink and to crack. When does the cause of action accrue? As I have understood the common law, in negligence there are three elements: the duty of care, the breach of it, and the ensuing damage. The damage is the gist of the action, and the common law has always said that the cause of action accrues when the damage occurs. That is fundamental. My noble friend's amendment would date it back to the original breach of duty. That cannot be right. The controversy that has arisen because of the Bill is that very often a man whose house has been built on rubbish or on insecure foundations does not know anything about it and cannot discover anything about it for years. The common law said that, in those circumstances, time does not run against him until he knows of it or he could, with reasonable diligence, discover it. That is the common law.
The trouble arose because, in the House of Lords, in the Pirelli case, it was put a little differently. This was
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the case of a great chimney which had been designed wrongly by the engineer. Unbeknown to anyone, cracks appeared at the top of the chimney. This occurred in the Pirelli works in Southampton. No one knew about it at all for years afterwards. The House of Lords, held that the time ran from the date when the cracks appeared at the top of the chimney even though no one knew anything about this or could have discovered it. It is to remedy that situation that the Law Reform Committee proposed an alteration to the law, bringing it back substantially to what appears in this Bill and providing that time does not run against a man until he knows of the damage, or with reasonable diligence could have discovered it. My noble friend's amendment would go back on that, saying that time runs against him from the date of the breach of duty even though no one knew anything about it. That would be a retrograde step, and I hope that the Committee will not accept the amendment.
Lord Hacking: I hesitate to interrupt, but that was not the purport of my amendment. I am not attempting to put back the clock. The matters that the noble and learned Lord, Lord Denning, has rightly called to the attention of the Committee are more than adequately dealt with in the Bill. I am not seeking to disturb those provisions. I am simply asking for a common starting point for all accruals of action so that the anomaly of contract and tort starting at wholly different times can be put right. I am attempting in no way to disturb the Bill. My recollection is that the noble and learned Lord, Lord Denning, gave me full support when I argued the point on 10th February. I should like to adopt his remarks made at that time in support of the argument that I was presenting to the House. It is an argument that I am now presenting in the same form albeit under an amendment in this Committee.
Lord Scarman: I should also like to oppose the amendment and I hope that the Committee will reject it. The trouble about the amendment is that it confuses the procedural law with the substantive law. The Law Reform Committee of which I had the honour to be a member considered this proposal and rejected it. The proposal was rejected not because it was outside the committee's terms of reference but because of the confusion. That confusion has practical results. For instance, if the amendment was introduced, it would be possible for the period of limitation to run out before the cause of action had accrued. Of course, one could achieve the object of the amendment—that the time should expire six years after the breach of duty—by changing the substantive law; that is to say, by saying that the accrual of the cause of action for negligence arises not when damage is suffered but when the breach of duty is committed. That would put the law of tort in the same position as the law of contract. But the amendment does not do that. It seeks that result while not changing the substantive law. It has always been a menace to our common law that procedure should take control over substance.
This amendment is an unfortunate and dangerous way, I suggest, of achieving a reform which may or may not be of value but which cannot be considered in a limitation Bill. We cannot in a law reform Bill limited to limitation go into the profound questions as

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to the rightness or otherwise of common law principles which have stood the test of centuries of time.
Lord Elwyn-Jones: I respectfully agree with what has been said with such authority by the noble and learned Lords who have spoken. What surprises me is that I do not think that the noble Lord, Lord Hacking, intended his amendment to have the deplorable consequences which would flow from it if it became part of our law.
The Lord Chancellor: I think that my task has been facilitated. The effect of the amendment would result in time running against the plaintiff before the cause of action accrued and for that reason it is unattractive to me, and I hope to the Committee.
What my noble and learned friend Lord Scarman said is also an objection. One cannot alter the substantive law in the course of what is a very limited procedural measure to deal with a specific form of grievance. There are difficulties in relation to the law of negligence which arise out of the fact that negligence can be a breach of contract as well as of tort. But this is limited to the tort position, and for the reasons given by two noble and learned Lords I would ask the noble Lord, Lord Hacking, not to pursue this matter unduly.
Lord Hacking: I would be a very bold noble Lord to press forward my amendment in the light of the comments that have been made from such powerful authority in your Lordships' Chamber. I am not sure that my amendment has been wholly understood. I have a slight feeling of hurt that it has been misunderstood from all quarters of the Committee. But I am content in the circumstances to withdraw it.
Amendment, by leave, withdrawn.
Clause 1 [Time limits for negligence actions in respect of latent damage not involving personal injuries]:
Lord Denning Lord Denning moved Amendment No. 2:
Page 1, line 18, at end insert—
("( ) In this section "damages" consists of or includes damages for physical damage to property or financial loss to the plaintiff or any other person: "negligence" means a breach of duty of care, (whether the duty arises by reason of common law or by virtue of a contract or of provision made by or under a statute or independently of it).").
The noble and learned Lord said: My amendment is seeking to clarify what I think would otherwise be uncertain and obscure in the Bill and might give rise to a lot of litigation.
The committee, under my noble and learned friend Lord Scarman, was to consider the question of latent defects. The Bill is headed the Latent Damage Bill. In other provisions it shows that what Parliament is considering is damage to property—latent damage to buildings such as houses which fall down, or the chimney which was designed improperly and the like. That is the whole burden of the Bill as I see it at the moment.
However, there is an important paragraph in the report of the committee which says that several people wanted to limit the Bill to those kinds of cases—to latent damage. That is what it really means: hidden
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damage to property which is not disclosed until afterwards.
In paragraph 4.22 the committee said:
"It is probably true to say that the majority of claims for latent damage arise out of building and construction work and consequently a solution limited to these areas of activity would resolve much of the present difficulty in the law and could be tailored precisely to meet the needs of that industry. It would also avoid imposing upon professional advisers outside the construction industry any more lengthy liability than they already bear".
In a way, they have said that the main objectives of the Bill are dealing with the building and construction industry.
3.15 p.m.
They then go on to deal with what I may call financial loss. That is not the case of an engineer who designs a building improperly but that of a solicitor who is guilty of negligence, does not injure any property, but causes financial loss to his client. The committee went on to say:
"However we do not find these arguments convincing. Although the majority of claims for latent damage occur in relation to building and construction work there is no doubt that such damage can also occur in other fields, and we can see no reason in principle why a plaintiff who has, for instance, suffered damage as a result of a negligently drawn lease should be in any worse position than a plaintiff whose house has defective foundations".
That is why in the definition of damage I have sought in this amendment to say that it includes not only physical damage but also financial loss. In other words, this is covering the very case of the solicitor which I have mentioned, as well as the others.
The position is quite different in our courts on solicitors' liability. Sir David Cairns in a recent case of Forster v. Outred said:
"The considerations which apply to the case of economic loss are different from those which fall to be taken into account when the negligence relied on is negligence in regard to the building of a house and the damage which is suffered is damage arising because of defects in the house".
The first part of my amendment therefore is to say that damage not only extends to physical damage but also to financial loss because that covers the cases such as the solicitor and the like. The first part is with regard to that kind of damage; and the other part is again almost equally important. Negligence is not defined in this Bill at all. Negligence in law is very different from negligence in common speech. In common speech negligence means carelessness, inadvertence, matters of that kind. But in the law negligence requires first a duty to use reasonable care; secondly, a breach of that duty; thirdly, damage from it.
How can that duty of care arise? Let me take the ordinary case of a solicitor. Let me tell you that for almost one hundred years the courts said that that duty of care did not arise in tort; it arose in contract. There was a great case of Groom v. Crocket I remember in 1939 in which Lord Greene declared that it had been so accepted. The duty of care on the solicitor arose out of contract and not out of tort. In the lower courts we have been saying that it can also be put in tort. But the House of Lords' Committee have not decided that. There is a recent article in the 100 Law Quarterly Review which says, "let us wait and see what the House of Lords says". It is therefore important to get it clear that this duty of care exists whether it arises out of contract—that is the second part of my amendment—or out of the common law.
I have then added the reference to the breach of a statutory duty. Building regulations often say that there is to be six inches of concrete in the foundation. Supposing the builder, to save himself money or maybe inadvertently puts in only three inches. Is that a breach of a duty of care, or is it a breach of a statutory duty? If it is a breach of a statutory duty under the building regulations, does it come within this Bill?
I have dealt with the breach of contract. I have dealt with the common law. On this question of breach of statutory duty I think I ought to refer to some wise words said as long ago as 1940 by Lord Wright in a case called Caswell v. Powell Duffryn when he had to consider a breach of statutory duty. That was whether one kept machinery fenced or not under the Factories Act or the miners Act. He had to consider whether or not the breach of statutory duty qualified as negligence.
At page 177 of the law report he said:
"I do not think that an action for breach of a statutory duty such as that in question is completely or accurately described as an action in negligence. It is a common law action based on the purpose of the statute to protect the workman, and belongs to the category often described as that of cases of strict or absolute liability. At the same time it resembles action of negligence in that the claim is based on a breach of a duty to take care for the safety of the workman. The cause of action is sometimes described as statutory negligence and it is said that negligence is conclusively presumed."
He is there speaking of a breach of statutory duty.
In this amendment I say that a breach of statutory duty—for instance, whether the concrete has to be six or three inches thick—also ranks as a breach of a duty to use care and therefore comes within the whole spirit of this Bill. We need to know what the position is, otherwise the courts will have to decide it hereafter. In my amendment I suggest that negligence means a breach of the duty of care, whether the duty arises by reason of common law or out of a contract or out of a breach of a statutory duty. My amendment is really a clarifying suggestion and would save the courts having to argue about it and people going before the courts discussing it. It is a clarifying amendment, and I hope that my noble and learned friend the Lord Chancellor will be able to accept it. I beg to move.
Lord Campbell of Alloway: With the greatest deference and respect, I beg leave to question whether this limited technical Bill is an appropriate vehicle for a clarifying amendment of this kind. The amendment seeks to include a definition section in two parts: one as to damages and the other as to the meaning of "negligence".
As to damages, surely an action for damages for negligence, at lines 14 and 15 on page 1 of the Bill, includes all the matters, such as financial loss to the plaintiff, referred to in the amendment. As to the definition of "negligence", the noble and learned Lord, Lord Wilberforce, said at Second Reading that this Bill was designed to right a definite wrong and to remove a definite difficulty. It was limited in this way. Surely it is not appropriate to include in a Bill which has such a narrow intendment a definition of negligence which is readily definable as a matter of jurisprudence in the courts.
The Lord Chancellor: Naturally enough, in the short time that I have had since these amendments were tabled I have taken very great care to consult those who are more expert in draftsmanship than I am as to the value of each one of them. Of course this was especially the case when I saw this amendment and other amendments in the name of my noble and learned friend Lord Denning.
This amendment is in two parts, containing two proposed definitions. One refers to the arguments in relation to damages and the other refers to arguments in relation to negligence. The arguments are not identical in each case, but they are rather similar in parts of each case. The Bill as drafted, apart from damages for personal injuries and death resulting from negligence, which are excluded for reasons which were fully gone into in previous debates, deals with all damages for negligence and it thus applies to claims for damages in respect of damages caused, for instance, by cracked foundations in the building industry, to which my noble and learned friend referred; but it also applies to damages for negligence resulting in financial loss.
There is the case of Ross V. Caunters, where a beneficiary lost her legacy as a result of a negligently-drawn will. I am advised that the Bill covers that. I am bound to say that I find it difficult to see any form of damages for negligence, other than those expressly included, which are not included in the Bill as drafted. For instance, I think that this would equally apply to a case like Dutton v. Bognor Regis Urban District Council, which my noble and learned friend will remember very well because he presided in it, and the case of Anns v. Merton London Borough Council, where the decision was followed by your Lordships' House. It is quite clear that the negligent breach by local authorities in the performance of their duties under the building regulations is not excluded by the Bill as drafted. Therefore, I would respectfully suggest that the first limb of the proposed definition clause is superfluous, rather as was suggested by my noble friend Lord Campbell of Alloway.
As regards the proposed definition in relation to negligence, I think that there is a more substantial objection to the proposed change. This Bill is limited to actions for tort for negligence and, so far as tort is concerned, it is of course true, as we discussed on the last amendment, that a duty of care can arise under two heads: it can arise under contract and it can arise under tort. However, this Bill is not designed to alter the law of contract and does not in fact do so. The cause of action in contract, if the action is brought in contract, arises out of the agreement between the parties. Whether, and to what extent, there may be liability for breach of it primarily depends on the terms of the agreement, expressed or implied, between the parties, subject of course to the unfair contracts Bill which passed under the aegis of the noble and learned Lord, Lord Elwyn-Jones, during the last Labour Government. Therefore, it is rather inappropriate to this Bill to include it in that form.
However, where the duty of care arises under a contract, the action may be brought in tort, and where the damage is latent, the Law Reform Committee's recommendations already apply. With respect, the same is also true in relation to statutory duty. There

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are all sorts of actions for breach of statutory duty where the statute lays down the extent to which liability can arise. It may be absolute; it may exclude certain types of negligence, and so on. On the other hand, where the action is brought in tort for the negligent performance of a statutory duty, as in the local authority cases to which I have referred, as I am at present advised, the cause of action is covered by the Bill.
I am very grateful to my noble and learned friend for bringing my attention to the point. If my noble and learned friend withdraws the amendment, as I shall suggest he does, I will take further advice as to whether what I have said is correct or incorrect. At the moment, I am acting on the advice I have received and upon the opinion I have formed myself. My feeling is that the first part of the proposed definition is unnecessary, and the second is open to potential objection as well as being in large part unnecessary. I would therefore suggest that my noble and learned friend does not press this amendment.
3.30 p.m.
Lord Denning: My noble and learned friend has said that he will think about it again, and I hope he will. He said, for instance, that my bit about financial loss is surplusage. It is much better to have in a little surplusage and get it clear than to have arguments afterwards in the courts as to whether it includes it or not.
The other point, whether it is tort or not, I made clear: it is for a breach of a duty of care. The rest of it is only what it arises under. So again it is tort. I have only put them in for the sake of clarity. If it remains as obscure as it is in the Bill, the lawyers will have a field day of it. I would much rather have my little amendments in. However, in view of what my noble and learned friend has said, I shall not press the amendment.
Amendment, by leave, withdrawn.
Lord Hacking Lord Hacking moved Amendment No. 3:
Page 2, line 14, leave out ("any potential") and insert ("the").
The noble Lord said: Amendment No. 3 is linked with Amendment No. 5. With the leave of the Committee, I intend to address the Committee on both Amendments 3 and 5. This is the simplest amendment that I have tabled for this Committee. It seeks to change the words in subsection (5) from "any potential plaintiff" to "the plaintiff". Then it seeks to remove the following paragraph in that subsection which only arises because of this description of "any potential plaintiff", which I am seeking to have removed.
This problem is one of identification of the person whose knowledge is relevant for the purpose of the starting date of the extended period of limitation under subsection (4)(b) of the new Section 14A. One would expect that the only person whose knowledge is relevant for this purpose will be the plaintiff in the action. This seems to be the principle applied under the comparable provisions in the Limitation Act 1980 in respect of personal injury actions (I refer to Section 11(4)(b) of that Act) with extensions only to deal with cases where the injury has resulted in death.
However, subsection (5) of the new Section 14A, to be inserted by Clause 1 of this Bill, makes the extended period run from the earliest date on which "any potential plaintiff" first had the relevant knowledge. "Any potential plaintiff" means not only the actual plaintiff in the current action but anyone in whom a cause of action is for the time being vested in respect of the negligence alleged in the current action. At first sight, it might seem that this wider definition is meant to deal with the successive causes of action created by Clause 3 of the Bill when the property contained in the latent damage is transferred. However, it is difficult to understand how this can be so since a new cause of action is only created by Clause 3(1) where the predecessor in title had not discovered a defect.
Furthermore, the "potential plaintiff" under subsection (5) of the new Section 14A would include not only those with successive causes of action but also those with separate, concurrent causes of action in respect of the same act of negligence. Thus, for example, in the Ross v. Caunters case, which is a solicitor negligence case and which concerned the preparation of a will, the testator himself and a number of different potential beneficiaries would have had separate, concurrent causes of action.
Therefore, the argument is: why should the state of knowledge of one of these potential plaintiffs cause the extended limitation period to run against others who do not have the same relevant knowledge? Hence, my amendment would have the effect of making the starting date for the extended period of limitation depend solely on the state of knowledge of the actual plaintiff in the action concerned. With respect to this Committee, that seems to me, even though this is an argument that I myself am moving, to be a logical argument, and that is why I move this amendment.
The Lord Chancellor: In replying to the noble Lord on the Cross-Benches, perhaps I should say, totally irrelevantly but for the convenience of the Committee, that I understand the Statement has been cleared. Therefore, when this amendment is disposed of I shall move that the House be resumed for the purpose of hearing the Statement.
I think I detected behind the reasoning of the noble Lord a doubt which had arisen in the minds of the Law Society. Behind the hand of Jacob I thought I detected the voice of Esau. I must modestly confess that I had a word with Esau through my officials, and I think I have persuaded him that, although he was a hairy man, his amendment had been made upon a false assumption that the effect of the reference in the new Section 14A(5) to "any potential plaintiff" is to cause the starting date to run at large against all potential plaintiffs as soon as any potential plaintiff has actual knowlege that he has suffered damage. This is not so.
The provision turns on a plaintiff being aware of the damage he has suffered in respect of which he claims damages. It is not left to the actual, subjective knowledge of the individual concerned. The test, as laid down in subsection (6) of the proposed new clause, is whether the damage is such as would lead a reasonable person who has suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

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So we follow the hallowed steps of the reasonable man in our text.
Such a plaintiff would allege in his statement of claim, for instance in the will case, that the will was negligently drawn, and that that negligence robbed him of his inheritance and that he only discovered the damage within the limitation period. The defendant would challenge the circumstances of discovery on the ground in subsection (6) that a reasonable plaintiff would have commenced these very proceedings earlier in respect of the damage and that time has run out. He may even show, as a matter of evidence, that earlier, albeit separate, proceedings had actually been commenced as he alleged.
The point is that each potential plaintiff is to be judged on his or her merits, on the Bill as it is drafted. I am therefore at the moment of the opinion that the proposed amendment is based on a false premise. If those who initiated this are still worried about it, they can have further discussions, but for the moment I am not persuaded that the amendment is an improvement on the Bill. I would suggest that it should not be pressed at this stage at any rate.
Lord Hacking: It is not my intention to press this amendment at this stage, but Jacob will certainly consult Esau and ascertain whether Easu has been satisfied. I may, therefore, come back again at Report stage, either as Jacob or as Esau. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor: I beg to move that the House do now resume.
Moved, accordingly, and, on Question, Motion agreed to.
House resumed.

RUC: Safety of Officers and their Families
3.39 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell): My Lords, with the leave of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows:
"In the last month there have been 138 attacks on off-duty members of the RUC and RUC Reserve and their homes and families. The vast majority have taken place in predominantly Protestant areas. The whole House will wish to join me in condemning utterly these cowardly and disgraceful attacks on the men and women of the Royal Ulster Constabulary who have given such loyal and courageous service to defend the Province against terrorism and to uphold law and order.
"The chief constable, with the full support of the Police Authority for Northern Ireland and of the Superintendents Association and the Police
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Federation, has put arrangements in hand to provide quick and effective assistance to police officers and their families who are subject to attack or other forms of intimidation. Extra patrols are being mounted in vulnerable areas and steps have been taken to provide suitable alternative accommodation for those unfortunate enough to have to move from their homes. In addition, the police are making strenuous efforts to bring the people responsible for this criminal behaviour to justice, and a considerable number have already been charged with serious offences associated with it.
"I welcome the fact that the churches and the more responsible political leaders have condemned without any qualification these outrages.
"I look to the whole community to join together to defeat these acts of terrorism against its own police force and to give every possible support to bring those responsible to justice."
My Lords, that concludes the Statement.
Lord Prys-Davies: My Lords, in their unqualified and utter condemnation of the death and destruction wrought in Northern Ireland over the last few weeks and of the attacks on 138 RUC homes the Government can be confident that they have behind them the wholehearted support of the Opposition. We hope that the condemnation will also be endorsed by the vast majority of people in Northern Ireland and in the Unionist tradition in particular. We extend our sympathy to those officers of the RUC and their families who have suffered injury and loss. We hope that this Statement will bring some comfort to the officers who are now being subjected to the full pressure of malicious and divisive propaganda, violence and threats of violence.
I have three or four specific questions which I should like to put to the Minister. First, the chief constable of the RUC is reported as being satisfied that there is "a very sinister hand" behind the attacks on the policemen's homes. Those were his words. Do the Government have good grounds for accepting the chief constable's assessment of that evidence?
Secondly, is the Minister able to tell the House how many RUC officers have sought transfer to a police force on the mainland since the treaty was signed and how many of those applications for transfer have been successful? If an application is not successful, is there an established machinery to enable an officer to appeal against the decision?
Thirdly, will the Minister assure the House that where an officer is injured in the course of his duties, or where an officer's property is damaged or destroyed, his claim for compensation can be, or is, fully and quickly settled?
Finally, if I may go a little wide of the Answer, will the Government continue to make it clear to Ulster politicians of both traditions that in a democracy there can be no room for any person who engages in violence? Can the Minister go further? Has he grounds for believing that all responsible politicians in the Unionist tradition who have not already dissociated themselves from attacks on RUC homes will now do so?
3.45 p.m.
Lord Donaldson of Kingsbridge: My Lords, I should like to endorse every word my noble friend on the Labour Front Bench has said. I think that this should be, and I ask the Government that they should make it, a watershed in the aftermath of the Irish agreement; so much and no more.
This is damage being done to a police force that the minority have always alleged was partisan to the majority. The majority have always denied this and said, "Of course the police force is not partisan; the Nationalists are simply making a fuss about nothing". When the RUC is showing in a number of cases that it is far from partisan, such is the—I was going to say ignominy—of the majority that they are now raiding policemen's homes in order to make them partisan. This is a disgraceful situation and such an upset that everybody deplores it and one must look at it from that point of view.
Both the noble Lord the Minister and my noble friend on the Labour Front Bench talked about unqualified dissociation of political leaders from the violence. I do not know whether other noble Lords saw a television programme last night with a gentleman called Robinson, I think, who is the Number 2 to Mr. Paisley. His dissociation from the violence was, in my opinion, totally qualified. What he said, if I remember rightly—and I may have got it wrong because I was boiling at the time—was that if you use the sort of violence implied by coming to an agreement with the South, this would naturally provoke counter violence. That is not an unqualified dissociation and I think we ought to insist on one. I should like to see that followed up.
One further point: the chief constable, as has been mentioned, has suggested that there is a power behind this. There have always been individuals who were the powers behind these things. In my day everybody knew exactly who they were; I am sure the chief constable knows exactly who they are and I think they ought to be arrested immediately, without evidence for the moment. This is as far as the rebellion should be allowed to go, in my opinion, and I think the whole country will be behind the Prime Minister and the Government if they do whatever is necessary to stop this. God knows what that may be.
Lord Lyell: My Lords, we are particularly grateful for the support which has been given by the noble Lord, Lord Prys-Davies, and the noble Lord, Lord Donaldson. Above all, on a personal basis, I should like to add my tribute to the brave men and women of the Royal Ulster Constabulary.
The noble Lord, Lord Prys-Davies, asked first about the comments of the chief constable of the Royal Ulster Constabulary, as indeed did the noble Lord, Lord Donaldson. We believe that the chief constable has good grounds for making the statement that he did yesterday. I am sure your Lordships will accept that it would not be for me to go further into the sources for the chief constable's statement, since I would not wish to comment further and I think that further disclosure would not be helpful to the chief constable in his difficult job.
The noble Lord, Lord Prys-Davies, also asked about transfers from the Royal Ulster Constabulary. First of
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all, Royal Ulster Constabulary personnel do not apply for transfers as such. I understand the procedure is that any person wishing to leave applies to the police force which he wishes to join and, if accepted, would then resign from the Royal Ulster Constabulary. I understand that there has been no noticeable difference from the normal pattern in either transfers to other police forces or in resignations since the signing of the agreement, or indeed recently.
As for appeals, which the noble Lord, Lord Prys-Davies, asked me about, I am not aware of any particular machinery, but I think this is covered by the normal disciplinary machinery of the Royal Ulster Constabulary. If there is further detailed information that I can obtain for the noble Lord, Lord Prys-Davies, perhaps I may communicate with him in writing. I do not have it in front of me.
The noble Lord also asked about assistance for personal injury and for damage, and any compensation. I am advised that there is a statutory compensation scheme for criminal damage to persons for injuries. That scheme applies to all members of the Royal Ulster Constabulary as it does to all other members of the community in Northern Ireland. So far as I am aware, it is being operated expeditiously and swiftly.
The noble Lord asked about support from other politicians in Northern Ireland. I think the whole House will agree that the events which I have disclosed this afternoon underline the need to have talks between politicians in Northern Ireland and the Government as soon as possible, for violence and intimidation make it far more difficult to start this particular process.
The agreement was mentioned by the noble Lord, Lord Donaldson, and by the noble Lord, Lord Prys-Davies. I reiterate once again that the Government will not suspend the agreement but we are ready to discuss all issues likely to be raised by the Unionists, and that includes devolution.
We are very grateful to the noble Lord, Lord Donaldson, for his tributes to the Royal Ulster Constabulary. I should reiterate that the Government, and above all the people of Northern Ireland, have good reason to be proud of the proven high professional standards and above all the devotion to duty of the Royal Ulster Constabulary. I use those words advisedly, but the shameful efforts of those who call themselves loyalists will not deter the RUC from doing their duty and evenhandedly upholding the law. I remind your Lordships that over 220 members of the Royal Ulster Constabulary, men and women, have laid down their lives since the beginning of the troubles, as we call them, in 1969. I believe that in the region of 4,000 have been injured, some very seriously, as your Lordships will be aware.
The noble Lord, Lord Donaldson, was concerned about the television programme last night. I am afraid that I did not see it. I have no information about the Government's view on it, but the noble Lord and your Lordships will be able to draw your own conclusions from the views that were expressed by sundry persons who appeared on television.
Lord Hunt: My Lords, the Royal Ulster Constabulary, which hardly needs my additional

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words of praise and admiration for its present evidence of courage and loyalty, is undergoing a very difficult time. Everybody in your Lordships' House is also aware of the degree to which the Ulster Defence Regiment, which acts in close support of the Royal Ulster Constabulary, has suffered at the hands of the IRA over the whole period of time. Can the Minister give the House any information as to whether in the current very serious situation there have been any attacks on the persons and homes of members of the Ulster Defence Regiment? In this situation, which is so serious, can he assure the House of the loyalty and steadfastness of the Ulster Defence Regiment?
Lord Lyell: My Lords, I think that the Royal Ulster Constabulary will be particularly grateful for the tribute paid by the noble Lord, Lord Hunt. I shall see that his words are noted by everybody in Northern Ireland and by the Royal Ulster Constabulary. As your Lordships will know, he has a unique connection with Northern Ireland.
I too pay my unreserved tribute to the brave men and women of the Ulster Defence Regiment in all that they do. To my knowledge, so far there have been no attacks, though I heard one rumour just before I came into your Lordships' House within the past hour that there had been an attack upon a member of the Ulster Defence Regiment; but I am afraid that I have no further knowledge of that. Once again, I pay my tribute to these brave men and women.
Lord Blease: My Lords, I should like to have the opportunity to join the Minister, the noble Lords, Lord Prys-Davies and Lord Donaldson, and other noble Lords in welcoming and warmly supporting the Statement made by the Secretary of State in another place about the actions of Government in support of the members of the RUC. I also welcome recent statements by the RUC chief constable, Sir John Hermon, in support of the dedicated and impartial upholding of the law by all levels of RUC personnel. I wish to ask the Minister whether he can confirm that the unit that has been established is adequately staffed and financed to meet the housing and other essential needs of RUC personnel and their families, including the reserve and part-time members of the RUC who have suffered such disgraceful criminal attacks in these recent episodes.
May I conclude by saying that there are dangerous undercurrents in force in Northern Ireland? The police ought to be aware of the strength and whereabouts of these undercurrents. I suggest that perhaps the best way we could help from this House is to use our influence and for the Government to give every support to members of the public and to members of all the security services by ensuring that they have help and goodwill to assist them in their efforts to uphold law and order impartially. I welcome what the Minister has said: that moves towards constitutional political measures and dialogue ought to be fostered and promoted at all levels in Northern Ireland rather than allow this situation to drift into further and total anarchy and bloodshed in the Province. I see that as a dangerous situation that presents itself at this time.
Lord Lyell: My Lords, we are grateful for the thoughts and good wishes of the noble Lord, Lord
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Blease. I reiterate what the chief constable has said. We pay tribute to the Royal Ulster Constabulary, who carry out their duties, as the noble Lord put it, in a dedicated way. He and I both know how very dedicated they are and how professionally they do their difficult job. They also do it impartially.
On the point about the adequate staffing of support mechanisms and support personnel for the Royal Ulster Constabulary, I understand that the chief constable and the Royal Ulster Constabulary are satisfied that they are obtaining all forms of adequate support in these difficult times. I understand that the varying forms of support, the personnel, the finance and other forms of support, are indeed adequate and are doing what is needed at the moment.
As for the sinister and unpleasant undercurrents to which the noble Lord referred, all of us use all the influence that we have in your Lordships' House and elsewhere to try to persuade politicians, above all from Northern Ireland, that any progress is through talks and through the normal political process. I pay a personal tribute to the noble Lord, Lord Blease. His influence in Northern Ireland is very welcome. We are all very grateful for everything that he has been able to do. I reiterate that the only way forward is for politicians from Northern Ireland to have talks with the Government as soon as possible.
I hope your Lordships will forgive me if I reiterate one point to the noble Lord, Lord Hunt, who asked me about the Ulster Defence Regiment. I have had it confirmed that one member of the Ulster Defence Regiment was killed this afternoon. I understand that it happened in the region of Killeter, which, as the noble Lord will know, is in the far west of County Tyrone. That is all the information I have, but I wish to pay my tribute to these brave men and women and to express my sorrow at this dreadful event.
Lord Fitt: My Lords, I first apologise for not having heard the Minister's Statement, as I was urgently engaged otherwise. I associate myself with the remarks that were made in relation to the RUC. As one who suffered in much the same way as at present the RUC is suffering, having for 11 years been stoned and petrol-bombed in my home, I fully understand and sympathise with the awful position in which they find themselves. Throughout my political life I have condemned members of the minority community for attacking and killing members of the RUC, and in even more forceful terms I level my criticism at the majority community; that is, allegedly the loyalist community in Northern Ireland.
It is not sufficient for one political group or persuasion in Northern Ireland to compliment the RUC when it appears to be acting in the interests of that community but to criticise it and to set the atmosphere when it appears to be acting in the interests of the other. I see the RUC as acting in full support of the whole community in Northern Ireland, both the majority and the minority. In calling upon politicians to condemn those who were responsible for this attack we are appealing not only to loyalist politicians but to the minority representatives as well. It is only with the concerted action of all the elected representatives that we can hope to bring this terrible trend to an end.
Lord Lyell: My Lords, once again I shall see that the noble Lord's tributes to the Royal Ulster Constabulary are passed on. All of us admire the noble Lord for his courageous efforts in his political life in West Belfast as he has described them, somewhat humbly, in your Lordships' House. All of us know what he had to put up with. We shall see that his words of commendation are passed on to the chief constable.
Once again there comes forcibly from the noble Lord the need for every single person in Northern Ireland to support the Royal Ulster Constabulary in all that it does to enforce the rule of law for everybody's benefit in Northern Ireland quite impartially. I am sure that his plea and comments will be noted. We shall do everything we can to see that his words are brought to the notice of everyone in Northern Ireland, particularly to those sections of the population to whom he was referring; we know to whom he was referring. We shall see that the noble Lord's words go in that direction.

Latent Damage Bill [H.L.]
4.3 p.m.
House again in Committee on Clause 1.
The Chairman of Committees (Lord Aberdare): In calling Amendment No. 4, I have to point out that if this amendment is agreed to I cannot call Amendment No. 5.
Lord Hacking Lord Hacking moved Amendment No. 4:
Page 2, line 14, leave out from ("knowledge") to end of line 41 and insert ("of such facts about the damage that was attributable in whole or in part to the act or omission in respect of which damages are claimed, as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings in which such damages are claimed.").
The noble Lord said: This is a friendly amendment. All the amendments that I have tabled are intended to be friendly, but I should like to give particular emphasis to the friendliness of the present amendment, friendly to the Bill and to the report of the noble and learned Lord, Lord Scarman. It is also intended to be loyal to the report of the noble and learned Lord. If he intervenes in Committee, which I anticipate he will on this amendment, and if he should say in his submission that this amendment in some way or another is neither friendly nor loyal to his report, then I would be particularly hurt.
When I spoke at Second Reading I went through in some detail the criticisms concerning subsections (5) to (9) of this clause. Before I spoke at Second Reading the noble and learned Lord himself, if my recollection is right, said that he recognised that some may think that these provisions are "too cumbersome". It is my submission to the Committee that they are indeed too cumbersome and that is the reason why I have tabled this amendment.
The provisions of subsections (5) to (9) seek to set out the "knowledge" that should be required of a plaintiff who seeks the extended three-year period of limitation from the date of his knowledge. It involves tests and sub-tests. If I may, I shall take the Committee through these tests and sub-tests again to illustrate why
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I believe they are too cumbersome and why I am inviting the Committee to remove them from the Bill. Having gone through the preamble with the words:
"any potential plaintiff first had knowledge",
the test goes on, in paragraph (a) of subsection (5), with the following words of having "knowledge both":
"of the material facts about the damage in respect of which damages are claimed",
and, on the next test:
"of the facts relevant to the current action mentioned in subsection (7) below".
Having established those two tests, the Bill then proposes to go on to further definition and further sub-tests.
Thus for the test of material facts, the Bill goes to subsection (6) with these words:
"For the purposes of subsection (5)(a) above"—
and that is the one to which I have referred—
"the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment".
I suppose it could have gone a little bit further in relation to, say, a defendant who was not going to die or in the case of a limited company or corporation which was not going to go into liquidation—short of giving the personal characteristics of the defendant. I say to your Lordships that this is far too cumbersome a series of sub-tests and it is only going to provide lawyers—and here is one lawyer who does not wish to be provided with it—with a feast of argument and litigation and is going to go right against the whole purpose of the Bill which is to provide clarity and certainty.
Then let us go to the next sub-test which is following through from subsection (5)(b). These are the facts which are relevant as for that subsection. I am reading now from subsection (7):
"The other facts referred to in subsection (5)(b) above are—

(a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and

(b) the identify of the defendant; and

(c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant".

I suggest in my amendment that all of those subsections should be removed from the Bill and a much simpler and shorter phraseology should replace them. Doing my best—which may not be sufficient—I have attempted, in my amendment, to bring out the best of the actual text of those subsections which I have suggested, as a whole, should be deleted because of their length and unnecessary complexity.
The report of the committee of the noble and learned Lord, in approaching the question of knowledge, considered three possibilities. The first was to define knowledge fairly generally. I am referring to paragraph 4.5 of the report. The second possibility was whether to adopt a more complicated or "more precise formulation", which was the formulation used, and still used, in Section 14 of the 1980 Act relating to personal injuries and which is the section that these proposed provisions of the Bill attempt to follow.
The third possibility that the noble and learned Lord's committee considered was to disregard

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constructive knowledge altogether and to define knowledge solely in terms of what the plaintiff actually knows. That one went quickly out of the window. The noble and learned Lord's committee did not think that that was the right approach. They were left therefore with the two that I have brought to the Committee's attention.
The Law Reform Committee, having considered the three possible approaches to defining negligence for this extended period of limitation, went against the general knowledge test and went for the more defined test which is extracted from Section 14 of the main Act. However, as set out in paragraph 4.47 of the report, their main concern was that the plaintiff should have knowledge of sufficiently serious damage (I am quoting):
"to justify the institution of proceedings."
Thus this proposed amendment brings into account this test of knowledge without going through all the other tests which, while enacted to a personal injuries case, are not, in my submission, suitable or necessary for latent damage cases and which provide benefits to plaintiffs—for example, the prerequisite of knowledge of identity of the defendant—not otherwise available to plaintiffs in any other situation where a limitation point arises.
As recognised by the Law Reform Committee, the complex test used in Section 14, to which I have referred the Committee, for personal injuries does have disadvantages. Indeed, I suggest that it runs in the end to the disadvantage of both plaintiffs and defendants if the law provides tests which are so complicated that they inevitably result in litigation.
Finally, I would suggest there is no particular logic in picking up—in the phraseology used by the noble and learned Lord on Second Reading—"textually" Section 14 for these new provisions. On the contrary, I suggest that a better approach would be for these proposed provisions relating to latent damage to be put into better form in the hope that the cumbersome provisions relating to personal injuries cases may later be reformed. It is on that basis that I beg to move.
Lord Scarman: I should like to reassure the noble Lord, Lord Hacking, that I certainly regard the intention behind this amendment as helpful and loyal to the Bill. As the committee made quite clear in the passage to which the noble Lord has referred, there is a balance of advantage and disadvantage to be considered here. The committee went into it very carefully and gave their conclusions in paragraph 4.7 that although the proposed amendment has the advantage of simplicity the more complicated formula for which the committee opted gives more guidance to a plaintiff uncertain as to his position than does this simple proposal. Again, clearly, this is a balance of advantages and the committee has come down in favour of more detailed guidelines than are possible in the simple formulation proposed by the noble Lord, Lord Hacking.
I would add only one further point. It is of course entirely a matter for the Committee to consider, and I am only here to indicate why the committee took the view that it did. Perhaps it would be helpful to look, not at the committee's report but at the Bill as it stands
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at the moment. Although the Bill is more detailed than the noble Lord, Lord Hacking, would have it, those details are not difficult and they are not legal jargon: they are indicating to a plaintiff and his adviser the sorts of matters which they have to consider in making up their minds as to whether the damage is sufficiently serious.
Subsection (6) is really neither here nor there. It says the same thing as this amendment, but in slightly more words, and I think those words are helpful. I will say no more about that. Subsection (7) is what really matters. In deciding whether damage is significant or serious, a number of facts have to be considered, including these: that the damage was attributable in whole or in part to the act or omission. That is not difficult; it is helpful. They have to make quite sure that the damage is attributable to the act or omission which constitutes the breach of duty.
4.15 p.m.
Another matter to which they have to pay attention, as has the court, is whether there was knowledge of the identity of the defendant. It is a very important matter, easily overlooked if all you have is "sufficiently serious" in the legislation. Finally, if it is alleged that the act or omission was that of a person other than the defendant, it is necessary to know the identity of that person and the additional facts supporting the bringing of an action against the defendant. Here is a great safeguard for a plaintiff. He is not to be fixed with knowledge unless he has a knowledge not only of the gravity of the damage but of its attributability to the breach of duty and as to the identity of the person who can be shown to have done the damage.
Those, I think, are useful guidelines, protecting a plaintiff uncertain as to his position. It is for those reasons, though I see the persuasive strength in the argument of the noble Lord, Lord Hacking, that for once I would prefer more words rather than fewer. In this case, brevity may be the soul of wit but it is not the soul of explanation.
Lord Elwyn-Jones: I respectfully agree that the inclusion of the words from line 14 down to line 41 will be helpful to a plaintiff and will produce certainty where otherwise the generality of the proposed amendment would not have the same result. I appreciate that this flies slightly in the face of the previous doctrine of the noble and learned Lord, Lord Scarman, who has rather favoured a generality of expression in some legislation. I say that without, I hope, teasing him; but on this occasion I certainly agree with what the noble and learned Lord has said.
The Lord Chancellor: I do not want to prolong matters, when what I wish to say has been said very largely by my noble and learned friend Lord Scarman and by the noble and learned Lord on the Opposition Front Bench. The matter, for those who are interested in argumentation, is set out in paragraphs 4.5 to 4.8 inclusive of the report of the Law Reform Committee. The draftsman has endeavoured to give effect to the rather careful argumentation in those paragraphs. I have never set myself up as a very grand draftsman but I personally prefer, for the reasons given by my noble and learned friend on the Cross-Benches, the effort of the draftsman rather than the well-intentioned

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amendment—and I do not in the least do other than applaud the intentions of the amendment—which desires to shorten it.
I am never particularly either frightened or allured by the phrase which sometimes occurs in our debates about "a field day for lawyers". We do our best to understand what Parliament intends. In this case, the draftsman has suggested that Parliament should spell it out; and spelling it out is what I recommend the Committee to do in this particular case. The reasons have been stated by my noble and learned friend and therefore I will not repeat them.
Lord Hacking: At this stage of the Committee, I am rather looking for a "friendly" voice in my favour. I thought I might get a friendly voice from the noble and learned Lord, Lord Scarman, for the brevity of my amendment, as opposed to the series of tests that are set out in the Bill. However, with great respect to the noble and learned Lords who have spoken—and I am taking a bold course now in disagreeing with them—the problem does not lie in the tests themselves. In my submissions I have not suggested that any of those particular tests are difficult to understand. I am looking at the matter from a practical point of view. I ask the Committee to look at the matter from a practical point of view. The practical problem is that if the matter gets to the court, the court must append each of these tests against the potential plaintiff. That is the complication.
A further complication is that even if the matter does not go to a court, insurance companies, the plaintiff and the defendant have to decide upon their positions. They have to decide whether they are statute barred. That is a contentious issue. If we are therefore inviting the plaintiff and the defendant to go through the tests set out here, the result of that, in my submission, will be—contrary to the spirit and the intention of the Bill—more litigation, because there will be more room for argument. Hence matters will not become settled as quickly and easily as they could have been if the Committee were prepared to adopt the simpler—after all the words are taken from these lengthy proposals in the Bill—and the more general tests that I am seeking to persuade the Committee to adopt.
I am not a noble and learned Lord, and I am three down, anyway, in the arguments in this Committee. Therefore I shall not be so bold as to press the amendment at this stage, but I would ask the noble and learned Lord the Lord Chancellor to give some consideration to the arguments that I have presented; and I would, with the greatest respect, ask the other noble and learned Lords to think upon the arguments that I have attempted to present on this amendment. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hacking Lord Hacking had given notice of his intention to move Amendment No. 5:
Page 2, leave out lines 19 to 23.
The noble Lord said: It is not my intention to move this amendment because this amendment was discussed when I moved Amendment No. 3.
[Amendment No. 5 not moved.]
The Deputy Chairman of Committees (The Earl of Listowel): I have to point out that if Amendment No. 6 is agreed to, I cannot call Amendment No. 7.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 6:
Page 3, line 14, after ("(1)") insert ("Subject to subsection (3) below").
The noble and learned Lord said: I hope that it will be for the convenience of the Committee if, with Amendment No. 6, I discuss Amendment No. 13, to which Amendment No. 6 is a paving amendment. The substance of the matter is in Amendment No. 13. May I also take the opportunity to mention to the Committee that in the printed copy of the Marshalled List Amendments Nos. 7 to 10 inclusive appear to be shown against my name and that of the noble and learned Lord, Lord Denning? In fact, the name of the noble Lord, Lord Hacking, should have been inserted above Amendment No. 7. I have no responsibility for anything below Amendment No. 6, other than Amendment No. 13, I hope that is clear.
In the Second Reading debate there was general agreement that the broad principle should be accepted that a person who, through someone else's wrong, suffers damage, should not be prevented from obtaining compensation merely as a result of the lapse of time, particularly in circumstances in which he may be quite unaware of his rights when the time might expire. It is to deal with the difficult problems that arise in practice from that principle that these amendments have been put down.
In paragraph 4.2 of the report, the Committee advanced three principles of great importance, from which I do not dissent. I would myself advance three other principles which I hope are at least equally acceptable. First, to summarise what I said a moment ago, the person who has suffered a loss through another person's wrong should have a remedy unless the public interest requires otherwise. The second is that the public interest requires that there should not be avoidable delay in pursuing a remedy as that may tilt the balance of fairness against the alleged wrongdoer. The third is that even unavoidable delay may so prejudice the alleged wrongdoer that it would be unfair to give any remedy against him.
The first of those principles probably needs no elaborate support. From what I read of what was said in the debate on Second Reading of this Bill and of the 1975 legislation which was introduced by my noble and learned friend Lord Elwyn-Jones, the principle commands general acceptance.
On the second principle, perhaps I may cite those provisions of the law, and Clause 2 of this Bill, which disregards the period of disability. That period is disregarded because the delay is not avoidable and, therefore, despite the potential prejudice of that delay to the alleged wrongdoer he is required to accept it. The arguments in relation to uncertainty and so on go by the board in that case.
The third principle involves the balancing of circumstance against circumstance in order to achieve equity. That cannot be done with justice by a fixed, immutable limitation period. Circumstances vary; cases differ; and prejudice on one side or the other will alter from one case to another. Therefore, the best way to give effect to the third principle is to provide the

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court of trial with a limited degree of discretion. That was recognised in 1975 in the case of personal injuries. It was recognised primarily because of the emergence of the latent personal injury of diseases such as pneumoconiosis which may take many years to become apparent. It was to meet such cases that the 1975 Act introduced what was then described as a novel concept of giving a discretion to the courts.
When introducing the Bill, my noble and learned friend, dealing with the particular clause which gave the discretion, said:
"New Section 2(D) provides that the court shall have a general discretion to override time limits if to do so would be fair as between the plaintiff and the defendant. The court must consider all the circumstances of the case; but guidelines are given in the Bill, specifying the matters to which the court should have particular regard. These include the length of the plaintiff's delay, and the reasons for it; the conduct of the defendant; disability suffered by the plaintiff after his injury; and the nature of any expert advice given to him, whether sound or whether misleading".
In parenthesis, I shall say that the arguments put forward by the noble and learned Lord, Lord Scarman, on the last amendment that we discussed, in relation to specifying the guidelines, apply just as much in relation to this matter as in relation to that, in my view. My noble and learned friend continued:
"it is only one of the factors the court will take into account in assessing whether it would be equitable, in the broadest sense of the meaning of that word, to override the limitation defence, having regard to the prejudice to the plaintiff if he is not allowed to proceed, and to the defendant if he is".—[Official Report, 1/5/75; col. 12.]
That was the view taken on that issue by the then government, your Lordships' House and Parliament.
It was entirely clear to all that this then novel concept would create difficulties for the court and would also erode the certainty which is ideally desirable. In fact, the noble and learned Lord, Lord Edmund-Davies, in a notable maiden speech, quoted the then Law Reform Committee which pointed to the difficulties which a judge would face in weighing these matters on one side or the other. He said:
"There have been moments when I have wondered whether the resultant uncertainty is too big a price to pay, but reflection has, on balance, led me to the firm conclusion that the provision makes for justice, and I respectfully recommend its acceptance".—[Official Report, 1/5/75; col. 18.]
4.30 p.m.
The view of the House was very strongly expressed by the late Lord Morris of Borth-y-Gest. He also looked at the difficulties that discretion would necessarily provide for the court; and he said:
"I welcome giving discretion to the court to say that the case may proceed despite the fact the time has gone by. The Bill uses the word 'equitable'. In the context that simply means 'fair'. Is it fair in all the circumstances?
I can see objections to this provision. It will be said that there is some uncertainty. It will be said that probably there would be no appeal because, if the judge had weighed all the considerations and did not express himself as having considered something that he ought not to have considered, it might well be that it would be difficult to appeal against any ruling of the judge. It might well be that the judges will not entirely welcome having this rather difficult duty imposed upon them. But, having said all that, I still think it a reasonable course to follow. I believe it is the fair way to deal with this difficult situation".
He went on to say:
"For my part, I would trust the judges in matters of this kind. They are given the guidelines; they must assess all the difficulties on either side and then finally say, 'Is it fair or unfair?'".—[Official Report, 1/5/75; cols. 25, 26.]
That was certainly the view taken in relation to personal injuries and, as I said, very largely in relation to injuries which are likely to be of a latent character, such as pneumoconiosis, which lie buried for a long period of time, and therefore where this difficulty is most likely to arise. The principles which I have been reciting from the speeches on that occasion apply with equal force to the diseased building as to the diseased lung. It is for that reason that I have tabled my amendments to Clause 1.
Like the drafters of the late 1975 legislation in relation to personal injuries, I have sought faithfully to follow the principles which were so cogently advanced in that debate and the language in the legislation which ultimately gave effect to the principles of that debate. For that reason, I have sought to go into detail rather than take the course of laying down generalities in the way that we discussed on the previous amendment.
I regret that to this extent—and only to this extent—I differ from the very cogent and persuasive report of the committee chaired by the noble and learned Lord, Lord Scarman. That committee invoked what it rightly described as a relatively novel concept in English law—the long stop device. That is at paragraph 4.10. It considered the by now not quite so novel concept of a discretion to extend the period but concluded that the value of the long stop would be lost if there was a judicial discretion to postpone it. I would prefer myself to say that justice can, in the case of the diseased building as in that of the diseased body, be more clearly and certainly done if each case can be determined by the court which is seized of all the facts than if a fixed line is drawn which cannot be altered.
The committee considered three lines, at 12 years, 15 years and 20 years. It struck a balance with 15 years. I do not consider that it would be doing violence to that balance if it was struck at such point between 15 years and 20 years as a trial judge considers to be equitable in all the circumstances of the particular case, applying the guidelines that Parliament lays down as proper and which have in relation to personal injuries stood the test of time since the 1975 Act. It is for those reasons that, in my view, the amendment would be an improvement on the Bill.
Lord Denning: I support this amendment. We are dealing with latent damage to property: for instance, after bad foundations have been put in. The weakness and the cracks may not appear for years—15, 20 or 25 years—and the law until now has said that time does not run against a plaintiff if he did not know of the damage and could not have discovered it with reasonable diligence. That is quite intelligible and fair to the plaintiff. But now the committee says—and I can understand why it is said—that that will not protect the defendant sufficiently from stale claims, so it has introduced a long stop.
It is a new concept in our law. It is to run not from the date of knowledge but from the date of the original breach, when the foundations were put in wrongly, when the concrete was not thick enough. It runs from that very date. The committee has said, and the Bill says, that even though the plaintiff had no knowledge whatever and could not have discovered it for 20 years, nevertheless he is to be barred by the long stop. I can understand that reasoning. I can understand it

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applying, as the committee thought, to the 15 years, but what I suggest is that 15 years ought not to be absolute. It ought to be able to be extended in special cases, the same as with personal injuries, which my noble and learned friend Lord Silkin has pointed out already applies.
I should like to refer to paragraph 4.13 of the report. It says:
"We have considered periods of twelve years, fifteen years and twenty years. We have come to the conclusion that a period of twelve years, although it would probably work satisfactorily in most cases, might bar some worthy claims. At the other extreme we think that a twenty year period might permit some very stale claims and expose many defendants to the risk of litigation for an unreasonable length of time. We have concluded that a fifteen year period strikes the right balance between justice for plaintiffs and certainty for defendants and we so recommend".
There it is. I can understand that reasoning. That applies to the 15 years. But, equally, in the special circumstances which our amendment suggests, is it not right in justice to the plaintiff and all the provisions there to protect the defendant from unreasonably stale claims?
I suggest that the amendment for those additional live years, the long stop, should not be absolute; but in a special case where the plaintiff is suffering injustice and where the defendant had not been put in any difficulty, judicial discretion would be a very wise amendment. I should like to support the amendment.
Lord Howie of Troon: This is a highly legalistic Bill and most speakers so far have been lawyers. It is, however, a Bill which bears heavily on the construction industry, and as a civil engineer I should like to say a word or two about the effect of this amendment on that industry.
First, the noble and learned Lord, Lord Silkin of Dulwich, remarked that the amendment might result in some uncertainty, as he put it. I believe that he meant massive uncertainty. That is important. The problem that underlies this Bill and the debate we are having, although as yet unspoken, is the damages that may be paid to a, successful plaintiff and from where those damages will ultimately come. For the most part, they will come from insurance and from the capability of the construction industry, which will be the defendant as a rule, to insure itself.
In order to make sure that insurance is affordable and does not throw undue burdens upon the construction industry—and hence on the costs of building and in due course on the cost of living as a whole—there must be certainty so that the construction industry and the insurers can come to a reasonable arrangement about the cost of the necessary insurance. That will depend totally on there being as near to absolute or decently absolute certainty in the period of liability as can be attained.
The amendment would remove that, in so far as the insurer would look at the proposition and would not think of it as the period between 15 years and 20 years but always as a matter of 20 years. The effect of the amendment would be to add five years under the period of insurance liability to be carried by the construction industry. I believe that that would be a totally unreasonable addition to the burdens that the Bill already proposes to place upon the industry.
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I shall say just a few words about defects that occur after 20 years or so. There has been a general assumption throughout the debate so far that such defects are, as a rule, the result of latent defects of some sort or of improper building at some stage in the construction. I recall that during the Second Reading debate a short time ago the noble and learned Lord, Lord Silkin, spoke of a house of his acquaintance that had shown damage some 25 years after it had been built or after he had become acquainted with it. In his remarks earlier today the noble and learned Lord spoke of such a building in a useful analogy as being a diseased building.
That is a useful enough analogy but it is not necessarily a correct one to make. The building might not necessarily have been diseased in the course of the 20- or 25-year period about which the noble and learned Lord was speaking. It might merely be that circumstances may have changed in the environment in which the building exists. I shall give the Committee an example.
Because of the decline in industrial activity in London and elsewhere in recent years, there has been a substantial reduction in the demand for water for industrial use. The effect of that has been to raise the level of the water table in London and elsewhere in the country, sometimes by several feet. That increase in the height of the water table has resulted in flooding in basements here and there, and such flooding is not necessarily because of the defect in the building itself but because of a change in the physical circumstances that existed when the building was originally constructed.
If a basement became flooded during the 20-year period to which the noble and learned Lord, Lord Silkin, has referred, no doubt people would immediately claim that that was due to some latent defect in the building. The case would go to court and be argued for a substantial length of time. A decision would then be made as to whether the building was originally diseased or whether circumstances had changed. In the example that I have cited such would be the case. All that would mean a lengthy and unreasonable court process to determine what was the cause of the defect and what should be the period from which the case should start.
I believe that the amendment is mistaken. It is well intentioned, as amendments always are in your Lordships' House. Nonetheless, it is wrong. I hope that the noble and learned Lord will quietly withdraw his amendment, or, if he does not do so, I sincerely hope that the noble and learned Lord the Lord Chancellor will do so for him.
The Lord Chancellor: I cannot do so.
4.45 p.m.
Lord Scarman: The noble Lord who has just sat down has emphasised the facts that the committee had very much in mind when it proposed a long stop without judicial discretion to extend it. I wish to say only a few words to the Committee about the views of the Law Reform Committee, which I believe are perfectly plain, on its report.
The Law Reform Committee was concerned with three principles. They appear in paragraph 4.2 at page 15 of the report. As soon as I read them to the

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Committee, your Lordships will appreciate that, as so often in the law, they are three principles that have to be adjusted from time to time so that they may all live together. The first principle is:
"That plaintiffs must have a fair and sufficient opportunity of pursuing their remedy".
That of course is given by other provisions of the Bill to which your Lordships' attention has already been directed.
The second principle is that:
"Defendants are entitled to be protected against stale claims".
The Committee has just heard an eloquent speech indicating the importance of protecting defendants against stale claims. The fact that defendants may belong to such prosperous and unpopular circles as the world of the construction and insurance industries does not disentitle them from that protection.
Thirdly, there is this principle:
"Uncertainty in the law is to be avoided wherever possible".
The committee went on to state—I hope your Lordships will think wisely—that:
"We would not find any proposal for reform of the law acceptable"—
and here come the important words; they are in a sense words of compromise, like the 39 articles in affairs ecclesiastical—
"which failed in any significant respect to satisfy these criteria".
In the words of the market place, the proposals of the Law Reform Committee are a package, endeavouring to give the community as a whole the best of three principles, recognising, however, that no section of the community can have the whole of the principle that it likes if to let it have it means that some other section of the community loses the essential protection of another principle.
For those reasons, the Law Reform Committee stated in paragraph 4.19 on page 23 that:
"We have considered whether there should be a discretion to extend the new limitation periods that we are proposing. The value of the long stop would be lost if there was a judicial discretion to postpone it".
That has nothing to do with trust or distrust of judges. Of course the judges would exercise the discretion perfectly well on the circumstances of the case. But how would a plaintiff or a defendant be able to tell which way the discretion would go? It is the essence of the discretion that it is the judge's discretion. That is long after the event and therefore to introduce that discretion, even in the worthy and trustful hands of a judge, would be to do two things: it would put a defendant at risk of a stale claim which he no longer has the evidence to meet and would introduce uncertainty into the law.
Of course there are formidable arguments to be adduced for giving a discretion on grounds of equity to extend the long stop. They have been well put by the noble and learned Lord, Lord Silkin, and by the noble and learned Lord, Lord Denning. But one should view this proposed amendment against the background of the three principles to which I have referred and bear in mind that we have to prepare a package which does not help everybody all the time but, à la Jeremy Bentham, helps most of the people most of the time. That is the rationale of the Bill and it is entirely a
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matter for the Committee as to whether it feels that is right or wrong. I do not think I ought to take it any further.
Lord Hacking: I rise to oppose this amendment, not because I seek on one amendment to this Bill to be on the winning side—clearly I am on the losing side on every other amendment—but for two specific reasons. The first is—and this argument has already been partially advanced by the noble Lord, Lord Howie—that the plaintiff himself is not served by pursuing a stale claim: a claim that is so stale that even if he can discover the identity of the defendant he cannot find him, or on tracing him finds that the defendant no longer exists. That is the first reason why I suggest that the Bill is right and that the noble and learned Lord's committee is right in insisting on the absoluteness of the 15-year long stop period, or whatever period of years is eventually decided upon.
The second reason is that the plaintiff—taking into account the position the insurance industry has intimated it is prepared to take—is also put to some advantage by the 15-year certainty of a long stop period. The insurance industry has clearly intimated that it is prepared to cover the defendant, at reasonable rates, up to the end of the long stop period and thereafter prepared to provide insurance cover for the plaintiff. Within that structure, I suggest that the prudent plaintiff is capable of looking for insurance cover and, if he is a prudent plaintiff and seeks to provide himself with insurance cover is also served by the long stop provision. For those two reasons, I oppose this amendment.
The Lord Chancellor: This has been a very interesting debate and has given rise to differences of opinion. In somewhat more controversial circumstances I have ventured to say that the two great things to be avoided in public life are the false analogy and the suppressed false premise. I propose to suggest that this amendment is based on a false analogy, both in its draftsmanship and in the speeches with which it was supported.
There is no kind of analogy at all between the discretion given in the case of damages for personal injury in 1975, or thereabouts—which is how this amendment has been drafted and the debate which gave rise to most of the more cogent arguments in the mouth of the noble and learned Lord, Lord Silkin, who supported it—and this proposal in the Bill based on the Law Reform Committee's proposals. The whole point about the personal injury limitation was that we were taking away from a plaintiff his almost indefinitely established limitation period of six years—dating from 1623—and substituting a period of three years: that we were taking something away from him because it was thought that six years was too long.
That was then mitigated. The wind was tempered to the shorn lamb by saying, "Ah, but based on discoverability, or whatever, you shall have a way out if, in fact, the court thinks it right on certain guidelines to give you the way out and you can go back to an extent greater than three years". In this case it is the opposite of what we are attempting to do if we adopt the report of my noble and learned friend, Lord Scarman. We are starting from the premise that we are

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giving to the plaintiff something which he has never had before. He already has his immemorial right to six years. In addition, we are giving him an indefinite period—apart from the long stop—based on an additional three years starting at discoverability; which may or may not take place within six years but which I am entitled to assume in a large number of cases will take place after the lapse of six years. Therefore, we are giving him something which he has never had before.
We are giving him that with the addition of two indefinite additions. The first is that a defendant shall not derive any advantage from his own deliberate concealment or fraud, or whatever (and that is contained in a subsequent clause); and the second is that minority or incapacity from mental illness does not count against a plaintiff. So, he has the three years from discoverability, he has the disregard of incapacity and he has the disregard of deliberate concealment on the defendant's part. We are giving him something which he does not have.
If noble Lords go back to the debate on Second Reading, and earlier to the Unstarred Question raised by the noble Lord, Lord Hacking, a few weeks before, they will realise that the whole weight of criticism against the report of my noble and learned friend, Lord Scarman, was based on those who said it was unfair to potential defendants. We have heard that very clearly and persuasively argued on the facts in this debate by the noble Lord, Lord Howie of Troon. I am bound to say to the Committee that the object of the report is to hold the balance as far as possible evenly between the additional rights given to the plaintiff and the additional burden which is placed on potential defendants over and above the original six years—the immemorial six years. It was for that reason that my noble and learned friend Lord Scarman reminded the committee that in, I think, paragraph 4.2 the Law Reform Committee deliberately said that after giving the additional right to the plantiff they must protect defendants to some degree against stale claims and they must give a certain measure of certainty to the law.
5 p.m.
The committee went on to say, in the paragraph to which my noble and learned friend referred specifically in his speech, that a discretion had to be excluded if one were going to impose the long stop. If one is going down the route of the long stop and giving it no less than 15 years from the original breach of duty, discretion will destroy the degree of certainty required by the third of the three principles and deprive the defendant, as the noble Lord, Lord Howie of Troon, reminded us, of practically all the advantages of certainty with which the long stop provides him, leaving him at the mercy of the insurance market to protect himself as best he may by a premium against the consequences of something which may take place 15 years after he has done the work.
I should have thought that that is an injustice, but whether it is an injustice or not, it would certainly upset the balance of my noble and learned friend's report. When I am attempting to introduce a little piece of law reform—and this is a little piece of law
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reform—I always try to follow the reports as they are delivered. Of course, one departs from the report sometimes. Even my noble and learned friend does not speak from Sinai. However, on the whole this report has been carefully researched, it is carefully thought out and it has been widely consulted upon. I am sorry to tell the noble and learned Lord, Lord Silkin—whose personal and painful experience cannot have been far from his mind when he spoke today, as it was not when he spoke at Second Reading—that be would be driving the proverbial coach and horses through the balance of the report as it was presented by the Law Reform Committee.
Having said that, I am bound to say that I side with my noble and learned friend Lord Scarman in this respect, as I do with the noble Lords, Lord Howie of Troon and Lord Hacking. I stick to the report out of conviction and not simply because my noble and learned friend has said so. Therefore, I suggest that we, as a Committee, ought to stick to it.
Lord Silkin of Dulwich: Perhaps I may begin by assuring the noble and learned Lord the Lord Chancellor that I am not moving this amendment as a result of the circumstances that affected me personally, because, notwithstanding the lapse of 25 years since the construction of the building, I was in the fortunate position of being able to obtain recompense through my insurer. However, I could not help feeling when that mishap occurred that there would be other people who were not so fortunate. I had them in mind particularly if the circumstance were such—and I do not suggest that this was the case of my own house—that the serious defect which arose was the result of negligence, whether negligence of the original builder, the architect or somebody else associated with the development.
It was in the light of that circumstance that I proceeded from the position that one is assuming that there has been a wrongdoer—if there has not, the situation does not arise—and that is a question of fact which a court would have to decide for itself; and that as a result of the wrongdoing somebody else is made to suffer considerable loss, and again that is a question of fact which the courts would decide. It was in those limited circumstances that I looked at the provisions of the Bill and the basis of the report on which the Bill was put forward. I took the view that, without doing any real violence to the principles set out in the report itself, one could go a little further than the report or the Bill.
The noble and learned Lord the Lord Chancellor suggests that the analogy of personal injuries is a false analogy. It is perfectly true to say that every fact in relation to the two cases is not identical—I accept that entirely—but, in my view, and in my submission to the Committee, the basic principles are not such as to enable one to say that in one case it is right and in the other case it is wrong. In relation to the personal injuries claim, in the 1975 Act Parliament guarded the position extremely carefully so as to protect defendants by the language used and by the hoops, if one likes, through which the plaintiff was compelled to go before he could establish that he ought to have a period longer than that which was normally provided for. In the same way the analogy—which I suggest is a

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right and fair analogy—is that comparable hoops should exist in a case of this kind.
Many of the points that have been made in this debate were made on that occasion. The term "massive uncertainty" which was used by the noble Lord, Lord Howie of Troon, is not one that I would accept though I quite agree, of course, that there is some uncertainty. It is so in the case of the personal injuries remedy. Again, in that earlier debate the insurance difficulty was specifically referred to by my noble and learned friend the then Lord Chancellor, Lord Elwyn-Jones, and by others who said that there could be difficulties, but it was felt that on balance they ought to be accepted in order that fairness and equity could prevail.
I see no real difference between the two situations. One could make a distinction between them in the way that the noble and learned Lord the Lord Chancellor did but I can see no real difference, and I hope that there may be further consideration of whether there is any real difference. If we shut the door in this case, we may be saying that in the pneumoconiosis type of case, which I would regard as similar to the poor foundation type of case, it would not be right for the courts to exercise the very wide powers that they possess under the 1975 Act. Therefore by resisting my amendment Parliament would in fact be saying, "Well, we went too far in 1975 and the courts ought to look carefully at the way in which they interpret the discretion that was given to them in that case". I hope that point will be considered.
I appreciate that I shall not succeed, even if I wished to divide the Committee on a matter which has clearly created a good deal of difference of view. Even if I were likely to succeed in obtaining agreement to my amendment, I do not think that I wish to divide the Committee in those circumstances. I hope that what I have said will be sufficient to persuade the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Scarman, to look at the points which have been made.
I do not suggest for one moment that every recommendation of his committee is unblemished—the noble and learned Lord has not suggested that—and perhaps we can return to the matter at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hacking Lord Hacking moved Amendment No. 7:
Page 3, line 14, leave out ("An") and insert ("Notwithstanding section 14A of this Act no").
The noble Lord said: This is indeed an amendment that I tabled. I am grateful to the noble Lord who chairs this Committee. I should perhaps say that Amendments Nos. 7, 8, 9 and 10 are all amendments that I have tabled. I am more than happy if the noble and learned Lord, Lord Silkin, or the noble and learned Lord, Lord Denning, wish to move these amendments, but they are in fact amendments that I have tabled. They are not tabled by the noble and learned Lords, Lord Silkin and Lord Denning.
With the leave of the Committee, I should like to address my remarks not only to Amendment No. 7 but also to Amendments Nos. 9 and 10. Those two
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amendments are linked with Amendment No. 7. The amendment seeks to produce an alternative starting point for the long stop period, a starting point based on the completion date. It does not seek to disturb the principle of the first starting point, which may not be the first in time but will be the first in consideration, that is based on breach of duty. That is my terminology rather than that of the Bill.
My amendment also seeks to cut down the lengthy—I will not use the word "cumbersome"—provisions of subsection (1)(a) and (b) and subsection (2)(a) and (b). In view of what the noble and learned Lord, Lord Scarman, said in regard to my earlier attempt to produce brevity out of length, I do not anticipate, if the noble and learned Lord is still of the same frame of mind, that I shall have his support in making the attempt again. However, I might gain a few marks from him for trying to reduce the provisions of the Bill to a shorter form. I shall not address the Committee on that aspect of my proposal. I hope, however, that the Committee will appreciate that I am endeavouring to reduce the length of these subsections.
The amendment should be considered as an alternative approach to the amendments of the noble Lord, Lord Howie of Troon—Amendments Nos. 11 and 12—that I anticipate he will be moving. The problem is that the noble and learned Lord the Lord Chancellor, in presenting the Bill to the Committee, seeks to deal with latent damage across all activity that it might concern, whether that activity relates to the building of houses, the making of products or the provision of services such as solicitors' services. In order to cover all activities where latent damage may arise, the noble and learned Lord has in fact gone for breach of duty. The difficulty is one of generality. For that reason, I have sought in my amendment to make a special case of the construction industry.
I have gone for a completion date for the construction industry. The noble Lord, Lord Howie, has kept his amendment, if I have understood it correctly, on a broader base, to cover that activity, when he also seeks to go for the completion concept. However, I have narrowed it down to the construction industry. I have no embarrassment in selecting a single industry. The noble and learned Lord and his colleagues on the Law Reform Committee recognised that the great majority of problems stemmed from buildings and other structures. The application of the Bill will be preeminently found, I venture to suggest, in matters concerning the building and construction industry. In my submission, it would be an advantage in terms of achieving a finer and clearer point than breach of duty to go—as an alternative—for a completion date for buildings and constructions. That is what I seek.
5.15 p.m.
As the noble and learned Lord the Lord Chancellor may know, there have been discussions between his officers and other Ministers of the Government with members of the construction industry and those representing them relating to their concern about how the long stop period should start. As, again, the noble and learned Lord may know, only recently was unanimity achieved among those in the construction and building industries. My amendment like, I believe, that of the noble Lord, Lord Howie, seeks to represent

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the consensus now found in the building and construction industry. I would emphasise, however, that the responsibility for the terms of the amendment rests with me. The amendment is the responsibility of no-one else, whether articulate or inarticulate—the Committee will recall this reference on Second Reading—connected with the construction and building industry.
The reason that I invite the Committee to go for a completion date is that the concept of breach of duty produces problems in ascertaining a clear starting date in matters concerning the building and construction industry. A breach of duty can occur, relating to the same defect, on a number of different occasions: when the building was incorrectly designed; when the building, although correctly designed, was incorrectly drawn on the relevant plans; when plans, either incorrectly designed or drawn, are submitted for the contractors' tender; when the defect is constructed or assembled; when the premises, or part of the premises, containing the defect are improperly inspected; or when the building is handed over for completion, and so forth.
I have drawn to the Committee's attention no less than six different occasions when breach of duty could occur relating to the same defect at different points in time. If the principle of my amendment was adopted, the Committee would go for a completion date based, where possible, on a certificate of completion. The Committee will have seen the reference contained in subsection (3) of my proposed amendment. By going for the concept of completion date with, if possible, a certificate of completion, there is a certain date for the starting of the long stop period.
The period I have chosen in tabling the amendment is a period of 12 years as against 15 years from breach of duty. I am not entering into a debate over whether there should be a period of 10, 15 or 20 years. My proposal is merely intended to provide a parallel period of time to the breach of duty period of 15 years. Another difference, as the Committee may have noted, between my amendment and that of the noble Lord, Lord Howie, is that the noble Lord invites the Committee to consider different periods relating to both the breach of duty and the completion date. I am not doing so, for the purposes of the amendment. That is perhaps a debate that can take place when the noble Lord, Lord Howie, moves his amendment. I am adhering to the principles of the Bill and merely suggesting a completion date period that relates to the 15 year breach of duty period. For those reasons, I ask the Committee's support for the amendment.
Lord Howie of Troon: As the noble Lord, Lord Hacking, has said, the amendment that we are now discussing is in a sense an alternative to my amendments, Amendments Nos. 11 and 12. It may be convenient if we discuss them together. I can then come to move my amendments later. Otherwise, we shall be holding two debates that are virtually identical. The important matter of insurance has already been mentioned. We have to distinguish between a factor that was prominent in our earlier debates and what is the reality of the problem facing the construction industry.
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We have tended to speak of defects appearing in the foundations of a bungalow, or somebody's home, or some equally homely artifact of that nature. Naturally in these circumstances the sympathies are with the plaintiff. We have also spoken of the inarticulate plaintiffs faced by the massively articulate and highly organised building industry which seems at long last, after weeks of striving, to have reached some kind of consensus—implicit at least, if not totally explicit.
It is not quite like that. We should be thinking of latent defects arising in big structures where the inarticulate plaintiff might be a body such as the Central Electricity Generating Board, which could hardly be described as inarticulate—not in the person of the noble Lord, Lord Marshall, who recently joined us here. That is where the big problem arises because of the vast cost of insuring against a lengthy period covering latent defects, say, in the foundation of a power station, a foundation which has taken several years to design and construct, and which might show a defect some while later on. The noble Lord, Lord Hacking, indicated a number of occasions on which the breach of duty might occur in a building construction. It may be worth going over these again to underline them and to indicate the length of time over which these possible breaches of duty might be spread.
If we take the foundation of a power station, which fails for some reason eventually within the period about which we are talking, the breach of duty might be on the part of the contractor building the foundation. It might have been on the part of the supplier of the materials—the reinforcement, the cement, the sand and the gravel, even the water or any other additives to the concrete. That is an earlier period. It might have been in the detailing, the drafting of the drawings, for the foundation at an earlier period again. The breach of duty might have been in the design upon which these drawings were based. That is an earlier period yet again. But the breach might go further back in time even than that. It might be shown eventually through a lengthy court process that the defect did not lie in the foundation at all although the foundation failed. The defect could be in the soil mechanics investigations and information which were provided to the designers of the foundation at yet another earlier period. The period over which the breach of duty might occur therefore could be several years.
When we talk of certainty we are talking of a beginning date which is totally uncertain. That is why both the noble Lord, Lord Hacking, and I have introduced the concept of the date of completion as the best possible, most sure, secure, and certain date from which to start the long stop period. However, in looking at this matter, both the noble Lord and I have tried to reach some kind of compromise with the Bill itself. We are suggesting that the date should be from the breach of duty or from the date of completion.
There are two differences between us. The noble Lord has limited his amendment to the construction industry. I have great sympathy with him in that respect and support the general nature of his amendment—which will surprise nobody, I imagine. The advice which I was given was to draft amendments which were in harmony with the Bill and which covered a much wider range than the construction

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industry only. Whether I was right or wrong, that is what I have done. My amendments therefore go rather wider than the construction industry. However, the construction industry is the major area in which I am interested.
I differ from the noble Lord, Lord Hacking, again concerning the length of time which is involved here. I was moved to a very great extent by the notion that it might be as well to keep the long stop period in accord with what I understand to be Continental practice. That is the basis for my 10 years from the date of completion.
I notice that the Explanatory Memorandum to the Bill says that there are no EC implications in the Bill. In general terms that may be so. However in a few years from now somebody will be building the Channel Tunnel. It is conceivable—if the hybrid Bill to enable the Channel Tunnel to be built goes through—that our end of the tunnel would be under a liability for 15 years and the French end of the tunnel would be under a liability of only 10 years. I hardly think that that is likely to lead to Anglo-French amity. It may be that there are implications which have been overlooked here.
I hope that the Committee and the noble and learned Lord the Lord Chancellor will consider the nature of these two sets of amendments, will recognise the compromise which both of us in our separate ways have sought to achieve, will consider them carefully, and I hope accept them.
Lord Campbell of Alloway: Perhaps I may leave aside, very briefly, the difference in period between these two sets of amendments; and also with the Committee's permission leave aside the limitation to the construction industry which arises on one set of amendments but not on the other. I should like to go straight to the point of principle common to both: the completion date as the starting-off period.
That was considered, as I understand it, by Lord Scarman's committee who sat for some four years' consideration. That was rejected by them. Then, as I understand from my noble and learned friend the Lord Chancellor, it was considered by the official referees and rejected out of hand by them although I am not quite certain on what ground. Perhaps the ground does not matter for the moment because there is a natural reluctance, the Committee may feel, to go against the view of a committee which considered the point over a period of four years and the view of the official referees, whatever reasons they may have had.
Lord Elwyn-Jones: Perhaps I may briefly intervene in this matter, first, to reassert the principle which was stated by the noble and learned Lord. A high-powered committee with eminent membership—the Law Reform Committee—has considered the matter over the course of four years. When one looks at all the pages in the appendix—and it may even amount to five pages—showing the bodies that have been consulted, which is relevant to the consideration of this matter, one would be rather reluctant, putting it at its lowest, to depart from the recommendations. Although, obviously, no recommendation of a committee is sancrosanct, I would require very considerable reasons indeed to depart from the
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conclusions. The committee considered the approach of the completion date, and for reasons which they have indicated—which I find convincing—rejected it.
When it comes to the balance between 12, 15 and 20 years, they sought to achieve the balance by the recommended 15 years, which incidentally I think was also the view of the Law Society. I say this without prejudice to the admirable argument of my noble and learned friend Lord Silkin, which he will canvas later, but in my view of this matter the conclusions of the committee and the compromise figure of 15 which is suggested seems to me to be reasonable and acceptable and achieves a fair balance between the interests of the plaintiffs and the need for certainty and for the protection of the defendants against stale claims.
5.30 p.m.
The Lord Chancellor: All this is interesting, but again I come down on the side of the committee's report as it is translated into draftsmanship by the Bill. I am talking only of the amendments in the name of the noble Lord, Lord Hacking, because I do not think that the rather different amendments of the noble Lord, Lord Howie of Troon, could be moved if these were agreed; they are inconsistent with them; they are sometimes based on the same arguments and sometimes based on different arguments.
However, the principal effect of these amendments would be to provide two alternative long stops: in one case 15 years from the breach of duty, and in the case of defects to premises 12 years from completion of the work. It is rather on the same basis as Animal Farm—all animals are equal but some are more equal than others. I am bound to say therefore that I start from want of attraction to this additional complication to the Bill.
I also find it odd that, in the case of defects to premises, when they have been given a good 15 years from the breach of duty, there should be members of the construction industry who stab themselves in the belly by asking for 12 years from the date of completion as the basis for the long stop. They might find that they were committing hari-kari in that particular set of circumstances, because the latter could be less beneficial to them than the former.
As has been pointed out by my noble friend Lord Campbell of Alloway and by the noble and learned Lord, Lord Elwyn-Jones, this very suggestion of the date of completion as the terminus a quo for the long stop, was very carefully considered indeed by the Law Reform Committee. They said:
"We are doubtful though whether this is really a satisfactory alternative and in particular we can see formidable difficulties in adapting the concept of completion to all the types of circumstances (other than personal injury) where latent damage might arise. There is also the possibility of injustice to defendants where "completion", on a very large project for instance, takes place many years after the relevant breach of duty. Accordingly we recommend that the long stop should start to run at the date of the defendant's breach of duty."
My noble friend Lord Campbell of Alloway pointed out that the official referees had seen no advantage in the completion date as the date from which to start, and I would agree with that. They thought that, apart from the absence of any advantage, it would lead to a great deal of expensive and unnecessary argument in court.

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The construction industry was not by any means united in favour of the completion date, and if I looked up my papers sufficiently I think I could give examples of those bodies within the construction industry which did not agree with the completion date as the terminus a quo. The overwhelming balance of those concerned—I think 19 of those bodies concerned—stuck to 15 years rather than 12 years as the length of the long stop. In particular I must point out that the Consumers' Association, which has backed this Bill throughout, would be bitterly opposed to the reduction of the period for any particular class of potential defendant. Although, like everybody else, it is far from being infallible, I would be very reluctant to fly in its face after the report in its favour for the very reason which I gave on Second Reading; namely, that the potential plaintiff who is being given an additional advantage by the earlier provisions of the Bill is an unidentifiable group of persons (because no one thinks of himself in this connection as a potential plaintiff), whereas the potential defendants are very well organised, very articulate and very powerful.
Therefore, I come down once more on the side of the Scarman Report, and that is the advice which I give to the Committee.
Lord Hacking: It is my intention to withdraw this amendment; but before doing so, I should like to make two comments. The noble and learned Lord suggested that I was seeking to cut down the period proposed in the Bill from 15 to 12 years. That was not my intention, and indeed I hope that it is not the effect of my proposed amendments. I have left the period of 15 years as the concept in the Bill for the breach of duty period. I have suggested a 12-year period from completion date for the solid and good reason, which runs wholly in the interests of plaintiffs, that the completion date must take place after the breach of duty and invariably takes place some time after the breach of duty. Therefore, the Consumers' Association need not tremble—in any event because I shall not press this amendment to a Division—that I seek to reduce this 15 year period.
Secondly, although it is quite true that I am seeking to take a different course from that contained in the noble and learned Lord's report—I cannot claim loyalty to his report in this respect because I am urging on noble Lords a course which runs against the recommendation of his report—it is, as is recognised, always a matter of balance; and in a very balanced and fair report the noble and learned Lord, Lord Scarman, and his colleagues considered the argument. This is what they said:
"We have given this suggestion"—
that is, the suggestion that the construction industry should be treated separately—
"particularly careful consideration and we can see its attractions. It is probably true to say that the majority of claims for latent damage arise out of building and construction work and consequently a solution limited to these areas of activity would resolve much of the present difficulty in the law and"—
I hope my amendment here succeeds—
"could be tailored precisely to meet the needs of that industry. It would also avoid imposing upon professional advisers outside the construction industry any more lengthy liability than they already bear. However, we do not find these arguments convincing".
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And then the noble and learned Lord represented the arguments, in a fair balance, on the other side.
All I am suggesting in tabling this amendment is that there is a balance on the other side. I am merely suggesting—and this is where I differ from the noble and learned Lord—that the balance should come the other way from the balance found by the noble and learned Lord in his report. That is why I move this amendment. I clearly do not have the support of this Committee, and anyhow it is not my intention concerning any of my amendments to divide the Committee, and therefore I beg to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord Hacking Lord Hacking moved Amendment No. 8:
Page 3, line 15, at end insert ("and claims for contribution to which section 10 of this Act applies,").
The noble Lord said: This amendment concerns Section 10 of the Limitation Act 1980, and seeks to include in the provisions of the long stop period contribution claims. Section 10 of the main Act gives the right within two years from the relevant date for contribution claims to be made. The relevant date is either fixed upon a judgment in civil proceedings or an award in arbitration, or it is based on the date upon which one of the parties agrees to make compensation to the other, and when that liability occurs the two-year period begins to run.
The effect under Section 10 therefore is that defendants can bring third party or fourth party proceedings at any time up to two years from the date of the judgment. But the effect of that is considerably to increase the long stop period, because it is quite identifiable that contribution claims can be brought well after the 15-year period. Let us take, for example, a case in which a plaintiff brought his action because there was latent damage at the tail end of the 15-year period. Let us put that at 14 years for the date of the issue of the writ. Then, although lawyers work swiftly and industriously, it takes five years for the claim to reach the point at which judgment is given. Therefore, we have 19 years, and then another two years under Section 10.
I say that that goes against the principal in the Bill of the long stop period. For that reason my amendment seeks to bring into the proposed long stop period not only claims for damages for negligence but also contribution claims. I beg to move.
The Lord Chancellor: I understand from what the noble Lord has said that the purpose of the amendment is to extend the long stop provision in new Section 14B of the consolidation Act to actions to recover a contribution under the Civil Liabiliity (Contribution) Act 1978. The intended effect is that a defendant should be prevented from claiming a contribution from another person after 15 years from the original breach of duty of care owed by the defendant to the plaintiff.
But the effect would be in some cases to bar proceedings to recover contribution before the right to recover a contribution had arisen. This would not be an attractive proposition. Incidentally, the amendment is technically defective because an action to

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recover a contribution is not an action for damages for negligence, and as drafted therefore the amendment would not achieve the result apparently desired.
5.45 p.m.
The fact is that the purpose of the amendment is not really desirable. In some cases a defendant against whom judgment has been awarded would be prevented from bringing his own proceedings against a joint tortfeasor, for example, to recover a contribution in respect of the joint tortfeasor's share of responsibility for the negligently caused damage which the plaintiff had suffered, merely on the ground that the 15-year long stop period between the plaintiff and the defendant had expired.
I do not think that the removal of an opportuniity to apportion damages for losses contributed to by others would be regarded with much favour by the original defendant or by his insurers. They would end up by collecting the whole bill for the damage for which others were partly to blame.
If negligence proceedings against the defendant are instituted before the 15-year period and judgment is awarded against a defendant after 15 years, contribution proceedings may, of course, take place and the Bill does not change that, or wish to. But these further proceedings will not be as stale as might be suggested. For one thing, most issues of contribution are dealt with at the conclusion of the original proceedings because most, if not all, of the parties against whom there may be a claim will have been joined in the original action. Secondly, Section 10 of the Limitation Act 1980 applies a short, but only two-year, period of limitation within which to start contribution proceedings before they become time-barred. This is plainly to encourage parties to institute proceedings with due dispatch. I would therefore submit to the Committee that the Bill as drafted presents a juster solution than that proposed in the amendment.
Lord Hacking: As with my other amendments it is my intention to withdraw this amendment, but I make two points to the Committee. The noble and learned Lord takes a drafting point against me. I have no special skills in the drafting of statutes. Indeed, in my experience when I have moved any amendment in Committee, in one way or another my amendment has had some lack in drafting texture.
Having made that point, I seek to draw to the Committee's attention the terms of my amendment. I am not seeking to bring claims for contribution under the umbrella of actions "for damages for negligence". Indeed, reading both the Bill and my amendment together it reads as follows:
"An action for damages for negligence other than one to which section 11 of this Act applies, and claims for contribution to which section 10 of this Act applies, shall not be brought after the expiration of 15 years".
I think that is plain. If my drafting is defective, I do not think that the meaning of my amendment is defective.
The noble and learned Lord makes another point—that it is unfair that parties should be deprived of bringing their contribution claims before they themselves were liable. While it is not on all fours with the proposition that I am about to make, it is right to
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draw the Committee's attention to the terms of the long stop provision. These terms are set out—albeit in the section I sought at an earlier stage to have removed from the Bill but it is still there in solid form—in Section 14B(2)(a). Now that section bars the right of action in a case in which Section 14B applies, notwithstanding that the cause of action has not yet accrued.
Therefore, it has to be faced as a fact, if this Bill becomes law and the long stop provision is part of it, that there will be plaintiffs who will be statute barred before their cause of action accrues. It is for that reason that I suggest that the point that the noble and learned Lord makes has less force. Indeed, my amendment is in line with the nature of this provision which is, as a procedural ground of English law, to prevent plaintiffs bringing actions after 15 years. That is on the basis that the noble and learned Lord, Lord Silkin, does not successfully press his amendment to the Bill at a later stage.
Those are all the observations I seek to make, and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hacking Lord Hacking had given notice of his intention to move Amendment No. 9:
Page 3, line 16, leave out ("not").
The noble Lord said: I shall not formally move this amendment. It is attached to the arguments I presented under Amendment No. 7, and in view of what I said on that amendment and in view of the fact that I have withdrawn Amendment No. 7, I do not propose to move Amendment No. 9.
[Amendment No. 9 not moved.]
Lord Hacking Lord Hacking had given notice of his intention to move Amendment No. 10:
Page 3, line 16, leave out from ("of') to end of line 34 and insert—
("(a) fifteen years from the date (or, if more than one, from the last of the dates) on which the breach of duty, either by act or omission, occurred and upon which such action for damages (but for this section) would, in whole or in part, be founded; or
(b) in the case of alleged defects relating to any premises, or any separate part thereof, 12 years from the date on which such premises, or any separate part thereof, was completed or from such later date when further work to such premises, or such separate part of such premises, to rectify work already done, was completed;
whichever period of limitation prescribed by this section first expires.
(2) "Premises", to which subsection 1(b) above applies, shall be any dwelling, building or structure which (at the relevant date for the commencement of the period of limitation prescribed by this section) is affixed, as the case may be, to land, or river bed, or sea-bed.
(3) The date of the issue of a Certificate of Completion relating to the premises, or as the case may be, to a separate part of the premises, shall be conclusive evidence of the date when the premises, or the separate part of the premises, was completed." ").
The noble Lord said: I should like to do exactly the same so far as Amendment No. 10 is concerned. I shall not formally move it because it is attached to the earlier amendment which I have already withdrawn.
[Amendment No. 10 not moved.]
Lord Howie of Troon Lord Howie of Troon had given notice of his intention to move Amendments Nos. 11 and 12:
Page 3, line 16, leave out ("fifteen") and insert ("twelve").
Page 3, line 23, at end insert—
("Provided that where the act or omission which is alleged to constitute negligence occurred—

(i) during the performance of a contract, whether between the plaintiff and the defendant or otherwise; or

(ii) during the discharge of any statutory duty,

an action for damages for negligence thereon shall not be brought after the expiration of ten years from the date on which the beneficiary under such contract first acquired title to or an immediate right to the possession or use of the subject matter thereunder or the discharge of such statutory duty was completed, as the case may be.").
The noble Lord said: I said all I need to say on Amendment No. 11 at an earlier stage. The response by the noble and learned Lord the Lord Chancellor was scarcely encouraging and, by the look of it, it does not seem as if he will be more encouraging now.
I think I shall consider what I said at an earlier stage and reserve my position, perhaps coming back at Report stage. In the meantime, I shall not move Amendments Nos. 11 or 12.
[Amendments Nos. 11 and 12 not moved.]
[Amendment No. 13 not moved.]
Lord Howie of Troon Lord Howie of Troon moved Amendment No. 14:
Page 3, line 34, at end insert—
("14C. Where any action for breach of contract or for breach of statutory duty is based on an act or omission which could also constitute negligence (whether so pleaded by the plaintiff or not), sections 14A and 14B of this act shall apply to such action.".")
The noble Lord said: This is a largely legal amendment in so far as I understand it, and perhaps I am not the man to be moving it today. However, as the Law Reform Committee noted in its report, a breach of duty may give rise to a liability in both contract and tort, to which may also be added liability for breach of a statutory duty, I believe. Yet the provisions of the Bill, both in relation to the discoverability of a latent defect and as far as the long stop period is concerned are confined to actions in negligence only. It follows that in many cases the benefits which the Bill seeks to introduce in respect of latent damage arising from negligence could be lost, I believe, by way of clever pleading.
The amendment would do much to ensure uniform treatment of all actions for latent damage, whether in contract, in negligence or in statutory duty. However, torts other than negligence are not covered and this is unlikely, I am told, to lead to difficulty. The proposed Section 14C will bite on cases only where the acts or omissions complained of are negligent, whether or not negligence is pleaded. I think the amendment is demonstrably within the scope of the Long Title of the Bill. I beg to move.
Lord Denning: I support this amendment very firmly. It goes back to what I said at the beginning on my first amendment: when you have an action for negligence, it is a duty of care. It can be put as common law, it can be put as a breach of a statutory duty and, if you please, it can be put in any other way which is available.
It is a principle of law that the ordinary rules of limitation ought not to be able to be avoided by pleading in one form or another. The technicalities of pleading ought not to affect the period of limitation. Whether the action is put in negligence, simpliciter,
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whether it is put in breach of contract like a solicitor's breach of contract to use care, or whether it is in breach of building regulations under a statutory duty, whichever it is, the position is just the same. It is merely formulated differently in law.
I would wholeheartedly support the view in this amendment that:
"Where any action for breach of contract or for breach of statutory duty is based on an act or omission which could also constitute negligence (whether so pleaded by the plaintiff or not) … this Act shall apply to such action".
To me that is sensible, getting rid of any technicalities in this limitation point, and I would support the amendment altogether.
The Lord Chancellor: Despite the intervention of my noble and learned friend, I have been a little disconcerted by the fact that I had assumed that Amendments Nos. 12 and 14 might be spoken to together. In the event this has not proved to be the case, but I can only repeat what I thought I said in reply to an earlier amendment this afternoon. There is a basic fallacy in what has just been said. In the law of negligence in tort the cause of action arises at the moment when damage is suffered. This is true of a whole class of torts. In some the cause of action arises when the wrong is done, trespass being the obvious example, and in others where the damage is suffered.
In the case of negligence the cause of action runs from the moment at which the damage is suffered. This is otherwise in the case of the cause of action in contract. The cause of action in contract arises out of a breach of a promise and derives from the protection which the promise gives and at the moment when the promise is broken. It gives rise to a much wider range of remedies than an action for damages for negligence or an action for damages at all. There may in contract be the equitable remedies of specific performance, rescission or rectification. In addition to that, there are different rules in relation to contract and tort and in relation to contribution and remoteness of damage. There are procedural differences, including matters of limitation. The period of limitation for actions which are based on contract will run from the act or omission constituting the breach of contract. In tort, the period of limitation begins to run from the date when damage occurs.
These and the other differences that I have mentioned reflect the distinctions between tort and contract. In tort, the duties are primarily fixed by the law; in contract they are fixed by the parties themselves and depend upon the terms of the contract, subject, of course, to the Act which was passed by the noble and learned Lord when he was Lord Chancellor about the unfair clauses which is now part of our law.
This illustrates a point which was dealt with quite firmly by the committee when it came to consider this rather limited piece of law reform. Quite apart from its terms of reference, it came down firmly against introducing into the law which it proposed in its report and which is now embodied in the Bill either changes in the law of contract or changes in the date at which the right of action begins.
It would be a fundamental error that would lead to endless confusion to use this Bill, which is related solely to cases of latent damage in cases of negligence.

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as a vehicle for widespread changes in the law of contract and in the law of statutory duty. It would complicate the law of limitation. It would create confusion, and the negligence complained of can arise out of the performance of contract. It may be not merely a contract between the plaintiff and the defendant but a contract between any other party or where it arises out of the performance of the statutory duty. This has been dealt with by implication in our earlier discussions and the amendment is an unfortunate confusion of what is otherwise an absolutely simple piece of legislation.
6 p.m.
Lord Howie of Troon: I should hate to fall into a basic fallacy. But if I have done so, I take some comfort in that I am joined there by the noble and learned Lord, Lord Denning. I was greatly impressed by the reply of the noble and learned Lord the Lord Chancellor. I feel that once I have studied his remarks in Hansard, I shall know a great deal more about this matter than I did a few moments ago when I moved the amendment. I shall study his reply carefully. I shall take what advice I can and consider whether it is worth bringing this matter forward in a modified form at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Provisions consequential on section 1]:
Lord Hacking Lord Hacking moved Amendment No. 15:
Page 4, leave out lines 20 to 25 and insert—
(" "(5) Subsections (1) and (2) above shall not apply to the periods of limitation prescribed in sections 14A and 14B of this Act." ").
The noble Lord said: We now turn to Clause 2, but more significantly we are on to my last amendment and the last amendment to be considered on this Bill as currently tabled. This amendment concerns Section 32 of the Limitation Act 1980 and seeks to take up a point made by the noble and learned Lord, Lord Wilberforce, at Second Reading. Section 32 creates the provision that extends the period of limitation in circumstances where there has been fraud, concealment or mistake and it extends the period of limitation,
"until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it".
In the first place I attempt to relate Section 32 of the Act, with the new proposed Sections 14A and 14B, with greater clarity than the proposed terms of the new subsection (5) appears to do on page 4 of the current draft of the Bill. As pointed out by the noble and learned Lord, Lord Wilberforce, this proposed new clause is so difficult to understand that reference has to be made to the report of the Law Reform Committee before comprehension can be reached. Indeed, it could be said that in concealing its own meaning it is concealing its own "concealment".
In the second place, I have attempted to deal with the substantive point raised in this regard by Lord Wilberforce on Second Reading. Contrary to the recommendation of the Law Reform Committee and
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the proposal in the Bill to bring into effect this recommendation, it seems to me that the operation of Section 32(1)(b)—that is the relevant subsection in Section 32—should be excluded from the operation of the new proposed periods of limitation set out in the proposed Sections 14A and 14B. By their very nature latent defects are concealed from a plaintiff and may also be "deliberately concealed", which is quoting from the terminology of Section 32.
In my proposed amendment I have also sought to exclude the fraud and mistake provisions of Section 32(1), to which I have just referred, from the operation of the proposed Sections 14A and 14B. Technically since the proposed Sections 14A and 14B relate only to actions for damages for negligence they do not cover actions based on "fraud" or actions for relief from the consequences of a "mistake" because fraud constitutes a separate and distinct cause of action as do causes of action in contract which are grounded upon mistake. It may not be easier for parties and in some cases for the courts to grasp these legal concepts and since therefore there is worry relating to the concept of mistake, as it could relate to the provisions contained in Sections 14A and 14B, I thought it better to attempt—I shall be unsuccessful in this attempt—to sweep the whole of Section 32 out of the operation of the new provisions of Sections 14A and 14B. Those are my reasons for moving this amendment. I beg to move.
Lord Denning: I should like to oppose this amendment. The committee was quite clear in paragraph 4.13 that the provisions under Section 32 of the 1980 Act, fraud, concealment and mistake, should still apply. In other words the period of limitation should not bar an individual in circumstances where it is due to fraud, deliberate concealment or mistake by the defendant. It has occurred in many cases. It is a valuable provision, and as the committee said:
"We believe that it would be no less repugnant to most people's sense of justice to allow such defendants to take advantage of a long stop provision, and we therefore make no recommendation in this area. Accordingly, the long stop will come into play in those latent damage cases where there has been negligence by inadvertent or careless acts or omissions but not where there has been, in the words of section 32(2) a 'deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time'.".
I oppose the amendment.
Lord Wilberforce: I spoke on this subject at Second Reading. I re-read recently what I then said and rather to my surprise I found that I still agreed with it. It is necessary to be precise about this amendment and about subsection (5) which is in the Bill in page 4 at line 20. One is liable to be misled if one is not careful by the reference at line 17 to:
"(postponement of limitation period in case of fraud, concealment or mistake)".
I have a suspicion that my noble and learned friend Lord Denning was possibly misled by that reference. That is simply taken from the side note to Section 32 of the 1980 Act. It has nothing to do with the matter which we are now considering or discussing. What we are now discussing is a limited point which is brought out at line 21 on page 4 which refers to:
>"any action to which subsection (1)(b) applies".

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That is all we are concerned with. All that subsection says is:
"any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant".
We are not concerned with fraud or mistake but we are concerned with deliberate concealment.
The innocent man might think that deliberate concealment is just as bad as fraud, that someone is a dishonest man and should not be given the benefit of the long stop. What all this does at the end of the day when one has worked out all the references is to say that whoever this applies to is not to have the benefit of the long stop of 15 years which is in Section 14B. That is what is being done. One has to go on to look at Section 32 (2) which is absolutely vital. That says:
"For the purposes of subsection (1)"—
which we have just been considering—
"deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty".
We have a special concept there of concealment which provides what one might call an objective test: it has to be unlikely to be discovered for some time. Anybody who is familiar with these building cases knows that those words typify the cases in which actions are brought after some time. Something is covered up in circumstances in which there is unlikely to be discovery for some time. It is not a question of dishonesty, it is not a question of defrauding anybody; it is just a case that an inspector may decide to cover up and he is guilty of negligence in doing so. He is not trying to defraud anybody or deliberately to conceal but the fact is that the defect is unlikely to be discovered for some time.
One has to ask oneself as a matter of policy whether it is right that that case, which is typical of many, is one in which the defendant should be deprived of the long stop provision in new Section 14B in this Bill. It is a matter of policy to be considered. I know that it was considered by the committee of the noble and learned Lord, Lord Scarman, and that it is debated fairly in the paragraph which deals with it. The committee thinks, using words which also cover fraud, that,
"such a person should not have the benefit of the long stop".
It is for your Lordships' Committee to decide. What impressed me at Second Reading, and about which I still feel considerable doubt, is whether it is right in these cases which will occur very frequently. There is the case of Anns, the case of Dutton and the case of Pirelli. Almost all these cases are cases in which something was concealed in circumstances in which it was unlikely for the defect to be discovered for some time. That is an exact description of what happens, and that is what I thought we were legislating about. The Committee may say that there is something wrong there and such a person ought not to get the benefit of the long stop. The view which commended itself to me was that that is just what this legislation is supposed to be doing, to give a final period of 15 years to deal with these cases.
I would suggest to the Committee that there is considerable merit in the amendment. It may be that the amendment proposed by the noble Lord, Lord Hacking, goes further than is necessary. I am not committing myself entirely. I am not going with him
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necessarily as far as that; but I venture to suggest that this provision in the Bill deserves reconsideration, in spite of the decision, taken after internal debate no doubt, by the Scarman Committee. If the Committee were to pass this clause as it is at the present time, it would be depriving the Bill of a good deal of its utility as regards cases which the courts have had to deal with and which the courts have thought probably demanded adjustments to the limitation period. I support in principle the amendment of the noble Lord without necessarily agreeing with the detail.
The Lord Chancellor: I always take extremely seriously what my noble and learned friend Lord Wilberforce says. This alone would cause me to say that I shall read again what he says and take advice upon it. But I must say to the Committee that I am advised that the effect of this amendment in practice—and the only effect of it—is to make the long stop provision absolute even in cases where the defendant has deliberately concealed damage from the plaintiff to enable him to raise the defence of limitation. The defendant would thus benefit from his own wrong doing by escaping liability to proceedings in negligence.
To my mind, and subject to what I have said about taking further advice, that offends against my moral judgment. Take, for instance, a case—and I think this may have been a case which actually has happened—where a defendant deliberately commits a breach of duty which is unlikely to be discovered for some time. For example, supposing in a local authority case a building inspector deliberately allows defectively laid foundations to be covered up by the contractor in order to conceal the defect which he has seen. The amendment before the Committee would allow the inspector, and possibly also the contractor, to escape liability to proceedings in negligence after 15 years from his breach of duty to the victim of the negligence.
My present judgment is that it cannot be right in circumstances of this kind to allow a wrongdoer to take advantage of his wrongdoing by the lapse of time. It is against my moral feelings in the case and it is also against Section 32 of the Act of 1980. Incidentally, it is contrary to the judgment which has been referred to of the Scarman Committee. I cannot accept this amendment this afternoon. I shall reflect on what my noble and learned friend said, but as of now I am not attracted by the proposition.
Lord Hacking: As with my other amendments, I am not going to press this one and in a moment I shall withdraw it. It is, however, a rather special moment for me in this Committee which has been progressing now for over three hours because I have had a voice of support from the noble and learned Lord, Lord Wilberforce. He could not come the whole way to support the terms of my amendment—that would be asking too much—but he was prepared to accept the principle of it in so far as subsection (1)(b) of Clause 32 is concerned. The noble and learned Lord the Lord Chancellor has kindly said that he is prepared to give this matter a little further consideration. On that basis, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Hacking: Unless anybody else has anything to say, perhaps I may make two comments concerning Clause 2. My comments will also refer to Clause 1 if I have the Committee's leave also to refer to it. I have been something of a lone voice throughout this Committee. I have had little support. The noble and learned Lord, Lord Wilberforce, has just supported me, as also has the noble Lord, Lord Howie. He has been kind enough to support me in this amendment, as I would have supported him in his amendments if he had moved them separately from mine. The views that I have tried to express to the Committee—and it may be that I have not done it with sufficient eloquence or accuracy—are views that are being expressed outside the House and views that relate to genuine concerns by a number of persons outside the House who will be directly affected by these provisions.
For that reason, I ask the noble and learned Lord whether he can take an oversee view of all the points that I have sought to make—and other points that other noble Lords have made during the Committee—before we come to the Report stage of the Bill. As I have said to the Committee, I do not hold a special mantle for perfection in the presentation of the views but I have tried to present views that are seriously held outside this House.
There is another small point—an elementary point rather than a small point—that I would make. It is that time moves on. Before the 24th report, the Law Reform Committee sat for its 21st report, which was the final report—and I would stress those words—on the limitation of action; and that report was presented to Parliament by the "Lord High Chancellor by command of Her Majesty" in September 1977. This was a most detailed and careful report and in so far as the 21st report considered latent damage—and it considered latent damage only in a peripheral manner—it considered it not to be a problem.
Only in a short time, such was now the problem, the noble and learned Lord the Lord Chancellor requested the Law Reform Committee in its 24th report to consider latent damage. It is now considered a serious matter, so serious a matter, indeed, that the noble and learned Lord has moved this Bill. Time moves on! For that reason, too, I would ask the noble and learned Lord (because there is this concern outside your Lordships' House) to consider, if he would be so kind, not my remarks as such but the remarks that have been made throughout this Committee and the comments and criticisms that have been made of the Bill, not in any way to wreck the Bill but to assist its passage, assist its clarity and make it a much better Bill.
The Lord Chancellor: I do not think that I can respond in very great length to what the noble Lord, Lord Hacking, has said. Of course, we are all deeply indebted to him for putting forward a view in various forms which members of the constructions industry in particular wish to say in criticism of this Bill. But the genesis of this Bill, as he rightly surmises, was the
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reference by myself to the Law Reform Committee of a matter which had become, to my mind, extremely urgent and which resulted in the Law Reform Committee, in its 24th report, producing the policy upon which this Bill was based. It was a policy which I think gave a measure of justice to potential plaintiffs and a measure of protection to potential defendants—a measure of protection they certainly would not have had but for this Bill.
The policy of the 15-year period, which is by some criticised as too short and by others as too long, was supported by a really formidable number of consultees, including the Law Society, the Institute of Chartered Accountants, the Institute of Building Control Officers, the Building Employers' Confederation, the Official Referees, the Queen's Bench Masters, the Country Landowners' Association, the London Chamber of Commerce and Industry, the Holborn Law Society, the Consumers' Association, the Society of Parliamentary Agents, the Incorporated Society of Valuers and Auctioneers, the Bar Association for Commerce, Finance and Industry, the Society of Investment Analysts, the British Property Federation, the Landed Property Consultative Council and, last but not least, the Chancery Bar Association. With that formidable body of support and the noble and learned Lord, Lord Scarman, in addition, I am bound to say that of course I will reflect on what the noble Lord, Lord Hacking, has said, but I do not want to offend any of those bodies either.
Lord Howie of Troon: Before the noble and learned Lord sits down, will he take note that in the formidable list he has read out there was only one construction industry organisation noted and we must assume that the rest were opposed?
The Lord Chancellor: No; I do not think that is quite right. The list I read out were those which backed the 15-year period. The noble Lord represented one branch of the construction industry, but it was in fact divided on the matters which he raised.
Lord Hacking: Before the noble and learned Lord sits down, I wonder whether he has also got a formidable list of the opposers.
The Lord Chancellor: I do not think it is so formidable. They are all published in some sort of document and so I do not think we need swap names. But there is a formidable list of people in support of this Bill, and what is much more important is that it is really a case, I think, of this Bill or nothing else. The law can be left in its present unsatisfactory state: otherwise you have to make some sort of balance between potential plaintiffs and potential defendants when the Law Reform Committee has said that the present law does justice to neither.
Lord Elwyn-Jones: May I respectfully draw the attention of the Committee to the fact that we are not on the Third Reading of this Bill?
Clause 2 agreed to.
Remaining clauses agreed to.
House resumed: Bill reported without amendment.

Lothian Region (Edinburgh Western Relief Road) Order Confirmation Bill
6.25 p.m.
The Minister of State, Scottish Office (Lord Gray of Contin): My Lords, I beg to move that this Bill be now read a second time.
It might be for the convenience of your Lordships' House if I were at this stage to explain the position of my right honourable friend the Secretary of State for Scotland, under the Private Legislation Procedure (Scotland) Act 1936 in relation to this confirmation Bill. The Secretary of State's role in introducing the Bill is essentially formal. Under the 1936 Act, the Secretary of State is responsible for introducing into Parliament, with a confirming Bill, a provisional order which has been approved by parliamentary commissioners following an inquiry. The Secretary of State's role is in general confined to providing the Bill with the necessary facilities to enable it to become an Act if that should be the wish of Parliament. In the case of the Western Relief Road, the commissioners appointed under the procedure recommended, following an inquiry which sat on a total of no less than 52 days over a period of more than three months, that the order should be issued with modifications.
Successive Secretaries of State have honoured the undertaking given during the passage of the Private Legislation Procedure (Scotland) Act 1933, which was consolidated in the 1936 Act, that the Secretary of State would treat such recommendations with the fullest respect and would not set them aside, other than in exceptional circumstances. Accordingly, my right honourable friend submitted this order to Parliament in the form of the confirmation Bill which is now before the House. A petition against the order comprised in the confirmation Bill was presented timeously at Second Reading in the other place and the matter was referred to a Joint Committee of both Houses of Parliament, as provided for in the 1936 legislation. The Joint Committee, in presenting their findings on 5th March, did not accept any of the amendments that had been proposed and were of the opinion that the order ought to be confirmed without amendment.
Your Lordships may find it helpful if I say something very briefly about the financing of the Western Relief Road should your Lordships approve the confirming Bill. I am conscious that a number of your Lordships may have been concerned by recent press reports which suggested a difference of view between the regional council and my department on funding. However, I can give an assurance that there is no difference of view. There are, however, expenditure constraints and other priorities. I understand that the regional council is planning to spend some £14 million in the coming financial year on the outer-city bypass, and in the light of discussions between my officials and representatives of the regional council over the last week or so the council have now decided to fund the project through a covenant scheme.
This approach will have many advantages for the region, mostly notably that it will allow early progress to be made without threat to any of the council's other capital projects. I should like to make it quite clear that
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the decision to proceed in this way is entirely one for the regional council and we have no criticism to make of it. Indeed, we have told the region that we will take full account of this arrangement in determining its capital allocation for roads in future years when repayment of the borrowing is being made.
Thus, the Motion before the House that the Bill be now read a second time is quite clearly competent. It is now for the House to decide whether a sufficient case has been made out. My Lords, I beg to move.
Moved, That the Bill be now read a second time.—(Lord Gray of Contin.)
6.30 p.m.
Lord Ferrier Lord Ferrier rose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out all the words after ("that") and insert ("this House declines to give the Bill a Second Reading until after the results of the forthcoming elections to the Lothian Regional Council are known.")
The noble Lord said: My Lords, I need not repeat the amendment as it is clearly set out on the Order Paper. I will say only that I speak as a native of Edinburgh with a long family connection with the city.
On 16th February 1961, a few days over a quarter of a centry ago, I proposed the following Motion in your Lordships' House:
"That in the opinion of this House it is necessary to expedite measures to facilitate the movement of long-distance traffic round the City of Edinburgh."—[Official Report, 16/2/61; col. 908.1
A number of Peers took part in the debate, and the House agreed to the resolution without a Division. I mention that only to set a timescale, as it were, for the proposal contained in my amendment, which involves suggesting a delay of two months. Incidentally, in the course of that debate the then Minister of State for Scotland, mildy chiding me for my extravagant ideas, said:
"The question we have to ask is whether an estimated (and I underline the word 'estimated') 4,000 vehicles a day some time in the future justifies the building of a new by-pass now at a cost of £2 to £4 million."—[Official Report, 16/2/61; col. 937.]
About one-third of the bypass has now been built at a cost of £48 million. The estimated cost of the Western Relief road is in the neighbourhood of £113 million. I only mention that, as I say, to set a timescale to compare with that of my amendment—say a couple of months. Had your Lordships' recommendation been complied with, it is fair to say that a quarter of a century later the congestion in Corstorphine would not have been such as to drive the voters of the consituency to promote the Western Relief Road.
It is not my intention to take up your Lordships' time going over the recent deliberations. I am utterly opposed to the Bill, which appears to many to be premature, if, indeed, it is worthwhile at all, although, of course, I respect the promoters' dedication and the work that has gone into the preparation of the Bill. The fact the House is now facing is that the Bill has come from the other place and has reached its Second Reading here.
A good deal of water has flowed under the bridge since I set down the amendment on 19th March. It is now abundantly clear from letters in the press—my noble friend Lord Gray of Contin has mentioned it, and my fan mail supports it—that there is an

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increasing measure of opposition to the Bill despite the claim that that opposition represents only a minority opinion. Be that as it may, there has been more and more unease at the steps taken by the promoters to commit the city to substantial expenditure on a proposal which is, after all, based largely on conjecture.
The objectors feel that they have not been given adequate opportunity to make their case against the measure, and, as a result of the promoters' tactics, the matter has drifted into a party political wrangle. After all, there was a considerable element of filibuster during the last stages in another place. The objectors have a feeling of helplessness in the face of the party manoeuvring and can hardly understand why the Western Relief Road has become a party issue except, of course, that the Conservatives in the constituency are anxious to gain favour with electors in preparation for the next general election, as they are entitled to do, but the cost is excessive.
As set out in the papers attached to the Bill in the other place, there are 38 objectors. They include the National Trust for Scotland, the Scottish Civic Trust, the Architectural Heritage Society, the Cockburn Association and some local residents' associations, none of which carries party labels.
The procedure adopted by the promoters, as outlined by my noble friend, is wide open to criticism. The objectors feel that the proper route would have been a planning inquiry, and it has been said (and I repeat) that the adoption of this method of taking out a Bill that has proved to be so controversial looks very like an abuse of Parliament. There is, of course, a case for bypassing Corstorphine, but surely that may be achieved by the completion of the outer city bypass which is due in four years' time. If the massive change in the whole pattern of Edinburgh traffic which will stem from the bypass fails to relieve the pressure, then, and I feel only then, will it be a solution to introduce a so-called relief road of this nature.
The passage of the Bill through the other place created the Joint Select Committee which was chaired by my noble friend Lady Carnegy of Lour, who will be speaking this afternoon. I look forward to hearing what she has to say. It is as well to remember that at an earlier stage in this whole transaction the parliamentary inquiry gave not only advice but strong legal advice that the legislation was defective. Powerful objection to this whole matter came in the shape of a letter from the Lord Provost which has been widely circulated. I need not refer to it as I think that most Members of this House have received a copy of it. It is not the latest because since I drafted the amendment I have had a letter from a district councillor. I will read only the last paragraph. He objects to the Bill and says:
"I make this plea because I believe the future of Edinburgh's Georgian new town outweighs a local traffic problem in one part of West Edinburgh. The issue is whether Lothian Regional Council should be able to short-circuit recognised planning procedure and jeopardise Edinburgh's priceless heritage which has been protected by generations of its councillors and its citizens."
I now understand that the Labour Party has declared its intention, if it takes power in the May elections, to reject the whole proposal and to cancel the Western Relief Road. Even if the Bill is passed and contracts are rushed through by the promoters, the
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Conservative and Alliance groups, almost inevitably more expense will lie ahead. To prevent more extravagance my amendment would appear to be the remedy.
Too much treasure, too much toil and too much time have already been spent on this controversy, and it may well be that the right thing to do is to defer giving the Bill a Second Reading tonight. On the other hand, if the electors, after the further consideration that a little delay may provide, return the present authorities to power, so be it! I accordingly beg to move.
Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out all the words after ("that") and insert ("this House declines to give the Bill a Second Reading until after the results of the forthcoming elections to the Lothian Regional Council are known.")—(Lord Ferrier.)
6.41 p.m.
Lord Carmichael of Kelvingrove: My Lords, I should like to thank the noble Lord, Lord Ferrier, for giving us the opportunity to speak on this aspect of the Bill—the delay of the Bill and not the total and outright condemnation and rejection of the Bill. It seems a sensible and reasonable amendment to put forward at this time. I am sorry that the situation is such that sometimes in a local authority important things that affect all the citizens, quite apart from what I consider to be purely party politics, become a party political issue. That is unfortunate. If this amendment is carried, and if there is a change in the composition of the new regional council, I hope that it will sit down and look with fresh eyes at what is proposed in order to see whether such a relief road is needed.
It is impossible not to speak about roads in general and city roads in particular when discussing a Bill such as this, although the Bill itself is rather a narrow one. It has been said several times in the other place that Edinburgh has a living city centre. This is an important point to make about Edinburgh. I hope that over the next 10 years in Glasgow we shall surpass that position because we are now recovering from a road mania. That is why I feel stongly about our having time to look at the Edinburgh position. We had a road-building hysteria for a period in Glasgow and we are just beginning to recover from it. During that period—about four or five years ago—I remember going through Edinburgh with a number of people from another place on an all-party visit. I said to one of the people who was an Edinburgh man but not of my party, "One of the great things about Edinburgh is that the good, thoughtful people have decided to hold on to their city centre and not let it be totally messed up by traffic". The Edinburgh man said to me, "That's not really the reason. The reason is that they were far too mean to make a lot of changes and now fashion has caught up with them". The sad thing is that they seem to have caught up with the old fashion, I think rather later than should be the case.
I am not anti-motorist. I love motoring and I love driving. I am very involved in driving. I am very conscious of the benefits that personal transport has brought and how important it is to many people. But it has many less happy effects. If I speak about Glasgow, it is because I know it, but I think the lessons can be learnt from Edinburgh. I can think of three

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specific examples from the period of road building in Glasgow. One was the Maryhill expressway: another was the Crow Road expressway; and a third involved changes to the Great Western Road. I should like to speak for a moment about the Great Western Road. It went through part of my old constituency. The rest of it was very largely in the constituency of the late Tom Galbraith. I accepted at the time many of the figures of the experts. They were extremely courteous and they were very well valued. Tom Galbraith and I sat down with them all. We looked at the figures and I found myself changing my mind halfway through. I decided that the Great Western Road expressway was not required although a lot of land had been bought for it and a lot of alterations had been made. That was 10 years ago. The Great Western Road expressway was never built. The Maryhill expressway was never built. The Crow Road expressway was never built.
What has happened? Of course there are hold-ups. You cannot drive through these roads as though you were on a motorway. I use these roads almost daily—and certainly weekly—because they are in the area in which I live. It would not have been worth tearing the city to pieces in order to get rid of these hold-ups in the way that was suggested. From the maps I have looked at and from my little knowledge of Edinburgh—not all that little—I believe that we should think, think and think again about the Western Relief Road.
I do not drive to Edinburgh if I am going to the centre of Edinburgh. I use the train. There is a half hourly service from Glasgow to Edinburgh. It takes 45 minutes. It is crazy to take a car into the centre of a city such as Edinburgh. I do the same in Glasgow; I take a train or the underground. But I know that when I drive through Edinburgh I face hold-ups in Princes Street. I do not think it is worth the upheaval we are going to face with a road as expensive as this, particularly when other things are on the way. For instance, the Sighthill section of the city by-pass is expected to be finished by 1990. I believe that the date has been brought forward, and it might even be earlier than that. It would be crazy to go ahead with this road and force it through in the next month despite what the noble Lord the Minister has said about the type of financing, which I hope he will be able to explain more fully when he comes to reply. I was not quite clear what he meant with regard to how the financing will be dealt with. If the amendment fails and if the Bill receives a Second Reading, there will be a tremendous rush to let contracts and to rush ahead with the Bill and commit the next administration to something on which it would be better to take a little more time.
If the new council came in—whichever new council—and endorsed the idea of the Bill, I would accept it. If a new council accepts it, I shall accept it. It must be a big issue in Edinburgh. I do not know a great deal about the local politics of Edinburgh but this must be a very big issue there. All the electors of Edinburgh must be conscious of the fact that if they change the composition in the Lothian region there will be a change of attitude to the road. It must be a big factor. If the new Lothian region decided to go ahead with this road it would be quite impertinent of me to try and change its idea. If there is a change in Edinburgh I hope that the new grouping will consider
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the position with considerable care, not from the point of view of, "You said yes, we say no", but will look at it without this terrible rush. The idea that it should be done as quickly, as is suggested, is far too hasty. The possibility of the Sighthill section of the new road coming through—from what I have heard we shall wait only another two years—will surely change considerably the traffic on the proposed new road. If the relief road goes through you must not think that that will be the end of it, because experience in Glasgow (until the citizens began to take a grip and until some of their councillors began to take a grip) showed that every new road led to more new roads being required. It merely meant that the bottleneck was pushed a wee bit further forward.
Looking at the map, I could see that the next development might be—and I would not put it past some road builders I have come across—that Usher Hall would be in great danger, if we carried on in the way that we are doing. I hope that the House will think very carefully. I am not anti-road. I only say that this matter has to be watched with great care before we rush into something. I hope that the amendment put forward by the noble Lord, Lord Ferrier, will be given consideration and will be carried by the House.
Lord Mackie of Benshie: My Lords, before the noble Lord sits down, is he saying that the Labour group, if they take power in the region next time, would reconsider their attitude? I understood that they had given a firm commitment that they would not proceed.
Lord Carmichael of Kelvingrove: My Lords, I said that I hoped they would reconsider their attitude. I do not know enough about the composition of the Lothian group. I just feel that matters such as this should not be tied up with party politics as they sometimes are—and I am speaking as a very committed party person.
6.50 p.m.
Lord Wilson of Langside: My Lords, I am encouraged by the circumstance that the noble Lord is not speaking from his Front Bench. He asserted that approval of this Bill would be crazy. He said that it would be crazy to rush it through. How detached from reality is that approach to this important matter of government?
In the background to the saga—because it has been a saga—of the Edinburgh Western Relief Road, there have been touches here and there of farce. I have great respect for the noble Lord, Lord Ferrier, and the evidence that he gave to the Joint Committee of this House, of which I was a member, was extremely valuable, useful and interesting, but I venture to suggest that approval of the amendment would reduce this saga of the Edinburgh Western Relief Road to one of complete farce.
That is not to say that there are no lessons to be learnt from the way in which the matter has been handled from beginning to end. I was a member of the committee. There were two lawyers on that committee: Mr. Fairbairn and myself. Throughout the proceedings, and up until the last day (when we came to be of the same mind), on almost every major issue

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that was raised we were in complete disagreement. There were many matters, incidental and otherwise, in which some of the lay members of the committee were not exactly completely unanimous. I mention that simply because I wish to pay tribute to the chairman of the Joint Committee of your Lordships' House and of the other place for her remarkable achievement of completing the work of the committee in a week less than the estimate, involving people of such different viewpoints as those I have described. That was a considerable achievement and we are all surely indebted to her.
There are of course lessons to be learnt from the proceedings and from the way in which the matter was handled. The first lesson—and it is an important one—stems from this question: why were the Scottish law officers not involved before the matter was referred to the Joint Committee under Section 9 of the 1936 Act? That got the committee's work off to a bad start. I wonder whether that lesson has been learnt by those with responsibility in the matter, in this unprecedented situation of the reference of a matter that had already been considered by a provisional order inquiry to a Joint Committee of both Houses. The matter came to us at large.
I am astonished that it should be asserted that the objectors to the proposals were not given an adequate hearing. It may have been that a planning inquiry would have been better from a variety of points of view. However, there was nothing unconstitutional, of which I am aware, about the chosen approach. Not only did the first inquiry spend the time to which reference has already been made (and I have forgotten how long it was) but we spent six weeks looking at the evidence. We heard all the evidence.
The matter was not a simple one but we reached the conclusion—and this was the matter before us—that the preamble to the Bill that sets out the circumstances under which the regional councils sought the construction of the road was proved. That was our opinion, after listening to the evidence and weighing it carefully.
I myself took pains to learn nothing about the rather pathetic party bickering that I gather has been going on in Edinburgh. The question we had to decide was this: is the preamble to the Bill proved? It was not a simple and straightforward question. It has to be approached judicially. Speaking for myself, I am bound to say that, on balance, I thought the quality of the evidence that was presented on behalf of the promoters was better than that presented on behalf of the petitioners. That was my view. It was on that basis that I found myself eventually persuaded that the preamble to the Bill was proved.
The second lesson to be learnt from the proceedings that we have had over the past year or two is that matters that are the subject of party political squabbles are perhaps not best sent to committees of Parliament. There may be room for that argument to be presented. It is a fact that about one mile or two miles of the railway between Glasgow and Edinburgh and between Edinburgh and Dundee had to be realigned because it was thought necessary to have the one form of inquiry; and the form of inquiry under the Private Legislation (Scotland) Procedure Act 1936 was the one that was chosen
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The third lesson that I hope will be learnt by those with responsibility in this area is that the implications of Section 9 of the Private Legislation (Scotland) Procedure Act 1936 should be looked at. To me, it is not wholly clear. We had some difficulty at the outset when an argument was presented as to whether our inquiry—and this point was pressed upon us and appeared at one time to receive acclaim from some members of the committee—should limit the remit that Parliament had sent to us.
As I understand it, it was finally accepted that there could be no limit on our remit to the Joint Committee because the other place had not put any remit on it. We took the view that it was not for us to limit the scope of our inquiry. Accordingly, for practical purposes we have all the evidence that was presented to us. That is why I find it very difficult to hear the complaint, still being repeated, that the objectors have been unfairly treated. It is an argument which was presented to us when the question of whether we should proceed with a full inquiry was being put. I find myself becoming increasingly impatient hearing it again urged upon your Lordships at this late stage. Of course it would have been better if the matter had gone to a planning inquiry; at least to the extent, if no further, that the objectors (the petitioners) if unsuccessful could not have blamed the Government.
I am conscious that I have perhaps not addressed myself as much as I should have done to the amendment of the noble Lord, Lord Ferrier. But I cannot believe that in the circumstances your Lordships will consider that at this stage it would be appropriate and proper to delay the implementation of the scheme for the Edinburgh relief road, the case for which two committees have found to be established. Accordingly I hope that your Lordships will reject the amendment proposed by the noble Lord.
7.1 p.m.
Lord Sanderson of Bowden: My Lords, I, too, hope that the House will reject the amendment in the name of my noble friend Lord Ferrier. I start by saying that the most important word in the whole Bill is "relief". The dictionary definition gives the meaning as "anything that relaxes tension". I have the doubtful privilege of driving in Edinburgh almost every week, unlike the noble Lord, Lord Carmichael, who is able to take the train. In the Borders we do not have trains so I have to drive my car.
Anyone who uses the Edinburgh road system will appreciate, particularly coming from the west end of the cit, that a bypass for the communities of Gorgie, Dalry and Corstorphine is something which the people who live there desperately need and have asked for. One need only go to the other end of the city to see the great developments in progress there now: that prong of the A1 which is going in from the outer city bypass, round the communities of Musselburgh and Portobello, taking the A1 right into the centre of Edinburgh. The people of Musselburgh, I know only too well, are longing for the day later this year when that bypass will open.
The communities in the western section are exposed to large volumes of traffic and this is mainly concentrated on the two principal roads—the A8 to

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Glasgow and the A71 to Lanarkshire. Consequently, these roads are overloaded, resulting in severe conflicts between through traffic, public transport, local traffic, shopping needs, pedestrians and schoolchildren, thus causing accidents, delays and frustration. Why should we in this House deny to the communities of Corstorphine, Gorgie and Dalry what is very quickly to become a reality in Musselburgh and Portobello?
I shall not rehearse the long chapter of stories about the planning of roads in Edinburgh. The city owes a great debt of gratitude to my noble friend Lord Ferrier for the actions he has taken to see that the outer city bypass is going to become a total reality by 1990. I am also glad of the assurance from the Lothian Regional Council that nothing will stand in the way of that being its first priority.
In March 1982 the Conservative Party manifesto for the Lothian Regional Council elections stated, under the heading "Roads", that,
"there are and will continue to be key areas of congestion such as Corstorphine Road … we will proceed with a limited programme in such cases including West Approach road"—
that is, the Corstorphine bypass. Since that date there have been many debates in the council chamber and outside it. More recently, in your Lordships' House a Joint Select Committee under the chairmanship of my noble friend Lady Carnegy of Lour has gone into the major arguments which have been put forward by the objectors to the scheme. I do not wish to go over that ground again but I believe that Members of this House will appreciate the point that local authorities are entitled to try to deliver a manifesto commitment given in 1982.
Objections there have been, but for me the arguments in favour outweigh the "no-road" option. One argument in particular is noteworthy; that is, the prospect of fewer accidents and relief from environmental pressure in Gorgie, Dairy and Corstorphine. Both the A71 and the A8 roads at present have a high accident rate, particularly at Gorgie/Dalry. There are about 300 accidents in west Edinburgh every year, about 100 of them involving pedestrians. The streets with the highest personal injury accident rate are those where there is conflict between a heavy volume of traffic and a concentration of parked cars, service lorries and pedestrians. The relief road will attract a substantial amount of traffic from these streets and in consequence reduce traffic conflict and accidents. Incidentally, it is the best way to improve conditions for public transport bus services on the main routes of the A8 and A71.
I know that objections have been raised that the road will increase the amount of traffic entering the historic part of Edinburgh. This was gone into fully by the Joint Committee and it has come out in favour, by a majority, of going ahead with the scheme. I do not want to elaborate on that tonight. All I would say is that the evidence which I have read convinces me that over a period of time the volume of traffic entering central Edinburgh has increased very little, despite a much larger increase in the volume of traffic on the outskirts of the city.
For example, an examination of the records of Lothian Regional Council's permanent automatic traffic counters shows that on the outside edge of the built-up area traffic growth amounted to 2·5 per cent.
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per annum, whereas in the central area traffic growth was virtually, zero. This restraint has been a consequence of restricting the number of car park spaces available. The restriction of parking in central Edinburgh remains the policy of Lothian region and that is the effective restraint on cars entering the city. I should say that the recommended route which involves the re-alignment of the railway has the highest road user benefits and the least detrimental environmental impact on the surrounding area. Above all, the adjoining communities will be relieved of real congestion in the streets.
I know the Edinburgh roads very well, particularly at rush hours, and I can tell your Lordships that it is not a pleasant experience trying to drive on these main roads out of the centre of the city. As a Scotsman I am also conscious of the beauty of Edinburgh and its unique setting. I am satisfied that the line of this road will do nothing to destroy that setting. With the removal of one single house and the greatest possible care in landscaping, this road will be a feature of which planners can be proud.
It will link that long-awaited outer bypass system and will be useful at the outer edge of the city. It will enable a shopping centre to be developed at that outer edge of the city in the western sector. Various stores such as Marks and Spencer and Asda have plans. I understand, to develop a large shopping centre on the edge of the city. It will bring needed employment opportunities for many people in the construction industry, and I understand that the Transport and General Workers' Union has given its wholehearted support to the development of the Western Relief Road. For those reasons I commend the Bill to the House and I hope that the amendment for delay will be rejected.
7.10 p.m.
Lord Beloff: My Lords, it is customary in addressing your Lordships' House to declare an interest in the matter under consideration. Perhaps the converse should be true, and so I wish to declare that I am totally disinterested in the subject under debate this afternoon. I rarely visit Edinburgh, I do not drive a motor car and therefore I have no personal information or desire for further information on the substance of the subject. In fact my disinterest is such that I might almost be described as uninterested.
However, I address your Lordships for two reasons. First of all, because it seems desirable that at least one speaker in this debate should not be a Scotsman. After all, this is the Upper House of the Parliament of the United Kingdom and it seems to me appropriate that it should fulfil its role. Of course it may be that at some future date the Act of Union will be repealed. Sometimes when I have to listen to Scottish business being debated I would not profoundly object to that coming about, but as long as we have the Union we are the Parliament of the United Kingdom. I think it is desirable that this should be recognised outside and even in Scotland.
The noble Lord, Lord Ferrier, referred to a large number of communications for and against the proposed road which he thought had reached many noble Lords. Not a single communication has been addressed to me and I can only assume that people feel

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that only Scottish Peers have a voice in matters that affect Scotland. That, then, is my first reason for speaking.
My second reason is that I wish to appeal to the noble Lord, Lord Ferrier, to withdraw his amendment, and I do so on constitutional grounds. As has been explained by the noble Lord the Minister and the noble and learned Lord, Lord Wilson of Langside, the procedures which have been laid down for considering matters of this kind have been fully carried out. The Bill that we are considering has passed through all its stages in the other place and has received its final reading there. There has been a joint committee which has inquired exhaustively into the subject and reached a conclusion on grounds which my noble friend Lady Carnegy will shortly be putting before the House. In the light of that situation, it would seem to me that the normal course for the Upper House to take in the case of a Bill to confirm an order of this kind is to give it a Second Reading. I assume that the choice of date for today's Second Reading was agreed through the usual channels and that there is no objection on grounds of undue haste.
The amendment suggests that the House should subordinate its consideration of the Bill to local elections taking place in the Lothian region. This seems to me to cast considerable doubt on the sovereignty of Parliament itself. If Parliament has gone through the prescribed procedures and is proceeding to legislate, can it seriously be asked to delay this process because local elections are taking place, even when, as it is agreed, they are occurring in the area which is most immediately and directly affected? If we accept that view, it seems to me that we lay down a precedent for the future.
Let us assume that the party political composition of the council changes and that the new majority produces some alternative scheme which again goes through the procedures of Parliament and comes before us. By that time more elections may be about to take place and we may again be asked to postpone our decision in case the new elections restore the majority which exists today. That does not seem to me to be a dignified position for the Mother of Parliaments, and we, as part of Parliament, ought not to accept this kind of subordination.
If we think that the Bill is right, if we are convinced that the procedures have been correct and if we have confidence in the report of the Joint Select Committee, it seems to me that our business is to give the Bill a Second Reading without further ado. Because I am sure that, with all his devotion to his own views of the future of transport in Edinburgh, the noble Lord, Lord Ferrier, thinks, as do all noble Lords, that in the end the Constitution is the most important thing that we must here preserve, I appeal to the noble Lord to withdraw his amendment.
7.15 p.m.
Baroness Carnegy of Lour: My Lords, from its inception the noble Lord, Lord Ferrier, has been the doughty fighter that we know him to be against this road. As has been said, I was chairman of the joint committee. We spent 17 days examining in great detail the evidence for and against this road. At the end
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we decided by a clear majority that the case for the road had been made and that it should be built. We then had a number of amendments proposed to us, and among them was an amendment that would have had the same effect as the amendment moved this evening by my noble friend. We rejected that and the other amendments, and our final decision, by a clear majority, was as stated by my noble friend Lord Gray, that the order ought to be confirmed without amendment and that we would report our decision to both Houses.
I do not like to disappoint my noble friend Lord Beloff, but in the circumstances of a joint committee of this kind it was not our duty to produce a report giving our reasons. It was simply the decision that was required; that was our advice and that was what we gave. Because we did not produce a report, there are not agreed reasons why we came to the conclusion that we did, and so in justice I must give my own reasons and what I believe are those of the majority of my colleagues on the committee, though I cannot speak for all of them.
Having known very little indeed about the issues of the relief road beforehand, apart from what I had read in the press, I became convinced that the road was not only needed but urgently needed and that the need was mounting every day. I came to the conclusion that the road is extremely carefully and well designed to meet the need it is required to meet. That is not at all like the need in Glasgow about which the noble Lord, Lord Carmichael, was talking before that other road was built. It is a different need which requires a different solution. It is not at all an out-of-date road. It is a road designed for travelling at only 40 mph, a road designed to fit into the scene as far as it possibly can and a road designed to meet the constraints of the rest of the policy, agreed by both region and district in Edinburgh, that it is desirable that no more vehicles should be allowed to enter Edinburgh than enter at the moment. It is designed to meet all those factors, and I came to the conclusion that it was a design that was going to work.
I also agreed with the majority of my colleagues that we should not accept an amendment delaying the Bill. Every day puts up the cost. The delay caused so far by all the discussion on the road has cost a great deal of money, as my noble friend Lord Ferrier told us. The cost will go on rising if the delay continues. In my view, it would be quite wrong to ask the people of Lothian region to reconsider the issue as they would have to reconsider it if it became part of the emotional atmosphere of an election campaign.
It was, as my noble friend Lord Sanderson has reminded us, a manifesto commitment the last time round. Since then, millions of pounds of ratepayers' and taxpayers' money have been spent on designing the road, consulting the public and responding to the public consultation; and on two hearings, one of 52 days and another of 17, with learned counsel on both sides, almost entirely paid for by the ratepayers of Lothian region and Edinburgh district. That consideration would become mixed up with all the other election issues that are bound to arise. There is no such event as a single issue election. The election will doubtless be concerned with employment, education and rates issues as well as other matters.

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Those are the reasons I voted against amending the Bill and so delaying it. Those reasons, I suggest, should be your Lordships' reasons this evening. In passing, I must say that it is, as I see it, by no means certain that the Labour Party, if it came to power following the elections, would not want the Bill. As your Lordships have heard, at least one big union, a very big union the Transport and General Workers, is strongly in favour of the road as, I believe, are others. So are very many people who live in the area and in other parts of Edinburgh who are doubtless Labour supporters. It is not a clear-cut political issue.
From the evidence before the Joint Committee, the need for the road was, in my mind and in the minds of the majority of the committee, definitely proved. Eighty thousand people are living amid traffic congestion that is far worse than the level accepted Internationally as tolerable. Some of the roads at present have more than twice the congestion that is acceptable. One, St. John's Road, has more than four times the amount that is considered acceptable. We heard detailed factual evidence of unacceptable noise levels, unacceptable accident levels, problems for shoppers and problems for those wishing to cross the road. We heard an estimate of traffic increasing by 10 per cent. between 1983 and 1988, an increase of 5,000 vehicles a day. As drivers avoid bottlenecks, where there are especially bad blockages, traffic is increasingly going on to side streets in the area. The situation is deteriorating for more and more people. Anyone who travels, as I do regularly, to and from Edinburgh through these streets knows the problem well. The committee went to see for itself. But it was above all the facts that we heard that established the need.
As my noble friend Lord Ferrier said, a large number of groups, many of them small groups, but also large groups, have objected. One of those is the National Trust for Scotland. I do not know on what grounds it objected, or how it came to its conclusion. I have not been able to find out. I am a life member of the National Trust, and no one consulted me. I respect the decision made by an excellent organisation. I have great faith in it. I do not know, however, the extent of the evidence that was before it or how up to date that evidence was. The Bill has been considerably amended since it was first discussed.
My noble friend Lord Ferrier hopes that the bypass and the extension of the M.8 motorway from Glasgow will be enough to relieve the congestion. But it became clear to the committee that this will not be the case. This road is part of a package designed to take those who want to get to the other side of Edinburgh round a ring road without entering the city and to enable those wishing to reach the centre of the city to do so without causing congestion and discomfort to people living along the route. It is also the aim that the result should not be more vehicles in the centre of the city. The package is the outer city bypass, the extension of the M.8, relief roads at Musselburgh and Portobello in the east of Edinburgh, following the same idea as that in the west but under way without any fuss, and the relief road in the west.
If the relief road that we are now discussing is built, there will be further traffic and environmental
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improvements in Edinburgh that would not be possible without it. My noble friend Lord Ferrier suggests that we should wait to see if the bypass and the M.8 extension work before going ahead with the relief road. Quite apart from increasing congestion over the next two or three years until those roads are opened, we heard in the committee the figures relating to the effect of the opening of the committed roads in the area we are talking about. When those roads are opened, with all the other roads that are planned, there will be some relief all along the A.8 road, the present Glasgow Road, and to parts of the A.71 to Kilmarnock. But, without the relief road, some roads will be considerably worse as a result of the other new roads in the package. Gorgie Road will have 34 per cent. more traffic, Dairy Road will have 9 per cent. more and Stevenson Drive 31 per cent. more. It cannot be said that there is no urgency about this.
My noble friend Lord Ferrier's concern that the money for the relief road might delay completion of the bypass was dispelled entirely by what my noble friend the Minister said. The committee was assured that the region had in hand the funding of the roads being built simultaneously. Last week, with Scottish Office agreement, the region underlined this ability by introducing more flexibility in its treatment of the capital programme and the revenue programme. As your Lordships will know, a road is financed by borrowing. An arrangement is being made involving private money and deferred purchase agreements in order to introduce more flexibiity. We can be sure of only one thing—that delay in building the road would put up the costs. To delay further will put them up very likely beyond reach. It seems essential to allow the road to go ahead now.
It is possible that some noble Lord will query the costs for the petitioners, as reported in the press, not quite correctly but very nearly correctly. The committee was asked to amend the Bill to add to the costs that had been awarded to the petitioners by the commissioners in their findings in Edinburgh.
As a general rule in Private Bill proceedings, parties pay their own costs. We would advise that under the Parliamentary Costs Act of 1865, as applied by the Private Legislation Procedure (Scotland) Act 1936, a joint committee such as ours on an Order Confirmation Bill may award costs to petitioners against promoters where a preamble is not proved, or the committee has amended the Bill for the protection of petitioners, and where, at the same time, petitioners are thought to have been unreasonably or vexatiously subjected to expense in defending their rights. Neither of these conditions applied. The preamble was proved. No amendment was made to the Bill. The Cockburn Association could not, in all honesty, be said to have been vexatiously treated, we felt.
The committee did all it could to fit in with the witnesses' convenience as to the times when they gave evidence. They did not do it all together at the time that had been planned. Some of them were coming to London anyway. The costs were not known because the Cockburn Association were sharing counsel with Edinburgh District Council and the facts were not available to us about how these costs were to be allocated. We therefore felt bound by the Act and could not add to costs already awarded by the commissioners on the face of the Bill.

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The road itself has been the subject of most careful planning to ensure that it looks as good as any road can with plenty of trees and shrubs, a cutting at one point to limit noise; at another point raised to avoid disrupting industry, with a number of exits, and a car park at the end so that people need not drive on into the city. It is planned so that no extra traffic will be forced upon the central area of Edinburgh. Your committee went into those facts very carefully indeed. It was interesting that the technical experts for the petitioners agreed with the promoters that it could not be proved that the traffic would increase.
The history of the road shows that until two years ago both regional and district councils were enthusiastic. It was two months after the present district councils was elected in May 1984 that they revoked the planning permission given by their predecessors.
It is interesting that no official of the district council gave evidence to us. Nor did the convenor of the council or the chairman of the planning committee. We had an excellent witness in the form of a local councillor who lives in the area affected, who was very helpful to us, but no one else from the district council itself.
Your Lordships have heard many arguments, and will hear some more. It may not be the details upon which you have judged the case. I have not given your Lordships all the figures; I cannot do so because there is not time. But I can only assure the House that we have been through this with a fine toothcomb and that we did it as objectively as we possibly could. Most of us began knowing very little about the case. We ended up knowing a good deal. I ask your Lordships to reject the amendment and to give this Bill a Second Reading.
7.35 p.m.
Lord Galpern: My Lords, as a member of the joint committee, may I join the noble and learned Lord, Lord Wilson of Langside, in paying a tribute to the chairmanship of the noble Baroness, Lady Carnegy of Lour, for her courteous and conscientious conduct of the proceedings.
The forum of this Order Confirmation Bill coming before us this evening ranks with the Halley's comet in its periods of appearances. The last one took place 75 years ago. I would have no hesitation in recommending the noble Baroness to preside over its next appearance if it ever occurs. However, I am confident of one thing: that I speak for all members of the joint committee that this form of procedure should never again happen. Although the noble and learned Lord, Lord Wilson of Langside, has indicated that he will vote against the amendment of the noble Lord, Lord Ferrier, the noble and learned Lord said that he felt a public inquiry would have been a more reasonable and just method of dealing with this highly complex matter.
It would be unfair of me to use the evidence of the objectors to the proposed road as the noble Baroness, Lady Carnegy of Lour has used the evidence of the promoters. It would keep your Lordships here all evening, and would be too complex. But it would have been fairer when the noble Baroness put forward some views as to how many accidents would be prevented, and how many minutes would be saved if we built this new road if, at the same time—as the noble Lord, Lord
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Beloff, would have liked here to do—the noble Baroness had put forward for consideration what the objectors' opinions were regarding their claims. That has not been done. However, I am glad that the noble Baroness has mentioned (I do not know whether it was reluctantly) that the findings of the confirmation of the preamble were by a majority. The noble Lord, Lord Sanderson also mentioned this. There was a very definite belief that the objectors presented a far stronger case against the relief road than the promoters put forward in favour of it.
Perhaps I may say how delighted I was to hear the declaration of the noble Lord, Lord Beloff, of disinterestedness in this project. The noble Lord would have made an excellent member of the committee because, if we had had some members with the same viewpoint of disinterestedness listening to the evidence, the noble Lord would not have made the speech he made this evening. He would have been supporting the amendment. I shall later on give the reasons why I believe that the noble Lord would have done so. He is able to judge facts upon their being submitted to him.
The 52 days spent by the parliamentary commissioners and the 17 days by the joint committee could have been avoided if the normal practice in such cases of road development had been followed; namely, the holding of an independent public inquiry. I am glad that the noble and learned Lord, Lord Wilson of Langside, supports that. This is not a world-wide debate that we are having here today. It is not even a national debate. It is a purely local issue affecting Edinburgh. As such a different procedure ought to have been adopted.
The noble Lord, Lord Beloff, said that we should not be called upon to postpone this because we are the sovereign body of Parliament, and all the procedures have been gone through. Those were all the procedures to which they were entitled. But they were not the only procedures. This is one of the critical matters and one of the important aspects at which we have to look tonight in asking that this matter be delayed until the Lothian elections.
The way that they should have proceeded, in which they were entitled to proceed, and which they launched in the beginning, was an entirely different way of dealing with this matter than by Parliamentary order. Just for the sake of giving the facts of the case, it should be noted that in its minute of 3rd October 1983 the Transportation Committee of the Lothian Regional Council carried a motion to construct the Western Relief Road and instructed the Director of Highways to submit a planning application—not a parliamentary order—in accordance with the drawings submitted to the Transportation Committee on 3rd October 1983; and instructed the regional solicitor to prepare a parliamentary order for authority to implement the necessary rail diversion.
There has been no mention so far this evening of the rail diversion; that is, the railway running between Glasgow and Edinburgh. It will require diversification which will cost millions of pounds to achieve. However, to obtain the powers to carry out that alteration will require the creation of a parliamentary order. Some people will say that there will be months when the line will be out of use altogether, and if it is

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ultimately carried out, then instead of a straight, direct line from Glasgow to Edinburgh, there will be a whole series of curves on the route, which nowadays we are trying to avoid in favour of straight lines.
Therefore, the Lothian Regional Council had actually decided to carry out the alternative method which was open to them: to make a planning application for the construction of the road; and, as required by law, to have a parliamentary order for the necessary rail diversion. This is where the parliamentary order first appears in the minutes of the Lothian Regional Council. Then, by a minute of 11th October 1983, the full regional council confirmed the Transportation Committee's decision by a majority. It was a very narrow majority and I do not have the exact figure, but it varies between a majority of one and a majority of two. I do not know how that was arrived at; but that was the size of the majority.
On 28th October the planning application for the road was submitted. Therefore, the intention is confirmed that they would proceed with a planning application, which would have led either to its acceptance or rejection, or in all probability to a public inquiry. Therefore, the action was to proceed with a planning application for the road—and that was done—and for the diversion of the railway by a parliamentary order. There was a way of saving the amount of money which would be spent on printing and the holding of hearings (about which we have heard) which I am sure must amount to at least £2 million or £3 million. That way was to hold a public inquiry.
The amendment proposed tonight by the noble Lord, Lord Ferrier, tries to remedy the situation. Why was there a change in the procedure? Having agreed on these two separate methods of approach—one for the road and one for the railway—why did they change the procedure? Is it reasonable to conclude that they were afraid of losing their case at a public inquiry because of the overwhelming objection to it? Mr. Michael Martin, Member of Parliament, who was chairman of the commission in Edinburgh, said in another place on 4th December (at col. 365 of Hansard):
"As Parliamentary Commissioners, we received strong legal advice from the clerks, who are also counsel to the Secretary of State for Scotland, that every statutory means should be used by the local authority before it sought a parliamentary inquiry".
That was advice given by the clerks to the Parliamentary Commissioners.
Nevertheless, again by a majority, it was rejected. In my 50 years of public life I cannot recall such tremendous public opposition to and so much controversy over the construction of a road as there was in this case. The noble Lord, Lord Ferrier, referred to the amount of publicity given to this road in the press. I have had to buy an additional briefcase to carry all the information which I have cut out just for the month of March. That illustrates the great controversy and this is the issue at stake tonight.
Lord James Douglas Hamilton said in another place on 4th December (at col. 356 of Hansard):
"For many years I have been a life member of the National Trust for Scotland and the Cockburn Association. If I believed for one moment that the Bill would damage their interests, I should not be proposing it".
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The honourable Member was a principal sponsor of this Bill in the House of Commons. Let us examine for a moment why the Cockburn Association and the other 37 objectors object to the Bill. My Lords, is there something wrong?
Lord Campbell of Croy: My Lords, the noble Lord has just moved from the point; but if he was quoting something said in the other House which was not said by a Minister during this current session, that would not be in order.
Lord Galpern: My Lords, I should have known that and I am sorry. I am getting on in years and after 50 years in public service I am not as young as I was, and my memory is not so good. I apologise. One can of course paraphrase but not quote directly?
Lord Campbell of Croy: My Lords, yes.
Lord Galpern: My Lords, the question to which I ask your Lordships to address yourselves is: what are the interests of the Cockburn Association and the National Trust for Scotland? Let us look at who is the president of the Cockburn Association. It is the honourable Lord Cameron, KT. The chairman of the council is the honourable Lord Cullen. One is an office bearer and the other is an honorary president. I want to quote them to show whether there are any political decisions in the opposition by the Cockburn Association. There is a total of 38 organisations against the Bill, representing at a minimum 300,000 citizens. Surely they are not against the Bill because of party political reasons. They have only one interest, which is the quality of life in Edinburgh, and that has been the mission of the Cockburn Association throughout its years of existence. Surely some regard ought to be paid to the position they have maintained throughout the years. They have saved Edinburgh from the kind of mismanagement, as referred to by my noble friend Lord Carmichael, that happened in Glasgow. I do not entirely agree with him, but nevertheless it could happen. Everything is all just projects, theory, and we do not know what will happen.
How can you estimate what the number of accidents will be on a new road? We wanted to move an amendment, as the noble Baroness, Lady Carnegy of Lour, has pointed out, that motorists will only be allowed to travel at 40 miles an hour. They wanted to make sure that that would be the case, and they moved an amendment that that should be included in the order. It was defeated on a vote, three to three. It was a simple, innocent, non-political measure to make sure that if the road ultimately succeeded and it was built, it should be restricted by law to 40 miles an hour; and the vote was three to three.
Baroness Carnegy of Lour: My Lords, does the noble Lord not agree that the reason some members of the committee did not want that speed limit to be on the face of the Bill was that one does not include in legislation points that need not be included? As the road is only designed, as I said, for travel at 40 miles an hour it cannot possibly be faster, so there was no need to make the amendment; and that was the reason.
Lord Galpern: My Lords, I am obliged to the noble Baroness. I have always understood, and I have heard it over and over again that our legal luminaries and judges, when they consider something under an Act of Parliament, say that they have to go by what the Act of Parliament says. If it was not included, then they are not going to accept it. Mere promises in a debate do not count: it is what appears in the final Act after it goes through both Houses of Parliament. We are only asking to ensure that we should restrict the speed to 40 miles an hour.
There are a lot of arguments. I did not want to go into detail in regard to the noble Baroness's presentation of the case. But let me list just a few of the objections made by the objectors. The proposal to construct a Western Relief Road is premature. It should be shelved until the effects of the outer-city bypass, which is scheduled for completion in 1990, are known. Now we know that the vital Sighthill section, presently under construction, will be opening ahead of schedule early next year.
A Western Relief Road will be contrary to the objectives of the Lothian region structure plan in relation to the reduction of traffic in central Edinburgh. The new road would probably increase the amount of traffic coming into the city. The scale of environmental relief forecast by Lothian region has been overestimated. The little, if any, environmental benefit which will arise will not justify the early construction of the road, and residential locations adjacent to the road will suffer badly.
Let me say here that the noble Baroness, Lady Carnegy, mentioned that Edinburgh District Council produced only one witness. She will recollect that on at least two occasions she made requests to the counsel who were appearing before us not to go over unnecessary evidence, and to restrict the evidence as much as they possibly could. In the light of that, and in view of what they had been asked to do, they said that they would alter the lists. One said that he would alter his list of witnesses in order to please the committee, if that was the committee's wish.
Any traffic volume produced by the new road will have an adverse effect on communities in central Edinburgh, including Lothian Road, Tollcross, and the historic new town. One of the main complaints was that they had not given full consideration to what are called the "no road options". Little if any thought has been given to alternatives such as traffic management measures, which are very important, junction improvements, marginal road alignments, and the introduction of long-stay parking restriction measures. The new road would involve the loss of valuable recreation and amenity ground, and undoubtedly create environmental problems through noise and pollution.
While Lothian region have carried out certain economic and environmental proposals it has been demonstrated that the benefits have been overstated, and certainly do not justify the expenditure of some £37 million. Of course we have had considerable millions added to that by the noble Lord, Lord Ferrier. I think he mentioned £94 million, or even more. We know that it will be rising to a figure, including interest and other charges, of somewhere about £94 million and not the £37 million we are asked to consider
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tonight. It is felt that expenditure of this magnitude could be directed to more pressing and deserving causes such as education, social work and health services.
May I say in conclusion that Lord Ferrier's amendment is a good sound, practical proposition? I understand that Lord James Hamilton said—and I am paraphrasing this time—that Edinburgh has been waiting for 50 years for this road, and that if natural justice was to be done they would not mind waiting a few weeks more. That is precisely what Lord Ferrier's proposition does.
They have made up their minds that if you support the amendment this evening it will allow the electors of the Lothian region to have an opportunity to express a viewpoint which was denied to them by the Lothian region failing to hold a public inquiry. There is nothing unfair in giving them that form of justice. No great harm will be done. Another few days' delay in order to give justice should merit support.
I hope that the amendment will be carried this evening. We will wait a few more days and deal with the situation. We are not rejecting the Second Reading. We are not rejecting this new length of road. We are simply asking that the people who are going to be involved in this in Edinburgh in a few weeks' time, by 8th May, should have an opportunity to express an opinion which was denied them and which could have been offered to them at an earlier stage.
Lord Wilson of Langside: My Lords, before the noble Lord, Lord Galpern, sits down, perhaps I may pursue two points he raised in his speech. He said that he was glad to see that I was in favour of a public local inquiry. If I gave that impression, I failed to express myself with clarity, either because, like the noble Lord, Lord Galpern, I am getting old, or perhaps, because of the lateness of the hour, I was anxious to say what I had to say as quickly as possible.
The reason that a local inquiry was not possible was because the purposes of the order, including moving a mile of the railway line, could not be effected without an order confirming them by Parliament. I meant, if I did not make it clear, that that was what excluded the public local inquiry, which I acknowledged, and in another context that would have had certain advantages. That is the first point.
The second point is that the noble Lord, in his well-deserved tribute to the noble Lord, Lord Beloff, said that it would have been a good thing had he been a member of the committee because he was completely disinterested. I am sorry the noble Lord, Lord Beloff, is not here. I agree that he would decorate any committee of your Lordships' House. I just hope that the noble Lord, Lord Galpern, did not unintentionally appear to imply that those who voted for the view, as I did, that the preamble of the Bill was proved—which was the only thing that really mattered—lacked disinterest.
Lord Galpern: My Lords, I am glad that the noble and learned Lord, Lord Wilson of Langside, has made this intervention. If I am wrong in thinking that he said during his speech that he was in favour of a public inquiry—and I am sure we shall see whether he did not say so in tomorrow's record of the debate—I apologise to him.
Lord Ross of Marnock: My Lords, may I say to my noble friend that we both need to apologise? I need to apologise to myself because I took down the words that the noble and learned Lord, Lord Wilson, used, and they were that it would have been better to have gone to a planning inquiry.
Lord Galpern: I do not know the exact words, my Lords.
Lord Wilson of Langside: My Lords, I explained myself as best I could. If I did say that, it was a silly thing to say, but I have heard the noble Lord say silly things here and I do not always ram them down his throat.
Viscount Davidson: My Lords, I think the House is getting out of order; the noble Lord has sat down.
8.2 p.m.
Lord Stodart of Leaston: My Lords, I say with some feeling that controversy in matters of transport seems always to concern the western part of Edinburgh. Some 10 years ago there was just a little controversy about a runway. If I may say this to the noble Lord, Lord Galpern, the one thing I am thoroughly sceptical about is statistics which are given in forecasts for 20 years hence.
I have had the advantage of reading much of the transcript of the Joint Committee's deliberations. One question which the noble Lord asked, or perhaps the answer he received, appealed to me. At one stage when figures were given for the number of motor cars in the year 2006, he asked "Might there not be no motor cars in 2006?". The answer was—and this is what appealed to me—"The Government have examined this with great care".
This did not cut all that much ice with me, because I can remember that over 20 years ago there were tremendous deliberations going on in another place, and maybe here as well, as to whether we ought to build the QE2. I remember Mr. Ernest Marples coming to reassure Back-Benchers. He said that the British Government and the Treasury research unit, which was unsurpassed for its ability to see into the future, had done a study and had come to the firm, rock-bottom conclusion that there would be enough people wanting to travel across the Atlantic up until the end of the century to warrant the building of this great liner. I think that no liner now sails across the Atlantic.
When I read these figures plucked from the future, I prefer to deal with the position as it is in Edinburgh at this moment. Of that position there is no doubt. The approach roads from both the east and the west into the city are heavily congested; in the east, as my noble friend Lord Sanderson of Bowden said, Musselburgh, which I think may fairly be described as the counterpart of Corstorphine in the west, is being bypassed at the moment, with unanimous approval as far as I know. The vehicles which are going through it every day—25,000 of them at the moment—will be reduced to 11,000 when that bypass is completed.
In the west, the roads through Corstorphine, and broadly speaking the Stenhouse area, are also carrying excessive loads. The accident figures have been given;
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I shall not repeat them. I merely say that the one figure that was not mentioned is that on those two roads there have been 21 deaths in the last three years, an average of seven every year.
It seems to me that there can be no question that the proposed new road, which will go right up in between the A.71 and the A.8, will relieve things. If I may say so to the noble Lord, Lord Carmichael, there is no question of it being an expressway; that is not the intention. It is a relief road.
Lord Carmichael of Kelvingrove: My Lords, I think perhaps the use of the term "expressway" was a technical one. I used it loosely. It is a technical term meaning that there are no impediments. It does not necessarily mean that it is a fast road in technical terms. It does not mean it has a 70 mile an hour limit; it means that there are no junctions or lights and people go through.
Lord Stodart of Leaston: My Lords, one gets the impression when the term is used of cars hurtling from Glasgow in their anxiety to reach the more salubrious atmosphere of Edinburgh, and maybe that is what they will want to do in the other direction. One should not ignore the fact—and this has not been mentioned—that the police in all their evidence have expressed strong opinions in favour of the building of the road.
Now we come to what I think is the major problem. It is what I would call the "Usher Hall" problem; the emergence of traffic onto Lothian Road. I am bound to say in all honesty that I am not convinced that a problem may not develop there. I know all the figures say that it will not. The fears of this may well be exaggerated. But before Lothian Road is reached there is to be a car park in which parking time is to be limited, entry to which can be gained only from the relief road and from which cars may emerge only onto the relief road and go west. They cannot get out onto Lothian Road from that car park. If it were not for that and for the fact also that in between the beginning, in the west, of the relief road and the Lothian Road end there are to be three slip roads, one into Roseburn, one into Dundee Street and one into Haymarket, I should say that indeed there would be unchallengeable substance for the "Usher Hall" objections.
If I may give an example of what I think will happen, many motorists at present drive through Corstophine into Murrayfield. They then turn left up Murrayfield Avenue, they go over Ravelston Dykes down into the Ferry Road area on the north. With the relief road, they will do exactly the same thing except that they will relieve the bottleneck in Corstophine. They will go up the relief road, go to the Rosemount Spur, turn left down into Murrayfield again and over to the old route.
There are some who say "Wait for the bypass". That is not what my noble friend's amendment is about. The bypass is not, as the noble Lord, Lord Carmichael, remarked, a matter of waiting two years. The bypass will not be complete until 1990. My noble friend's amendment suggests that we should wait until after the regional elections. I feel that the fact that it was in the region's manifesto is a considerable reason for giving the region liberty to carry out its commitments.

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Several of your Lordships have mentioned the indignation that there is in Edinburgh. I am not nearly as closely in touch with my old constituency as the present Member of Parliament, Mr. Fletcher, who has inherited part of it. Mr. Fletcher gave the opinion in another place that if Edinburgh were evenly divided on this there might be a majority against the road. I question that assertion. I still have many friends and I do not find these strong feelings.
It is not totally insignificant that at the height of the first inquiry by the Parliamentary Commission sitting in Edinburgh, with publicity galore, there was a by-election in the Murrayfield ward, the heart of the indignation. Why was there a by-election? The reason was that the convenor of the Lothian Transport Committee—some might say the evil genius who invented this ring road and who put tremendous energy into advocating it—had died. I agree with my noble friend Lady Carnegy that one cannot have a single issue dominating a by-election, but I did not expect that his successor in the same party would receive about 93 per cent. of the votes with that controversy going on at the time.
The provision having been in the manifesto and the preamble of the Bill having been found to be in order, I am very much in favour of allowing it to proceed.
8.13 p.m.
The Earl of Dundee: My Lords, to begin with there appears to be a strong case against this Bill, quite apart from the separate issue of the amendment which seeks to deny it a Second Reading tonight. This case is based on some very plausible assumptions about certain unwelcome effects which the proposed Edinburgh Western Relief Road might possibly produce. There is the allegation of its apparent irrelevance in purpose and in cost, given that a city bypass is to be constructed anyway; or irrelevance at least until the bypass has been completed in the first place. Then it can be seen to threaten the Lothian road, or the Usher Hall area, to which my noble friend Lord Stodart referred, where traffic congestion alleviated in the Gorgie-Dairy and Corstorphine area might simply be transferred. Equally it is contended that the greater ease of approach afforded by the relief road would encourage an increased number of vehicles and thus an unacceptable daily volume of traffic to the city centre.
Naturally these considerations have caused much anxiety, and in the absence of any professional evidence to the contrary they would constitute grounds for not proceeding with this Bill. As we know there is now such professional evidence to the contrary, which is why a parliamentary commission lasting for three and a half months came out in favour of the Bill; and more recently why a joint committee of both Houses of Parliament, lasting six and a half weeks under the chairmanship of my noble friend Lady Carnegy of Lour, reported it to Parliament without amendment.
During these processes, as we are also aware and as my noble friend Lady Carnegy has just reminded us, it has been demonstrated that the city bypass on its own, or in combination with more effective use of public transport, would not achieve the desired environmental objectives which can be brought about by the
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relief road. Secondly, the relief road will not significantly add to existing traffic in the city centre nor lead to greater and unacceptable levels of congestion in that area.
If we were debating this Bill before the Parliamentary Commission reported, many of us would have shared the misgivings concerning the Western Relief Road, even though these had not then had the chance to be examined. Those of us who might have started with fewer misgivings would still not have wished to support the Bill until professional evidence and opinion had been introduced and assessed.
I come now to the amendment proposed by my noble friend Lord Ferrier. At present there is a majority on the regional council who approve of the relief road. Next month, after the elections, there might be a majority who do not. Therefore, why should the final parliamentary stages of this Bill not be postponed until the newly-elected regional council is in office in May? Linked to this question is the nature and context of current opposition to the road, and the distinction between this and the previous context of opposition before the commission's report.
Long before the commission's inquiry, owing to the measure of uncertainty about the consequences of the relief road and to corresponding fears in the Edinburgh community, it was very natural that both party political and non-party political groupings should have been formed over the issue. This process has played a useful part in focusing public attention and in leading to an exhaustive parliamentary inquiry. However, after the conclusions of that inquiry the context of opposition inevitably becomes very different, even if the objections themselves may remain more or less the same. That is not to say that current objections are unimportant. There are those with sound knowledge and expertise in many aspects of town and road planning who are still worried about the proposal. Nor, of course, is professional evidence when given in this field (as is also the case in all other fields) in any way infallible. But while opposition to the relief road was able to lead to a full and useful inquiry in the first place, the continued opposition now, even if well informed and genuinely upheld, in context seems to amount to an amateur rejection of professional opinion.
Thus it is probable that serious opposition will not in fact be continued and sustained. Nevertheless, in May the regional council will either approve or not approve the Western Relief Road. For that reason alone it should be asked why the parliamentary stages cannot wait accordingly. While it would set a very unwelcome precedent, as my noble friend Lord Beloff has already explained to us, it would at least be logical if they did wait and hence also consistent for us to take note of the effect of there being a newly-elected council next month on our decision this month. Yet, equally, there is good logic in the converse, that we should take note of the effect of Parliament's decision this month on the newly-elected council next month. If we do not give the Bill a Second Reading and the parliamentary stages are still incomplete next month, then the newly-elected regional council, of whatever party political control, will have grounds for believing that the case for the relief road, as evidenced to the commission, does not have the full backing of Parliament.

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In my view the full backing of Parliament should now be given to the case for the relief road. For that reason I cannot support my noble friend's amendment, but instead would support that this Bill be given a Second Reading tonight.
8.19 p.m.
Lord Campbell of Croy: My Lords, I quite understand the concern of my noble friend Lord Ferrier. He has been a powerful advocate for an effective bypass of Edinburgh over many years, as he reminded us this evening. He has pressed for that and I know that he has worried because he thinks that this new Western Relief Road will hold up the work on the bypass. That is one of his concerns.
I have examined this as far as I can and I have been satisfied by the assurances that have been given that no resources are to be transferred to the Western Relief Road from the outer-city bypass and that that bypass should not therefore suffer any delay as a result of this Bill. We also have heard during the debate that some amenity bodies, very respectable amenity bodies in Scotland, raised objections at earlier stages. Again, they seem to have done this because of their estimates of traffic arriving in the centre of Edinburgh and what the effect would be on the centre of Edinburgh. The noble Lord, Lord Carmichael, spoke on that point and he was absolutely right to say that if that were a threat to the centre of Edinburgh many of us would be extremely anxious. But it is a matter of judgment and opinion, to a certain extent. I certainly do not think that the relief road would lead to great changes to the centre of Edinburgh.
He spoke about the situation in Glasgow. Whether or not one calls those new roads there expressways, they are roads which were deliberately built to go through the city and to the centre of the city, and that is a quite different intention from the relief which this proposed road would bring to the western area of Edinburgh. The need for a relief road to assist the residential and shopping areas and the communities on the west side of Edinburgh is there. Now, many stages have been completed for the project to go forward. A specially high grant, I understand, is coming from the Government for this new relief road. Much time in the past four years has been spent on enabling objections to be heard and I believe that this evening we should make sure that the Bill goes through.
8.22 p.m.
Lord Ross of Marnock: My Lords, I should apologise for the fact that my name does not appear on the list of speakers. I could not be here yesterday and I did not know that I was not going to be here; so that I could not be forewarned and send a letter to say that I should like to speak.
We are grateful to the Minister for doing what he could in respect of this road. I am not going to quote all the usual things, because the Government are supposed to be neutral on this; although I do not know how the Government could be neutral in respect of something that is probably going to cost up to £40 million by this time. If you take the interest charges and the rest, which I gather have been increased by the way they are now intending to fund the capital
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required, the cost will amount to something over £96 million. How the Government can be neutral on that I find very difficult to understand. I thought that if the noble Lord, Lord Beloff, was doing his usual thing of being interested in anything, he would have been interested as to whether or not this could be justified.
I think we are grateful, too, for the information given by the noble Baroness, Lady Carnegy of Lour, because she had the difficult task of chairing this controversial matter. One of the sad points about it is that right from the very start, from the consideration of this project by the regional council, there was no unanimous feeling about it. There was no clear opinion as to whether or not it should go ahead. The majority was only one. When it came to the parliamentary commissioners, there was no unanimity there; there was a majority; and the same was true when it came to the Joint Committee. Sadly, and I think quite wrongly, all through the whole thing has been dogged by politics.
We are dealing with a purely local matter and it really should not have come here at all. It has come here only because of the decision of the Lothian Regional Council. There had to be, and would have been, as is normal—and there still could be—an inquiry ordered by the Secretary of State because of a planning appeal. I think it was my noble friend Lord Galpern who went through the stages of that. Indeed, the Government can answer as to whether or not there is an appeal still lodged but it has been delayed and is still further delayed; so that even if this Bill did not go through one could go back to the beginning and have that appeal where everyone would get the opportunity quite freely of the informality of planning appeals.
I thought that this was the point the noble and learned Lord, Lord Wilson, himself was getting at when he said that everyone had the chance. But, with all due respect, not everyone has the chance of coming to London. It costs a bit, you know! Even if you are an old-age pensioner, your train fare is about £75.90 and then you have to put yourself up and wait; so that not everyone can afford to spend that kind of money to come down here, even with the pleasant prospect of speaking to the noble Baroness, Lady Carnegy, and to the noble Lord, Lord Galpern, and the noble and learned Lord, Lord Wilson. I forget who else was on that committee, but I think there were two Members of Parliament as well.
It is not fair to say that. It is like saying that everyone can have tea at the Ritz, provided they have the money. It says something for the Cockburn Association that they went ahead with their objections because they feel strongly about it. Anyone who knows anything about the Cockburn Association knows that their concern is Edinburgh; and rightly so. And there is the concern of the National Trust—and, after all, they are in Charlotte Square, right at the west end of Princes Street. I should know that because as Secretary of State I had a house next door. I too am a life member of the National Trust for Scotland and I was the vice-chairman of the National Trust for two years. They do not go idly into these matters. Their concern generally is for the whole amenity of life in the area.
I do not think there is another city in the whole country that would sponsor and pay up to £96 million for a few miles of road, and that few miles not

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bypassing Edinburgh but going into the very heart of Edinburgh. It is all very well for the noble Lord, Lord Sanderson, to talk about this. He comes along the Dalkeith Road. I come from the West. As Secretary of State, I travelled this road every weekend. I was very grateful when Glasgow did half of their ring road because instead of taking the A.71, I took the M.8 and the A.8. If you build a new road you attract new traffic.
There is no use in the noble Baroness, Lady Carnegy, shaking her head. It is a fact that has been proved time and time again. If you tell people that you will take them into the centre of Edinburgh three minutes early, you will get more traffic going in. I travelled that road on Friday. I was speaking at a conference of the Ramblers' Association, of which I happen to be the president in Scotland. They thought I was the best rambler in Scotland. It meant that I had to take that western road, get in, get through, get up Lothian Road, Tollcross, and cut across to the university where the conference was being held. It was a Friday evening.
Edinburgh is packed now. If this road is opened, it will be very much worse. Even the noble Lord, Lord Stodart, is quite right in being concerned about what is going to happen possibly at Usher Hall. He knows what will happen. You have already a jam up there at Tollcross Road and across. Dalkeith Road will not be improved as a result of this scheme. I think the noble Lord himself will appreciate that. All you do is change the traffic, and the congestion, instead of being in one area, goes somewhere else. This, if it were rightly named, would be named the Corstorphine Bypass: it is not an Edinburgh bypass.
We are going to have, and sooner than we had expected it, this change in respect of the outer city bypass, for which the noble Lord, Lord Ferrier, fought for years and years and eventually got, though not as quickly as he wanted. He wanted it in time for the Commonwealth Games, and it is not going to happen, But, my goodness, if we got this and people were going to the Commonwealth Games from the west, what a mess there would be! That is why the Cockburn Association is concerned. It is going to mess up not only the old town but the new town. As regards Dalkeith Road, you are going to shift the congestion into already congested areas.
I am surprised that the noble Lord, Lord Wilson, did not appreciate the fact that the Alliance supported this. They were part of the majority of one. But what they wanted was a package that included traffic management and restrictions. They have not got it. It was asked to be put in at various stages, even at the recent stage. The noble Baroness, Lady Carnegy, says it is not in of course because it does not need to be in; it can be done outside. There is no guarantee it will ever be done.
I have not finished yet. I am trying to hurry up because it is fair to other people, and the noble Baroness had her fair share. The noble Baroness says that this is going to be limited to 40 miles an hour. I can tell her today that part of the traffic in the area where there is congestion is limited to 40 miles an hour; but, as every Member here will know, if you have a limit of 40 miles an hour how many people go at 40 miles an hour? That is a matter for the police and
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for the Secretary of State. It is not in statute: but we could have put it in. The noble Lord, Lord Beloff, knows that we have sovereign authority. If we had put 40 miles an hour in it would have been 40 miles an hour. And we are not here to rubber-stamp everything that is done by any committee. We have sovereign authority, and we can do what we like. But the one thing we cannot do, with all due respect to the noble Lord, Lord Beloff, is to tell local authorities what they can do. They can change their minds.
The 40 miles an hour limit is ignored in the breach; and one of the causes of trouble today in Corstorphine, if we take the A.71 and the Dairy and Gorgie roads, is the fact that the police are not applying the law as it is. How many people go down those roads and find when they are approaching the lights at Murrayfield Avenue that there are cars parked where there are double yellow lines and where no car should be parked? If the law were properly applied and the restrictions were imposed today, it would be very much easier—and that, combined with the relief that is bound to come with the outer city road, would in itself lead to an improvement.
I have read the evidence that was given, and the suggestion was made that the relief will only be marginal for all this amount of money. This has been badly handled; and perhaps the noble Lord, Lord Gray of Contin, will tell me that they advised that this was a local matter and should have been the subject of a local inquiry. There is no reason why we should be dealing with this. Why should my noble friend Lord Graham, who knows nothing at all about this part of Edinburgh, sit here in judgment?
Lord Graham of Edmonton: Agreed!
Lord Ross or Marnock: My Lords, it should have been local, and that is why there is merit in the amendment that is put forward by the noble Lord, Lord Ferrier. Let the local people have another thought about it; and if it is held up by an election, it does not matter whether or not it is in manifestos. People will think about it again; because to my mind it would not happen in any other city in Britain or anywhere else, that you would build a special road to take traffic more quickly into the centre of the city. If you do that, people will use it. Of course they will; and that is why the National Trust is concerned and why the Cockburn Society is concerned.
I am sorry the Lord Advocate is not speaking today. The president, the honourable Lord Cameron, Knight of the Thistle, is the Lord Advocate's father. He is no rabid revolutionary, Jock Cameron. The honourable Lord Cullen is chairman of the council. There is not even a "pinko" Labour or an Alliance member near that body at the present time—and they are worried! If he had told the truth, so would the noble Lord, Lord Stodart, have been worried if he had still been a Member of Parliament. He did not tell us that Mr. Fletcher voted against it. It has not all been one-sided; and when it is in Edinburgh terms it is really not a matter for politics but a matter for common sense. People are getting these things mixed up, whether it be in the last election or in this election's manifestos, and it is nonsense. We are not just here to rubber-stamp what any committee has done. I think the amendment has merit and should be supported.
8.36 p.m.
Lord Mackie of Benshie: My Lords, I am grateful, quite honestly, that I was able to say that I could not serve on the committee. For the 15 days that were spent the whole House should be grateful to the members who sat on the committee and also to the members of the previous committee which also sat for a great deal of time and which visited Edinburgh. I would not be certain, but I understand the committee also sat there.
It is extraordinary how heat has been engendered over this matter. We have had all sorts of quotations. I must defend my noble and learned friend Lord Wilson. He said that it was a pity there had not been an inquiry, but he added that it might have satisfied more people had there been the same sort of exhaustive public inquiry as there had been parliamentary inquiries. That is quite different from saying that he thought there ought to have been.
Then we come on to the substance of the matter. It is extraordinary that all the people from Edinburgh, so far as I can see, are for the road, whereas indignation has been engendered among the three members of the Labour Party from the west, all of whom have the most enormous concern for Edinburgh, which is not traditional in people who come from Glasgow and the West of Scotland. But it is good to see that their concern is real and deeply felt.
I think the noble Lord, Lord Beloff, has a point when he says that this should be a subject for the Scottish Members, without boring the English with our local affairs. As your Lordships know, we on these Benches, to use a famous phrase, have always been in favour of devolution and there have been recent converts among people who were strongly against it at one time. So we have the constitutional question, and, as the noble Lord, Lord Ross, said, we are here to decide.
I do not want to go into all the arguments which the committees have gone into at such length, but it appears to me that no single subject has been more deeply investigated, with so much work done on it. Also it is a question of the Tory Party manifesto; but that is backed up by the Alliance, which has examined the whole issue without commitment and come to the strong conclusion that it is time this went ahead.
It looks to me fairly simple that the proposal will facilitate entry into the city. It will save a large number of injuries—I think the figures are something like 120 serious injuries a year—quite apart from the deaths mentioned by the noble Lord, Lord Stodart. I would say also that the figures which the experts produce can be wrong, but since the war they have gathered an enormous volume of evidence and experience of what a bypass or a road into the centre does. I am inclined to accept their figures. They say that they do not think that there will be any increase in the traffic. I prefer their opinions to the opinions of even distinguished people like former Secretaries of State.
Lord Galpern: My Lords, is the noble Lord suggesting that the people who gave their evidence on oath on behalf of the objectors were not highly qualified?
Lord Mackie of Benshie: My Lords, yes, I am a bit. It appears to me that the technical evidence in this case was on the side of the promoters. It is true that the National Trust for Scotland and the Cockburn Association are highly caring. They also have deep feelings and a great deal of knowledge, but the burden of the evidence has been for the scheme.
I must say that I have relied heavily on the opinion of Alliance members of the Lothian Regional Council who came to the matter unprejudiced and have examined it with enormous care. That has been backed up by two exhaustive inquiries. It appears to me that the House should decide against the amendment and in favour of the scheme. In a nutshell, that is it. I have spoken for five minutes; that is long enough to put the obvious.
8.40 p.m.
Lord Gray of Contin: My Lords, I think that we have had a useful and interesting debate. As I indicated when I moved the Second Reading of the Bill, the role of the Secretary of State for Scotland on occasions such as this is entirely formal. Therefore I shall not engage in the usual wind-up speech which one gives on the Second Reading of a Bill. However, there are two points to which I should like to return. First, there was the point initially raised by the noble Lord, Lord Carmichael, which was followed by the noble Lord, Lord Ross of Marnock, about the new method of funding which the region is to adopt. It is not really for me to describe or defend the method which is to be used. That is a matter for Lothian Regional Council.
Lothian Regional Council has decided to enter into a financing scheme by means of a covenant. Under that arrangement, costs of construction will be met in the first instance by a financial institution, and Lothian Regional Council will covenant to repay the loan, together with interest and management charges, over an extended period. Such an arrangement has many advantages for the region. In particular, it allows it to get on with the development without the need to defer or delay any other capital projects. It allows it to pay for the road later when its roads programme will, in any case, be in substantial decline. It has described the scheme to the Government and the Government have no criticism of the scheme. It seems to us a reasonable way for the council to proceed. I reiterate that that must be and is a matter entirely for Lothian Regional Council and its judgment. It has chosen to proceed in that way.
The second point that I wish to take up is the point raised by the noble Lord, Lord Galpern, who was, of course, a distinguished member of the committee. We heard impassioned speeches from members of the committee from both sides of the House this evening. The noble Lord called into question the whole procedure, whether it was as effective as it might be and whether it would ever be used again. He put that in some doubt.
It is fair to describe the circumstances surrounding this provisional order as exceptional. We must remember that a wide range of business has been conducted over the past 49 years under the procedures laid down in the 1936 Act, without, as far as I am aware, revealing them as severely defective. I have little doubt that my right honourable friend will read

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carefully the comments which have been made this evening and take note of what has been said.
We have heard some stong expressions of opinion this evening. The noble Lord, Lord Ross of Marnock, with his experience pointed out that on these occasions the Government traditionally adopt a neutral position. I would not wish to move from the view which was expressed in another place by the Parliamentary Under-Secretary of State who made a contribution and set out the Government's position during the progress of the Bill in that place. I therefore merely reiterate on behalf of my right honorable friend what I said at the outset when I moved the Bill, that the Government's position is basically a neutral one.
8.45 p.m.
Lord Ferrier: My Lords, I am instructed that I have a right to reply. I assure the House that I am not going to spend much time over it because the one thing that has been proved absolutely by this debate is the extent of the difference of opinion over this road that exists in Edinburgh.
There is one point of information that I wish to make clear to the noble Lord, Lord Carmichael. The Sighthill section of the bypass will be completed this year, so that the first relief which is required by the promoters of this relief road will become effective within a matter of months. Another point was raised by the noble Lord, Lord Campbell of Croy, but there is a misunderstanding. I have never taken the view that the cost of the relief road would affect the cost of the bypass. My objection to the road is entirely an environmental one. As the noble Lord, Lord Ross of Marnock, pointed out, I am concerned with Edinburgh. We do not want this road. That is a fact.
I think that I have said enough, because we have been on this matter for long enough. This gives me the opportunity to wish the noble Lord, Lord Ross of Marnock, happy returns of yesterday.
I have made my point about the Sighthill section. In some ways, the debate has been unsatisfactory because a number of points were made about the chairmanship of the Cockburn Association which were not correct. I propose to divide the House and I move that my amendment be accepted.
8.47 p.m.
On Question, Whether the said amendment to the Motion for Second Reading shall be agreed to?
Their Lordships divided: Contents, 27; Not-Contents, 96.

DIVISION NO. 1

CONTENTS

Beaumont of Whitley, L.

Kagan, L.

Birmingham, Bp.

Kirkhill, L.

Buckmaster, V.

Oxford, Bp.

Carmichael of Kelvingrove, L. [Teller.]

Parry, L.

Phillips, B.

Dean of Beswick, L.

Pitt of Hampstead, L.

Denington, B.

Ponsonby of Shulbrede, L.

Elibank, L.

Reay, L.

Ennals, L.

Ross of Marnock, L.

Ewart-Biggs, B.

Stoddart of Swindon, L.

Ferrier, L. [Teller.]

Taylor of Blackburn, L.

Galpern, L.

Underhill, L.

Graham of Edmonton, L.

Vaux of Harrowden, L.

Houghton of Sowerby, L.

White, B.

160

NOT-CONTENTS

Airey of Abingdon, B.

Kinloss, Ly.

Allerton, L.

Kitchener, E.

Arran, E.

Lawrence, L.

Attlee, E.

Layton, L.

Beloff, L.

Lindsey and Abingdon, E.

Boardman, L.

Lloyd of Kilgerran, L.

Boyd-Carpenter, L.

Long, V.

Brabazon of Tara, L.

Lucas of Chilworth, L.

Brougham and Vaux, L.

Lyell, L.

Bruce-Gardyne, L.

McFadzean, L.

Butterworth, L.

Mackie of Benshie, L. [Teller.]

Caithness, E.

Cameron of Lochbroom, L.

Macleod of Borve, B.

Campbell of Croy, L.

McNair, L.

Carnegy of Lour, B.

Mar, C.

Chelwood, L.

Margadale, L.

Coleraine, L.

Masham of Ilton, B.

Cork and Orrery, E.

Merrivale, L.

Craigavon, V.

Mersey, V.

Craigmyle, L.

Milverton, L.

Crathorne, L.

Montgomery of Alamein, V.

Crawshaw of Aintree, L.

Morris, L.

Davidson, V.

Mowbray and Stourton, L.

De La Warr, E.

Peyton of Yeovil, L.

Denham, L.

Radnor, E.

Drumalbyn, L.

Raglan, L.

Dundee, E.

Ritchie of Dundee, L.

Elliot of Harwood, B.

Rochdale, V.

Elliott of Morpeth, L.

Rodney, L.

Elphinstone, L.

St. Aldwyn, E.

Elton, L.

St. John of Bletso, L.

Ferrers, E.

Sanderson of Bowden, L. [Teller.]

Forbes, L.

Gardner of Parkes, B.

Seear, B.

Gisborough, L.

Selkirk, E.

Glanusk, L.

Skelmersdale, L.

Glenarthur, L.

Stodart of Leaston, L.

Grantchester, L.

Strathclyde, L.

Gray of Contin, L.

Swinfen, L.

Greenway, L.

Swinton, E.

Gridley, L.

Trefgarne, L.

Grimston of Westbury, L.

Trumpington, B.

Hanson, L.

Vickers, B.

Harris of Greenwich, L.

Whitelaw, V.

Hives, L.

Wilson of Langside, L.

Hooper, B.

Winstanley, L.

Hylton-Foster, B.

Wise, L.

Kilmarnock, L.

Wynford, L.

Kimball, L.

Ypres, E.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Bill read a second time; deemed to have passed the Committee pursuant to Standing Order (Private Business) 192, and reported without amendment.

Surrogacy Arrangements (Amendment) Bill [H.L.]
8.57 p.m.
The Earl of Halsbury: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Earl of Halsbury.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD AIREDALE in the Chair.]
Clause 1 [Surrogacy arrangements to be void]:
Lord Denning Lord Denning moved Amendment No. 1:
Page 1, line 5, leave out from second ("is") to ("whether") in line 6 and insert ("unlawful").
The noble and learned Lord said: As the noble and learned Lord, Lord Simon of Glaisdale, is not able to be here, he has asked me to move this amendment on his behalf. It is quite an important point in law as to the status of these surrogacy arrangements. Are they merely void and unenforceable, or are they unlawful?
As the principles underlying this amendment run throughout our discussions, perhaps I may illustrate them by telling the Committee what a surrogacy arrangement is and what a surrogate mother is. They were defined in the Surrogacy Arrangements Act 1985. The present Bill amends that Act and I suggest that it is right in law that the phrases and the meanings of the words in the Act itself should be the same as in our amending provision. So the meaning of surrogacy arrangements and surrogate mother must be carried into the amending Bill.
The definitions are reasonably clear in the Act that was passed on the previous occasion; but I shall make the matter clearer by telling the Committee about the facts of two cases that have come before the courts showing what is a surrogacy arrangement and what is a surrogate mother. I shall first take the case of 1978. It is not reported in any of the ordinary law reports because it was only reported in 1985, in the Family Law Reports. That case concerned a man who had married a lady who was a good deal older than himself. They wanted a child but the wife would not or could not have one. They decided to contact a girl who would be artificially inseminated with the husband's semen.
They went along to Bow Street and found a prostitute there who acted as a go between. It was arranged that a girl of 19 should be artificially inseminated with the husband's semen in return for £3,000—with £500 going to the agency.
The girl went to a clinic. I suppose that the husband went there at some other time and his semen was, by masturbation, drawn off from him. The doctors then artificially inseminated the woman, and after nine months she bore a child. She then decided that she wanted to keep that child. The husband said that it was his child and that an arrangement had been made—clearly, there was a surrogacy arrangement. The husband said that he wanted the child and access to it. The courts refused to agree. The judge, Mr. Justice Comyn, stated quite clearly that in his view such was illegal. He stated:
"The agreement between the parties I hold as being against public policy. None of them can rely upon it in any way or enforce the agreement in any way".
The courts did not allow the man any access to the child, and the Court of Appeal upheld that decision. That is an example of a surrogacy arrangement on a commercial basis, as plain as can be. The courts held that the surrogate mother was the mother of the child and that the father could have no access to that child at all.
That is one case where the mother changed her mind. The other case is the Baby Cotton case, concerning an American couple. The woman could
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not have a baby, and so through some agency the couple came over to England and made contact with a Mrs. Cotton, who agreed to be inseminated with the husband's semen in return for £6,000. She bore the child and the husband wanted it. Who was to have it? The mother, Mrs. Cotton, agreed—and the court allowed to let the baby go to the husband in the special circumstances of that case. I suppose that Mrs. Cotton retained her £6,000. Those are two instances of surrogacy arrangements and of surrogate mothers coming before the courts.
As I have told your Lordships, the Court of Appeal has held that such an arrangement is unlawful and void. I may go on to state that that kind of situation was considered by the Warnock Committee, which reported clearly at page 43, in paragraph 8.5, of its report that:
"There is little doubt that the Courts would treat most, if not all, surrogacy agreements as contrary to public policy and therefore unenforceable. Where one party broke the agreement the other party could not expect to invoke the court's assistance. Thus, if the carrying mother changed her mind and decided she wished to keep the child it is most unlikely that the court would order her".
The committee stated on page 47, in paragraph 8.19, that:
"We recommend that it be provided by statute that all surrogacy agreements are illegal contracts and therefore unenforceable in the courts".
When the previous Bill was before Parliament and before your Lordships' House, the matter was left open. There is a provision in Section 1(6) that:
"This Act applies to arrangements whether or not they are lawful and whether or not they are enforceable by or against any of the persons making them".
In this new Bill, we are suggesting that the matter be made certain—not that it be left unknown. We are suggesting that it be made clear in accordance with the decision of the courts and with the recommendations of the Warnock Committee that such agreements are void and unenforceable—and that they are, at the suggestion of my noble and learned friend Lord Simon of Glaisdale, unlawful.
What is the difference between a contract being void and unenforceable and the addition of it being unlawful? I shall give your Lordships some illustrations of one side and the other of the line, in old cases. I shall deal first with a contract that is void and unenforceable and that is unlawful.
There is an old case of more than 100 years ago concerning some people who owned an elaborate carriage who let it out to a prostitute so that she could carry on her trade. It was hired out to her. She was ready to pay the money to the hirers. She paid £52 and then they called it off. That contract was held to be unlawful and contrary to public policy and public morals, and she was not entitled to recover her money.
The converse case where it was just void and unenforceable was that of a marriage broker's contract—that is, Herman and Childsworth in 1905. A woman who was anxious to find a husband went to a marriage bureau and in order to find a gentleman she was ready to pay £52 to the broker and another sum after she got her husband. It did not go through. The contract was held to be void and unenforceable, but not unlawful. She got back her money. If it had been unlawful she would not have got back her money.
That is what my noble and learned friend Lord Simon of Glaisdale wants me to suggest in a case of this kind. If there is an arrangement whereby £6,000 is to be paid by the commissioning mother to the surrogate mother and the surrogate mother changed her mind, can the woman who paid the money get it back? I hope that Members of the Committee will say, "No". That is the difference between void and unenforceable and unlawful. If it is only void and unenforceable, and not unlawful, she can get the money back. That is the distinction which my noble and learned friend Lord Simon of Glaisdale wants to suggest; that it is not only void and unenforceable but also unlawful. That is the distinct recommendation of the Warnock Report, which I read to your Lordships, that:
"It be provided by statute that all surrogacy agreements are illegal contracts and therefore unenforceable in the courts".
That is what I suggest is the right way of amending the first clause. I beg to move.
The Earl of Halsbury: These very fine distinctions between terms of art such as "void and unenforceable" on the one hand and "unlawful" on the other, are a little beyond my range of understanding. For my own part, I am happy to accept this amendment because of the character of the sponsors: my noble and learned friend Lord Denning who spoke to it and my noble and learned friend Lord Simon of Glaisdale who conceived it. However, if the Government have any doubts and my noble and learned friend feels moved not to press the amendment accordingly, I shall be content that he should not do so and leave the matter in his hands.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington): Far be it for me to argue with someone of the eminence of the noble and learned Lord, Lord Denning; but my legal advisers tell me that on a technical basis it is not really necessary for there to be legislation on this point as it seems fairly clear that in most circumstances a court would hold a surrogacy
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arrangement to be void, if not unlawful. This is particularly the case as I am advised that agreements to hand over a child are already unenforceable; for example, by virtue of Section 85(2) of the Children Act 1975.
The effect of making this amendment would, for example, be to remove any possibility that either the commissioning parents or the surrogate mother could recover sums due to them under a contract. It is possible that to make it clear beyond a doubt that a surrogate mother cannot be made to hand over a child in pursuance of a surrogacy arrangement, a situation might be created where there were unintended consequences which might be unfortunate.
In view of the Government's neutral stance on the Bill of the noble Earl, Lord Halsbury, my comments are directed solely at setting the scene on this amendment from my department's angle.
Lord Ennals: At this stage I want to be extremely brief and say only that the noble and learned Lord, Lord Denning, in moving this amendment, drew upon a recommendation in the report of the committee presided over by the noble Baroness, Lady Warnock. If we were to do that we could go right the way through, and what we really wait for is the Government's considered approach to this. It would be quite absurd to take a decision, one way or the other—on this amendment or the wording as it stands at present—at this time of night without having had that consideration. It does not make much difference to me whether we accept one form or the other. At a later stage I shall say why I think that it would be unwise to proceed either with the amendment or with the clause.
Lord Denning: I shall not press the amendment. In my view the clause as it stands is good enough. The amendment of my noble and learned friend Lord Simon would have been a useful addition but it is not necessary. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Ennals: May I say, firstly, in case I forget to do so later, that I am speaking purely for myself. I am not neutral about the Bill and I am not speaking for my party, but only for myself. To save the time of the Committee, since I and the noble Lord, Lord Winstanley, have proposed that Clause 1 should not stand part of the Bill, that Clause 3 should not stand part of the Bill and that Schedules 1 and 2 should not be schedules to the Bill, I hope that the Committee will permit me to deal with them all in only one speech rather than make the same speech four times. I hope—and no doubt other Members will agree with me—that this will be the only speech I shall make on this Bill.
In my speech during Second Reading on 11th March I said that I was not happy about Clause 1 and Schedule 2. Since then I have also realised that I am not happy about Schedule 3 or Clause 3. I said that they seemed to me to imply opposition to surrogacy under any circumstances. I want to say that since then I have re-read the report of the committee which was presided over by the noble Baroness, Lady Warnock, and the Expression of Dissent presented and published by Dr. Wendy Greengross and Dr. David Davies as their considered view. The noble Baroness, Lady Trumpington, in that same Second Reading debate, at col. 587, said:
"Not all members of Warnock Committee felt able to support its recommendations".
As the noble Baroness, Lady Warnock, pointed out in her preface to the report, in this disagreement is reflected the range of views within society as a whole. There are those who view the area with complete distaste and would wish to see a total legislative ban on all forms of surrogacy; on the other hand, it is possible to disapprove of any organised surrogacy service, yet to look ambivalently on an informal arrangement made perhaps between members of the same family or between friends. I totally agree, and associate myself with the views expressed by the noble Baroness.
Thus, speaking for myself, I totally align myself with the position of the Government, except on neutrality. I honestly hope that this Bill will not pass through your Lordships' House because I believe that, except for the urgent need to bar commercial surrogacy agencies, as we have already done by a Bill quite properly put forward as a matter of urgency by the Government, we should now await the legislation that is to come. Perhaps I may just draw to the attention of the Committee a very few sentences in the Expression of Dissent:
"There are, we hold, rare occasions when surrogacy could be beneficial to couples as a last resort. On those occasions gynaecologists should not be denied the option of suggesting surrogacy to their patients".
At this stage it is interesting to note that this is the view of the British Medical Association, who state:
"The 1985 Annual Representative Meeting—comprising 600 representatives from all over the country—provided the first opportunity for debate on commercial and other forms of surrogacy. The representatives passed the following resolution: 'That this Meeting agrees with the principle of surrogate births in selected cases
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with careful controls'. An argument put forward during the debate at the Annual Representative Meeting was that very few babies are available for adoption and surrogacy might help some infertile women".
I return to the Expression of Dissent:
"The practice of surrogacy could lead to serious problems, and we do not wish to deny these problems. Equally we regard it as of immense importance that people considering getting involved in surrogacy, in whatever way, should be fully aware of the complications that could ensue".
It goes on:
"In our view the question of exploitation of the surrogate mother, or the treating of her as a means to other people's ends, is not as clear cut a moral issue as our colleagues assert …
Whatever we as an Inquiry may recommend, the demand for surrogacy in one form or another will continue, and possibly even grow … Having considered the risks on both sides of a finely balanced argument we have come to the conclusion that it would be a mistake to close the door completely on surrogacy being offered as a treatment for childlessness … We believe that it would be inappropriate for steps to be taken to provide that all surrogacy agreements are illegal contracts … We do not believe that public opinion is yet fully formed on the question of surrogacy, which has burst into prominence only in the last year or so. Thus we think it is too early to take a final decision one way or the other … We simply ask that the door be left slightly ajar so that surrogacy can be more effectively assessed".
That is precisely my view and where I stand. We are dealing with very difficult issues.
The noble and learned Lord, Lord Denning, during Second Reading and in moving his amendment a few moments ago, pointed out some very difficult circumstances. I think that those are precisely the sort of circumstances which we need to balance; but we also need to balance them against a possible development which we see from Mr. Steptoe and Dr. Robert Edwards may be a way forward, and that is, as I said in the Second Reading debate, an opportunity for mothers and fathers to produce babies which are the product only of the eggs of the mother and the sperm of the father. I believe therefore that we should not allow to go through Clause 1, Clause 3, Schedule 1 or Schedule 2, which in their various ways would close the door finally against surrogacy It would be a very unwise thing to do.
I hope that the Government will at some stage, in spite of their neutrality, give an indication of when they expect to come forward with their own Bill covering this whole issue. My view is absolutely clear. We should not deal with this complicated issue piecemeal. There are a whole range of issues and recommendations made by the Warnock Committee which this House, and this Committee, I believe, would want to consider carefully. If we pick on little bits we may find that if the Bill goes through some other private Member may come forward with another Warnock recommendation, and then another, and we shall find that we do not have a proper, fair and healthy debate ourselves, let alone a proper, fair and healthy assessment of the views of the public, which really must be taken into consideration.
I agree with those who say that at this stage public opinion has not formulated itself. A debate such as this is perhaps useful in helping people to formulate their views. I wish, with the support of the noble Lord, Lord Winstanley, to urge that these two clauses and two schedules should not stand part of the Bill.
Lord Winstanley: I shall not detain the Committee for long at this late hour. Indeed, I resisted the temptation to respond to the speech of the noble and learned Lord, Lord Denning, on the earlier amendment. I believe, frankly, I shall return to this in a moment—that the noble and learned Lord, if I may say so with the greatest respect, was rather confused about precisely what surrogacy is. Like the noble Lord, Lord Ennals, I, too, from this Front Bench, speak for myself alone. Nevertheless, I entertain the hope that many of my noble friends would agree with me. I am sure that the noble Lord feels similarly.
In general, I take the view that the noble Lord, Lord Ennals, has taken. I would endorse and add my name to every word that he said. Let me return at once to the point that I made about the speech of the noble and learned Lord, Lord Denning, on the earlier amendment. It seemed to me that the first of the cases that he described—a very distressing case in which a prostitute, I understand, was induced to take part in artificial insemination with the sperm of a husband and later to donate the resulting child, if there was a child, to a couple—is not surrogacy. Surrogacy, as I understand it, is an arrangement whereby the ovum of an allegedly infertile woman is fertilised in vitro with the sperm of her husband and the fertilised ovum is then implanted in the uterus of a third party for gestation, so that in the end a child is born that genetically is the child of the donor of the ovum and of the sperm. That is surrogacy.
Artificial insemination of some other party and the subsequent abandonment or transfer of the baby is not surrogacy. This illustrates that it is a very puzzling and difficult area. My description of what I take surrogacy to be does not mean that I am a passionate enthusiast for surrogacy arrangements. I believe, however, like the noble Lord, Lord Ennals, that there are perhaps some cases—they may be few—in which this is possibly the procedure of choice and the best possible course for parents who are unable to have a child and who are desperately anxious to have one. It gives them an opportunity of having a child that genetically is their own. In a world so full of unwanted children, we should consider anything that can be done to increase the number of positively wanted children and should not reject it without a great deal of thought.
I understand that the Government's view with regard to the Bill, the amendments, and so on, is one of benevolent neutrality. I find that a little puzzling. My views were expressed fully in your Lordships' House when we debated the report of the committee under the noble Baroness, Lady Warnock. I expressed my views fully then on this whole subject. I shall not go over them again. However, at that time, and on a number of subsequent occasions, the Government spokesmen in your Lordships' House and in another place have said that they were broadly in agreement with the main thrust of the Warnock recommendations and that after proper consideration and consultation they would in due course introduce legislation to enact those recommendations.
That seems to me to be a view which is extremely sensible. For the Government to be neutral to a Bill
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which pre-empts that course seems rather odd. This Bill does pre-empt it. As the noble Lord, Lord Ennals, said, it is dealing piecemeal with an extremely complex subject. If we are to deal with it piecemeal, surely we should deal with it piecemeal in the right order. The most important recommendation of the Warnock Committee was for a statutory body to examine this whole field carefully, to license those who are working in it, to exercise a continuing watch over what is going on and to report. That is surely the first thing to do. However, merely to legislate on one aspect of that complex report of the Warnock Committee seems to me to be unwise.
I do not take the view that surrogacy arrangements of one kind or another will necessarily figure prominently in the medical life of our society in the future, but I believe that this is a field in which advances are being made extremely rapidly, in which the work of Mr. Steptoe, Dr. Edwards and others is of immense importance and in which we should be unwise to impede such work unnecessarily at this stage. I also believe that while we have so many criminals in society, as indeed we do, we should not create new criminals out of people who are doing important work, intended to be helpful to society. I think that it is rather unwise to do that too hastily.
This Bill, and particularly the section to which we are referring, makes criminal certain acts which at the moment are being performed with the best possible motive so far as society is concerned. I do not want to be misunderstood. I do not think we are here to say "Yes, we think that surrogacy arrangements are admirable and that they should go ahead without limitation". They should be looked at extremely carefully. There are consequences regarding the status of the child that is born which are of immense importance. I would wholly agree with the noble and learned Lord that those must be resolved. But I do not think that one resolves them by making all surrogacy arrangements illegal—full stop—whether they are within the family, or however they are done.
I agree with the noble Lord, Lord Ennals, that it seems extremely unwise to proceed piecemeal in this legislation. This is a matter upon which the Government in both Houses of Parliament have stated repeatedly that they intend in the end that the recommendations of the Warnock Committee should be enacted and should arrive on the statute book in some form via legislation which the Government themselves will bring forward when they have had the opportunity to consult properly and to deal with all the matters concerned. To deal with the matter in this piecemeal way will be a grave mistake.
It is for that reason that I am glad to support the noble Lord, Lord Ennals, in his proposal and in his view that those clauses should not stand part of this Bill.
Lord Denning: I hope that I understand surrogacy. It is not only when the ovum of another woman is placed into the mother's womb. It also applies in the case, which I put, of a man's semen being placed there. But

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the two things are completely combined in the definition in the present Bill:
"'Surrogate mother' means a woman who carries a child in pursuance of an arrangement—

(a) made before she began to carry the child, and

(b) made with a view to any child carried in pursuance of it being handed over to, and the parental rights being exercised (so far as practicable) by, another person or other persons".

I should like to say this about the point made by my noble friend Lord Ennals. Surrogacy on a commercial basis is what is prohibited by this statute. Surrogacy such as has been suggested, with the sister coming in to help, not on a commercial basis, is not prohibited by the Bill at all. All this clause says is that it is void and unenforceable. Therefore, if the arrangement falls down and the carrying mother wants to keep her child, she can without being sued by anyone else, or vice versa. All I say is that the arrangements are only prohibited on a commercial basis. This clause says that if you make any agreement about it, that is void and unenforceable, but that is all.
9.30 p.m.
Under Clause 2, it is quite plain that the surrogate mother must be the mother who carries the baby the whole of the nine months. She certainly is the mother. Can anyone deny that? The courts have held that the unknown father does not come into that. I believe that Clauses 1 and 2 are very desirable and ought to be approved by the Committee.
Lord Coleraine: Perhaps I may add a few words to what the noble and learned Lord has said about the meaning of the word "surrogacy". The noble and learned Lord is of course correct. The meaning which he adduces is that used in the Warnock Report. Paragraph 8.1 of the report states:
"Surrogacy can take a number of forms. The commissioning mother may be the genetic mother, in that she provides the egg, or she may make no contribution to the establishment of the pregnancy. The genetic father may be the husband of the commissioning mother, or of the carrying mother; or he may be an anonymous donor. There are thus many possible combinations of persons who are relevant to the child's conception, birth and early environment."
Baroness Trumpington: In reply to both the noble Lords, Lord Ennals and Lord Winstanley, who more or less challenged me as to when the Government will bring in a Bill covering the whole of the Warnock Report, my answer is that the Government are fully aware of the strongly-held views on many of the issues dealt with in the Warnock Report and the Government intend to introduce legislation on those matters as soon as practicable. I am sorry that I cannot be more precise, but this debate is helpful and all the points made in it will certainly be taken into account in considering future legislation on the issues which are raised during the progress of this Bill.
The Earl of Halsbury: On the Question whether Clause 1 shall stand part of the Bill, perhaps I may rehearse the line which I took on the Second Reading of the 1985 Act, a year ago. I was extremely anxious to place an embargo on surrogate motherhood to prevent the building up of vested interests, whether
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professional or commercial, in advance of the Government making up their mind to introduce a Bill of their own and the terms in which they would recommend it. This was fully in line with the majority report of the Warnock Committee and was supported by many Members of your Lordships' House who wanted to stiffen up the terms of the Government Bill when it came before your Lordships' House.
The Government, through the usual channels, asked a number of people who wanted to stiffen up the Bill not to amend it at that particular point in time for fear of losing the Bill altogether in view of its late appearance in your Lordships' House very much towards the end of the Session. I was a party to persuading a number of noble Lords to withdraw their amendments on the understanding that I would resurrect them in a Private Bill to be introduced. I referred to all this on the Second Reading of this Bill.
One of the points which I made on those occasions was that in some respects the Warnock Committee was unanimous, but in other respects some of its decisions were majority decisions. You sometimes have to stay with a majority decision. When I was given the responsibility for deciding how to decimalise the currency, the committee working under my chairmanship, by a majority, came to a decision that we should keep the pound. That decision was referred to the Treasury, who again by a majority decision enforced it. It went to a Cabinet sub-committee, who also by a majority supported it, and the whole Cabinet, again by a majority, supported it. There were four stages of decision-making, in each case by a majority. You may have to live with majority decisions. We have to for most of the time.
I think it would be helpful to the Government—I said this earlier but I repeat it now—to know what the majority opinion of this Committee is. Does it divide on the same lines as the Warnock Committee, or does it lie on opposed lines? This information is something we badly need to have. In so far as the noble Lord, Lord Ennals, has thrown down a challenge to this Bill, I accept that challenge. He can pick up the gauntlet, if he wishes, by expressing himself "Not-Content" at a time when I express myself "Content".
Lord Vaux of Harrowden: I may be thought old-fashioned, but I happen to be a Roman Catholic, and our Lord God instituted the sacrament of marriage for the procreation of children. Nobody has a right to have children; it is the Almighty who fixes that. It is not for us—if I may use a crude word—to muck about with it, and I do not think that this surrogacy business should carry on at all. I think I am right, and that we should not do that. I think that probably the right reverend Prelate agrees with me.
Lord Winstanley: Before the noble Lord, Lord Ennals, decides what course he is going to take with regard to this clause, I would say in response to the noble Earl, Lord Halsbury, that I do not think that the Government would get much helpful evidence as to the balance of opinion in society through a Division on this particular clause in a Committee with this number of people at this hour of night. If my noble friend presses a Division, whatever the result, I do not think

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that the Government would be wise to regard that as giving any firm indication as to whether or not opinion in the Committee reflects the division of opinion in the Warnock Committee. I do not think that it possibly could do so.
Lord Ennals: I shall be brief because the noble Lord has just said half of what I was going to say. There are few of us here. Most of us are unwhipped, and some of us are unrepresentative. We speak for ourselves. I do not believe that at this hour of night, with this number of Members, we would learn anything about the views of the Chamber.
Secondly, clearly the passing of this Bill, or any single clause in it, would pre-empt the Government's position when they come to present the major legislation. I hope that the Government realise this. I do not expect that the noble Baroness will be able to give me the date when the legislation will come, but she and her right honourable friend must accept that if this Bill is passed, whether it includes Clause 1 or the rest, we shall have on the statute book something that inevitably affects what the Government are going to do with their own legislation.
Another little bit has been resolved which might seriously affect the broader vision that one hopes the Government will take. I hope that the moment will arrive when the Government will come off the hook or get away from their neutrality. Otherwise we shall have debates like this through the Report stage and Third Reading and we might even finish with a Bill that is very, very unrepresentative. I shall not suggest that we divide tonight. I shall not oppose the Question in the sure knowledge that the Government will eventually take a position.
Clause 1 agreed to.
Lord Skelmersdale: My Lords, before the Committee moves to Clause 2, I think it would be right to make a short business statement, which is as follows:
It has been agreed through the usual channels that the Housing (Multiple Occupation) Bill in the name of my noble friend Lady Vickers should not be given a Second Reading this evening.
Clause 3 [Status of Child]:
The Earl of Cork and Orrery The Earl of Cork and Orrery moved Amendment No. 2:
Page 1, line 7, leave out ("surrogate mother") and insert ("woman").
The noble Earl said: I have nothing particular to say about the substance of the Bill and I do not wish to express any views about what has been said by the noble Lord, Lord Ennals, or anyone else so far. My concern with the Bill is almost, but not quite, entirely semantic. I am reminded of an occasion many years ago, and it may be that the only other noble Lord present in the Committee who will recollect it is my noble friend Lord Craigmyle. He, like me, took part in the Second Reading debate on the British Standard Time Bill, which I think was in 1970 or thereabouts.
In that debate, our noble friend Lord Conesford, that doughty warrior on behalf of purity in the English
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language, criticised a particular section of the Bill by saying that it might have been drafted in a different way, more simply; it might have been drafted in the form that the winter shall be deemed to be the summer. There is a certain element of that in this Bill, strong enough at any rate to remind me of that far away occasion. It has to do with the definitions of "surrogacy", "surrogate mother" and so on.
I have put down a group of amendments, two here and two on the next page, Amendments Nos. 6 and 7, to do with this, and if I may I shall speak to the first two, which are really a single one. Amendments Nos. 2 and 4 are based on the simple idea that a child born to a woman is, to all intents and purposes, the child of that woman; or, put the other way round, the woman who has a child is, for all purposes in law, the mother of that child. I think that is true and that is what my amendment actually says. The Bill says, or at any rate implies, that the woman who has the baby is the mother of that child if she is a surrogate mother. This complication will become more acute in a minute if my noble friend Lord Coleraine will carry it a stage further and say that it is so; the woman is the mother of the child if she is a surrogate mother and also if she is the genetic mother of the child.
We are getting into pretty deep waters fairly early, and my noble friend Lady Trumpington gave a slight indication of how deep these waters may get in the Second Reading debate on this Bill by referring to surrogate pregnancies. This appears to me to be quite a long step nearer the idea of a surrogate baby.
However, at any rate we already have the idea that there are only two kinds of mother in this surrogacy arrangement, one of whom is the surrogate mother and the other is something which is not identified. We have had these two persons described in different ways. We have in fact—and this is on the Second Reading of this Bill alone—been told about the surrogate mother, the bearing mother, the social mother, the carrying mother and the genetic mother. The only character who does not appear anywhere in this Bill is the mother.
What about this unfortunate baby? Was he born by some process of osmosis or something that is the opposite of whatever that may be—of parthenogenesis? These are not idle frivolities, in my opinion. I ask that a simple statement should be put down and not be, if I may put it crudely, messed about with. Therefore I propose that Clause 2 shall be amended so that it reads:
"A child born to a woman in pursuance of a surrogacy arrangement shall for all purposes in law be regarded as the child of that woman".
That is a simple, straightforward statement. I beg to, move.
9.45 p.m.
Lord Denning: May I say that this adds nothing? We have the definition of "surrogate mother" in the Act which has already been passed. We do not want to use another word which some courts may say was different. The Bill states "born … in pursuance of a surrogacy arrangement". To know what a "surrogacy arrangement" is, one has to go back to the Act which is already in being. In a "surrogacy arrangement" a person would be a surrogate mother, so one has to have the definition of "surrogate mother" as already

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defined in the Act which has passed through Parliament. It would confuse matters a great deal if the word "woman" were inserted instead of "surrogate mother". I hope that the Committee will not accept this amendment.
Baroness Trumpington: I feel I should point out to the Committeee that if any of the amendments put down in the name of my noble friend Lord Cork and Orrery were accepted they would have implications for the 1985 Act which would need amendment in a number of other provisions thus causing further legislation in this matter.
The Earl of Cork and Orrery: I am well aware of these points, both those made by the noble and learned Lord, Lord Denning, and also by my noble friend the Minister. The reason that I had not touched on them in advance of my remarks was that I thought that my amendment was so simple and so obvious that I could get away with that one, get past it and proceed to the more important matter. As these matters have been brought up now perhaps I may proceed and speak also to Amendments Nos. 6 and 7. I hope that will meet with the approval of the Committee. They are intended to meet the objection of the noble and learned Lord that definitions have been made of "surrogate mother" and "surrogacy arrangements" in the Act. This is true and the Act was based on the Warnock Report which I suspect, though I am not sure, took the word "surrogacy" and its definition from some American source.
The noble and learned Lord, Lord Denning, said in his earlier speech on the first amendment—I think he did, I do not wish to misquote him—that there was no contradiction between the legal definition of "surrogacy" and the ordinary logical dictionary definition. With the greatest diffidence and a great deal of respect I venture to doubt whether that is true. Whether the noble and learned Lord said that, the dictionary definition is clear and simple. A "surrogate" is a substitute. There is no argument about that. If a surrogate is a substitute, how is the word used in the terms of the Bill and in the Act?
In bringing up this argument I am so bold as to say that the Act itself ought to be amended. This is what I am proposing to do with the amendments. The reason for amending the Act and not merely the Bill in my suggestion is that this matter will create more and more confusion. Every time someone mentions a surrogate mother or a surrogacy arrangement or a bearing mother, a caring mother, a genetic mother or any other kind of mother, he will immediately have to say what he means. With simple words one does not have complications. I believe this is worth the trouble. It is possible legislatively speaking to amend the Bill to stop the complication before it gets any worse, because I believe it will get worse and worse.
My proposal in Amendment No. 6 is to amend subsection (2). The Act says:
"'Surrogate mother' means a woman who carries a child in pursuance of an arrangement … made before she began to carry the child, and … made with a view to any child carried in pursuance of its being handed over to, and the parental rights being exercised (so far as practicable) by, another person or other persons".
This came to pass because we imagine a woman who cannot have a baby for some reason or another; so, as
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we well know by this time, another woman is enlisted to have the baby in her place. That woman is described as the "surrogate mother". But that woman is the mother, in my contention. It is all very well to in vent new definitions; but, if they are to be invented, they should not be precisely the opposite of what we already understand by the word when we read our dictionaries. This is what I was referring to when I referred to my late noble friend Lord Conesford: Let the winter be deemed to be the summer! Let the mother be deemed to be the surrogate mother!
The surrogate mother is the women who receives the baby and brings it up as an adopted child. The mother is the mother; and that, I think, is that. Therefore my amendment proposes to say in place of that section:
"'Surrogate mother' means a woman who, in pursuance of an arrangement made before the carrying of a child by its mother began, assumes the parental rights of a mother in relation to that child."
The word "assumes" may not be correct in law. I am not sure about that. But she is the surrogate mother by my definition.
Then we go on to subsection (3) which reads:
"An arrangement is a surrogacy arrangement if, were a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother."
So the woman who has the baby is the surrogate mother. She is the substitute. But for what? For the real mother? No, she is the real mother. So, for what is she a surrogate? She is the surrogate, according to the logic (if that is not too strong a word to use in relation to what lies behind this Bill or Act) for somebody who cannot have a baby. But that does not make her a surrogate mother; it makes her a mother. The woman who gets the baby is the substitute for that original mother who hands the baby over by process of adoption.
This is the perfectly ordinary, simple, straightforward situation that actually occurs. It seems to me that although we understand what is the logic of the Bill and of the Act, the complications that are going to arise from it are great enough to make it wise to change the whole thing and put it into ordinary common English. Those are my arguments about the whole group of amendments. I beg to move Amendment No. 2.
Lord Coleraine: I wonder whether I could help my noble friend to come to a working relationship with the definition of "surrogate mother" in the Act and in the Bill if I suggest to him that he might think of "surrogate" and "mother" as both being nouns; so that when he is thinking of substitute mother he is thinking of somebody who is at once a substitute and a mother.
The Earl of Halsbury: I have much sympathy with the semantic conscience of the noble Earl who likes to see the English language properly used according to the meanings that one finds in the Oxford English Dictionary. But I am afraid that there are sad precedents aplenty for transatlantic misuses of our language to cross the Atlantic and establish themselves here as the jargon of some particular specialisation
I think that the term "surrogate mother", in the strict sense of the word, is totally misleading but I bow

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before the inevitable. It has invaded our jargon and I do not think that there is now any chance of getting rid of it. Strictly speaking, a surrogate mother would be somebody who acts as a substitute for a mother—that is, somebody who is a mother by adoption or one who adopts a child. That would be a correct use of "surrogate mother". But it is no longer going to be used in that sense. It is going to be used in the sense in which it is used in the Warnock Report and in the 1985 Act. I am afraid it is quite inescapable that that should continue. I believe that the noble Earl's three amendments really are an attempt to evade something that is more or less inescapable. There is another purely legal aspect of this about which we have to be very careful. When it comes to the construction of Acts in the courts there is a general principle that any variation of wording must be intentional. Debates in Parliament are not matters of which the courts take cognisance.
In seeking the intention behind a change of wording, the courts can upon occasion invent rather surprising intents to account for the variation. I have checked what I have just said with my noble and learned friend Lord Denning, and he tells me I am quite correct. So that we do not want to have "surrogate mother" used in one sense in this Act and in another sense in the 1985 Act. Nor do we want to invade the province of the Adoption Act 1976 because a "surrogate baby", if I may use that expression, can only become the child by adoption of those who have made the surrogacy arrangement, legal or illegal, by going through the procedures laid down in the 1976 Adoption Act. We really must not get our nomenclature so confused that we run into trouble with yet another Act.
For that reason I believe that the noble Earl's Amendments Nos. 2, 6 and 7 do not really amount to a sufficiently thought-out programme of reform for the semantics of this subject. I can only hope that he will not press them to a Division on this occasion but that he and I may perhaps get together and he may choose a new form for them at a later stage of the Bill.
The Earl of Cork and Orrery: I am most grateful to the noble Earl for his conciliatory reply to my suggestions. If he will have a little discussion with me between now and Report stage, I shall be more than happy. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Coleraine Lord Coleraine moved Amendment No. 3:
Page 1, line 8, after ("shall") insert (", in any case where the surrogate mother is the genetic mother of the child and").
The noble Lord said: I have tabled this amendment as a peg from which to fly a kite in relation to the particular kind of surrogacy to which the noble Lord, Lord Winstanley, referred in discussing the Question that Clause 1 stand part—the case of a childless couple where the husband is fertile and where, although the wife can ovulate, she cannot or should not carry her child to full term. The idea is that an egg is fertilised by the husband and implanted in a surrogate. The surrogate is to carry the child to birth and after birth the surrogate is to hand the baby to the commissioning parents to bring up as their baby.
My amendment provides that Clause 2 of the Bill does not apply to such commissioning parents. I am aware that the commissioning couple I have described have, at least before this evening, received scant sympathy in this Chamber. Last summer when we considered the Surrogacy Arrangements Bill the perceived problem was the Baby Cotton type of surrogacy situation. Surrogacy by implantation was hardly more than a cloud on the horizon of what we might have seen as a brave new world; yet already many Members of the Committee, including the noble Earl, Lord Halsbury, had given careful consideration to the problem and spoke strongly against surrogacy by implantation.
Clause 2 of this Bill reproduces the amendment put forward by the noble and learned Lord, Lord Denning, at Committee stage on 28th June 1985. That was widely supported by all who spoke, except for my noble friend the Minister, Lord Caithness, who saw reason to counsel caution. So I am aware that there is an innate hostility to a commissioning couple of the sort I have described.
I suspect that what lies behind this hostility can best be summarised in words used by my noble friend Lord Reading during the Second Reading of the Surrogacy Arrangements Bill last summer. They are to be found in col. 1532 of Hansard of 14th June 1985. He said:
"To fragment motherhood would be a heavy responsibility. It would produce an anguished question of identity for any child: the terrible dilemma summed up in the question, 'Who is my mother?' Fragmented motherhood ought to be impossible. The womb should naturally lead to the home. The one who carries should be the one who cares after birth. This is the natural order. I believe too that it is a God-given order. We put these things asunder at our peril."—[Official Report, 14/6/85; col. 1532.]
Those are telling words. I hold no brief for surrogacy in general for the very simple reason that it must in very many cases, if not most, lead the child of the surrogate birth, when he discovers his or her antecedence, to ask the questions: who are my mother and my father? Who am I?
10 p.m.
When it comes down to rock bottom, a couple who are prepared to bring a child into the world taking the chance that their child may grow up to ask those questions must be prepared to answer a charge of gross selfishness, however great may have been the wife's distress at not being able to carry her baby to term—a distress which may well in many cases have been compounded by frequent miscarriages. Nevertheless, we must accept that where pregnancy and birth take place following egg or embryo transplantation, whether the case is one of donations, with which we are not dealing tonight, or surrogacy, the essential functions of motherhood have, in fact, been fragmented. We shall not necessarily succeed in our endeavours if we try in our legislation to set aside physical laws.
Clause 2 provides that a child born to a surrogate mother is to be the child of that mother for all purposes in law. When the noble and learned Lord moved his amendment last year, my noble friend Lord Caithness pointed out that where the surrogate mother is also the genetic mother the law is clear, and she, the surrogate mother, is alone the parent of the child, but that where the commissioning couple have caused

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their egg and sperm to be implanted in a surrogate the law is unclear as to whether the commissioning mother or the surrogate is to be regarded as the lawful parent. My noble friend recommended on that occasion that it was too early to rush into accepting the amendment while the last point was still under discussion, and the noble and learned Lord withdrew his amendment on that occasion.
I am still for following the reasoning of my noble friend Lord Caithness on that occasion. I would be for giving statutory effect to what is clearly understood to be law while continuing to leave the rest for further consideration. I do not for one moment suggest that the commissioning couple should be treated as the parents of the child simpliciter, but merely that there is a case that the child should not be declared to be the child of the surrogate for all purposes in law.
I would say that the child himself has an even stronger case that his commissioning parents should not be so lightly dismissed by the law. In the majority instances of this type of surrogacy, I should imagine that the commissioning couple will receive and care for the child after its birth, and I hope that that would be considered a satisfactory conclusion to such an arrangement. I find it difficult to see how it could be shown to be demonstrably to the advantage of the child to be brought up by the woman who had merely received another couple's embryo as their surrogate and then kept the child, if only because the feelings of that child on discovering the true facts would surely be no less disturbing than those of a child brought up by commissioning parents on learning that his pregnancy had been passed in the womb of their surrogate.
If we take the case of a baby received by the commissioning parents from their surrogate after the birth, I can envisage several areas in which the commissioning parents ought perhaps to be recognised in law as being more than merely prospective adoptive parents. Should they not have the prima facie right to bring up the child as its parents? Is it not in the interests of the child that that should be so? It may be that the commissioning parents should go through some formal procedure before full recognition is given to their status in relation to the child, but should this be an adoption process, as Warnock suggests? Are we being fair to the child if we call him an adopted child when he is in fact, and has been brought up to believe himself to be, the true child of his own genetic parents?
If we take the converse case of a surrogate who decides to renege on her bargain and keep the baby she has carried and given birth to, I would not for one moment suggest that there is in principle any reason for suggesting a case for untying the bonds which are formed during pregnancy. All the same, what if the surrogate were seeking to keep the baby only as a means of extorting money from the commissioning parents? What if the surrogate proved unsuitable to look after the baby or wished to have it adopted? Should not the parents have at least greater inchoate rights than the rest of the world in respect of the child? Should they not have some right of application to a court to determine questions affecting the child?
I am not tonight suggesting any answers to those questions; I am only raising the questions. I do not think that the question is as clear as the Warnock Report puts it. I recommend that the law at this stage
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should not be clarified in the way proposed by Clause 2 of the Bill. I beg to move.
Lord Denning: So far as I understand it, when the surrogate mother is the woman with her own egg and she produces the child she is undoubtedly the mother for all purposes. The point which my noble friend raises relates to a situation where another woman provides the ovum and the medical man injects that ovum into what I call the mother's body. The sperm of a man is joined to it and then that woman carries the baby—the implantation and everything like that—through the whole nine months to its birth.
Who is the mother? Beyond doubt, I should have thought, the law and everyone would hold that it is the woman who carries the fertilised ovum in her body, from the moment of implantation right to the birth. Surely that is the mother. It is impossible to say that the mother who has provided the ovum through a medical man—in a test tube or whatever it may be—is the mother in the circumstances. The law ought to be made quite clear that the mother who has carried the baby all the way through from the conception to the birth is undoubtedly the mother.
You have to remember this. The Warnock Report has a principle of anonymity. You do not know who is the parent—one or the other. That is one of the principles in the report. At all events, let this be certain. The mother of the child is the one who carries it all the way through from conception to birth. I hope that the Committee will approve the Bill as it stands and not accept the amendment.
Lord Swinfen: I can see something in my noble friend's amendment in that the commissioning parents who provide the sperm and the egg would have a greater responsibility to the child, over and above the responsibility of other people in the world but after what is known as the surrogate mother. If something went wrong with the surrogate mother I can see that they would have a responsibility to take on and bring up that child.
I am not a doctor; I am a layman. My wife has had four children. Pregnancy, so far as I understand it, does not stop when the child is born. There are other changes in the woman's body. For a time after the child is born, she produces milk, and unless the doctors decide it is unwise for her or for the baby, she gives suck. A natural progression goes on from the time of birth to feeding that child, to looking after it, to bringing it up until finally it is adult enough to leave the nest. In my view, the child should stay with the mother who carries it during the nine months of pregnancy, who gives birth, and who then leads the child on through babyhood, childhood and young adulthood, until he is off into the world and making his own way.
If something goes wrong with the so-called surrogate mother then obviously the commissioning parents, where they have provided both the sperm and the egg, have a responsibility to that child—but not over and above that of what is known in the Act as the surrogate mother. I feel it is essential that the surrogate mother should have prime responsibility and call upon such a child.
Lord Winstanley: I rise to make two points very briefly. First, I believe that the noble Lord, Lord Coleraine, both in his amendment and in his speech upon it, has pointed to matters of immense importance and very great complexity. I agree with much of what he said. I agree also that perhaps such matters cannot be dealt with in this particular Bill in this particular way. Perhaps that reinforces my view that we should have waited for a much more comprehensive Government Bill—the one that we hope will presently come forward.
This gives me an opportunity to say to the noble Lord that of course it was wholly right to call me to task with regard to my definition of surrogacy. I accept that from a grammatical point of view it was too narrow. However, it was the kind of surrogacy about which I was concerned and about which most of the professional workers in this field are deeply concerned. It was for that reason that I defined it so narrowly.
While I am on the subject of grammar, I may add that I greatly agreed with the noble Earl, Lord Halsbury, in his remarks about the use of the English language. As a member of the medical profession, which has perhaps been responsible for introducing some of the new abuses of the English language, the noble Earl might join with me in regretting that, nowadays, medical students do not study Latin as they did in my day.
The Earl of Halsbury: My difficulty in responding to the noble Lord, Lord Coleraine, on the subject of his amendment arises from the fact that the general includes the particular. In the Bill as it stands the provision is of a quite general character. The noble Lord's amendment would restrict that in particular cases.
The Bill is primarily concerned with arrangements and not with medical procedures. There can be many different forms of surrogacy. There can be many kinds of medical procedures. A woman can have an egg extracted, fertilised by her husband's sperm, and reimplanted in her own uterus to obviate some kind of fallopian blockage. Such is perfectly possible. Obviously she would be the genetic mother of the child, notwithstanding all the medical manipulation that had taken place.
One could also have the situation in which the woman arranged for her husband adulterously to render another woman pregnant. That other woman would be the mother of an illegitimate child that might be available for adoption, but she would still be the mother. The working of my Bill is quite general in that respect. It does not specify any particular procedure. From that point of view, I believe that the noble Lord's amendment is not very helpful. I hope that he will either withdraw it or reserve his position until a later stage of the Bill, and perhaps we could discuss the matter between now and then.
Lord Coleraine: I assure the noble Earl that not only shall I be withdrawing the amendment but also that I do not propose to reserve my position to reintroduce the amendment at a later stage. I am aware that the amendment presents certain difficulties. Nonetheless, we have had a useful debate. I was grateful to the noble Lord, Lord Winstanley, for his observations, especially
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in relation to the meaning of the word "surrogacy". We have to face the fact that, in a sense, surrogacy has moved on since last year. Although the Bill is talking about surrogacy in last year's terms, and there are still this year's terms, I am sure that a lot of people outside look upon surrogacy purely as described now by the noble Lord, Lord Winstanley. The other forms of surrogacy are non-issues in the terms of this debate.
My only other comment in relation to the speech of my noble friend Lord Swinfen is that I agree with all he said about the rights of the surrogate as against the commissioning parents. But primarily I was directed to suggesting that, whereas in most cases the bargain will be kept and the commissioning parents will become the true, adopted or genetic parents—or however one puts it—of the baby that is born, there is a good case for considering carefully their position before we shut them out of the law altogether. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
10.15 p.m.
Clause 2 agreed to.
Clauses 3 and 4 agreed to.
The Deputy Chairman of Committees (Lord Airedale): In the schedules, owing to a misprint, I think I should take the next three amendments in the order of Amendments Nos. 6, 7 and 5. However, I understand that Amendments Nos. 6 and 7 are not being moved.
Schedule 1 [Amendments to the Surrogacy Arrangements Act 1985]:
[Amendments Nos. 6 and 7 not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 5:
Page 2, line 6, leave out sub-paragraph (1).
The noble Lord said: Paragraph 2(1) of the first schedule to the Bill follows the recommendations of the Warnock Report. I should also say that paragraph 2(1) was in fact Amendment No. 3, spoken to with Amendment No. 4, moved by the noble and learned Lord, Lord Denning, at the Committee stage of the Surrogacy Arrangements Bill last year. On that occasion my noble friend Lord Caithness replied to the noble and learned Lord and in relation to the amendment which is now the paragraph I am seeking to have taken out of the Bill my noble friend said about a surrogate mother that if the amendment were passed,
"she would be denied many kinds of medical treatment, notably treatment to prevent a threatened miscarriage during her pregnancy".—[Official Report, 28/6/85; col. 933.]
I do not need to tell your Lordships of the importance to the mother and child of adequate pre-natal care.
The noble and learned Lord withdrew his amendment at that stage. I do not want to refer tonight to the effects of other subparagraphs in the schedule on this subparagraph, but they seem to make certain private sexual acts matters of criminal offence and there will be many who will see the subparagraph as a most unwelcome intrusion of criminal law into private morality.
The point I seek to make in particular is that paragraph 2(1) discriminates against doctors and fertility clinics that might propose to carry out in vitro fertilisation and embryo implantation, which we have already discussed. What the subparagraph does is effectively outlaw this treatment by the back door. It seems to me that all the other forms of surrogacy can be achieved by do-it-yourself methods. Paragraph 2(1) would appear to have the tendency of driving underground all surrogacy arrangements except those made on a do-it-yourself basis. That is the point made most tellingly by Doctors Greengross and Davies in their expression of dissent to the Warnock Committee Report. I find of particular concern the fact that paragraph 2(1) criminalises the monetary side of surrogacy to such an extent that it will really leave lawful surrogacy possible only within the family.
At the Second Reading of this Bill, the right reverend Prelate the Bishop of Ripon said that he did not want to claim that the Church of England had a consensus which extended to the total banning of surrogacy. At col. 576 he said:
"even within the church there are those who believe that it may be right and proper that a woman should offer in loving service the use of her womb to someone who is close to her … I hope that whatever is put into law will leave a space for that kind of loving service that I have mentioned".
On the other hand, in the same debate, at col. 579, my noble friend Lord Swinfen referred to the problems which may arise when a woman's mother acts as surrogate for her unfortunate daughter, and vice versa. I must say that I myself believe that there are really many more problems than there are elements of desirability in this form of loving service, however well meaning it may be.
In conclusion, I submit that the total criminalisation of monetary consideration in all surrogacy arrangements seems to be a recipe for a botched surrogacy, which will result in the worst of all possible worlds. I beg to move.
The Lord Bishop of Birmingham: I was not present when the right reverend Prelate the Bishop of Ripon spoke at the Second Reading of this Bill. It could well be that when he was talking about loving service he was not talking about in vitro fertilisation, or arrangements which require the services of doctors, nurses, solicitors or the like, but was simply thinking of private matters of surrogacy by natural procreation. I do not know.
I myself think that it is very undesirable to legalise non-profit-making organisations in this connection, because organisations create their own dynamic and their own momentum. People make their living out of them, even if they are not profit-making; and whether the people making their living are doctors, nurses, administrators, solicitors or whatever, those who work for such organisations have a vested interest in promoting their growth. They may even advertise their functions. There is reason to think that this is the case with certain non-profit-making organisations concerned with abortion or with the distribution of contraceptives to teenage girls.
We do not want non-profit-making organisations spreading what I think is a false gospel of surrogacy. Therefore, if the clause, to which the noble Lord takes
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exception, prevents this happening, I hope that it will please your Lordships.
Lord Denning: I should like to say that I hope we shall retain provisions which render commercial surrogacy illegal. The Warnock Committee considered this matter very closely. The report, at paragraph 8.18 on page 46, says—and I think I had better read the whole of the paragraph:
"We have considered whether the criminal law should have any part to play in the control of surrogacy and have concluded that it should. We recognise that there is a serious risk of commercial exploitation of surrogacy and that this would be difficult to prevent without the assistance of the criminal law. We have considered whether a limited, non-profit making surrogacy service, subject to licensing and inspection, could have any useful part to play but the majority agreed that the existence of such a service would in itself encourage the growth of surrogacy. We recommend that legislation be introduced to render criminal the creation or the operation in the United Kingdom of agencies whose purposes include the recruitment of women for surrogate pregnancy or making arrangements for individuals or couples who wish to utilise the services of a carrying mother; such legislation should be wide enough to include both profit and non-profit making organisations. We further recommend that the legislation be sufficiently wide to render criminally liable the actions of professionals and others who knowingly assist in the establishment of a surrogate pregnancy".
That is the conclusion of the Warnock report. In a way, that is what we were trying, and are trying, to do in the Bill. I hope that the Committee will approve of this method.
The Earl of Halsbury: I am grateful to my noble and learned friend for taking the Committee through that passage of the Warnock report. It saves my having to do so. The point was taken in the Committee stage of the Bill last year that those recommendations of the Warnock Committee are drawn rather too widely and that as they stand, they would place a penalty on seeking advice as to what was or was not medically possible on the one hand or what was or was not legal on the other. For this reason, the words "establishment of a pregnancy" are used in my amendment to restrict the wrongful activities to what establishes a pregnancy as opposed to advice given about it.
The seeking of advice as to what is possible and what is legal does not establish anything, let alone a pregnancy, with the possible exception of answers to questions. The choice of those words as used in my Bill will effectively place an embargo on the progress, as I have warned previously, of vested interests and precedents growing up until the Government Bill, promised and awaited, but as yet undated, takes the whole subject under review, in which case it has always been my understanding that the Government will repeal their own Act and this Bill, if it reaches the statute book, as part of the wider legislation that they will introduce.
Lord Coleraine: I am glad that the noble Earl has taken this opportunbity to explain his reasons for introducing this amendment to the 1985 Act. I shall read carefully what he has said and consider my position at the next stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 and 7 not moved.]
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 8:
Page 2, line 17, leave out sub-paragraph (3) and insert—
("(3) In subsection (3) of that section—

(a) in paragraph (a) leave out the word "or" in the second place where it occurs, and insert the words "or in respect of any other act performed by him in relation to the surrogacy arrangement, or";

(b) in paragraph (b) at end insert the words "or in respect of any other act performed by him in relation to the surrogacy arrangement"; and

(c) leave out the words from "In this subsection" to the end.")

The noble Earl said: With the leave of the Committee, I should like, in moving this amendment, to speak also to Amendment No 9 standing in my name. The Committee will remember that during Second Reading the point was raised that the present Act can be, and it was suggested is being, evaded by placing a contract, for example, to write the surrogate mother's memoirs on what it feels like to be a surrogate mother, and so on, related to her experience. I promised to look into the matter and was advised to table these amendments to close the door to evasion. The operative words are:
"any other act performed by him in relation to the surrogacy arrangement".
They occur four times altogether, twice in each amendment. If I consider the first occurrence in Amendment No. 8 as typical, the remainder are consequential and merely respect the need for uniformity. The part of the amendment marked (c) merely reintroduces the deletion already made by leaving out sub-paragraph (3) at the head of the amendment. I am advised that the use of the words "performed in relation to" etc. narrows the field sufficiently to avoid undesirable side effects. I beg to move.
Lord Denning: I support the amendment. It deals with such matters as writing memoirs, which is a form of payment.
Baroness Trumpington: I am grateful to the noble Earl, Lord Halsbury, for the opportunity that he has given us to debate this tightening up of the provision in Section 2(3) and 2(4) of the 1985 Act. It is clearly right that the aim of that Act to prohibit the operation of commercioal surrogacy agencies in this country should not be frustrated by obvious loopholes. If that ever proved to be the case, I am sure that the Government would want to look closely at the need for amending legislation. Meantime, we shall note the views expressed by the noble Earl, and by the noble and learned Lord, Lord Denning on this amendment very carefully when we come to consider the need for legislation to deal with the issues in the Warnock report.
On Question, amendment agreed to.
10.30 p.m.
The Earl of Halsbury The Earl of Halsbury moved Amendment No. 9:
Page 2, line 18, at end insert—
("( ) In subsection (4) of that section—

(a) after the words "in respect of the act" wherever they occur insert the words "or in respect of any other act performed by him in relation to the surrogacy arrangement"; and

(b) after the words "in respect of it" insert the words "or in respect of any other act performed by him in relation to the surrogacy arrangement".")

The noble Earl said: I have already spoken to this. I beg to move.
On Question, amendment agreed to.
Lord Swinfen Lord Swinfen moved Amendment No. 10:
Page 2, line 35, at end insert—
(". In section 4 of that Act (offences) in paragraph (a) in subsection (1) leave out the words "level 5 on the standard scale" and insert ("£20,000".")
The noble Lord said: It may be for the convenience of the Committee if I also speak to my Amendments Nos. 11 and 12 while moving Amendment No. 10. I moved similar amendments to Amendments Nos. 10 and 11 on 28th June 1985 when the Surrogacy Arrangements Bill was in Committee. Despite having support from all those who spoke I withdrew my amendments to ensure the safe passage of that Bill through both Houses.
The reports that there have been in various newspapers indicate that a fine of level 5, which I am assured is only £2,000, for commercial arrangements is ridiculously low. There have been various figures bandied about, some in this country, some in the United States. Working on the principle that often what happens in the United States today happens in the United Kingdom tomorrow, the highest figure that has been reported from the United States was, I believe, some 80,000 dollars. At today's rate of exchange that works out at somewhere in the region of £54,000 or £55,000 for commercial arrangements. A fine of £2,000 on that is petty cash and can be swallowed up in the expenses.
As the Committee can see from the amendment, my proposal is to change from level 5 to a figure of £20,000. As I pointed out last year, we already have provisions on summary jurisdiction for a fine of up to £10,0000 under the Local Government (Miscellaneous Provisions) Act 1982, Schedule 3, paragraph 22. The Video Recordings Act 1984 on summary conviction provides for a fine not exceeding £20,000. In addition to that, under the Customs and Excise Management Act 1979 a summary penalty can be fixed of three times the value of the goods. I have been in court when magistrates have had the power to fine on goods of some £16,000 in value. Three times that, if my arithmetic is correct, is some £48,000. I am not suggesting that we go anywhere near that.
My Amendment No. 11, to increase the imprisonment penalty from three months to six months, brings the penalty in line with Section 50 of the Adoption Act 1958 which was shown by my noble friend Lord Caithness last year as being the kind of principle on which the Government were working at that time.
Amendment No. 12 takes account of suggestions by my noble friend Lord Brentford who pointed out that if there was no provision in the Bill for variation of the fine in the years ahead, and by some mischance inflation proceeded at a high rate, £20,000 would soon be chicken feed. My noble friend Lord Caithness, when answering my amendment last time, said that if the penalties were insufficient to deter, the Attorney-General may obtain a High Court injunction to restrain people involved in commercial surrogacy and that a breach of such an injunction is a contempt of

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court with a penalty of imprisonment of up to two years and an unlimited fine.
Although many people will be aware of the Surrogacy Arrangements Act and no knowledge of the law is not an excuse, there are not very many people who are aware that when someone goes on disregarding the law, the Attorney-General gets an injunction. It is my belief that the penalties set out in the various Acts of Parliament should themselves act as a deterrent, and I do not think that the penalties in the Surrogacy Arrangements Act 1985, as they now stand, are sufficiently large to act as deterrents. I beg to move Amendment No. 10.
Lord Denning: I should like to support this amendment for the reasons which my noble friend Lord Swinfen has given. When large sums of money pass to the surrogacy organisations, it is important that criminal law should be strong enough to fix a proper penalty and if need be, imprisonment. As to the other suggestion about the Attorney-General, the courts are very chary about interfering by way of injunction to enforce a criminal law when penalties are already provided by this statute. It is not at all right to rely on the Attorney-General and the procedure of an injunction, which does not appear in the statute. The primary way of dealing with these is the criminal law by fine or imprisonment. Therefore, I support entirely what my noble friend says.
The Earl of Halsbury: This takes me a little out of my depth. The noble Lord, Lord Swinfen, must fight his corner on this. I should be happy to adopt his three amendments, provided that the Government do not warn us against any undesirable side effects that they may have. In that case, the noble Lord will doubtless seek time to consider what they have to say.
Baroness Trumpington: I do not think that the arguments have changed since the last round when my noble friend Lord Caithness spoke, but I must retreat to my neutral corner.
Lord Swinfen: I think that I covered in my opening remarks the comments made by my noble friend Lord Caithness last time, and, therefore, I beg to move Amendment No. 10.
On Question, amendment agreed to.
Lord Swinfen Lord Swinfen moved Amendment No. 11:
Page 2, line 35, at end insert—
(". In section 4 of that Act (offences) in paragraph (a) in subsection (1) leave out "3" and insert "6".").
The noble Lord said: I have already spoken to this amendment. I beg to move.
10.39 p.m.
On Question, Whether the said amendment (No. 11) shall be agreed to?
Their Lordships divided: Contents, 13; Not-Contents, 14.

DIVISION NO. 2

CONTENTS

Boyd-Carpenter, L.

Hacking, L.

Buckmaster, V.

Halsbury, E. [Teller.]

Butterworth, L.

Mowbray and Stourton, L.

Coleraine, L.

Sidmouth, V.

Cork and Orrery, E.

Swinfen, L. [Teller.]

Denning, L.

Vaux of Harrowden, L.

Eldon, E.

NOT-CONTENTS

Airedale, L.

Morris, L.

Craigavon, V.

Parry, L.

Dean of Beswick, L.

Ross of Marnock, L.

Galpern, L.

Stoddart of Swindon, L. [Teller.]

Grantchester, L.

Hylton-Foster, B.

Whaddon, L.

Kagan, L.

Winstanley, L.

McNair, L. [Teller.]

10.48 p.m.
The Deputy Chairman of Committees (Baroness White): As it appears that fewer than 30 Lords have voted, in accordance with Standing Order No. 55 I declare the Question not decided and, pursuant to the Standing Order, the House will now resume.
House resumed.

London Underground (Goodge Street) Bill [H.L.]
Committed to a Select Committee.
Harrogate Bogs Field etc. Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.

Isle of Wight Bill
Brought from the Commons; read a first time, and referred to the Examiners.
House adjourned at eleven minutes before eleven o'clock.