Lords Sitting of 22 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 Lincoln.

Housing: Rented Sector Figures
Lord Dean of Beswick: 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 how many people have been living in rented property each year since 1979 in (a) the public sector and (b) the private sector.
The Minister of State, Department of the Environment (Lord Elton): My Lords, it is estimated that in Great Britain in mid-1979 there were about 16.9 million people in council housing, 800,000 in dwellings rented from housing associations and 5.5 million in private rented housing. The corresponding estimates for mid-1985 are 14.8 million, 1.0 million and 4.0 million, respectively. Estimates for the intermediate years will be published in the Official Report.
Following are the estimates referred to:

Number of people in Great Britain in households renting from

million.

Mid-Year

Local authorities and New Towns

Housing Associations

Private owners

1979

16·9

0·8

5·5

1980

16·8

0·8

5·2

1981

16·6

0·8

4·9

1982

16·1

0·9

4·7

1983

15·5

0·9

4·5

1984

15·1

1·0

4·2

1985

14·8

1·0

4·0

Lord Dean of Beswick: My Lords, I am grateful to the Minister for that reply. However, is he aware that figures published by responsible housing organisations and authorities show that over the five years there has been a total loss between the private and public sectors of over 820,000 housing units for letting? Does that not indicate a very large falldown on the Government's responsibility in one of the areas of greatest need?
Lord Elton: My Lords, I do not agree that the decline in the figures in the rented sector indicate a fall in the Government's responsibility. I believe that it reflects the success, in part, of our campaign to allow people to own their own homes, as they wish to do.
Lord Dean of Beswick: My Lords, is the Minister not aware, in regard to the figures that both he and I have given, that the number of families requiring sheltered accommodation or wheelchair accommodation has increased over the last 12 months by 31,000 to a total now of 250,000? May I ask the Minister whether the Government have any plans to deal with this very high area of priority?
Lord Elton: My Lords, we are encouraging the public sector to concentrate on those who cannot afford to own their own home, including special groups such as the elderly and the disabled on low incomes, to whom the noble Lord has referred, and to give particular attention to the needs of the homeless.
Lord Nugent of Guildford: My Lords, is my noble friend aware that most people in our country think that there would be great benefit to the whole community if the sector of rented property in private hands was substantially increased? Therefore, I would ask my noble friend to consider further relaxation of the over-stringent legislation now covering that sector.
Lord Elton: My Lords, the Government hope to introduce major legislation to encourage the supply of more homes for renting in the private sector, but not during the lifetime of this Parliament. We believe that there is a very important role for the private rented sector to play in meeting housing need and that we must try to create the conditions in which landlords will be prepared to invest in accommodation for letting.
Lord Hatch of Lusby: My Lords, can the noble Lord tell the House why it is that the shortage in rented accommodation cannot be made good by the release of those funds which have been accumulated by local authorities from the sale of council houses?
Lord Elton: My Lords, those funds are in fact available for expenditure, but not in one slice. The noble Lord will recall that we have already had over this Table exchanges in which I have tried to explain that the prescribed proportion allows for 50 per cent. of these funds to be expended over three years and the remainder in subsequent years.
Lord Broxbourne: My Lords, is my noble friend able to say—though I doubt whether he will be able to do so without express notice—what proportion of the private rented figures, as given in answer to the noble Lord opposite, are covered by the rent restrictions Acts, and what view the Government take of any improvement in regard to their operation?
Lord Elton: My Lords, I cannot without notice give the proportion my noble friend asks for, but my attitude to the Acts has been made clear in my earlier answer to my noble friend Lord Nugent of Guildford.
Lord Ross of Marnock: My Lords, has the Minister any figures for Scotland? I ask this in view of the fact that we shall shortly be dealing with the Committee stage of a Bill in respect of housing associations in Scotland and the Scottish Federation of Housing Assocations is very much concerned about the loss of rented accommodation in an area—this particularly applies to the community associations—where it is very much required.
Lord Elton: My Lords, the figures in the Answer I gave were aggregated in the way that the Question was aggregated. I cannot give separate figures for Scotland, but I shall write to the noble Lord.
Lord Ross of Marnock: My Lords, I thank the noble Lord.
Lord Molloy: My Lords, is the Minister prepared to accept that an increase in rented property in the private sector would of course be a good thing? But will he bear in mind what happened the last time a Conservative Government provided so-called freedoms for the great property owners who develop private rented property? Within a year literally hundreds of thousands of British families were reduced to the ignoble and degrading status of being almost refugees in their own land.
Lord Elton: My Lords, I cannot say that I recognise anything in our recent history as corresponding to what the noble Lord has described, but I would say that the freedom which we think is of greatest value is the freedom of people to live where they want and to own their own property if they wish. We believe in a free and fair society, as noble Lords opposite claim to do, and I believe that we are delivering it.
Lord Stewart of Fulham: My Lords, does what the noble Lord the Minister has said mean that it is the Conservative Party's intention to introduce legislation making it possible for private landlords to increase rent, but that prudently it does not intend to do that this side of a general election?
Lord Elton: My Lords, the noble Lord has asked his question with a particular gloss from a particular stance. We agree that the private sector has, as the noble Lord, Lord Molloy, pointed out, a valuable role to play. That must be an economic role and the tenant must have the security of legislation.
Lord Glenamara: My Lords, is the noble Lord aware that in the city of Newcastle-upon-Tyne there are 12,000 people on the waiting list, which is higher than at any time since the immediate post-war years, and that that area has the highest unemployment in Britain? There is therefore little hope of most of them ever owning their own houses. Do the Government accept any responsibility for that state of affairs?
Lord Elton: My Lords, the Government are plainly responsible for the regulation of public housing by statute and by the regulations laid down by the Treasury, which I have sought to explain to your Lordships. The question I am asked is whether that is directed towards a fair distribution. I believe that it is.
Lord Stallard: My Lords, if the Government's housing policy is so good why are waiting lists all over the country, and in particular in inner city areas, growing at a fantastic rate? Why are thousands and thousands of people literally homeless? The number of people sleeping rough in our inner city areas is on the increase. Why is bed and breakfast accommodation absolutely chock-a-block or unobtainable? That which is obtainable costs fantastic prices. In the borough that I know best, the lowest rent is £75 a week for any accommodation that can be found. Who can afford that? How about all the other problems? Will the noble Lord the Minister boast about them?
Lord Elton: My Lords, the noble Lord has asked a large number of questions. The general answer to the noble Lord's inquiry is that the level of public expenditure has had to be restrained, but nevertheless is broadly the same in cash terms as it was in 1979.
Lord Wallace of Coslany: My Lords, is the noble Lord aware that an increase in rented accommodation would materially improve the mobility of labour? In other words, it is no good searching for a job elsewhere if one has the millstone of a mortgage round one's neck.
Lord Elton: My Lords, the availability of accommodation is, of course, a factor in the mobility of labour. The noble Lord will be aware of the large number of vacancies that there are round the country, which is something that we also wish to improve.
Lord Orr-Ewing: My Lords, can my noble friend say how many empty houses there were in the GLC when that organisation died? Are the successor authorities, the local authorities, now picking up those empty properties and turning them into lettable properties and, therefore, employing them more usefully?
Lord Elton: My Lords, my noble friend is right to suggest that those figures are large, but they go rather wider than the Question on the Order Paper.
Lord Diamond: My Lords, in his ante-penultimate answer the noble Lord the Minister was good enough to give the comparative figures for 1979 in cash terms. Can he now add the real terms?
Lord Elton: My Lords, I am not sure that my arithmetic is equal to judging what is at this stage ante-penultimacy or the comparative ratio of figures, but I shall write to the noble Lord.

Uganda-UK Relations
2.47 p.m.
Viscount Buckmaster: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will define their relations with the new regime in Uganda headed by President Yoweri Museveni.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, there are many ties of friendship between the United Kingdom and Uganda. We wish Uganda well under its new government after so many years of suffering. We particularly welcome President Museveni's commitment to a stable and united Uganda with full respect for human rights. Following the visit to Uganda on 12th February by my honourable friend the Minister of State, Mrs. Chalker, we are discussing with the Government of Uganda UK assistance in support of these aims and the task of rebuilding the economy.
Viscount Buckmaster: My Lords, I thank the noble Baroness the Minister for that constructive reply, which I think will be widely welcomed in Uganda. Nevertheless, does she agree that Her Majesty's Government's policy towards Uganda has been severely criticised in the past because of their failure fully to recognise and adequately to condemn the widespread killings and other violations of human rights which took place under the Amin and Obote regimes? Does she accept, therefore, that the time has now come for an entirely fresh start in Anglo-Ugandan relations—a new look—bearing in mind the fact that many Ugandans still hold us in high esteem?
Baroness Young: My Lords, I should like to assure the noble Viscount, Lord Buckmaster, that we have made known to successive Ugandan governments our concern about human rights. I do not think that we can accept his statement on that. We welcome President Museveni's commitment to improve Uganda's human rights record and the action that he has so far taken to punish those found responsible for violations. I hope that the Answer I have given to the noble Viscount's original Question will make clear the Government's commitment and policy towards the new government in Uganda.
Lord Cledwyn of Penrhos: My Lords, I welcome the general approach that the noble Baroness has outlined. Does she agree with me that the primary need in Uganda at present in order to secure stability is the reconstruction of the Civil Service and the police force? Will she be good enough to say what assistance Her Majesty's Government are giving in that direction, and will she say a word about the British training force? How many British soldiers are left in that force now?
Baroness Young: My Lords, I appreciate the point that the noble Lord, Lord Cledwyn, has raised. All police training ceased in July 1985, but the overseas police adviser visited Uganda last month to report on the need for further training and we are studying his recommendations. With regard to military aid, there are no Ugandans receiving military training in the United Kingdom at present but the future of the British military advisory training team is still under consideration. We have had discussions with the new Government about its future.
Lord McNair: My Lords, will the noble Baroness answer the question that the noble Lord, Lord Cledwyn, put about the Civil Service? Many reports suggest that the most urgent need is to reconstruct and remotivate the Civil Service. Is there anything we can do to help towards that?
Baroness Young: My Lords, I entirely take the pont that the noble Lord raised. We are in our future aid programme looking at a number of issues. On the point about the Civil Service, I think it right that I should write to the noble Lord, Lord Cledwyn, and I shall copy the letter to the noble Lord, Lord McNair. But we are certainly helping with the education system. We have this year planned to spend £7·5 million and the poor security in Uganda obliged us to suspend much of our aid programme up to the time of the coup in 1985.
Lord Paget of Northampton: My Lords, does the noble Baroness agree that Uganda is a beautiful country in which it has been particularly difficult to know which winners to back? Since the days of King Freddie I think we have had five consecutive losers. Maybe we should consult Colonel Gaddafi; that would perhaps give us at least one identified negative.
Baroness Young: My Lords, I agree with the noble Lord that Uganda is a beautiful country, although I have not visited it. It has had a series of unhappy governments, with a lot of suffering for its people. We hope that things are now improved.
The Viscount of Falkland: My Lords, is the noble Baroness aware of the demand in third world countries for the services of British based so-called security companies? Is she further aware of one company which at the end of the Obote regime was training pilots to fly low level helicopters that were ultimately used against the Museveni forces? Will she kindly say what control or influence the Government have over such private organisations which may be giving service to repressive regimes?
Baroness Young: My Lords, as the noble Viscount will understand, if it is a private company it will be an arrangement between the company itself and the government of another country. That is not to say that our Government may not approve of its activities. That may well be the case. But the arrangements would be a matter for the two parties. I do not know what specifically the noble Viscount has in mind but that, generally speaking, would be our view.
Lord Hatch of Lusby: My Lords, does the noble Baroness accept that there will be general support for her original Answer to the noble Viscount? Does she agree that the first actions of President Museveni, particularly in putting aside the ostentation of previous regimes, give good hope that the Museveni regime will lead Uganda back to prosperity and peace?
Baroness Young: My Lords, I am glad just for once to be able to agree with the noble Lord. It is still early to say what the policies of the new government will be, but there is no doubt that President Museveni has made an encouraging start and has included representatives of most of the major political and ethnic groups in his administration. He has also stressed the need for unity and reconciliation.
Viscount Buckmaster: My Lords, does the noble Baroness agree that no country in the Commonwealth has suffered more grievously than Uganda and that none more deeply deserves our enlightened concern?
Baroness Young: My Lords, I think we all understand the terrible sufferings of the people of Uganda. We must all hope that the current government are successful, particularly in dealing with the question of human rights.

Yemen-UK Relations
2.55 p.m.
Viscount Buckmaster: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
To ask Her Majesty's Government whether they will define their relations with the People's Democratic Republic of Yemen in the light of the uprising of 13th January.
Baroness Young: My Lords, following the uprising of 13th January, staff of Her Majesty's Embassy in the People's Republic of Yemen were temporarily withdrawn in the international evacuation of 18th January. By the end of last month, we concluded that the situation in Aden had returned to normal and reopened our Embassy on 29th March under a Charge D'Affaires. Her Majesty's Ambassador, Mr. Marshall, is expected to return later this month when some of the damage to our buildings will have been repaired. Our aid programme is being resumed in full. A number of British commercial firms have also resumed their operations in the country.
Viscount Buckmaster: My Lords, I thank the noble Baroness, the Minister of State, for that helpful reply. Is she aware that many South Yemenis would like to develop closer ties with Great Britain, and that many still admire the legacy of our colonial era as I discovered when I visited the country last summer? Is she further aware that the Yemenis would certainly welcome any further extension of our aid programme, which is still comparatively modest, particularly the provision of English language teachers for the university?
Baroness Young: My Lords, I am glad to hear of the positive views of the noble Viscount about our relations with the People's Democratic Republic of Yemen. On the particular point about our aid programme, I am aware of the importance of the two key English language teachers at Aden University. The programme was suspended at the time of the uprising; but the noble Viscount will be glad to know that steps were taken to resume it once our embassy reopened at the end of March.
Lord Cledwyn of Penrhos: My Lords, may I once again welcome the encouraging statement made by the noble Baroness about this unhappy country? Would she be good enough to say precisely how many British nationals live there now? Also, may one assume that their security is reasonably assured?
Baroness Young: My Lords, I am afraid that I cannot without notice give the noble Lord the answer to his question on British nationals. But now that our Ambassador is returning, our aid programme is being established again and business is starting up we see no reason why British people should not visit the Yemen.
Lord Shackleton: My Lords, can the noble Baroness say whether she has any information about the many exiles from the days of South Arabia, who, if they are still alive, are in Saudi Arabia and elsewhere; and
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whether in our relations with the new government we should urge for a degree of reconciliation with supporters of the pre-independence regime?
Baroness Young: My Lords, once again, I cannot without notice give precise details about exiles. But what I can say is that the new government have made it clear that although they will maintain the alliance with the Soviet Union they will continue with the policy of the previous Ali Nasser government in fostering better relations with the West and at the same time fostering better relations with the neighbouring Arab countries. I hope that this may well be the kind of positive information that the noble Lord is seeking on this point.
Lord Bruce of Donington: My Lords, is the noble Baroness aware that our net exports to the Yemen, excluding any question of aid to them, have amounted over the past four years to something between £50 million and £75 million per annum? Will she do her very best to ensure that our commercial relationships with the Yemen are maintained, notwithstanding any indications which would perhaps be adverse concerning our recent complicity in the Libyan retaliation?
Baroness Young: Yes, my Lords. We are interested in trade with the Yemen; and, as I indicated in my original Answer, British commercial firms have resumed their operations in the country. On the other point that the noble Lord raised, I can confirm that we have received no indication that the PDRY authorities intend to take steps against the United Kingdom in connection with events in Libya.

Forestry: International Support Measures
3 p.m.
The Earl of Bessborough: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they accept the conclusions of the international forestry conference held recently in Paris under the presidency of President Mitterrand and whether the Overseas Development Administration will support the "Tree 2000" campaign concerning afforestation in desert lands of certain developing countries.
Baroness Young: My Lords, we have accepted the conference's solemn appeal and resolutions. We agree that continuing destruction of forests leading to the spread of deserts in the drier African countries is a most serious problem. We also share the widespread concern about air pollution and damage to European forests. My right honourable friend the Minister for Overseas Development sent a message of encouragement for the launching of the "Tree 2000" appeal on 9th April, and wished it every success.
The Earl of Bessborough: My Lords, I thank my noble friend for that most encouraging reply and declare an interest as president of the Men of the Trees, which is promoting this campaign. May I ask whether

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she thinks that the ODA would be in a position to make a financial contribution to the campaign and also whether the United Nations Food and Agriculture Organisation (FAO) may not also have a role to play in reclaiming the deserts?
Baroness Young: My Lords, a cash donation is not envisaged, but my right honourable friend the Minister for Overseas Development would be ready to consider proposals from the Men of the Trees organisation, which is mounting the appeal, for support of specific projects under the joint funding scheme (sometimes known as a pound-for-pound scheme) which is the ODA's source of support for development projects put forward by many NGOs such as Oxfam and Christian Aid. We welcome the support of the FAO for the "Tree 2000" campaign and the other FAO activities which help to preserve and develop vitally important forest resources in developing countries.
Lord Oram: My Lords, we must all recognise the many competing claims on the all too limited resources of the Overseas Development Administration, but has not the noble Earl called attention to one of the most urgent problems in developing countries? For instance, do not peasants in many parts of Africa face a great dearth of wood fuel for cooking? Is not the problem of soil erosion closely connected with the rapid deforestation that is going on in many parts of the world? With these problems in mind, will not the Overseas Development Administration put more capital resources into this rather than just the pound-for-pound support of a voluntary agency?
Baroness Young: Yes, my Lords, I was answering specifically the question raised by my noble friend Lord Bessborough, but I entirely take the point of the noble Lord. Indeed, we are providing substantial amounts of aid in different countries for forestry. We are doing so in Ghana and in the Sudan, and in India we put £15 million into a social forestry project. We also give high priority to the training of technical staff. As well as direct bilateral aid, the Community is providing some 30 million ecus under the European Development Fund 4 and 5. As the noble Lord will be aware, Britain's contribution to that is 18 per cent.
Lord John-Mackie: My Lords, is the noble Baroness aware that Europe is deficient in wood and sufficient in food? The areas being cleared to grow food would be much better used for forestry. Can we not swap food that we can grow in Europe for the trees which we are short of but which they can grow?

Business
3.3 p.m.
Viscount Long: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend Lord Glenarthur will, with the leave of the House, repeat in the form of a Statement the Answer to a Private Notice Question in another place on the expulsion of Libyan nationals.

Isle of Wight Bill
Read a second time, and committed to an Unopposed Bill Committee.

Land Registration Bill [H.L.]
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Land Registration Bill, have consented to place their interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill. Having said that, I beg to move that the Bill be now read a third time.
Moved, That the Bill be now read a third time.—(The Lord Chancellor.)
On Question, Bill read a third time, and passed, and sent to the Commons.

Family Law Bill [H.L.]
3.5 p.m.
The Lord Chancellor: My Lords, I rise to move that this Bill be now read a second time.
The length of the Long Title attracted a certain amount of amusement from your Lordships on the introduction and I shared in the laughter that followed. However, the Bill neatly and succintly gives effect to all that is promised in the Long Title.
The first three parts of the Bill give effect to three separate Law Commission Reports, Nos. 132, 137 and 138 of the English series, the last of which includes No. 91 of the Scottish series. Each deals with a distinct area of family law. The fourth part deals with miscellaneous matters. In essence, therefore, this is purely and simply a law reform Bill.
Part I provides a scheme for the enforcement of custody orders within the United Kingdom in order thereby to combat the growing and serious social problem of child abduction with which we dealt in the last Session in its international application. The Government are concerned to solve this problem and the Bill is further proof of such a resolve. Part I of the Bill replaces with a uniform set of rules the present multiplicity of jurisdictional bases under which the courts determine custody.
During the last two parliamentary Sessions the Child Abduction Act 1984 and the Child Abduction and Custody Act 1985 have reached the statute book. The 1984 Act dealt with the criminal aspects of child abduction. The 1985 Act, which it is planned to bring into force this summer, will enable the United Kingdom to ratify The Hague and the European Conventions and provide a civil remedy for parents whose children have been abducted abroad. Part I of the Bill complements the two earlier Acts by dealing with abducting within the United Kingdom and its several jurisdictions. It will carry out the recommendations of the two Law Commissions—The English and the Scottish—contained in their report entitled Custody of Children—Jurisdiction and Enforcement within the United Kingdom

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Part I proposes to achieve this in two stages. The first stage provides a uniform set of jurisdictional rules under which the courts will determine custody disputes. The second provides a procedural method whereby a custody order may be recognised and enforced throughout the United Kingdom. The Bill does not change the test for custody. As your Lordships will know, that test has been in force for quite a long time and is uniform throughout the United Kingdom. That test determines custody by having regard to the welfare of the child as the first consideration. No one, I think, would now question the validity of that test.
Part I of the Bill will ensure that custody orders made in one part of the United Kingdom upon this test will automatically be enforced in the others. No longer will it be necessary for a parent whose child has been abducted from one part of the United Kingdom to recommence custody proceedings in the part of the United Kingdom to which the child has been taken. The threat that the second court will make an order different from the first is thus removed. Part I provides a simple enforcement procedure to ensure that the child is returned to the person rightly having custody. That part will also ensure that custody disputes will be determined in the place with which the child has the closest connection.
Before I turn to deal with the detailed provisions, I have one general point to make. In England and Wales and in Northern Ireland, the courts have jurisdiction to make custody orders in respect of children up to the age of 18. That distinction is preserved in the jurisdictional rules contained in Chapters II, III and IV of Part I of the Bill. But Chapter V, which deals with recognition, registration and enforcement, only permits enforcement throughout the United Kingdom when the child is under 16. The Law Commissions took the view that 16 should be the age adopted for the purposes of Chapter V. It was thought that it would be unsatisfactory to require a Scottish court to recognise and enforce custody orders made in the other parts of the United Kingdom relating to persons over 16 when the Scottish court could not itself make such an order. Thus, the Scots have once more achieved a Bannockburn and not suffered another Flodden.
Clause 1 defines "custody order". For the purposes of this part of the Bill it includes any orders made in proceedings commenced after that part comes into force that falls within the terms of subsection (1). However, for the purposes of Chapter V, Clause 32 widens the definition to include those orders made before the commencement of Part I that are still in force and that would have fallen within the definition of the earlier clause had they been made after commencement. The widened definition is necessary to ensure that those orders that fall within the enlarged definition of Clause 32 can be recognised, registered and enforced under Chapter V in the same way as orders falling within the narrower definition of Clause 1.
As I have already mentioned, Chapters II and IV inclusive replace the present multiplicity of jurisdictional rules with a uniform set of rules under which the courts can determine custody. The complexity of the
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present rules may best be illustrated by reference to the Guardianship of Minors Acts 1971 and 1973 in England and Wales. Under those Acts, the High Court has jurisdiction where the child is a British subject or is resident or physically present in England or Wales. A county court has jurisdiction if the respondent or applicant or child resides within its area, but if a respondent resides in Scotland or Northern Ireland the county court loses the jurisdiction unless the originating process can be served on the respondent in England and Wales.
Similar rules to those applicable to the county courts apply to the magistrates' courts. In addition, courts in the other parts of the United Kingdom may have jurisdiction to determine the question of custody of a child at the same time as the court is determining the application of the Guardianship Act in England and Wales. That labyrinth of jurisdictional rules does nothing to benefit the interests of the child or the other parties to the dispute.
Chapters II to IV of Part I therefore replace them by providing that throughout the United Kingdom jurisdiction will be founded, first, on the jurisdiction in divorce, nullity and judicial separation proceedings; next, on the habitual residence of the child; thirdly, on the basis that a court should act because in an emergency a child needs to be protected; and, lastly, on the physical presence of the child. Thus the scheme contained in those chapters accords primacy to the divorce jurisdiction. Therefore, the court that dissolves the marriage of the parents will determine the question of custody in preference to a court that could assume jurisdiction on one of the other bases. The scheme also provides that a court having jurisdiction may decline to determine the question of custody if that court considers it more appropriate for another court to determine the issue.
The new rules should almost eliminate the possibility that courts situated in more than one part of the United Kingdom should have concurrent jurisdiction to make custody orders, and they should ensure that the judicial forum with which the child has the closest long-term connection will determine that question.
Chapter V provides the procedural means whereby a custody order may be recognised, registered and enforced throughout the United Kingdom. It is those provisions that will assist the prevention of child abduction, and obviate the need for fresh custody proceedings to be commenced for the return of the child in that part of the United Kingdom to which that child has been taken. Clause 25 provides that a United Kingdom custody order made in respect of a child under the age of 16 will be recognised throughout the United Kingdom. Clause 26 relates solely to Scotland.
Clause 27 provides the procedure for the registration in the High Court in England and Wales or Northern Ireland, or in the Court of Session in Scotland, of a custody order made in another part of the United Kingdom. By virtue of Clause 29, a registered custody order will be enforceable by the registering court as if it were its own order, made in accordance with its own procedure. That court will be able to give interim directions, or stay, or, to use the Scottish expression, sist the enforcement proceedings where appropriate.

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Chapter VI contains provisions to assist the courts throughout the United Kingdom in enforcing custody orders. They will not only ensure that an abducted child is returned to the person rightfully entitled, but should also act as a deterrent to all who contemplate abduction. Clause 33 gives the courts power to order a person to disclose information about a child's whereabouts. Clauses 34 and 37 respectively give the courts power to order the recovery of a child and the surrender of passports.
Finally, on Part I, I should like to draw your Lordships' attention to Clause 43, which will enable Part I to be extended by Order in Council to the Isle of Man, the Channel Islands, or any colony. Any extension of the scheme set out in Part I to those territories will be another means to combat child abduction.
I now come to Part II of the Bill. As I have said, each part deals with a different aspect of family law. Part II gives effect with modifications to the recommendations of the two Law Commissions contained in their report entitled Recognition of Foreign Nullity Decrees and Related Matters. The Law Commissions proposed that the recognition of foreign nullity decisions should be assimilated to the grounds of recognition of divorces and legal separations now contained in the Recognition of Divorces and Legal Separations Act 1971. Many of your Lordships may wonder why the recognition of nullity decrees was not dealt with in the 1971 Act. The reason was as follows.
That Act gave effect to the 1970 Hague Convention on the recognition of divorces and legal separations. At that time, it was hoped that a further Hague Convention would deal with the recognition of foreign nullity decrees. Unfortunately, that convention has not materialised. The Law Commissions have therefore turned to that area because, as they say in their report, the law is in an imperfect state. The rules for recognition are uncertain and complex. The assimilation of the rules for recognition of nullity decrees to those for the recognition of divorces and legal separations is therefore provided for in Part II of the Bill.
The effect will be a re-enactment of the provisions of the 1971 Act but with a number of modifications. Clause 44, which follows the recommendations of the Law Commissions, provides that all decrees of divorce, nullity or judicial separation granted by a court of civil jurisdiction in the British Isles will be accorded automatic recognition in every other part. The recognition of overseas divorces, annulments and legal separations is governed by Clauses 45 to 50, and in dealing with those clauses I fear that I cannot avoid a certain degree of technicality.
A key expression in the 1971 Act is the phrase "judicial or other proceedings". That is borrowed from the English text of Article 1 of the Hague Convention, and in the following 15 years of case law the phrase has come to include, in addition to judicial proceedings as we know them, quasi-judicial proceedings and other proceedings involving some agency, lay or religious, of the relevant state. In the 1971 Act, divorces and legal separations obtained by means of judicial or other proceedings are contrasted
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with divorces or legal separations obtained in other informal ways but which, under Section 6 of the 1971 Act, are in some circumstances nevertheless recognised in the United Kingdom.
In Part II of the Bill, the word "proceedings" is defined by Clause 54(1) as meaning judicial or other proceedings, and the same sharp distinction is drawn between the recognition of overseas divorces, annulments or legal separations obtained by means of proceedings and those obtained otherwise than by means of proceedings. But, as I shall now show, the consequences flowing from this distinction are not precisely the same as in the 1971 Act, or as recommended by the two Law Commissions.
Clause 46(1) provides that foreign decrees obtained by proceedings will be recognised if they are effective under the law of the country in which they were obtained, provided that either party was, at the date of the commencement of proceedings, habitually resident in, or domiciled in, or a national of that country. This follows the recommendations of the Law Commissions.
But Clause 46(2) adopts a more restrictive approach than that recommended by the Law Commissions in relation to overseas decrees granted otherwise than by proceedings. Such divorces include, for example, the bare Moslem talaq, and certain Hindu and Japanese consent divorces. Many African and Asian countries also have such divorces. The Law Commissions recommended that such informal divorces should be recognised on the same basis as those divorces obtained by judicial or other proceedings. We cannot accept this wide recommendation. There are public policy elements here. Such divorces are informal, arbitrary and usually unilateral. More importantly, there is often no available proof that what is alleged to have taken place has taken place at all. In addition, these divorces are almost exclusively obtained by men and therefore discriminate against women. Finally, particularly where the wife is resident abroad, such divorces provide little or no financial protection for the wife and family.
However, as I have said, Section 6 of the 1971 Act already provides grounds for the recognition of these divorces and it would be wrong not to continue to accord recognition on a similar basis. Clause 46(2), therefore, provides for a more restricted recognition of such decrees. One of the aims of this is to give greater protection to wives resident in the United Kingdom whose husbands have obtained an informal divorce abroad. It would be wrong to deny a wife living here recourse to the protection of our own courts.
A divorce obtained otherwise than by way of judicial or other proceedings will be recognised if it is effective in the country in which it was obtained and if at the date on which the divorce was obtained each party was domiciled in that country. Such a divorce will also be recognised if only one party was domiciled in the country in which it was obtained and the divorce is recognised under the domiciliary law of the other party. No divorce will be recognised if at least one of the two parties was habitually resident in the United Kingdom for at least one year before the divorce was obtained.

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Finally, Clause 51, which lists all the grounds on which a court has a discretion to refuse recognition, includes in subsection (3) the discretion to refuse to recognise one of these informal divorces where there is no official certificate that it is effective under the relevant law. There is also a public policy ground, which can be found in subsection (3).
I have dealt at some length with Clauses 44, 46 and 51. For the rest it may suffice to say that the other clauses in this part serve to amplify the policy I have described.
Part III carries out the recommendations of the English Law Commission contained in its report Declarations in Family Matters. This part extends only to England and Wales. At present declarations as to status can be made either under Section 45 of the Matrimonial Causes Act 1973 or under the inherent jurisdiction of the High Court. The Law Commission considered that Section 45 contained outdated complexities and felt that there was an uncertainty between the relationship between the statutory and discretionary powers to grant declaratory relief. The Law Commissions recommended,
"that a new legislative code, based on consistent principles, should replace the existing hotchpotch of statutory and discretionary relief".
Part III contains this new code. Clauses 55, 56 and 57 provide, respectively, power to grant declaratory relief in matters of matrimonial status, legitimacy and legitimation and adoption. These clauses also lay down jurisdictional rules as to who should be able to apply. Procedural safeguards such as the intervention of the Attorney-General in declaratory proceedings and the form of the declaration are provided for in Clauses 58 to 60.
Clause 61 abolishes the right to petition for jactitation of marriage, as some noble Lords will know. This procedure takes the form of a petition which claims a declaration that the parties are not in fact married, coupled with an injunction restraining the respondent from falsely claiming that he or she is married to the applicant. Several such proceedings in the past have been brought from within your Lordships' House. Prior to Lord Hardwicke's Marriage Act 1753, which first made a formal ceremony of marriage compulsory in England and Wales, thus forbidding clandestine unions by hedge-priests, and others, this remedy was important. The informality of marriages before 1753 gave rise to much doubt or dispute as to whether or not a marriage had taken place. The requirement of a formal ceremony of marriage after 1753 saw a rapid decline in the use of this remedy. The last known petition for jactitation of marriage was as recently as 1977; but it is a remedy which we believe can now be consigned to history.
Clause 62 repeals the Greek Marriages Act 1884 which was designed to validate 36 marriages celebrated in England between 1836 and 1837 between members of the Greek Orthodox Church. For all practical purposes I believe this Act is now spent and may be safely repealed.
Finally, I turn to Part IV of the Bill which is aptly described as "Miscellaneous and General". Clause 64 enlarges the rule-making powers of the Matrimonial
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Causes Rule Committee. A greater degree of flexibility, in particular the ability to distinguish between different cases and different circumstances, will in future be possible. Clauses 65 to 67 amend the enactments dealing with international child abduction in ways, mainly technical, which will nevertheless make them more effective.
Alas, I am only too conscious of the length of my explanation. The diversity and complexity of the provisions of the Bill made this unavoidable if I were to explain it fairly. In conclusion, all I would say is that, for the variety of reasons I have outlined above, this Bill is an important law reform measure which I commend to your Lordships. I hope that it will prove quite uncontroversial. My Lords, I beg to move.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
3.27 p.m.
Lord Elwyn-Jones: My Lords, the House is grateful to the noble and learned Lord for taking us so felicitously through this important family law reform Bill. It deals largely with the unhappy questions that arise when a father and mother divorce each other and there then follows the great fight over custody.
I remember one occasion when it fell to me as Attorney-General to exercise the duty of calling for the intervention of the Queen's Proctor—we have now done away with that, thank goodness!—and the note I had included a statement by the husband who said, "My wife and I would have been divorced a long time ago but for the children—she won't have them and I won't have them."
However, that is a rare event and the normal consequence, alas, of the breakdown of marriage is a terrible fight over custody of the children where civilised arrangements and relationships have broken down. These circumstances have given rise to what the press have come to call "tug of love" cases; where there is this terrible battle as to who is to have custody. I am not aware that love is a predominant feature of the operation. There is a terrible attempt at in-fighting, calling in the assistance of the courts in the process. This useful measure of law reform at any rate limits the opportunities for mischief and moves towards the importance of a civilised settlement of disputes.
As the noble and learned Lord has indicated, the Bill is largely a product of the Law Commissions. It is an admirable illustration of the debt which the public at large and Parliament and the Government in particular owe for the work of the Law Commissions and the high quality of that work.
With one significant and unhappy exception to which I shall come shortly—namely, Clause 64—this Bill follows the text and recommendations of the Law Commissions. That fact is, as the report of the Law Commission concerning one part of the Bill states:
"A dispute over custody may jeopardise the child's welfare and happiness and the emotional distress may drive the parents or others concerned to have recourse to unlawful remedies",
and it gives rise to attempts, by going from one jurisdiction to another, to get a better answer from the courts.
In an extreme case—and the noble and learned Lord has indicated some of these cases—the child may be

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taken from the jurisdiction of the court which has made an order for its custody to another jurisdiction, where another court may take a different view of the facts of the case and make an inconsistent order. It produces nothing but a shambles and great unhappiness. As the law stands at the moment sometimes these custody problems are aggravated by lack of co-operation between the courts which have different jurisdictions. The attempt in this Bill to rationalise the position is one which we heartily accept and with which we agree.
As the noble and learned Lord has said, Parliament legislated in the Child Abduction Act 1984 on some features of this problem in its international aspects, and the Child Abduction and Custody Act 1985 was part of the same package of an attempted solution to this unhappy problem.
I agree that Part I of the Bill dealing with child custody completes a valuable package of law reform measures which are badly needed to solve this difficult and often heartless problem of abduction by estranged parents, not only outside the United Kingdom but, in view of the conflict of jurisdictions which already exist within the United Kingdom as well. It is right that we should put the welfare of the children themselves at the forefront of our consideration as we are doing in this Bill. This is a time when care and concern about children have come to the forefront of our affairs and thinking more than ever before. I think that there is a greater awareness and recognition of the cruelties that children are suffering in our society. We hope that awareness will be reflected in the attitudes of parents toward their own responsibility for their children.
In regard to the Bill itself, the main point, which I think has been raised by the Law Society in particular, relates to the jurisdiction of the court to make custody orders and the difficulties which it is felt could arise by applying the test of the habitual residence of the child. It is quite true that this term is used in other legislation. It is not defined in the Bill and the Law Society recommends—and if I may say so I think that there is a good deal to be said for it—that a test for habitual residence for, say, a year ought to suffice and ought to make it easier for the courts to operate these provisions.
So far as concerns Part III of the Bill, which relates to declarations of status, I agree that the High Court and the county court should have concurrent jurisdiction to make declarations as to marital status. It is clearly desirable that in this field there should be maximum flexibility to ensure that cases are dealt with at the level which is most appropriate.
I come now to the provision in the Bill which has given rise to a great deal of legitimate anxiety and indeed opposition, and that is Clause 64. Clause 64 seeks to do two things: first, to empower the Matrimonial Causes Rules Committee to amend or repeal any statutory provision relating to matrimonial practice and procedure; secondly, to make it legal—for the first time so far as I am aware—in matrimonial cases to remunerate legal aid work on a wholly different basis from private work. Those who have raised this matter—and many of those concerned have written to me—fear that the probable or indeed inevitable
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consequence will be that what is proposed will lead to an inferior service for the legally aided client. As to the first object, there is a provision in the Bill to empower rules of court made by a rule-making committee—in this case the Matrimonial Causes Rules Committee—to:
"amend or repeal any statutory provision relating to the practice and procedure of the Supreme Court or county courts so far as may be necessary in consequence of provision made by the rules"
It is startling that a rule-making committee should have power to amend or repeal statutory provisions in what may prove to be a highly important field.
It is right—and no doubt the noble and learned Lord will draw the attention of the House to this fact—that a similar power as contained in subsection (1)(a) is contained in the Supreme Court Act 1981. If I may say so, the fact that such a precedent exists does not make it any better. My submission is that amendments to statutory provisions which could be of very great importance to the citizen should be the prerogative of Parliament and not of any rule-making committee, however distinguished, anonymous or well-know n its membership may be.
For instance, it is suggested by those who have experience in these matters that to grant that committee the proposed power would enable it to abolish the decree absolute in divorce and to provide for all matrimonial cases to be heard by divorce registrars. There is no limit placed on the terms of the power. My submission is that the whole constitutionality of that proposal, at the lowest is highly dubious.
When we examine the second part of Clause 64, we find a provision that will have potentially far-reaching implications for legal aid. It would empower the Matrimonial Causes Rules Committee to discriminate against legal aid work so far as concerns the costs of proceedings. It has been and indeed still is a fundamental principle of the Legal Aid Act 1974 that the fact that a party is legally aided shall not affect the relationship with his solicitor or his barrister. Legally aided parties have always been entitled to receive the same service as those who pay, and in consequence the remuneration of barristers and solicitors in civil legal aid cases has always been assessed on a basis which applies also to private clients.
The present basis for the assessment of legal aid costs is paragraph 4(1) of Schedule 2 of the Legal Aid Act 1974 which provides that:
"costs shall be taxed for the purposes of this Schedule according to the ordinary rules applicable on a taxation as between solicitor and client where the costs are to be paid out of a common fund in which the client and others are interested".
The aim of Clause 64 in its second part is to enable fixed rates to be prescribed for legal aid work while leaving taxing officers to determine fair rates for private work. An aim is to reduce the cost of legal aid and payment for legally aided work. But the fear of those who deal with these matters, who are not by any means solely concerned with their own benefit, is that the inevitable result will be a reduction in the standards of service for legally aided persons. For that reason we feel that this clause, which is not in any sense part of the responsibility or recommendation of the Law Commission—that was not what it had to

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deal with—is an unattractive addition and intrusion into what is otherwise an admirable Bill.
At present, taxing masters and registrars fix fair remuneration for the payment of lawyers' fees in the light of local conditions and the circumstances of the case. Good work is rewarded; bad work is penalised. The system has worked pretty well since legal aid was introduced. However, fixed rates, which are now proposed in this field, by which mechanical assessments of hours worked will replace qualitative assessment of the work done, will reduce, we fear, the quality of the service provided and will discourage efficiency.
For those reasons we hope that further reflection will lead the noble and learned Lord and the Government to abandon Clause 64 of the Bill, which is at the moment the only black mark upon what is otherwise an admirable piece of law reform.

Libyan Nationals: Expulsion
3.42 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Glenarthur): My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer to a Private Notice Question on a decision to expel a number of Libyan nationals being given in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"Twenty-one Libyan nationals have today been served with notices of intention to deport on the ground that their deportation is conducive to the public good in the interests of national security. I took this decision in the light of the latest information about the active involvement of those concerned in organising Libyan student activity in support of the Gaddafi regime in the United Kingdom. I have authorised their detention while arrangements for their deportation are made.
"The House will understand that, in a matter affecting national security, it would not be right for me to disclose further details of the information available to me on which I took the decision to initiate deportation action. I shall not hesitate to use my powers under the Immigration Act to deport other Libyan nationals if evidence is received of their involvement in activities which might endanger security."
My Lords, that concludes the Statement.
Lord Mishcon: My Lords, in thanking the noble Lord the Minister for repeating the reply to a Private Notice Question asked in another place, may I make the position of those who sit on these Benches abundantly clear? Whatever one's views may be about the action taken by the United States Government and by our own Government a few days ago, we on these Benches feel that there should be complete unity in behaving with such discretion as will safeguard, so far as we possibly can, British interests and British personnel wherever they may be. That includes, obviously, the security of citizens in this country. If, therefore, there is a genuine action taken in regard to that
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security, those sitting on these Benches have no doubt about their wish to support the Government.
Having said that, I am perfectly sure that the Government will realise that there are questions being asked in nearly every civilised country (apart from those that do not deserve that description) as to whether or not this Government acted in good faith in regard to their fear of terrorist activity and the responsibility of the Libyan Government for that activity. Her Majesty's Opposition, in this House and in another place, have said that they have no doubt of the complicity in terrorism of Gaddafi and the Libyan Government. But questions are being asked. It is not sufficient, if I may respectfully say so, for Her Majesty's Government merely to make an announcement at this stage of the expulsion of 21 Libyans and then give the usual sentence that it might be appropriate in other circumstances that further details, because of security reasons cannot be given.
What an extraordinary date to choose for this expulsion, it might be asked by those not friendly to this country. If these people were a danger to the security of this country, why was that not known and why was action not taken long ago? Why, by coincidence, does it take place a couple of days after the British Government try—when I use the word "try" I do not use it cheaply—to justify their action in collaboration with the American Government? Why were these people not detected in regard to their security risk more than 48 hours ago? Many have asked, in this House and elsewhere, why we were training pilots for Libya in view of the fact that it was known that the training could obviously be a risk in regard to terrorist activity. Why are we not told, and can we now be told, how many of the 21 are pilots from Libya being trained in this country? What is to happen about the others?
Finally, what is the position of 250 Libyan trainees now with British Airways? Are they a security risk? How many of them are included in the 21? I respectfully say that the Government will have to be a little more forthcoming in regard to the information for which I have ventured to ask for the sake of good public relations here and abroad.
Lord Wigoder: My Lords, I have no allegations of bad faith to make against the Government this afternoon. I welcome the information that has been given and also that these steps have been taken, perhaps somewhat belatedly. It is the belatedness of the matter that causes me a little anxiety. I should like to give one example. Perhaps the noble Lord the Minister can inform us whether among those to be deported there is a man by the name of Adel Masoud, who, according to the press—the press may or may not be right—was boasting last month that he was a member of a revolutionary squad in this country who was prepared to become part of a suicide attack. If that is right, it looks as though action of this sort might properly have been taken rather more quickly than it has been.
The only other observation I would make is that it is highly probable that among the Libyan students in this country there are those who will potentially support terrorist activities. It will no doubt also be borne in mind that it is not impossible, particularly

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among a student body, that there may be some who are potential opponents of Colonel Gaddafi. I am sure that the Government will recognise the great importance of distinguishing carefully between the two, in order that we should do nothing that might discourage those who may in due course become part of an opposition movement.
Lord Glenarthur: My Lords, I am grateful to both noble Lords for their comments. I am also grateful to the noble Lord, Lord Mishcon, for expressing the view that he hopes for complete unity in safeguarding British interests and British personnel wherever they may be.
With regard to the question asked by both noble Lords about why no decision had been taken before to deport these Libyans, I have to say that I agree with much of what the noble Lord, Lord Wigoder, has said. Of course student or other activity conducted, for example, by the trainee engineers, to which the noble Lord, Lord Mishcon, referred, in support of a foreign government need not itself harm national security. But my right honourable friend the Home Secretary judged that, following the threats of last week, in this particular case it did.
It is all very well and understandable that the noble Lord, Lord Mishcon, should ask for more information to be made available about why more information cannot be given. I can only say to him that the decision to deport was taken on the ground that deportation was conducive to the public good and in the interests of national security, in the light of information about the active involvement of those concerned in Libyan student activity in the United Kingdom in the way that I described when I made the Statement. It would not be appropriate to disclose further details of the information on which the decision was reached.
The noble Lord asked in particular how many of the pilots were included in this number. I can tell him that one has been included. None of the Libyan trainee engineers is included in it, but I can tell the noble Lord that steps have been taken to make sure that these people—and I include both pilots and engineers in this—can do no harm. There are some legal and practical complications to further action but the departments concerned are reviewing urgently any steps that may be necessary. The noble Lord, Lord Wigoder, asked about one particular person, Adel Masoud Saad. That is apparently his last name. I can confirm to the noble Lord that, yes he is included among the 21.
Lord Boyd-Carpenter: My Lords, is my noble friend satisfied on the question of the pilots, only one of whom he has just said, is included in this recent order? Is he satisfied that it is safe in the present situation to have young Libyans flying aircraft in fairly close proximity to London Airport? Is he satisfied that the precaution which his noble friend mentioned yesterday—of not allowing them to fly solo—can be a sure guarantee against any kamikaze-style effort by one of these young men to produce a collision with civil aircraft going into Heathrow?
Lord Glenarthur: My Lords, as I said, this is something which has been looked at by departments concerned, including my right honourable friend the Secretary of State for Transport. As my noble friend says, the pilots are not flying solo. So far as can possibly be ascertained in the light of the examination which my right honourable friend the Secretary of State for Transport is conducting, there are no grounds to believe that there is any danger.
Lord Bottomley: My Lords, is the noble Lord the Minister reasonably satisfied that the safety of British citizens in Libya is assured? Following expulsion of these Libyan residents in this country, has he any further guidance to give to British citizens in Libya?
Lord Glenarthur: My Lords, of course one is aware of the sensitivities of those British subjects who are in Libya. I have no further advice to give them other than the advice which has been given over the course of the past few days.
Lord Thomas of Swynnerton: My Lords, can my noble friend tell us approximately how many Libyans there are in this country?
Lord Glenarthur: My Lords, yes—if I can find the relevant piece of paper. About 7,000 are subject to immigration control, and of them about 1,800 are students.
Lord Donaldson of Kingsbridge: My Lords, following the question of the noble Lord, Lord Boyd-Carpenter, it is really desirable that we should train Libyan pilots at all? Can we have a view on that? One's first reaction is that it might become a great nuisance to have a lot of trained Libyan pilots.
Lord Glenarthur: My Lords, of course I understand the views of those who suggest that it may be contrary to various interests for them to be trained here. Nevertheless, the number of Libyans who are over here who, as was suggested earlier, may be perfectly honourable citizens and are able to make best use of the kind of training which this country can offer, should not necessarily affect our right to train them. Individuals who behave in the way that these persons may have done will of course be well aware of the risks that they are running if they behave in that way.
Lord Strabolgi: My Lords, may I ask the noble Lord whether he is aware that we on this side of the House are not asking the Government for the reasons they came to this conclusion and decision to expel the Libyans, but why it took them so long to reach it? Are they aware that the French Government expelled a number of Libyans several weeks ago now? Why did it take the American exercises against Libya before the Government came to any conclusion?
Lord Glenarthur: My Lords, the noble Lord will be aware that these matters are looked at very carefully. As I said in answer to the noble Lord, Lord Mishcon, student activity in support of a foreign government need not in itself harm national security. I went on to say that my right honourable friend judged that, following the threats of last week, in this case it did. I

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do not think that that means, as the noble Lord is suggesting, that sufficient timely action was not taken.
Lord Molloy: My Lords, bearing in mind the extremely vital point made by the noble Lord, Lord Boyd-Carpenter, before what appears to be the almost solo and rash decision to accede to President Reagan's request were not all these matters examined? Were not all these matters taken into account? It might have been very difficult, and one can understand the situation about our nationals in Libya. But was not the aspect mentioned by the noble Lord, Lord Boyd-Carpenter, taken into account and thoroughly examined as to whether these events could have happened and still may happen? This action that has been taken probably should have been taken before the agreement was reached with President Reagan.
Lord Glenarthur: My Lords, the Government of course consider all possibilities.
Lord Chalfont: My Lords, if my question goes too wide of the Answer to the Private Notice Question, I am sure the noble Lord will tell me. However, I wonder whether the Government have any comment to make on the circumstance in which the Common Market is now exporting to Libya meat and butter at a fraction of the prices at which they are available in this country? If this circumstance is true, is it not strange that we should be deporting Libyan nationals and at the same time exporting to Libya material which will enable them to divert resources to the terrorist activity in which they have been engaged for too many years? Is this not an example of the curious attitude of the EC towards the Libyan problem?
Lord Glenarthur: My Lords, I do not think that I can be drawn on that point by the noble Lord, Lord Chalfont. I hear what he says. But, with respect, it goes rather wider than the Question that was asked.
Lord Orr-Ewing: My Lords, will my noble friend bear in mind that with 7,500 Libyans in this country it seems a little perplexing that only 21 are thought to be in any way a risk to this country's security? Will he examine this with care? Will he be as forthcoming on information as is conceivably possible? We have had an example in the past week where, in the absence of instant information from American or British sources, Colonel Gaddafi has made all the running, produced all the photographs and all the propaganda for the free and non-free world. We saw an example last night in pictures of anti-personnel bombs which were said to come from F-111s. F-111s leaving this country never had any anti-personnel bombs. This was a pure invention. And many other stories are circulating. We must be forthcoming if we are to fill the vacuum of interest which the media expressed.
Lord Glenarthur: My Lords, in answer to the last part of my noble friend's question, of course I understand his concern that we should be as forthcoming as possible, but on issues such as this, which touch closely on matters of national security, of which I am sure my noble friend will be well aware, it would not be proper to go any further than I have already.
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As regards the comparison between the 21 Libyans who will be deported and the other 7,000-odd in this country, I can assure my noble friend that my right honourable friend would not hesitate to make further use of his powers of deportation as necessary. However, we believe that those being deported are the main organisers of the sort of activity to which I referred.
Lord Rugby: My Lords, is there not a danger that we are arriving at a state of paranoia over the Libyans and laying the blame for every single act of terrorism at the Libyan door? Other people commit acts of terrorism. From the way we are going at the moment is there not a very grave danger that when they commit them those acts will be attributed to Libya exclusively? I think there is a grave danger.
Lord Glenarthur: My Lords, certainly that is an issue to which the Government are alive.

Family Law Bill [H.L.]
4.1 p.m.
Second Reading debate resumed.
Lord Meston: My Lords, perhaps I may now return your Lordships to consideration of the Family Law Bill. I should like to join in thanking the noble and learned Lord the Lord Chancellor for his detailed introduction to this Bill, which is indeed a complex but important measure. Part I of the Bill is most welcome. It introduces overdue reform in the area of recognition and enforcement of child custody and related orders within the national jurisdictions of the United Kingdom. It is the unadulterated product of a Law Commission report and indeed complements recent legislation in relation to child abduction.
In dealing with the practical problems which arise in this area of the law one is often faced with the question: what weight should be given to the fact that there are other proceedings concerning the child in question in another jurisdiction? Hitherto the courts in Scotland and in England have almost invariably expressed respect for child custody and other orders made in the other jurisdiction, but sometimes that respect is a little guarded, and even if an English court gives effect to a Scottish order, as it will usually do, it is not without feeling the need to reconsider the matter in varying degrees of depth.
Reconsideration of the welfare of a child is not always a bad thing in the interests of the child, but the reality is that it is usually the result of a desire by one or other of the parties to the litigation, out of a sense of grievance, to have a second bite at the same cherry. It is undesirable that the same issues relating to the same child should be ventilated within two courts applying the same criteria in the same manner.
Perhaps I may briefly give your Lordships an example in the form of a case in which I was involved. The parents of a girl aged six separated; the mother and child went to Scotland, the father remained in London. Two years later the father went to the Scottish courts, applied for custody, and after a full two-day hearing in front of a senior judge of the Court

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of Session custody was granted to the mother. The father of course was allowed access to the child, but at the end of the very first period of access allowed by the judge to the father back in England he decided to hang on to the child. Therefore, the mother had to come to England and make the child a ward of the English court.
There were further hearings and an appeal to the Court of Appeal, at the end of which the child was restored to the mother, as the Scottish judge had ordered some two months before. That was a classic example of unnecessary duplication of litigation and more than duplication of the expense and anguish to all involved. Had this Bill been enacted, that would not have occurred. Part I of this Bill rests on the very sound proposition that the best interests of the child usually require there to be simply one set of proceedings to decide what is best for that child.
However, this Bill works not only by giving rules for recognition of custody orders, but by providing a mechanism for deciding which jurisdiction has priority, and a mechanism for enforcement. It is not all negative and deterrent. There are positive benefits which I can perceive in that it will instill confidence in both the courts and the custodial parent in allowing access out of the immediate jurisdiction of the court.
One of the awkward questions which one's clients have the habit of asking is: what happens if he does not return the child at the end of the access period? Now one can say what can happen. The mechanism of this Bill, if enacted, will allow a custody or access order to be registered in another jurisdiction and, if necessary, swiftly implemented.
Part II of the Bill introduces reforms recommended by the Law Commission in another area, with certain modifications. As the explanatory note says:
"a more restricted approach than that recommended by the Law Commissions is adopted in relation to the recognition of overseas divorces granted otherwise than by judicial or other proceedings".
Most practising lawyers, if they are honest (which, of course, by definition they always are) do not find it at all easy to deal with cases in which the validity and effect of foreign divorces fall to be considered. As the noble and learned Lord the Lord Chancellor indicated, the Law Reports are stuffed full of cases involving consideration of talaq and gets, and other procedures. This is a problem which is on the increase, partly of course because of the increase of our immigrant population, but also now because financial relief is available in the English courts, and I think the Scottish courts, to those who were divorced abroad. This is peculiarly an area of the law in which trying to remove one lot of problems thrown up by one set of recognition rules can easily create another set of problems. It is very difficult to get the right mixture of simplicity, certainty and fairness.
In a Second Reading debate I shall not dwell on technicalities, but two points occur to me on Part II of the Bill. I can best illustrate this by an example. As I understand it, under the present law if, for example, two Israelis domiciled in Israel obtained a get in France, our courts would recognise the divorce irrespective of whether the French courts would recognise it. Under this Bill we would not recognise it even if the French courts were to recognise that
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procedure. That would seem to me to be unjust and indeed to store up further complications affecting the capacity of the individuals to remarry. Why should our courts not recognise something which the court of common domicile of the parties concerned would recognise?
One of the modifications to the Law Commission's recommendation finds its way into Clause 51 of the Bill. That clause provides a discretion to refuse recognition on certain bases. One of the grounds on which recognition can be refused is the absence of official documentation. This is a new requirement and, frankly, one questions the necessity for it. Now that the husband—and it is usually a husband, as the noble and learned Lord has said—cannot cheat a wife of access to the English courts for financial relief, there is perhaps less reason to be restrictive in recognition of talaq divorces and other similar forms of divorce. One can only surmise that the real reason for a requirement of the official documentation is to make the job of officials, and in particular immigration officials, easier. There was no need for documentation before. Expert evidence in appropriate cases usually sufficed, and this requirement may well cause hardship to those who come from countries where there is simply no mechanism for producing such documentation.
If one looks at what is required, one sees that it is not a document saying that a person is divorced; it is a document certifying that the divorce is recognised as valid under the law of that country. Even in sophisticated legal systems such a document may not be easy to obtain. It may often involve the parties having to go to the court of the other country to obtain appropriate certification of validity. This is compounded by the fact that the requirement is subject to discretion in the use of the words "may be refused". It will be difficult to advise the individuals concerned and it may be difficult for the officials for whose benefit presumably this requirement was introduced.
Part III of the Bill is also welcome. It introduces into an area of hotch-potch, as the noble and learned Lord said, a measure of rationalisation, although we must bid a nostalgic farewell in passing to jactitation of marriage, which we shall have to learn to live without, and the Greek Marriages Act.
Last, but not least, there is Part IV and Clause 64. We must guard against looking for hidden menace in an enabling provision tucked away towards the end of an essentially uncontroversial Bill. I also guard against subjecting your Lordships to a grumble about lawyers' fees, as to which I must declare an interest as someone who primarily earns his living from legally aided family law work. But the noble and learned Lord, Lord Elwyn-Jones, is right. There is considerable concern for those who practise in this area of the law.
Since 1949, lawyers who have been prepared to deal with legal aid litigation have been entitled by statute to fair remuneration as taxed, and that means as assessed by an independent taxing officer. It is meant to be fair remuneration. We sometimes beg to differ. It is certainly not generous remuneration and in High Court cases it is 90 per cent. of fair remuneration by reason of some legislative quirk lost in the depth of history. The underlying purpose of the change in the law proposed by Clause 64 is, as I understand it, to

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enable rules to be made to standardise fees in order to reduce the scope for discretion in allotting fees to the legal profession.
The concern of the legal profession is that these changes are not likely to have been introduced to increase our fees, and the question is asked: if they have not been introduced to decrease our fees, what is the point? The legal profession takes the view—and we are the people who deal with this work—that the range of work is so varied that standardisation of fees is inappropriate. This is an area of the law where there are seldom easy answers. Both in financial and in children's matters there is a vast range of discretionary factors to be taken into account by the courts and by the lawyers in advising the litigants. The work has an immediacy and an importance which sometimes perhaps are absent in other forms of work. Efficient and careful preparation is vital in everything.
This is not an area of concern simply to the individual lawyers. As the noble and learned Lord, Lord Elwyn-Jones, said, it is a matter of public interest. The risk is that there will be created a two-tier profession: those who will and those who will not take legal aid work. That gulf already is beginning to appear and it will widen. The best lawyers, by whom I mean the most successful, should feel able to take legal aid work and, conversely, the legally aided public should not feel that they have to go to lawyers that they perceive as second best. To create this gulf is to limit the choice of the public.
If I may give a practical example of what may go wrong by way of illustration, a man of modest means goes as a paying client to a solicitor; his funds run out and he is eligible for legal aid. But the solicitor says "I am afraid that I won't take legal aid work". What does the client do? He has either to soldier on with the solicitor of his first choice as a paying client although he is eligible for legal aid or to find another solicitor who has to duplicate much of the work that has already been done at public expense, with the result that there will be considerable delay and detriment to both parties to the litigation.
I can only repeat that the system of independent assessment of legal aid fees has existed for approaching 40 years. It has existed under primary legislation and it should not be swept away by regulations under subordinate legislation. I ask the Government to note our concern. With those reservations, this Bill is most welcome.
The Lord Chancellor: My Lords, before the noble Lord sits down, I should like to correct one thing that he said. It is this. He is wrong in thinking that the legal aid regulations have gone on for 40 years. They are constrained by rules of 1979 which I cannot change. What has happened since is that registrars and others who have had to work the system have had to do it without the limits of discretion, because the 1979 levels are wholly out of date. If Clause 64, with whatever disadvantages or advantages it may have, goes through, as I hope it will, the discretion element in the taxing master will remain.
4.18 p.m.
Lord Campbell of Alloway: My Lords, from these Back Benches I pay tribute at the outset to the work of the Law Commission and congratulate the Government on a thoroughly useful and excellent Bill. I also make one point of criticism which of course relates to Clause 64. This has been referred to by the noble and learned Lord, Lord Elwyn-Jones, as an unattractive addition, an intrusion, a blot and a black mark, and, with respect, I go along with that.
The way that I look at the clause is as a suspect appendix, which is ripe for excision, to an otherwise excellent Bill. Removal of this clause would in no way affect the principle of the Bill or its intent. Clause 64(2) overtly proposes provision for a disparity of treatment between legal aid cases and private work, and this to be entrusted to a rule-making authority.
Three questions to my mind arise. The first is this. Is this disparity to include matters of practice and procedure under Clause 64(1)(a) or is it only related to the introduction of fixed rates or scales for legal aid work under Clause 64(1)(b)? As the noble and learned Lord, Lord Elwyn-Jones, pointed out, there is no expressed limit; no clear provision.
The second question is this. If fixed rates and scales are to be introduced, what machinery will be established to ensure that the expectations of reasonable remuneration are fulfilled? These would be in place of the existing case-by-case assessment by local taxing masters and registrars. This is a matter of concern to the Bristol Law Society (founded in 1770), which has written at length on the subject. As a member of the western circuit, I respectfully draw the matter to the attention of the House.
The third question and the last is this. If the fundamental principles of legal aid are to be abrogated—that legal aid shall not affect the relationship of the client, the solicitor and the barrister or the quality of the service—is it at all expedient that this should be left to a rule-making authority? Is it not, notwithstanding precedent, as the noble and learned Lord, Lord Elwyn-Jones, said, a matter which lies on the face of it within the prerogative of Parliament?
On the last occasion when my noble and learned friend the Lord Chancellor was moving subsidiary legislation concerned with legal aid I supported him. I supported him in the belief that, notwithstanding all other considerations, the quality of the service would be maintained and available for all, irrespective of legal aid or private work. I said so and I believed what I said. My concern today is that when I said that I had not seen Clause 64. I was not aware of its existence. Now I am genuinely concerned that Clause 64 could detrimentally affect the quality of legal aid work and matrimonial and family proceedings. I seek a measure of assurance.
I agree that the degree of quality required in cases concerned only with the issue of dissolution of marriage, whether contested or not, is virtually non-existent. Indeed, an uncontested divorce has all but become a matter of consent, subject to formal approval by the court. But such cases where there is only that issue are extremely rare. The general rule is that there is this question of the ancillary provisions for financial relief in which highly complex issues of

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revenue law and property questions arise. Here a high standard of specialist expertise is requisite, irrespective of whether the case is legally aided. Indeed, one might say that the smaller the means one's client has, the more important it is to him that this complex issue of financial provision should be properly and fairly resolved.
Then there is the question of the welfare and the custody of the children. Again, there are questions of financial provision and of expertise. Perhaps the most important aspect of the dissolution of marriage is the interests of the children. Surely in this area it would be unacceptable to have a disparate quality as between those who have private representation and those who have legal aid. Not only could it be said to be unacceptable, but to an old fashioned practitioner like myself it could appear abhorrent.
The replacement of the existing case-by-case assessment by taxing officers and registrars, who know their job, by a sort of civil servant, who I think is called a "determining officer", who applies fixed rates and scales and who does not know his job, has occasioned much trouble in relation to criminal legal aid. In the old days for criminal legal aid on the western circuit—I think it was the same everywhere—the clerk of arraigns did a case-by-case assessment. He knew his job. It was always fair, and there was never any trouble. It is the new system which has come in where the determining officers assess by scales that has caused all this trouble. This is the system which Clause 64 seeks to authorise and introduce in place of the existing system which certainly in the opinion of the Bristol Law Society works satisfactorily.
In conclusion, the question is, if Clause 64 is to stand—and it has no logical connection with the Bill as a whole—what machinery is proposed to ensure that the fixed scales, the rates, that are to be introduced by this rule-making authority are adequate so as to prevent any deterioration in the quality of this important professional service? If the rates drop below what is reasonable, so will the quality. I do not believe that that would be generally acceptable to your Lordships' House. On this I also seek a word of assurance, if it is possible for him to give it, from my noble and learned friend when he winds up.
In particular, I wonder whether one can take comfort from the words in the Explanatory Memorandum:
"The Bill is not expected to have any financial effects".
If the Bill is not expected to have any financial effects, if the object of Clause 64 is not, so to speak, to reduce the legal aid expenditure, then it would be easy to give some measure of insurance so that the supervisory machinery would be such to ensure that fair remuneration is paid under the proposed new system so that the quality of the service shall not deteriorate.
4.27 p.m.
Lord Mishcon: My Lords, in dealing with a Bill which relates to family law, the House (and it should appeal to it very much) is dealing with matters that now affect, unfortunately, a growing number of homes, families and people in the United Kingdom. There is no doubt, as my noble and learned friend Lord Elwyn-Jones, made very clear in his speech, that
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there will be agreement from these Benches with the main policies that flow from this Bill; those policies in turn flowing from three very useful reports of the Law Commission.
Compliments have already been paid to the Law Commission. The commission does not require it from me, but I should say how much we appreciate the growing custom at the end of these useful reports to prepare draft Bills (that I observe have been copied very faithfully in parts of the Bill we are considering today) and to add to that benevolence explanatory notes of its own Bill which is most useful to those who are trying to study the legislation now before the House.
So I turn now, if I may, to a minuscule point, and I emphasise how minuscule it is only when dealing with the explanatory notes and only to tidy up, if that be necessary and I am not wrong. In the Bill before us I noticed that the Explanatory Memorandum on page v under Part II and in thefirst paragraph, there appear to be some words omitted which do not make sense to me, although that may be a sign of my own deficiency in intellect. The last sentence appears not to be in the slightest degree clear, and I believe that the sentence starting "Moreover" and continuing a few lines later with "provides" has some words omitted. I point that out only, as I say, so that a correction can be made if I happen to be right.
As has been said, when we deal, as we deal in Part I, with the question of a child custody and clearing up the various vagaries that exist now both in jurisdiction and enforcement, this Bill fulfils a very useful purpose. I wonder how many members of the lay public would realise that custody orders at the present moment made in one part of the United Kingdom are not necessarily enforceable in another part; so that at present you can actually have custody orders in regard to the same child in different United Kingdom courts at precisely the same time. Such a system cannot be in the interests of children or parents, and it is obvious that in clearing up the question of jurisdiction and enforceability, the Bill, in conformity with the recommendations of the Law Commission, is fulfilling a most useful service.
In his opening speech, which all of us welcomed so much, the noble and learned Lord the Lord Chancellor in this context referred to Clauses 25 to 32 and explained why it was that in regard to mutual enforceability within United Kingdom courts, if I can put it that way, the age limit of the children was 16 and not 18. He further explained that our own courts can make custody orders up to the age of 18. The Scots courts cannot: they go up to only 16. With that reasonableness for which he is always known, the noble and learned Lord said, thinking back on English and Scottish history, that victory has to be yielded to the Scots courts because it would possibly be difficult for them to be asked to enforce orders of our courts, the Welsh courts or the Northern Ireland courts, where in fact there was jurisdiction to make orders up to the age of 18.
I pose the question: why is it difficult for a court to do that? They will have to enforce orders of foreign courts under our previous legislation where those courts have a different kind of jurisdiction and rules that are different from those that we practise. If there

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is any difficulty, is it too much—I ask this of the noble and learned Lord the Lord Advocate—that for once England, Wales and Northern Ireland ask the Scottish law authorities, "Don't you think on reflection that it can be useful at times to be able to have custody orders up to the age of 18? What harm will it do you if you raise the age of 16 to 18 in order that we have some uniformity and so that there can be that amount of unification of our laws across the Borders?"
Having posed that question, I pay tribute to what is now in Chapter VI of the Bill, where there are such useful provisions to assist the courts throughout the United Kingdom to order the disclosure of a child's whereabouts, to order a child's recovery when the child is not given up in accordance with a custody order, and—the most practical and useful provision—for the surrender of a passport where that has been issued to the child or where there are particulars of that child on the passport and in the case where there is a prohibition in regard to the child leaving the United Kingdom, or part of it, without a court order.
I pass now, if I may, in this humble winding-up speech, to Part II of the Bill. Part II, as the noble and learned Lord the Lord Chancellor says, gave effect to the Law Commission report on the recognition of foreign nullity decrees and related matters. One might have thought that was a very abstruse subject which had no practical application at all; and possibly to courts and parents in regard to their family affairs it may not have a great application. But it does have a very useful application, as was very sensibly pointed out in the Notes on Clauses, which I have had the privilege of receiving and for which I thank the noble and learned Lord's department, in that these provisions relating to nullity and the recognition of foreign nullity decrees are of the utmost importance to people like immigration officers, inspectors of taxes (for very obvious reasons), to trustees and, I suppose, to people who deal with the administration of welfare provisions in our various offices that handle those matters.
Therefore it is not just an abstruse matter that we are looking at. Indeed, as the noble Lord, Lord Meston, said, when we start dealing with matrimonial proceedings which are not the subject of judicial process, we are dealing now with matters of great importance to a number of our citizens in our multiracial community. Talaq was mentioned by the noble and learned Lord. I appreciate very much the reasons he gave for not following the recommendation of the Law Commission in this respect. I can well see that on public policy grounds the unilateral nature, as the noble and learned Lord put it, of these talaq divorces (largely, if not exclusively, open to the husband), the lack of proof, the difficulties about lack of financial provision, and so on, all made the Government feel that it was not a recommendation they would want to follow in allowing these decrees (if one can call them that) to be recognised and followed by our courts.
However, I should like to know from the noble and learned Lord, if he could help me, whether there has been any protest at all from the Moslem community in this country, which is of course quite a sizeable one,
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what the nature of their submissions is and whether they feel quite content with the provisions of this Bill in that context.
I turn now to Part III of this Bill. That relates to declarations in family matters. It follows closely the recommendations in the appropriate Law Commission report. I only add this. Some humorous remarks have been made, justifiably, about the suit of jactitation of marriage. I readily say to the noble and learned Lord that that is not something that solicitors practising legal aid have often to consider, and that applies even to those who do not have to look after legal aid cases. It is absolutely right that that suit, which is so anomalous, should be abolished. It arises when you are embarrassed by somebody declaring that you are married to them and, conversely, that he or she is married to you. A person goes to the court and asks for a declaration that that embarrassment should cease and that the court should declare that no such marriage exists and that there should be an injunction restraining the other party from saying that the marriage exists.
If that be a slanderous or libellous matter, there are remedies available in the civil law, and as has been said, I think rightly, it can equally be extremely damaging to say wrongly that one is the child of somebody or the brother or sister of somebody. In those circumstances there is no remedy such as jactitaction available. As with the Greek Marriages Act, about which comment has been made, I think that the time is right for the abolition of such remedies.
I conclude with a question about Clause 64. I shall not repeat the points that have already been made so lucidly by my noble and learned friend Lord Elwyn-Jones and the noble Lords, Lord Meston and Lord Campbell of Alloway. I should hate the House and the public to gain the impression that when considering and opposing the clause we are dealing with a profession which only has in mind rewards of a material nature as the way in which it is guided in its professional conduct. The legal profession, of which I am proud to be a member, has an outstanding record of public service in this country, whether it is with regard to legal aid centres, legal aid, free advice centres or whatever. I hope that the profession will continue to have that reputation, but there is a principle at stake. I shall not quote again examples of firms which are closing their legal aid departments, though it happens to be true, because they cannot afford to keep them, not because they want to do so. They are closing them for no other reason; they cannot afford to keep them.
I shall say merely that the principle was sacrosanct. The noble and learned Lord, if he will forgive me for saying so, was caught by that principle. The principle was sacroscanct that the same treatment should be accorded to people who sought legal aid as that accorded to those who could afford to go privately to their lawyers. There was to be a right of choice. There was to be a right of fair remuneration for those who served a legally aided client. In an attempt to alter that, which I am sure was an attempt made in good faith, the noble and learned Lord found that it was not possible to go against that principle unless something was put into an Act of Parliament and Clause 64 resulted.

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I ask the noble and learned Lord the Lord Advocate—we can look at the wording of the clause hereafter—to give this simple assurance: does that clause enable that principle to be broken? Is it the firm intention that a taxing master or registrar, having looked at the work done and the nature of it, will be able to award precisely the same costs as that registrar or taxing master would have been able to do when taxing on solicitor and own client or on a common fund basis when dealing with a solicitor who was looking after a private client? I ask for that firm assurance and then we shall know where we stand in Committee.
Having said all that, perhaps I may say, as my noble and learned friend said, that this is a good Bill. It has, however, a couple of clauses that must be looked at carefully and which may have to be amended.
4.45 p.m.
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, I am grateful to all those who have spoken from your Lordships' Benches on this Bill. I should like to add my compliments to both Law Commissions upon the reports from which the Bill has sprung. Anyone, whether he be solicitor, advocate or barrister, who has had to deal in this realm of law realises the problems that can arise—first, with regard to the custody of children, which is dealt with in Part I, and, secondly, with regard to the recognition of divorce and the like in Part II, and the necessity, as the commissions recognised, of trying to clarify and simplify the law in those realms.
The Bill also goes into realms with which I am bound to say I am unfamiliar, but from all that has been said I take it that there, too, the Bill has attracted a widespread and general welcome.
I do not wish to detain your Lordships over-long in replying, since the welcome has been so general, apart from commenting on one or two points. I shall take, as it were, the minuscule point that the noble Lord, Lord Mishcon, raised at the outset. I assure him that he is absolutely right. His eagle eye has detected a flaw in the Explanatory Memorandum which will be put right when the Bill is reprinted.
The next point with which I wish to deal is one which was raised by the noble and learned Lord, Lord Elwyn-Jones, with regard to Part I and the reference there to the habitual residence test. That of course was something at which the two Law Commissions looked. They dealt with it in paragraphs 4.15, 4.16 and 4.17 of the Law Commission report No. 138 and the Scottish Law Commission report No. 91. Their recommendations are in paragraph 4.18 of the report.
The view that the Law Commissions took was that it would be appropriate not to have a definition within the statute. They observed that the term was one which had been used in other statutes and had not given rise to difficulty. Furthermore, in paragraph 4.15, they note:
"Habitual residence, moreover, is a criterion of jurisdiction which is likely to be recognised abroad. It has been used widely in international conventions",
including of course the two conventions that formed the basis of the Act which passed through Parliament last year. I suggest that there is always a danger in having too much by way of definition of a phrase such
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as "habitual residence", and that it is best to leave the courts, by using a flexible and common-sense approach, to reach a conclusion. Otherwise, there may well arise the very anomalies which it is desired, certainly in this and in other parts of the Bill, to do away with.
The next matter to which I turn is a point that was raised with regard to child custody by the noble lord, Lord Mishcon. Perhaps as a Scotsman I have to be cautious in what I say about our system. The matter was again thoroughly dealt with by both Law Commissions, and in particular they dealt with it in paragraph 1.22 of the same report. Perhaps I may usefully read out what appears in part of that paragraph, because it is important. It is dealing with the point, after they have indicated that the jurisdictions of the courts in England and Wales and in Northern Ireland would continue in so far as custody orders were concerned in respect of persons under the age of 18, while the jurisdiction of the Scottish courts would in general remain limited to those under 16.
They said this:
"As regards the recognition and enforcement of custody orders"—
that is important; they are not intending to deal with the ability and capacity of the courts themselves to make orders—
"the two international Conventions to which we have referred above are confined in their application to children under the age of 16."
Of course, those are the two conventions which are now to be found in our law and in each, as noble Lords will be aware, it is made plain that once a child has reached the age of 16 the provision in the Act does not apply.
The paragraph continues:
"The consultation paper, on the other hand, defined the term 'child' to mean any person under the age of 18, and its provisional proposals were framed accordingly. The choice of any particular age for the purpose of our recommendations on recognition and enforcement is not an easy one. We are, however, influenced by the fact that a person over 16 has a mind of his own which cannot easily be ignored by his parents or by the court. Moreover, it would not be satisfactory to require a Scottish court to recognise and enforce orders relating to persons over 16 made in England or Northern Ireland when the Scottish court could not itself make such an order. There would also be advantages in adopting throughout the United Kingdom the same age limit as that specified in the international Conventions"—
that is, 16.
"We therefore recommend that our proposals on the recognition and enforcement of custody orders should be confined in their application to persons under the age of 16."
I turned to Appendix C in the same report and I observed that while the working paper went out with provisional suggestions about the age of 18, there were obviously considered by the Law Commissions very carefully a number of comments from fairly formidable figures and organisations north of the Border. I have no doubt that with all the comments in mind they reached a proper conclusion. I do not think I should like to suggest that they should now depart from that. It would have consequences, as the noble Lord will appreciate, for the jurisdiction of the courts north of the Border.
I now turn from Part I to Part II of the Bill. The noble Lord, Lord Meston, raised certain points in relation to Part II; in particular, the issue of informal divorces. I think my noble and learned friend the Lord

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Chancellor made quite clear the reasons why it was thought proper, so far as informal divorces were concerned, to bring in certain restrictions. As he said, these divorces give insufficient weight to the importance of the change of status; there are problems as to the proof of the change of status; the divorces are discriminatory against women; they offer them very little protection and are liable to abuse; and those are the reasons which motivated the Government in departing from the recommendations of the Law Commissions.
I should also say, as the noble Lord pointed out, that the courts have jurisdiction to make financial provision orders in respect of foreign divorces, but the use of this jurisdiction would be difficult to invoke for a woman who had been divorced by an informal divorce, because of the problems of proof that these extra-judicial divorces present to the courts. However, I think it is right to remind the noble Lord that, so far as Clause 51(3) is concerned, there is no requirement for an official document, but where there is uncertainty as to whether the parties are truly divorced, either in fact or in law, it is right to give the courts this power—it is simply a power—to decline recognition if these parties cannot provide an appropriate certificate. Accordingly, that seems, I suggest, to be a proper way in which to proceed in such circumstances.
On this part of the Bill, I think that the noble Lord, Lord Mishcon, raised two points: first, so far as actions of nullity were concerned; and, secondly, on the issue of the attitude of the Moslem community. I entirely endorse what he said on the propriety of the Law Commissions dealing with the issue of the recognition of foreign nullity divorces.
It appears, as my noble and learned friend the Lord Chancellor indicated, that there has been consideration in earlier Hague conferences of the question of attempting to draft a convention, but it now appears that the matter is probably never likely to be subject to such an agreed convention. There are many reasons for it and they are to be found in such matters as the differences in the social and religious philosophies of participating states, differences in jurisdictional criteria and differences in conflicts theory and substantive law. It is only fair to say that there is another matter—a more practical one, so far as the international community is concerned—that the number of nullity decrees is small in every participating state and the conference itself, in 1970, did not consider it a sufficiently serious problem to warrant inclusion in a convention.
In regard to the attitude of the Moslem community, I am advised that no representations have been received from the Moslem community. In passing, I would just note that it appears that neither of the Law Commissions received any representations on their consultation paper either.
That takes me to the last matter, which certainly exercised most, if not all, of your Lordships, and that is Clause 64. I tread here with a certain degree of trepidation as I am aware of what is the next business in this House and that I am dealing with a matter of legal aid in England. It is right that I should at least make clear, if that is required in view of what my noble
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and learned friend has said, the reasons for this clause. It is a direct result of the Government's commitment to there being appropriate controls over the level of fees payable for legal aid work and in particular for legally aided matrimonial work which this year will account for some £78 million of the legal aid budget.
In the course of our debate this afternoon, just after the noble Lord, Lord Meston, sat down, my noble and learned friend pointed out that matrimonial costs are currently governed by the matrimonial causes costs rules of 1979. These contain rates which, as he pointed out, have not been reviewed since their introduction. Therefore registrars are being asked to work within a framework that has with the passage of time become unsuitable for the purpose for which it was introduced.
The proposed matrimonial costs rules will not fetter the taxing officers. They will still be able to exercise a discretion on the taxation of privately funded cases and they will be able to exceed the prescribed rates in legally aided cases where the circumstances so demand. The proposed rules are the result of lengthy and detailed discussions with both branches of the legal profession which commenced as long ago as April 1984. These discussions were carried out on the basis that in order to be effective the new rules would need to prescribe rates for legal aid work. Neither the Government nor the professions wished to prescribe rates for privately funded work. As a consequence of this it was decided that the new rules would need to differentiate between the two types of work, and the levels of the rates to be prescribed for legal aid work were settled last autumn.
The powers of the matrimonial causes rule committee do not allow it to make the necessary distinction between types of work, and interim arrangements differing slightly from those originally discussed with the profession were proposed until the powers of the rule committee were widened. I understand that the Law Society was unhappy about the introduction of interim arrangements and suggested that it might be better to await the introduction of provisions that would enable the rule committee to make rules in the form originally discussed. It is for that reason that the powers have been extended for the rule committee; otherwise it would be acting ultra vires.
The Government are committed to there being appropriate controls over legal aid expenditure and officials have carried out extensive discussions with the legal profession in order that these controls should be both effective and equitable. Concern was expressed in particular about the power to amend or to repeal any statutory provision relating to the practice and procedure of the—
Lord Mishcon: My Lords, before the noble and learned Lord proceeds to that matter, I wonder whether he will forgive me if I point out that the Law Society certainly—others will speak for the Bar—is most unhappy about the suggestions in this clause in regard to charges. Will he please make clear one thing if he can? Is it intended that for the work done which is legally aided work and the work done by solicitors for private clients, the taxing masters and registrars will be enabled to assess the costs on precisely the same basis; or will different principles apply? Will this mean that the legally aided solicitor will get less?
Lord Cameron of Lochbroom: My Lords, I was hoping at least to respond before I sit down to the matters which the noble Lord has raised. Perhaps I may leave that over. I have not omitted it. Whether what I say will be thought by the noble Lord to be a response is a matter for him, but I assure him that I have not forgotten it.
The proposal in Clause 64 that the committee should be enabled to amend or repeal certain statutory provisions is, as the noble and learned Lord, Lord Elwyn-Jones, pointed out, one which is precedented. It is intended as a power that will be used where a desirable change in the practice of the procedure of the courts is otherwise prevented by earlier statute provision. I should point out that it will be exercised by a rule committee, which is a body made up of members of the judiciary, practising barristers and solicitors and which will of course be subject to annulment by resolution of either House of Parliament.
I point out again that Clause 64 is an enabling provision. It ensures that the rule committee's powers are sufficiently wide. Before the "changes"—I use the word in inverted commas—which have formed the basis of certain apprehensions could be made, there would inevitably and necessarily be further consultations and further opportunity for the profession to make representations both to my noble and learned friend and to the rule committee. Indeed, I understand that lengthy discussions have taken place with the Law Society and the Bar. These will continue on the form and substance of the proposed rules.
The noble Lord, Lord Mishcon, asked me for certain assurances. The first was in relation to the principle of equal treatment. At present the taxation of legal aid bills is already different inasmuch as many of the bills would, if not for legal aid, be taxed on the more generous solicitor and own client basis. The Government have no present wish to introduce greater controls over privately funded work. With regard to publicly funded work, different considerations must be relevant.
The second assurance was in regard to the level of fees. What is proposed is the introduction of standard rates across the country based on a survey which was discussed with the profession. There is no intention to reduce the levels of remuneration found in that survey. Annual reviews of the prescribed rates will be conducted.
It may be that the noble Lord may not regard those as being the assurances for which he asked, but I think I am entitled to make this point. Contrary to something that the noble Lord said—that there was already evidence to suggest that the number of solicitors undertaking legal aid work has declined—the figures available up to the present time would not suggest that that was the case. In the first years in which the figures were collected—that is, 1981–82—some 9,460 firms of solicitors received payments from public funds. In the last year for which figures are available that number had risen steadily to more than 11,000. My noble and learned friend the Lord Chancellor has had no complaint from members of the public about the difficulty of obtaining legal representation in legally aided cases.
Lord Mishcon: My Lords, I hate to interrupt the noble and learned Lord again and I promise that it is the last time. Has he read an article in the Observer of 6th April headed:
"Legal aid system close to collapse"?
If he has not read it, will he be good enough to do so?
Lord Cameron of Lochbroom: My Lords, I hesitate to say that I do not read the Observer. I am grateful to the noble Lord for having brought that article to my attention. I shall bring that article and the headline, which may not be entirely in accordance with what is in the body of the article, to the notice of my noble and learned friend.
Lord Elwyn-Jones: The noble and learned Lord has already read it, my Lords.
Lord Cameron of Lochbroom: My Lords, knowing my noble and learned friend's wide catholicity of Sunday reading, I am sure that he will have read that article.
Lord Mishcon: Indeed, my Lords, he has already described it.
Lord Elwyn-Jones: Monosyllabically, my Lords!
Lord Cameron of Lochbroom: My Lords, as I said, my noble friend Lord Campbell also made certain points about Clause 64. In what I have said I have attempted to answer both the points that he raised and those raised by other noble Lords. My noble and learned friend will keep very much in mind the criticisms that have been made about the proposals and the fears that have been expressed. I suggest that they are not merited, but they are matters that are perhaps best discussed in Committee. I am grateful to all noble Lords who have given a general welcome to what I suggest is a most useful measure of law reform. I beg to move.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Legal Aid (Scotland) Bill [H.L.]
5.11 p.m.
Lord Cameron of Lochbroom: My Lords, I have it in command from her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Legal Aid (Scotland) Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purpose of the Bill. I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Cameron of Lochbroom.)
On Question, Bill read a third time.
Clause 1 [The Scottish Legal Aid Board]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 1:
Page 2, line 11, at end insert ("and shall consult with organisations representative of such interests before making appointments").
The noble Lord said: My Lords, this amendment is yet another attempt to give the appearance of independence to the board. It has been generally recognised that some consultation is essential. The noble and learned Lord the Lord Advocate said that such consultation is taking place at the moment and that the Secretary of State is initiating consultations. I believe that it was the noble and learned Lord, Lord Wilson of Langside, who said that it was inconceivable that such consultation should not take place.
My purpose in tabling this amendment and Amendments Nos. 2 and 3, which go together, is to ensure that the necessity for such consultation is available to be seen by anybody who cares to read the eventual Act. The fact of consultation would therefore be made more public. I beg to move.
Lord Wilson of Langside: My Lords, I have been thinking a little about this matter. When it first came before your Lordships I took what may be described as a technical draftsman's point of view; namely, that such a provision was not necessary and it was not usual to make it. In so far as I have thought about the matter, I have concluded that if there are anxieties one should allay them by inserting such a provision in the Bill. Why not? I am disposed to support the amendment.
Lord Cameron of Lochbroom: My Lords, the noble Lord opposite has spoken to Amendments Nos. 2 and 3 along with Amendment No. 1. Perhaps I should make clear my attitude to Amendment No. 1 first of all, because it appears in a part of the Bill that does not, I suggest, make it easy to add the words that are proposed in Amendment No. 1.
Clause 1 (4) merely sets out the experience that the Secretary of State will look for in appointing persons to be members of the board. Subsection (5), which is the subject of Amendments Nos. 2 and 3, is slightly different. It would be difficult to suggest the organisations that would have to be consulted if Amendment No. 1 were passed. For instance, in such areas as business and finance what organisations are to be looked at? In any case, in that area formal consultation may not be the best way of finding suitable candidates.
At Report stage I indicated that my right honourable and learned friend had already invited a number of bodies to suggest people for possible membership. It seems reasonable that in general he should be able to choose the bodies that he wishes to consult when he is considering the initial appointments to the board and also subsequent appointments, which may not, of course, all be made simultaneously. I believe I have made clear that in so far as subsection (5) is concerned, there was a specialty, because it is aimed at indicating the bodies from which membership of the board should be drawn.
I would be perfectly prepared to accept the principle of the amendments, since they reflect what would be the procedure adopted by the Secretary of State. It is only right to say that I have reservations about the wording of Amendment No. 3 in its reference to the Council of the Law Society. I suggest that the words "Council of should be deleted, because the words "Law Society" appear elsewhere.
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Unfortunately, it is not possible to table a manuscript amendment to that effect. However, I shall recommend to my right honourable and learned friend that the necessary amendment both to follow the wording in Amendment No. 2 and that as revised so far as Amendment No. 3 is concerned should be brought forward in another place. That may seem preferable to accepting one amendment and not the other at this stage in the passage of the Bill. If the noble Lord is prepared to accept that arrangement, I shall ask him not to press any of his three amendments.
Lord Morton of Shuna: My Lords, I shall accept the noble and learned Lord's remarks in regard to Amendments Nos. 2 and 3, but I am disappointed that he does not consider it possible at least to consider Amendment No. 1 in theory and the question of where it could be more conveniently made. However, in the confident hope that somebody in another place will read this debate, perhaps it is unnecessary to press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 and 3 not moved.]
Clause 19 [Expenses out of the Fund]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 4:
Page 13, line 2, leave out ("those proceedings were instituted by the legally assisted person, and").
The noble Lord said: My Lords, this amendment was overtaken by the noble and learned Lord, Lord Denning, when he proposed a much more radical amendment at Report stage to take out the whole of Clause 19(3)(b). The amendment that I propose is merely intended to give the first instance court the power, if severe hardship would be suffered by the unassisted party, to make an award of expenses.
At present, the court only has power if the proceedings were instituted by the legally aided person. There are many cases where a person who is just over the legal aid limit is forced to sue, perhaps to recover a debt, a house or something of that nature, and thereafter some spurious defence is put forward under legal aid. The unassisted litigant succeeds but cannot recover his costs because he started the proceedings, even if he suffered severe hardship. It is a relatively small but, for the people concerned, very important defect and it is one that could be put right. I beg to move.
Lord Cameron of Lochbroom: My Lords, I have considered this point again in the light of comments made by noble Lords at Report stage. I said then that difficult and hard cases will always arise where one party to the proceedings is legally assisted and the other is not. I must adhere to my original point. There is a continuing need to make the best possible use of the resources available for legal aid and Clause 19(3)(6), which merely restates the existing law as it is on both sides of the Border, makes a proper distinction in allowing the possibilty of a successful non-assisted defender obtaining his expenses from the fund but not an unassisted pursuer; who, in any case, is in a sense in command of the action and may decide at any stage not to take it any further.

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It is of course the case that the restriction is not only in any event applied to the expenses of first instance proceedings and not to the expenses of any subsequent appeal. Conversely, I entirely accept that where the board 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 have more power in such cases to order the successful party's expenses to be met out of the fund.
The clause as it stands reflects a policy which has been adopted by successive governments over the years. I regret that I cannot accept the amendment put forward by the noble Lord.
The Earl of Selkirk: My Lords, may I ask my noble and learned friend how exactly he interprets the meaning of paragraph (c)? Paragraph (c) states:
"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."
How far does my noble and learned friend carry that statement? It sounds to me as if the court has a perfectly free hand to make a decision from which there is no appeal. He says that it is right and just that awards should be made. That seems to cover any situation, whether it is for the pursuer or defender, when the court thinks that legal aid is reasonable and just.
I must also ask whether, in paragraph (b) where the unassisted party suffers severe financial hardship, that means inevitably that he could have received legal aid if he applied for it. That seems to me to be a definition which precisely falls into legal aid. Can my noble and learned friend clarify those two points?
Lord Cameron of Lochbroom: My Lords, with the leave of the House, I shall respond to my noble friend. Clause 19(3)(c) is of course qualified by what appears in Clause 19(3):
"An order under this section"
which is defined earlier. As regards paragraph (c), that has to be one of three circumstances which can exist before a court has the power to make an order under the clause. Certainly taking paragraph (c) alone the court is entitled to have regard to all the circumstances in the event that it is empowered under the clause to make an order in the first place. Of course, the words "just and equitable" are the very kind of words which I think the court commonly uses when describing the exercise of its discretion. I hope that explanation satisfies my noble friend.
Lord Morton of Shuna: My Lords, it is clear that under Clause 19(3) an order can be made only after paragraphs (a), (b) and (c) are all qualified. Therefore, the court cannot make an order of expenses in particular unless the conditions in Clause 19(3)(b) are met. It seems to me entirely unjust that the situation exists, but I do not intend to take the matter any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Scope and nature of criminal legal aid]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 5:
Page 14, line 30, after ("may") insert ("after consultation with the Board").
The noble Lord said: My Lords, this amendment was tabled on Report by the noble Earls, Lord Selkirk and Lord Perth. The noble and learned Lord the Lord Advocate said he would consider it and I have tabled the amendment more or less to discover the nature of his consideration, because no amendment has been tabled by the Government side. It is obviously appropriate that the Secretary of State should make regulations of the type defined in Clause 21(2) only after consultation with the board. I beg to move.
Lord Wilson of Langside: My Lords, one would hope that in view of the noble and learned Lord's attitude towards Amendments Nos. 2 and 3 he would think it logical and consistent to accept this amendment, unless I have missed a point.
Lord Cameron of Lochbroom: My Lords, I think I made clear on Report that I would consider what had been said in particular by my noble friend Lord Selkirk on this matter. It is only right to say at this stage that I have invited my right honourable friend to consider whether, and if so how far, there should be provision on the face of the Bill for statutory consultations on regulations.
There are certain problems which have to be looked at. For example, there are certain areas as eligibility limits which are considered on a Great Britain basis where consultation with the board might not be thought to be appropriate. Indeed, there may be cases where one is bringing regulations forward where there have been regulations south of the Border and where the time factor may preclude full consultation. Accordingly, there are difficulties about providing within this clause for consultation with the board in the form suggested. I assure the House that i have brought the matter to the attention of my right honourable friend, as I undertook to do on Report.
The Earl of Selkirk: My Lords, I must say that I find my noble and learned friend's answer very unsatisfactory. I should like to explain why. My noble and learned friend pointed out that it is integral to the Bill that the board be independent. That is to some extent a small step in the Bill to show that it is independent. Without this there is no indication whatever that the board is independent. I should like therefore to ask this question. Let us suppose that the board disagrees with the regulation, is it entitled publicly to say so? If it is not entitled publicly to say so, it is not independent. It is the poodle of the Secretary of State.
Almost every noble Lord who has so far spoken in this House has had the utmost difficulty in accepting my noble and learned friend's word that this is an independent board. If it is not independent—and I must say I cannot see any marked sign of independence—what does it mean? I have to say that the reluctance of the Government to accept any amendments, however reasonable, indicates that the department wishes to have complete control over legal aid.

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That is a very big element in the administration of justice and I am bound to say that it is a very dangerous one. The administration of justice is not a matter for the department, it is a matter of an entirely different character. I have found nothing more sinister than my noble and learned friend's reference to such things as the Highland and Islands Board or East Kilbride. These are totally different. They are administrative matters, but the administration of justice is a totally different matter, and it is in this field that the department is seeking to gain substantial control.
I am very disappointed by what my noble and learned friend has said. It is in his interest to make it much clearer that this board is independent. If he does not do this, I am afraid that in Scotland the board will not be regarded as being other than the Secretary of State. That is not what he wants, but I am very sorry to say that that is how it will appear to most people in Scotland.
5.30 p.m.
The Earl of Perth: My Lords, I share with my noble friend Lord Selkirk his disappointment that things are as they are at present. I have just been looking up what took place on Report and the noble and learned Lord, Lord Cameron, said that they had included a clause which would enable the board to have specific power to give advice to the Secretary of State. He went on to say that obviously this advice can include advice on the content of the regulations—not that it will. I am afraid that I have a rather nasty and suspicious mind about this situation in which they can include it but will not necessarily. What is the good of something which just says that we can include it but does not undertake to do it? It is all very well for the Lord Advocate to have said, "I can give an undertaking here and now that my honourable friend will consult the board". We all know that what may be given as a undertaking in this House on behalf of the present Secretary of State has no sort of standing in law.
I do not understand why the Lord Advocate cannot give us something to which on Report he was sympathetic and which really is of first importance if the board is to be worth while. I need hardly repeat what I said at an earlier stage; namely, if I were asked—I am not a legal man—to join this board and knew that I was, to use the words of my noble friend Lord Selkirk, potentially just a poodle, I would not join. This is really a matter of great importance and I hope that we can have a more definite indication of the Government being ready to include this amendment, or something similar to it.
Lord Wilson of Langside: My Lords, I must say that I share the concern of all of those who have spoken in favour of this amendment about the Lord Advocate's refusal to accept it, or his resistance to it. At the same time, in the light of the somewhat extreme statement which the noble Earl made about the department, I understand his anxiety. We all have anxieties. The departments of the Scottish Office have always had a part to play in the administration of justice. The Scottish courts administration was set up by the then government in 1971 with the object of making the administration of justice more effective and more efficient.
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In other words, all I am saying is that while I support the amendment and hope the Lord Advocate will accept it, I do not think we should run away with ideas about sinister intrusions into not the administration of justice but the doing of justice. There is a difference, which I hope your Lordships will appreciate. I mention that merely to indicate that, while I support the amendment, my approach to the matter is somewhat different from that of the noble Earl, though I can understand his anxiety.
Lord Cameron of Lochbroom: My Lords, matters have been raised with regard to the undertaking which I gave on Report. I had thought I had made it clear that at that stage we were dealing with only an amendment to a particular regulation-making power. There are others within the context of the Bill. I thought I had made it clear that I had a certain degree of sympathy with the views which were being expressed and that is why I have made quite clear, as I did today, that I have invited my right honourable friend to consider this very matter.
All I have been saying today quite simply is that it is not always possible to have this phrase attached to every piece of regulation-making power because there are certain regulations which affect areas for which the board would have no responsibility. I assure the noble Lords to whom I gave the undertaking on Report that I am not in any sense departing from it: I am merely indicating that we are dealing with a particular amendment for a particular regulation-making power. As I said earlier, the matter extends far beyond this.
Lord Morton of Shuna: My Lords, this amendment relates only to regulations made under Section 21(2), which states:
"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 made available."
It seems to me that this cannot be the type of situation where United Kingdom considerations, such as the financial limits for legal aid, come into play at all. It is a matter, if I understand the subsection aright, primarily concerned with details of what type of, and stages of, criminal proceedings should have criminal legal aid and what types should have legal aid by way of representation.
It seemed to me that this was something that perhaps the Secretary of State would have had advice on from the noble and learned Lord the Lord Advocate, as to the advantages of such an amendment. However, in the light of his undertaking, I do not think it would be appropriate to divide the House and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 [Legal aid in summary proceedings]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 6:
Page 16, line 39, at end insert—
("( ) Regulations made under this section shall prescribe a method of appeal against the refusal of criminal legal aid.")
The noble Lord said: My Lords, this amendment relates to the right of appeal against a refusal of criminal legal aid. Prior to this Bill coming into force,

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legal aid in summary criminal cases was granted by the sheriff and there was no appeal. It was granted in public court, so to speak, or by a public official. The new set-up is not clear, but it is to be granted by the board, which must mean that it is granted by some delegated authority of the board who will inevitably be regarded by the litigant—by the applicant for legal aid—as anonymous and may, in fact, be more than one person.
It would be appropriate that there should be a method of appeal against a refusal of criminal legal aid. There is such a right of appeal in the English provision. This is a difference from the amendment I proposed earlier, in that I suggested then that the board should provide a method of appeal, and I am grateful for the suggestion from the noble and learned Lord the Lord Advocate that this should be done by regulation. I am sorry to add another regulation-making power into the Act, but it would be appropriate that there should be such a power.
Lord Cameron of Lochbroom: My Lords, I explained at both Committee stage and on Report that there is indeed no right of appeal or indeed of review in criminal cases at present so far as legal aid is concerned.
We are not convinced that there is any justification for introducing one at this stage so far as concerns summary criminal procedure, though of course this amendment goes further and extends to a refusal of criminal legal aid without, I think, reference to either. I suggest that there is no case for a right of appeal in solemn cases where the court is charged with the duty of granting or refusing an application upon a test of hardship, and I do not think that there are any arguments presented for one.
In regard to summary criminal cases, these will be dealt with. I suggest, and indeed I have argued, that the board can reasonably evolve a policy and guidelines for the determination of applications within the statutory criteria which are to be introduced into the Bill in another place and without such a review procedure. Our assessment is that in any case the introduction of a review procedure—and I use the word "review" advisedly, because it would inevitably mean that the applicant would be entitled to have his application considered of new—could lead to unacceptable delays in court business. Indeed, the noble Lord sitting opposite has not dealt today with a point which was made on Report by the noble and learned Lord, Lord Wheatley, about the time limit—so far as custody is concerned, 40 days—in summary criminal cases.
The Government are satisfied that the board will be able to achieve a much greater degree of consistency in the treatment of applications, which of course is one of the main reasons for changing the present arrangements. For those reasons, I am bound to say to your Lordships that the Government are not satisfied that there is any good reason for allowing this regulation-making power, even without the addition of any reference to consultation.
Lord Morton of Shuna: My Lords, on several occasions I have spoken on the theme of an appeal against refusal of legal aid. I do not want to repeat what
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I have already said to your Lordships at earlier stages. I quite accept that maybe the result of this measure will be greater consistency, but that is not necessarily good if the greater consistency is 100 per cent. refusal, for example. That is greater consistency. It will be necessary to see the effect. However, I do not wish to divide the House on this matter and I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 7:
After Clause 25, insert the following new clause:
(".—(1) In all cases in which the High Court of Justiciary authorises a new prosecution of a person under the provisions of section 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 maintained 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 to his resources or to any other criteria.").
The noble Lord said: My Lords, this is an amendment which was raised at an earlier stage and I think that the noble and learned Lord the Lord Advocate accepted the principle but not the drafting of it; or he was willing to consider the principle. It is a completely separate type of case where the High Court orders a new trial of a person whose first trial has gone wrong for what can only be the fault of the proceedings rather than the fault of the party. In such a case it will be entirely appropriate that the person should have legal aid if he is to be tried a second time for what is virtually the same offence, especially if he did not have legal aid before.
During a previous discussion on this amendment it was suggested that perhaps it could be added to another clause rather than standing as a separate clause. For what my views are worth, I have looked at the other, earlier criminal legal aid clauses and I cannot see one into which it can be fitted very happily. In the hope of eliciting some response from the noble and learned Lord the Lord Advocate as to what are the Government's proposals in relation to this matter, I beg to move.
Lord Wilson of Langside: My Lords, I take it that it is not intended that the person concerned in this unfortunate situation should be entitled to legal aid in the event of his having come into a fortune in the meantime, or perhaps having won a large premium bond prize or having done something as undignified as winning the football pools. I take it that there would have to be a proviso to cover that sort of situation.
5.45 p.m.
Lord Cameron of Lochbroom: My Lords, when we discussed this matter last week I said that the Government were giving careful consideration to the suggestion that legal aid should be automatically available, at least in certain circumstances, in relation to new prosecutions which are authorised by the High Court. I explained then that we wished to consider not unsympathetically the need for automatic legal aid, whether generally or in particular circumstances. In any event, we thought that the drafting was defective.
One of the matters for consideration, of course, is

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the very point which the noble and learned Lord, Lord Wilson of Langside, has raised today. When we last discussed this matter on Report, I made clear that probably it would not be possible to reach a conclusion before the Bill left your Lordships' House. A conclusion has not yet been reached but I can certainly assure the noble Lord, Lord Morton, that we are considering this very carefully. In view of what I have said, I hope that he may be willing to withdraw his amendment.
Lord Ross of Marnock: My Lords, surely we shall not deny someone justice and commonsense action on the basis of his possibly having won a football pool? It is really quite ridiculous. What are the chances of that happening? It is not one of my customary weekend indulgences to fill in football pools—
Lord Wilson of Langside: My Lords, if the noble Lord will allow me—
Lord Ross of Marnock: My Lords, I have not sat down, as a matter of fact. If the noble and learned Lord wishes me to sit down, I shall be glad to do so.
Lord Wilson of Langside: My Lords, I was going to say that. I just thought that I ought to reassure the noble Lord that my suggestion was meant to be a relatively light-hearted one. At the same time, it has a point from the Treasury point of view. I did not mean my remark to be terribly serious and raise a great moral issue which would rouse the noble Lord's Scottish blood.
Lord Ross of Marnock: My Lords, if the noble and learned Lord does not want his speeches to receive a reply or to be referred to, he should not be so foolish as to make what he thinks is a foolish point on a very serious matter.
Lord Wilson of Langside: My Lords, I did not actually do that.
Lord Ross of Marnock: My Lords, it was not I who mentioned football pools or the likelihood of winning the football pools; it was the noble and learned Lord, Lord Wilson of Langside. The same applies to the other point that he has made about a wife or someone coming into a fortune. The likelihood is so exceptional that we cannot deny justice to everybody else on that score.
What harm would there be if the man were granted legal aid? We thought it was a great advance when the right to order a new trial was given. There is no point in ordering a new trial for a man if he is then going to be denied the help of legal aid and probably will employ the very same people who already know the case. I do not know why there is any hesitation on the part of the noble and learned Lord the Lord Advocate. I have yet to hear in this House that the noble and learned Lord has made up his mind and will accept an amendment. It is the test of a good Minister that he should recognise common sense and justice. The noble and learned Lord is the Lord Advocate and it is up to him. He should not constantly put off these matters in order to have more discussion with his people in the
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Crown Office and with the Secretary of State. We look for a little more than that.
I remember that when we introduced this right to have a new trial we thought it was a great advance, but if one is going to deny a man help in that new trial that right is virtually being taken away. We should make it perfectly plain that he will have that help in respect of legal aid.
Lord Morton of Shuna: My Lords, this situation can only arise when someone has been acquitted at the first trial and the court decides that something has gone wrong in the procedure and that he has to be tried a second time. Even if one is dealing with someone who could perhaps afford to be tried twice, it is so unusual and unreal that it is appropriate that there should be automatic legal aid. As the noble and learned Lord, Lord Wheatley, pointed out at an earlier stage, the situation only arises because the court system has gone wrong somewhere. However, in the light of the Lord Advocate's assurances on behalf of the Government, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Solicitors and counsel]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 8:
Page 22 line 34, leave out subsection (8).
The noble and learned Lord said: My Lords, it may be convenient for us to consider Amendments Nos. 8 and 9 together. The point at issue arose during the Report stage when we attempted to obtain clarification from the noble and learned Lord the Lord Advocate as to what was contemplated and intended by subsections (8) and (9) of Clause 31. Subsection (8) reads:
"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".
As with so much of the Bill, new rules will no doubt in due course indicate what circumstances might be specified or what procedure might be brought about to clarify so much that is dark in the Bill for lack of particularity. As it stands, it is not clear what is contemplated. The words of the Bill are:
"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".
I understood that what was contemplated, though I am not sure that this resolved the difficulty, was procedure in the event of contempt of court proceedings taking place. I notice that the noble and learned Lord the Lord Advocate shakes his head. It was nevertheless suggested in the earlier discussions. However, it may be that what is contemplated is that Clause 31(8) will be used to allow the board to continue the duty solicitor arrangements. If that is the purpose, why is that not stated instead of the position being left as indeterminate as it is?
Subsection (9) reads:
"Where a solicitor is available as is mentioned in subsection (8) above, the Secretary of State may by regulations made under this section, provide that—
(a) subsection (1) above shall not apply".
Subsection (1) is an important subsection saying that a person to whom legal aid or advice and assistance is

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made available may select the solicitor to advise or act for him or, if the case requires counsel, his counsel, and that he shall be entitled to make the selection himself. That is an important basic provision but one that is to be departed from in the circumstances set out in subsection (9).
While the noble and learned Lord the Lord Advocate gave no undertaking in our previous discussions, he said that he would bring the uncertainties to the attention of those who are particularly concerned to see that the words fully express the intention of the Bill. I was therefore a little disappointed that nothing appeared by way of amendment or addition, or even substraction, to clarify the position. We are storing up troubles for ourselves and sustaining the unnecessary anxiety that presently exists by reason of the words of subsections (8) and (9), which seem to take freedom of choice away from the aided litigant whose circumstances are put entirely at the discretion of the board,
"in such circumstances as it may specify".
I hope therefore that it is still not too late—it is getting near the eleventh hour—for something to be done by way of clarification of what is intended. In the meantime, the best that we are able to suggest is to leave out the obscurity altogether by leaving out the subsection. I beg to move.
Lord Cameron of Lochbroom: My Lords, I have explained, I believe, in some detail the primary purpose of these two subsections. I accept that subsection (8) is a power given to the board to 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".
I have already indicated that the primary purpose is to allow the board to continue the Scottish version of the duty solicitor arrangements. Those cut out, of course, the right to seek advice from another solicitor for that limited purpose.
It is perhaps right to say that consideration shows that there may be other circumstances where it is desirable to set up comparable arrangements, for example, in relation to certain mental health appeals. I mentioned on Report, I believe, and certainly I did so in Committee, that sheriffs were not anxious to have any general residual powers to award legal aid or advice and assistance and that the specific cases where they continue to have powers to award legal aid are set out in the Bill. In compliance with the sheriffs' views, there is nothing in the Bill that corresponds to Section 2(4) of the Legal Advice and Assistance Act 1972 which enables them to appoint a solicitor present in the court to assist a party in proceedings.
As is indicated in the 1984–85 report of the Legal Aid Central Committee that has yet to be published, this power is presently used for appeals against detention under the Mental Health (Scotland) Act and it may be that arrangements under Clause 31 could appropriately take its place. I do not say that this will be done as it is a matter on which the board, when appointed, may well have views, but I was asked to give other examples of possible use of the powers.
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As I promised, I have drawn the attention of my colleagues to the points made on Report. I shall similarly draw their attention to the further points made by the noble and learned Lord today. But it is considered that these two subsections provide the board with a valuable addition to its functions and, in particular, enable it to continue the duty solicitor scheme and, it may well be, introduce it in the kind of area that I have outlined to the noble and learned Lord today. I hope that in these circumstances the noble and learned Lord may be prepared not to press the amendment. I have, as I say, indicated that we are considering these matters. There are obviously difficulties in being too specific, for the reasons that I have already given.
Lord Elwyn-Jones: My Lords, I am most grateful to the noble and learned Lord the Lord Advocate. I do not intend to seek the views of the House on the matter, but I am still wondering whether the profession and, indeed, the public, might not be better informed as to what is contemplated. In the light of what the noble and learned Lord was saying, the broad power given to the board to extend the availability of legal aid and assistance in various conditions may be superficially attractive. But one is a little anxious about the general provision of duty solicitors in place of the operation of legal aid and advice of the ordinary kind. I take it that it is not intended as a substitute for legal aid and advice in the ordinary case.
I wonder when the board will be able to specify, by either deed or announcement, the circumstances where the availability of the duty solicitor can be extended to various other fields. Do we have to wait until experience will show that and hope for the best? I suppose that that is the best I can hope for in the circumstances. I do not know whether the noble and learned Lord the Lord Advocate can add anything to what he has said. But, if not, I am grateful to him for having at any rate applied his sympathetic mind to this. We look to the board to fulfil—I shall not call them promises—these indications of the availability of the duty solicitor in a scheme which is not immediately contemplated, with a proviso that it shall not deny the right to ordinary legal aid and assistance in the proper case. In those circumstances I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
An amendment (privilege) made.
6 p.m.
Lord Cameron of Lochbroom: My Lords, I beg to move that this Bill do now pass.
The Government are satisfied that the principle changes provided for in this Bill, as it leaves your Lordships' House, including the transfer of responsibility to the Scottish Legal Aid Board, will lead to a very significant improvement in the administration of legal aid in Scotland. The Legal Aid Central Committee has broadly accepted the case for the board, the consumer interests in general support the rationalisation for which provision is made in the Bill, and most of those who responded in Scotland to consultation accepted the arguments for change.

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Many of the arguments that we have heard for the status quo or for the importation of features of the system in England and Wales have been based on recommendations made up to 40 year ago. There have been major changes in the intervening period both in the scale of provision and in the need for more effective supervision of the arrangements, and a more realistic approach is required. Omnia mutantur, nos et mutamur in illis.
In our deliberations it has been suggested that there have been no criticisms of the apparent administration of legal aid. It is true that some improvements have been made in recent years through the increased use of information technology, through the rationalisation of the local committee secretariat and through the strengthening of some aspects of financial management. However, my right honourable friend considers that there is considerable scope and urgent need for further improvement in these and other areas. Independent lay members on the Legal Aid Central Committee who were appointed to represent the interests of the general public both as client and as taxpayer have for some years been making criticisms of the existing arrangements. These criticisms comprehend the split of responsibility between the Legal Aid Central Committee—which of course is established under the legal aid scheme—which is responsible for the operational administration and the Legal Aid Committee, a committee of the Law Society, which has responsibility for policy, staffing and related questions. This has led to a disjointed approach to securing improvements and to tackling problems. Another criticism has been that no one body has expressed responsibility for reviewing the operation of the legal aid schemes in any systematic way and for securing necessary changes in the light of such a review and of the changing circumstances.
As is made clear in the Legal Aid Central Committee report for 1984–85, which has just been submitted to my right honourable friend, the information which is available and which is presented about the operation of legal aid does not allow for the performance of the legal aid system to be considered, compared and pertinently commented upon by the Legal Aid Central Committee or others interested. These criticisms reflect a view which has been expressed to government that the Law Society has perhaps taken too narrow a view of its responsibilities and has displayed a certain reluctance to change with the times and to make best use of appropriate management and other systems, including those relevant to public sector administration and accounting.
While some reservations have been expressed in the course of our deliberations about the need for the establishment of the board, I would suggest that no convincing arguments have been advanced against the principle of establishing an independent body to administer legal aid in Scotland. Indeed, as I understood the views expressed by the Front Bench opposite, that principle was not disputed. I hope that in the course of our debates we have effectively disposed of the canard that bodies appointed by the Secretary of State are not and cannot be independent. As I have indicated, consultation on membership has already begun. I have, of course, indicated that the Bill
1120
will in another place be amended so as to make that consultation process appear on the face of it in regard to the two particular bodies referred to in it.
One of the fears expressed in the course of earlier consultation was that the Secretary of State would in some way interfere with the judgment of the board in the handling of individual applications for legal aid. That was never the intention. But the independence of the board in this most important area is underlined by the provision that the Secretary of State cannot give guidance on the way in which the board deals with applications for legal aid.
Comments were also made about the powers available to the Secretary of State to make regulations under the Bill. Many will of course repeat the existing regulations, with the necessary changes to take account of the establishment of the board and other developments. Regulation-making powers have been extended mainly in areas which are at present covered by schemes not subject to parliamentary scrutiny. I have made clear the matter that I have taken to my colleagues—the points that have been made, in particular by my noble friend Lord Selkirk and the noble Earl, Lord Perth, about consultation.
I acknowledge that the changes in the arrangements for the provision of legal aid and advice and assistance in summary criminal cases have attracted what I might term a somewhat mixed reception. But there is, I surmise, general agreement that the present arrangements are unsatisfactory. There are too many inconsistencies in the reward and refusal of legal aid in such cases. Administration by a single body should serve to achieve much greater consistency.
Fears have been expressed that the changes will result in delays in court business, but we are confident that arrangements can be made which will enable applications to be dealt with expeditiously.
The Bill already provides for automatic legal aid in the most urgent cases. The precise effect of the changes in terms of whether criminal legal aid will be more or less readily available is extremely hard to gauge in view of the limited and unsatisfactory nature of the information about the present arrangements. It is, however, certain that a much clearer, and I hope a much fairer, picture will emerge after the transfer of responsibility.
I can understand an apprehension of the unknown, and equally I am aware of the dangers of advancing the proposition omne ignotum pro magnifico est. However, there can be no doubt that the time is more than ripe for a change in the administration of legal aid in Scotland and I am sure that all concerned will help to make it a success.
In writing to my honourable friend the Minister responsible for home affairs, health and social work last month the president of the Law Society of Scotland gave assurances of the society's continued wholehearted co-operation in the reform of legal aid. My honourable friend, like myself, very much welcomes this assurance and I am confident that others concerned will take a similar view.
We have had some useful exchanges during the passage of this Bill through your Lordships' House and further changes will be made in another place. I should like to thank all noble Lords for the clear presentation

1121
of their views, even though I may not have always agreed with them. I particularly wish to say how welcome have been contributions from noble and learned Lords and noble Lords who, while certainly disclaiming knowledge of Scots procedures, have, from their knowledge of practice south of the Border, brought a different slant to the debate.
Finally, I should like to express my thanks to my noble friend Lord Selkirk, to the noble and learned Lords, Lord Wilson of Langside and Lord Wheatley, and to the noble Lord, Lord Morton of Shuna, for their contributions to what have been extremely worthwhile debates on this Bill which have led to changes for the better in the Bill. My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Cameron of Lochbroom.)
Lord Morton of Shuna: My Lords, I regret that I cannot be as complimentary about this Bill as the noble and learned Lord the Lord Advocate. On this side of the House we certainly accept that it is proper that legal aid in Scotland should be run by a board which is independent and which is more representative of non-legal interests than of legal interests. However, there I fear we differ.
I was interested to hear the noble and learned Lord the Lord Advocate make a complimentary remark about the responses to the consultation paper. As far as I am aware, that is the first time that anyone on the Government side has paid attention to any of the responses to the consultation paper. The consultation paper, which preceded the Bill, was responded to by the legal bodies, the consumers' council, the Citizens Advice Bureaux and the Scottish Council for Civil Liberties. They all held the unanimous view that the arrangements for the independence of the board were inadequate and that the board would not be sufficiently independent.
That was simply ignored by the Government and it remains ignored. It remains the weakness of this Bill. The board will be seen as not being independent; it will be seen as an emanation of St. Andrew's House unless and until bodies like the Citizens Advice Bureaux, the Scottish Consumers' Council and others, possibly including the Convention of Scottish Local Authorities, have an open right of nomination.
There was an obvious opportunity in the rest of the Bill to amend the considerable number of separate legal provisions either by regulation or by Acts. However, unfortunately, what has happened is a regurgitation of the previous legislation, with far too much power to make regulation and far too little thought to simplifying and making clear. It is a great pity that the management study which has just started was not allowed to complete its work before this Bill was presented to the House. It might have been a much better Bill had there been a six months' wait. However, in the hope that in another place it may be improved, I wish the Bill that much well.
6.15 p.m.
Lord Wilson of Langside: My Lords, it is almost 40 years since the legal aid scheme in Scotland was introduced in the civil law area, and it is over 21 years
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since it was introduced in relation to the criminal law. Over these last weeks we have been debating how we should approach the next stage. It is only natural that over those 40 years problems have arisen. As I think I indicated on Second Reading, I did not think that this Bill was the best designed measure to deal with the problems. However, time will no doubt tell us—at least those of us who live long enough.
I believe that the noble and learned Lord the Lord Advocate was absolutely right when he said that the time was ripe for change. Some of us have thought that it was over-ripe. From my experience, the principal problems arose in the area of the criminal law, and from time to time during our debates there have been references to abuse, particularly in the area of the criminal law scheme. As I have understood the noble Lord, Lord Morton of Shuna—and I hope that I do not misinterpret him—he has tended to discount these problems and to suggest that there was little evidence for them. My experience, sitting during the first year of the working of the criminal legal aid scheme in what was the busiest criminal court in the country, was that there was a good deal of abuse. I am just as proud of my profession as is the noble Lord, Lord Mishcon, who expressed such pride and who I am sorry to say is not present. However, this should not blind us to the fact, that like all other groups, we have what for convenience I refer to again as the black sheep. There was significant evidence of abuse of the scheme. That was a view shared by most of my colleagues who sat on that bench.
The point I want to make now is that the effect of that abuse was not just something that frightened the Treasury men. We could probably have got over that without much difficulty. There were three main effects of the abuse of the scheme in Scotland. The first was that it has a devastating effect on the moral of the procurator fiscal service. There was no doubt about that. It started during the first or second year of the working of the scheme and continued until we reached a stage which was referred to by one of the colleagues of the noble and learned Lord the Lord Advocate in the Scottish Office the other day when he said that we were paying the lawyers who were defending a minority of criminals more than we were paying those whom we employed to prosecute the lot. This had a devasting effect.
The Government of which I was a member took steps—I shall not go into them—to try to remedy and correct the situation. The noble Lord, Lord Ross of Marnock, may remember the exchanges that we had. He was responsible for the scheme, and I had an interest in it. However, there is no doubt that that effect on the moral of the procurator fiscal service has continued to this day. Procurator fiscals in Scotland are key men in the administration of justice, and if morale is bad it does not promote efficiency. That was the first effect of the abuse.
The second effect of the abuse was that it had something of a computing effect on the profession as a whole, for the simple reason that the fees at the outset had been fixed too high. They were fixed before the general election when the Government were about to change. At the time my impression was that no one had ever looked at this.

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The third devastating, and perhaps the most serious, effect of the abuse—which did not apply throughout the country, but there were centres where it was worse and it applied only to the few—was that in the efforts of the black sheep to maximise their fees there was no doubt that the working of the criminal courts was disrupted. We are moving into a new stage and I wish the new board good luck in dealing with these problems among many others which may be more or less important.
The Earl of Selkirk: My Lords, I should like in a few words to congratulate my noble and learned friend on the courtesy with which he stood up to bombardment from every part of the House. I have come to admire him greatly for his knowledge and the understanding which he has shown in many of these things. I confess that I have been very brave in taking part in this at all, because the last time I appeared at the Bar there was no legal aid at all so that I have no practical experience of this whatever. But I am very conscious of the great financial problem which legal aid presents to governments. It is a problem which will not be solved by this Bill entirely and there will be other Bills, I am sure, to deal with it. I do not know the answer but I do not believe that it is a simple answer. I am grateful to my noble and learned friend for saying that one or two of these things are being taken elsewhere.
I must add one thing. I am disturbed at the way in which departments are now going over to regulation. Regulations cannot be dealt with satisfactorily in this House. Maybe we should have an examination by the Procedure Committee to see how we can deal with them. We can put amendments into any Bill we like. It is not easy but it can be done, whereas we cannot change a regulation and if we throw out a regulation we then have a row with the other place.
That makes it too difficult. It makes these regulations something of a formality and I think that the House should rightly criticise departments which in many cases do not know precisely what they want to say and therefore put in a regulation. It is to some extent a reflection on a department to have to put a great many regulations into a Bill. I should like to have that recognised. I thank my noble and learned friend for what I think is the splendid determination with which he has borne this Bill right through the House.
On Question, Bill passed, and sent to the Commons.

Corneal Tissue Bill
Brought from the Commons; read a first time, and to be printed.
Protection of Children (Tobacco) Bill
Brought from the Commons; read a first time, and to be printed.

Patents, Designs and Marks Bill [H.L.]
6.22 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, I beg to move that this Report be now received.
Moved, That the Report be now received.—(Lord Lucas of Chilworth.)
Lord Northfield Lord Northfield rose to move, as an amendment to the Motion, That this Report be now received, to leave out all the words after ("be") and insert ("not received until after the expiration of the normal interval of 14 days from the end of the Committee stage").
The noble Lord said: My Lords, I beg to move the amendment which stands in my name on the Order Paper today. On several previous occasions on these matters I have declared an interest as an adviser to a drug manufacturing company and, as we shall be dealing with these matters at some length this evening, perhaps I should again put that on the record, although, as I say, it is already there. One of the joys of belonging to your Lordships' House—and I regret having to detain Members this evening to explore this procedural matter—particularly to those whose long apprenticeship was served in the more unruly Lower Chamber, is the high standards of courtesy, of consideration and of consultation that apply throughout your Lordships' House. This applies not just in the Chamber, where it is visible to everyone, but also in the dealings between the usual channels, as they are called, and in the dealings which the usual channels (which, in effect, means the Government Chief Whip's Office) have with individual Members of your Lordships' House.
There is a very high standard of courtesy and consultation in these matters and I regret to draw attention to ways in which those high standards, in my view, have not been maintained. They are important not just because of the reputation of this Chamber, but because we are a part-time Chamber, too, and many of us have other things to do and have to earn our living; and that is taken fully into account. I may say also that in a long history in both Chambers, a history now of more than 30 years, I have never before had to make such a complaint in either Chamber.
I want to detail briefly the departures from these normal courtesies which I think have occurred in the case of this Bill. The first one is perhaps not important but it is symptomatic and therefore I should at least mention it. As the noble Lord, Lord Lloyd, knows, we agreed in the course of the normal consultations that take place on these matters that the Committee stage of this Bill could conveniently be taken on 25th March. Because of some muddle in the Government Chief Whip's Office—about which I make no complaint, for we all get into muddles at one time or another—it was found that that date could not be adhered to because the Government had forgotten a Scottish order that had to be put through this Chamber before Easter.
But, as the Committee stage of this Bill had to be postponed, in all those circumstances the usual channels asked the noble Lord, Lord Lloyd, and myself which dates would be impossible for us after Easter. I gave 14th April as the only date which was impossible for me. Imagine our surprise when we returned after Easter to find that this Committee stage was set down for 14th April. The Government have a full right to do so but, in accordance with the traditions

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of this House, it should have been done at least with information provided and not just put on the Order Paper. Certainly, it was done without consultation, and I suspect that we would all agree that to have had consultation about it would have been the more courteous way to proceed. There was, therefore, an offence to me, not particularly important but, as I say, symptomatic.
I now come to the Committee stage itself. At the Committee stage, I raised a very important issue concerning the pharmaceutical industry. It is an issue which had been raised in 1977, in 1979, in 1982 with the Government and in 1984 with the Government. Promises, promises were made to do something about the issue, but now when a patents Bill comes before your Lordships' House, a Bill which could be extended to deal with it, we are told, no, it is impossible to do so.
At issue is a part of the present legislation which is putting in jeopardy something like £150 million or £200 million of sales of pharmaceuticals and at the moment is costing in legal costs in the courts something like at least £3 million a year. It depends on the fight between the companies and the "pirates"—the copiers of drugs; and some call them parasites—who get legality to copy drugs under a system called "licences of right".
When I raised this issue at Committee stage, the noble Lord. Lord Lucas, who throughout has been courteous to a degree which is in contrast to the other things that I am complaining about, immediately announced that the Government acceded to the request of the industry that this part of the parent Patents Act should be repealed. He said that the industry had proved its case on this matter and that the Government were convinced that they should repeal. He said, "As soon as possible, but not now". He could not see it being brought within the ambit of this Bill.
We went away from the Committee stage when I had said I must consider what the Government had said in the light of the debate and we naturally needed some time to consult the industry. That was what was at issue. This is a big industry and it is not easy to contact everybody in a few days and of course we also needed to consult the noble Lord, Lord Lucas, about this difficulty. This is the first time that we have been able to legislate about it for some years. There has not been a Patents Bill since 1977.
6.30 p.m.
What then happened was that, again without consultation and without information provided, the Government gave six days between Committee and Report stage. Anyone reading the proceedings at Committee stage would realise the need to consult the industry and the noble Lord the Minister. It would have been in the best traditions of this House to ask us whether we could consult within that compressed period of time. No such consultations were offered and no information was offered either.
I know that the reply of the usual channels on this issue is that the Companion to Standing Orders prescribes 14 days between Committee and Report stage in the case of reasonably long and controversial Bills. The answer will be that this is not a long and
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controversial Bill; but this is a long and controversial issue. This matter was fully explored and a concession was offered by the Government at Committee stage. There was need for time on that long and difficult issue alone to try to reach agreement with the Government about what to do at Report stage and whether we could persuade them that the amendment that the Minister had promised to repeal the provision could be incorporated in the Bill. The shortness of the Bill (I say this with frankness) does not absolve the usual channels from keeping to the custom to consult in this House about such matters. Anyone who relies simply on the Companion to Standing Orders is missing the point of my complaint. Courtesy is one thing; we do not always need the letter of Standing Orders or the Companion to tell us how to behave and to circumscribe us.
In the event, we managed to cobble together hurried meetings yesterday with the noble Lord, Lord Lucas. He was as courteous as he could possibly be. But as a result of that he has had to consider the matter in precipitate haste, I have had no opportunity to go back to the industry on the matter and we are now reaching Report stage with a totally unsatisfactory situation in which the industry is left at a disadvantage because there has not been time to consult it on a most important matter.
What can be the possible explanation for this chapter of unhappy events? I suggest there are three possible explanations, none of which is very attractive. The first is that the Government do not consider this industry important enough to merit these consultations. I hope that that is not true. I know the Government are making a lot of enemies at present, but they do not need me to suggest that they should not be going out of their way to make more enemies than necessary. I hope that we shall have an assurance that they regard this industry and this issue as important and regret that there was no time left for proper consultation.
I suppose that the second possible explanation for the way that this matter has been handled is that the Chief Whip was determined to railroad the Bill through, giving me as little time as possible for the consultations in order to choke me off and to prevent me from moving further amendments at Report stage. I hope again that I am wrong, because that would be a most discourteous way to behave.
The third possible explanation is that this represents a general hardening of attitude in the Chief Whip's Office and in the usual channels and that these things will not be as courteous, as informative and as subject to consultation as they have been in the past. That is probably the most likely reason of all. In the end I guess it is a mixture of all three.
I have to raise this issue tonight not because I feel particularly offended—although I do—but because it is important to place it on record that at least one Member of your Lordships' House believes that our high standards have not been maintained on this occasion, and in the hope that by raising it today I may receive assurances that it will not happen again, or at least every effort will be made to avoid it happening again. I beg to move.
Moved, as an amendment to the Motion, That this Report be now received, to leave out all the words after ("be") and insert ("not received until after the expiration of the normal interval of 14 days from the end of the Committee stage").—(Lord Northfield.)
Lord Bruce of Donington: My Lords, I listened to my noble friend with considerable interest and, I confess, in dismay to some degree. He has raised the question of the usual channels and the normal standards that he understands obtain in the conduct of business in your Lordships' House. That being the case, and he being also a Member in this House of the party to which I have the honour to belong, he could have made representations to the Opposition Chief Whip with a view to having the matter sorted out, if it were possible to sort it out, through the usual channels as he has indicated.
My noble friend, who has been good enough to disclose his interests in the matter, sought to raise in Committee what is not a complicated issue at all. It arises essentially from the legitimate discontent of a large section of the pharmaceutical industry, to which he referred, with the provisions of the 1977 Act, which permitted licences of right in certain circumstances for a period of four years out of the 20 years to which the rights were then extended. This was a transitional matter. The large pharmaceutical companies, which said that they were adversely affected by this, did not like this transitional measure relating to the four years and legitimately (I make no complaint about this) have objected to it actively ever since and are still objecting.
My noble friend suggests that the matter he raised is complicated. As I said, it is not complicated at all. It concerns a conflict of interests within an industry in which the originators of these magnificent discoveries do not wish to be lumbered with a four-year period during which their inventions and discoveries can be licensed to others under a compulsory licensing system; a licensing system which, incidentally, to some degree they have circumvented by the use of their subsidiaries to license some of their products for licence fees, which could then be used as a precedent in negotiations with these other generic medicine manufacturers. I have no particular interest in one or the other. I have nothing to say against the large pharmaceutical companies or against the smaller generic companies. These are issues which ought to be discussed within their proper framework.
The noble Lord, Lord Lucas of Chilworth, when he discussed this issue in the House before, indicated that he thought the Bill was not the proper vehicle for airing this matter. It was not a suitable measure in which the Government, if they wished, could have incorporated the relief for which the noble Lord, Lord Northfield, is asking. But at the same time he said that a comprehensive Bill was going to be brought forward in October and that a White Paper would be published concerning intellectual property and innovation, to which he referred.
We for our part on this side, including my noble friend for the moment, were quite content to leave it at that because the noble Lord indicated (if your Lordships will refer to the Official Report) that the matter ought to be considered in the light of the White
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Paper and that at some later stage—the noble Lord may not have said October specifically, but I gather that it was later on—a comprehensive measure would be brought in. For my purposes, I am prepared to leave it at that. I would much prefer, if the whole law is going to be amended, to have the particular amendment to which the noble Lord refers discussed within that context.
My noble friend raised a point of some interest when he referred to the minimum time intervals referred to in the Companion to the Standing Orders. It is quite true, as the noble Lord himself indicated, that there ought to be 14 days between the end of the Committee stage and the start of the Report stage in respect of all Bills of considerable length and complexity. I do not think this Bill is of considerable length and complexity, but I would not wish the Government to be able to take advantage of the quite obvious gap in the Companion to the Standing Orders and, following the course of action of the Government at this stage, unduly to shorten the period of time between Committee and Report stages to a period that is quite unacceptable, because there is no particular time or day limit laid down here in respect of Bills which are not of considerable length and complexity.
I sincerely hope that the noble Lord or his colleagues, when they come to introduce Bills of another kind, will not cite this particular instance as giving them licence in future to depart from what has come to be thought of as the norm. But, having said that, as I say, I do not think that a Bill of this type, which is a very short Bill, the amendments to which are quite uncomplicated in nature, really ought to have given rise to a formal complaint about discourtesy in this House or discourtesy to the House. Had it been a public Bill of some complexity, perhaps different observations might have been made, but I do not think this particular Bill ought to give rise to such an occasion.
6.45 p.m.
Lord Lucas of Chilworth: My Lords, I rise to respond on behalf of my noble friend the Chief Whip, who because of matters of state is not able to be in your Lordships' House. I do hope that no noble Lord will see in his absence any discourtesy whatsoever.
I do not know what the noble Lord, Lord Northfield, is in fact going to do this evening and I must assume that he is going to deal with the amendments in his name on the Marshalled List. I gather that is the case and so I will resist answering specifically some of the points which will undoubtedly emerge during the course of our debate on those amendments later this evening. But at the risk of being accused of being pedantic, I think I ought just to correct one or two things which have been said in the course of our discussions on this amendment.
The noble Lord, Lord Northfield, in quoting the Companion to the Standing Orders, referred to Bills of a long and controversial nature. Indeed, the noble Lord, Lord Bruce of Donington, read the passage. The Companion to the Standing Orders says:
"on all Bills of considerable length and complexity",
whereas in fact this Bill is neither long nor really complex, although it is technical. The noble Lord,

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Lord Bruce of Donington, during the debate we had on the 14th April, said that the matter which the noble Lord, Lord Northfield, had raised then on the Question whether the Schedule should be agreed to introduced perhaps controversial elements. The noble Lord, Lord Bruce, said that he wanted to look at the matter.
That was on the understanding that a Bill of limited scope and without controversy should proceed in the manner in which this one has done. The arrangments are of course entirely for the managers of the House's business—that is, the Chief Whips of the principal parties. I suggest that it is not for my noble friend the Chief Whip, or indeed for any of my noble friends on the Front Bench to seek the views of Members on other Benches. It is for their own Chief Whips' officers to do that. At the end of the day it can only be the Chief Whips of the parties who agree to a certain procedure being adopted—one which, incidentally, the Standing Orders permit. That is what has happened in this case.
I have to say to the noble Lord, Lord Northfield, that I had no difficulty in giving consideration between yesterday and this evening to the one and only matter on which I gave an undertaking to consider. It was attached to but did not form the substance of his amendment; so I have felt able to deal with my part of that discussion. However, I should like to thank him very much for his kind remarks. I think I should quote, to make sure that nobody misunderstands what was said on the 14th April, from col. 484 of your Lordships' Hansard:
"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 the 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."
That is just a little different from what has been said. I did not say we would introduce legislation on the 1st October, if the noble Lord, Lord Bruce of Donington, will forgive me. What I said was this. I again quote from lower down the same column:
"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."
The only thing I said with regard to a comprehensive Bill was that there was to be on the 16th April the publication of a White Paper on intellectual property and innovation which would give rise to changes in patent law, and that when we introduced legislation to give effect to that White Paper we would then be in a position to undertake the wider legislation in regard to licences of right. I have repeated, and did on that occasion, that this is not the Bill to do it. This Bill is essentially concerned with trade marks, service marks and the computerisation of the Patent Office registers. It would be wrong in this Bill to anticipate any aspects of the more comprehensive Bill which we shall introduce as soon as parliamentary time permits.
Lord Northfield: My Lords, I am just a little puzzled. I want to understand what the noble Lord is
1130
saying. I am not criticising him. I am not sure of the point he is making. He said explicitly in column 485:
"The Government consider that this"—
that is, the Bill to be introduced in the next Session or whenever it is—
"would be a suitable vehicle and are prepared to include in it provisions to repeal the provisions relating to licences of right for 1949 Act patents".—[Official Report, 14/4/85; col 485.]
I am not sure whether he is departing from that, I shall be grateful if he will tell us.
Lord Lucas of Chilworth: My Lords, I am repeating the first thing that I said: that we would introduce legislation having that effect. Columns 484 and 485 must be read together. I do not think that there is any disagreement between any of us on that matter. We have given an undertaking to legislate on the licences of right issues at the earliest opportunity. We see that within the context of the forthcoming implementation by legislation of the White Paper. That should leave this Bill without the controversy, great length and complexity that the amendments in the name of the noble Lord, Lord Northfield, cause. I ask your Lordships to consider the Report of this Bill and reject the amendment to that Motion tabled by the noble Lord, Lord Northfield.
Lord Lloyd of Kilgerran: My Lords, my name was mentioned en passant, as it were, by the noble Lord, Lord Northfield. It was mentioned in the context of the absence of courtesy and high standards. I should like to say that I have put down many amendments to this Bill and at all stages I have had the greatest courtesy and help from all the officials with whom the noble Lord the Minister has been associated.
Of course difficulties arise in fixing dates. As a practitioner at the Bar for most of my adult life I have been used to being messed about with regard to the fixing of dates. I notice that the noble Lord, Lord Buxton, who probably has some experience of that is smiling sweetly at that observation. I am used to being pushed around as to dates. I do not like it, but if necessary I will make my protests.
However, I have some sympathy with the idea of postponing actions and dates and having as long a delay as reasonably possible. I should have liked to support the last part of the amendment proposed so excellently by the noble Lord, Lord Northfield—that there should have been another delay of 14 days from the end of the Committee stage to the start of the Report stage.
The issues involved in the amendments tabled by the noble Lord, Lord Northfield, are substantial. It is incumbent upon the Government to come to a decision publicly on the issues as soon as possible.
Lord Northfield: My Lords, I wish to reply briefly to three points. I shall then ask your Lordships' leave to withdraw my amendment, having aired my complaint. My noble friend on the Front Bench said that this is not a matter of complexity. I am afraid that it is, because the problem is not in the event of the repeal of the disliked subsection of the 1977 Act but in how the industry lives between now and then.

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The Government have said that they want to get rid of that provision, but the industry must go on living with it for what might be a year or 18 months. Goodness knows whether that will be the finality. All the claims for licences of right will go on and substantial—I have mentioned the figure of £3 million—legal costs are likely to be incurred resisting that in the next 12 to 18 months.
The complexity of the matter arises from the transitional provisions—how we get from now until eventual repeal.
Lord Lloyd of Kilgerran: Yes, my Lords.
Lord Northfield: My Lords, I hear the noble Lord, Lord Lloyd, saying "yes". That is the complexity for which we wanted time to negotiate, discuss and refer back to the industry. That is a substantial sum and it is a substantial industry incurring it. In my view it would have been courteous to give us enough time, having heard the noble Lord's views on the matters, to go back to the industry and hear its views about what further representations might be made today. I have not had that opportunity.
That brings me to the second point made by the noble Lord, Lord Lucas, who said that he had no difficulty in seeing me yesterday. I am glad that he did not. I am grateful to him, but I have had no time to go back to the industry. I only received his decision half an hour ago. I have no answers. I have had no opportunity to seek the industry's views on what he has put to me in private and to return with that view checked with the industry that is making the representations about what is to happen in the next 18 months. That is what I am complaining about.
It is all very well for Ministers to say that they can do things. They might sometimes reflect on the difficulties outsiders have in doing things as quickly when a whole industry is at stake.
My final point is simple. It is that the noble Lord, Lord Lloyd, who was kind enough to support at least half of what I said, said that he was used to having dates knocked around. I am not complaining about that—not at all; nor am I complaining about the way that the Public Bill Office has helped him and me. We have marvellous service from our staff. What I am complaining about—and I repeat it—is the absence of the courtesy of at least informing us and consulting us about what was being done. That is what went adrift in the Chief Whip's office in this case. It is what I hope will not go adrift on future occasions.
We have no rights in these matters. We have only customary courtesy. As I said earlier, I believe that in this case that customary courtesy of informing us about the inconvenience that we might have to suffer because of dates, changes or whatever, was not forthcoming. I was not informed or consulted. I was left to find out and to go to protest.
I believe that the debate has served a worthwhile purpose. I think that it will lead to this not happening again. With my noble friend on the Front Bench I hope that it will at least have the effect of ensuring that attempts to railroad through business about which someone feels passionately and on which he has
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something to say and has to consult will not be made again. The Government should not have carte blanche to do that. Having aired the matter I am satisfied, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to: Report received.
7 p.m.
Lord Northfield Lord Northfield moved Amendment No. 1:
After Clause 2, insert the following new clause:
(" Provision for medicinal products.
.—(1) In paragraph 4(2)(c) of Schedule 1 to the Patents Act 1977, there shall be inserted at the beginning the words "Except in relation to medicinal products".
(2) In section 130(1) (interpretation) of that Act there shall be inserted the words" "medicinal product" has the meaning assigned to it by section 130 of the Medicines Act 1968".
(3) This section shall come into force on such day as the Secretary of State may by order, made by statutory instrument, appoint and such order may contain such transitional provisions as may be specified in the order.").
The noble Lord said: My Lords, I understand that it is for convenience—and it certainly seems sensible—to discuss together new clause numbered 1, new clause numbered 2 and Amendment No. 12. So I beg to move Amendment No. 1 and I shall speak to the others. Inevitably, we have covered a little of the ground in the exchanges on my previous amendment, and I shall not go through the full case for the repeal of licences of right which I set out, however briefly, at Committee stage. Nevertheless, it is important just to get on the record the difficulty of the industry.
As I said at Committee stage, these licences of right are licences which cannot be resisted in the last four years of any patents filed between 1967 and 1978. It means that the copyists—I am afraid that the industry calls them parasites—are able to get a licence without any prospect of resistance from the owners of the patents for those four years. As I have explained, the companies involved feel particularly concerned about this for two further reasons. First, the 1977 Act removed the right of patent owners to apply for extension of patents on the grounds of inadequate remuneration. That would have been one way to help patent holders to live, to see returns on their patents and to finance all the research. But that right was removed by the 1977 Act. Previously too the licences of right were voluntary ones and were subject to negotiation. Now that they are mandatory—if I may use that word—no one can resist them. They are obligatory on the holder of the patent. So the holder is now in double jeopardy.
But there is a second reason why this is also very difficult, which I did not mention at Committee stage. The problem for the pharmaceutical industry is that its effective patent life is now down to about eight years. Parliament has legislated to make patents last for 16 years, but in the pharmaceutical industry—and it applies almost wholly to the pharmaceutical industry—once you have registered a new chemical entity for patent, you have many years of testing for safety in the interests of the public, about which the industry does not complain. But figures have proved, as the noble Lord, Lord Lucas, acknowledged at Committee stage, that patent life generally has now been eroded to an enormous extent. The estimate is that the effective patent life now for pharmaceuticals has been reduced from 16 to eight years.
Your Lordships will understand that if you then happen to have a patent which was registered between those magical dates of 1967 and 1978 it is a matter of concern when that effective life of eight years is reduced by four years of obligatory licences of right giving, in effect, only a four-year life for patent. That is the main concern of the industry at this stage in trying to get a return for the huge R & D expenditure that it has incurred. So those are the points about licences of right: the industry is in difficulty, the patent life is eroded and the voluntary nature of the licences of right and the other possibilities of remuneration have been removed.
Then, as I said at Committee stage, this issue was never debated or spelled out in either House when it was pushed through in 1977. I have here the pages from Hansard which show that these provisions slipped through without anybody spotting them. They were moved and agreed without anybody spotting their significance at the time. On top of that, they had the further disadvantage, which if we had all been alive to what was happening we would also have pointed out, there were no guidelines at all as to the remuneration to the patentee for those licences of right. We are now in a legal minefield—quagmire is a better word—because the comptroller-general of patents has nothing to guide him in issuing these licences of right and in providing for compensation to the patent holder. It was something which slipped through both Houses without our noticing and there were no proper guidelines to make it work effectively and with knowledge of the rules.
Lastly, as I pointed out then, this is not a system that applies in any other of our competitor countries. No other country has these licences of right. So we now reach the situation where this industry is at grave disadvantage and the 12 main drugs, which are now at risk as a result, amount to a value between £150 million and £200 million of sales which the copyists can effectively ask to be able to use.
The problem therefore arises of how we exist between now and the promised repeal—I am afraid I must stick to that; the noble Lord used the word "repeal" in col. 485 of Hansard—in what may be a year or even 18 months' time. Here we have something which the Government feel is wrong, something on which the noble Lord accepts the industry's case. However, we cannot, apparently, find in our discussions any way of relieving the industry from the burden—which will continue for a year or 18 months—of erosion of that patent life by these licences of right, and the burden of all the legal costs that are being incurred in order to try to find guidelines made through the courts in the absence of guidelines in the statute. The position is now that one drug has been referred—I suppose as a test case—to the European Court with the further costs that will be incurred there. We end up with patent protection in this country weaker than in any other country of Europe, and indeed of the free world, and it is time that we did something about it.
What can we do to try to ease the position in the next 18 months? This is why I wanted time—proper time, if I may say so bluntly—to consult the industry. There are three, or perhaps four, possibilities. The first
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is repeal which is in Amendment No. 1, and I do not accept that we could not adapt this Bill to implement that repeal now. This is always a matter that is being put off until tomorrow and one wonders when it will be actually reached. This is a Bill about patents and I see no problem. But I fully understand that the Government, having made up their minds, will use their majority here to defeat any outright repeal today, for reasons which the noble Lord, Lord Lucas, has spelt out.
I therefore come to my second new clause which I submit is an alternative. It might even carry the support of my noble friend Lord Bruce of Donington because it postpones the debate about this matter. It gives the Government the power to suspend such licences of right until the substantive legislation comes along to repeal them altogether. Every suspension would be subject to debate and annulment, on a prayer for annulment brought before the House. That is a second possibility which I advance as my alternative.
The third possibility is one which I have explored with the noble Lord, Lord Lucas. He has told me that he does not think it will work and therefore I shall deal with it only briefly. Section 123 of the 1977 Act gives the Secretary of State powers to give guidelines to the comptroller. The noble Lord says—and I accept his view; at least I shall not challenge it—that these are not the kind of guidelines for which that provision of the 1977 Act was framed and that to provide guidelines to nullify some of the effects of the legislation between now and final repeal is beyond the power of Section 123. I accept what he says. I know that there is legal advice the other way.
I come now to my fourth point. I hope that even today the noble Lord will be able to say something about this. There is one other way of helping the industry and I should have liked time between Committee and Report stage to explore that fully with it. I refer to the possibility that the Government can announce today that the repeal legislation will cover any patents endorsed for licences of right from today's date. Having given notice that they intend to repeal, the Government could say today, "And in that repeal, having given adequate notice, we shall cover any patents endorsed from today onwards for licences of right". I do not need to spell out the precedents for that. It is regularly done in legislation when governments have reached a decision but are not quite ready to put it into statutory form. But at least that final, fall-back position would give comfort to the industry, perhaps relieve some of the legal costs and stop some of the applications for licences of right until the repeal can take place.
It is with that framework of suggested alternatives that I move the first amendment today. I hope that I have at least made the case that there is a problem. My noble friend Lord Bruce did not think that this was complex. It is hideously complex and I hope that in the complexity of this situation the noble Lord. Lord Lucas, will be able to offer some comfort to this important industry. The noble Lord has acknowledged that privately to me. It exports one-third of its production. It is probably one of the best performers in exports. It has a high reputation in this country for its

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research and development and for investment in that research and development.
There is no need to make this industry into an enemy. I hope very much that the noble Lord can give me some comfort on the possible options, two on the Marshalled List and the third which I have raised with him, as an announcement that he might be able to make to cushion the effect of the delay between now and final repeal. I beg to move.
Lord Lloyd of Kilgerran: My Lords, it is in a spirit of humility and nostalgia that I rise to say a few words, particularly as I see the noble Lord, Lord Lyell, sitting on the Government Benches. I was concerned with him in the Patents Act 1977 for days and months—it seemed years—when he was on the Opposition Benches. I also make a confession. It is now more than a month since I put down an amendment in effect to abolish licences of right in relation to medicinal patents. It was not presented in such an elegant way as the noble Lord, Lord Northfield, has presented his amendments. The noble Lord has presented his case for the industry frankly and fairly. It is a serious matter and it is causing the industry a great deal of trouble.
7.15 p.m.
My confession is this. I initiated the action to put down an amendment to abolish licences of right when I met with some pharmaceutical product companies. I thought that it was a good point on which at least to raise a marker. I was prepared to make a speech (which I made when the Patents Act 1977 was being considered by your Lordships) to the effect that licences of right provisions would be damaging. I looked up that speech. It was supported by the noble Lord, Lord Lyell, by all the other Conservatives and by members of the Liberal Party such as the late Lord Byers, as showing a difficulty for the industry which would result in heavy costs, much litigation, the loss of jobs and, above all, discouragement to the industry in relation to research.
However, it was Easter-time and I could not discover the whereabouts of the noble Lord. The other channels put down this matter for discussion on a date when I could not come. They kindly altered the date for me and on that date I understood that the noble Lord, Lord Northfield, could not arrive. This is where I made an error for which I now apologise. I unilaterally withdrew the amendment without further discussion. But I had been told also by a colleague in the other place that licences of right were to be abolished by the Government, that discussions were going on with Ministers to that effect and that a Bill would be coming up fairly soon. In those circumstances I feel that I was right to save the time of the House by withdrawing the amendment.
But having said all that, I should like to say this in support of the noble Lord, Lord Northfield. He has extracted from the Government the assurance that they have now decided to abolish licences of right in regard to pharmaceutical patents. If I am wrong about that I shall be corrected. But if it is true that the Government have come to the conclusion that the licences of right clauses should be abolished, it is their public duty, if I may presume to say so, to bring in a
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Bill to that effect so that the whole matter can be adequately discussed in both Houses. It is true, as the noble Lord, Lord Northfield, pointed out so forcibly, that there is uncertainty at the present time as to whether the decision of the Government in private will be put forward, and if it is put forward whether it will be passed into legislation. I do not want to detain the House any longer at this late hour but I feel that the Government should bring forward legislation to embody the assurances we have been given that licences of right are to be abolished, so that that can be discussed in both Houses.
Lord Lucas of Chilworth: My Lords, I am grateful to the noble Lord, Lord Northfield, for the way in which he has put forward his points. Perhaps I may make it quite clear to your Lordships that we regard the pharmaceutical industry as one of our major industries. The noble Lord is quite correct. The industry exports about one-third of its manufactured products and earns for this country between £1·6 billion and £1·7 billion each year. It is not an industry that should be trifled with; nor would I wish to trifle with it over this matter because, broadly speaking, we agree with the noble Lord in his summary of the position.
The noble Lord said that I had agreed with him about the money issues that he raised. I may have misunderstood him; I certainly acknowledge the erosion of the useful patent life. I heard what he had to say about the amount of money that this was costing the industry. However, one must accept that there are two sides to be considered. Whatever anybody may think of what, if I may use my term, I call copyists rather than parasites, they have made preparations in good faith, and within the law, to seek licences and to exploit the inventions. I believe that it was the noble Lord, Lord Bruce of Donington, who said that here we have a conflict of interests and that those interests also must be given consideration.
I turn to one or two of the specific points that the noble Lord, Lord Northfield, raised. He spoke first of the 1977 Act. I remind the House that when the Bill was introduced into your Lordships' House, it did not contain provisions to extend the term of 1949 Act patents, which would therefore have continued to run for 16 years. In fact, it was during the Committee stage in another place that there was a lengthy debate on the subject of whether the patents ought to be extended. At the conclusion of that debate, there was agreement that patents with five or more years to run should have a 20-year term; the quid pro quo being that during the extra four years, the patent would be endorsed "licence of right".
It was therefore something of a compromise solution. It was part of a package that had been agreed with the Standing Advisory Committee on Patents. I remind your Lordships that a similar course obtained in 1919, when the patent life was increased from 14 years to 16 years.
The Government are in no doubt that the implications of the measure were fully understood at that time. It is only the run-out, if I may use that term, starting in 1983 that brought home to roost the effect of that which has set up the need for repeal, abolition or whatever one may call it. I again say that we have

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given an undertaking to do just that thing at the appropriate time—which we see as being done in the Bill that will deal with intellectual property rights as set out in the White Paper published on 16th April.
The noble Lord asked why, having accepted the case for a change, the Government will not take this opportunity to make it. I say to him that the present Bill does not provide the opportunity for a major and controversial change in patent law. The proper place for that is, as I have indicated, in the wider piece of legislation that we anticipate. The present Bill is short, it is narrow in scope, and, until this matter was raised, it was non-controversial.
Acceptance of either of the noble Lord's amendments would make the Bill controversial. It would lay the Bill open to the tabling of other contentious amendments, all of which would add to the time needed for debate and might possibly—I put it no higher—cause the Bill to sink without trace. In that event, the advantage that the industry wants for 1st October this year would be lost.
The noble Lord, Lord Northfield, asks why we cannot merely suspend the operation of provisions. The amendment is not without merit as a proposal. Indeed, at the appropriate time its flexibility might well commend it. The Government do not rule out the legislation they have undertaken to produce being along such lines, but I say again that it would cause this Bill to be controversial and give rise to the other difficulties that I have mentioned.
The noble Lord suggested also that the amendment is not controversial because it postpones any controversy until the statutory instruments are laid before Parliament. With respect to the noble Lord, that is a little disingenuous. I might call the amendment a foot-in-the-door approach; just as it would be supported by all those who favour a change in the law, it would be opposed by those who resist change. They would not defer opposition and wait for the statutory instruments. In other words, this amendment is as controversial as the other.
The noble Lord made a small point about Section 123 of the 1977 Act. He will know, because we have discussed this matter, but I believe he would like it on the record, that our view is that there is no power either under Section 123 of the 1977 Act or otherwise to make such rules as the noble Lord envisages. The rules authorised by Section 123 are those governing procedure; for example, the periods allowed for parties to a dispute to file arguments or produce evidence. For the rules to indicate how the comptroller is to make his decision would be an unlawful fetter on the exercise of his discretion.
The noble Lord, Lord Northfield, then raised his fourth point about announcing a date. He asked me to give a commitment that the legislation will be as from a certain, particular date. That would be wrong in principle. There are of course precedents for legislation to be retrospective to the date of announcement but most of the instances of which my officials have been able to advise me are measures that affected the relationship between the Government on the one hand and the public on the other. I suggest that it is a different matter where the change would alter the balance between two groups of private parties. Before
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we did that, we should have to consult. It will be necessary to do that, particularly on the question of the transitional arrangements, because any other announcement would prejudge that issue. We must decide what should be done about existing licences, about existing applications for licences and about patents already endorsed as licences of right. Any announcement that I might make today would, I believe, prejudge the answers. What I can say in that context is that we will set in hand at the earliest possible time within this year those consultative procedures, but they will not be dealt with in a short time, because there are a number of people who wish to give us their views.
Finally, I say to the noble Lord in that context that if I went further it would be unfair to applicants now, because any announcement of a patent becoming endorsed in the future would by its very nature leave the endorsement retrospectively removed. That would be unfair to those who have in good faith already applied for a licence and made preparations.
I believe that I have answered fairly fully every point that the noble Lord has mentioned. I am grateful to the noble Lord, Lord Lloyd of Kilgerran. I believe he had some little amusement at seeing here my noble friend Lord Lyell, who reminded me earlier that he had dealt with this matter all those years ago.
Let me say to the noble Lord that we have given an undertaking to deal with the matter that is the subject of his amendment. I reiterate that we will do so at the first available opportunity. With that explanation, I hope that the noble Lord will feel sufficiently agreeable to withdraw this block of amendments.
Lord Mottistone: My Lords, I intervene briefly to say that those who advise me—principally the Business Equipment Trade Association—are very keen that this Bill should go through unchanged as quickly as possible. My noble friend the Minister said that the amendments now before us would have the danger of perhaps turning the Bill into a contentious one. Not only would they not be in accord with what I have just advanced as the view of many people, but also they might endanger the Bill itself. That would be most unfortunate and I hope therefore that the noble Lord, Lord Northfield, will be convinced by my noble friend the Minister and will not wish to press the amendment.
7.30 p.m.
Lord Northfield: My Lords, I am grateful to the noble Lord, Lord Lucas, for the kind way he has dealt with the propositions I have put this evening. Frankly, I do not accept his point that the Bill would sink without trace if it were broadened. Governments have control of the other place. I do not know of any government Bill that has sunk in this way for lack of time. It is one of those arguments disingenuously (if I may return the compliment) trotted out by the noble Lord when it is convenient, and forgotten in between. All governments try this tactic of saying, "Do not rock the boat or you may lose the Bill." What a lot of nonsense that is!
I remember the occasion when I was putting through legislation on deer and trying to amend the Scottish legislation. All the time it was said, "Do not

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move amendments. You may lose the Bill." We moved amendments. We took no notice. The Bill became law in the ordinary way. This is tried by every government to railroad policies through, whatever they are. Therefore, I do not accept that. Equally, I realise that the Government could marshal their majority to enforce that if I press the matter.
I have only two other comments to make. I am grateful to the noble Lord for saying that my proposal for suspension in the new clause in Amendment No. 2 may be one way of going ahead. That was a bit of amateur drafting on my part, with the help of the Public Bill Office, but it seems to me that this is a fruitful proposal to consider and the debate has been worthwhile even if only to establish that. I am also grateful for what the noble Lord said about starting the consultations needed for a move towards repeal, or whatever it is that he actually promised.
As regards establishing a date, I do not accept what he said. I believe that it is morally wrong for a government to say, "We believe this industry is suffering an injustice. We must put it right but that may be some considerable time ahead and we have no means at our disposal to protect it meanwhile from the mischief in the original legislation." That is a pretty poor point to make to Parliament. Every government, having made up their mind about an issue, as the noble Lord, Lord Lloyd of Kilgerran, said, has a duty to protect those people they are trying to help as soon as possible rather than let them go on suffering injustice for what may be a very long time. It is a very poor reply and it will be noted by the industry.
Industry has not had a very happy relationship with this Government. It has been kicked pretty badly over the price regulation scheme, the blacklisting of pharmaceuticals, transfer pricing, parallel imports, and the many other things which have been imposed on industry in recent months. It will not be very happy that when something can be done expeditiously the Government say, "No. We are sorry, but you must go on being bled by these pirates for another 18 months or so until we can get the legislation through." As I have said, it is a poor reply.
I can only say that the only pleasurable part of the evening for me was when the noble Lords, Lord Lloyd and Lord Lyell, recalled the 1977 exchanges. That was fun, because I was in the lovely position at that time, as the noble Lord, Lord Lloyd, will remember, of moving the elimination of compulsory licensing against my own party and carrying it with the help of the then Conservative Opposition, now the Government. That was, in my view, constructive. We had a good day and we rejoiced at doing something for industry. I do not believe that the noble Lord, Lord Lucas, can go home today and say that he has had a good day for industry. I believe that he could have done much more; and industry will note that he could have done so.
I have no chance of pressing these matters successfully against the payroll vote and all the ranks that will be mustered against me. Therefore, I beg leave to withdraw Amendment No. 1 and I shall not move Amendment No. 2.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Clause 4 [Short title, extent and commencement]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 3:
Page 3, line 10, leave out ("7 and 8") and insert ("and 7 to 9").
The noble Lord said: My Lords, this amendment is consequential on one effected during the Committee proceedings. Clause 4(4)(c) lists those paragraphs of Schedule 2 which concern trade marks or service marks and provides that they shall extend to the Isle of Man, with scope for modifications. A new paragraph, paragraph 9, was added in Committee and the present amendment includes that paragraph in the list to which I have just referred. I beg to move.
On Question, amendment agreed to.
Schedule 2 [Service marks etc.]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 4:
Page 10, line 9, at end insert—
(" (m) in the Trade Marks Act 1938, section 38 and Schedule 2 (Sheffield marks);")
The noble Lord said: My Lords, with the leave of the House, I should like to speak also to Amendment No. 10. The object of both these amendments is to press upon the Government the desirability, in the interests of the economy associated with Sheffield trade marks, that the Sheffield mark shall be considered to be a service mark within the context of this Bill.
I tabled a similar amendment in Committee, but as a result of a misconception in regard to how amendments should be taken a misunderstanding occurred between myself and the Minister for which I was partly to blame. I had no knowledge until entering the Chamber as to how it was intended that the amendments should be linked together. The noble Lord the Minister was good enough, however, to deal with much of the substance of the reason that the Sheffield mark should not be considered to be a service mark.
The Minister was reading from a brief and therefore there is nothing offensive to him in what I am saying. The observations he made in Committee as to why Sheffield should not be a service mark leads me to say that there has been a total misunderstanding of the industrial position in relation to Sheffield marks and even a total misunderstanding of the very basic nature of service marks. I think it is fair to say that in this part of his brief the Minister was dealing with the basic issues of whether Sheffield should be a service mark. He said:
"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."
The provisions he was talking about are the registration of the word "Sheffield" in regard to a very wide collection of goods.
The Minister went on to say:
"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: firstly, it is our view that there is really no service mark analogy to a Sheffield mark, which is by its nature for

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goods; secondly, the Government have decided to implement the recommendation of the Mathys Report that the Sheffield Register should be discontinued".—[Official Report, 14/4/86; col. 491.]
I was informed only this morning by the patent and trade marks adviser to the Cutlers Company that there are large numbers of industrial areas where Sheffield would be justified in being registered as a service mark. I am told that the Sheffield mark is registered as a trade mark in Schedule 4 of the 1938 Act for a number of classes of goods, Classes 6, 7, 8 and 14, together with 20 and 21. One of those classes relates to silverplated goods. It is the practice to silverplate for cutlery and other purposes.
It would be possible for a firm, if Sheffield is not a service mark, to plate goods and refer to them as Sheffield. There is nothing to stop a firm using the word "Sheffield" for goods even if it is not adequately registered for a service arrangement. I am told, for instance, that the goods for which the Sheffield mark is registered cover cutters, scythes, guillotines and shears. It would, therefore, be possible in Sheffield and elsewhere for somebody to start a servicing agency for shears and say that it was a Sheffield company for sharpening these tools. There are many hand tools and cutting edges for which the Sheffield mark is registered, but if a company decided to start up a service agency to arrange for the servicing of hand tools and cutting edges, it would not be possible for the Cutlers Company, which owns the Sheffield trade mark, to stop that.
I was told this morning that it is quite common for companies to be set up for the purpose merely of refurbishing vices, vices used in the carpentry trade particularly. There is a company in Sheffield that has a trademark also registered as a service mark merely for dealing with that kind of equipment. Therefore, it is totally without reality for the Government to say that Sheffield should not qualify under this Bill as a service mark.
One of the reasons that the noble Lord gave for not acceding to an amendment before was, as I read it, that a report of some 10 years or so ago, the Mathys Committee, said that the Cutlers Company should be deprived of its age-long practice of dealing with applications for registration of Sheffield marks and that it should revert to the Patent Office. That was said by the Mathys Committee after it took evidence.
I disagree with the idea of depriving the Cutlers Company of this function, but, nevertheless, that is for the future. The change of the position of the Cutlers Company is for the future, and at the present time it would be a disaster, I am told, if Sheffield could not be registered as a service mark. It would lead to firms which are servicing goods and which are associated with goods for which the mark Sheffield is registered riding on the good will of the famous Sheffield mark, and it may lead to spurious imports, so I am advised. Firms in this country are running a servicing agency in relation to the goods for which Sheffield marks are registered. I beg to move.
7.45 p.m.
Lord Lucas of Chilworth: My Lords, I am quite sure that the House will be grateful to the noble Lord, Lord Lloyd of Kilgerran, for explaining his amendment so
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clearly. I fear that there may well be some misunderstanding between us, because it seems to me that there is a suggestion that the trade mark "Sheffield" itself is under threat, and this is just not so. This trade mark is not a Sheffield mark. It is an ordinary certification trade mark. It is quite unaffected by the Bill, or indeed, by the Government's intentions with regard to the Sheffield register.
It has been suggested also that repeal of the provisions relating to the Sheffield register will somehow inhibit action by the Cutlers Company to prevent misuse of the name "Sheffield". This is misconceived for a number of reasons. First, the name "Sheffield" will continue to be a registered trade mark, and it can indeed be registered as a service mark as the Bill stands. In that regard, therefore, the amendment is not needed.
Secondly, the present provisions do not allow the Cutlers Company to influence the decison as to whether a mark should be put on the register. Thirdly, the possibility of filing an application with the Cutlers Company is only an option. Lastly, I suggest to the noble Lord that a person carrying on business outside the Sheffield area who sought to register a mark, including a reference to Sheffield—and that I imagine is the kind of thing that the company would wish to prevent—would not even be eligible to file with the company.
I do not think the noble Lord's fears are well grounded. I hope that he will give careful consideration to what I have said. If we are not fully understanding each other, we shall have time between the end of this stage tonight and the next stage when, if necessary, we can have a longer and more detailed discussion. I feel that this would probably be the wish of your Lordships' House this evening.
Lord Lloyd of Kilgerran: My Lords, I am grateful to the noble Lord for his reply. I hope that he will forgive me if I say that most of his remarks are irrelevant, except for two passages, and I took down the exact words he said. He said "Sheffield can be registered as a service mark in spite of this Bill". I accept that. He then said that my fears are not well grounded; that a Sheffield mark cannot be used as a service mark in the context of this Bill. I shall read Hansard carefully tomorrow, but in the circumstances of his fair reply, I shall withdraw the amendment on the understanding that I may have to bring it up again at a later stage.
Amendment, by leave, withdrawn.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 5:
Page 10, line 32, at end insert—
("2A. In subsection (1) of section 19 of the Trade Marks Act 1938 (registration) after the word "registered", in the second place where it occurs, there shall be inserted the words ", subject to section 39A(2) below,".").
The noble Lord said: My Lords, with the leave of your Lordships, I should like to speak also to Amendments Nos. 6, 7, 8, 9 and 11. May I draw your Lordships' attention to the fact that what appears on the Marshalled List as Amendment No. 11 is not quite correct? Will your Lordships please delete the words "column 3", so that Amendment No. 11 reads, "Page 5, line 18, at end insert"? Then the amendment is set down. This would make proper sense because this

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passage is a new line and is not attached to that which goes before.
In moving this series of amendments, I should remind the House that they have all been tabled in fulfilment of an undertaking which I gave to the noble Lord, Lord Lloyd of Kilgerran, during the Committee stage. At that time I said that if the amendment, which stood at No. 12 in the Marshalled List at the Committee stage, was withdrawn the Government would bring forward their own agreed amendment having the same intended effect.
I do not know whether your Lordships will feel that we have done better than that but if quantity is anything to go by we certainly have, because we have tabled six amendments which together have that effect. I think the noble Lord will agree that he was acquainted with these. I understand that he is content. I hope that he will so signify and I beg to move this amendment.
Lord Lloyd of Kilgerran: My Lords, I am very grateful to the noble Lord and to his advisers for bringing this matter to a conclusion. I hope that I am not being rather vulgar when I say that I can record another winner in this matter: my amendment was only in one line. But this is an important series of amendments because it relates to the difficulties which arise with the convention applicants as against the ordinary applicant in regard to damages for infringement. It is an important amendment and of great use to the industry. I am indebted to Mr. Ball, the president, and Mr. Tatham, the vice-president, of the Institute of Trade Mark Agents for drawing it to my attention. I accept these amendments as being, I hope, more or less as I indicated at the earlier stage and I wish them well.
Lord Lucas of Chilworth: My Lords, with the leave of the House, perhaps I may say that my noble friend beside me has reminded me that in giving an explanation as to why I wanted to change what was on the Marshalled List in relation to Amendment No. 11, I said "Page 5". Of course I should have said that the amendment should read: "Page 15, line 18 at end insert—".
On Question, amendment agreed to.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendments Nos. 6 to 9:
Page 10, line 33, leave out ("the Trade Marks Act 1938") and insert ("that Act").
Page 10, line 44, after ("country") insert ("and that date shall be deemed for the purposes of this Act to be the date of registration").
Page 10, line 44, leave out ("but nothing") and insert—
("(2A) Nothing").
Page 10, line 46, leave out from ("the") to end of line 47 and insert ("date of the application for registration under this Act").
The noble Lord said: My Lords, I beg to move.
On Question, amendments agreed to.
[Amendment No. 10 not moved.]
Schedule 3 [Repeals]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 11:
Page 15, line 18, at end insert—

("1 & 2 Geo. 6. c. 22

Trade Marks Act 1938

In section 19(1), the proviso.").

The noble Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
[Amendment No. 12 not moved.]

Commission on Disposals of Land (Northern Ireland) Order 1986
7.53 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell): My Lords, I beg to move that the Commission on Disposals of Land (Northern Ireland) Order, a draft of which was laid before your Lordships' House on 19th February this year, be approved.
The purpose of the order that we have before us this evening is simple, and I hope your Lordships will agree that it is straightforward. It will bring to an end the current practice in Northern Ireland whereby on the grant of a lease or letting of land the landlord may oblige his tenant to pay for his (the landlord's) agent's professional services. This practice, which I understand is not normal on this side of the water, grew up in Northern Ireland after the war when land was scarce and it was then a landlord's market. In so far as sales of land, as opposed to leases and lettings, are concerned, a similar practice prevailed whereby the purchaser paid the vendor's agent's professional fees. That happened until the Commission on Sales of Land Act (Northern Ireland) was passed in 1972, which put an end to this practice. But leases and lettings of land were not included in that Act.
In 1983 the Northern Ireland Assembly passed a Motion calling upon the Government to introduce legislation to put an end to the current practice, which was described by the Assembly as "inequitable". Those of your Lordships who appreciate the workings of the Assembly will think that that is a singularly mild comment. Indeed, your Lordships may agree that it is inequitable that a tenant should be obliged to pay for the professional services of an agent who has been acting for the landlord and as such has been acting possibly quite against the tenant's interests. The current practice is totally at variance with the normal business principle that he who engages an agent to act for him should pay for that agent's services.
The Government replied to the Motion of the Assembly by issuing a consultation paper on the subject. The reaction to that paper was overwhelmingly in favour of prompt legislative action which has led to the order which is before your Lordships' House this evening.
Perhaps I may turn your Lordships' attention briefly to the provisions of the order. Your Lordships will see that Article 3 is the substantive provision. In my own parlance I put it that this is the article which bites. This article renders void stipulations whereby the person taking the land is obliged to pay the commission due to an agent acting for the person disposing of the land. All dealings in land are covered, including sales, leases and lettings in conacre. In addition, rent reviews and

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rent renewals are covered by Article 3(4), so that, for example, a landlord may no longer charge his tenant for the professional services of an agent employed by him to negotiate an increased rent under a rent review clause. The provisions of the order will apply only to agreements made after the commencement of the legislation. I stress to your Lordships that there is no element of retrospection.
The contents of the order which is before us this evening have been widely welcomed by the Assembly and indeed by the vast majority of those who commented during the period of consultation. There has been but one substantive change since the order was published: the commencement period has been reduced from six to four months. Your Lordships will see that element in the little paragraph classified "Title and commencement", paragraph 1. This has been done so that if your Lordships approve the order this evening, it will be operative in time for the student letting season, which I understand is at its peak in July and August each year, and student tenants may have the advantage of the provisions of the order.
In conclusion, perhaps I may just say to your Lordships that the order is the first piece of government legislation to spring from a Motion of the Northern Ireland Assembly. I think it is worth putting on record that this is an example of how the Assembly, when of course it is working properly, can bring about changes in the law for the benefit of the enormous public in Northern Ireland. With that brief explanation, I beg to move.
Moved, That the draft order laid before the House on 19th February be approved.—(Lord Lyell.)
Lord Prys-Davies: My Lords, as the Minister has explained, this simple draft order can be traced back to the initiative that was taken by the Northern Ireland Assembly in 1983 when it unanimously resolved to seek legislation to remedy the mischief which the Minister has described to the House. Those who were subsequently consulted gave their wholehearted support to legislation. Therefore, the draft order represents the end result of the discussions in the Assembly in 1983. We are particularly glad that the Government have amended Article 1(2) because the draft order, as it was originally framed, was based on the order coming into effect six months from the date on which it was made, and this was the subject of a great deal of criticism from the student population.
I believe that the Government have effectively met that criticism by enacting that it will come into effect within four months. That means that it should be in effect before the new academic year commences in September next.
So with those few comments we give the order our full support because it will remedy a mischief which has been widespread in Northern Ireland since the end of the Second World War.
Lord Lloyd of Kilgerran: My Lords, in this matter, I am, as it were, the statutory Member for the purposes of welcoming the order. I congratulate the noble Lord, Lord Lyell, on the fair and clear way in which he presented it.
Lord Lyell: My Lords, I should like to thank the noble Lord, Lord Prys-Davies, for his observations on what we have sought to achieve by this order. The noble Lord picked up the point that we have altered Article 1(2) to try to accommodate the student population. Indeed, this was something of an education to me because I was not aware that the students started working for the academic year in July, preferably just after the week-end of 12th July. Instantly, they get down to work for the next weekend. This is a lesson that I have learnt as a result of the deliberations in your Lordships' House.
I reiterate my admiration for the students. Clearly, we hope that this order will achieve what is desired by the student population of Northern Ireland and, also, I am sure, by the landladies and other people who accommodate them. I am grateful for the attention paid by the noble Lord, Lord Prys-Davies, and I should also like to thank the noble Lord, Lord Lloyd, whose noble friend Lord Hampton warned me that he would be unable to be in his place, although he had, I understand, no major points to make on the order. Indeed, he was in accord with it.
In expressing my thanks to the noble Lord, Lord Lloyd, I am taken back some nine years to a time when we were discussing elements of the previous business in respect of which the noble Lord shows that he has lost none of his touch. I recall some of the warnings issued at that time. I shall not weary your Lordships further. I am grateful for the attention that has been shown towards Northern Ireland legislation this evening. With that, I commend the order to your Lordships.
On Question, Motion agreed to.

Animals (Scientific Procedures) Bill [H.L.]
Returned from the Commons agreed to with amendments.

Statute Law (Repeals) Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at two minutes past eight o'clock.