Lords Sitting of 14 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 Ely.

Postage Stamps: Sale Outlets
The Earl of Selkirk: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the reduction of the number of post offices, they would ask the Post Office to consider the sale of postage stamps in shops.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, the question of the wider availability of postage stamps is an operational matter for the Post Office Board. However, I am aware that, while the Post Office is responsible for the printing and first issue of stamps, retailers are free to buy stamps and resell them in their shops.
The Earl of Selkirk: My Lords, I thank the noble Lord for that reply. Can he say how many post offices have been closed during the last 12 months, two years or any such convenient period? Do I understand that he is now saying that any retailer is perfectly free to sell stamps should he so wish?
Lord Lucas of Chilworth: My Lords, there are some 12,000 shops and hotels which currently sell stamps in addition to the network of 21,000 post offices that are supplemented by 8,000 stamp vending machines. So there is a reasonable 24-hour service across the country.
Lord Paget of Northampton: My Lords, can the noble Lord say what commission is received for selling stamps? Why is it attractive to a post office but not to a Co-op?
Lord Lucas of Chilworth: My Lords, it is attractive to some 12,000 shops and hotels. The Post Office does not, however, discount its sales.
Lord Bruce of Donington: My Lords, can the noble Lord say whether he regards the reduction in the number of post offices as being a matter solely for the Post Office? If it is a matter largely under Government policy control or Government policy suggestion, will he make urgent representations to the Post Office to stop reducing the number of post offices in the United Kingdom?
Lord Lucas of Chilworth: My Lords, the answer to the latter part of the noble Lord's supplementary question is, no. Questions about individual post offices are operational ones for the Post Office. The Government have no power, and indeed no wish, to intervene. The main criterion for the Post Office in
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considering closure is the distance standard that the Post Office has operated since the 1940s in providing post offices in urban areas at intervals of not less than a mile. The standard is not applied rigidly.
Viscount Mountgarret: My Lords, more to the point of the Question, will my noble friend not agree that in a great many overseas countries, in any place where tourists buy a postcard to send to their nearest and dearest, they automatically also get a stamp if they ask for it? The suggestion contained in the Question of my noble friend would surely be of great assistance to tourists visiting this country. Should not this question be borne seriously in mind by the Government?
Lord Lucas of Chilworth: My Lords, this is not a matter for the Government. If retailers of postcards, or those running any other shop, wish to sell stamps, they are at liberty to do so. They are also at liberty to charge what they wish for those stamps, since no resale price maintenance is in force.
The Earl of Halsbury: My Lords, will the noble Lord say whether the reduction mentioned in the Question applies to what I might call sub-post offices; namely, those little retailers who fulfil the function of a post office behind one section of the counter and sell postcards, stationery, The Times and the Daily Express on the other side?
Lord Lucas of Chilworth: My Lords, I believe that I have already given a reply relating to the general principle of post office closures. I do not believe that I can go further.
Lord Strabolgi: My Lords, is the noble Lord aware that stamps have been sold in certain cafes in France, at least for the whole of my lifetime, without any difficulty? Is he further aware that the face value of the stamp is the amount that is charged—and no more than that? That seems to proceed without any difficulty. Why is it so difficult in this country for stamps to be sold in pubs, for example?
Lord Lucas of Chilworth: My Lords, I am grateful to the noble Lord for reminding us of the practice in France. There is no difficulty over the purchase and resale of stamps in this country. It is entirely a matter for retailers to decide.
Lord Mishcon: My Lords, is it the intention of the Government, if the Sunday trading Bill is passed, to have post offices open on Sunday?
Lord Lucas of Chilworth: My Lords, the hours that post offices open are an operational matter for the Post Office itself. It has no bearing on the hypothetical question that the noble Lord asks.
The Earl of Selkirk: My Lords, have I understood my noble friend correctly? Can any retail shop sell stamps if it so wants; or does it require a licence to do so from the Post Office? I understand my noble friend to say that hotels can sell stamps. Can all retail shops also do so if they wish?
Lord Lucas of Chilworth: My Lords, given the legislation that currently exists and also any local by-laws that may obtain in so far as the sale of goods is concerned, shops, hotels, bars and so on may sell stamps if they so wish.
Lord Molloy: My Lords, will the noble Lord not agree that post offices provide a number of other important services for the public, not least the service to old age pensioners when they draw their pensions? Will the Government be prepared to listen to any protests that are made should there be further closures of post offices and not adopt a holier-than-thou attitude that this has nothing to do with them when they have not hesitated to sell off other public services to the rich?
Lord Lucas of Chilworth: My Lords, since this afternoon I am dealing with the question of the resale of postage stamps I regret that I cannot answer the noble Lord.
Lord Walston: My Lords, will the noble Lord consider using his undoubted powers of persuasion to suggest to the Post Office that, in view of the fact that it would have far less expense in selling stamps in bulk to other retailers, it should offer some discount, so as to encourage them?
Lord Lucas of Chilworth: My Lords, I am flattered by the belief of the noble Lord, Lord Walston, in my powers of persuasion. The Post Office practice has been to avoid giving discounts, since it is judged that this would not increase overall the stamp sales but instead would take away business from post offices, the overheads of which would remain the same.

Defence Policy: Labour Party's Statement
2.41 p.m.
Lord Jenkins of Putney: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is their reaction to the Labour Party's statement on non-nuclear defence entitled Defence and Security for Britain.
The Minister of State for Defence Support (Lord Trefgarne): My Lords, we believe that the defence policy proposed in the publication referred to by the noble Lord would jeopardise the peace and security which Europe has enjoyed for over 40 years. We therefore profoundly disagree with it.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that I am sorry to hear of his profound disagreement? I had hoped that he would say that the Prime Minister's intervention to prevent American aircraft flying from bases in this country—which we understand has taken place recently in connection with the American presence off the Libyan coast—was an indication that the Government were moving in our direction.
Lord Trefgarne: My Lords, with respect to the noble Lord, the Question on the Order Paper refers to a document issued by the Labour Party; and I do not think that his supplementary question arises from that.
Lord Jenkins of Putney: My Lords, I am most grateful to the noble Lord. Some clarification is clearly necessary. The document to which I refer says that the next Labour Government will refuse cruise and US nuclear bases in the United Kingdom. Is it not relevant to draw attention to the Prime Minister's decision to forbid the flying of American aircraft from bases in this country, which suggests that, at long last, the Government are realising that the presence of American aircraft in this country can be a danger rather than a defence?
Lord Trefgarne: My Lords, again, I do not think that that arises from the Question that I have answered.
Lord Boyd-Carpenter: My Lords, does not the rather naïve document to which the noble Lord, Lord Jenkins, seeks to draw attention confirm the recently expressed view of Mr. Denis Healey that the leadership of the Labour Party is lacking in practical experience?
Lord Trefgarne: My Lords, that, I believe is self-evident. However, there are a number of contradictory features in the document to which I have referred.
Lord Mayhew: My Lords, will the noble Lord agree, first, that no government who are loyal to NATO would dream of withdrawing without the agreement of their allies or co-operation with the NATO deterrent? Secondly, will he also agree that NATO's defence capacity is unbalanced, and that priority should now be given to strengthening its conventional forces?
Lord Trefgarne: My Lords, the document which is the subject of the Question contains a number of contradictions which I have no doubt will become apparent to noble Lords opposite if they ever again come into power.
Lord Graham of Edmonton: My Lords, will the noble Lord accept that it is part of Labour's defence policy to cancel the Trident programme? Will the noble Lord tell the House the current cost of the Trident programme; and how much it has escalated since it was conceived?
Lord Trefgarne: My Lords, again, that question goes very wide of the Question on the Order Paper. We made an announcement very recently about the current projected cost of Trident.
Lord Chalfont: My Lords, with regard to the supplementary question put by the noble Lord, Lord Boyd-Carpenter, in considering the publication referred to by the noble Lord, Lord Jenkins, will the Government also take note of another publication—namely, the Italian newspaper La Stampa of 5th April? I know that that will not be very popular on this side of the House. In that publication, it is recorded that the Shadow Foreign Secretary, Mr. Denis Healey, has referred to the Labour Party's

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defence policy as a problem. He goes on to say that he hopes to put it in order before the next general election. Is it not therefore somewhat hypothetical to be discussing the Labour Party's defence policy?
Lord Trefgarne: My Lords, it may be worth mentioning that the right honourable gentleman to whom the noble Lord refers is, I think, the only member of the present Shadow Cabinet who has held high office in a defence department.
Viscount Trenchard: My Lords, will my noble friend be able to give us any rough estimate of what the Government feel would be the necessary cost, not only to the British defence budget but to all allies' defence budgets in NATO if we were to move to a situation where we could hold with conventional arms any assault from the East for more than a matter of days—in fact, indefinitely—bearing in mind that their firepower in terms of tanks, aircraft and the like is about two to one or more at the present time?
Lord Trefgarne: My Lords, I think that the Labour Party is wrong if it imagines that it can replace nuclear deterrents with conventional deterrents at the same level of deterrence at the same cost. My noble friend is right to point out that that is not remotely possible. That presents us with some difficulty because the Labour Party apparently thinks that it will fund all the other improvements that it plans at the expense of the defence budget. As it is forecasting a total of something like £24,000 million of extra expenditure, there will be some difficulty for it.
Baroness Seear: My Lords, will my noble friend agree that, while this document would no doubt be an excellent subject for a debate, it is scarcely a matter for Questions, especially as so many of us do not know whether it is going to be discussed?
Lord Trefgarne: My Lords, I agree that the document is wide-ranging, and it would take me a long time to recite all its shortcomings.
The Earl of Lauderdale: My Lords, would not my noble friend agree that there has been an important new contribution to the debate this afternoon in that the noble Lord, Lord Jenkins, has recognised that there is an effective British Government veto on the use of American bombers from British bases?
Lord Trefgarne: My Lords, that is a matter which we have discussed on a number of occasions.
Lord Hatch of Lusby: My Lords, is the noble Lord aware that the Russian leaders have agreed that if there is a policy as contained in our document for the phasing out of Polaris, they will be prepared to negotiate one for one with that phasing out? Is not that a practical means, arising out of the Labour Party's defence policy, for nuclear disarmament in Europe?
Lord Trefgarne: My Lords, I have no doubt that the Soviet Union would greatly appreciate the phasing out of the British independent nuclear deterrent, because it would contribute to its security, but not to ours.
Lord Molloy: My Lords, does not the Minister agree that anything which might contribute to the prevention of a thermonuclear war should not be just sarcastically dismissed, because it could well be something worthy of examination, and that the alternative is pretty dreadful? Moreover, despite what the noble Lord, Lord Chalfont, said, it was the Labour Party that first created NATO and that has given it massive support when it has been in government. Anything that comes from Her Majesty's Opposition or from any other political party in this country is something with which, under the rules of democracy, you do not have to agree, but perhaps on such an important issue you may be prepared to examine it.
Lord Trefgarne: My Lords, it is the case that ever since the Second World War the Labour Party has supported the maintenance of an independent British nuclear deterrent, and that is why its present stance is so curious.
Lord Jenkins of Putney: My Lords, I should like to acquaint the noble Lord with the point that the document was signed on behalf of the parliamentary Labour Party by our defence spokesman in the other Chamber, Mr. Denzil Davies, and that that parliamentary Labour Party will, I hope, long include Mr. Denis Healey, who is in a position to speak for himself on all occasions.
Lord Trefgarne: My Lords, I return to the point which I made earlier that Mr. Healey is by far and away the most experienced in these matters.

Local Authorities and Newspaper Advertising
2.52 p.m.
Lord Harris of Greenwich: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they propose to take concerning the practice of some local authorities of declining to advertise in local newspapers for political reasons, despite the fact that those newspapers have the largest circulation in the area concerned.
The Minister of State, Department of the Environment (Lord Elton): My Lords, Her Majesty's Government are aware of this problem and share the noble Lord's concern. The evidence which my department and others gave to the Widdicombe Inquiry drew particular attention to decisions taken by some authorities to withdraw their custom or facilities from local newspapers for political reasons. We shall consider the need for action in the light of the inquiry's report, which we expect shortly.
Lord Harris of Greenwich: My Lords, I am grateful to the Minister for his reply. Is he aware—to take one example—that in the case of the local authority in Islington, an advertising boycott is directed at the local weekly newspaper, the Islington Gazette? Is he aware that that behaviour by the local authority has been

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condemned by both the Press Council and the local government ombudsman and that despite that the local authority is continuing its spiteful boycott against a small local weekly newspaper?
Lord Elton: My Lords, as I have said, Her Majesty's Government are aware of an increasing tendency for some authorities to apply political tests and conditions in their commercial judgments in decision taking. We regret that development and we look to the Widdicombe Report to give a clear exposition of the alternative options open to us.

PBI and NSDO: Projected Privatisation
2.56 p.m.
Lord John-Mackie: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what their plans are for the Plant Breeding Institute and the National Seed Development Organisation.
The Earl of Swinton: My Lords, I announced on 18th February in reply to a Question by my noble friend Lord Cranbrook that the Secretary of State for Education and Science and agriculture Ministers had decided to privatise the National Seed Development Organisation and part of the Plant Breeding Institute, provided this can be achieved on satisfactory terms. I also said that we intend to appoint financial advisers. Lazard Brothers & Company Limited have now been commissioned to carry out a preliminary study of the options for privatisation. They have been asked to report in early May.
Lord John-Mackie: My Lords, is the Minister aware that this proposal was first mooted in the early spring of 1984 and that since then I have asked several Questions of various Ministers but it is only now that some move is being made? Does the Minister realise what the situation is doing to the staff of the PBI, who are a very devoted staff in plant breeding, biotechnology and everything else? It is disgraceful that two government departments cannot get together quicker and settle the issue one way or another, never mind the rights and wrongs of it.
The Earl of Swinton: My Lords, I recognise that we have been talking about this matter for some time. On the other hand, if we had acted quickly, the noble Lord, Lord John-Mackie, would have been quick enough in getting up and questioning whether the Government were acting with undue haste and without consultation. So far as the staff are concerned, I agree that they are the main asssets of the PBI and the NSDO. In fact, the morale of key staff is holding up admirably, and we recognise the importance of retaining them, especially at this time of uncertainty about the future of the two organisations. For that reason we shall be seeking to take decisions as soon as possible, consulting the staff through the respective governing bodies about the form of any privatisation.
Lord John-Mackie: My Lords, does the noble Earl believe that high morale is reflected by three top people leaving the company?
The Earl of Swinton: My Lords, individuals are of course free to leave at any time. However, I think that morale is higher now than before we announced that there was to be privatisation.
Lord Walston: My Lords, given the very great contribution that both the PBI and the NSDO have made to agriculture in this country and the high esteem in which they are held in other countries too, and the fact that their financial record is most satisfactory and they bring in considerable sums of money to the Exchequer, will not the noble Earl give us, very briefly, the Government's reasons for even considering the privatisation of these two organisations, if only in part?
The Earl of Swinton: Yes, my Lords. I would agree with the noble Lord, Lord Walston, that the PBI has been successful in producing many valuable varieties and that the NSDO has also performed commendably its role of marketing finished varieties produced by the state institutes. However, there has been some reduction in the level of funding at the PBI and other institutes and it is sensible to look for ways to make this up. It is Government policy to encourage industry funding of R & D, to improve technology transfer from publicly funded research to industry for the benefit of the UK recovery and to consider privatisation where this might foster sound management, commercial efficiency and good value for money for the taxpayers. It is therefore entirely appropriate that the position of the PBI and the NSDO should be reviewed in this way.
Baroness Nicol: My Lords, will the Minister assure the House that considerations other than commercial ones are being taken into account? That did not seem very clear from his answer. In particular, will he give a categorical assurance that so far as the PBI is concerned the enhanced commercial value of its present site is not a factor in curtailing its operations?
The Earl of Swinton: Yes, my Lords; the whole of the PBI will not be going. I apologise, but I have forgotten the second part of the question.
Baroness Nicol: My Lords, is the possible enhanced value of the PBI site at the moment a factor in reducing its operations?
The Earl of Swinton: No, my Lords, because we hope that the site will remain. We shall not sell off the whole of the PBI. So far as the first part of the question is concerned—namely, whether we shall take into account other factors—the answer is that yes, we certainly shall do so.
Lord Cledwyn of Penrhos: My Lords, is the noble Earl aware that in agricultural circles throughout this country there is profound concern at the Government's policy towards plant breeding institutes generally? I ask the noble Earl to recall the debate which we had in this House on the Welsh plant

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breeding station at Aberystwyth. Is the noble Earl aware that, as the noble Lord, Lord Walston, said, in this country we have an incomparable reputation in the field of plant breeding and that now it appears from all the evidence we have that the Government are dismantling our plant breeding institutes? In order to clarify the situation will the noble Earl ask his right honourable friend to ensure that a White Paper is published as soon as possible so that we may know the details of Government policy on this important matter?
The Earl of Swinton: My Lords, I think that I can give the noble Lord, Lord Cledwyn, more than a crumb of comfort, in that so far as the Welsh plant breeding station is concerned no change is planned. I must, however, express some reservation about the idea of a White Paper, though I shall of course draw it to the attention of my right honourable friend.
Lord Cledwyn of Penrhos: My Lords, I am much obliged, but I must press the noble Earl on that, and I should be grateful if he would convey it to his right honourable friend. Is the noble Earl aware that he has given me no crumb of comfort whatsoever? Is he not aware, as the Minister concerned in this matter in this House, that the Welsh plant breeding station has been deprived of funds; that the expert staff who have been working there for years have been cut down in numbers savagely; and that they have been deprived of their research work on barley and other essential crops? Does the noble Earl not agree that it is an absolute disgrace that the only institute of its kind in Wales has been treated abominably in this way, and that the Government are entirely reponsible for that?
The Earl of Swinton: No, my Lords, I would not accept that from the noble Lord. Indeed, I shall never forget the debate we had on that subject, and I very much take the points that he made. But I was trying to tell the noble Lord that it is not going to be sold off. Of course, I shall draw my right honourable friend's attention to what has been said this afternoon and ask whether he will consider publication of a White Paper.
Lord Kilmarnock: My Lords, is there any reason why the institute should not retain its present status but also run a trading account? Furthermore, if the Government are determined to go down the privatisation road, will they consider a management buy-out?
The Earl of Swinton: My Lords, so far as the last part of the noble Lord's supplementary is concerned, we shall be considering any suggestion that is put to us. I understand that the NFU, for instance, are interested, and we shall be examining positively any proposals that they put forward.
Lord John-Mackie: My Lords, arising out of my noble friend's question about Aberystwyth, may I raise the matter of Aberystwyth and potato plant breeding in Scotland? If the NSDO is privatised and goes, what arrangements, in haste or in slowness, are the Government going to have for the marketing of that product?
The Earl of Swinton: My Lords, they are both questions that we shall be considering.
Lord Chalfont: My Lords, would the Minister ensure that there is no confusion when he comes to promulgate plans for the Plant Breeding Institute?—because to many of us in this House "PBI" means "poor bloody infantry".
The Earl of Swinton: My Lords, not to me, at any rate.
Lord Kilmarnock: My Lords, I am sorry to come back to the noble Earl, but could he answer my first supplementary, which was as to whether there was any reason why the institute, as at present constituted, should not run a trading account?
The Earl of Swinton: My Lords, I think we have decided that we shall answer one supplementary at a time. I shall have to write to the noble Lord on that one.

Business
3.25 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Report stage of the Legal Aid (Scotland) Bill will be adjourned at approximately 7 p.m. for about one hour, and that during the adjournment the Committee stage of the Patents, Designs and Marks Bill will be taken.

Armed Forces Bill
Brought from the Commons on Friday last and printed pursuant to Standing Order No. 48; read a first time.

Sex Discrimination Bill [H.L.]
3.3 p.m.
Report received.
Clause 1 [Private households and small undertakings]:
The Secretary of State for Employment (Lord Young of Graffham)The Secretary of State for Employment (Lord Young of Graffham) moved Amendment No. 1:
Page 2, line 4, at end insert—
("(2A) In section 11 of the 1975 Act, in subesection (1) (which deals with discrimination against a woman in relation to a position as partner in a firm consisting of six or more partners), the words "consisting of six or more partners" shall cease to have effect.")
The noble Lord said: My Lords, with the leave of the House I should like to take Amendments Nos. 1 and 6 together. My noble friend Lady Platt tabled an amendment at Committee stage designed to bring partnerships consisting of five or fewer within the Sex Discrimination Act's requirement not to discriminate in the selection or treatment of partners. She kindly agreed to withdraw her amendment when my noble friend Lord Trefgarne indicated the Government's sympathy and undertook that we would bring forward

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an amendment of our own. Ours differ from my noble friend Lady Platt's amendment in drafting but not in substance. I hope they will be acceptable to the House.
May I also take this opportunity to mention a matter in which several noble Lords expressed an interest on the day of Second Reading; namely, the European Court of Justice ruling in the case of Marshall v. South West Hampshire Area Health Authority. I said that I would consider urgently whether amendments should be made to the Sex Discrimination Bill to comply with the court ruling. My department issued on 1st April a consultative document containing proposals to change United Kingdom legislation. The proposed amendment would make it unlawful to dismiss a woman or compulsorily retire her at an age when a man in comparable circumstances would not receive this treatment. In addition, women will be given the right to claim unfair dismissal up to the same age as men. The consultative document has been placed in the Library of your Lordships' House. The consultation period will end on 30th April. Amendments to this Bill will be introduced in another place. I beg to move.
Lord McCarthy: My Lords, we should like to thank the Minister for accepting the argument put forward at Committee stage by the noble Baroness and for introducing this amendment at this stage. It was a general argument which had general support in the Committee at that stage, that if the Government were acceding to the request to remove discrimination from small firms then they should also do it for small partners, as it were. We are glad that the Government have done this; and we are interested to hear of the further amendments that the Government are going to introduce in another place as a result of other decisions.
Since the noble Lord is ranging widely in this area, I should like to ask him at this stage whether the Government have thought again about a further amendment which was put down by the noble Baroness at Committee stage. That was Amendment No. 2, which dealt with her desire to leave out what might be called the second limb of the Government's definition of the types of discrimination that would still be possible in private households. She argued, and we supported her at that stage in relation to this clause, that there was no need for the second limb.
The first limb, which dealt with the degree of social or physical contact, in fact dealt with all the examples that the Minister gave us on that occasion, and the second limb, which dealt with knowledge of private affairs, in fact did not deal with any of the examples. Therefore, while the Government are in this rather conciliatory mood, as they are this afternoon, and they are prepared to accept at least one of the noble Baroness's amendments, could they tell us how they now feel about the other amendment and whether they will be doing anything about that in the other place?
Baroness Seear: My Lords, I was interested to hear what the noble Lord said about the questions arising from the Marshall case. I have not had the opportunity to read the document that has been put in the Library, but may I ask two questions? First, are the
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Government considering, in relation to this case, the whole question, the much wider but surely related question which cannot indefinitely be ducked, of a common retirement age? As it stands at the moment, and in relation to the Marshall case, I realise that this is not strictly required within the narrow limits of the finding of that case, but surely it must be linked, and it does not make good sense to consider the one without the other.
Secondly, since the amendment arising out of the case is going to be moved in another place, may I ask the Secretary of State whether we here will have an opportunity to discuss it?
Baroness Platt of Writtle: My Lords, it is with great pleasure that I express my gratitude to my noble friend the Secretary of State, and support this amendment to Clause 1. The Equal Opportunities Commission was concerned that without the amendment the Bill might fail to comply with the European Equal Treatment Directive. It is important that small professional partnerships should be treated in the same way as small firms, and I am grateful to my noble friend for introducing this amendment, which I hope the House will accept.
I am also naturally pleased, as we supported Miss Marshall, to hear that amendments will be put in another place as a follow-up to her case. Like the noble Baroness, Lady Seear, we too at the Equal Opportunities Commission would welcome the equalisation of pension age.
Lord Harris of Greenwich: My Lords, may I just say that I think we are all gratified to hear from the noble Lord that he has moved with such dispatch to deal with the judgment of the European Court on this question. We also hope that we shall have an opportunity of getting at Third Reading, in perhaps slightly more detail, the character of the amendments which may be tabled in another place.
Lord Young of Graffham: My Lords, may I take this opportunity of dealing with the matters raised by my noble friend Lady Seear and other noble Lords—
Baroness Seear: My Lords, I am not the noble Lord's noble friend.
Lord Young of Graffham: Forgive me, my Lords: the noble Baroness, Lady Seear, who I hope is a friend outside this Chamber as well as in other places.
These matters concerned the Marshall case. Under that case, we are dealing solely with the requirement laid by employers on any employee to retire at a specific age and any discrimination which the court felt that that entailed. The financial results relating to retirement are quite another matter. They are the responsibility of my right honourable friend in another place and are matters which involve the whole range of interests outside discrimination on the grounds of sex. I am sure that these are matters which can be raised, but I am not sure that they are appropriate to be raised in legislation which deals solely with discrimination. The consultation period ends on 30th April and we wish to reflect on the results of the consultation. Therefore it may not be possible to determine

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precisely what amendments will be moved in another place by that date. I have no doubt that it is open to anyone in your Lordships' House to consider any changes that come from another place and to come back here before the Bill is passed.
I shall now deal with the precise matter of private households. At the moment, I am afraid we are still looking for a better and more appropriate form of words. I hope that we may be able to get a little further along this way when we return on Third Reading.
On Question, amendment agreed to.
Clause 2 [Amendments of section 77 of 1975 Act]:
Lord Young of Graffham Lord Young of Graffham moved Amendment No. 2:
Page 2, line 13, leave out ("employed by him") and insert ("who are employed by him or who apply to be, or are, considered by him for employment").
The noble Lord said: My Lords, this amendment arises from your Lordships' debate at Committee stage. The noble Lord, Lord Wedderburn, drew attention to a potential limitation in the coverage of Clause 2(1)(b) relating to employers' rules, and I am happy to remedy that now. The amendment will ensure that employers' rules which are unlawfully discriminatory will be void not only where they relate to existing employees but also in relation to applicants or those who are considered for employment. This brings the provision in line with what we have provided for collective agreements and with the existing employment provisions of the 1975 Act, which cover offers of employment as well as conditions for existing employees. I beg to move.
Lord Wedderburn of Charlton: My Lords, briefly, we express our pleasure at this amendment. The Government amendment brings this Bill into line with the Sex Discrimination Act 1975 more completely than the amendment that we moved at Committee stage. Therefore we express our happiness with it. This is a Bill that has gone through many changes already. Your Lordships have heard this afternoon that the portents are perhaps that the Bill will go through many changes again. In the hope that some of those can come this afternoon and that this is a hopeful sign of the Government's willingness to think again about parts of the Bill, we welcome the amendment.
On Question, amendment agreed to.
3.15 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 3:
Page 3, line 16, at end insert—
(" (5A) Where—

(a) a person brings a complaint or application under section 65(1) or section 77 of the 1975 Act, or a claim under section 2 of the Equal Pay Act 1970; and

(b) an industrial tribunal or a court makes a declaration, award, order or other judgment in favour of that person by reason, wholly or in part, that a term in a collective agreement or a rule made by an employer is void, unenforceable or otherwise unlawful by virtue of this section,

that person or any other appropriate person may report the matter to the Secretary of State.
(5B) Where a person has reported a matter to the Secretary of State in accordance with subsection (5A) above, the Secretary of
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State or any other appropriate person may refer that collective agreement or, as the case may be, that rule or the rules of which that rule forms a part, to the Central Arbitration Committee constituted under section 10 of the Employment Protection Act 1975, to declare what amendments need to be made so as to remove discrimination on grounds of sex and the date or dates on which amendments are to have effect, not being in any case earlier than the date of the reference to the committee.
(5C) In subsections (5A) and (5B) above, the appropriate persons are—

(a) in the case of a collective agreement, an employer or a trade union party to it;

(b) in the case of a rule, the employer who made it or a trade union recognised by him in respect of persons to whom it applies within subsection (1)(b) above;

(c) in either case, the Equal Opportunities Commission.

(5D) Where the Central Arbitration Committee has declared what amendments need to be made under subsection (5B) above then, in so far as terms and conditions of employment of any person are dependent upon the collective agreement or the rule or rules, whether by way of contract or otherwise, they shall be ascertained by reference to the collective agreement or, as the case may be, the rule or rules as so amended.").
The noble Lord said: My Lords, this is a matter of substance which arises from your Lordships' discussion in Committee on 11th March, especially in cols. 535 to 553. My noble friend Lady Turner moved an amendment to restore the jurisdiction of the Central Arbitration Committee in a form that would be suitable to this Bill rather than its complete repeal as a jurisdiction, which is effected by this Bill by the repeal of Section 3 of the Equal Pay Act 1970. That proposal to your Lordships was negatived in Committee. The present amendment is a half-way house to deal, as we see it, with an acceptance of the Government's view as then expressed, plus the problem which still remains, having accepted it. The issue arises because of the form of the Bill chosen by the Government to comply with the 1984 judgment of the European Court of Justice in respect of collective agreements and employers' rules—what used to be called employers' pay structures under the Equal Pay Act, but more broadly employers' rules—which turn out to be discriminatory on grounds of sex.
The method in Clause 2—we have never complained of this basic method—is to make all these, if they are discriminatory, unlawful under Section 77 of the 1975 Act as though they were contracts which are also made unlawful under that section if they are discriminatory. If they turn out to be discriminatory it is unlikely, as your Lordships' debates have already shown, that direct discrimination will be very much the problem. The problem is indirect discrimination, because indirect discrimination which is unintended is the problem likely to arise in such rules and in such collective agreements. Indeed, persons of reasonable and honest views can often disagree about what constitutes indirect sex discrimination. It is a difficult matter. Where persons of reasonable and honest views can disagree, lawyers can have violent argument. The problem is complex and somewhat uncertain. Where that is so, enforcement of the law and its economical enforcement acquires a new and important aspect.
The Secretary of State said on Second Reading on 27th February, at col. 1179, that the effect of Clause 2 would be to make void any term of a collective agreement or rule made by an employer which was discriminatory. He said at the same column that he thought this would not have very important practical effects for two reasons; that the negotiators would

423
avoid discrimination (we agree that would happen in the vast majority of cases); and, secondly, that the individual employee who suffered discrimination could take a case to an industrial tribunal under the general provisions of the 1975 Act. We agree with that.
In Committee, at col. 537, the noble Lord, Lord Trefgarne, said that there is no specific enforcement mechanism provided in Clause 2 because none is necessary. He went on to say that such provisions would simply be void and could be cured in the way suggested by negotiation or, if the employer would not agree, this could be,
"a good way of putting pressure on employers. They [unions] can support an individual employee affected by the offending agreement in a complaint to an industrial tribunal".
That was part of the Government's insistence that the effective enforcement would be in the industrial tribunal. So far, we can and must travel with the Government because our different way of doing things was defeated in Committee.
But what happens if the step of a case to the industrial tribunal is taken in regard to a set of internal undertakings rules (to use the European phrase) or a collective agreement which affects thousands of workers? The Government had an answer to this and it is here that we say the Government should think again. The answer was given by the noble Lord, Lord Trefgarne, at col. 538, when he said:
"If the employer is intransigent"—
in regard to such a case that involved many workers—
"the union still has at its disposal, as it has had all along, the weapon of backing a whole string of tribunal cases".—[Official Report, 11/3/86: cols. 537–38.]
Albeit the individual worker's right to go to tribunal is important, albeit we must accept that that must be the primary method of enforcement—and we do so accept because of the decision in Committee; that is the reason for our subsection (5A) in our Amendment No. 3—we think that where there is such a case it is surely reasonable to say that where negotiation has not succeeded in ironing out perhaps the disagreement as to what is the discriminatory clause, there really should be the option of a different way of easing the industrial problem for both the employer and the union apart from a whole string of 2,000 individual industrial tribunal cases.
If the noble Lord the Secretary of State has one thing engraved upon him—not upon his tombstone, but as he marches forward—it is not "Calais", it is "Burdens on Business". What could be a greater burden on business than to insist that in any case where discrimination arises by reason of this Bill every single case must go through the industrial tribunal. That does not make sense, and I am glad to get some indication from the Secretary of State that he is not going to say that it does. If it does not, then, with one other proviso, our case is nearly made.
The other proviso is that the noble Lord, Lord Trefgarne, said at col. 539 of the Official Report at the Committee stage:
"The revision of discriminatory collective agreements is surely best left to the experts; that is, to the parties who originally negotiated them".
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And he left it there. But he was answered by the noble Baroness, Lady Seear, who said (in the same column):
"It is quite unreasonable, not to say naive, to assume that it can be left entirely to the negotiators to see that the matter is properly handled".
And one reason for that is the difficulty of an assessment of indirect discrimination in employers' rules or in agreements.
There are other expert bodies. The EOC (the Equal Opportunities Commission) is an expert body and that is why in our proposed halfway house structure we suggest that it should have a role in referring the matter to the Central Arbitration Committee after the matter has been reported to and considered by the Secretary of State. The Central Arbitration Committee itself is an expert body. It has a reputation which is unblemished and which the Government more than once have told us in these debates they do not wish to attack. At one stage I was guilty of the thought that the Government were hostile to the CAC, as it is usually known in the trade, though I am told by the Secretary of State in debate and by other Ministers that that is not so.
I have the highest regard for the CAC. There is the body to deal with the issue if the parties wish to put it to it. What could be more sensible, while accepting that the industrial tribunal judgment must be the first stage, because that is what the Government insisted upon in Committee and that is what we accept in this amendment, than enacting at least the option of referring to the Central Arbitration Committee on industrial relations structure which has been revealed to have some aspect of discrimination, albeit no doubt unintended, and to have its help where the parties wish it in order to solve the problem rather than wasting the cost and expense of thousands of individual industrial tribunal cases? However, I hasten to add that our amendment would not take away from any individual employee the right to go to a tribunal on any occasion which he or she deemed right and proper.
There is a final point, and I shall put it in a sentence. There is I think a lingering doubt as to whether the clause fully meets the judgment of the European Court at Luxembourg. I put it no higher than that. But there is the issue of whether the absence of a procedure for enforcement, apart from the industrial tribunal cases, really will satisfy the Luxembourg Court for all time. Indeed, it would be a brave person who could say that anything would satisfy the Luxembourg Court for all time. But there is a doubt among those who disagree in the area; and if that were added to our case, I would say that we are moving an amendment which surely makes industrial sense and, as a footnote, would surely cure that doubt. I beg to move.
Lord Denning: My Lords, may I support this amendment? I gather that the question of whether or not a collective agreement or rule made by an employer is void will come to be decided by an industrial tribunal. Many of these industrial tribunal cases are not reported. They might be reported in some trade paper or the like, but they may go unknown. Surely it is important that there should be some way of getting to know the determination of an industrial tribunal as to whether or not a particular agreement is void or a particular rule is void, and there ought to be

425
some record which is available just as in the law courts where we have reported cases.
Furthermore, rather than let many cases go time after time to an industrial tribunal or beyond, why not let the necessary amendment—because it will be necessary to have an amendment to a collective agreement or to a rule—be made straight away without people having to go to a tribunal? Let it be made by proper machinery which is suggested here; and I do not know whether there may be others made by the Central Arbitration Committee. I would support the principle of this amendment so that people should know; and it should be recorded what clauses are void or unenforceable and, if need be, amendments made.
Lord Young of Graffham: My Lords, I am very grateful for the admission this afternoon by the noble Lord, Lord Wedderburn, that we are "marching forward". I trust that he means not only with regard to the elimination of discrimination for reasons of sex but also with regard to all other policies of Her Majesty's Government. Perhaps I may say to the noble and learned Lord, Lord Denning, that it is many decades since I was a law student, but I was always told that the reason cases are published by courts, the Court of Appeal and by your Lordships' House, is for a doctrine of precedent to apply. I am not sure that the doctrine of precedent should apply in cases of tribunals. This, I think, is a very real distinction.
But in any event the prospect of 2,000 individual cases (which the noble Lord, Lord Wedderburn, said will be a burden on business) should provide an incentive to employers to renegotiate. Negotiation and renegotiation are ways for business to protect itself from burdens rather than having those burdens laid upon it.
Regrettably, I was not present when your Lordships discussed this clause at Committee stage, but I have read carefully the Hansard report. I must confess to being somewhat puzzled by some of the things that I read. The noble Baroness, Lady Seear, called my noble friend Lord Trefgarne "naïve" for arguing that trade unions would seek to remove discrimination from collective agreements when it came to their notice. She spoke about collusion between employers and male-dominated trade unions to continue discriminatory practices. Other noble Lords opposite supported her and I suspect that many still think so.
How far the suspicion may have been well founded in the past I shall not presume to say. But it has been a major aim of this Government to establish and strengthen democratic rights for individual members within trade unions. I hope that women trade union members will use their secret votes in union elections, now guaranteed by law, to get themselves leaders who will be genuinely committed to equal opportunities; and there are signs that this is already happening. The Financial Times of 3rd April reported that the first elections held by APEX under the Trade Union Act 1984 have resulted in women gaining another three seats on the executive, giving them five out of 16 instead of two out of 16 in a union which has 55 per cent. female members.
It has also been suggested that Clause 2 may not meet the requirements of the European Community
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equal treatment directive. The very purpose of the clause is to implement a European Court ruling and we have naturally satisfied ourselves that we are doing that. A copy of the Bill was sent in February to the European Commission, which initiated the proceedings against the United Kingdom, and I do not think that it would have hesitated to tell me if it thought that the Bill was not remedying the breach of that directive. The directive states that:
"any provisions contrary to the principle of equal treatment which are included in collective agreements … shall be, or may be declared, null and void or may be amended".
There is thus a choice of methods for implementing the directive in relation to collective agreements, and the Government have chosen to provide that unlawful discriminatory provisions shall be null and void.
It was suggested that the clause merely says that unenforceable terms of collective agreements are unenforceable if they are discriminatory. I grant noble Lords opposite the fact that the directive makes relatively little sense in the United Kingdom context. That is because it was designed for the European Community as a whole, many of whose member states have a system of legally binding collective agreements.
3.30 p.m.
We do not need a new system of enforcement for sex discrimination cases and the European Court ruling did not suggest this. Its judgment was essentially a technical one and we are implementing it with this Bill. The court accepted that Section 77 of the Sex Discrimination Act implemented the directive in relation to legally binding collective agreements, but held that the lack of corresponding provision for non-binding agreements meant the directive was not fully implemented. In our view, the court saw a formal voiding provision as an important presentational measure which would set the tone for collective agreements and filter through to practical results on the ground. This change implements the court's judgment and the Government do not see the need to establish a special enforcement procedure beyond what is required of us.
As soon as the Bill comes into force, terms in collective agreements will be void in so far as they lead to discrimination which is unlawful under the Sex Discrimination Act or the Equal Pay Act. In such situations renegotiation of the agreement will be necessary to fill the void. The Government consider that such renegotiation is best left to parties to the agreement, not to the decision of an outside body (however expert it may be) unless the parties both want this. There are, of course, long-standing arrangements for voluntary arbitration by the CAC. The CAC's function under the Equal Pay Act has not been used for some years and we see no reason to revive it. We already have the industrial tribunals; we already have the Equal Opportunities Commission, with its power of formal investigation into any matter connected with the elimination of discrimination and the fostering of equal opportunities; and we do not need the CAC to have an enforcement role in this area as well.
I appreciate that this amendment is more limited in scope than the one discussed at Committee stage. But I still believe it is inappropriate. As the amendment recognises, individuals who suffer unlawful discrimi-

427
nation in employment (whether or not as a result of a collective agreement) already have the right to complain to an industrial tribunal and obtain redress. If the individual wins and the negotiating parties still insist on maintaining a collective agreement which gave rise to the discrimination, there are likely to be more cases on the same issue. Industrial tribunal decisions on discrimination are published with reasons and are available to the public for consultation, even though not all of them are reported in the law reports. The employer will then be faced not only with the expense of trying to defend such cases before a tribunal but possibly with compensation, too. Indeed, such a case would be a prime candidate for a pre-hearing assessment and an award of costs against the employer for acting "frivolously, vexatiously or otherwise unreasonably" if he persists to a full hearing. I doubt if any employer would be foolish enough to expose his or her firm to such wanton risks. The new voiding provision will give an added incentive to renegotiate the discriminatory agreement with all speed.
Indeed, I suspect that the renegotiation would be completed more speedily than a reference to the CAC. Let me give an example. Suppose a collective agreement provides for women to work 38 hours per week and be paid accordingly, and for men to work 40 hours per week and be paid accordingly. A women who would prefer the longer hours (or a man who would prefer the shorter hours) takes a tribunal case and wins it. The employer is naturally concerned that he might lose more cases, so negotiations take place. The employer and trade union obviously need to find out how other employees in that workplace feel about the issue. Are they all happy, except the one who took the case? Do they prefer 38 hours, 40 hours or indeed 39 hours? Would a free choice of hours be feasible in the context of that firm? There are many factors to consider, but at least they do not have to worry about all the other firms which may be covered by the original collective agreement before reaching a new agreeement for their particular workplace. The CAC, under the proposals before us, has power to influence the contracts of employment of every employer and employee covered by the collective agreement. It is not to be supposed that the CAC would be so unreasonable as to take a decision without consulting extensively. But meanwhile the particular problems of individual firms could have been resolved quickly and satisfactorily, if necessary with a variety of solutions, at local level.
Not only is the scheme proposed bureaucratic; paradoxically, it has to become even more bureaucratic and inflexible before it can work at all. We should need to prescribe what happens if there is an appeal against the tribunal decisions, for example. We should need to prescribe how soon after a tribunal decision the case can be referred to the CAC. We should need to prescribe what happens if there is another tribunal case pending. And what happens if there is more than one union party to the collective agreement and they do not agree? As the amendment is drafted, the case may be referred to the CAC immediately after the tribunal decision (so long as the Secretary of State has been notified) with no period allowed for negotiation or conciliation or lodging an
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appeal. I have to say to the House that this scheme can only complicate and delay the removal of discriminatory terms from collective agreements.
The Government have assured my noble friend Lady Platt that we shall issue notes of guidance for employers and trade unions about the effects of the Bill on collective agreements. We have said that we shall urge negotiators to examine all agreements to which they are party and to eliminate any terms which give rise to unlawful discrimination, either directly or indirectly. The Equal Opportunities Commission will be fully consulted about this guidance, and I know my noble friend is anxious for us to alert bargaining parties to sources of outside help which they can seek on a voluntary basis.
I hope negotiators will start the review process even before this Bill comes into force. If they are not able to decide what action to take about an agreement, one or both of the parties can request advice or assistance from ACAS or, of course, the EOC. A discussion with either body could well overcome the problem. If not, and if both parties agreed, ACAS could appoint an arbitrator or even refer a possible dispute to the CAC. The EOC code of practice will be of considerable help to employers and trade unions in determining what kinds of practice may constitute unlawful discrimination.
I hope I have been able to explain why the Government regard this amendment as unnecessary and why we shall, if it is pressed, oppose it.
Baroness Seear: My Lords, I very much regret that the Minister does not feel able to accept this amendment. I have listened with great care to the arguments that he has put forward, but I am afraid that I find them totally unconvincing. If I may say so with respect, they are based on a view of what goes on in industry which is not quite realistic. The noble Lord referred to the idea that everybody will take a case to the industrial tribunal and that industrial tribunal results will be published and will be available. It is not every woman—it is very far from every woman—who, in these days of unemployment, is really prepared to take her employer to a tribunal. It is a difficult thing to do. And as for the idea that the law reports will always be read by all and sundry up and down the country, that seems to be an unrealistic assumption of a very extreme order.
Then the noble Lord says that because women are now getting in rather larger numbers on to the executives of unions, they need not fear collusion. I am not making any accusation against trade unions when I say that collusion between male employers and male trade unions has been a common experience; and I doubt whether anybody who is familiar with the industrial scene is going to deny that. Nor do I believe that there has been a sudden conversion as the result of certain legislation on the part of the Government which means that women are in fact going to get a better deal inside the trade union movement than they have in the past. If the noble Lord wishes, although I do not want to burden the House, I can give examples of the way in which that collusion in fact works. I am totally unconvinced that there is a complete commitment to equal opportunity on both sides of

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industry of the kind the noble Lord now seems to think is the case.
My Lords, I simply cannot understand why, with a proved and approved system through the CAC, able to deal with this matter, the noble Lord persists in refusing to do it and to rest instead on the use of industrial tribunals with all the consequences that the noble Lord, Lord Wedderburn, has spelt out in detail; and I hope very much that since the Government have totally rejected this amendment we shall be able to test the opinion of the House.
Lord Wedderburn of Charlton: My Lords, I found the noble Lord the Secretary of State's answer as disappointing as did the noble Baroness Lady Seear. I wish to make seven brief points about it. First, the European Court of Justice judgment did not, with great respect, regard the need to legislate on the equal treatment directive as merely presentational. On the contrary, if the Secretary of State looks at the passage in the judgment at page 215 of the Industrial Court Reports for 1984 he will find that the court put the terms of the directive rather differently from the directive itself, which of course that court is known sometimes to do. It said that there is a need to ensure that the directive is completely effective, and that requires that clauses in such agreements which are incompatible with the obligations imposed by the directives may be annulled, amended or eliminated by appropriate means. That can mean a number of different things.
I merely say to the Secretary of State that I do not think that he is well advised to believe that it is impossible to think that Clause 2 necessarily falls within that interpretation of the directive, so there is substance in the point. That was not our main point. I found the Secretary of State's reply astonishing in this respect: that of course these matters were put to him in December by more than one body, as I understand it, but certainly by the Trades Union Congress. Then it was put to him that there would be a need for either some procedure to the Central Arbitration Committee or possibly a procedure by way of class action, which is something we know little of in this country but which might well be considered. It is not our amendment. The Government went away to consider both of those, not ruling them out, not rejecting them, as he has now done, as impossible. Yet in Committee and here again with a more moderate amendment we find that they cannot have it.
The third point is that as the Government's case has been developed in the course of this Bill we have seen that there is an insistence upon the individual employee tribunal action as the only form of enforcement that they will admit. It is the only form that they will admit. Individualism can be a very practical and noble principle but it can also be a dogmatic fetish. It really begins to look as though the Government's adherence to the notion of individual employment enforcement procedures is the latter rather than the former.
Fourthly, as to the string of industrial tribunal cases, the noble Lord said, yes, there may well be the possibility of a string of industrial tribunal cases but that will be an incentive to renegotiate. It may be; we do not deny that. He says employers are not foolish
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enough to go on with other cases when one has been shown to be a matter of discrimination. He gave a very simple example of 38 hours and 40 hours. It would be nice if life was as simple as that. There are more complex considerations. We tried to develop these. There will be individual cases which are not necessarily within the previous individual case. In the 2,000 cases, there will be at least 400 or 500 that need to be tested. Many will be women employees who do not feel able in this labour market that the Government have partly created to go to the tribunal to enforce their rights. It is a paradox that in a labour market where the Government have created weakness in the individual employee they now insist that the only way for people to enforce their rights should be through individual action within the tribunals.
Fifthly, the noble Lord went over a large amount of ground which was, with great respect, difficult of relevance, such as the democratic rights of members within unions. He twitted us with the fact that our amendment was not wholly well drafted. There could be an appeal from the tribunal: true. There should be conciliation and negotiation periods after the judgment: true. We could deal with those matters in five minutes and I suspect the noble and learned Lord, Lord Denning, could do it on the back of an envelope in two minutes for the noble Lord the Minister if he really wanted to have the scheduled bits added in.
Sixthly, when the noble Lord says that we do not need a new system of enforcement, that really is rather rich. The Central Arbitration Committee is there. It has been there since 1965. Indeed, it has been there longer because it is the successor of the Industrial Court of 1919. It is an established part of our industrial relations and our industrial relations legal system and the Government are depriving it of jurisdiction by this very Bill. There is nothing about the new system of enforcement. It is the Government who are tearing up a very useful mechanism in our industrial life. It is the Government who, by refusing to accept an adaptation of those long-standing procedures, are creating cost for workers, employers and unions alike.
The seventh point is that the reply was so disappointing that we do indeed, as the noble Baroness, Lady Seear, suggested, intend to test the opinion of the House.
3.46 p.m.
On Question, Whether the said Amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 81; Not-Contents, 93.

DIVISION NO. 1

CONTENTS

Amherst, E.

Crawshaw of Aintree, L.

Ardwick, L.

David, B. [Teller.]

Attlee, E.

Davies of Penrhys, L.

Bernstein, L.

Dean of Beswick, L.

Bottomley, L.

Denning, L.

Brooks of Tremorfa, L.

Diamond, L.

Bruce of Donington, L.

Donaldson of Kingsbridge, L.

Burton of Coventry, B.

Elwyn-Jones, L.

Carmichael of Kelvingrove, L.

Ennals, L.

Cledwyn of Penrhos, L.

Ewart-Biggs, B.

431

Fisher of Rednal, B.

Oram, L.

Fitt, L.

Paget of Northampton, L.

Gallacher, L.

Phillips, B.

Galpern, L.

Platt of Writtle, B.

Graham of Edmonton, L.

Ponsonby of Shulbrede, L. [Teller.]

Hampton, L.

Harris of Greenwich, L.

Prys-Davies, L.

Hatch of Lusby, L.

Rathcreedan, L.

Heycock, L.

Rea, L.

Houghton of Sowerby, L.

Ritchie of Dundee, L.

Hughes, L.

Rochester, L.

Irving of Dartford, L.

Sainsbury, L.

Jeger, B.

Seear, B.

Jenkins of Putney, L.

Serota, B.

John-Mackie, L.

Silkin of Dulwich, L.

Kearton, L.

Stallard, L.

Kilbracken, L.

Stewart of Fulham, L.

Kilmarnock, L.

Strabolgi, L.

Leatherland, L.

Strauss, L.

Listowel, E.

Taylor of Blackburn, L.

Llewelyn-Davies of Hastoe, B.

Taylor of Mansfield, L.

Lloyd of Kilgerran, L.

Tordoff, L.

McCarthy, L.

Turner of Camden, B.

McNair, L.

Underhill, L.

Mayhew, L.

Wallace of Coslany, L.

Mishcon, L.

Walston, L.

Molloy, L.

Wedderburn of Charlton, L.

Morton of Shuna, L.

Wheatley, L.

Mulley, L.

White, B.

Murray of Epping Forest, L.

Wigoder, L.

Nicol, B.

Wilson of Rievaulx, L.

NOT-CONTENTS

Ampthill, L.

Long, V.

Belhaven and Stenton, L.

Lucas of Chilworth, L.

Beloff, L.

Macleod of Borve, B.

Belstead, L.

Mancroft, L.

Bessborough, E.

Marley, L.

Boyd-Carpenter, L.

Maude of Stratford-upon-Avon, L.

Brabazon of Tara, L.

Brougham and Vaux, L.

Merrivale, L.

Bruce-Gardyne, L.

Milverton, L.

Butterworth, L.

Molson, L.

Caithness, E.

Mountgarret, V.

Cameron of Lochbroom, L.

Mowbray and Stourton, L.

Campbell of Croy, L.

Norrie, L.

Cottesloe, L.

Nugent of Guildford, L.

Cox, B.

Onslow, E.

Cullen of Ashbourne, L.

Orkney, E.

Davidson, V.

Pender, L.

Denham, L. [Teller.]

Porritt, L.

Derwent, L.

Portland, D.

Drumalbyn, L.

Rankeillour, L.

Dudley, B.

Rodney, L.

Duncan-Sandys, L.

Saint Brides, L.

Effingham, E.

St. Davids, V.

Ellenborough, L.

Sandford, L.

Elliot of Harwood, B.

Seebohm, L.

Elliott of Morpeth, L.

Selkirk, E.

Elton, L.

Shannon, E.

Fraser of Kilmorack, L.

Shaughnessy, L.

Gainford, L.

Skelmersdale, L.

Gardner of Parkes, B.

Somers, L.

Glanusk, L.

Strathcarron, L.

Glenarthur, L.

Strathclyde, L.

Gray of Contin, L.

Strathspey, L.

Greenway, L.

Sudeley, L.

Gridley, L.

Swansea, L.

Hailsham of Saint Marylebone, L.

Swinton, E. [Teller.]

Terrington, L.

Harmar-Nicholls, L.

Trefgarne, L.

Home of the Hirsel, L.

Trenchard, V.

Hooper, B.

Trumpington, B.

Hylton-Foster, B.

Vaux of Harrowden, L.

Kaberry of Adel, L.

Vickers, B.

Kimball, L.

Vivian, L.

Kinloss, Ly.

Ward of Witley, V.

Kitchener, E.

Whitelaw, V.

Lauderdale, E.

Young, B.

Lindsey and Abingdon, E.

Young of Graffham, L.

Lloyd-George of Dwyfor, E.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 5 [Repeal of Baking Industry (Hours of Work) Act 1954]:
3.54 p.m.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 4:
Leave out Clause 5 and insert the following new clause:
("Amendment of Baking Industry (Hours of Work) Act 1954.
5.—(1) Section 11(2) of the Baking Industry (Hours of Work) Act 1954 shall cease to have effect.
(2) Part VI of the Factories Act 1961 shall not apply to any woman to whom the Baking Industry (Hours of Work) Act 1954 applies.").
The noble Baroness said: My Lords, similar amendments were moved by me and the noble Baroness, Lady Platt, in Committee. I withdrew my amendment in Committee because I thought that hers was rather better, but I think that neither of us was satisfied by the response of the noble Lord the Minister at that time and both indicated that the matter would be brought back on Report. That is what I am now doing.
As I understand it, the Government intend their clause, which is still in the Bill, to remove all restrictions on night work in the baking industry. They believe that there is an anomaly with regard to the baking industry, in that the restriction in the 1954 Act applies only to men and not to women. There are of course two options available. One is to do what the Government clearly intend and remove restrictions altogether, and the other is to apply the 1954 Act provisions to men as well as to women.
I favour the latter approach, and that is what my amendment seeks to do. I believe that the Government favour the first approach because they believe that the Act is outdated and that it is one of the burdens on business to which reference was made earlier by my noble friend Lord Wedderburn which the Government are apparently so anxious to remove. Clearly, the Act is seen as a restriction on the right of employers to do as they please. It is, however, a union view, and one which I believe has already been put to the Government and ignored, that if the 1954 Act is abolished there will be a number of very undesirable consequences affecting workers and employers.
First, it will open up the possibility of permanent night work. That could lead to a loss of jobs. The introduction of permanent night shifts, particularly in some areas such as dispatch, would negate the need for alternative shifts. One federation empoloyer has suggested that, resulting from such a measure, job losses in two major firms could amount to 2,000. Plainly, job losses on that scale would be resisted by the union. It is of course the union's function to protect its members' jobs and I should not have thought it a good idea at a time of substantial unemployment to encourage any measure that would result in job losses.
Secondly, such deregulation will lead to a free-for-all. Unions and employers could thus be caught up in a series of confrontations. The existence of the 1954 Act has in fact assisted industrial relations generally in this industry. It has provided a background against which acceptable agreements have been negotiated.
The provision will not improve conditions in the industry. There is the danger that it will harm business, reduce employment opportunities, worsen conditions for workers in an industry where hours of work are already longer than in most industries and generally lead to a worsening of industrial relations. That will not improve matters either for employers or employees and ultimately it will be worse for the consumer.
The more sensible and farsighted employers themselves know that, and that is why there has been no pressure from either side of the industry for a change in the 1954 Act. The measure has been introduced entirely by the Government as a part of their "lifting the burden" philosophy, and, because the Government wanted to utilise this opportunity, has brought in the Bill—a Bill that arises from quite different considerations—the EC requirements in regard to non-discrimination in collective agreements.
It is quite clear, and this also arose during discussion in Committee, that protection is still needed in the industry. There are cowboy operators in this industry as in others. Their activities are opposed not only by the unions but also by responsible employers in the industry. During the course of debate in Committee attention was drawn to operations such as those of cowboy operators in the Barnsley area, where they have been employing 14 year- olds and generally exploiting those who work for them. At present, there is some form of restriction in the 1954 Act. If it disappears, such outfits will not be restrained by any requirements whatsoever.
On the international front, within the EC there are countries—this was referred to in Committee—where there are restrictions on night working for both men and women. It is regarded as a health hazard, and with some justification. The International Confederation of Free Trade Unions recently made a survey of the operation of ILO Convention 98, which, as your Lordships well know, prohibits night working for women in industry. It concluded that the convention should not only be retained but that night working should be banned for both men and women and exemptions granted only in the case of necessity and under conditions which guarantee the health and safety of such workers and protect them against exploitation.
In Committee, your Lordships agreed to an amendment moved by my noble friend Lord Wedderburn which might make provisions of that kind through the concept of the equal protection order. It may, therefore, be argued that it is no longer necessary to proceed with this amendment because it has already been partly covered by the amendment of my noble friend Lord Wedderburn, which will be part of the Bill. I should like to hear from the Minister on that point. I should like to know what consideration has been given to it because I want to make absolutely certain that baking is covered. It is for that reason that I am putting the amendment before your Lordship's this afternoon.
As I said in the discussion in Committee, the equality argument can be satisfied by extending the protection of the 1954 Act to women as well as to men, which is what the Equal Opportunities Commission originally proposed. The Government
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should heed what has been said to them by those directly concerned in the industry and by a specialist body like the Equal Opportunities Commission. I therefore beg to move my amendment.
Lord Young of Graffham: My Lords, I am grateful to the noble Baroness, Lady Turner, and I agree with her when she says that it is the duty of unions to save jobs. Of course it is, and I hoped very much that the unions would in their wisdom have seen fit to support the Government's position in this matter, since it is the continuation of jobs within the industry with which we are concerned. Nor should we allow ourselves to be side-tracked by individual cases of employing 14 year-olds within the baking industry. That is clearly wrong under other legislation and is not covered by the matter which we are discussing this afternoon, which is fully in the spirit of the Sex Discrimination Bill and is concerned with the removal and elimination of employment practices based upon sex. Surely we should seek the elimination of both protections in this instance.
Clause 5 of this Bill repeals the Baking Industry (Hours of Work) Act 1954, which currently places restrictions on the night working only of men who work in bakeries. As my noble friend Lord Trefgarne emphasised when this clause and an amendment very like this one were considered in Committee, the Act came into being not so much to protect bakery workers' health and safety, but to find a remedy for the difficulties the industry had faced in reaching sensible and workable collective agreements on hours of work at that time.
Women were excluded from this Act when it was passed in 1954, as they were barred from night work by factories legislation which Clause 4 of this Bill will repeal. If this Act remains in its present form while the restrictions on women's hours go, men's employment in night baking will be controlled while women's employment will be entirely unregulated. The need to avoid this anomaly made this the moment to ask whether the 1954 Act had any continued usefulness. At the heart of the Act is Section 9, which has enabled my predecessors to grant exemptions where they were satisfied that a voluntary agreement exists which makes the application of the Act's restrictions on hours of work unnecessary. More than two-thirds of the industry's workers are now working hours set out in collective agreements which have been the basis of such exemptions. The amendment tabled by the noble Lord, Lord McCarthy, would keep the current Act in force and extend its provisions to women and to young people.
Instead of the repeal of statutory protection for men and the protection of existing male employees through their contracts, the amendment would give statutory protection for men and women. One undesirable, and perhaps unintended, result of the amendment is that young people would be covered by both the Baking Industry (Hours of Work) Act and the Factories Act. A side effect of the new clause would be to remove the contractual protection for men provided by Clause 7 of the Bill. Since this clause was inserted by your Lordships in Committee, the matter will now go to another place for consideration there. This goes also for Clause 3, which, in relation to the Baking Industry

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(Hours of Work) Act, sits unhappily with this amendment.
Turning now to the substance of the amendment, we were surprised during Committee to hear that repeal of the Act as proposed by the Government, instead of its extension, had no support. We consulted widely both employers' federations and trade unions in the baking industry before reaching our conclusions last year. The master bakers had last considered this matter in plenary session at their 1980 conference when it was decided to abandon their campaign for repeal—a very different thing from the opposition that has been suggested. The Federation of Bakers, whose members include many of the biggest plant bakers, told us in December that they remain firmly committed to repeal of the Act. The Cake and Biscuit Alliance welcome the proposal. We heard, too, from the Co-operative Union Limited's Parliamentary Committee that they had no objections to this repeal.
Extending the Act to women would clearly conflict with our policy of removing burdens on business to encourage the spirit of enterprise. And let us make no mistake—improving the climate for enterprise generally is essential if we wish to see the present rise in the number of jobs continue. We must also have good industrial relations if enterprise is to flourish. During the years before 1954, the two sides of this industry had failed to establish satisfactory collective bargaining machinery for setting hours and conditions of work and this had fuelled the demand for this Act.
But, the Act has now been in operation for more than 30 years and there has been ample opportunity during that time for the industry to put its house in order. We believe from the evidence available to us that this has, in fact, happened. The majority of the industry's workers are now covered by the terms of collective agreements for which exemptions have been agreed by my predecessors. We believe that today's circumstances in the baking industry, with its much greater element of plant baking for which collective bargaining machinery is now well established, make the current legislation largely redundant and ripe for repeal. Hours of work in other sectors of the economy are, after all, a matter for collective or individual bargaining, requiring no statutory underpinning.
It has been put to us that without the Act the health and safety of bakery workers would suffer, and that for this reason it should be extended to women rather than be repealed in its entirety. But there is no convincing evidence that the Act in today's circumstances achieves useful safeguards in this respect. It has been argued that repeal would result in more night work, longer hours and job losses. But there is no good reason to believe that employers will want to impose substantially different hours of work. On the contrary, night work is costly and is kept to the minimum consistent with customer needs. For all these reasons, I urge that this amendment be withdrawn.
Baroness Turner of Camden: My Lords, I am very disappointed to hear what the noble Lord has had to say this afternoon. I had hoped that in the time that has elapsed since we had our discussion in Committee the Government would perhaps have rethought their position so far as repeal of the 1954 legislation is
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concerned. I have to say that, categorically, the unions are against the repeal of this legislation. It is true that they were consulted, and my information is that they made their views known to the Government at the time. That is still their position. They are against the repeal. They believe that it will not help the job situation. On the contrary, they think that the absence of the background legislation, against which they have been negotiating all these years, will be extremely bad for industrial relations in this industry and will lead to a worsening of relations, which cannot possibly help the employers, the employees or ultimately the consumers, in so far as the baking industry is concerned.
It is not true to say, I think, that this is the only industry where there are special provisions. There are many industries where there are special provisions governing various kinds of working conditions, and the baking industry is no exception in that regard. But there is a special history in baking to which successive committees have had regard and the 1954 Act was introduced only after several committees had sat and made recommendations. The Equal Opportunities Commisssion has considered the matter relatively recently and, as a result of its consideration, recommended not that protection for men should be entirely repealed but that the protection should be extended to women. That would answer the equality argument. In view of what the Minister said this afternoon, I intend to press this amendment to a Division.
4.8 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 88; Not-Contents, 91.

DIVISION NO. 2

CONTENTS

Amherst, E.

Harris of Greenwich, L.

Ardwick, L.

Hatch of Lusby, L.

Attlee, E.

Heycock, L.

Banks, L.

Houghton of Sowerby, L.

Bernstein, L.

Hughes, L.

Bottomley, L.

Irving of Dartford, L.

Brooks of Tremorfa, L.

Jeger, B.

Bruce of Donington, L.

Jenkins of Putney, L.

Burton of Coventry, B.

John-Mackie, L.

Carmichael of Kelvingrove, L.

Kilmarnock, L.

Cledwyn of Penrhos, L.

Leatherland, L.

Crawshaw of Aintree, L.

Listowel, E.

David, B. [Teller.]

Llewelyn-Davies of Hastoe, B.

Davies of Penrhys, L.

Lloyd of Kilgerran, L.

Dean of Beswick, L.

Longford, E.

Denington, B.

McCarthy, L.

Diamond, L.

McNair, L.

Donaldson of Kingsbridge, L.

Mayhew, L.

Elwyn-Jones, L.

Mishcon, L.

Ewart-Biggs, B.

Molloy, L.

Falkender, B.

Morton of Shuna, L.

Falkland, V.

Mulley, L.

Fisher of Rednal, B.

Murray of Epping Forest, L.

Fitt, L.

Nicol, B.

Foot, L.

Oram, L.

Gallacher, L.

Phillips, B.

Galpern, L.

Pitt of Hampstead, L.

Graham of Edmonton, L.

Platt of Writtle, B.

Grey, E.

Ponsonby of Shulbrede, L. [Teller.]

Hampton, L.

Hanworth, V.

Prys-Davies, L.

437

Ritchie of Dundee, L.

Tordoff, L.

Rochester, L.

Turner of Camden, B.

Sainsbury, L.

Underhill, L.

Seear, B.

Wallace of Coslany, L.

Serota, B.

Walston, L.

Shackleton, L.

Wedderburn of Charlton, L.

Silkin of Dulwich, L.

Wheatley, L.

Stallard, L.

White, B.

Stewart of Fulham, L.

Wigoder, L.

Stoddart of Swindon, L.

Williams of Elvel, L.

Strabolgi, L.

Wilson of Langside, L.

Strauss, L.

Wilson of Rievaulx, L.

Taylor of Blackburn, L.

Ypres, E.

Taylor of Mansfield, L.

NOT-CONTENTS

Airey of Abingdon, B.

Lloyd-George of Dwyfor, E.

Ampthill, L.

Long, V.

Auckland, L.

Lucas of Chilworth, L.

Belhaven and Stenton, L.

Mancroft, L.

Beloff, L.

Marley, L.

Belstead, L.

Maude of Stratford-upon-Avon, L.

Bessborough, E.

Boyd-Carpenter, L.

Merrivale, L.

Brabazon of Tara, L.

Milverton, L.

Brougham and Vaux, L.

Mountevans, L.

Butterworth, L.

Mountgarret, V.

Caithness, E.

Mowbray and Stourton, L.

Cameron of Lochbroom, L.

Norrie, L.

Campbell of Croy, L.

Nugent of Guildford, L.

Cottesloe, L.

Onslow, E.

Cox, B.

Orkney, E.

Cullen of Ashbourne, L.

Orr-Ewing, L.

Davidson, V.

Pender, L.

Denham, L. [Teller.]

Plummer of St Marylebone, L.

Denning, L.

Derwent, L.

Porritt, L.

Drumalbyn, L.

Portland, D.

Effingham, E.

Rankeillour, L.

Ellenborough, L.

Rodney, L.

Elliot of Harwood, B.

Sandford, L.

Elliott of Morpeth, L.

Seebohm, L.

Elton, L.

Selkirk, E.

Fraser of Kilmorack, L.

Shannon, E.

Gainford, L.

Skelmersdale, L.

Glanusk, L.

Somers, L.

Glenarthur, L.

Strathcarron, L.

Gray of Contin, L.

Strathspey, L.

Greenway, L.

Sudeley, L.

Gridley, L.

Swansea, L.

Hailsham of Saint Marylebone, L.

Swinton, E. [Teller.]

Teviot, L.

Harmar-Nicholls, L.

Teynham, L.

Home of the Hirsel, L.

Trefgarne, L.

Hooper, B.

Trenchard, V.

Hylton-Foster, B.

Trumpington, B.

Kaberry of Adel, L.

Vaux of Harrowden, L.

Kimball, L.

Vickers, B.

Kinloss, Ly.

Vivian, L.

Kitchener, E.

Ward of Witley, V.

Lane-Fox, B.

Whitelaw, V.

Lauderdale, E.

Young, B.

Lindsey and Abingdon, E.

Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.16 p.m.
Baroness Platt of Writtle Baroness Platt of Writtle moved Amendment No. 5:
After Clause 7, insert the following new clause:
("Change of hours of work.
.—(1) If an employer proposes to make a substantial change in the hours of work of any of his employees he shall be under a duty to consider the health, safety, welfare and interests of those employees (particularly employees with domestic and family responsibilities) and to make appropriate provision for their health, safety and welfare having regard to the nature and size of his business.
(2) The Health and Safety Commission after consultation with the Equal Opportunities Commission may make a code of practice containing practical guidance on the duty created by subsection (1) above and the provisions of section 16 of the Health and Safety at Work etc. Act 1974 shall apply to the making of a code of practice under this subsection as they apply to the making of a code under that section of that Act.
(3) In any proceedings before an industrial tribunal the extent to which an employer has carried out his duty under this section shall be relevant in determining the reasonableness of his actions.")
The noble Baroness said: My Lords, noble Lords will remember that I raised the question of a code of practice both at Second Reading and at Committee stage in the form of an amendment. The amendment suggested that ACAS might be the agent for formulating a code of practice. My predecessor as chairman of the Equal Opportunities Commission, the noble Baroness, Lady Lockwood, favoured the Health and Safety Commission as the nominating body. The noble Baroness, Lady Seear, while supporting the idea of a code of practice, questioned whether one could have a code of practice that did not interpret legislation.
This amendment relates the proposed code of practice to a duty on employers when changing hours of work substantially to consider the health, safety, welfare and interests of those employees, particularly those with domestic and family responsibilities, and to make appropriate provision for them, men as well as women, in a proper spirit of equality. The wording comes from Section 97(7) of the Factories Act 1961, now to be repealed, which states:
"In granting any application under this section the Minister shall impose such conditions as he considers necessary for the purpose of safeguarding the welfare and interests of the persons employed on the system of shifts, and in considering any such conditions shall, in particular, consider the expediency of requiring the provision of suitable accommodation for clothing and of facilities for meals and of transport facilities for workers residing at a distance and, in the case of young persons, of reasonable facilities for attending courses of further education".
As my noble friend Lord Trefgarne pointed out at Committee stage, the Health and Safety at Work Act 1974 allows the Health and Safety Commission to prepare codes of practice. So we have dropped the idea of ACAS in the commission's favour and related it to their normal machinery in Section 16 of the Act. At Second Reading, my noble friend Lord Young quoted the Equal Opportunities Commission document of 1979—this rather thick and heavy document—Health and Safety Legislation: Should we Distinguish between Men and Women? and stated that the commission's recommendations in part prompted this anti-discriminatory measure in the present Bill. As my noble friend stated, the commission at that time, with a minority dissenting, decided there was no longer justification for maintaining legal provisions in hours of work which require men and women to be treated differently and recommended that the legislation be removed or, where health, safety and welfare demanded, replaced so that it applies equally to men and women. It particularly recommended then that minimum standards of welfare should be specified and that a code of practice should be agreed that could be used at tribunals.
The amendment now before the House therefore closely follows the commission's original recommendations of 1979, so that with the improved job

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opportunities allowed to women by the removal of restrictions they should not find themselves, due to their domestic responsibilities, unable to take advantage of those opportunities.
Our streets today are not safe at night. Muggings take place, unfortunately, of both men and women. The matters of meal breaks and rest periods and of domestic responsibilities are important to both men and women. In this clause, we have attempted to set the right balance between imposing a duty that is so restrictive as to make it difficult for employers to change hours of work and one that is so vague as to have no effect at all. The proposed duty only applies when an employer proposes to change hours of work substantially. We are not suggesting interference with existing arrangements otherwise. We expressly state that the nature and size of the business are to be taken into account so as not to put excessive burdens on small businesses.
There is no direct enforcement suggested and no need for the development of a new bureaucracy. However, like the Equal Opportunities Commission's own code of practice, the proposed code would be admissible in evidence if a complaint of dismissal or of constructive dismissal as a result of changes in hours of work were brought before an industrial tribunal, so that it could decide if an employer was acting reasonably in that respect when coming to its decision.
A few good employers lead the field, I am glad to say, in providing such a provision on a voluntary basis, so one might perhaps say that such employers do not need a code of practice. However, there are always the cowboys in any situation and they need the possibility or actuality of an industrial tribunal finding against them to make them conform to reasonable standards for vulnerable employees. The middle group will vary between the two extremes. With the removal of restrictions, many will welcome an official standard or framework of guidance to help decide how to set up conditions of work that are reasonable in the changed circumstances.
I know that my noble friend is not on the side of the cowboys. I hope very much that he will accept the idea of this modified clause, so as to ensure good conditions of work for both men and women at a time of change. In the past, exemptions from the Act have been negotiated against the background of the Act's existence and under the eye of the factories inspectorate, which has ensured some degree of control.
In this House, considerable sympathy was expressed recently in favour of those employees affected by the proposed changes in legislation due to the Shops Bill, which led to an amendment in their favour. I hope that this amendment also will obtain the support of my noble friend the Minister and of your Lordships' House today, in order to give protection to members of the workforce who are in a vulnerable position at a time of substantial change. I beg to move.
Lord McCarthy: My Lords, we wish to support this amendment. As we understand it, and as the noble Baroness has said, the amendment is an attempt to return to the code of practice that very carefully and clearly seeks to take into account the objections that
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were made to this form of amendment when it was put down by the noble Baroness at the Committee stage.
I should like to say a few words about two aspects of this matter. First, what would be the position if this amendment were passed? Secondly, so far as we have heard from the Government on their own evidence—and we shall of course hear from the Secretary of State later—what is the case against a modest amendment of this kind? On the first point, I understand the noble Baroness to be saying with this amendment that employees would have a legal duty to consider the health, safety, welfare and interests of their employees—particularly in respect of their domestic and family responsibilities—when introducing substantial changes in hours of work.
If, for example, an employer employed a significant number of single parents, or employees who had relatives suffering from long-term sickness, or employees with a considerable number of young children whom they had to look after, or if he employed a large number of married women in part-time work, such an employer would be under a legal duty to consider the consequences of a significant and substantial change in hours of work from such employees' point of view.
The code of practice would help such employers in carrying out that responsibility, and it would seek to influence the way in which they sought to carry it out. It would give them examples of where it was reasonable and of where it was unreasonable to introduce certain patterns of change in hours of work. It would suggest what kind of alternatives might be offered to such employees when significant changes were made. The code of practice would suggest also what kind of transport arrangements, creche facilities, and so on, would be reasonable in the circumstances when making substantive changes to hours of work. The point we would make about all that is that we do not see how the Government can resist the notion that such a code of practice would, in this context, be useful. It would provide a set of guidelines and provisions that would advise and assist good employers in making substantial changes to hours of work.
The other aspect of the proposal is, as the noble Baroness has said, that there is no prescribed set of legal liabilities or levels of compensation stipulated under the amendment for failure to observe any of those duties. They would simply be taken into account before an industrial tribunal when calculating the test of reasonability. That is what these very modest proposals are intended to do. What possible arguments can the Government adduce against them?
What arguments did the Government adduce last time? The noble Lord, Lord Trefgarne, said on 11th March, at col. 614 of the Official Report, that the Government were against Amendment No. 29, by the noble Baroness, and he said why. The first point to make is that the noble Lord did not say much. He made a speech of about two minutes in length and of about 450 words, in which he stated that the Government were against this outdated and unnecessary measure. He reiterated all the phrases that the Secretary of State had used on Second Reading: outmoded, outdated, burdensome, out of place. In the case of the Secretary of State on Second Reading, he

441
made mention five times of stopping sensible arrangements and of such an amendment being unnecessary.
However, in his two-minute speech of 450 words the noble Lord—as might be expected—did not have time to tell the Committee precisely why it was all outmoded, outdated, burdensome and unnecessary. We therefore have to ask whether the Government have anywhere provided evidence that such an amendment is unnecessary and indeed burdensome. The only evidence that the Government have supplied—and the Secretary of State is fond of quoting the title of that evidence if not the details of the evidence—is the Government's publication, Burdens on Business. The fact is that when one reads that remarkable document, one finds that it must be quite the most deplorably superficial survey. It is the most imperfect sample of any survey known to me. It uses some 200 quota samples and another imperfect sample of 85. A sample size of at least five times as much would be required before any reasonable conclusions could be drawn.
If one studies Burdens on Business, the remarkable thing is that it does not mention changes in hours of work, and regulations and restrictions on hours of work, at all. In fact, it says that legal regulations on business as a burden are only the third most important burden on business. A far more important burden on business is the activity of government in respect of the level of unemployment, the lack of capital investment or such things as VAT.
4.30 p.m.
In so far as anybody thinks about employment protection this is confined to a minority of this very small sample—some 29.5 per cent.—and only 4 per cent. of this small sample who considered employment protection to be some kind of burden on business mentioned it without a prompt. In other words, 96 per cent. never even thought of it until the government and the people carrying out the survey suggested it. Moreover, if one looks at the answers to the question it is difficult to believe that that 4 per cent. were not referring to unfair dismissal rather than to restrictions on hours. Therefore, there is absolutely no evidence whatever, except constant assertions, that a modest, small amendment of this kind simply proposing that there should be a code of practice where all these things are swept away would be regarded as a burden on business.
However, we must be fair. The fact is that the only decent argument against the amendment was not that put forward by the Minister during the Committee stage but the doubts expressed by the noble Baroness, Lady Seear, who said on 11th March, reported at col. 613 of Hansard:
"As I understand it, codes of practice are related to legislation. They are interpretative of legislation. As we know, they do not have the force of law but they are interpretative of legislation. If the amendments that have been passed this evening are accepted and remain in the legislation, then the code will of course be interpretative of the law including those amendments. But",
the noble Baroness added,
"since the Government are set to remove the fact of the legislation, I fail to see to what legislation the code of practice will relate".
I consider that to be a reasonable point to make about the code of practice in the Bill at this time.
However, I make three comments to the noble Baroness, and I think there are at least three answers which can be made. The first point is, as the noble Lord, Lord Trefgarne, and the noble Baroness, Lady Platt, said, we do have voluntary codes of practice. The EOC publishes voluntary codes of practice. The Department of Employment publishes, I see in the current edition of the Department of Employment Gazette, no less than, in effect, 16 guides to various aspects of the present employment legislation. They are all, in a way, voluntary codes of practice. Therefore, even if this code was imperfectly related to particular substantive penalties and offences in the Bill there is no reason why we should not give advice in this field.
Secondly, as the noble Baroness, Lady Platt, said, it is reasonable to suggest that this code of practice, in the way suggested in the amendment, would be of use in cases of contructive dismissal. It may well be of assistance in determining reasonableness from the point of view of industrial tribunals in cases of constructive dismissal. Thirdly, we have amended the Bill. We have done so in two ways. We passed Amendment No. 9, which gives the Secretary of State the right to publish equal protection orders and a code of practice might be required for that purpose. Even more directly, we passed Amendment No. 10, and other subsequent amendments, which require a right of unfair dismissal and compensation for unfair dismissal for established employees after the passage of this Bill. Both those would give rise to liabilities and would provide a role for a code of practice.
Therefore, it seems to me that there is no substantive case advanced by the Government so far for opposing this amendment. The Secretary of State said earlier in this debate that he hoped we would be marching forward together. We like to march forward, and if people march with us that is jolly good. Some progress has been made, and provided it is sustained in another place—but I note the Secretary of State is rather hesitant to enter into that this afternoon—then we will have marched forward. However, on Second Reading the Secretary of State said that the Government saw this Bill as a way of achieving, as I understood him, four objectives. The question is whether those four objectives can be combined. One of the ways in which I suggest they could be combined is for the Government to accept this amendment.
The first objective was the removal of discrimination; the second was the promotion of opportunity, the third was the removal of restrictions on industry, and the fourth was the stimulation of competition in the labour market. As I said, the question is whether those four objectives can be combined. They can be achieved only if it is done very carefully and very precisely. This amendment is one of the ways in which we believe they can be combined. If the Government say that they cannot accept the amendment I suggest to the House that what they are really saying is that their primary interest is with the third and fourth of those objectives—the removal of restrictions on industry and the stimulation of competition—even at the cost of the promotion of equal opportunities.
Baroness Seear: My Lords, as the noble Lord, Lord McCarthy, has quoted me from a previous stage of the

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Bill I should like to say that I accept the value of a voluntary code. The point I raised was, in fact, a technical point on what would be the standard of the code, having regard to the changes which would be made in the legislative pattern.
I am not, of course, privy to what the noble Lord the Minister is to say in reply, but I will make a guess and say that he will tell us that these matters are best dealt with through collective bargaining, that there is no need to have a code and that it can be left to negotiators to fix the conditions under which people work. He will no doubt also tell us that sensible, responsible employers will see to it that the conditions of work are of an order which is satisfactory from the point of view of the employee as well as the employer.
I accept that collective bargaining can do a very great deal in this field. I accept that a considerable number of employers will have the kind of conditions which are acceptable. However, legislation of this kind, not only now but throughout time, has been introduced not for the majority of responsible employers and not for the majority of industries in which there is well-established, well-respected and well-monitored collective agreements, but for the proportion of employers—no doubt a very small proportion—who go out on a wing and behave in a way which is discreditable to the industry and which is repudiated by the responsible employers. But they remain. There are "cowboys" in every industry. Legislation has been introduced not just in this respect, where we are asking for a code of practice, but in many other fields, to deal with those people who do not behave properly and where there are no properly monitored trade union agreements. That is why we are asking for it.
It will be unnecessary for those employers who are already applying this kind of practice but it is necessary for those employers who do not and who, whenever they have the chance, try to get away with it, and who will continue to do so. The number of such people who try to get away with it will probably increase if there is no legislation of any kind to force them to comply. In many cases there are a large number of employers who have employees who are not in trade unions and where the organisations are too small to make effective trade union organisation a practical proposition. It is in those cases that a code of practice is particularly desirable. Therefore, I very much hope that the Government will accept the amendment.
Lord Somers: My Lords, I support this amendment and I congratulate the noble Baroness on the way she has worded it. It covers three paragraphs without once mentioning that forbidden word "women", although we all know perfectly well what the amendment means. I should also like to congratulate the noble Baroness on having inspired the noble Lord, Lord McCarthy, actually to mention the name of a Conservative Front Bench Peer in support of his argument. That is surely an event that should go down in the Guinness Book of Records. I congratulate the noble Baroness, therefore, on all counts.
Lord Denning: My Lords, may I also support what is an apparently minor amendment but nevertheless
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one of some importance? It is to deal with what has been called the cowboy employers. Almost every employer will easily fulfil the requirement mentioned in subsection (1)—namely, that when making a change of hours,
"he shall be under a duty to consider the health, safety, welfare and interests",
of his employees. Every ordinary employer will do so. There is no difficulty at all about that. It is only the cowboys who will ride roughshod over the health and welfare of employees. But no legal obligation arises and no offence is created if he does not carry out that duty. So what is to happen? I refer to the next subsection.
Codes of practice are a modern innovation. They have begun to appear in our legislative machinery within the last 20 years. They are not binding in law but serve as advice or guidance to people in carrying out their everyday affairs. In that way, they give a great deal of help, without being legally binding, to those who want to know or should know how to behave.
A code of practice I should therefore have thought was the appropriate machinery in relation to the matter under discussion. The only means of enforcement of this duty and consideration is its relevance in determining whether in some future proceedings the employer has been reasonable. All those provisions, it seems to me, are very sensible. It is difficult to see what legitimate objection could be raised against the amendment. I support it.
Lord Seebohm: My Lords, I shall be brief, your Lordships will be glad to hear. I have been impressed by the arguments of the noble Baroness, Lady Platt. There is, however, an additional point that is well worth making. In a debate not long ago, I pointed out that there are over 4.3 million workers who work part time. They work part time voluntarily because of strong interests elsewhere, mainly for family reasons. Someone in the family may be disabled, or perhaps there is an elderly relative. To these part time workers, it is vitally important that their hours of work should not change without serious consideration. These 4.3 million people, who are not unionised, must be given particular attention. Few of them have anyone officially supporting them. I support the amendment strongly.
Baroness Elliot of Harwood: My Lords, I also should like to speak in support of my noble friend Lady Platt, who moved the amendment with great skill and wisdom. One could not possibly disagree with the words in the first part of the amendment, which simply state that the employer shall be under a duty to consider the health, safety, welfare and interests of the employees. That is exactly what we want. We do not want discrimination between men and women. We want all legislation and all care regarding matters of this kind to apply to both men and women. I believe that the amendment would apply to both men and women and that this would be a great advantage. I hope that the Government will recognise that this is not a political issue but purely a matter of common sense. I support the amendment strongly.
Baroness Gardner of Parkes: My Lords, I should like to support the amendment of my noble friend Lady Platt. It is sensible that in the first subsection of the amendment she has included the words,
"having regard to the nature and size of his business".
The employee is actively concerned and interested in the future of the employer. If the employer goes out of business, the job goes with him. So that is highly relevant. I sit on an industrial tribunal on a regular basis. It is amazing to find how many employers who go there to defend cases have not given any thought or displayed any awareness of industrial legislation until they arrive for the hearing. A code of practice is very helpful in these cases.
I am convinced that a code of practice would be of great value to a person who would like to know more about how they should be going about these matters. Subsection (3) of the amendment is also of great importance in setting out the relevance that the tribunal would attach to the implementation of such a code of practice. I support the amendment strongly.
4.45 p.m.
Baroness Lockwood: My Lords, I should like to support the noble Baroness's amendment. In doing so, I must first apologise to the noble Baroness and to the House for my absence when she moved the amendment. The noble Baroness will, however, forgive me, I believe, when I say that I was fulfilling a long-standing engagement dealing with equal opportunities. I am sure that I would have agreed with the remarks of the noble Baroness in support of an amendment the terms of which I support completely. It is important to have an amendment such as this embodied in the Bill, not only for the reasons given by the noble Baroness, Lady Seear—namely, that there are a considerable number of employees who are outside the scope of organised trade unions and who are not always party to collective agreements—but also because of the cowboy firms described by the noble and learned Lord, Lord Denning.
There are many women now in employment who would feel more confident about continuing their employment and also many women who feel much more confident about entering employment if they feel that their interests would be covered by a code of practice similar to that envisaged in the amendment. It is suggested that the code should be under the auspices of the Health and Safety Commission. But such a code would complement that already drawn up by the Equal Opportunities Commission and that has received the approval of Parliament for ensuring equal opportunities for men and women in employment. I hope therefore that the House will give the amendment its full support.
Lord Young of Graffham: My Lords, I must confess to the noble Baroness, Lady Seear, that I have heard so much about cowboys this afternoon that I am beginning to feel a little like the Lone Ranger. But cowboys are a state of mind. Whatever the law may or may not be, we have to ensure that we do not have cowboys in our midst by means other than simply legislating them out. I would assure the noble and learned Lord, Lord Denning, and my noble friend Lady Elliot that Section 16 of the Health and Safety at
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Work Act 1974 already allows the Health and Safety Commission to prepare and issue approved codes of practice to assist employers in fulfilling their general duties to ensure the health, safety and welfare at work of employees. This amendment seeks something rather different. I would say to the noble Lord, Lord McCarthy, that it is a curious view to take of the best way to promote employment and to help the growth of the economy to propose that employers should amend their working practices to suit the domestic arrangements of their employees at a particular time.
All your Lordships should be concerned to see the growth of employment. I assure the noble Lord, Lord Seebohm, that part-time employment is of increasing importance. We are looking towards a world in which part-time employment not only grows but is also increasingly attractive. We must ensure, wherever possible, the growth of part-time employment rather than place restrictions upon it. I do not pay too much attention to the comments of the noble Lord, Lord McCarthy, about burdens of business. I shall not rest until we see unnecessary restrictions removed from the growth of employment.
I am not talking about removal of protection, but the removal of unnecessary restrictions. Therefore we have to ask ourselves this afternoon what we are proposing. The main effect of this amendment is to impose upon all employers a new statutory duty. I stress the word "all" because it is important to understand that we are not talking merely of women in manufacturing or men in the baking industry. This amendment would apply to all employers great and small across the economy.
As my noble friend Lady Platt has explained, the effect of this amendment would be that an employer who proposed to make a "substantial change" in working hours would have to consider the health, safety, welfare and interests of his employees and to make appropriate arrangements bearing in mind the nature and size of his business.
I do not think that we can take refuge in the thought that the size of the business will in the end be taken into account. We have seen the European court decide that the size of the business is an irrelevancy and that these restrictions apply right the way across the board. I can assure my noble friend Lady Gardner that we should be concerned to see and promote the growth of small firms. It would be difficult—in fact we see no way—to ensure that there were special rules for very small firms alone. In particular—this is where the new duty arises—the employer will have to consider the employees' domestic and family responsibilities.
Section 97 of the Factories Act 1961—which we have had quoted this afternoon—used wording, as my noble friend Lady Platt has mentioned, which is similar to that of the amendment, but in some respects only. It provides that when granting an authorisation under that section to work shifts which would otherwise be prohibited the Minister may impose such conditions as he thinks necessary to safeguard "the welfare and interests" of the employees on the shift system. The section then goes on to describe the interests envisaged, including meal facilities and accommodation for clothing. I should make it absolutely plain that my department has always encouraged employers to consider the welfare and

447
interests of their employees in the furtherance of good industrial relations. We go much further than encouragement when considering people's health and safety at work. The Health and Safety at Work Act 1974 puts all employers under a general duty to ensure the health and safety and welfare at work of all employees. I have already referred to the possibility of issuing codes of practice on that aspect. To this extent therefore this amendment duplicates an obligation which employers already have.
However, this amendment goes beyond that. It imposes as a new statutory requirement on an employer the duty to consider the interests of employees, and, in particular, the interests of his or her employees with domestic and family responsibilities when changes in working hours are contemplated. It would be the employer's duty to consider the health, safety and welfare of his employees not only at work but elsewhere.
We believe that employers will in the main already be doing this so far as it is reasonably practicable for them to do. An employer not sensitive to his work people's interests, either collectively or to the level of the individual, is not well placed to persuade them to give of their best. An employer not already adopting such an approach may need to pay more to obtain willing recruits.
There is no evidence to suggest that there is any need to place an inflexible statutory obligation on employers requiring an approach which, to all intents and purposes, most adopt already. To do so would be to impose yet another burden on employers which, even if the duty were clear cut, would put further strain on the willingness of enterprise to expand and to create jobs. Everything I do is concerned solely with creating jobs in a spirit of safety.
However, the duty is not clear cut. Even with the code of practice that is proposed there would be difficulty in interpretation. For instance, what is meant by "substantial change in hours"? For some workers dependent upon public transport, a change of only minutes might be the difference between catching or missing the only convenient bus. Such small changes can currently be introduced almost unhindered even for the employees directly affected by the legislation we propose to repeal. What precisely comprises the "interests of those employees"?
Baroness Seear: My Lords, I hope that the noble Lord will forgive me for interrupting him. I must draw his attention to the fact that this simply says "consider". It does not say that they have to negotiate or agree. The noble Lord can do that in five seconds in the bathroom in the morning.
Lord Young of Graffham: My Lords, may I assure the noble Baroness that what starts off as "considering" shortly becomes an inflexible duty. That is the way in which these matters get interpreted and develop.
Lord McCarthy: My Lords, does that refer to taking a bath?
Lord Young of Graffham: My Lords, I assure the noble Lord that that does not refer to the duty to take a bath. How would employers take account of conflicting interests between individual or groups of employees? Not all employees will have the same interests.
We believe that the new employer's duties sought by this amendment would be a gift to the legal profession providing them with endless opportunities for equally endless interpretations. How is the employer to cope with this?
Finally, noble Lords will recognise that the amendment seeks to widen the scope of the Health and Safety Commission's terms of reference. They would have a duty to consider matters outside the workplace. For the very first time they would be called upon to advise on family and domestic responsibilities. These issues bear no relation to the Health and Safety Commission's current expertise and skills, involved as it is with questions of health, safety and welfare at work.
The Government could not agree that it would be sensible to ask the Commission to equip itself to issue guidance on these largely social aspects of change in the workplace. In conclusion, we believe that it would be ill advised to impose this statutory burden on employers and to widen the Health and Safety commission's terms of reference in the ways proposed. For those reasons, I urge rejection of this amendment.
Baroness Platt of Writtle: My Lords, I am very disappointed that my noble friend the Secretary of State does not find it possible to accept what we believe is a very reasonable amendment. At a time when there is a substantial change, both in legislation and—if this proposal is agreed—in hours of work, we feel that protection is needed.
I quoted from the Factories Act. We used the words that are in the Factories Act 1961. It talks about "safeguarding the welfare and interests of the persons employed". It goes outside the place of work in talking about transport facilities for workers residing at a distance, and, in the case of young persons, of reasonable facilities for attending courses for further education. This is something that is provided at the moment and would go if nothing is put forward to provide other protection.
In terms of a code of practice, in the case of our own code of practice with regard to the Equal Opportunities Commission, this went through Parliament with parliamentary support. There is reference to the period of 40 days which it has to lie before Parliament. There are a great many restrictions and protections on a code of practice. One is therefore not talking about something that is considered very lightly. It is a reasonable document. It is a voluntary document.
I have spoken to many employers over our own code of practice. As my noble friend Lady Gardner said just now, they welcomed that guidance. Faced with difficult and complex legislation, they find it a help to have a code of practice which provides guidance.
If I may refer to the "cowboys" as several noble Lords and Baronesses have said today, one does not

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come to an industrial tribunal lightly. It is an ordeal for the applicant just as it will be for the respondent. However, at that time account will be taken of the reasonableness of the irresponsible employer. I am therefore grateful for the support I have had from the House today. I am disappointed in my noble friend. I still hope that at Third Reading he may have a last minute conversion. In the meantime I must press the amendment.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 107; Not-Contents, 88.

DIVISION NO. 3

CONTENTS

Allen of Abbeydale, L.

Lawrence, L.

Amherst, E.

Leatherland, L.

Ardwick, L.

Llewelyn-Davies of Hastoe, B.

Auckland, L.

Lloyd of Kilgerran, L.

Banks, L.

Lockwood, B.

Barnett, L.

Longford, E.

Bernstein, L.

Lovell-Davis, L.

Bottomley, L.

McCarthy, L.

Brooks of Tremorfa, L.

McIntosh of Haringey, L.

Bruce of Donington, L.

McNair, L.

Burton of Coventry, B.

Mishcon, L.

Caradon, L.

Molloy, L.

Carmichael of Kelvingrove, L.

Morton of Shuna, L.

Cledwyn of Penrhos, L.

Mountevans, L.

Crawshaw of Aintree, L.

Mulley, L.

David, B.

Murray of Epping Forest, L.

Davies of Penrhys, L.

Nicol, B.

Dean of Beswick, L.

Oram, L.

Denington, B.

Parry, L.

Denning, L.

Phillips, B.

Diamond, L.

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L.

Platt of Writtle, B. [Teller.]

Elliot of Harwood, B.

Ponsonby of Shulbrede, L.

Elwyn-Jones, L.

Prys-Davies, L.

Ennals, L.

Ritchie of Dundee, L.

Ewart-Biggs, B.

Rochester, L.

Faithfull, B.

Ross of Marnock, L.

Falkender, B.

Sainsbury, L.

Foot, L.

Seear, B.

Gallacher, L.

Seebohm, L.

Galpern, L.

Serota, B.

Gardner of Parkes, B. [Teller.]

Shackleton, L.

Silkin of Dulwich, L.

Graham of Edmonton, L.

Somers, L.

Greenway, L.

Stallard, L.

Gregson, L.

Stewart of Fulham, L.

Grey, E.

Stoddart of Swindon, L.

Grimond, L.

Strabolgi, L.

Hampton, L.

Taylor of Blackburn, L.

Hanworth, V.

Taylor of Mansfield, L.

Harris of Greenwich, L.

Tordoff, L.

Hatch of Lusby, L.

Turner of Camden, B.

Hayter, L.

Underhill, L.

Henderson of Brompton, L.

Vickers, B.

Heycock, L.

Wallace of Coslany, L.

Houghton of Sowerby, L.

Walston, L.

Hughes, L.

Wedderburn of Charlton, L.

Jeger, B.

Whaddon, L.

Jenkins of Putney, L.

Wheatley, L.

John-Mackie, L.

White, B.

Kennett, L.

Wigoder, L.

Kilbracken, L.

Williams of Elvel, L.

Kilmarnock, L.

Wilson of Langside, L.

Kinloss, Ly.

Wilson of Rievaulx, L.

NOT-CONTENTS

Ailesbury, M.

Ampthill, L.

Airey of Abingdon, B.

Belhaven and Stenton, L.

Alexander of Tunis, E.

Bellwin, L.

450

Beloff, L.

Marshall of Leeds, L.

Belstead, L.

Maude of Stratford-upon-Avon, L.

Bessborough, E.

Boyd-Carpenter, L.

Merrivale, L.

Brabazon of Tara, L.

Milverton, L.

Brougham and Vaux, L.

Mowbray and Stourton, L.

Butterworth, L.

Norrie, L.

Caithness, E.

Nugent of Guildford, L.

Cameron of Lochbroom, L.

Onslow, E.

Campbell of Croy, L.

Orr-Ewing, L.

Coleraine, L.

Pender, L.

Cottesloe, L.

Perth, E.

Craigavon, V.

Plummer of St Marylebone, L.

Cullen of Ashbourne, L.

Davidson, V.

Porritt, L.

Denham, L. [Teller.]

Portland, D.

Derwent, L.

Rankeillour, L.

Drumalbyn, L.

Reay, L.

Ellenborough, L.

Rodney, L.

Elliott of Morpeth, L.

St. John of Bletso, L.

Elton, L.

Sandford, L.

Erroll of Hale, L.

Selkirk, E.

Fraser of Kilmorack, L.

Shannon, E.

Geddes, L.

Sharples, B.

Glanusk, L.

Shaughnessy, L.

Glenarthur, L.

Skelmersdale, L.

Gray of Contin, L.

Strathcarron, L.

Hailsham of Saint Marylebone, L.

Strathspey, L.

Sudeley, L.

Harmar-Nicholls, L.

Swansea, L.

Home of the Hirsel, L.

Swinton, E. [Teller.]

Hooper, B.

Teviot, L.

Ironside, L.

Teynham, L.

Kimball, L.

Thorneycroft, L.

Kitchener, E.

Trefgarne, L.

Lane-Fox, B.

Trumpington, B.

Lauderdale, E.

Vaux of Harrowden, L.

Lindsey and Abingdon, E.

Vivian, L.

Long, V.

Ward of Witley, V.

Lucas of Chilworth, L.

Whitelaw, V.

Macleod of Borve, B.

Young, B.

Mancroft, L.

Young of Graffham, L.

Marley, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.7 p.m.
The Deputy Speaker (Lord Nugent of Guildford): My Lords the next amendment is Amendment No. 6, which I understand has already been spoken to.
Schedule [Repeals]:
Lord Young of Graffham Lord Young of Graffham moved Amendment No. 6:
Page 8, line 14, column 3, at end insert—

("In section 11(1), the words "consisting of six or more partners".

In section 80(1), paragraph (d).").

On Question, amendment agreed to.
Lord Young of Graffham Lord Young of Graffham moved Amendments Nos. 7 and 8:
Page 10, line 7f, column 3, after ("91") insert—

("—

in subsection (1),").

Page 10, line 9, column 3, leave out ("and the words "her or" in subsection (3)") and insert—

("—

in subsection (2), the words "woman or a"; and

in subsection (3), the words "woman or" and the words "her or".").

The noble Lord said: My Lords, with the leave of the House I should like to move Amendments Nos. 7 and 8 together. They are technical drafting amendments consequential on Clause 4 of the Bill. As your Lordships know, Clause 4 amends the Factories Act 1961 and associated legislation so that the provisions restricting women's hours of work cease to apply. Part II of the schedule makes the detailed amendments to the provisions, including Section 91 of the 1961 Act. The amendments simply tidy up and clarify the way in which the references to women are removed from Section 91. I beg to move.
On Question, amendments agreed to.
Lord Young of Graffham Lord Young of Graffham moved Amendment No. 9:
Page 11, line 27, at end insert—

("1974 c. 37

The Health and Safety at Work Etc. Act 1974.

In Schedule 1, the entry relating to the Baking Industry (Hours of Work) Act 1954.

1975 c. 65.

The Sex Discrimination Act 1975.

In Schedule 5, paragraph 3.").

The noble Lord said: My Lords, this is simply a drafting amendment. It is consequential on Clause 5 of the Bill which, as your Lordships know, proposes to repeal the Baking Industry (Hours of Work) Act 1954.
Part II of the Schedule to the Bill already contains two small consequential amendments to Acts which refer to the 1954 Act. This amendment ensures that two more such "consequentials" are added—they are Schedule 1 to the Health and Safety at Work Act 1974 and Schedule 5 to the Sex Discrimination Act 1975, both of which refer to the 1954 Act. I beg to move.
On Question, amendment agreed to.

Legal Aid (Scotland) Bill [H.L.]
5.10 p.m.
Report received.
Clause 1 [The Scottish Legal Aid Board]:
The Lord Advocate (Lord Cameron of Lochbroom)The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 1:
Page 2, line 1, leave out ("8") and insert ("11").
The noble and learned Lord said: My Lords, with the leave of the House I shall speak also to Amendment Nos. 2 and 4 in my name. These amendments are designed to take account of comments on the composition of the board made during the first day on which your Lordships sat in Committee.
The Deputy Speaker: My Lords, I think I must interrupt the noble and learned Lord. The Marshalled List has been wrongly marshalled. In fact Amendment No. 3 comes before Amendment No. 2. Would the noble and learned Lord, in order to assist the House, deal only with Amendment No. 1 first?
Lord Cameron of Lochbroom: My Lords, I am obliged. Speaking simply to Amendment No. 1, the intention here is to increase the number of members of
452
the board from eight to 11, consequent upon certain other amendments which would have the effect of increasing the number of members who would be taken from the Faculty of Advocates and the Law Society.
The increase in number, which would depend upon those amendments, is to leave the board with still a lay majority upon it. The Government consider that it is appropriate, where the board has a wide range of duties, that there should be a lay majority. Obviously we shall come to the issue of the membership in due course. In the meantime, I beg to move.
The Earl of Selkirk: My Lords, may I ask one question on this amendment and the other two amendments taken with it? Is it understood that there will be consultation with the Faculty of Advocates and the Law Society when these nominations are made?
Lord Cameron of Lochbroom: My Lords, we are perhaps going to go into that realm in a moment, and I do not think that it would be appropriate at this stage to deal with the point raised by my noble friend. I certainly intend to do so when I deal with the issue, which will come with the next amendments.
On Question, Amendment agreed to.
The Deputy Speaker: My Lords, Amendment No. 3. I should explain that if Amendment No. 3 is agreed to, I cannot call Amendments Nos. 2 and 4.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 3:
Page 2, leave out lines 14 to 17 and insert—

("(a) at least two members of the Faculty of Advocates from persons nominated by the Faculty of Advocates;

(b) at least two members of the Law Society of Scotland from persons nominated by the Council of the Law Society of Scotland;

(c) at least one other person having experience of the procedure and practice of the Courts;

(d) at least one person from persons nominated by the Scottish Association of Citizens Advice Bureaux;

(e) at least one person from persons nominated by the Scottish Consumer Council; and

(f) at least one person from persons nominated by the Scottish Council for Civil Liberties.

( ) Regulations made under this section may provide for the addition or deletion of organisations with the right of nomination to the Secretary of State for appointment as members of the Board.")
The noble Lord said: My Lords, this amendment is directed to the composition of the board. It is to set out that the various bodies—the Faculty of Advocates, the Law Society, the Citizens Advice Bureaux, the Scottish Consumer Council, and the Scottish Council for Civil Liberties—should have the right to nominate to the Secretary of State, who would then have the right to choose from the nominees those he would wish to appoint to the board.
Every person who spoke at Committee stage on this clause of the Bill emphasised the importance of the board being independent, and being seen to be independent. The noble and learned Lord the Lord Advocate would not accept any of the amendments proposed, though he undertook to consider the debate. Amendments Nos. 2 and 4 seem to be the extent of his consideration. That is to increase the number of lawyers from two to four.
However, everybody appointed to the board is still to be a nominee of the Secretary of State, chosen by the Secretary of State for his personal qualities, and there is no obligation in the Bill on the Secretary of State to consult anybody, either the legal bodies or any of the bodies representing consumer interests.
The necessity of showing the board to be independent and the dangers of the Secretary of State having this complete power were perhaps best illustrated by the noble Lord, Lord Campbell of Croy, who of course had great experience as Secretary of State. At Committee stage he pointed out the dangers in the Secretary of State appearing to accumulate all the power.
This amendment is designed to be a compromise between the position of the Secretary of State wanting the right to choose everybody and the position of the various bodies having a right to suggest. I would commend it to the House. No doubt it could be better drafted, but I have suggested the three bodies, the Citizens Advice Bureaux, the Scottish Consumer Council, and the Scottish Council for Civil Liberties. Each of them, in their response to the consultation paper prior to the Bill, commented on the necessity that the board should be independent. It would seem to me that the best way is that these people should have the right to nominate persons, with the Secretary of State having the right to choose somebody out of the nominees. There is a provision in my amendment that regulations may be made to delete from, or add to, the organisations which have the right of nomination. I hope that this amendment may commend itself to the House, and I beg to move.
5.15 p.m.
Lord Cameron of Lochbroom: My Lords, I would suggest to your Lordships that a more proper course to take is to accept the amendment put down in my name. The noble Lord opposite is correct that I undertook to consider what was said by your Lordships in Committee. The consequence is that in Amendments Nos. 2 and 4 I have increased the minimum number of members of both the Faculty of Advocates and the Law Society from one to two.
My noble friend Lord Selkirk asked me about consultation. I am happy to say that my right honourable friend has already made approaches to these bodies to suggest persons who might be suitable for appointment to the board. I am, however, bound to stress that it is my right honourable friend the Secretary of State who is responsible for making appointments, and I would suggest that it is not appropriate that he should simply be committed to selecting names suggested by the bodies named in the Bill at present, or indeed any other particular bodies, and not least because he is of course accountable to Parliament for the actions of the bodies that he funds, and this board will be one of them.
I should also say that my right honourable friend has also invited suggestions for board members from the Scottish Consumer Council and the Scottish Association of Citizens Advice Bureaux, and he is also consulting the Convention of Scottish Local Authorities, and this to ensure that the board will represent a broad spectrum of interests. But the important thing is that the board members should be
454
appointed for their individual qualities, their expertise and their knowledge, as is set out in Clause 1(4).
I suggest that it is right that the Secretary of State should reserve the right to choose which individuals from each of the interests covered should serve. This is all the more vital for the first board setting up the new system—a testing task requiring a careful combination of qualities on the board if it is to be successful.
I has been suggested that the independence of the board is secured if there is this power which is sought by the amendment of the noble Lord opposite. Perhaps I may say that that argument was refuted at a much earlier stage in the passage of this Bill by the noble Lord, Lord Hughes, when he pointed out from his very wide personal knowledge that boards appointed by Ministers are not inhibited in expressing their views. Indeed, I suggest that many of my colleagues would give wry smiles if told that boards appointed by them would leap to their every command. I remind your Lordships that within our own jurisdiction in Scotland the Highlands and Islands Development Board, an independent board, is one where the Act provides that the board should consist of a chairman and not more than six other members and that the board shall be appointed by the Secretary of State. That is all. Only last year in the National Heritage Act the board of trustees for the National Museum of Scotland was to consist of not more than 15 persons and they shall be appointed by the Secretary of State. That was under a reference to having regard to their individual qualities.
There is one other technical point that I wish to make. Under the amendment it would be possible, where more than one member is to be appointed, for the particular bodies to close the list to the point where their nominations must be the appointees. I think even the noble Lord opposite accepted that that should not be the case. That is perhaps a more technical objection; but my principal objection is that this is an unnecessary constraint upon the Secretary of State. I suggest that what is in the Bill with the amendments which I propose follows ample precedent. In these circumstances your Lordships should not accept the amendment proposed by the noble Lord, Lord Morton.
Merely in passing I suggest that even at the end of his amendment the noble Lord accepts the power of the Secretary of State to delete organisations with the right of nomination, which presumably would mean that he could delete any one of the organisations included in the list. That goes far beyond what is proposed in the amendments in my name. For these reasons I cannot accept the amendment proposed.
Lord Hughes: My Lords, I was rather astonished to find the noble and learned Lord the Lord Advocate praying any remarks of mine in aid in refusing this amendment. It is perfectly true that at an earlier stage in our proceedings I did not accept the argument that a body appointed entirely by a Minister, without necessarily consulting other people, would be a body which was wholly dependent on the Secretary of State for its opinions or that it did not itself exercise an independent point of view. I felt obliged to say that because having on more than one occasion been a member of a body appointed by the Secretary of State,

455
I should hate to think that at this late stage in my life I would be accused of merely being an obedient creature of the Minister who appointed me.
Having said that, we must consider what has been given as the reason for setting up this board. Everyone who spoke emphasised that they did not imply any criticism, any bad or improper administration of legal aid in Scotland by the Law Society. That was not the reason for this Bill coming forward; it was rather the old argument that Caesar's wife must be above suspicion. From that point of view if the Secretary of State makes his appointments from names which have been submitted to him rather than by plucking them out of the air without any guarantee of consultation, and if it is done in the way suggested by the amendment, the appearance of independence is greater still. I am strongly in support of the amendment.
I should go further. If this amendment were put in the Bill, the obligation would be that the Secretary of State would have to ask these bodies to submit nominations—not one nomination but a number of nominations. It is not unheard of for a Minister who has asked for nominations from a body not to like any of the names on the list, for reasons which seemed to the Minister to be sound reasons for not accepting them. But he did not then go ahead and appoint somebody other than a name suggested by the organisation. What happens in these circumstances is that a discreet message is passed to the organisation: "I wonder whether you could perhaps add some other names to those you have already submitted. I should like to have a wider choice available to me". There is nothing in the amendment of my noble friend which would prevent that procedure from being carried out.
Apart from what might be the views of the Citizens Advice Bureaux or the Consumer Council I am certain that both the Faculty of Advocates and the Law Society would be happier if they were providing the list from which the appointments would be made. I believe that the noble and learned Lord the Lord Advocate is making an unnecessary mistake—if there is such a thing as a necessary mistake. Sometimes I think that that is the way that governments operate; they are prepared to make mistakes and argue that it is because they are necessary. I will amend what I said, and say that it is an unnecessary decision to reject the amendment put forward by my noble friend. This board is a big change from all that has gone before. The more satisfactory the way in which it can start its life, the better the chance that it will operate successfully.
The Earl of Selkirk: My Lords, I have the highest regard personally for the Secretary of State. I should have no doubt whatever that he would make good appointments. But we are making law today. There will be dozens of future Secretaries of State; at least I hope so. They may vary a great deal. It is not unknown for politicians to make political appointments. It is not absolutely without precedent in life, and this may happen. Appointments may be made on personal grounds, and that has happened, too, on occasions. There is nothing in the Bill to say that the people appointed must be people of quality. It is curious that there is no suggestion of that sort.
456
The most fundamental weakness of my noble friend's argument is his comparing the board to the board for East Kilbride, a new town for which I have the highest regard. He compared it to the Highlands and Islands Development Board and he compared it to those for museums. We are dealing with something totally different from any of these important organisations. We are dealing with the administration of justice. This is something that bears no relationship to the organisations which the Secretary of State finds himself dealing with. It is something which is fundamentally important. These people will undertake a great deal of responsibility.
I do not know how the noble and learned Lord wants to do this. He says that he will consult; in fact, he says that he has already consulted the Faculty of Advocates and the Law Society. But there is nothing in the Bill to say that. That is what I should like. Even if the noble and learned Lord does not like the latter part of the amendment—that is, paragraphs (c), (d), (e) and (f)—paragraphs (a) and (b) should still stand. I feel very strongly that (a) and (b) should stand. They state:

(a) at least two members of the Faculty of Advocates from persons nominated by the Faculty of Advocates;

(b) at least two member of the Law Society of Scotland from persons nominated by the Council of the Law Society of Scotland".

if it is desired.
I think the principle of this Bill is the independence of the board. I am sorry to say—and I say it with great respect—that the other boards are necessarily representing the Secretary of State in their work, whether it be the Highlands and Islands Development Board or those for the museums. They are representing him and carrying out the duties on the basis which he says, exercising no doubt their own ability.
I should like the noble and learned Lord to consider very carefully whether he could not accept certainly paragraphs (a) and (b) and what other consultations he has; or to say quite clearly that he will make these nominations after hearing views. I think that that would make a great deal of difference to the attitude of independence with which the board will be regarded.
5.30 p.m.
Lord Morton of Shuna: My Lords, I am grateful for the support from my noble friend Lord Hughes and from the noble Earl, Lord Selkirk. It appears to me that this board has nothing whatever in common with a new town, or the Highlands and Islands Development Board, or the Heritage Trust. If the noble and learned Lord the Lord Advocate was proposing amendments suggesting that there would be nomination from bodies such as the Faculty of Advocates, the Law Society or the Citizens Advice Bureaux, that would be one thing; or if he was suggesting an amendment that before making appointments the Secretary of State would consult, that would be another thing. But there is no duty being put into this Bill for the Secretary of State to consult anybody.
No doubt the present Secretary of State has very eminent qualities; I am sure he has. But a future Secretary of State could well appoint people from the Faculty of Advocates or the Law Society who had no experience of criminal courts, for example, or no experience of legal aid work. There is nothing in the

457
Bill or in the amendments that we are to discuss, other than this one, which suggests any independence for the board. I regret that I must press this amendment and seek the opinion of the House.
Lord Wilson of Langside: My Lords, I am sorry I did not get the opportunity to rise before the noble Lord, Lord Morton, did so. On this question of consultation, surely in the real world it is unthinkable that any Secretary of State appointing members of the board would not consult first of all closely and intimately with his right honourable friend the Lord Advocate and that, in turn, the Lord Advocate would not consult closely and intimately with the heads of the two branches of the legal profession before any appointment was made.
As far as I recall it is most unusual to put a provision into a statutory measure insisting on consultation. I well recall when the Sheriff Courts (Scotland) Act 1971 was passed suggesting that the matter of consultation between the then Lord Advocate and the Secretary of State should be given statutory form. After discussion, it was eventually accepted on all sides that this was a matter of sensible government which was bound to happen. I think that to divide the House as though this is a crucial point would be most unfortunate.
Beyond that, this amendment is a matter on the detail of which we could debate at great length and I am sure that your Lordships do not wish to do that. While I agree entirely with the noble Lord, Lord Hughes, when he says that it is all important that the board should, quite rightly, get off to a good start, I think it would get off to a much better start with the kind of balance on the board proposed meantime; and I have my own criticisms of the Bill and I would have done it a different way. But with the board as it is I think we will get a much better balance with what the Government propose than with what is proposed in this amendment.
I mention only one point of detail. I do not want to embark on criticism away from the central issue, but it would then give a majority to those who are, as it were, professionally involved. I do not think that that would be a good balance. It would be two members of the Law Society of Scotland and one person having experience of the procedure and practice of the courts. I think it important that this board should be independent. We must think of independence in relation to not merely the Secretary of State but also various other bodies. Accordingly, for my part I would oppose this amendment.
Lord Morton of Shuna: My Lords, with the leave of the House, the noble and learned Lord, Lord Wilson of Langside, is wrong in saying that this would give lawyers a majority; it would not. There would be under paragraph (a) two members of the Faculty of Advocates—and that is the amendment that the noble and learned Lord the Lord Advocate is going to propose—and there would be two members of the Law Society; and that again is the amendment that the noble and learned Lord the Lord Advocate is going to propose. The one other person having experience of the procedure and practice of the court might be a lawyer or he might not. The rest would not be lawyers, out of a minimum of 11 and a maximum of 15. Even five out of 11 would not be a majority.
Lord Wilson of Langside: My Lords, with the leave of the House, I did not say that the lawyers would have a majority. I said that there would be a majority with a professional interest. The person with the experience of the practice and procedure of the court is a clerk of court or a person of that kind. What I said was not that the lawyers would be in the majority but that there would be a professional interest, with the danger arising of questions of independence not in relation to the Secretary of State but in relation to other interests.
5.39 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 86.

DIVISION NO. 4

CONTENTS

Amherst, E.

McIntosh of Haringey, L.

Ardwick, L.

Mishcon, L.

Barnett, L.

Molloy, L.

Briginshaw, L.

Morton of Shuna, L.

Brooks of Tremorfa, L.

Mulley, L.

Bruce of Donington, L.

Nicol, B.

Caradon, L.

Oram, L.

Carmichael of Kelvingrove, L.

Parry, L.

Cledwyn of Penrhos, L.

Phillips, B.

Crawshaw of Aintree, L.

Pitt of Hampstead, L.

David, B. [Teller.]

Ponsonby of Shulbrede, L. [Teller.]

Davies of Penrhys, L.

Dean of Beswick, L.

Prys-Davies, L.

Denington, B.

Ross of Marnock, L.

Elwyn-Jones, L.

Selkirk, E.

Ennals, L.

Serota, B.

Ewart-Biggs, B.

Shackleton, L.

Falkender, B.

Silkin of Dulwich, L.

Foot, L.

Stallard, L.

Gallacher, L.

Stewart of Fulham, L.

Galpern, L.

Stoddart of Swindon, L.

Graham of Edmonton, L.

Strabolgi, L.

Gregson, L.

Taylor of Blackburn, L.

Grey, E.

Taylor of Mansfield, L.

Hatch of Lusby, L.

Turner of Camden, B.

Heycock, L.

Underhill, L.

Hughes, L.

Wallace of Coslany, L.

Jeger, B.

Walston, L.

Jenkins of Putney, L.

Wedderburn of Charlton, L.

John-Mackie, L.

Whaddon, L.

Llewelyn-Davies of Hastoe, B.

Wheatley, L.

Lloyd of Kilgerran, L.

White, B.

Lockwood, B.

Williams of Elvel, L.

Lovell-Davis, L.

Wilson of Rievaulx, L.

McCarthy, L.

NOT-CONTENTS

Airey of Abingdon, B.

Denham, L.

Alexander of Tunis, E.

Denning, L.

Ampthill, L.

Derwent, L.

Auckland, L.

Drumalbyn, L.

Belhaven and Stenton, L.

Elliot of Harwood, B.

Beloff, L.

Elliott of Morpeth, L.

Belstead, L.

Elton, L.

Bessborough, E.

Erroll of Hale, L.

Boardman, L.

Faithfull, B.

Brabazon of Tara, L.

Fortescue, E.

Butterworth, L.

Fraser of Kilmorack, L.

Caithness, E.

Gardner of Parkes, B.

Cameron of Lochbroom, L.

Geddes, L.

Carnegy of Lour, B.

Glanusk, L.

Craigavon, V.

Glenarthur, L.

Craigmyle, L.

Gray of Contin, L.

Cross, V.

Hanworth, V.

Cullen of Ashbourne, L.

Harmar-Nicholls, L.

Davidson, V.

Hooper, B.

459

Hylton-Foster, B.

Rankeillour, L.

Kimball, L.

Reay, L.

Kitchener, E.

Renwick, L.

Lindsey and Abingdon, E.

St. John of Bletso, L.

Long, V. [Teller.]

Sandford, L.

Lucas of Chilworth, L.

Shannon, E.

Macleod of Borve, B.

Sharples, B.

Mancroft, L.

Skelmersdale, L.

Margadale, L.

Strathcarron, L.

Marley, L.

Strathclyde, L.

Merrivale, L.

Strathspey, L.

Milverton, L.

Sudeley, L.

Mottistone, L.

Swansea, L.

Mountevans, L.

Swinton, E. [Teller.]

Mowbray and Stourton, L.

Teynham, L.

Munster, E.

Trefgarne, L.

Napier and Ettrick, L.

Trumpington, B.

Norrie, L.

Vaux of Harrowden, L.

Nugent of Guildford, L.

Vickers, B.

Orkney, E.

Vivian, L.

Orr-Ewing, L.

Ward of Witley, V.

Pender, L.

Whitelaw, V.

Perth, E.

Young, B.

Portland, D.

Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.46 p.m.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 2:
Page 2, line 14, leave out ("one member") and insert ("two members").
The noble and learned Lord said: My Lords, with the leave of the House, I formally beg to move Amendment No. 2 standing in my name. I have already spoken to Amendments Nos. 2 and 4. I beg to move.
The Earl of Selkirk: My Lords, may I ask my noble and learned friend a question which I asked earlier and to which he did not refer in the course of his previous reply? Am I to understand that it is going to be clear that there will be consultations with the Faculty of Advocates and the Law Society in regard to the appointments which are to be made there? I say frankly that it is in the interests of the Government to do that, to show that there is at least some degree of independence in these bodies.
I hope my noble and learned friend will consider this very carefully. It should be in the Act. There will be many new Secretaries of State without perhaps the same experience of law or (may I say?) possibly without the same respect for the law that the present Secretary of State has. It is of great importance that this should be stated specifically in the Act. I ask my noble and learned friend to consider very carefully whether at a later date he cannot introduce something of that character.
Lord Cameron of Lochbroom: My Lords, with the leave of the House, perhaps I may respond to my noble friend. I think I have made it clear in relation to the last debate that in fact my right honourable friend has already been in touch with those two bodies. I can simply say that certainly I understand it would be his full intention to consult with them on the suitable membership from those two bodies. However, as I said earlier, I should like to make clear that he cannot be committed necessarily to selecting the names suggested by those bodies. I would, however, confirm
460
that he is already in touch with them with a view to inviting them to suggest suitable people as members of the board. I would understand that to be essential to any consultation process.
The Earl of Selkirk: My Lords, with the leave of the House, may I ask my noble and learned friend what future Secretaries of State are to be bound by? If that is to be the normal procedure, let it be clearly stated in the Act that it is to be the normal procedure. That is all I am asking, and I think it is very reasonable.
The Earl of Perth: My Lords, I should like to support the noble Earl, Lord Selkirk, on this point because it is all very well to say that this is what we are doing, but we have to look to the future. It is coming up again in a different form at a later stage, and I would beg the noble Lord to say that he will look at it to see whether in the next Session he cannot introduce in legislation the practice he is proposing to follow.
Lord Morton of Shuna: My Lords, I should like to add my support to that suggestion.
Lord Cameron of Lochbroom: My Lords, again, with the leave of the House, perhaps I should simply say that I shall obviously take account of what has been said by your Lordships today, but I obviously cannot give any commitment so far as Third Reading is concerned.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 4:
Page 2, line 15, leave out ("one member") and insert ("two members").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 4 formally. I have already spoken to it.
On Question, amendment agreed to.
Clause 2 [Powers of the Board]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment Nos. 5 and 6:
Page 2, line 34, leave out ("and").
Page 2, line 37, at end insert ("and
(e) to give the Secretary of State such advice as it may consider appropriate in relation to the provision of legal aid and advice and assistance in accordance with this Act.").
The noble and learned Lord said: My Lords, with the leave of the House I shall speak to this amendment together with Amendment No. 6 standing in my name.
Your Lordships in Committee expressed views about the issue of advice being given by the new board. In consultation with my right honourable friend I have given careful thought to those comments and we are persuaded that this would be appropriate. Accordingly, Amendments Nos. 5 and 6 together make provision for the board to have power to give to the Secretary of State such advice as it may consider appropriate in relation to the legal aid and advice and assistance functions which it will have. I suggest that this power would, in fact, provide for the concerns which noble Lords expressed in Committee, and therefore I beg to move.
On Question, amendments agreed to.
Clause 3 [Duties of the Board]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 7:
Page 3, line 13, leave out subsection (4).
The noble Lord said: My Lords, this amendment is directed towards one subsection of Clause 3 which appears to demonstrate, as so much of this Bill does, the fact that the board is to be merely the creature of the Secretary of State, because the subsection says:
"The Board shall have regard, in the exercise of its functions, to such guidance as may from time to time be given by the Secretary of State; but such guidance shall not affect the consideration or disposal of applications."
That, it appears to me, gives the board the duty of obeying directions, in effect, from the Secretary of State. Coupled with the immense power to make regulations, it appears an unnecessary power as put; especially if the other way, with the amendment we have just agreed to, there is advice being given to the Secretary of State, it might be better or less objectionable, if the clause has to remain at all. I would suggest that there would be no need for it if it dealt with "consider" rather than "having regard to" and "advice" rather than "guidance"
The Earl of Selkirk: My Lords, may I ask what really is intended by this subsection? What is the guidance which is to be given? It is not to do with the disposal of applications for legal aid. Legal aid is out altogether. What is in? It is not to do with property. That is already perfectly controlled at the present time under subsection (2). It is not finance, because that is wholly under the control of the Secretary of State already. It looks to me as though the only thing we can talk about is staff. Is it really needed to give guidance about staff? If that is not the case, what is the guidance required? There is a slight suspicion that this is a method undermining the independence of a board which I would have thought was not only unfortunate but wholly contrary to the intentions of the Government themselves. Can we have an explanation which would justify this subsection. What exactly is the purpose behind it?
Lord Hughes: My Lords, may I, too, ask a question about this? Would the board be entitled to interpret this subsection as giving it the right to disregard the guidance of the Secretary of State if it felt that though the guidance was given in good faith it was not the best way in which the board could operate? Would it be entitled just to regard it as advice and therefore be free not to follow it?
Lord Cameron of Lochbroom: My Lords, I would suggest to your Lordships that this amendment should not be accepted. I think I explained at Committee that the guidance powers which are intended in this clause relate essentially to the board's administrative and financial operations. One matter which is pre-eminently suitable for guidance would be the way in which the board, for instance, conducted its financial transactions. Those are matters for it—not in fact for the Secretary of State as my noble friend suggested. For example, it would be important that the Secretary of State should be able to issue guidance to the board in relation to its financial procedures, and these are things which it would not be appropriate to cover in regulations.
462
The guidance power is a restricted one and, of course, as I think I said earlier—and I do not repeat the argument ad longum—the Secretary of State could not appropriately give guidance contrary to what is laid down in statute. Secondly, he is of course limited with the qualification which appears in the clause itself. He can give no guidance on matters which impinge on consideration or disposal or applications for legal aid or advice and assistance. I would make quite clear—and perhaps this is a response to both my noble friends and the noble Lord, Lord Hughes—that this is a power of guidance and not a power of direction; that is to say, while the board would have to regard the guidance there is no obligation upon it to follow it. Indeed, I think I can say that it may well be that the Secretary of State would, in fact, ask the board's advice on draft guidance before he were to issue it, though at the end of the day it may well be that it does not feel impelled to follow it. So far as the power is concerned, it is not one of direction. It is not one which the board is bound to do more than have regard to, and it is not impelled to follow it.
I would simply say that there is nothing sinister in this. I would perhaps observe, since we had in Committee a reference to the position in England, that there the Law Society, which has functions in regard to civil legal aid has, I understand, to exercise its functions under the general guidance of the Lord Chancellor. I have never understood that to have meant that it is bound by his guidance. Obviously it would pay regard to it. I make it clear that the power is limited. It is not one of general guidance on those matters.
Lord Silkin of Dulwich: My Lords, I am obliged to the noble and learned Lord the Lord Advocate. One point that puzzles me, which perhaps he can explain, is that in relation to an earlier amendment, when we were considering whether there should be something in the Bill to provide for consultation by the Secretary of State, the reply was that of course the Secretary of State would consult without anything appearing about it in the Bill. Why does not the same apply here? Surely the board will have regard to guidance, and the Secretary of State will be able to give guidance, even if it does not appear in the Bill.
Lord Cameron of Lochbroom: My Lords, that might be said. I merely make it quite clear that in addition to what the Secretary of State may cover in regulations he will also be entitled to give some guidance on matters which are not covered in regulations. I should have thought that that was a matter suitable to be contained in the Bill. As I say, it appears in another Act. I dealt with the position of consultation in relation to the appointment of members of the board, which, I suggest, is a somewhat different topic.
For those reasons, I would suggest to your Lordships that this is a perfectly appropriate power for the Secretary of State to have. It is one that does not import any direction to be followed; it is simply material which the Secretary of State can place before the board as the board will now have the power to offer advice to the Secretary of State. If we have one, there seems to be no difficulty in also having the other on the face of the Bill.
Lord Foot: My Lords, when we were discussing this subsection in Committee it was universally condemned. The noble and learned Lord, Lord Denning, and the noble Lord, Lord Mishcon, expressed grave doubts about its advisability. That seems to have been reinforced by what has been said today. Surely it is correct to say that it is utterly unnecessary to have such a clause. The clause in effect says—subject to the qualifications that we have heard from the noble and learned Lord the Lord Advocate—that the Secretary of State may, if he feels inclined, give advice from time to time to the board but that the board shall be under no obligation to accept it, or to act in accordance with it.
It goes on—this makes it even worse—in the second part of the subsection and purports to put limitations on the advice that the Secretary of State can give. It appears to say that the Secretary of State must not give advice upon the granting of legal aid. Why put that into a statute? Why is it necessary to put into the statute that the Secretary of State shall have the right to give advice and then go on and say that the Secretary of State shall be limited in the advice that he can give? That all seems unnecessary in a statute of this kind. I hope that the noble Lord, Lord Morton, will take the matter to a Division, if necessary, because I think that it will find universal support on both sides of the House.
Lord Morton of Shuna: My Lords, with that encouragement I do not accept the explanation of the noble and learned Lord the Lord Advocate, and seek the opinion of the House.
6.4 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 73; Not-Contents, 85.

DIVISION NO. 5

CONTENTS

Airedale, L.

Houghton of Sowerby, L.

Amherst, E.

Hughes, L.

Ardwick, L.

Jeger, B.

Barnett, L.

Jenkins of Putney, L.

Briginshaw, L.

John-Mackie, L.

Bruce of Donington, L.

Kilbracken, L.

Caradon, L.

Kilmarnock, L.

Carmichael of Kelvingrove, L.

Lloyd of Kilgerran, L.

Cledwyn of Penrhos, L.

Lockwood, B.

Crawshaw of Aintree, L.

McCarthy, L.

David, B. [Teller.]

McIntosh of Haringey, L.

Davies of Penrhys, L.

McNair, L.

Dean of Beswick, L.

Milner of Leeds, L.

Denington, B.

Mishcon, L.

Diamond, L.

Molloy, L.

Donaldson of Kingsbridge, L.

Morton of Shuna, L.

Elwyn-Jones, L.

Nicol, B.

Ennals, L.

Northfield, L.

Ewart-Biggs, B.

Parry, L.

Foot, L.

Pitt of Hampstead, L.

Gallacher, L. [Teller.]

Prys-Davies, L.

Galpern, L.

Rochester, L.

Gregson, L.

Ross of Marnock, L.

Grey, E.

Seear, B.

Grimond, L.

Selkirk, E.

Hampton, L.

Serota, B.

Hatch of Lusby, L.

Shackleton, L.

Heycock, L.

Silkin of Dulwich, L.

464

Stallard, L.

Wallace of Coslany, L.

Stewart of Fulham, L.

Walston, L.

Stoddart of Swindon, L.

Wedderburn of Charlton, L.

Strabolgi, L.

Whaddon, L.

Taylor of Blackburn, L.

Wheatley, L.

Taylor of Mansfield, L.

Williams of Elvel, L.

Tordoff, L.

Wilson of Langside, L.

Turner of Camden, B.

Winstanley, L.

Underhill, L.

NOT-CONTENTS

Airey of Abingdon, B.

Long, V. [Teller.]

Alexander of Tunis, E.

Lucas of Chilworth, L.

Arran, E.

Macleod of Borve, B.

Auckland, L.

Mancroft, L.

Belhaven and Stenton, L.

Margadale, L.

Belstead, L.

Marley, L.

Boardman, L.

Maude of Stratford-upon-Avon, L.

Brabazon of Tara, L.

Broadbridge, L.

Merrivale, L.

Butterworth, L.

Milverton, L.

Caithness, E.

Mottistone, L.

Cameron of Lochbroom, L.

Mountevans, L.

Carnegy of Lour, B.

Mowbray and Stourton, L.

Coleraine, L.

Munster, L.

Colwyn, L.

Napier and Ettrick, L.

Craigavon, V.

Newall, L.

Craigmyle, L.

Norrie, L.

Cross, V.

Nugent of Guildford, L.

Cullen of Ashbourne, L.

Orkney, E.

Davidson, V.

Orr-Ewing, L.

Denham, L.

Pender, L.

Denning, L.

Perth, E.

Derwent, L.

Platt of Writtle, B.

Drumalbyn, L.

Rankeillour, L.

Elliot of Harwood, B.

Renwick, L.

Elliott of Morpeth, L.

Rodney, L.

Elton, L.

Sandford, L.

Faithfull, B.

Shannon, E.

Fanshawe of Richmond, L.

Sharples, B.

Fortescue, E.

Skelmersdale, L.

Fraser of Kilmorack, L.

Strathclyde, L.

Gardner of Parkes, B.

Sudeley, L.

Glanusk, L.

Swansea, L.

Glenarthur, L.

Swinton, E. [Teller.]

Gray of Contin, L.

Teynham, L.

Hailsham of Saint Marylebone, L.

Trumpington, B.

Vaux of Harrowden, L.

Harmar-Nicholls, L.

Vickers, B.

Hooper, B.

Vivian, L.

Hylton-Foster, B.

Ward of Witley, V.

Kimball, L.

Whitelaw, V.

Kitchener, E.

Young, B.

Lawrence, L.

Young of Graffham, L.

Lindsey and Abingdon, E.

Resolved in the negative, and amendment disagreed to accordingly.
6.12 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 8:
After Clause 3, insert the following new clause:
("Advisory Committee.
.—(1) The Secretary of State shall constitute an Advisory Committee to advise him on such questions relating to this Act as he may from time to time refer to it and to make to him recommendations on such matters as relating as they consider appropriate; and the Secretary of State shall appoint the members of the Committee with regard to their knowledge of the work of the courts and social conditions.
(2) The Secretary of State may pay to the members of the Advisory Committee such travelling and other allowances as he may determine and any expenses of the Secretary of State under this subsection shall be defrayed out of monies provided by Parliament.
(3) The Secretary of State shall refer the Board's Annual Report on the operation and financing of this Act to the Advisory Committee for its consideration and advice and when the

465
Committee has considered it, it shall lay before each House of Parliament a copy of it and of any comments or recommendations made by the Committee.").
The noble Lord said: My Lords, this amendment is to give to Scotland the equivalent of the Lord Chancellor's Legal Aid Advisory Committee which has operated so successfully in England and Wales. This has been sought for Scotland, was recommended by the original Cameron Committee and is supported by the legal professions and by the Scottish Consumer Council. It is perhaps even more necessary now with the new board, which will have this composition that has not a majority of lawyers and has to do things which may be strange to many of them, that there should be some advisory body that can take a more cool and calculated look at their work and put forward ideas for change and improvement. That certainly appears to have been the position with the Lord Chancellor's Legal Aid Advisory Committee and it would be appropriate that Scotland should have the same beneficial committee. I beg to move.
Lord Denning: My Lords, I support this amendment because I have known the Lord Chancellor's Legal Aid Advisory Committee in England. I have known what it has done and I have known the members—not a majority of lawyers, most of them non-lawyers, but good people experienced in social work and the like. They provide the advisory committee's report every year. I hold in my hand a report which they made for 1983–84. It is very comprehensive, making recommendations with which I entirely agree and which I hope to bring in in one or two amendments which I shall move later. So I think that the committee is of great value and I support the amendment. It is of great value in England, and might it not be the same in Scotland?
Lord Elwyn-Jones: My Lords, I too support the amendment; indeed, I moved one to similar effect at the Committee stage. It was noteworthy then that the amendment received support from every political quarter in the House: from the Cross-Benches—and the Cross-Benches have spoken again in the person of the noble and learned Lord, Lord Denning—from the Government Benches, from the Official Opposition Benches and from the Benches up the hill over yonder, the Alliance Benches. There was unanimity in support of the proposal. There was only one opponent—I shall not call it a still, small voice, because certainly that is not the way one would describe the voice of the noble and learned Lord the Lord Advocate—and I venture to think that, if noble Lords have the energy and time to get up again on this important matter, the same result will follow.
But, seriously, the value of the advisory committee would be just as great in the new, differing set-up in Scotland as in England and Wales, if not more so. The degree of professional control by the profession of the legal aid scheme in England and Wales would seem to be rather more professional, if I may use that word, than what is proposed now by the appointment of this board which is to administer and run the scheme. It is not advantageous now to run over again the many objections that were made to the board, to its composition, to its potential dependence upon the Secretary of State and to the risk of its becoming a handmaiden of the wishes of the Secretary of State.
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The power to oversee the legal aid scheme in operation, which we propose should be given to the advisory committee, with power also to report to Parliament, is, I submit, of enormous assistance to the Lord Chancellor—certainly, I found it so when I was Lord Chancellor—who has overall responsibility in regard to the administration of justice in England and Wales, and I feel sure that the relevant authorities in Scotland would be similarly assisted.
As I have said, the special position of the Scottish Legal Aid Board makes imperative an independent body, of the kind that the advisory committee would be, to advise from time to time and be, so to speak, a public watchdog on what is going on, representing the public interest in the widest sense. I confess that I did not quite find any strength in the objections by the noble and learned Lord the Lord Advocate. It would not be a simple overlapping of the board's functions. The committee would be functioning beside it and it would be invaluable to see that this vital part of social services—namely, a legal aid and advice scheme—is properly run in the interests of those for whom it is intended.
The Earl of Selkirk: My Lords, it is a peculiarity of this country that we have no minister of justice. We have a Lord Chancellor who, more or less, fulfills that duty and his name is the Lord Chancellor of Great Britain. But, in practice, I think he does not operate very much, if at all, in Scotland. In fact, I think he is always rather shy about taking any part in Scots affairs, so we cannot call on him. Practically every country in the world has a minister of justice. Justice is a tender plant. It is one that can go astray very easily indeed. I suggest that this is something which should be considered extremely carefully.
The Secretary of State is now and will in the future be still more concerned with money. Legal aid will be a very big problem in the sense of money and he will be biased by Parliament—biased by the political pressures on him—to reduce expenditure. I think it would help him to have an independent board which would say, "These are the fundamentals of justice; this is what really matters; and even if it costs a little money you must meet it". I suspect that the noble and learned Lord will turn this down out of hand but I do not think he should do so. I think he should think very carefully whether the structure in Scotland is such that it can do without some independent advisory body of this character.
To be absolutely frank, the Minister of Justice in Scotland is the person of the noble and learned Lord the Lord Advocate. His position is about as near as we can get to him. He authorises people inter alia to publish Bibles. One can see his name at the beginning of any bible published by William Collins. He is the authority for doing so. He is the nearest approach we get, but of course he has other functions to fulfil which make this kind of duty extremely difficult. I hope that the Government will think about this and see whether at perhaps the next stage something of this kind can be suggested.
Lord Silkin of Dulwich: My Lords, I rise to support the amendment and I do so only to deal, if I can, with one point which might conceivably be raised. I

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imagine that it would be open to the noble and learned Lord the Lord Advocate to say that now Amendment No. 6 has been passed by the House there is already provision for him to be given advice on matters of this kind. That advice will be given by the board. I am bound to say that if it were a question of one or the other. I should much prefer that such advice should be given by an independent advisory committee such as my noble and learned friend is proposing here rather than by the board itself, and that the advisory committee should among other things look at the way that the board through its annual report is carrying out its functions.
I do not think that it is necessarily a question of one or the other. There is room here for both. There is room for the board to give its advice and there is room for the advisory committee to give its advice. I hope that the noble and learned Lord the Lord Advocate will not rest his argument on that particular point.
Lord Wheatley: My Lords, during the Committee stage and earlier Report stage the noble and learned Lord the Lord Advocate was very inflexible in relation to any amendment that was put forward contrary to the Government's views. Having regard to the way in which this amendment has received support from people with great experience in the operation of the advisory committee south of the border, I think that the Government must look long and hard at this before they reject it out of hand as other amendments have been rejected. When in addition to that there is a clear case in common sense for the adoption of a body of this nature, it becomes more and more difficult to understand how the Government can resist.
It has been suggested (and it was suggested at an earlier stage) that the board could do this. Noble Lords who have spoken have indicated the inadequacy of that reply, and I indicated quite clearly at the Committee stage that it was a nonsense because in effect the whole purpose of such a board is to take a long and searching look at the working of the legal aid system and then to advise what steps should be taken if things are not being done properly or are going wrong. How one could expect a board to give an adequate report of that nature in relation to its operation of this scheme baffles me completely.
During proceedings on the Sex Discrimination Bill—I do not think the noble and learned Lord was in the House—the noble Lord, Lord Young, in the early stages at least was both conciliatory and accommodating so far as amendments were concerned. I should like to think that some of that may now rub off on the noble and learned Lord and that the elasticity and flexibility that were shown on the Sex Discrimination Bill can be shown on this one, this Scots discrimination Bill. We still have to get the answer to the question which I posed time and again: why should it be thought desirable and necessary in England but unnecessary or undesirable in Scotland? Accordingly, I ask the noble and learned Lord to think carefully about this, and if he cannot accept the terms of this amendment at least to give an assurance that it will be taken away and that another form of words can be found which would accept in principle the underlying point made by the amendment.
Lord Wilson of Langside: My Lords, in view of what has been said, I assume that the noble and learned Lord the Lord Advocate will give an undertaking to look again at this matter. For my part, and from these Benches, I hope that he will do so and that he will look in some depth at the position of the Lord Chancellor in England and consider carefully whether something of this kind is needed. Nevertheless, it has to be borne in mind that the dimension of the nature and range of problems in our fairly small country is quite different from that in England. When these helpful suggestions came (as they occasionally did from south of the Border) I always found that there might well be something we could learn.
As well as considering everything that has been said I am sure that the noble and learned Lord will consider also the dangers that in the context of this problem we might overload the machinery for dealing with the matter. If the noble and learned Lord the Lord Advocate does not accept the amendment today—as perhaps he will not, in spite of weighty opinions that have been expressed; and I can understand why he is not prepared to accept it offhand and that there are matters pertinent to his field which he would have to think over rather than have to make a hasty decision sitting on the Front Bench here and now—I hope that he will take it away and look at it in considerable depth, taking into account fully the considerable differences in the legal procedure and structure of the legal machine in Scotland as against that in England.
The Earl of Perth: My Lords, I should like to ask one question of the noble and learned Lord the Lord Advocate. It shall be the duty of the board to report annually on the exercise of its functions. Will those reports be made public or are they just for the Secretary of State?
6.30 p.m.
Lord Cameron of Lochbroom: My Lords, notwith-standing appearing metaphorically to stand in a burning bush, I remember that the advice given by the still, small voice was, I think, accepted. I have listened with care to what noble Lords have said. Perhaps I may deal first of all with the point raised by the noble Earl, Lord Perth, with regard to the publication of the report. Clause 5(7) states:
"The Secretary of State shall lay before each House of Parliament a copy of every—
(a) annual report".
So in fact the report of the board will be made public.
I would not be prepared to suggest to your Lordships that this amendment should be accepted, for a number of reasons. The first of them is that noble Lords will see the breadth of experience that the members of the board as appointed by the Secretary of State will have in Clause 1(4). Your Lordships will note, for instance, that they will be persons:
"having knowledge or experience of the law, procedure and practice of the courts, business, finance, information technology and administration, consumer or social affairs or of any other subject … which would be of assistance to the Board in the exercise of its functions".
Under subsection (5), at least one member will have:
"experience of the procedure and practice of the courts".

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I contrast that breadth of knowledge with that which appears in subsection (1) of the proposed new clause, which states that:
"The Secretary of State shall appoint the members of the Committee with regard to their knowledge of the work of the courts and social conditions".
I suggest that that is not a good start to an advisory body.
I suggest also to your Lordships that the board itself will have access to a much wider range of information about the running of the legal aid service. It would itself be drawn from a wide range of relevant interests. I take the point, I regret to say, that the noble and learned Lord, Lord Silkin, was anticipating; it will now have the power to advise the Secretary of State directly. It will itself be enabled at any time to provide expert and objective comment with regard to the practicality and practicability of legal aid administration from its own experience.
I always hesitate to comment upon English models. Noble Lords opposite, and particularly the noble and learned Lord, Lord Elwyn-Jones, will know far better than I do what the statute provides in England. However, I believe that I am right in thinking that the English advisory committee is based upon the proposition that the Law Society's annual report—and I think I am correct in saying that the Law Society does not have the power to give advice to the Lord Chancellor—is submitted to the Lord Chancellor and is then put before the advisory committee, which then reports upon it. The two reports together are then placed before Parliament. I hope that I am correct.
Lord Elwyn-Jones: My Lords, both reports are put to the Lord Chancellor and are then placed before Parliament.
Lord Cameron of Lochbroom: My Lords, I was saying that the advisory committee reports upon the Law Society's report, and then its report independently is placed before the Lord Chancellor. The two reports are then placed before Parliament. I was making the point that the Law Society does not itself have power to advise direct. No doubt it would do so privately but it has no statutory power.
The Law Society is of course a particular body. I believe I am correct in saying that the scheme within which it operates is limited in membership. We have a board of much greater width and, I suggest, of much greater experience. Accordingly, I say that the board is the proper vehicle to which the Secretary of State should look to provide the advice of the kind that is suggested here. I have already made my point about the membership of the advisory committee suggested by the noble Lord opposite.
Lord Wheatley: My Lords, does the noble and learned Lord not accept that the two reports have a marked difference? The report of the Law Society will presumably be about their handling of legal aid, whereas the report of the advisory committee, as an independent body, will deal not only with the handling of legal aid but also with the mishandling of it. It is because it is necessary to have that objectivity with regard to mishandling, which may be much more important, that it is necessary to have the advisory committee.
Lord Cameron of Lochbroom: My Lords, the point I have been making about the board is that it would be so broadly-based that one would be looking within its own confines to secure the objects for which it is appointed. That is unlike the present position in England, where, I understand, there is no such broadly-based administration of legal aid. I accept that there may be lay members on the committee, but I believe I am correct in saying that it is not as broadly-based as the board is here.
It comes to this. I say that the board that is to be appointed under the Bill will be sufficiently broadly based and independent to the extent that it will be the proper vehicle from which advice should be sought and to which advice should be tendered. The Government have been criticised in some quarters for appointing one new public body. I would simply say that to appoint two bodies to cover the same field and having overlapping powers would be unjustifiable.
I have listened with care to what has been said, but nothing has persuaded me that the board would not be fully qualified to give advice on the very questions to which the new clause refers. Indeed, the board is much wider based and better based in order to secure that advice and would be more appropriate in all the circumstances. The advice would of course be based on the board's own knowledge about the running of the legal aid service, and that must be a very potent factor.
For those reasons, and while I take on board the points that have been made, I suggest that the arguments for the amendment are not convincing. The board now has the power, that it did not have before, to give advice. Perhaps I should say to the noble and learned Lord, Lord Wheatley, that I trust he will not think I am being inflexible. I listened to what was said in Committee. Indeed, certain of the amendments that are down in my name on the present Marshalled List show my preparedness to listen in the past. So far as concerns what I have heard today, I am not convinced that there is any need for a second advisory body.
Lord Morton of Shuna: My Lords, I regret to say that I find the noble and learned Lord's explanation unsatisfactory. With respect to his arguments, it appears that he misses the point. However widely constituted the board may be, it will be responsible for the administration of legal aid. It will naturally tend to defend its administration against any criticism. That is the tendency of any board, committee or body administering anything. It is therefore necessary that there should be a different body to take a new look from a distance, which can see what is going wrong.
It appears also, if the information that has been given to me is correct—and I am sure that it is—that the noble and learned Lord's reference to the burning bush was inaccurate. I believe that the small, still voice came to Elijah after a thunderstorm.
Lord Cameron of Lochbroom: My Lords, I accept that, of course, but I observe it was still listened to.
Lord Morton of Shuna: My Lords, I accept that it was listened to, and I have listened to the noble and learned Lord the Lord Advocate; but still I feel that I must test the opinion of the House.
6.40 p.m.
On Question, Whether the said amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 83.

DIVISION NO. 6

CONTENTS

Airedale, L.

Kirkhill, L.

Amherst, E.

Lloyd of Kilgerran, L.

Ardwick, L.

Lockwood, B.

Barnett, L.

McCarthy, L.

Briginshaw, L.

McGregor of Durris, L.

Brooks of Tremorfa, L.

McIntosh of Haringey, L.

Bruce of Donington, L.

McNair, L.

Caradon, L.

Milner of Leeds, L.

Carmichael of Kelvingrove, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Molloy, L.

Crawshaw of Aintree, L.

Morton of Shuna, L.

David, B. [Teller.]

Nicol, B.

Davies of Penrhys, L.

Northfield, L.

Dean of Beswick, L.

Parry, L.

Denington, B.

Pitt of Hampstead, L.

Denning, L.

Rochester, L.

Diamond, L.

Ross of Marnock, L.

Elwyn-Jones, L.

Seear, B.

Ennals, L.

Selkirk, E.

Ewart-Biggs, B.

Serota, B.

Foot, L.

Shackleton, L.

Gallacher, L. [Teller.]

Silkin of Dulwich, L.

Galpern, L.

Stewart of Fulham, L.

Graham of Edmonton, L.

Stoddart of Swindon, L.

Grey, E.

Strabolgi, L.

Hampton, L.

Taylor of Blackburn, L.

Hanworth, V.

Taylor of Mansfield, L.

Hatch of Lusby, L.

Tordoff, L.

Hayter, L.

Turner of Camden, B.

Heycock, L.

Underhill, L.

Hooson, L.

Wallace of Coslany, L.

Hughes, L.

Walston, L.

Irving of Dartford, L.

Whaddon, L.

Jeger, B.

Wheatley, L.

John-Mackie, L.

Williams of Elvel, L.

Kilbracken, L.

Wilson of Langside, L.

Kilmarnock, L.

Winstanley, L.

NOT-CONTENTS

Airey of Abingdon, B.

Gardner of Parkes, B.

Alexander of Tunis, E.

Gibson-Watt, L.

Ampthill, L.

Glanusk, L.

Arran, E.

Glenarthur, L.

Ashbourne, L.

Gray of Contin, L.

Auckland, L.

Hailsham of Saint Marylebone, L.

Belhaven and Stenton, L.

Belstead, L.

Harmar-Nicholls, L.

Birdwood, L.

Hooper, B.

Boardman, L.

Hylton-Foster, B.

Brabazon of Tara, L.

Kimball, L.

Brougham and Vaux, L.

Kinloss, Ly.

Butterworth, L.

Kitchener, E.

Caithness, E.

Lauderdale, E.

Cameron of Lochbroom, L.

Layton, L.

Carnegy of Lour, B.

Lindsey and Abingdon, E.

Cathcart, E.

Long, V.

Coleraine, L.

Lucas of Chilworth, L.

Colwyn, L.

Macleod of Borve, B.

Craigavon, V.

Marley, L.

Craigmyle, L.

Maude of Stratford-upon-Avon, L.

Davidson, V.

Denham, L. [Teller.]

Merrivale, L.

Drumalbyn, L.

Middleton, L.

Elliot of Harwood, B.

Milverton, L.

Elliott of Morpeth, L.

Mottistone, L.

Elton, L.

Mowbray and Stourton, L.

Fortescue, E.

Munster, E.

Fraser of Kilmorack, L.

Newall, L.

472

Noel-Buxton, L.

Strathclyde, L.

Norrie, L.

Sudeley, L.

Orr-Ewing, L.

Swansea, L.

Perth, E.

Swinfen, L.

Platt of Writtle, B.

Swinton, E. [Teller.]

Portland, D.

Trumpington, B.

Rankeillour, L.

Vaux of Harrowden, L.

Renwick, L.

Vickers, B.

Rodney, L.

Vivian, L.

St. John of Bletso, L.

Ward of Witley, V.

Sandford, L.

Whitelaw, V.

Shannon, E.

Young, B.

Sharples, B.

Young of Graffham, L.

Skelmersdale, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.48 p.m.
Clause 9 [Regulations may apply Part II to representation]:
The Deputy Speaker (Lord Hayter): My Lords, I have to point out that if Amendment No. 9 is passed I cannot call Amendments Nos. 10 and 11.
[Amendment No. 9 not moved.]
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 10:
Page 7, line 23, leave out ("section 8") and insert ("sections 8 and 10(2) ").
The noble and learned Lord said: My Lords, for the convenience of the House I refer also to Amendment No. 11. These two amendments delete the power under which it might have been possible for the Secretary of State to confine assistance by way of representation to those in receipt of supplementary benefit or family income supplement. The amendment therefore takes account of the criticisms which were voiced by noble Lords who spoke against this provision in Committee. I beg to move.
Lord Morton of Shuna: My Lords, if I may, I speak also to Amendments Nos. 10 and 11 in congratulating the noble and learned Lord the Lord Advocate for having dealt with the difficulty. I support the amendment.
On Question, Amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 11:
Page 7, line 26, leave out from ("prescribed") to end of line 28 and insert ("and such modification of the financial limit under the said section 10(2) may substitute different sums in relation to different proceedings or stages of proceedings.").
On Question, Amendment agreed to.
Clause 10 [Financial limit]:
Lord Morton of Shunahad given notice of his intention to move Amendment No. 12:
Page 8, line 3, at end insert ("and
( ) the Board shall provide a method of appeal against the limit imposed in any case.").
The noble Lord said: My Lords, this amendment is designed to provide that there should be some method of appeal or review of the decision of the board as to the financial limits for advice and assistance. As I understand it, it is the intention of the Secretary of

473
State to cover this point by regulation. I shall not move the amendment.
[Amendment No. 12 not moved.]
Clause 14 [Availability of civil legal aid]:
Lord Morton of Shunahad given notice of his intention to move Amendment No. 13:
Page 10, line 22, at end insert—
("( ) The Board shall provide a method of appeal against the refusal by the Board of Civil Legal Aid.").
The noble Lord said: My Lords, this amendment covers the same point, and I shall not move it. Amendment No. 14 is a separate point.
[Amendment No. 13 not moved.]
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 14:
Page 10, line 23, leave out subsection (3).
The noble and learned Lord said: My Lords, in speaking to this amendment, I should like also to refer to Amendment No. 45 which is consequential. The amendment removes the power of the Secretary of State to prescribe factors to be taken into account by the board in determining whether it is reasonable for a person to receive civil legal aid. We accept that there would be difficulties in putting a gloss on what constitutes reasonableness. The reasonableness criterion remains. I am confident that it will be applied by the board in a sensible and consistent manner. The later amendment is simply consequential. I beg to move.
On Question, amendment agreed to.
Clause 17 [Contributions, and payments out of property recovered]:
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 15:
Page 11, line 31, after ("paid") insert ("out of disposable income or capital.").
The noble Earl said: My Lords, I find Clause 17 slightly mysterious. It is not at all easy to see what the clause is getting at. It deals with the case of someone who is legally aided. But where his apparent income exceeds £2,255 or his capital £3,000, there appears to be an excess, the nature of which I do not know. I do not understand it. I do not know how the excess is decided.
Subsection (4) says:
"If the total contribution to the Fund made by a person in respect of any proceedings exceeds the net liability".
It is not clear to me what the net liability is. The subsection goes on:
"the excess shall be repaid to him".
I do not know who sets this. My main concern, however, relates to how it shall be paid. Subsection (5) states that it,
"shall be paid, in priority to any other debts, out of any property (wherever situate) which is recovered or preserved for him".
That means that if a man is having a contest about his house that someone may be claiming, and he is defended with legal aid, he may have to sell his house to pay the excess. That depends entirely on the cost of the proceedings. But it seems to me that that is carrying matters to an absurd degree. I suggest here
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that it should be made out of his disposable income or capital as laid down in Clause 42. I do not know whether that is the correct procedure. My real objection is that a person may lose the domicile where he is living. It is possible that he may recover the house but that the costs of the case will be such that he would lose it. That seems to me not only unjust but also quite absurd.
I am not saying that those operating this part of the Bill will not be people of munificent outlook or that they will be unkind. I am, however, saying that my amendment is perfectly possible. I suggest, with great respect, that my noble and learned friend should examine the matter. If my amendment is unsatisfactory, another could be proposed that does not make the excessive demands and, if I may say so, arbitrary demands contained in the Bill. I do not know how one reaches the net liability requirement, or who calculates the excess. But if the excess reached a certain point, the litigant—he may be a defender or a pursuer—could lose his house. He may, indeed, be defending his house and endeavouring to keep it against someone pursuing him in court.
I ask my noble and learned friend to look at this matter to see whether the words in the Bill do not go too far in giving power for payment in priority to any other debts—before the baker, the candlestick maker or anyone else, and including the rent. This goes back to the discussion that took place in Committee. It is a question of establishing to what extent one can say that it should be paid in priority over any other debt. I know that this relates to debts of recovery, but the recovery may be the house. I beg to move.
Lord Denning: My Lords, this is a problem that has arisen a great deal in England when a man gets legal aid, his costs are paid, and he wins. The costs that have been incurred on his behalf are a first charge on the money he receives. If it is a personal injury case and he gets £100,000, it is natural enough that the costs that have been incurred should be recovered. The real trouble arises when there is a matrimonial home with each side legally aided. Each side gets property recovered or preserved. The question arises of how far the cost should be a charge on it.
We have wrestled with this matter in England. All sorts of problems arise. It is not a matter, I believe, that can be resolved at this stage. I hope that it will be resolved in England. In those circumstances, it could perhaps be done afterwards for Scotland. At the moment, however, the law in Scotland remains the same as it is in England. It needs detailed examination and perhaps the introduction of regulations to make for a just situation.
Lord Morton of Shuna: My Lords, there is, I agree, a great problem that seems to be the same in England as it is in Scotland. It appears to me that the way to deal with it is to give the board discretion under some regulation or other.
Lord Cameron of Lochbroom: My Lords, I have listened to my noble friend with great care. I do not wish to traverse argument that has already been covered in Committee. I wish to make clear to my noble friend a problem that he has not perhaps fully

475
appreciated. Subsection (2) is intended to deal with how a person's contribution to the Legal Aid Fund is to be calculated. This can be done in two ways. First, he will only be asked for a contribution from income if his disposable income exceeds the figure set out there, and equally, so far as capital is concerned, if his disposable capital exceeds the figure set out. The words "disposable income" and "disposable capital" are defined in the Bill and covered by regulations.
Subsection (5) provides for the situation where there are sums remaining unpaid in respect of a person's contribution to the fund in respect of any proceedings. Very often, they are paid on a monthly basis. It may be that at the end of the litigation he has still not completed his payment of the contributions at which he has been assessed. Secondly, there may be the circumstance that the noble and learned Lord, Lord Denning, pointed out where the expenses against his account at the end of the day are greater than the amount that he has been called upon to contribute, but, as a result of the action, there has been property that has been recovered or preserved for him. What is provided here is that those sums remaining unpaid in respect of contribution of what is called the deficiency, by reason of his total contribution being less than the net liability of the fund on his account, are to be paid in priority to any other debts out of that property which is recovered either in proceedings or under any settlement that avoids proceedings or brings them to an end.
The main argument for retaining this—it is the position in both England and Wales and in Scotland at present—is that the scheme is not intended to place assisted litigants in a more favourable position than those who are fully able to pay the costs involved. We would not disturb the normal state of affairs, in which all litigants run a risk of their litigation being successful but not providing the expected benefit. That is where some difference is considered in raising an action against an assisted person. He has to take account of the financial consequences. This is very relevant where both parties are assisted.
7 p.m.
My noble friend's principal concern was in relation to the living house. Obviously I shall look at what my noble friend said. However, I am advised that when the assessment of contribution arises and the living house is the subject matter of the dispute, it would normally be excluded from the calculation of what is disposable capital for the purpose of sub-paragraph (ii). I am advised that that is done under the assessment of resources regulation.
My noble friend's concern arises in divorce proceedings in particular. I should say that in relation to that the Family Law (Scotland) Act, which will be brought into operation later this year, will give the Scottish courts a specific power to make an order for the transfer of property. Orders following divorce are at present in general exempt from the claims of the legal aid fund. It is intended that this practice should continue in relation to the new provisions of the Family Law Act.
I should have thought that it would be unusual for the house in which an assisted party lives to be
476
property recovered or preserved in non-matrimonial proceedings. Perhaps it could arise in a dispute between persons with a joint interest. In those circumstances, I would merely say that at the moment I am not persuaded that there is any general reason why the normal rules should not apply. For these reasons I cannot therefore suggest to your Lordships that the principle of this amendment be accepted.
There is a technical point upon the phraseology of the amendment itself. It would not seem to make sense if each of the proposals were to be met. But I have listened to what my noble friend has said. Perhaps I can consider the matter further in the light of his remarks, although I cannot suggest that there will be anything done in this Bill about the matter.
The Earl of Selkirk: My Lords, I am grateful to the noble Lord for what he has said. I think he should take note of what the noble and learned Lord, Lord Denning, said: that it causes great difficulty in England. Why should we write a new Act in Scotland which will cause equal difficulty? Surely it is for the intelligence of the draftsman and the noble and learned Lord the Lord Advocate to write a better clause which would not cause so much difficulty.
The noble and learned Lord is right: I am concerned with a comparatively narrow matter. But one may be recovering one's house. Someone may have a false title, and may be claiming this house. At the end of the day one gets it back. What happens then? One has to pay the lawyer. Then one comes to the wholly undefined matter of the excess. Who sets the excess? How is the excess determined? There is nothing in this clause to say how it is assessed. In spite of regulations there should be more precise provision as to how this matter is calculated.
The noble and learned Lord is right in saying that my chief concern is the question of the house, the tools of trade or the machinery. There may be many matters which one is recovering at law. In my opinion they should not be distrained on.
The noble and learned Lord has said that he will look at it. I am sure that he will do his best. I shall not press this further but will ask the noble and learned Lord to try to see whether a rather more watertight section can be put forward which does not have these "exceptional" qualities, where one does not have to use words such as "normally", or "unusually". That is no earthly use in law. The law should not allow for these exceptions. However, I shall leave it with the noble and learned Lord and shall expect some result. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Davidson: My Lords, this may be a convenient moment at which to adjourn this Report stage. I therefore beg to move that further consideration on Report be now adjourned, and suggest that we do not resume before 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Patents, Designs and Marks Bill [H.L.]
7.6 p.m.
Lord Lucas of Chilworth: 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.—(Lord Lucas of Chilworth.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD HAYTER in the Chair.]
The Deputy Chairman of Committees (Lord Hayter): I must announce that the published Marshalled List of Amendments has not been printed in accordance with the instruction of 6th March. Accordingly, photocopies of the correct list have been placed in the Printed Paper Office. But to avoid confusion the original numbering of the amendments has been retained in the Marshalled List which we shall consider.
Clause 1 agreed to.
Schedule 1 [Computerisation]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 4:
Page 4, line 11, leave out ("names, addresses and descriptions") and insert ("names and addresses").
The noble Lord said: This is a small but important amendment which will save a lot of time for practitioners and industrialists concerned with trade marks. The schedule is concerned with computerisation. The main object is to enable the registrar, the Comptroller-General of Patents, Designs and Trade Marks, to keep a register other than in documentary form. Therefore he can use a computer and those associated arrangements in information technology.
Hitherto it has always been the practice that anybody who applies for a trade mark should give his name and address and description. That has raised a number of difficulties. I shall not weary your Lordships with the difficulties. It seemed to me that "descriptions" could be omitted. Therefore, all that is necessary now is for an applicant to give his name and address. That will save a certain amount of time, expense and secretarial work generally. I beg to move.
Lord Lucas of Chilworth: I am most obliged to the noble Lord, Lord Lloyd of Kilgerran, for explaining the purpose of his Amendment No. 4. I think that I am right in saying that he was at the same time speaking to Amendment No. 5. His explanation is eminently satisfactory. We have no hesitation in accepting both these amendments, and thank the noble Lord for putting them forward.
Lord Lloyd of Kilgerran: I am very much obliged to the noble Lord the Minister. I omitted to ask the leave of the Committee to speak also to Amendment No. 5, which raises exactly the same point in a different circumstance.
On Question, amendment agreed to.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 5:
Page 4, line 14, leave out ("names, addresses and descriptions") and insert ("names and addresses").
On Question, amendment agreed to.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 6:
Page 4, line 21, at end insert—
("( ) A computer containing the register shall be maintained at the premises of the Company of Cutlers in Hallamshire, Sheffield.").
The noble Lord said: The amendment draws attention to the fact that the Company of Cutlers has for over 360 years been concerned with very valuable marks in the steel and associated industries, known as Sheffield marks. "Sheffield" is a registered trade mark and it is the only town whose name is registered as a trade mark in this country. This is not the place to deplore any action that the Government propose to take in future in regard to the arrangements for dealing with Sheffield marks under the care of the Company of Cutlers in Hallamshire as it has been going on for so many centuries. However, I wish to suggest that in the circumstances a computer containing the register should be maintained at the premises of the Company of Cutlers in Hallamshire.
No doubt the Government will be dealing in a later Bill with the question of the methods of administering marks under the Company of Cutlers' regime. They will be considering installing computers, and various nationwide terminals will be searched to give facilities in this regard and will be under consideration by the Government. Quite clearly Sheffield is geographically and historically an ideal position for setting up at least one computer containing the register.
It has been the function of the Company of Cutlers to look after these trade marks and to receive the applications. However, that is not the point with which we are concerned at present. We are concerned with whether or not the Government will give some consideration to the installation of a control computer containing the register in Sheffield. Unemployment is very high in that area and to remove that function from the Company of Cutlers will, I am advised, cause quite unnecessarily a loss of jobs in that area. However, the installation of a computer in Sheffield would be from a geographical and a historical point of view a good idea. I beg to move.
Lord Lucas of Chilworth: In responding to the noble Lord, Lord Lloyd of Kilgerran, it may be helpful for me to remind the Committee that when I spoke during the Second Reading debate on the Bill I indicated that one reason the provisions relating to the registers were being amended was to free the Patent Office of the requirement to keep the registers at a particular place and thus a computerised register could be kept wherever was most convenient to the Patent Office. Therefore, it would clearly not be appropriate to replace that with an obligation to maintain a computer in Sheffield.
We recently announced that the Patent Office is to become a statutory non-departmental body subject to commercial constraints. The question of whether there should be regionally based registers and, if so, where they should be located, should be a matter for the board of management of the hived-off Patent

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Office. It would not be right in advance of that change of responsibility to saddle the office with a statutory obligation either to maintain a computer in Sheffield or, if that is what is envisaged, to adapt its system to allow access from remote terminals. Incidentally, it has been estimated that such an adaptation may cost many hundreds of thousands of pounds.
The noble Lord has indicated that the computer envisaged by this amendment would be in an independent unit maintained by the Company of Cutlers, presumably at is own expense. That is a matter for the Company of Cutlers. It does not need legislation to allow it to do that.
I should perhaps add quite briefly that the Mathys Report of British Trade Mark Law and Practice recommended in 1974 that provisions of the Trade Marks Act 1938 which relate to the Sheffield register and the Company of Cutlers should be repealed at a suitable opportunity. The Government fully understand the dismay with which this is viewed by the Company of Cutlers which naturally takes proper and considerable pride in its long association with the registration of trade marks. However, the report noted in 1974 that those provisions were more of historical rather than industrial interest and the Government have therefore decided to do this in legislation which will be necessary in order to hive off the Patent Office. It should be emphasised that the current position of the Sheffield register is not affected by the Bill before your Lordships this evening.
With that explanation I have to say that the Government must resist the amendment. Notwith-standing the affection with which the Company of Cutlers is held in Sheffield and the point that the noble Lord made with regard to the current employment position in Sheffield which is not unknown to us, I hope that the explanation which I have given will enable him to withdraw the amendment.
7.15 p.m.
Lord Bruce of Donington: I have listened carefully to the short explanation given by the noble Lord, Lord Lloyd of Kilgerran, and to the Minister's reply. I must say that I remain to be convinced that the Government ought to resist the amendment. It may well be that over the whole sphere of activities commercialism should finally prevail and the dictates of making profit out of these operations should hold sway over all other considerations. However, I am not always sure that that is the best guide.
The noble Lord was kind enough to pay tribute to the expertise that is exercised by the Company of Cutlers and that, I think, is probably well earned. However, there is a tradition in the Company of Cutlers with which I am not familiar but which I am quite sure exists, and I think that the Government should think more than once before they do anything to damage what may to some seem to be a relic of the past—a past which in many cases has been quite magnificent and which has performed enormous service. Therefore, personally speaking—and I cannot commit my colleagues on this because I have not discussed it with them—I am in general sympathy with the amendment and I shall be required to be convinced a great deal more before I oppose it.
Lord Mottistone: Surely the great thing about a computer is that it does not matter where it is located; if you operate one, it is the terminal equipment that matters. It is understandable that the cutlers want to keep the link which they had previously, but it can be only a tenuous link now that we have moved on from quill pens and large registers, which no doubt was the position when they started. Even the cutlers, if they were given a particular task in this area, may not want to have the computer in Sheffield; it may be more convenient for them to have it somewhere else in the country. It seems to me that this particular amendment is not wholly suited for the type of purpose which the noble Lord, Lord Lloyd of Kilgerran, has advanced. There may be some other way of retaining a link apart from trying to locate the computer in a particular place. That does not seem to me to be appropriate, whatever courses we may consider for retaining the longstanding historical connections of the Company of Cutlers.
Lord Lucas of Chilworth: This might be the appropriate time for me to flesh out a little the point which I was trying to make. I am obliged to my noble friend Lord Mottistone, who so succinctly put his finger on the major point; namely, that in this modern technological age flexibility is the prime concern. It may be of interest to the Committee to know that the repeal of the Sheffield marks provision was originally put on the cards prior to the 1938 Act.
Of course we understand that the move we are making may be a disappointment to the Cutlers Company. Their association with the registration of trade marks is a long one. It goes back to 1624. But, as I have indicated, the Mathys Committee in 1974 considered whether this position served a useful purpose, and concluded at that time that it did not.
The number of applications a year that the Cutlers Company now receive has not exceeded 20 for some considerable time. In several recent years it has in fact been in single figures. The fee income to the Cutlers Company is therefore extremely small. An application fee is only £54, so 10 or 15 applications are not going materially to affect the fortunes of the company.
Those are two of the principal reasons. Of course the ending of a long tradition is always a matter for regret. The present link between the Cutlers Company and the Patent Office cannot, however, be justified on practical grounds. With that additional information, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Lloyd of Kilgerran: I am grateful to the noble Lord, Lord Bruce of Donington, for his approach to this matter, which is wholly in line with the approach I made in my submissions. I am grateful to the noble Lord, Lord Mottistone, for bringing forward a practical suggestion that possibly instead of having the computer in Sheffield, as I am asked to put to the Committee, there may be some other way of creating a link which preserves to some extent this prestigious arrangement associated with a prestigious trade mark.
The noble Lord the Minister has been helpful in reminding me that there will be an opportunity for consideration of regionally-based registers in due course. Therefore, I do not think I should be tempted

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at this hour of the evening to go into the decision or recommendation of the Mathys report of over 11 years ago. That is a discussion that we can have more appropriately when the Bill comes along which, as the noble Lord the Minister said, is to hive off the Patent Office. I have heard what the Minister has said, and in these circumstances I reserve the right to bring back the matter later if I am so advised. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 7:
Page 5, leave out lines 1 to 4.
The noble Lord said: I beg leave to move Amendment No. 7, and I ask leave of the Committee to speak to Amendment No 21. This raises an important matter. The importance of the matter has been recognised by the advisers to the noble Lord the Minister, and I should like to say how grateful I am for the assistance given to me particularly by Mr. Susman in this connection in discussing with me beforehand the kind of reply that might be given on many of these amendments.
As the Bill stands at the moment, Section 46 is to be deleted. That would be entirely wrong. Section 46 is the section which says:
"In all legal proceedings relating to a registered trade mark (including applications under section 32 of this Act) the fact that a person is registered as proprietor of the trade mark shall be prima facie evidence of the validity of the original registration of the trade mark and of all subsequent assignments and transmissions thereof".
That section enables the registration to be prima facie evidence of its validity as well as the ownership. In deleting Section 46 the Government have not, in the Bill as it stands at present, adequate wording to make that position of Section 46 perfectly clear. If Section 46 is omitted, then in order for a proprietor of a trade mark to establish the validity of the original registration, it would be necessary for more expense to be incurred.
In this connection there has been correspondence with the department arising from a friend of mine at the patent Bar, Mr. Morcom. It is his argument that I am putting forward to the Committee at the present time. I understand that the Government will sympathise with the approach I have made, and I believe that they will agree that Section 46 should be retained, and the passage at the top of page 5, subparagraph (8), deleted, leaving Section 46 in to explain the position in regard to registration and validity. I beg to move.
Lord Lucas of Chilworth: May I thank the noble Lord, Lord Lloyd of Kilgerran, for the remarks he made in connection with officials in my department? I am most grateful to him. I apologise to the noble Lord that I was not in the country at the time to discuss this matter with him.
As the noble Lord said, the new Section 1(8) of the Trade Marks Act 1938 provides that the register itself shall be prima facie evidence of anything required or authorised to be registered. The wording was adopted because it is used in similar provisions being re-enacted in the Designs and Patents Act. The new Section 1(8) is intended to have the same effect in practice as the existing Section 46, although cast in rather different terms.
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Several members of the trade marks Bar have expressed the view, as indeed has the noble Lord, that new Section 1(8) is not in fact equivalent to existing Section 46. The Government have reconsidered the question and believe these criticisms to be well founded. Therefore, I am in the happy position of advising the noble Lord and the Committee that we are happy to accept these amendments. I should like to thank the noble Lord for bringing this matter to our attention.
Lord Lloyd of Kilgerran: I am grateful to the noble Lord the Minister.
On Question, amendment agreed to.
On Question, Whether Schedule 1, as amended, shall be the first schedule to the Bill?
7.30 p.m.
Lord Northfield: I want to say a few words on the schedule. As the noble Lord the Minister knows, there was on the Marshalled List until late last week another amendment to Schedule 1. As a result of (shall we say?) misunderstandings at any rate, the amendment was taken off the Marshalled List. I shall be proposing, unless the Minister says a few helpful words this evening, to return to this matter at Report stage.
The matter concerns the effect of the licences of right provision found in the 1977 Act on the pharmaceutical industry. I am not going to develop my case in the absence of the amendment. I shall simply say, in case it tempts the Minister to say something helpful this evening, that this was an amendment which, as he knows, was pushed through the other place without any debate or explanation in the late stages of the 1977 Act.
When it came here, nobody spotted its effects, and nobody explained it here. It is only in the past couple of years or so that the mischief of the amendment, now part of the Act, is being felt. It is a mischief of some considerable importance. It was a side door to return to compulsory licensing which this Chamber, on my own movement in 1977, had deleted anyway. It was a half-way house back again. We did not understand what the amendment meant when it reached us here.
There are no guidelines for the comptroller in exercising the powers of licence of right. There is none in any competitor country. The effect of the present Act is that any copyist can demand a licence of right in the last four years of any patents filed between 1967 and 1978. This is causing an enormous mischief. It is now in the courts; it is before the comptroller; it is in the House of Lords and this House has sent it to the European Court. I shall not develop this further, but the fact is that the Government are sympathetic to getting rid of it. The question is: how soon? I submit that there is no time like the present. There is no reason why this Bill should not be quickly adapted to make this amendment the law concerning patents. If the noble Lord can help us now it might be helpful at this point and it would have some influence on what we do at Report stage.
There is one point on which I hope the Minister will be able to say something at Report stage, if not now. Some of the mischief could be undone now by the powers under Section 123 in the 1977 Act. I believe

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that under that section the Minister can give guidance to the comptroller for the exercise of his powers in this respect. If the Government intend to repeal this, or will promise to do so, it would be helpful if in the meantime they gave some guidelines to the comptroller to help to undo much of the mischief.
I have done my duty by raising the matter. I am sorry that through misunderstanding the amendment was withdrawn from the Marshalled List. I should have fought it tooth and nail this evening if it had not been withdrawn. I give notice that I shall want to return to it at some length at Report stage unless the Minister can give such assurances tonight that I shall not need to do so.
Lord Lloyd of Kilgerran: The noble Lord, Lord Northfield, has emphasised several times that the amendment was withdrawn as a result of a misunderstanding. I think I should dilute the view that that gives to the Committee, because I deliberately put down the amendment and deliberately had it withdrawn, for a very simple reason. I had been informed by a colleague from the other place that all these matters were under discussion with the Minister. It did not seem to me appropriate that matters of such great importance as licences of right should come within the ambit of a small Bill such as this, narrow in its consequences and its functions. That was my reason. There was no misunderstanding. It was a deliberate action on my part, and if I have disappointed the noble Lord, Lord Northfield, I am very sorry.
Lord Northfield: I think the misunderstanding was that the noble Lord, Lord Lloyd, thought that I would not be here this evening, and therefore he thought he had better withdraw it in case I was not here to move it in his absence. I am saying that that was the basic misunderstanding. I bear no grudge towards my noble friend and I am more anxious to hear what the Minister has to say.
Lord Lloyd of Kilgerran: I should supplement that by saying that there was some difficulty in knowing where either the noble Lord, Lord Northfield, or I would be when, through the usual channels, it was arranged when this Bill would be taken. There was much co-operation with regard to fixing a time suitable to both of us. Happily, it has been convenient.
Lord Bruce of Donington: The amendment that has been withdrawn attracted my attention when it appeared on the Marshalled List. I have taken the opportunity to investigate some of the issues that lay behind it. My noble friend will forgive me if I say that I am naturally suspicious if somebody refers to a mischief and if it is said that the Government are considering sympathetically rectifying such mischief. My political instincts suddenly become acute.
It is only fair to say that certain issues are raised by the amendment that has been withdrawn. Perhaps I may particularise on them a little without enlarging the scope of the debate. They are matters relating to the pharmaceutical industry and concern the pharmaceutical giants and, in the past, in relation to a
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very limited area, some smaller competitors who have been able to produce at a far lower price with consequential reductions, it is said (and I still have to verify this) to the expenditure on the National Health Service. From my point of view, I should like to investigate the matter further before I pass an opinion on it.
My intervention therefore is to say to my noble friend, to the noble Lord, Lord Lloyd of Kilgerran, and to the Government that I give notice that if this matter is raised at a later stage we may take a perhaps more active part in this debate than the non-controversial terms in which it is generally expressed justify for the purpose of this Committee.
Lord Lucas of Chilworth: It is not for me to come between the noble Lord, Lord Northfield, and any of his colleagues. I resist the temptation tonight. I have some sympathy with what underlies the remarks of the noble Lord, Lord Northfield—he was kind enough to discuss this with me a week or so ago—and I shall study carefully what he said about this matter in 1977 as well as this evening. On the other hand, the noble Lord, Lord Lloyd of Kilgerran, had this about right. The noble Lord, Lord Bruce of Donington, expresses instincts which suggest to me that we might enter into a controversial area.
Let me tell the Committee how we see the position at present. My right honourable friend the Secretary of State for Trade and Industry said last autumn to representatives of the industry that he would consider a repeal if they could demonstrate that there had been a significant erosion in this useful patent life since the existing legislation was passed in 1977. The Government are satisfied that the industry has demonstrated this. We are therefore prepared to introduce legislation having this effect.
However, this Bill is not the place for such a measure. As the noble Lord, Lord Lloyd, said, this Bill has a very limited scope and is, or has been up to now, non-controversial. Allowance has been made for it in the parliamentary timetable on this basis. We do not feel that the subject that the noble Lord, Lord Northfield, has raised is germane to the limited purposes of this Bill; and, as the noble Lord, Lord Bruce, indicates, there might be some controversy over it. Its inclusion therefore might cause problems for the progress of this Bill. The noble Lord, Lord Lloyd, recognises that. Perhaps the noble Lord, Lord Northfield, will not recognise it. He shakes his head in acknowledgment.
We announced that we intend to implement the legislation providing for service marks registration on 1st October this year. That is contingent on the passage of this Bill. Undue delay could therefore prejudice that date being met.
There are a couple of other reasons; there are more than a couple, but two spring to mind. There is an important policy point to be decided; namely, what transitional arrangements should be made. That is a point that I suspect the noble Lord, Lord Bruce, would like to raise. I cannot tell him, because we have not provided for that in this Bill. The Bill before the Committee would be prejudiced. I ask the noble Lord, Lord Northfield, to consider carefully and read

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tomorrow what we are saying in Committee this evening. I am sure that he will.
I should like him to know that the Government are prepared to legislate on this subject in the next relevant Bill. It has been announced that legislation will be introduced in due course to implement the decision which has been announced already to make the Patent Office a statutory non-departmental body and for other matters connected with intellectual property. The Government consider that this would be a suitable vehicle and are prepared to undertake to include in it provisions to repeal the provisions relating to licences of right for 1949 Act patents for pharmaceutical products. With that I hope that the Committee this evening and the House when it resumes its consideration of the Bill at report stage will leave the matter until a much more appropriate time when we can consider it. This is a matter of significant importance, but it is not without its difficulties and controversies.
Lord Bruce of Donington: May I ask the noble Lord whether it is the Government's intention to produce a White Paper on this aspect of the matter so that there may be some discussion about it before the Bill itself comes out?
Lord Lucas of Chilworth: I am informed that in another place an announcement is being made today, I think, in Answer to a Written Question, that a White Paper is to be published tomorrow. I think this may help noble Lords.
Lord Northfield: I am grateful to everyone who has spoken and particularly to the Minister both for talking to me last week and for his kind remarks this evening. I shall, of course, consider what to do before Report stage but, if I may say so, during a very long time in Parliament I have heard Ministers year in and year out saying that now is not the time to rock a particular boat. We have often rocked the boat, or so Ministers thought, and it had no effect whatsoever. A Bill has steamed on its way and the apparent difficulties have been quickly overcome once Parliament has been very tough and stated its desire. So I cannot accept that this will in some way delay this Bill. It is a very short amendment that is needed and in my view it would not take long to debate.
But there is a further point. I think that there is a danger in leaving it any longer—and one of the main companies involved in this copying trade are not really developers of drugs; they are simply copyists who import the material from abroad and take advantage of the forumula which has been worked out by research here or by the company owning the patent. One of the difficulties is that there are now filed applications for 30 of these licences on major drugs—at least a dozen of the most important drugs in everyday use in medicine today. What is having to happen, because there are no guidelines in the Act, is that all this is now having to be dragged through the courts. It is court-made law; it is having to go to the European courts to see how they feel about it all. At the end of the day, when all this money has been spent apparently in the next year, in the next 18 months or two years—for goodness knows when the Government
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will legislate—the Government will come along and say, "It all should not have happened; we should have repealed it. We have always been intending to repeal it".
Why then should we go through all this time of high and escalating legal costs, confusion and deterrence to the industry, putting the British pharmaceutical industry at a disadvantage compared with other competitive countries: for no other country has this situation. Why should we go through all that, if, in any case, the Government want to repeal it? Is it not better to seize the opportunity of a short amendment to the Title to this Bill, a very short amendment and a very short new clause? That is my position and I stand by it for the moment, though with great pleasure and many thanks I shall consider what the noble Lord has said this evening.
Schedule 1, as amended, agreed to.
Clause 2 agreed to.
7.45 p.m.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 1:
After Clause 2, insert the following new clause:
("Communications with trade mark agents.
.—(1) Any communication with a trade mark agent concerning intellectual property rights shall be privileged from disclosure in the same manner as a communication concerning such rights with a solicitor of the Supreme Court.
(2) In sub-paragraph (1) above a reference to a trade mark agent shall be a reference to an ordinary member of the Institute of Trade Mark Agents or a list of Trade Mark Agents controlled by the Registrar of Trade Marks.").
The noble Lord said: In order to revert to the atmosphere of non-controversiality may I say I feel that it is rather a record that, of five amendments that I have produced this evening, four have been accepted by the Government?
Noble Lords: Hear, hear!
Lord Lloyd of Kilgerran: I am very much obliged for the great applause for our achievement from these Benches. But I think my luck is coming to an end on the next amendment. This is a very important amendment; it is quite a simple thing. It is to give patent agents and trade mark agents the same kind of privilege as solicitors have now in proceedings and in matters of consideration of problems arising from intellectual property. Privilege means that the documents, the letters passing between the parties, cannot be disclosed, cannot be discovered, as we say. You can resist discovery of documents; that is to say, the official way of extracting documents from the other side in a contest can be resisted if you use a solicitor.
In these modern days patent agents and trade mark agents have a very important function, particularly in regard to the creation of wealth. I am not exaggerating. Patent agents and trade mark agents are very close to industry. They understand what is happening and internationally they are respected for their knowledge. Many of them are very well experienced in engineering and in science and, therefore, it seems (to use the words of a learned judge in a recent decision, Mr. Justice Nourse) to be perverse that patent agents and trade mark agents should not have the same protection from discovery of their documents as have solicitors.

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I am always very reluctant to speak about a case in which I have been involved but I can tell it in general terms. I was appearing for a very small company in the electronic field. We thought we had a very good case and we wrote to the trade mark agent about it. The trade mark agent then replied and asked his clients certain things, entered into a lot of correspondence, and then it went to court. We asked for discovery. The trade mark agent had to disclose all the correspondence. One of the letters he disclosed was a personal letter to the managing director of the company, a very large company, to say, "You have got a very poor case here. They are bound to win if it comes to court. If you let me have £500, I will frighten the pants off this small firm".
Naturally, when that document came up we took every advantage of it and got a very good settlement for the small firm against the large one. That was a bit of luck for my clients. But it is wholly wrong when a trade mark agent is being asked to advise that he has to say to the client, "Do not go on any further. If there is going to be any trouble, we must bring in a solicitor". Therefore, it increases the costs of already very expensive litigation and considerations in intellectual property unless patent agents and trade mark agents have full protection by way of discovery.
I must also point out that trade mark agents and patent agents have audience before certain courts. I shall not waste your Lordships' time by indicating which courts; but they are able to present cases to certain courts. In a recent case this matter as to the legal professional privilege of trade mark agents was raised before Mr. Justice Nourse and it is reported in Reports of Patent Cases, 1983, page 131, as follows:
"At various stages in the dispute, the defendents were represented not by their solicitors but by their trade mark agents who acted in the same way as solicitors would have acted if they had been instructed".
The learned judge, Mr. Justice Nourse, pointed out that for many years it had been the practice of both patent agents and trade mark agents to conduct proceedings in the Patent Office and the Trade Marks Registry without the intervention of solicitors. Then he goes on to say:
"It is with very great reluctance that I come to the conclusion that there is no professional privilege for the trade mark agents in this case".
The circumstances which caused his reluctance were that he relied upon two cases—one of 1881 and another of 1886—where the circumstances of trade and commercial dealing were so completely different. He went on, and I quote,
"I see great force in that submission".
The submission was that the trade mark agents should have protection from discovery. He went on:
"It seems odd and perverse, that if a trade mark agent was entitled to advise a client in relation to legal matters and to conduct certain legal proceedings on his behalf, the same privilege should not apply as would certainly apply in a case where the advice was being given and the proceedings were being conducted by a solicitor".
This is a probing amendment and I do not propose to force it to a Division, but it is a matter to which due consideration should be given by the Government. In speaking to this amendment, I would ask the leave of the Committee to speak also to Amendment No. 2,
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and perhaps I should say that both these amendments are somewhat similar.
Amendment No. 1 is limited to the position of a trade mark agent. Amendment No. 2 refers to both patent agents and trade mark agents. I should say to the noble Lord the Minister that I think that second amendment, which deals with both patent agents and trade mark agents, is defective in one respect. There is no reference in that amendment as it stands to the position of patent agents in regard to discovery as now set out in the evidence Act of 1968 and in the Patents Act of 1977. Therefore I would put the point to the Minister that better wording should be considered for a future occasion; but it is a matter of very considerable importance. I therefore move this amendment in the hope of getting a sympathetic answer from the Minister. I beg to move.
Lord Bruce of Donington: I view with some sympathy the arguments that have been put forward by the noble Lord, Lord Lloyd of Kilgerran. In general, I would support what he said, for two reasons. First, I believe that his arguments stand on their own feet as being meritorious and deserving of the serious consideration of your Lordships' Committee. Secondly, I must confess that I support it in order to protect my own position when your Lordships come to discuss the Financial Services Bill and such Bills as I believe the Government intend to bring in, covering the more rigorous prosecution of fraud.
In many ways, and within those two contexts, the role of accountants is analogous to that of the patent agent and the trade mark agent. We in the accountancy profession have to advise clients on highly confidential matters—every whit as confidential as those communications that pass between a solicitor and his client. Indeed I have only to speak of the whole field of taxation, where I think it is common knowledge that, although legal cases are processed through the courts by solicitors and by members of the Bar, the whole essence of a given tax case of any complexity is mainly a matter for the accountant; and detailed, highly confidential documents must pass between the accountant and his client.
In order to protect myself, therefore, so that the noble Lord may not say when these Bills come before your Lordships, and on the basis that he will be in charge of them, "You didn't agree in principle with the privilege when it came through on the Patents, Designs and Marks Bill", I think I ought to lay down a marker now. However, I would emphasise that irrespective of the likely future position of my own profession when it comes to those other Bills, I entirely support what the noble Lord has said this evening. Were he minded to press the matter further on Report, I might consider asking my colleagues to marshal their forces in his support.
Lord Lucas of Chilworth: I was fairly happy when the noble Lord, Lord Lloyd, in moving the amendment, opined that his luck might have run out; but I am not quite so confident in the light of the remarks made by the noble Lord, Lord Bruce of Donington. I shall in fact have to resist this amendment for these reasons, notwithstanding that I recognise the importance of members of the profession

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to which the noble Lord referred, particularly in commercial and industrial matters.
The Government have been aware for some time of the concern felt in the professions on the subject of privilege. As the noble Lord kows, I think, we are consulting both the standing advisory committees. Also, the Bar and the Law Society are represented on the committees. So at this moment we are still considering the question and we would resist the matter being dealt with in this Bill. Apart from the fact that a decision on whether to legislate would be premature, as I explained to the noble Lord, Lord Northfield, the amendments would extend the scope of the Bill. They are also likely to be extremely controversial.
Privilege of communication is not conferred lightly, and its extension to patent agents is exceptional. The profession of patent agent is subject to supervision, as is that of a barrister or solicitor, whereas that of a trade mark agent is not. Also, the patent agent is not subject to the same supervision when doing non-patent work. I believe one must think more than once before extending the privilege to an unsupervised profession. There might well be notice given that there are indeed other professions which may claim the same privilege, and I take very much to heart what the noble Lord, Lord Bruce of Donington, said about legislation in the future. However, my job is of course to deal with legislation tonight.
The noble Lord, Lord Lloyd, indirectly referred to the 1982 High Court case in which the learned judge used the phrase that he found it "a little odd and possibly perverse" that if a trade mark agent is entitled to advise a client in regard to certain legal matters and to conduct certain legal proceedings on his behalf, the same privilege should not apply, and so on. The noble Lord will no doubt recall that in 1984 in the Court of Appeal, the higher court, in the Wilder pump case, it was decided that the court found it not at all odd or perverse. They indeed found it impossible to say that there was any public interest in extending it.
I do not want to repeat the argument about putting this Bill in jeopardy in another place. I would prefer to be very much more direct. While I and my colleagues will reflect carefully on what has been said by both noble Lords, I have to say that I can hold out little hope for a change of heart during the passage of this Bill.
8 p.m.
Lord Lloyd of Kilgerran: I am very much obliged to the noble Lord the Minister for his careful reply to my submissions. May I, if it is not contravening any Standing Orders, ask the noble Lord, Lord Bruce of Donington, in view of his support of my position on privilege for trade mark agents and patent agents, if at any time in the future he feels he has to raise the question of privilege in regard to accountants, he should remind me that he has supported me on this occasion.
I am fully aware of the problems which this question of privilege raises. However, there was an observation made by the noble Lord the Minister which I must contradict. I did not get the exact words, but the impression was given that the Institute of Trade Mark
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Agents is not an institute which has control over its members adequately. That is wholly wrong, to my knowledge. It has very considerable control over its members, and it runs examinations so that they can reach certain standards before they are qualified. This, of course, also applies to patent agents, and therefore I think that possibly I may have misunderstood the noble Lord when he was putting a little difficulty in the way that does not really exist in practice. Nevertheless, in view of what has been said I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Schedule 2 [Service Marks etc]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 8:
Page 9, line 6, after ("mark") insert ("or a mark").
The noble Lord said: This is a very minor matter. It is to insert after the words "trade mark" the words "or a mark". The word "mark" by itself is defined in the Trade Marks Act in Section 68, and it is used in Section 38 and other sections, such as Section 9(1), and also in Part III of this schedule to the Bill. It seemed to me, therefore, that where you are dealing with a trade mark it sometimes applies also to a mark being used, so it was just a minor matter to make it more consistent with the whole of the rest of the legislation that where the words "trade mark" are used in this particular case there should be added that the same conditions should apply to "a mark" as defined under the Trade Marks Act 1938.
Lord Lucas of Chilworth: I assume that the noble Lord, Lord Lloyd of Kilgerran, is speaking at one and the same time to Amendments Nos. 11 and 19 of this grouping.
Lord Lloyd of Kilgerran: I was not on this occasion. I see that a note has been circulated that Amendments Nos. 8, 11 and 19 should be taken together, but both No. 11 and No. 19 raise quite different points.
Lord Lucas of Chilworth: In that case I would have wished that the noble Lord could have advised me when we sent our traditional, conventional note out with regard to groupings. However, I will do the best I can. Perhaps before moving to this particular amendment I may make a comment on the matter that we were discussing with regard to the Institute of Trade Mark Agents during the passage of the last amendment, because the noble Lord made a specific point. It is true, of course, as he pointed out, that the Institute of Trade Mark Agents has articles, and so on, and has control over membership, but in fact that control is not statutory. The responsibility to which I was referring was a statutory responsibility.
The amendment that the noble Lord seeks to move in No. 8 is a little complicated, and is complicated a little more by virtue of Nos. 11 and 19. What I should like to say here is that at present Sheffield marks as trade marks for what are referred to as metal goods are dealt with, along with trade marks generally, in the Trade Marks Act 1938. The amending Act, the Trade Marks (Amendment) Act 1984, as it stands at present

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unamended by this Bill, will modify the 1938 Act so that it may also apply to service marks.
In most respects the 1984 Act does this by providing (in paragraph 1 of Schedule 1 to that Act) that, at each place in the 1938 Act at which one comes across a reference to goods, it is to be read as also applying to services. This, superficially, is how the provisions of the 1938 Act relating to Sheffield marks are to be read. This really does not make any sense at all, since the provisions refer to metal goods and to goods made of metal. The present position is, therefore, that no clear provision is made for Sheffield service marks.
Normally there are two ways in which one might deal with the matter. Either a form of wording could be found which created a service mark equivalent to Sheffield trade marks, or else these provisions could be specifically omitted from the 1938 Act in its application to service marks. The Government decided on the latter course for two reasons: first, it is our view that there is really no service mark analogy to a Sheffield mark, which is by its nature for goods; secondly, the Government have decided to implement the recommendation of the Mathys Report that the Sheffield Register should be discontinued. I referred to this in our discussions earlier this evening. Even if that decision were not implemented it would not be appropriate to expand the scope of the Sheffield Register.
Accordingly, therefore, the present Bill deals with this by amending Schedule 1 to the 1984 Act so that Section 38 and Schedule 2 to the 1938 Act are omitted when that Act is applied to service marks. Therefore, while there will continue for the present to be provision for Sheffield trade marks for metal goods, there will be no Sheffield service marks.
The proposed amendment, and indeed the other two as far as I can see, while purporting to provide for Sheffield service marks, do not in any way indicate how it would be decided to what services they applied. It might be as well if I re-emphasised here that the present position of the Sheffield Register is not affected by the Bill before the Committee tonight.
It is for those reasons that I invite the noble Lord to withdraw his amendments. I am, of course, quite prepared to consider the wider issues of the points he has made. Perhaps with that assurance he might feel able to withdraw so that perhaps we could discuss this and the matters which are relevant to Amendments No. 11 and 19 in the wider context before, perhaps, the next stage.
Lord Lloyd of Kilgerran: I apologise if I embarrassed the Minister in any way by taking Amendment No. 8 by itself. I only had the privilege of seeing the document which groups the amendments within about 10 minutes of coming into the Chamber. The Minister's reply will be helpful in shortening my speech on Amendment No. 11. In those circumstances, I beg leave to withdraw Amendment No. 8.
Amendment, by leave, withdrawn.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendments Nos. 9 and 10:
Page 9, line 16, at end insert—
("(aa) in the Printer's Imprint Act 1961, subsection (1) of section 1 (relaxation of requirements as to printer's imprint etc.);")
Page 9, line 40, at end insert—
("(gg) in the Supreme Court Act 1981, paragraph 1 of schedule 1 (causes and matters assigned to Chancery Division);").
The noble Lord said: Paragraph 1 of Schedule 2 specifies provisions which contain references to a trade mark and provides that each of those references shall include a reference to a service mark. Amendment No. 9 is concerned with printers' imprints. Under certain circumstances, a printer commits an offence if he does not include on matter printed by him his imprint—a statement of his name and his address.
The Printer's Imprint Act 1961 relaxed the requirements of an earlier measure, the Newspaper, Printers and Reading Rooms Repeal Act 1869. Section 1(1)(b) of the 1961 Act provides that nothing in the 1869 Act shall require a printer to include his imprint if the matter printed comprises a picture representing only a geometrical, floral or other design or a registered trade mark or any combination thereof.
As the law stands, the printer would not have that protection if the mark were, instead of a trade mark, a registered service mark. Amendment No. 9 accordingly causes the reference to include such a mark.
Amendment No. 10 is concerned with the distribution of business in the High Court. Paragraph 1 of Schedule 1 of the Supreme Court Act 1981 specifies subjects which are assigned to the Chancery Division. Subparagraph (i) specifies patents, trade marks, registered designs and copyright. Amendment No. 10 would result in matters and causes relating to service marks also being assigned to the Chancery Division. I beg to move.
On Question, amendments agreed to.
Lord Brabazon of Tara: I beg to move that the House do now resume. I think that we have gone as far as we can this evening with this Committee stage and we should return to it tomorrow.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Legal Aid (Scotland) Bill [H.L.]
8.13 p.m.
Consideration of amendments on Report resumed.
[Amendment No. 16 not moved.]
Clause 19 [Expenses out of the Fund]:
Lord Denning Lord Denning moved Amendment No. 17:
Page 13, leave out lines 1 to 5.
The noble and learned Lord said: My Lords, I had hoped to move this amendment in Committee but I had unavoidably to be absent. The amendment concerns an important question of justice in legal aid cases. At the moment there is great disparity of justice when one side is legally aided and the other is not.
I can illustrate that point with one or two cases. I should like to take a case where the plaintiff is an unassisted man and the defendant is legally aided. I

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shall give the case of Thews v. Reeves, which is reported at 1982 I Queen's Bench. I shall tell your Lordships what the position was. A small shopkeeper called Mr. Thews built up a good business and agreed to sell it to Mr. Reeves for £15,000. It was to be £5,000 down and £800 monthly payable by instalments. The £5,000 down was paid, but after a little while Mr. Reeves did not pay the instalments. Mr. Thews, unassisted, instructed his own solicitors and sued for the balance of the instalments.
Mr. Reeves, who had no real defence, alleged that Mr. Thews had been guilty of fraudulent misrepresentations about the profits of the business. He obtained legal aid. I suppose that the legal aid people relied on his word. By charging fraud against Mr. Thews, the case was conducted at great length. Mr. Reeves eventually lost. He had to withdraw his defence. Mr. Thews had to fight against a legally aided defendant. I think that he received £5,000 but had to pay his own costs of £8,000. He could not obtain his costs because Mr. Reeves had been legally aided. The judge said:
"Mr. and Mrs. Thews will no doubt ascribe the disastrous consequences of this successful litigation to what in modem jargon might well be described as the 'unacceptable face' of British justice."
As the law stands, when an innocent plaintiff sues a legally aided defendant with his own money and wins, he cannot obtain his costs. That has been criticised time after time, not only in that case but in earlier ones. The Lord Chancellor's Advisory Committee took the same view and, at paragraph 243, said:
"We continue to support broadening the provisions of the Act to permit successful planitiffs to receive costs from the fund."
That relates also to Amendment No. 18, which will be moved by my noble friend Lord Morton of Shuna. The limitation is that the proceedings must be instituted by the legally aided person. The recommendation was supported by all the judges, and by the advisory committee. They recommended that in such circumstances a man who is not legally aided and who wins against a legally aided defendant, who has all the funds of the state to back him, should have his costs paid by the legal aid fund when it loses. That is the case for the plaintiffs.
I now wish to deal with the much more common case when the plaintiff is legally aided and the defendant is not. The case I would quote is the case of Whitehouse v. Jordan. Mrs. Whitehouse was about to have her baby. She went into hospital at Birmingham and unfortunately there was a disaster during her confinement. The surgeon tried to pull out the baby. Unfortunately the brain was damaged in so doing. Mrs. Whitehouse sued the surgeon for negligence. She said that he had pulled the baby too hard and too long. She obtained legal aid to bring the case. There were medical men on both sides. Enormous expense was involved.
The case went to the Court of Appeal and the House of Lords. Mrs. Whitehouse lost, and the House of Lords said that the legal aid fund was to pay the costs because it had lost the case. But they could not make any order in respect of the court of first instance, because of the special provision that you cannot get costs against a legally aided plaintiff unless you can show substantial financial hardship. So the surgeon did not get any costs against the legal aid people in respect of the court of first instance.
Another example of that is where an Irishman called Mr. Kelly sued the British Transport Board. Mr. Kelly had had a cut on his head some years earlier and he afterwards had depression. He managed to persuade some doctors and lawyers that it was due to the negligence of the British Transport people. He carried the case on for, I think, six years but eventually it dropped. The judge said, in effect, that he was an obvious liar. The British Transport Board were involved in £8,000 costs and they said, "We ought to get that from the legal aid people."
Neither of those cases would have been started but for legal aid. They would have died a natural death and would not have been taken. But in neither case were the successful defendants able to recover costs, because of the provision that in a court of first instance you do not get costs against a legally aided plaintiff unless you show severe financial hardship.
The advisory committee considered that the law ought to be altered and liberalised. They said at page 237 of their report:
"The award out of funds in such cases should be a matter of judicial discretion, but the discretion should be made more generous by liberalising the severe financial hardship test of the present situation".
They went on to say:
"The Lord Chancellor's Office's legislative working party recommended that the test should be that the applicant would find it hard to bear his costs unless an order were made. We would regard this phrasing as the minimum legislation appropriate to the circumstances of the case".
So the advisory committee advised liberalising the position so as to enable defendants who successfully defended a case to get their costs.
I am afraid that the English law remains the same, but your Lordships will see that in my first amendment I want to strike out all the words about the unassisted party suffering severe financial hardship. I agree with the noble Lord, Lord Morton of Shuna, in his amendment that it should apply not only to defendants but to plaintiffs.
Then there is this very strange, new, liberalising provision in subsection (4). It is not in English law. It states:
"The provisions … regarding financial hardship may be modified, in their application to persons who are concerned in proceedings only in a fiduciary, representative or official capacity, by regulations made under this section."
I ask: what is a fiduciary, representative or official capacity? In that earlier case, were the West Midlands Health Authority being sued in an official capacity? I should have said that they were. If a chief constable is sued, if the Jockey Club is sued or if a committee is sued, all those people may be able to get their costs, but only by regulations made under this section.
We do not know what those regulations will come to. This provision about a fiduciary, representative or official capacity is entirely vague. I suppose that the trustees of a building or of a hospital would be covered by the word "fiduciary". I suppose that "representative" would cover trade unions. The words "official capacity" would cover a chief constable, a hospital authority or whoever it may be. But those words are very wide. Why should those bodies be in a position different from that of an ordinary company or individual? And it is all dependent on regulations.
I suggest that subsection (4) is much too vague, uncertain and unjust in its application, so I suggest that those first five lines on page 13 should be omitted, as well as subsection (4). It should be left to the discretion of the court, because paragraph (c) remains. That reads:
"in any case, the court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds."
That is what applies in the Court of Appeal and in the House of Lords. It can perfectly well apply to the courts of first instance, and in all these circumstances it enables the courts to do what is just in a particular case and not be hustled out of justice by the various provisions about severe financial hardship and the like. I beg to move.
The Deputy Speaker (Lord Ampthill): My Lords, I should remind your Lordships that if Amendment No. 17 is agreed to, I cannot call Amendment No. 18.
Lord Morton of Shuna: My Lords, I strongly support the amendment proposed by the noble and learned Lord, Lord Denning. It is obvious in the legal aid scheme that the legal aid authorities can only assess whether somebody has probable cause on the basis of the written documents provided to them. In certain cases, they may be provided on a false basis. The person may be putting forward a false case and, perhaps, getting somebody to support it, and there is no way that the legal aid authority can assess whether it is a genuine or a made-up case. But if it is a made-up case, the person on the other side of the litigation can suffer very extreme hardship, if he is just beyond the limit of legal aid. Yet as the provisions stand, a person can get no relief at all in a court of first instance unless the proceedings were instituted by the legally assisted person.
Of course, there are many cases where, for example, the non-assisted person is forced to raise the action, perhaps to regain his own property, and then, as in the example cited, the expenses almost outweigh the value of the property recovered. It is a form of blackmail that is available to the assisted person against an unassisted person and I strongly support Amendments Nos. 17 and 19. Amendment No. 19, as I understand it, really follows No. 17, because if paragraph (b) were removed there would be no purpose in having subsection (4).
If I may, with your Lordships' permission, speak to my Amendment No. 18, that is perhaps rather less drastic than the amendment of the noble and learned Lord, Lord Denning. It is merely to allow the court to award expenses if the unassisted party, whether pursuer or defender, will suffer severe financial hardship, and I see no reason why there should be a restriction to cases started by the assisted person. Therefore, I strongly support the amendment.
Lord Cameron of Lochbroom: My Lords, this amendment extends a point which I think we discussed as a result of an amendment by the noble Lord opposite in Committee. I have considered what was said at that time and I accept that difficult cases will always arise, where one party to proceedings is
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legally assisted and the other is not. But I regret to say that I must adhere to my original point that, given the continuing need to make the best possible use of the resources available for legal aid, Clause 19(3)(b), which I think the noble and learned Lord, Lord Denning, accepted restates the law as it exists both in England and Wales and in Scotland, makes a proper distinction in allowing the possibility of a successful non-assisted defender obtaining his expenses from the fund—that is to say, one who has been brought into court by a plaintiff in England or a pursuer in Scotland—but not a non-assisted pursuer who, as I indicated in an earlier debate today, is aware that his opponent is legally assisted. He is made aware of that fact.
8.30 p.m.
It is the case, as the noble and learned Lord, Lord Denning, pointed out, that the restriction is in any event applied only to the expenses of first instance proceedings and not the expenses of any subsequent appeal. There is a clear logical reason for that because in relation to an appeal the assisted person has had to return to the legal aid authorities and they have been persuaded at that stage in the light of a decision of the court to support the legally assisted person. For that reason, there having been as it were a second bite, it is appropriate that in those circumstances where the individual has been legally assisted the appeal court should have the power to award defences in the case where the appeal has been successful against the legally assisted person, but only in relation to the appeal process.
I entirely accept that where the board therefore has supported a pursuer whose case is repelled by the court and the defence has caused severe financial hardship to the defender the court should in such cases have the power to order that the successful party's expenses be met out of the fund. For that reason I cannot accept the limited amendment which the noble Lord opposite has down in his name. But I accept that the amendment of the noble and learned Lord, Lord Denning, goes much further. It would abolish altogether the provisions that an unassisted person's expenses would be met only if he would otherwise suffer severe financial hardship. It would really mean that in all cases where he was successful he should be entitled to an award from the legal aid fund.
I make clear my sympathy with the position of many unassisted parties. It is only fair to say that this can arise even without the interposition of legal aid. But again I have to say that I do not think that the resources of the legal aid fund should be available in all cases, even where there is no real financial need.
For those reasons I regret to say that upon consideration of the matters that were discussed in Committee and being aware too of the amendments which the noble and learned Lord, Lord Denning, put down at that time I do not feel able to accept any of these amendments which would in any event put Scotland slightly out of line—more than slightly out of line—with the law South of the Border. I take the point made by the noble and learned Lord, Lord Denning, in an earlier debate today that if a fundamental change of this kind in relation to the matters of first charges were to be made, it ought to be done over both jurisdictions

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and not separately. It seems to me that that argument is equally good with regard to the present one. Accordingly, I cannot advise the House to accept this amendment and those consequential to it.
Perhaps I should say that the noble and learned Lord, Lord Denning, is absolutely correct in his speculation as to the meaning of subsection (4), in particular the words, "fiduciary, representative or official capacity". These words are not new. They appear in existing legislation in relation to both England and Scotland, more particularly in Section 15 of the Legal Aid (Scotland) Act 1967.
Lord Denning: My Lords, I am of course disappointed with the answer. We still have injustice being carried on in these cases. I was not referring to all cases. I was saying, let the discretion be in the judge—the same as in the Court of Appeal and the House of Lords. In all these cases let the discretion be in the judge whether the legal aid fund ought to pay the costs. They are the cause of all the litigation. They put the other side to all the costs and then they fail. Ought they not to pay the costs like any other individual? That is the simple point of justice. That is just and equitable. That is the first point. It has been stressed by judges in England, by the advisory committee and the like. That is in regard to England. I protested against it in England without any help from the noble and learned Lord the Lord Chancellor. They really want to save the cost to the legal aid fund: legal aid is becoming so expensive; so let us not put any more on it. In other words, money is going to count before justice.
This clause, whereby a person in a "fiduciary, represenative or official capacity", may be able to get his costs is new. That covers a multitude of people, but we do not know what they would be. So in Scotland there is this wide liberalising measure. I should like to have it in England. Mark you, I would extend the words "fiduciary, representative or official capacity" to cover pretty well everyone—all the health authorities and the like. With a little ingenuity we could make it a very good clause in England, but we do not have it there. My only plea is that we ought to know precisely what it means, and we do not.
But I see that I am struggling alone with no support and so I will not divide. I have just made my protest in the interests of justice. I shall not go further with the amendment.
Lord Wheatley: My Lords, if the noble and learned Lord will allow me, I shall give him some support.
Lord Denning: My Lords, I have even greater support here. Let us hear what the Lord Justice Clerk would say.
Lord Wheatley: My Lords, what is the reasoning behind the clause as it now stands whereby when a person gets legal aid and institutes proceedings the successful defender will be entitled to get money from the legal aid fund in respect of his expenses? The reasoning surely is this. If the legal aid organisation has been involved in financing the case by the pursuer and that case fails, in equity the successful defender should be entitled to payment out of the legal aid fund.
Lord Denning: That is right, my Lords.
Lord Wheatley: But, my Lords, should not exactly the same argument apply to the reverse situation where the unassisted person raises the action but the defender gets legal aid and pursues the action unsuccessfully in a court of first instance? He has been able to do that only because legal aid has been supplied to him. Surely if it is equitable in the first case, it should be equitable in the second case. If the expense has been incurred to the successful party through the intervention of the legal aid fund, in equity the successful party should be entitled to be considered for expenses against the legal aid fund. I say "considered" deliberately because, as the noble and learned Lord, Lord Denning, has pointed out, the underlying principle is the one in operation at the present time in Scotland where the proceedings as framed in the clause take place and the court has to decide in all the circumstances of the case whether it is equitable that expenses should be given to the successful defender and the extent to which these expenses should be given. This is a case where equity should rule over the possibility of being faced with some extra expense. The whole principle of legal aid will surely be made a nonsense of if one is to have two standards of equity.
Lord Denning: My Lords, perhaps I may add a few words with the leave of the House. As my noble and learned friend has just said, the question is: what is equitable? The subsection, without the other wording, would say that:
"The court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds".
What could be simpler and better than that? That is how I would leave it and would have it always left. However, as I have said, having regard to the forces that the noble and learned Lord has in reserve, it is probably not worth while having a Division. Therefore, I will not proceed any further and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 and 19 not moved.]
Clause 21 [Scope and nature of criminal legal aid]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 20:
Page 14, line 30, leave out subsection (2).
The noble Lord said: My Lords, this Amendment is to strike out Clause 21(2) of the Bill, which provides that:
"The Secretary of State may, by regulations … prescribe by reference to such considerations as appear to him to be appropriate any class or stage of proceedings in connection with which criminal legal aid shall or, as the case may be, shall not be available".
That subsection of the Bill provides at length for criminal legal aid being available subject to financial and other considerations.
It is not at all clear why the Secretary of State should have the power to make regulations to cut out from the provision of legal aid any class or stage of proceedings. Neither is it clear what is meant by a class of proceedings. Is that done to cut out road traffic cases, or cases in a certain level of court, or what? Does it mean that one may obtain legal aid up until the trial but not for the trial, or not until the trial but for the

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trial? If so, why? What is the point of that regulation? It appears to be another illustration of the way in which the Bill is framed—to make the board totally the pawn of the Secretary of State, required to do exactly what he directs it to do as to making legal aid available.
As far as I can see from that clause, the Secretary of State could cut out all legal aid. I commend the amendment to the House, unless there is some satisfactory explanation that we did not have at Committee stage from the Government side. I beg to move.
The Deputy Speaker: My Lords, I remind the House that, if this amendment is agreed to, I shall be unable to call Amendment No. 21.
8.45 p.m.
The Earl of Selkirk: My Lords, on the supposition that my noble and learned friend will not accept the amendment that the noble Earl, Lord Perth, and I have down following this amendment, I should like to support what has been said by the noble Lord, Lord Morton.
This Bill is chock-full of regulations. We can do very little about that except see whether the regulations, in the power that they take from Parliament, are in excess of requirements. Are these regulations really in excess of requirements? We must remember that we are using powers here that amount to a decree. I say that because it is extremely difficult to do very much about draft regulations.
In the first place, a statutory instrument is very difficult to understand. If one wants to understand a draft instrument then one has to go to the Library and read the Act of Parliament to discover what the draft means. Secondly, it tends to give rise to some constitutional issue. The other place passes it, and if we do not pass it there is a frightful row. That is quite different from amendments that we put into a Bill, which we can make when we want to. As far as a draft regulation is concerned, it presents great difficulties. Sometimes I think this is a matter that the Procedure Committee should examine, to see whether we could not deal with draft regulations a little more effectively.
I agree with what was said by the noble Lord, Lord Morton. What precisely do the Government have in mind? I do not know what the word "class" means in this context. Does it mean that certain classes of case should be omitted altogether? The word "class" usually applies to a category of people. It may be women, men, children, persistent offenders—all kinds of people. It could even mean the young unemployed. It might mean that the Government were taking power to exclude from legal aid unemployed persons. That would be within their power. I am sure that they do not intend that, but the provision could be used in that way. Do the Government want to take a power that is greatly in excess of what they really need?
The noble Lord has already asked what actions are to be excluded. Clause 22(1) states:
"Subject to regulations made under section 21(2) of this Act".
That means that any of the items shown in (a), (b), (c) or (d) of that subsection could be excluded under the
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power that the Secretary of State has in Clause 21(2). I ask the question: do the Government want that power? Is it necessary to have it? I do not believe that we should let the Government have powers that they do not want; it is important that their power should be kept as low as possible. If the Government say that they want that power, then let them have it—but they must make the case as to why such a power is necessary for the proper functioning of the Bill.
Lord Wheatley: My Lords, I too have difficulty in understanding what is meant by the phrase in subsection (2):
"any class or stage of proceedings".
That is vague, uncertain and indeterminate. As far as class is concerned, that could extend—could it not?—to limiting legal aid to summary commital proceedings as a whole or proceedings in the district court—about which I know something because, as Lord Justice Clerk, I presided over the central advisory committee of the justices of the peace and our main concern was the working of district courts.
According to subsection (2) of this clause, all work in district courts could be excluded from legal aid. If that is to be done—and it would be rather a draconian measure—then it should be done in primary legislation and not by means of regulations.
I have one further point to make. The noble Earl, Lord Selkirk, pointed out that under these provisions, the various items to which Clause 22 refers could be excluded simply by the passing of a regulation, subject to such considerations as appear to the Secretary of State "to be appropriate". So, at the whim of the Secretary of State, some of the provisions could be wiped out.
Finally, I ask the noble and learned Lord the Lord Advocate whether the provisions of Clause 23 are in any way qualified by the provisions of Clause 21(2).
The Earl of Perth: My Lords, I understand that, if this amendment is accepted, then the amendment that stands in the name of the noble Earl, Lord Selkirk, and myself will not be taken. I want to speak on Amendment No. 20 therefore, for the reason that I am very unhappy about it, whatever may be its merits or demerits.
I say that because the noble Lord, Lord Morton of Shuna, moved precisely the same amendment in precisely the same terms at Committee stage. That is an unusual thing to happen. I looked in the rule book and, sure enough, it is unusual—particularly when an amendment has been considered in Committee, put to a vote, and defeated. I do not mind about that. I was myself supporting the noble Lord when he was defeated, but I think we have to be extremely careful in this House not to bring up on Report in precisely the same terms an amendment which has been considered and voted upon in Committee. I say this with some hesitation, but it is important that we do not get involved in covering the same ground in Committee and on Report; otherwise, there will be no end to our debates. Therefore, I oppose the amendment for a reason quite different from anything else. It is because I do not think it is proper procedure to consider the amendment a second time.
Lord Cameron of Lochbroom: My Lords, as the noble Earl, Lord Perth, has just reminded us, we have already had an exhaustive discussion of the purpose of this clause in Committee. I simply remind noble Lords of the principal arguments which I have already put forward in favour of the present formulation of the provision. It is not a new provision. Indeed, the noble and learned Lord, Lord Wilson of Langside, reminded us of that in Committee. It is a repetition, with one slight modification, of a power which has been available to Secretaries of State since 1949 in connection with civil legal aid and for criminal proceedings since criminal legal aid was introduced in 1964. Your Lordships have had, therefore, experience of the way in which Secretaries of State have sought to use such powers, and it has never been in the sweeping manner contemplated this evening. I can assure your Lordships that that will continue to be the case.
One of the factors which we have had to take account of in drafting this Bill is the introduction of assistance by way of representation. That is provided for in an earlier part of the Bill—in Part II under the heading: "Advice and Assistance"—which continues from Clause 6 onwards. Within that, of course, there is provision for representation in certain circumstances in criminal proceedings. Therefore, some mechanism has had to be devised to make clear in which circumstances a person shall be entitled to assistance by way of representation and in which circumstances he will be entitled to criminal legal aid. The mechanism that has been chosen is that of regulations under Clause 21(2), which are coupled with regulations under Clause 9, which deal with assistance by way of representation. As your Lordships will see, in Clause 9(2) the regulations as far as ABWOR are concerned may,
"describe the proceedings (or stages of proceedings) in relation to which this Part of this Act shall so apply",
as well as,
"by reference … to the issues involved, to the capacity",
and in any other way.
This choice, already made in the Legal Aid Act 1979, provided for assistance by way of representation, but it has not, in fact, since that date been implemented. That Act inserted a new subsection (6B) in Section 1 of the Legal Aid (Scotland) Act 1967 which allowed the Secretary of State to prescribe by regulation criteria which determined when it would be more appropriate for a person to receive assistance by way of representation rather than legal aid. However, while regulations under Section 1 (6B) were subject to negative resolution only, these regulations under Clause 21(2) are subject to affirmative resolution. Previously the position was further clarified by the former subsection (3) of this clause, but that, of course, was deleted in Committee.
I can assure your Lordships that there is nothing sinister about the power under Clause 21(2). It simply permits—and I think with my explanation it gives content to the opening words of Clause 22—the stage up to which one receives ABWOR (that is, under advice and assistance) to be dealt with by earlier regulations, and the regulations under this part, which deal only with criminal legal aid, will provide for the point from which criminal legal aid can be made available.
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I think the noble Lord opposite suggested that this power might be used to remove criminal legal aid altogether. Indeed, I think the noble and learned Lord, Lord Wheatley, suggested that it could perhaps cut out proceedings in the district courts. But that is not how I read it, and certainly it is not the intention of subsection (2), which deals only with "any class or stage of proceedings". It does not, of course, deal with the criminal proceedings themselves, which are dealt with quite clearly under subsection (1):
"This Part of this Act applies to legal aid in connection with—
(a) criminal proceedings before any of the following—".
The noble and learned Lord, Lord Wheatley, asked about the meaning of the word "class". I would simply again explain that what is provided for in this subsection is that the Secretary of State may,
"prescribe by reference to such considerations as appear to him to be appropriate any class or stage of proceedings",
that is, any class of proceedings. That could refer to a group of offences or a group of proceedings but not, of course, to a group of people. Therefore, I accept that it can refer to a particular class of proceedings. That is precisely the kind of power which has always been available under existing legislation.
I trust that with the explanation that this part is essential to the Bill, that it ties together ABWOR and criminal legal aid, the noble Lord opposite will feel able not to proceed with the amendment. As I said, this is a matter which we have discussed in some detail in Committee, and I am really repeating arguments which I attempted to put before the Committee. Therefore, I cannot invite noble Lords to accept the amendment.
The Earl of Selkirk: My Lords, with the permission of the House I ask one question. Does the power in subsection (2) not permit, as it stands, the exclusion of solemn procedure from legal aid altogether? Is that not technically within the power of the statute as it stands? That is what my noble and learned friend is at present justifying, and I find it very hard to accept.
Lord Cameron of Lochbroom: No, my Lords, I do not think I was trying to justify that. If that was the impression I gave, I am happy to correct it. I am not suggesting that the power under subsection (2) can be to exclude criminal proceedings before any court. That is what is set out in subsection (1). I am simply saying that it is a power to prescribe any class of proceedings or stage of proceedings; that is, in relation to proceedings themselves, groups of offences or proceedings.
Lord Morton of Shuna: My Lords, if the intention of this clause is that the Secretary of State may define that legal asssistance by way of representation should be available instead of criminal legal aid in certain classes or stages, it might have been more clear if that had been the provision.
Lord Cameron of Lochbroom: My Lords, I am grateful to the noble Lord for giving way. I did not say that. I was simply saying that that power refers to criminal legal aid. The power relating to ABWOR is to be found in an earlier part of the Bill. This provides the way in which the watershed is defined in relation to criminal legal aid.
Lord Morton of Shuna: My Lords, all I am trying to say, and no doubt am not saying very effectively, is that it could have been put in a better way. As stated, the Bill gives power to cut out criminal aid without replacing it with assistance by way of representation. However, in the circumstances, I shall not press the amendment to a Division.
Amendment, by leave, withdrawn.
9 p.m.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 21:
Page 14, line 30, after ("may") insert ("after consultation with the Board").
The noble Earl said: My Lords, this amendment asks that the Secretary of State should at least consult with the board before using what all of us, I believe, consider to be extraordinary powers under subsection (2). They are powers that my noble and learned friend has not, I believe, justified, if I may say so with the greatest respect. I do not believe that he has said that these powers are limited.
I hope that the powers will be used wisely, munificently, kindly and thoughtfully. But that does not alter the fact that they are grossly in excess of any conceivable purpose for which they could be used. I am suggesting that there should at least be consultation with the board before they are used. This is a modest request. The clause has caused great anxiety, and came extremely close to defeat at an earlier stage in this House. Without more argument, I beg to move the amendment.
The Earl of Perth: My Lords, my name is also attached to this amendment, moved by the noble Earl, Lord Selkirk. I am no lawyer. I have little, if any, legal knowledge. All the same, it is sometimes good for an outsider, having listened to what was said at Committee stage, to make a point. I recall very well the noble Earl, Lord Selkirk, saying in Committee, "What is the point of setting up a legal aid board if its work can be totally negated by the Secretary of State who has power to alter by regulation?" It is surely not good enough that this situation should exist. As all your Lordships know, when we refer to the Secretary of State it is not the Secretary of State at all, but his advisers, the civil servants. I have nothing against civil servants. Far from it: they are admirable and good in many respects.
However, in this case it is not the Secretary of State. He is purposely setting up an advisory board. Yet he says that he can override it. If I was asked to serve on this advisory board and then saw this part of the Bill, I believe that I would decline. What would be the good, having decided that I would spend a lot of time and take a lot of trouble, as a member of the board, in thinking about things and giving advice on legal aid, if the Secretary of State could then, by regulation, ignore everything I had done?
I beg the noble and learned Lord, Lord Cameron, to think again. There must be provision for the board to be consulted. I am not saying that the advice has to be taken. But in cases like these it is a necessary part of the whole set-up we are considering that the members of the board should have a real power and should not work on something only to find that it has been to no avail. I hope that the amendment that we have put
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forward will be considered most carefully by the noble and learned Lord before Third Reading.
Lord Elwyn-Jones: My Lords, I should like briefly to refer to the two speeches already made. Subsection (2) really gives a draconian power, to use an old-fashioned but valid adjective in the circumstances, to the Secretary of State. What is he entitled to do? By regulation, on his own judgment and without reference to anyone, he can:
"prescribe by reference to such considerations as appear to him to be appropriate"
—a purely subjective judgment that does not become examinable in any court—
"any class or stage of proceedings in connection with which criminal legal aid shall or, as the case may be, shall not be available".
He can ride a coach and four through the whole of the Act when it becomes law. This is an abuse of the regulatory provisions for which Acts of Parliament provide.
The noble Earl, Lord Selkirk, pronounced in powerful terms against the whole structure of the Bill. We have here a classic example of what should not have been done. The amendment is a modest attempt to put some kind of restraint on the powers of the Secretary of State. It suggests that he should act in this potentially oppressive way only after consultation with the board.
I hope that the noble and learned Lord the Lord Advocate will think again. This part of the Bill pushes things much too far. It is regrettable that it comes before the House at this time and in these conditions, when we cannot test the matter, for it really is an outrage. I shall not do that, for reasons that are in accord with constitutional practice. It would be sad to see the House counted out. However, I implore the noble and learned Lord to look again at this because it is outrageous as it stands.
Lord Wheatley: My Lords, I add my voice in support of what has been said by the noble and learned Lord, Lord Elwyn-Jones, for one reason, perhaps, most of all. Either by design or accident the impression has been given under the Bill that the Secretary of State is getting everything in connection with legal aid into his own maw. He will be the person who controls the legal aid system from alpha to omega. That impression could have been modified to a certain extent if some of the proposed amendments put forward today had been accepted. This is a last-minute effort whereby, perhaps in his own interest and the interest of the Government, the noble and learned Lord the Lord Advocate might well be advised to think again about this matter, and put in this very modest qualification if for no other reason than giving the impression that the Secretary of State is prepared to devolve to other people some of the responsibility for the operation of this Act.
Lord Cameron of Lochbroom: My Lords, I hope that the House will not think that I have been attempting to give any impression that on this side we consider that what is being set up will not be other than a fully independent board. I make that quite plain. I did not intend to give that impression in what I have said. I do not think that anything I have said has given that impression.

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However, I should say this. Obviously I have heard what my noble friend Lord Selkirk and the noble Earl, Lord Perth, have said. I should like to take this matter away and bring it to the attention of colleagues. It is only right to say that today we have added a specific power to the board to give advice to the Secretary of State. Obviously this advice can include advice on the content of regulations. Indeed, I can give an undertaking here and now that my right honourable friend the Secretary of State will consult the board on all relevant regulations.
Having heard what has been said, I am happy to reconsider this matter. I think it is only fair to say that there may be certain regulations which do not directly affect the board and upon which it may be unnecessary to consult them. I can give no undertaking that at the end of the day anything will appear necessarily on the face of the Bill. However, I am very happy to bring the comments—and I can understand the force with which they were stated—to my colleagues' attention and to see whether something can be stated in the Bill. On that basis, perhaps my noble friend Lord Selkirk and the noble Earl, Lord Perth, may feel able not to press this further tonight.
The Earl of Selkirk: My Lords, I am grateful for what my noble and learned friend has said so far. I should like to ask him this question. My noble friend said that the Secretary of State would consult the board on all regulations which affect them. Does he mean that? Why does he not put that in the Bill? I have heard this for years. Why does my noble friend say these things when he cannot speak for more than one Secretary of State? We are passing a law. My noble and learned friend is not giving his opinion, which I respect enormously, as I respect the Secretary of State. But this is the law of the land. It gives the Secretary of State power.
I am afraid that I do not accept entirely what my noble friend says with regard to any class of procedure. Perhaps all criminal appeals could be abolished. That is a class of procedure, as I understand it. He is giving power for a Secretary of State in future to do that without consultation with anybody. I believe that it would help many of us if my noble friend could not only accept this amendment as it stands but put it more widely with regard to regulations or put in the Bill what he himself said—that the board will be consulted on all regulations which affect them. Those words would give immense relief to a great many of us.
However, I accept what my noble and learned friend has said. I ask him to think very hard about the points that have been made. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 22:
Page 15, line 6, at end insert—
("( ) The grant of legal aid under the provisions of section 23 of this Act shall without prejudice to the provisions of this subsection extend to representation at all diets in the case at first instance and for any appeal arising therefrom under the provisions of section 76A and section 105(5) of the Criminal Procedure (Scotland) Act 1975 and for any appeal by way of Bill of Suspension against the granting of any incidental warrant; and the grant of criminal legal aid under the provisions of section 24 of this Act shall without prejudice to this subsection extend to representation at all diets in the case at first instance and for any
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appeal arising therefrom under the provision of sections 331 A(3) and section 334(2A) of the Criminal Procedure (Scotland) Act 1975 and for any appeal by way of Bill of Suspensions against the granting of any incidental warrant.").
The noble Lord said: My Lords, I withdrew this amendment at the Committee stage because the noble and learned Lord the Lord Advocate was going to look at the position. I have therefore re-enrolled it to see what the position now is. The position under the existing provision is that incidental applications, or incidental appeals, require a separate legal aid application. It seems unnecessary that there should be two applications. That is what this amendment is designed to avoid. I beg to move.
Lord Cameron of Lochbroom: My Lords, as the noble Lord opposite has reminded the House, I agreed to look at this matter. There was no difference in policy between the noble Lord and myself on this point. As promised, the wording of these clauses, Clauses 22 to 24, has been reviewed to ensure that it achieves the result that we both desire. I am now advised that it does and, in particular, that appeals on preliminary points in summary proceedings which, by virtue of the act of adjournal which governs procedure in these matters, can only be pursued after a plea of guilty or not guilty has been tendered, are appropriately covered.
I would simply add that were there to be any changes in criminal procedure, or if for any reason, contrary to the advice I have been given, any doubt arose over whether such appeals on preliminary points were covered by provisions for giving legal aid in criminal proceedings, then regulations under Clause 36(2)(c) could be used to make it clear that such appeals were in fact part of proceedings for which criminal legal aid could be granted.
Lord Morton of Shuna: My Lords, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Automatic availability of criminal legal aid]:
Lord Morton of Shunahad given notice of his intention to move Amendment No. 23:
Page 15, line 35, at end insert ("and in connection with any appeal to the High Court of Justiciary under the provisions of section 334(2A) of the Criminal Procedure (Scotland) Act 1975")
The noble Lord said: My Lords, this amendment is covered by what has already been said and I therefore do not propose to move it.
[Amendment No. 23 not moved.]
Clause 23 [Power of the court to grant legal aid]:
[Amendment No. 24 not moved.]
9.15 p.m.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 25:
Page 15, line 41, after ("detention") insert ("in the course of the last five years").
The noble Earl said: My Lords, I do not find Clause 23 easy to understand. Subsection (1) says:
"Criminal legal aid shall be available on an application made to the court",

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and paragraph (b) says:
"where a person who has not previously been sentenced to imprisonment or detention has been convicted in summary proceedings, and the court is considering"
whether or not to send him to prison under Section 396(2) of the Criminal Procedure (Scotland) Act. I understand that that provision almost exclusively refers to non-payment of fines. It may be that it has a wider context which I have not entirely understood. However, as I read it, it applies simply to someone who has not paid a fine. In other words, it applies to someone who has been convicted and fined and who then comes before the court again because he has not paid his fine, and the court considers whether or not it is appropriate to send him to prison for non-payment of the fine. I do not know whether I have understood it correctly, but it is not very clear.
When we talk about previous sentences or detention we may be talking about a children's court. It may be that the person in question has been in detention or dealt with in a way which is applicable only to young people. It may be that the events in question take place 20 or 30 years later. However, should that person necessarily be excluded from receiving legal aid? In my view he should not be so excluded.
As I understand it, a person will not receive legal aid if at any time he has either been in prison or detained. It can relate back to matters which took place when he was 15 or less. I am suggesting that this provision should not go back over such a long period as that, but should be restricted to someone who has been in prison or detained in the course of the last five years. That seems to me to be reasonable. If a man has not been to prison or detained for, say, 20 years, it is quite unfair that on that account he should be excluded from receiving legal aid.
I may not have understood the clause, but I do not think that it is clearly drawn. In my view it would be unfair and improper for someone to have held against him the fact that he had been in prison when he was under the age of, say, 18 or perhaps had been in Borstal. Therefore it would be fair to limit the period as regards which detention would be used as a ground for exclusion from receiving legal aid. I beg to move.
Lord Cameron of Lochbroom: My Lords, the purpose of this provision is to continue one which was inserted in the existing Act of 1967 by the Criminal Justice (Scotland) Act 1980. It gives special treatment to someone who is facing prison or detention for the first time. My noble friend is correct in saying that one of the circumstances may be when the person has failed to pay a fine, when no time for payment is allowed and the court then considers a sentence of imprisonment or detention. It also applies to the ordinary case where the court is considering such a sentence. It is generally accepted that such a person is in a particularly serious situation and that he should have legal assistance if he wishes to put forward any arguments for an alternative sentence. It is for that reason that the provision was first introduced in the 1980 Act and was limited to the case when someone was facing imprisonment for the first time.
Therefore, these provisions are really consequential upon that earlier provision. I suggest, however, that
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the same arguments do not necessarily apply when someone is facing a custodial sentence for the second, third or whatever time it may be.
My noble friend has suggested that someone who has not been sentenced, as his amendment says, for five years may have some claim for consideration on the grounds that he has not for some time committed an offence leading to imprisonment. I have to say that the present amendment would cover people who had been sentenced to five years in gaol on indictment, had just come out, and immediately reoffended. In other words, the amendment sets out the gap since the last conviction, not the period during which a person has kept out of trouble.
For those two reasons therefore I do not feel able to accept this amendment, but I trust that I have explained the purpose behind the provision and what it is intended to deal with. It is nothing new. It is something which is already in existing legislation. It is a special power given to the court in summary proceedings; otherwise, of course, applications are dealt with by either advice and assistance for certain parts of the proceedings or criminal legal aid.
Lord Wheatley: My Lords, I cannot let this occasion pass without taking advantage of the opportunity of rising to support the Lord Advocate. Surely one of the common situations which arises is when a person has not previously been sentenced to imprisonment or detention. The court cannot proceed to sentence a prisoner forthwith. The case has to be continued to allow various reports to be obtained from the appropriate quarters, such as social inquiry reports, detention centre reports, and things of that nature.
In that situation when a case is continued for the reception of these reports manifestly there is going to be some argument as to the proper form of disposal of the case in the light of the reports. In that situation it is obviously desirable that professional assistance should be available to the accused before the first step of sending him to prison is taken. For that reason this particular subsection, as it stands, is fully justified.
The Earl of Selkirk: My Lords, I must admit that I am not overwhelmed by the force of the noble and learned Lord's argument here. What he is saying is that a person who has been to prison at any time in his life is not entitled in these circumstances to legal aid, except, as I read it, in exceptional circumstances. It is rather hard, and it is wrong, to say 20 years later to a man who may have recovered his character from when he was quite a young man in Borstal, or in any form of detention "Oh, but you were in Borstal, my dear chap. You can't have legal aid". I say that this is unfair.
The noble and learned Lord used an unfortunate expression. He said, "consequential on the previous Act". No Act is consequential on the previous Act. We are reforming the Act now, and we should not be bound by the words a previous Act has put forward. I shall not press this amendment. It is unfortunate that the noble and learned Lord cannot look at it from a wider point of view, but I leave it at that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 26:
Page 16, line 4, at end insert ("or
("( ) where the court is satisfied that having regard to the interests of witnesses, of the court, of the accused or for any other reason it is appropriate that the accused person should be represented").
The noble Lord said: My Lords, the purpose of this amendment is to give the court a power in certain cases at least to offer legal aid to the accused. Of course I realise that the accused, if he insists on doing so, can always go through any form of proceedings unrepresented. But there are cases where the accused has put his head in the sand and never thought to get legal advice, or where he is willing to accept advice from the sheriff to accept legal advice, especially where, for example, there are child witnesses and the court is anxious that the accused should not cross-examine them.
There are many cases where it may seem appropriate to the court that there should be legal aid, and this amendment is just to give a power to the court in that type of case to award it if the accused asks for it. I beg to move.
Lord Cameron of Lochbroom: My Lords, I think it right to remind your Lordships, as I stated when this matter was debated in Committee, that we consulted the sheriffs, among others, about the desirability of including such reserve power and they made quite clear that they would not welcome it.
Perhaps I may take two situations. First, there is the situation where a person has already applied for but has been refused criminal legal aid. There is no reason why such a person, if he considers that during the course of a trial something has come up which makes it possible for him to consider a further application for legal aid, should not be entitled to ask for an adjournment under our summary criminal procedure. I have no doubt, if it were for the purpose of asking for legal aid in the new situation that has arisen, that that is something which the court would take account of in deciding whether to grant or refuse that. In the case where he has not already sought legal aid, again, he is entitled to put that consideration before the court.
I deal with summary cases because I think this was, as the noble Lord opposite indicated in Committee, the area where there was concern. I should remind your Lordships that the Government have now agreed to specify factors concerning interests of justice on the face of the Bill. At this stage I cannot give details of those factors, but they may cover, as in the present non-statutory guidelines, cases where the accused cannot follow the proceedings or where legal representation is desirable in the interests of someone other than the accused. That would cover the kinds of examples which the noble Lord has in mind and which he stated previously in Committee in the case of the cross-examination of children as witnesses. The board would take such considerations into account in any event upon an application made to it. This was a matter upon which we consulted. There will already be a provision within the Bill which will allow the accused making use of criminal procedure to seek an adjournment to return to place an application before the board. In those circumstances I cannot accept the amendment, though I fully understand the purpose for which it is put forward.
Lord Morton of Shuna: My Lords, in those circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]
Clause 24 [Legal aid in summary proceedings]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 28:
Page 16, line 21, leave out ("to section 21(3) of this Act").
The noble and learned Lord said: My Lords, the Amendment to Clause 24 is consequential on the deletion of Clause 21(3) in Committee. I should perhaps say that this deletion causes some difficulty to us in that there is no longer any provision on the face of the Bill making clear which summary criminal proceedings for persons not in custody will be covered by criminal legal aid and which by assistance by way of representation. It may be practicable to achieve the desired changes through regulations under Clause 21(2), but it is fair to say that the House has previously expressed the view that the scope of legal aid should be made clear on the face of the Bill whenever possible. However, we shall clearly need to take time to reconsider the position in the light of your Lordships' views, and any amendment which we conclude may be desirable will require to be made in another place. I beg to move.
On Question, amendment agreed to.
[Amendment No. 29 not moved.]
9.30 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 30:
Page 16, line 40, at end insert—
("( ) The Board shall provide a method of appeal against the refusal by the Board of Criminal Legal Aid under this section.").
The noble Lord said: My Lords, this is an amendment to provide that there should be a method of appeal against the refusal by the board of criminal legal aid. On the position as regards appeals against refusal of civil legal aid or legal advice and assistance, I understand that I may have overstated the position of the noble and learned Lord the Lord Advocate earlier today. If so, I apologise.
The position about criminal legal aid in my submission is that it is absolutely essential, if there is the new system whereby somehow the board is going to be dealing with about 20,000 a year of criminal legal aid applications, that there should be some method of review or appeal available for people who are dissatisfied with the decision. I understand that there has been recent consultation between the Home and Health Department and the Central Legal Aid Committee and that this matter came up.
I am informed that the Home and Health Department view was that no right of appeal against refusal of criminal legal aid was necessary because civil legal aid would be available for judicial review of a refusal of criminal legal aid. That seems to me to be a quite extraordinary proceeding because it would be far more costly and absolutely absurd that the civil courts should be confused by having a series of applications for judicial review against refusal of criminal legal aid, when it would take far longer than to have some fairly

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simple procedure whereby another committee of the board could review decisions where the legal aid had been refused.
It would seem to be all the more necessary that there should be some method of review or appeal in the new procedure as opposed to the old one where the sheriffs and the district judges were granting or refusing legal aid. At least there one knew who was doing it. One of the reasons for the change is that there were inconsistencies between the approaches of different sheriffs. Now there is nothing to cover the possibility of inconsistencies between different persons because it is obviously quite impossible that the one person will decide all the applications for criminal legal aid. The mere fact that a standard is laid down and that factors are laid down in the Act does not mean that there will not be inconsistencies. In my submission, it is absolutely essential that there should be some method of review of a refusal of criminal legal aid. I beg to move.
Lord Elwyn-Jones: My Lords, I am not sure whether or not I am right. In the procedure for England and Wales there is a specific provision for appeal against refusal of criminal legal aid. I think that it is expressly provided for. I cannot lay hands on the relevant section but I do not think I am wrong. Why should not those in Scotland have the benefit of what the good people of England and Wales can enjoy?
Lord Wheatley: My Lords, when the noble learned Lord the Lord Advocate is considering this question as to whether or not there should be some form of appeal, since we are now dealing with summary causes will he bear in mind the point that I made at an earlier stage in the proceedings that, if the applicant is on bail at the time, then he has to be brought to trial within 40 days under our procedure? Therefore, the need for a speedy form of appeal becomes paramount.
Lord Cameron of Lochbroom: My Lords, before dealing with the particular arguments which have been presented by noble Lords, may I thank the noble Lord opposite for his point that he may have misrepresented the understanding between himself and myself as regards his amendment, which was directed towards providing for a method of appeal in relation to advice and assistance. I think I would wish just to make it clear that I promised to consult colleagues about the views expressed by the noble Lord. I have done so, and they are considering the situation in the light of the Committee's views. I can give no further commitment on the matter other than that.
I should like to say that the noble Lord spoke of certain discussions having taken place involving officials of the Scottish Home and Health Department and another body. If that was the understanding of one party, it was certainly not the intention that that should have been said or have been understood in relation to criminal legal aid. I can say no more than that.
May I just come to the arguments which in a sense I have already presented in more detail in Committee? There is in Scotland no right of appeal or review in criminal cases at present and indeed, so far as solemn
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procedure is concerned, the Bill makes no change whatsoever in the present position for the consideration of applications. That will be done by the courts on the basis of undue financial hardship criteria.
So far as summary cases are concerned, these will be dealt with by the board for criminal legal aid. I hasten to say that the Government have every confidence in the ability of the board properly to carry out its functions in this regard. The Government are convinced that by setting up a central body to deal with these applications, first, a much greater degree of consistency in their treatment will be brought about and therefore the case for the right of appeal or review is weakened. Secondly, the bodies we consulted made it very clear that the new criminal legal aid system should not lead to delays in the conduct of court business. That point was reinforced by what the noble and learned Lord, Lord Wheatley, has already said.
It has been represented to us, and I fully accept it, that any delay engendered by the new system would be extremely undesirable, particularly in the light of recent successful efforts to reduce delays in criminal cases and, more particularly, in the kind of case to which the noble and learned Lord referred—the summary case where the accused is remanded in custody and there is a time limit of 40 days. The noble and learned Lord reminded us of that.
I share that sense of priorities and it is against that background that I hold to the view which I have already expressed, that the establishment of an appeals system in criminal causes would do more harm than good by causing delay. This would have to be a system in which there was a proper review. Time would have to be given for the applicant to prepare and state reasons challenging the original decision and bringing forward any fresh evidence. What we are going to have is a board which will be able to give guidance to those who will reach a view on applications. In these circumstances, I regret to say that I cannot accept this amendment.
Lord Morton of Shuna: My Lords, I regret that I misled the House in saying that there were about 20,000 applications in 1983. There were 62,156 applications for summary criminal legal aid, of which 55,000 were granted. That would leave about 7,000 not granted, of which only some would go to an appeal.
As I pointed out in Committee, the legal aid authorities have applied to the department regarding a method of appealing so that any appeal would be dealt with within a very short time—within a week. They have not been—
Lord Cameron of Lochbroom: My Lords, will the noble Lord permit me just to put a point to him? He referred to the legal aid authorities. The only scheme which I have heard of is one to which the noble Lord referred in Committee. I wonder whether that is the scheme to which he is referring, because if so, that was an outline scheme which was submitted on a personal basis and did not represent any official view whatsoever.
Lord Morton of Shuna: My Lords, I am sorry; it was outlined by the Secretary of the legal aid committees. It has not apparently been considered at all by the

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Home and Health Department. If appeals can be dealt with within a week, there is no reason to refuse any right of an appeal. If in England it is appropriate that there should be a right of appeal against refusal of legal aid in criminal matters, there is no reason why there should not be the right in Scotland.
I shall withdraw the amendment now because it would not be an appropriate time to seek the opinion of the House, but I may come back to it at a later stage.
Amendment, by leave, withdrawn.
Clause 25 [Legal aid in appeals]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 31:
Page 17, line 24, after ("with") insert ("(a)").
The noble and learned Lord said: My Lords, with permission I shall speak to this amendment and to another amendment standing in my name as well as one in the name of the noble Lord opposite. When the noble Lord moved his new clause in Committee I undertook to consider his remarks and if possible bring forward a clarifying amendment at a later stage. I now move this amendment in order to make clear, for the avoidance of doubt, the references by the Secretary of State to the High Court covered by the provisions of Clause 25. I am referring to Amendments Nos. 31 and 33.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 32:
Page 17, line 26, after ("otherwise") insert ("and to all appeals by way of Bill of Suspension or Advocation.")
The noble Lord said: My Lords, I am not quite certain about the position here. Perhaps the noble and learned Lord the Lord Advocate can indicate whether this is an amendment that he accepts or whether it is covered by the assurance he has already given. I beg to move.
Lord Cameron of Lochbroom: It is covered.
Lord Morton of Shuna: I understand that what I have in mind is already covered. In that circumstance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 33:
Page 17, line 26, at end insert ("; or
(b) a reference by the Secretary of State under section 263 of the Criminal Procedure (Scotland) Act 1975.").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Morton of Shunahad given notice of his intention to move Amendment No. 34:
After Clause 25, insert the following new clause:
("Legal Aid in High Court.
.—(1) Where the Secretary of State has exercised his powers under section 263 of the Criminal Procedure (Scotland) Act 1975 to refer the case of a person to the High Court of Justiciary, such a person shall be entitled to criminal legal aid in terms of this Act.
(2) Such a person as is mentioned in subsection (1) above who wishes to receive criminal legal aid shall apply to the Board, which shall grant his application forthwith without regard to his resources or to any other criteria.").
The noble Lord said: My Lords, this point has already been covered by Amendment No. 33 and therefore I do not intend to move this amendment.
[Amendment No. 34 not moved.]
9.45 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No 35:
After Clause 25, insert the following new clause:
("Prosecution under 1975 Act.
.—(1) In all cases in which the High Court of Justiciary authorises a new prosecution of a person under the provisions of sections 255 or 452B of the Criminal Procedure (Scotland) Act 1975, and such a prosecution is instituted against him, that person shall be entitled to criminal legal aid in terms of this Act.
(2) Such a person as is mentioned in subsection (1) above who wishes to receive criminal legal aid shall apply to the court in which such a prosecution is instituted, and the court shall grant his application forthwith without regard to his resources or to any other criteria.").
The noble Lord said: My Lords, this amendment covers a case where the appeal court authorises a new prosecution. One would expect that in these rare cases where something has gone wrong in the court procedure rather than on either side if the person previously had legal aid, he would get it again. But this is also intended to apply where a person previously did not have legal aid and should get legal aid because he is being tried twice in a situation where the second trial is not his fault. I beg to move.
Lord Cameron of Lochbroom: My Lords, I have given further consideration to this matter since the debate in Committee, when I did not respond to the point that is now being made—that there should be an automatic grant of legal aid to someone who had originally funded his own defence and who, after a successful appeal, is subject to a retrial. The Government would wish to give further consideration to this matter, and, if they were to accept it, to the wording of any provision which would give effect to their consideration. It would obviously be more convenient if any such provision were to be included in an existing clause so that it attracted other relevant provisions rather than in a new separate clause.
While I can give no undertaking at this stage that this matter can be dealt with in any further proceedings in this House, I hope that with that assurance the noble Lord will not press the amendment.
Lord Morton of Shuna: My Lords, certainly. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 36:
After Clause 25, insert the following new clause:
("Accused person's right.
. Where a doubt arises whether criminal legal aid should be made available to an accused person the doubt shall be resolved in that person's favour.")
The noble Lord said: My Lords, this amendment is moved with the hope of bringing the criminal legal aid provisions in Scotland into line with those in England. The amendment is identical to what is provided in Section 29(6) of the Legal Aid Act 1974. If that provision is appropriate in England, it is difficult to see why it is not appropriate in Scotland. I beg to move.
Lord Cameron of Lochbroom: My Lords, in the first place, as the noble Lord prayed in aid England as the reason for his amendment—
Lord Elwyn-Jones: And Wales, my Lords.
Lord Cameron of Lochbroom: And Wales, indeed, as I am properly reminded by the noble and learned Lord—it is right to remind the House that the tests for the provision of criminal legal aid in England and Wales are slightly different.
I understand that it is granted when it first appears to the court to be desirable to do so in the interests of justice. Your Lordships will observe the test:
"Where it appears to the court desirable to do so";
and, secondly, the provision is:
"A court shall not make a legal aid order … unless it appears to the court that his"—
that is, the applicant's—
"means are such that he requires assistance in meeting the costs which he may incur for that purpose."
That differs from the tests contained in the Bill, which provides that the board is "to be satisfied". That is a clear test. It is included in Clause 24. That has been the basis upon which, in the past, the courts have operated. They have not had the "benefit of the doubt" provision. I suggest that the "benefit of the doubt" provision is unnecessary in a case where the tests are as clear as they are stated here.
The court or the board must be satisfied that certain criteria are met. It seems right that the applicant should be obliged to produce the relevant material upon which the court or the board, as the case may be, can base a proper judgment. It seems therefore reasonable that where a person is seeking the benefit of legal aid the onus should be on him to justify his application. When the case comes to court, it is for the Crown authorities to prove that the prosecution is justified.
With respect to the noble Lord, I do not think that the taking of a particular provision out of a general corpus of legal aid legislation, which is differently stated and which includes a different test, is appropriate. For that reason I must ask your Lordships not to accept the amendment.
Lord Wheatley: My Lords, the noble and learned Lord referred to the test that is applied to the good people of England and Wales. As a matter of clarity, will he explain what the test is for the bad people of England and Wales?
Lord Morton of Shuna: My Lords, it may be that the provision in Scotland is more definite, in the sense that the board has to be satisfied. But in any situation where you have something like 60,000 applications a year, you will naturally have cases which are on the borderline of being satisfied or not being satisfied. That must happen in any real situation. All I am suggesting is that where there is a doubt as to whether the board is or is not satisfied by the evidence or the factors produced to it, that doubt has to be decided in the accused person's favour. It is a fairly reasonable provision; it is a provision that does not appear to have caused any difficulty in England or Wales, and the provisions, though different, are as precise. At this stage of the evening, I beg leave to withdraw the amendment, while not promising not to return to it at a later stage.
Amendment, by leave, withdrawn.
Clause 29 [Legal aid in certain proceedings relating to children]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 37:
Page 20, line 4, leave out ("neccessary").
The noble and learned Lord said: My Lords, this is a drafting amendment. The equivalent provision in the 1967 Act has the word "necessary", but its inclusion in the Bill when compared with the analogous interests of justice tests for summary criminal legal aid and contempt of court proceedings does not add anything and might seem to imply a stricter test than in either of those cases. That is not the intention and therefore the word is better deleted. I beg to move.
On Question, amendment agreed to.
Clause 31 [Solicitors and counsel]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 38:
Page 22, line 34, leave out subsection (8).
The noble and learned Lord said: My Lords, it may be convenient to discuss together Amendments Nos. 38 and 39. Clauses 31 to 33 relate to the availability of solicitors and counsel in the legal aid scheme. Clause 31(1) reads splendidly and states:
"Subject to section 30(2) of this Act and to regulations made under subsection (9) below, a person to whom legal aid or advice and assistance is made available may select—

(a) the solicitor to advise or act for him; and

(b) if the case requires counsel, his counsel and he shall be entitled to make the selection himself."

But, behold!, there are major intrusions on that statement of principle and practice which ought to be common to the administration of legal aid. The basic aim should be, so far as it is practical to do so, to put the assisted person in the same position in regard to freedom of choice of a solicitor or counsel as the person able to pay for his legal representation.
In the Bill, there are two limitations. First, there is the limitation in Clause 30(2), which I find a somewhat obscure provision. It reads:
"In making legal aid available under subsection (1) above, the court may order it any case that the legal aid shall consist of representation by counsel only or, in a court where solicitors have a right of audience, by a solicitor only;"
and then come the words,
"and, notwithstanding section 31 of this Act, the court may assign for the purpose any counsel or solicitor who is within the precincts of the court at the time when the order is made."
Is this a reversion to the old procedure that we had in England and Wales of praying a tales? Does the applicant have to apply and is it then like the old days at the Old Bailey? You put a rope round the bottom of the road and haul them in—certainly to form a jury—if you are praying a tales? What is this curious procedure that any counsel or solicitor who is within the precincts when the order is made is for it and may be brought to the scene of justice? Has the accused person no voice at all in this matter? I may be reading it quite wrongly, and, if I am, perhaps I may be enlightened upon it.
I come now to the manifestly and clearly objectionable limitation on the principle that Clause 31(1) seems to enunciate. Subsection (8) states:
"The Board may arrange that, in such circumstances as it may specify, a solicitor shall be available for the purposes of providing legal aid or advice and assistance".
What circumstances? What is contemplated there? What are the exceptions? What are the limitations?
Then we come to subsection (9):
"Where a solicitor is available as is mentioned in subsection (8), the Secretary of Slate may, by regulations … provide that—
(a) subsection (1) above"—
the freedom of choice provision—
"shall not apply; and
(b) legal aid or … advice and assistance"—
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it covers the civil and the criminal field—
"shall be provided only by the solicitor so made available".
Is this the setting up of a new creation of duty solicitor? What is contemplated in this machinery? Will the accused person have any choice as to who is to represent him? What area of choice is available to the board? I find his extremely obscure and disturbing and I hope that we may have a satisfactory explanation. Better still, I hope that some of these obscure and obnoxious provisions will be dropped with a bang; if not a bang at least with a whimper.
Lord Wheatley: My Lords, I wonder whether this is an extension of the duty solicitor system that we have at the present time. Will the noble and learned Lord bear in mind—I am sure that he will—the unsatisfactory reports one gets from accused persons about having a duty solicitor foisted upon them two or three minutes before they are due to go into court, with a very unsatisfactory time for the consultation? If that is so, under these proposals will steps be taken to ensure that a more satisfactory system will be in operation so that in effect the accused person will have exactly the same advantage as a person who is instructing his own solicitor and counsel?
Lord Mishcon: My Lords, perhaps I may intervene in order to support this amendment, and I do it very briefly on the following grounds. I hope that the noble and learned Lord the Lord Advocate will not reply that this is meant to cover the necessity for a duty solicitor scheme. If that were so I would ask him to amend this clause so as to specify precisely the circumstances—I believe that this was the point being made by my noble and learned friend Lord Elwyn-Jones—in which the Secretary of State has this very extraordinary, and it may be quite pernicious, right.
One can envisage certainly in civil proceedings that there could be proceedings against the Secretary of State. There could be proceedings against another Minister. Is it suggested that by regulation, certainly within the purview of the powers contained in this clause as is stands, there could be a provision that a certain solicitor and a certain counsel would be assigned to that case with no right whatever to the assisted person to choose his own solicitor or counsel? I repeat that there must be no vagueness here. If it is intended to include a perfectly harmless right, that right must be spelt out.
I add as a second and final reason for concern that we may, certainly in criminal cases, be breaching the European Convention on Human Rights. For the purpose at least of completing the argument, perhaps I may be allowed to quote Article 6.3 of that convention:
"Every one charged with a criminal offence has the following minimum rights: to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require it".
I hope that the noble and learned Lord will regard this as a very serious matter, certainly in regard to making abundantly clear what is intended.
10 p.m.
Lord Cameron of Lochbroom: My Lords, I am grateful to those who have spoken. I shall deal first with a point that may be regarded as being wide of the mark in some sense, but it was raised by the noble and learned Lord, Lord Elwyn-Jones, and concerns Clause 30. That deals with contempt of court, which can be dealt with summarily by a court. That being so, that gives content to subsection (2). Indeed, I believe I am correct in saying that it was introduced as a result of the Contempt of Court Act 1981.
The amendments are directed to subsections that rehearse in somewhat different form much more general powers that are to be found in a section of the 1967 Act, which was added to by the Administration of Justice Act 1977. That provided that where, in pursuance of arrangements made by the Law Society in accordance with any scheme at the time being in force, a solicitor is available in any court for the special purpose of giving legal aid in connection with the criminal proceedings in that court, the scheme may specify proceedings in which an accused person shall not be entitled to legal aid in that court otherwise than by representation by that solicitor; that is to say, as has been mentioned already, the duty solicitor scheme.
Clause 31(8) will therefore be used to allow the board to continue the duty solicitor arrangements. While I have taken note of what has been said by the noble and learned Lord, Lord Wheatley, which is certainly a matter that would be of interest to the new board, I imagine that it is the intention that the duty solicitor system will remain.
As the House will already be aware, we intend that those accused who are in custody, whether it be under summary or solemn procedure, should have access to a duty solicitor for preliminary proceedings. That is not unreasonable and it avoids unnecessary duplication of effort to restrict the provision of legal aid for such proceedings to the duty solicitor. That does not prevent an accused from having a different solicitor providing legal aid in subsequent proceedings, though accused may and often do choose to continue to use the same solicitor.
My understanding is that representatives of the Central Legal Aid Committee indicated during the course of consultations that they were prepared to accept such a restriction for the first appearance of an accused. Therefore, the provisions are not designed to restrict the client's choice of solicitor arbitrarily but simply provide for the continuation and support (and that is the second subsection) of the duty solicitor arrangement.
I have paid attention to what has been said, in particular by the noble Lord, Lord Mishcon, about this matter. Obviously we shall have to look at these provisions. They are not included with any sinister intent, and I trust I have made that clear.
I shall also consider what the noble Lord said about the European Convention on Human Rights; although I think I am right in saying—I am open to correction—that in fact it does not require that an accused who wishes legal assistance has the right to a solicitor or
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counsel of his own choosing. I think it merely provides that he shall have legal representation. That is a small point; and on the more general point I assure noble Lords that the clear purpose is to continue the duty solicitor arrangements if the board is of that mind.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, one observed how great was his care to limit the matter to schemes. He likened the scheme that obtains in England and Wales with the Law Society. Of course, that is a definite scheme, agreed with the Law Society. There is no such reference in this Bill to any scheme. It is unlimited, and while one obviously trusts the intentions of the noble and learned Lord we are dealing—and this is a general phrase so often uttered—with an Act of Parliament and not with the noble and learned Lord's good intentions.
Therefore, may one take it that the noble and learned Lord is going to look at this again with a view to seeing whether particular words can be used to make this power very clearly expressed, with its limitation very clearly expressed?
Lord Cameron of Lochbroom: My Lords, I think I can do no more than simply say that I have fully understood the points which the noble Lord opposite has made. I will certainly bring those points to the attention of those who are particularly concerned to see that these words fully express the intention of the Bill.
Lord Elwyn-Jones: My Lords, I, too, am grateful for that intimation. I repeat that as the words stand they give no clue as to what is in mind—which is potentially beneficial to the accused person, oddly enough, but which sounds exactly the opposite. Therefore, I hope that the matter will be clarified before the next stage of the Bill is reached; otherwise, we shall have to take appropriate steps to have the issue re-opened.
Lord Cameron of Lochbroom: My Lords, before the noble and learned Lord sits down I should make quite clear that what I said did not suggest I would be in a position to come forward with any clarification before the next stage. but I certainly undertake that I shall bring the matter to the attention of my colleagues.
Lord Elwyn-Jones: My Lords, perhaps we shall be informed at the next stage of what the noble and learned Lord is going to do. At the moment he has left us in hopeful darkness, almost as dark as the darkness which fell upon us when that sinister red curtain was drawn across the visual scene. It is not good enough to leave the matter at that, but in the circumstances and at this time I shall reserve whatever fire-power is still left with us. However, I hope the matter will be put right because, seriously, as it stands it is a nonsense. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 39 not moved.]
Lord Wilson of Langside Lord Wilson of Langside moved Amendment No. 40:
Page 23, line 4, at end insert (";
(c) in relation either to a solicitor or an advocate, the Board").
The noble and learned Lord said: My Lords, I feel that I should start with the words of that great television art form by saying, "Now for something entirely different". If accepted, this amendment would confer on the Legal Aid Board the disciplinary powers at present enjoyed by the Law Society of Scotland and the Faculty of Advocates over members of both branches of the profession acting under the legal aid scheme. If the Bill is enacted, these powers will continue to be enjoyed by those two bodies.
There is a widespread feeling among the public that the Law Society of Scotland and the Faculty of Advocates, in exercising these disciplinary powers, have been perhaps less ruthless than many of the public feel that they ought to have been. This is a feeling that, with my experience in the field, I share, as also, apparently, does the Scottish Consumer Council, which supports the amendment. As it is so late—this matter opens up a wide area of discussion—I cannot perhaps do better than to quote from part of a briefing that many of your Lordships, I imagine, have received. The council says:
"We believe that it is in the public interest that the new Board should have a similar power".
That is the power to suspend, temporarily or otherwise, subject always to a right of appeal to the Court of Session, any member of the profession who is guilty of a certain degree of misconduct in the discharge of his duties under the legal aid scheme. It goes on to say:
"The present Bill leaves the power of exclusion to the professional organisations, the Law Society and the Faculty of Advocates. This is not sufficient. There may be cases where a practitioner has not broken any professional rules of conduct which would concern the Society or the Faculty but where he has not acted properly in relation to the Board, for example, by consistently overcharging or dragging cases out. It is not likely"
—and the council acknowledges this—
"that the Board would need to use this power often".
Indeed, it says—and so far as I can discover this is correct—that the powers have never been used. I must say that from my experience in the field I find this extraordinary. The council goes on to say:
"However, the existence of the power will give the Board more authority in dealing with practitioners who overstep the mark".
I can understand the Government refusing to accept the amendment as I put it down at Committee stage. I have more difficulty in understanding the reaction to that amendment of the noble Lord, Lord Morton of Shuna, who dismissed it as inept and, in effect, as I understood it, as irrelevant, the implication being that there is not a problem. But there is a problem. This may not be the best answer. It is not an insult to the solicitors' profession. There has been reference already today to the fact that all individuals, groups and organisations have, in effect, their blind spots. This, in the view of many of us, is a blind spot in these professional organisations. They have not been sufficiently ruthless in insisting on high standards.
One saw, sitting particularly on the Bench in the summary criminal court, many instances that should have been caught up. Let me give one illustration. I
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could go on all night but, fear not, I will not. It was not unusual, at the end of a lengthy and disruptive summary criminal trial of more or less seriousness, to discover that the accused had instructed his solicitor to plead guilty. The solicitor had declined to do so. I hope that the noble Lord, Lord Morton, will not lecture me about this. I am perfectly conscious that one had often enough to advise clients that they should not plead guilty, for a variety of reasons. On the Bench in the summary court one had often enough to advise men who expressed a desire to plead guilty that they should not plead guilty.
10.15 p.m.
I shall not detain your Lordships with the reasons for that. I am perfectly conscious of this. I am talking about the not unusual case where a solicitor has in effect persuaded his client, against his own better judgment, to go to trial. I have never yet found a case where, when this was uncovered, the solicitor's legal aid certificate was discharged and he did not get his fee. I should have thought that any lawyer who did this kind of thing was not entitled to his fee from the public purse.
This is not a generalised attack on solicitors, but it happened often enough to make it a problem. I myself found the greatest difficulty with the Law Society in Scotland, whether I was on the Bench dealing with these matters or as a Law Officer; and during the consultations on this Bill I found the greatest difficulty in impressing them with the need to take action in this field.
After all, on the Labour Benches they are not normally loath to control other groups and to urge Government and statutory bodies to tell people how to behave or how to conduct their own affairs; but when one suggests that in this area the legal organisation—admirable people who perform a great job in other areas—has a small blind spot about which, from the public interest point of view, it is immensely important that something should be done, then I get a little worried and depressed. If the noble and leared Lord the Lord Advocate could have said, as the noble Lord, Lord Morton, said, that he would encourage his colleagues to see the need for a more ruthless approach to the problem of the small number of black sheep, I should be happy about this.
In the meantime, people have been in correspondence with me who have expressed extreme concern about this. They included not only Scottish counsel but two of the lay members of the legal aid central committee, whose approach to me has been most impressive. They have expressed great concern. If the noble and learned Lord the Lord Advocate and others in the profession would bring home to the professional organisations the need for action in this field, that would be progress. It would be better than nothing.
I propose to return to this at Third Reading, not because I think that the profession is in a bad state but because I think that it is a little too complacent about matters which worry the layman involved with the law in the courts and elsewhere. I shall return to this and give many illustrations because the approach of the noble Lord, Lord Morton, in this matter has been to suggest that there is not a problem and that the suggestions of abuse and all these matters are

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imaginings of reactionary politicians and others with a special interest. That is not so. I shall return to the matter and have more to say upon it because we have the opportunity with this Bill to get to grips with the problem. I beg to move.
Lord Morton of Shuna: My Lords, I seem to have been mentioned a great deal. I looked up what I said in Committee and found that it seemed to take up rather less than a full column, and only about five lines dealt with abuses.
I oppose the amendment because it seems to me to be misconceived. There are undoubtedly black sheep in every profession, and if I suggested that that were not so I apologise to your Lordships for misleading you. However, if one has a situation of overcharging, the only way in which it can be dealt with is by the auditor of court. The legal aid committee has taken a very considerable number of cases of overcharging to the auditor of court and it has been successful in some cases and unsuccessful in others.
However, there is available a method of dealing with overcharging. Dragging cases out is primarily a case for the sheriff or judge hearing the case. It is very difficult for a legal aid board which, by its constitution, is non-legal, and deliberately non-legal, to be able to work out whether somebody is abusing the legal aid scheme by dragging out a case. The only way in which that could be dealt with would be by a report from the judge.
To insist on a plea of not guilty when the client wishes to plead guilty is, I should have thought, the most obvious professional misconduct, and either the Faculty of Advocates or the Law Society would deal with it very strictly indeed if it were brought to their attention. The difficulty in cases of that type, as I am sure the noble and learned Lord, Lord Wilson of Langside, is aware, is to prove it, if it happens. It is one thing to have somebody who may have previous convictions saying after a trial, "Oh, but I always wanted to plead guilty", because you then have to put that against the solicitor who says, "He insisted on pleading not guilty". Where is your proof?
I know that there have been consistent rumours that there are certain solicitors who insist on a fee in addition to the legal aid fee. Such rumours have always been investigated with great thoroughness by the prosecution authorities when any suggestion has been made to them, but so far as I am aware there has never been any satisfactory amount of evidence. It appears to me that this is a misconceived amendment, and that it is proper that if the board considers that there has been misconduct either by an advocate or by a solicitor, it is the professional discipline of those bodies that should deal with the matter. Therefore, I oppose the amendment.
The Earl of Selkirk: My Lords, I should put on record that the Law Society has a complaints committee, of which a distinguished layman is chairman.
Lord Cameron of Lochbroom: My Lords, we have covered this ground in Committee, but I have since seen the comments of the central committee lay
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members to which the noble and learned Lord, Lord Wilson of Langside, referred. I obviously accept the points which were made there, that the scope of paragraphs (a) and (b) of subsection (3) may go wider than professional misconduct itself. Indeed, there is force in the argument that the board which pays the piper should at least to some extent call the tune.
However, I recognise that the noble and learned Lord has already appreciated that there will be considerable difficulty in seeking to separate out professional misconduct, with which professional bodies should appropriately deal, from the other elements. It would not be reasonable—indeed, it would lead to practical difficulties—if we had both the board and the professional body having precisely the same powers. On balance it is preferable, therefore, since professional conduct is in question, that the responsibility should rest with the professional body which deals with disciplinary questions.
I have already referred to my confidence in the will and capacity of both sides of the profession in Scotland to give effect to the intention of this part of the framework of legal aid. It is an essential part of the framework; essential for the proper administration of legal aid in Scotland. I shall have no hesitation in drawing the remarks of the noble and learned Lord again to each body.
I accept the point that, while the present powers have seldom been used, I understand that the Law Society are themselves giving careful consideration to their possible exercise in appropriate cases in future. There are of course other ways in which the board can deal with the kind of problems to which the noble and learned Lord made reference in his quotation from the comments he had received, and those have been referred to already by the noble and learned Lord, Lord Morton. I suggest that the provision in the Bill is, on balance, the best one, and therefore I regret that I cannot accept the amendment.
Lord Wilson of Langside: My Lords, I am grateful to the Lord Advocate for his response to this matter, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 [Restriction on payment and employment of solicitor or counsel]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 41 to 43:
Page 23, line 10, leave out ("a person is in receipt of legal aid") and insert ("legal aid is available to a person").
Page 23, line 14, after ("of") insert ("any advice given or anything done in connection with").
Page 23, line 14, after ("proceedings") insert ("during any period when legal aid was so available").
The noble and learned Lord said: My Lords, with the leave of the House I beg to move Amendments 41, 42 and 43 en bloc. In Committee I undertook to look again at the wording of Clause 32. It is not our intention to prevent payment to a solicitor for work which has been carried out either before an application for legal aid has been made or after legal aid has been withdrawn. These amendments are designed to put this intention beyond doubt on the face of the Bill. I beg to move.
On Question, amendments agreed to.
Clause 33 [Fees and outlays of solicitors and counsel]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 44:
Page 24, line 5, at end insert ("and in making regulations under this section as to the amounts payable to counsel or a solicitor who acts for any person by providing legal aid or advice and assistance under this Act, and any person by whom any such amount falls to be assessed, taxed or reviewed under the regulations, the Secretary of State shall have regard to the principle of allowing fair remuneration according to the work actually and reasonably done.")
The noble Lord said: My Lords, this amendment just provides that in fixing the fees the Secretary of State shall have regard to the principle of allowing fair remuneration for work actually and reasonably done. It is the same provision as in the English and Welsh legislation. No doubt it will be strongly opposed, presumably on the basis that the Government do not wish that there should be fair remuneration.
The present consultation process, if consultation is the word, has the unfortunate effect that one is just told, so I am informed, that a certain percentage is available, and that is that. If fair and reasonable remuneration is the position in England and Wales, why is it not to be allowed in Scotland? Are the Government intending that in Scotland legal aid should become so poorly paid, and so unfairly and unreasonably remunerated, that only second-class lawyers will be prepared to do it? I cannot understand why this amendment should be opposed, and I beg to move.
10.30 p.m.
Lord Cameron of Lochbroom: My Lords, the formula which appears in this clause is one which was enacted as recently as 1983 with general support, as I understand it, from all parties. It is now repeated in this Bill. I suggest that it is a much clearer exposition and one which your Lordships should prefer. Under the present regulations relating to criminal legal aid fees the general principle is that there should be allowed such amount as may be determined in accordance with the regulations to be reasonable remuneration for work actually and reasonably done, due regard being had for economy.
I have heard nothing in what the noble Lord has said which suggested that he was in any way dissatisfied with the terms of the present provisions or of the regulations. I mentioned in Committee that discussions were to start shortly between the Scottish Home and Health Department and the Law Society on a review of the existing fee structures for legal aid advice and assistance. I have to say that the first meeting is to be held next week and during the review consideration will be given to the factors relevant to the determination of fees.
The Government have no wish to change the basic provisions in the Scottish primary legislation. The argument which the noble Lord has advanced does not suggest that there is any reason to be dissatisfied with that which operates at present. For that reason I cannot commend the amendment to the House.
Lord Morton of Shuna: My Lords, this is clearly not the time or place to divide the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 [Parliamentary procedure]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 45:
Page 27, line 20, leave out ("14(3)").
The noble and learned Lord said: My Lords, I have spoken to this amendment. It is consequential to Amendment No. 14, which was agreed earlier.
On Question, amendment agreed to.
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 46:
Page 27, line 20, after ("17(2)") insert ("17(5)").
The noble Earl said: My Lords, I beg to move that among those regulations of which a draft will be laid before the House will be those under Clause 17(5). That is the subsection to which I have already spoken and which uses phrases that I do not think the noble and learned Lord the Lord Advocate explained or showed as being wholly satisfactory as it stands. On this subsection regulations will be made. The words to which I have drawn attention are:
"shall be paid, in priority to any other debts".
If we are to make a regulation about that, it seems to me that we should know the details in draft form. They bear a close resemblance to the discussions we had on the subject of insolvency, which was always somewhat arguable. Therefore I believe that regulations under Clause 17(5) should be presented to the House in draft form. I beg to move.
Lord Cameron of Lochbroom: My Lords, the regulations under Clause 17(5) are designed to permit the Secretary of State to provide for circumstances in which the expenses of the action are not to be a charge on property which is recovered or preserved. They are a regulating power which is already found in Section 3 of the 1967 Act and which is subject to negative procedure. There is thus this precedent in existing legislation. The power is one to relax, in appropriate circumstances, the normal requirements of Clause 17(5) which would otherwise be more strict than would be proposed in regulations. In those circumstances I am not persuaded that the affirmative procedure would be appropriate. In the light of those considerations I hope that my noble friend will agree to withdraw his amendment.
The Earl of Selkirk: My Lords, this is an extremely small request which I am making. I am completely unconvinced by the manner in which the noble and learned Lord has dismissed it. We are supposed to be reforming the law in regard to legal aid. All we get are quotations from previous Acts which we are not allowed to change. I think this is a power of an extreme nature.
I am concerned about the house a person lives in and the tools of his trade. These are the things that matter and I want to know what will be the regulations about them. We have a better chance of discussing them if they are in draft. It is a very small request. It is one which could be of enormous importance to individuals. I ask the noble and learned Lord to think again hard on this. I will not press it this evening, but I ask him to think very hard because this procedure is not usual. In the Insolvency Bill we had a lot of discussion practically upon these very words. If the

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noble and learned Lord can say that he will at least think about it, I shall beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 47:
Page 27, line 24, at end insert—
("( ) Where the Secretary of State proposes to make regulations under this Act he shall refer the proposals in the form of draft regulations or otherwise to the Board.
( ) The Board shall consider any proposals referred to it by the Secretary of State under this section and shall make to the Secretary of State a report containing such recommendations with regard to the subject matter of the proposals as they think appropriate.
( ) If after receiving a report from the Board the Secretary of State lays before Parliament any regulations which comprise the whole or any part of the subject matter of the proposals referred to the Board he shall lay with the regulations a copy of the Board's report and a statement showing—

(a) the extent (if any) to which he has in framing the regulations given effect to the Board's recommendation, and

(b) in so far as effect has not been given to them, his reasons why not.")

The noble Lord said: My Lords, I trust that this amendment will be accepted. The purpose of it is to make sure that in drafting regulations the Secretary of State consults the board and gives the board an opportunity to comment on the proposals and that the report from the board should be laid before Parliament with any draft regulations. It is obviously essential that if the board and the Secretary of State are disagreeing about regulations, Parliament should be told of this and be able to make up its own mind, so to speak. It seems to me to be an essential power to give to allow the board a way of asserting some independence. I beg to move.
The Earl of Selkirk: My Lords, my noble friend knows that from the time this Bill was put before the House it has been heavily criticised for the volume of regulations. They are, in fact, decrees in many cases because they are so difficult to change. I do not want to push this too far but I do not know any Bill which has been so full of regulations to be laid before the House as this has. I do not want to exaggerate this but I was in Germany a little while before Hitler came to power. The parliament was making government by decree. I think that we have got to be very careful about the long-range consequences and the precedent we are setting in this Bill. I know that the professions will be greatly relieved and I know that many people in the House will be, too, if something of this character is accepted, if a larger number of these regulations can be submitted to the board appointed by the Secretary of State specially for this job—a board which is now being bypassed almost universally through this Bill. I have great sympathy with the view of my noble friend Lord Perth that he would not be a member of a board which could be bypassed so extensively by statute.
Lord Wheatley: My Lords, I want to add my voice to the plea that has just been made by the noble Earl, Lord Selkirk. Here is another opportunity, in view of the criticisms that have been levelled about the position of the Secretary of State in relation to the operation of legal aid under this Bill, of removing that
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big cause of criticism which seems to loom over almost all that is taking place.
Lord Cameron of Lochbroom: My Lords, I think I gave an assurance to my noble friend earlier when this particular point of consultation was raised. I simply repeat what I said then about the generality of that matter. However, I would have to say that this amendment goes further because it deals with the position about laying reports before Parliament. I must say that such a provision would seem likely to give rise to difficulties because the board may well wish to back up its advice and, of course, it now has the power to advise generally with references to confidential matters. Moreover, the amendment is quite general in regard to the reference to regulations.
I cannot accept the amendment so far as it extends to the laying of reports before Parliament in relation to any consultation process. I have, of course, indicated earlier to the House a preparedness to look at what has been said about the consultation process. In the light of that, I would hope that the noble Lord opposite will not press this amendment.
Lord Morton of Shuna: My Lords, I think it is far too late to press an amendment at this stage, and for that reason alone I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [The Scottish Legal Aid Board]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 48:
Page 33, line 5, leave out ("or is unsuitable to continue as a member").
The noble Lord said: My Lords, I beg to move this amendment. The schedule, in paragraph 5, gives power to the Secretary of State to terminate an appointment of a member of a board in various circumstances. The first is fairly obvious: that he becomes unable to pay his creditors. The second is also fairly obvious: that he is incapacitated by illness. The third is that he does not attend meetings of the board. The next is that he is otherwise unable or unfit to discharge the functions of a member of the board. And then there is the catch-all:
"or is unsuitable to continue as a member".
His unsuitability therefore is not bankruptcy, health, absence or otherwise, or being unable or unfit to discharge the functions. He is perfectly able and perfectly fit, but he is unsuitable. Who decides that he is unsuitable and what decides unsuitability? Is it just that he disagrees with the views of a particular Secretary of State?
It seems to me that nothing shows the lack of independence of the board more than this power (at any time, apparently) that if the Secretary of State is dissatisfied with the views of any member of the board he is able to decide that he or she is unsuitable to continue as a member of the board and can terminate the appointment. These are unnecessary words because the other unsuitabilities are covered by the other provisions. I beg to move.
Lord Cameron of Lochbroom: My Lords, I should have felt more sympathy if the noble Lord opposite

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had been prepared to say that from his examination of other legislation there was no such provision in schedules of this kind. I observed, however, that he remained silent on that matter. I have to say that this is a standard provision and one which is well precedented. For instance, I can give the noble Lord a reference to paragraph 5 of Schedule 1 to the Highlands and Islands Development (Scotland) Act 1965, which contains a provision which is identical to that in this Bill.
I have already emphasised during an earlier discussion on the Bill that board members will be appointed for their personal qualities. It is reasonable that the Secretary of State should have power to terminate their appointment if they prove unsuitable. The test is an objective one, relating to unsuitability to continue as a member, and the Secretary of State would have to have reasons which, viewed objectively, justified his action.
The paragraph refers to certain other factors which, if they exist, would mean that the Secretary of State may terminate the appointment of a member of the board. But what if there were a conflict of interest? That would not fall within the terms of the other paragraphs, or even of the earlier words in paragraph 5(d). What if his behaviour were inconsistent with membership of the board? What if he had been involved in some type of criminal activity? Obviously in such circumstances it would be inappropriate that an individual should continue as a member of the board, and without these words it would not be open to the Secretary of State to take action to terminate his appointment to the board.
For those reasons, and in the light of those comments, I sincerely hope that the noble Lord will feel able to withdraw his amendment. I assure him that there is again nothing sinister in this phrase, just as I have attempted to assure him earlier that even if he looks under the bed he will see nothing of any substance to concern him, of red or any other colour.
The Earl of Selkirk: My Lords, with great respect, I think that the noble and learned Lord is missing the whole point. He has emphasised that this is an independent board. The Secretary of State by sole fiat says, "Get out; you aren't following my instructions". That is the point. In this particular case it may not apply to East Kilbride or the Highlands boards, but it is the form in which the Secretary of State has complete control over any membership of the board. That I think is the real point of this, and I hope it will not be entirely lost sight of.
Lord Morton of Shuna: My Lords, I thought that Little Red Riding Hood saw granny in the bed and it turned out to be a wolf. It may be that we are all looking at something that the noble and learned Lord the Lord Advocate assures us is a very gentle and uninimical Bill. Perhaps those who have spoken against it are right, and it is a very dangerous Bill. It seems unusual that the only one who cannot see its dangers is the noble and learned Lord the Lord Advocate, because nobody else has spoken up in favour of the Bill. But at this stage I would ask leave to withdraw the amendment.
Amendment, by leave withdrawn.

Blyth Harbour Bill [H.L.]
Reported from the Select Committee with an amendment, and committed to an Unopposed Bill Committee.
Mersey Docks and Harbour Bill [H.L.]
Committed to an Unopposed Bill Committee.

Port of Fosdyke Bill [H.L.]
Committed to a Select Committee.
House adjourned at twelve minutes before eleven o'clock.