Lords Sitting of 15 January 1986

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

Courts: Deaf and Dumb Defendants
Lord Campbell of Croy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what means are available in courts to enable deaf and dumb defendants to communicate.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, in the magistrates' courts, it is for the court to ensure that it can communicate adequately with deaf and dumb persons appearing before it. Where a deaf and dumb defendant does not himself arrange for the services of an interpreter, magistrates' courts make use of interpreters provided through the agency of local directors of social services and voluntary bodies such as the Royal National Institute for the Deaf.
In the crown court, interpreters must be provided by the parties.
Provided the court staff are given sufficient warning of the needs of a party or a witness who is so disabled, arrangements can generally be made to ensure that that person is able to sit as close as possible to, and with an unobstructed view of, the judge and the witness box.
Lord Campbell of Croy: My Lords, I am very grateful to my noble and learned friend for that full reply. Is it the clear intention that persons should be enabled to follow immediately proceedings on charges against them in a court if they are suffering from this kind of handicap? Is my noble and learned friend aware that if that is so, and if that is achieved, this would be achieving one of the aims of the International Year of Disabled People 1981, with which a number of Members of this House were closely involved?
The Lord Chancellor: My Lords, I am not absolutely sure that I fully understood my noble friend's question. It is of course absolutely vital that if a party or a witness is suffering from a disability the court should be made aware of it by whomsoever has the duty of seeing to such things. In the case of the crown courts, I should think it would be the legal aid representatives, solicitors and counsel representing the afflicted party or the party wishing to call the witness. This is absolutely vital. I had not considered this matter as involving our international obligations, but I shall certainly consider what my noble friend says. It is particularly unfortunate in some cases where the disability is such that the person afflicted is not able to plead. There was one particularly distressing case recently which my noble friend may have had in mind.
Lord Elwyn-Jones: My Lords, is it not the case that, in practice, zealous care is taken to try to meet the situation and position of handicapped persons such as the deaf and dumb? That has been the practice in the courts certainly throughout my career at the Bar, and indeed before that. One got the impression that broadly speaking the arrangements were satisfactory. As to whether any of the new techniques in regard to assisting the deaf might be attempted in the courts if they prove effective, no doubt that could be done and there could be a trial process. But, generally speaking, is not the situation on the whole satisfactory as it now stands?
The Lord Chancellor: My Lords, the noble and learned Lord's question used the words "on the whole", and to that I think I can give an unqualified affirmative reply. But the appalling thing which actually happened in the case which I have in mind (and it happened in the course of the past few weeks) was that two questions arose on plea. The first was whether, to use the technical language, the defendant was mute of malice or mute of the visitation of God. That is the phrase. It was found that he was mute of the visitation of God.
The question then arose whether his disability was so severe as to render him unable, even with an interpreter, to understand the nature of the proceedings as they went along. The jury found that he was unfit to plead for that reason. The judge thereupon had no option but to send him to a hospital under the section of the Act, but there was no place available. It then followed that under a section of a separate Act he had no option but to send the poor fellow to prison, where he spent at least 24 hours. The judge remedied that as soon as he could. He incurred from the press and others a great deal of unjustified criticism, because he was simply obeying and applying the law. I think that the distress of the public and Members of Parliament was fully justified, and so did the judge. On the second occasion when the defendant appeared before him the judge described his situation as intolerable, and I think it was.
The first thing that happened when I had these letters coming in from another place was that I copied the correspondence to the Home Secretary, and I am sure that he will look into the matter. In this particular case, although I agree that the arrangements are usually satisfactory, this obviously went grievously wrong. The man was charged with a relatively trivial offence and he went to prison, which would never have happened if he had not been suffering from a grievous disability.
Lord Campbell of Croy: My Lords, is my noble and learned friend aware that I was of course conversant with that case, which had been brought to my notice, although I did not try to go into it in detail? Is he also aware that, as regards the question raised by the noble and learned Lord, Lord Elwyn-Jones, sign language with an interpreter is normally quite adequate? However, it is of course essential that enough notice be given beforehand by legal advisers or helpers.
The Lord Chancellor: My Lords, I absolutely agree that if the only disability from which the deaf and dumb person is suffering is being deaf and dumb,

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communication can be set up by means of an interpreter, with proper notice, and that is perfectly adequate for the conduct of a trial. However, if the effect of the disability is such that even with an interpreter the person concerned will be unable to understand the nature of the proceedings, then fitness to plead enters into the question. It was at that stage that things began to go wrong.

Wage and Salary Increases: Policy
2.45 p.m.
Lord Grimond: 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 their policy that wage and salary increases should remain below the rate of inflation applies to the salaries of chairmen and directors of companies, top management, and the higher grades of the Civil Service and in the nationalised industries.
Lord Brabazon of Tara: My Lords, pay for everyone, including these groups, should depend on what their employers can afford and what is necessary to recruit, retain and motivate staff of the right calibre to do the work effectively.
Lord Grimond: My Lords, does the noble Lord the Minister not agree that there were very clear statements from the Government that various settlements should remain below the rate of inflation? May I ask the Minister directly whether the Government intend to apply that policy to those people for whom they are themselves responsible? If the Government are expecting the lower paid to show restraint, surely it is for the well paid to show an example.
Lord Brabazon of Tara: My Lords, what we are interested in is not low pay but low unit costs. Therefore, if a company or employees of that company can justify salary increases through increased productivity and profitability, that is all well and good. As regards the workers for whom the Government are responsible, the Top Salaries Review Board reported and its recommendations have been taken into account in stages. The Top Salary Review Board was started in 1971 and it has been the policy of successive governments since that time to apply its recommendations.
Lord McCarthy: My Lords, does the noble Lord not agree that there is a basic inconsistency in what the Government are saying? In general terms they say that real wage improvements destroy jobs—that is what the Chancellor is saying all the time—but in particular cases the Government give increases which are far above increases in the cost of living. Very significant real wage increases are given to people at the top of the scale and then we are told that it does not destroy jobs. Where is the consistency, and how can the Government reconcile the inconsistency?
Lord Brabazon of Tara: My Lords, real wage increases will destroy jobs and real improvements in productivity will increase jobs. A 1 per cent. change in the average level of real earnings will, the Treasury estimates, in time make a difference of up to 1 per cent. in the number employed. As regards the people whom the Government employ, obviously, as I said in my original Answer, we must take into account what is necessary to recruit, retain and motivate those staff.
Lord Walston: My Lords, does the noble Lord consider that the Government are at the moment able to recruit, retain and motivate the teachers in their present jobs? Is he satisfied that the Government's policy is achieving their objectives in this respect?
Lord Brabazon of Tara: My Lords, I think the teachers' dispute is somewhat outside the terms of the Question on the Order Paper and it is certainly not something into which at the present time, while the two sides are at ACAS, I would wish to be drawn.
Lord Nugent of Guildford: My Lords, is my noble friend aware that the Government have a problem and they cannot get out of it by just quoting what they do for their own employees? Is he aware that very big salary or remuneration increases given to some of the heads of industry—sometimes 20 per cent., 30 per cent, or 40 per cent, increases in a year—really do shake public opinion, especially the opinion of their own employees?
Is my noble friend further aware that we all understand that there is an international market for this top talent, and that unless top people are paid in accordance with that then they may go abroad to America, Germany, or elsewhere? Is my noble friend also aware that, unless the Government take a view of this in talking to the heads of industry and ask them to restrain the very big increases that come from tune to time, they are undermining their policy of trying to keep wage claims at a lower level?
Lord Brabazon of Tara: My Lords, I tend to agree with my noble friend in much of what he says. Of course, many of these increases are as a result of links to the profitability of the companies involved. In those cases I should have thought that it is the shareholders of those companies who must decide whether their managements are being properly rewarded.
On the other hand, management must take into account that increases which they receive themselves, if they are of that order, will be taken into account when their own workforce puts in its pay claim.
Baroness Seear: My Lords, does the Minister agree that in fact it is not so much the payments in industry, high though they are in some cases, but quite extraordinarily high salaries that are being paid, often to very young people—relatively young people, at any rate—in the City of London, which are having an extremely disruptive effect on higher levels of pay throughout the Civil Service and industry?
Lord Brabazon of Tara: My Lords, the noble Baroness is quite right when she mentions the very high salaries which are being paid at the moment in the City of London. I think that this could be covered

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by what I said in my original Answer, which concerns the need to recruit, retain and motivate staff in that field. Whether, after all the changes that are due to take place in the City of London in the next year or so, all those salaries will continue to be affordable is anybody's guess.
Lord Williams of Elvel: My Lords, may I perhaps help the noble Lord by putting some figures on the categories that the noble Lord, Lord Grimond, has mentioned in his original Question? Inflation is at 5.5 per cent.; chairmen and directors, according to the Institute of Directors, up 11.1 per cent.; top management up, depending on whether you believe Charterhouse. Inbucon or Hay-MSL, between 11.5 per cent. and 15.6 per cent.; and the Top Salaries Review Board up 12.2 per cent. in the light of these figures, can the noble Lord perhaps give a more considered reply to some of the questions that have been raised in this House this afternoon; or are we to be told again that the top people can have their bread but the peasants are invited to eat cake?
Lord Brabazon of Tara: My Lords, that is not what I have tried to say in my replies at all. I have made it quite clear that the Government would like to see lower unit costs throughout industry, and through that an increase in profitability and productivity, and through that an increase in jobs. As I have said, it is the responsibility of the companies themselves to decide whether it is worth giving their top employees large salary increases and what effect it will have upon the rest of their workforce.
Lord Boyd-Carpenter: My Lords, are not the figures given by the noble Lord on the Front Bench opposite a trifle misleading, inasmuch as they ignore the fact that in the case of the people concerned at least 60 per cent. of these increases are then taken away in taxation?
Lord Brabazon of Tara: My Lords, my noble friend is quite right. I would also say, as I said to my noble friend Lord Nugent, that a lot of these increases are of course linked directly to the profitability of the companies concerned.
Lord Mackie of Benshie: My Lords, can the Minister say, in view of his desire for lower unit costs, what the Government are doing to motivate the workers who can promote lower unit costs and what measures they are taking to spread the profit-sharing schemes which have had such a big effect in improving efficiency in so many companies?
Lord Brabazon of Tara: My Lords, this Government's record in encouraging profit-sharing schemes and employee share ownership is second to none. I believe that at the time when we came into office in 1979 there were about 30 companies with employee share ownership schemes; and I think I am right in saying that there are now about 1,000.
Lord Grimond: My Lords, since wage and salary restraint is said by the Government to be absolutely central to their economic policy, will they consider giving rather more positive advice to these people in
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industry who are taking increases of anything up to 100 per cent.? Can they give a rather more definite indication of what they themselves intend to do for the salaries for which they are directly responsible? Are they to be limited to inflation or are they not?
Lord Brabazon of Tara: My Lords, I think I have already made clear what the Government's views are on this matter. As regards the salaries for which the Government are responsible, they must of course be limited to what the taxpayer can afford, and if one pays more than the rate of inflation then inflation will continue to go up.

Westminster: Experimental Bus Lanes
2.55 p.m.
Lord Orr-Ewing: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied that the GLC's recent road restrictions outside Parliament which reduce traffic from Millbank from three lanes to one are in the public interest.
The Parliamentary Under-Secretary of State, Department of Transport (The Earl of Caithness): My Lords, the GLC is solely and entirely responsible for these experimental bus lanes, which are not yet in operation. I understand that the GLC considered that the benefits to London from the scheme would be considerable. We do not necessarily agree.
Lord Orr-Ewing: My Lords, is my noble friend aware that on returning to Parliament after the Recess we observe that white lines have been scattered all along the roadway? We get the impression that these were painted by the GLC particularly to snarl up traffic approaching Parliament Square along the Embankment. Were the police consulted about this scheme? If so, what were the findings of the police, and have these been incorporated in the scheme which has been devised?
The Earl of Caithness: My Lords, it is a duty of the GLC to consult the police, but I think that in this instance it did not take the police's advice. The police expressed the view that the lanes would cause congestion for general traffic and make it difficult for them to ensure free access to Parliament, and the GLC thought differently. As to whether this was a deliberate attempt to snarl up traffic, I think we are all entitled to our own opinion on that.
Lord Underhill: My Lords, does the Minister agree that it is very unfortunate that on yet another occasion we have Questions in this House on road traffic schemes before there has been an opportunity for them to be experimented upon and judged? We have had that sort of criticism before about schemes which eventually have proved to be highly beneficial to all the people in London. Is it not a fact that the bus lanes in this case follow strictly the guidelines laid down by the Department of Transport? Is it not also the case

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that some 10 per cent. of London Transport's bus fleet goes round Parliament Square and that there is vast congestion which needs to be looked at? Are these not important questions? Is there not also the question—
Lord Denham: My Lords—
Lord Underhill: My Lords, I beg the Chief Whip's pardon. The Chief Whip should not endeavour to interrupt when noble Lords have not quite finished their speeches. Is it not also the case that the Government believe in cost-effectiveness and that previous bus priority schemes have been cost-effective to London Regional Transport?
The Earl of Caithness: My Lords, as to whether it is unfortunate to have Questions, that is not in my hands. Noble Lords are entitled to put down any Question, and we shall do our best to answer them. As to whether this will relieve congestion, one of the reasons we do not think that it is necessarily a good idea is that Westminster City Council has recently announced a comprehensive review of traffic and environmental conditions in the Parliament Square area which my department is jointly sponsoring, and it would be better to await the outcome of this before proceeding.
Baroness Gardner of Parkes: My Lords, can my noble friend confirm that Westminster council is actually opposed to these present markings which have been placed on the road?
The Earl of Caithness: My Lords, that is my understanding, and we look forward to 1st April when Westminster City Council takes on this responsibility.
Baroness Macleod of Borve: My Lords, may I ask my noble friend the Minister whether he said that these particular signs were temporary? If they are temporary, how long does he expect them to last?
The Earl of Caithness: My Lords, on 1st April these bus lanes and these signs—in fact, they should be covered up, but apparently the wind has taken the blacking-out markings off the signs—will be the responsibility of Westminster City Council, and I hope that it will make a decision fairly speedily.
Lord Orr-Ewing: My Lords, can anything be done during the death throes of the GLC to stop it initiating schemes which are considerable in terms of expenditure, at the expense of the hard-pressed ratepayers? What can be done to stop it carrying out expensive schemes of this kind, which in fact are devised to snarl up the traffic? Is it not true that there is no need to have an experiment? Less traffic will travel down one lane than travels down three lanes, and that is very obvious from looking at the layout of the white lines which are now in front of Parliament.
The Earl of Caithness: My Lords, there is a restriction on what the GLC can do. Parliament agreed that the limit of any scheme should be £15,000, and that if it were above £15,000 the permission of my right honourable friend the Secretary of State for the Environment would have to be sought.
Lord Wallace of Coslany: My Lords, is the noble Lord possibly aware that some of the white lines might be an overflow of whitewash from No. 10 Downing Street?

Public Expenditure
2.59 p.m.
Lord Wolfson: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will state the total amount of capital investment they plan for the year 1985–86 and indicate the proportion being financed by public borrowing, surplus asset sales, privatisation issues, and taxation receipts from capital transactions.
Lord Brabazon of Tara: My Lords, the last public expenditure White Paper showed total public sector capital spending of £22 billion in the plans for 1985–86. The estimated outturn for the year will be shown in the public expenditure White Paper to be published later today. It is not possible to link particular forms of public spending, such as capital investment, directly with particular forms of finance.
Lord Wolfson: My Lords, I thank the noble Lord for his reply, which helps to put in some perspective the intriguing matter of the family silver! It is normal business practice to produce a balance sheet and to separate capital transactions from revenue items. That is governed by company law and tax statute. Should not the same relevant information be provided to the public in the annual Budget Statement?
Lord Brabazon of Tara: My Lords, it has been the policy of successive governments, for as long as history goes back perhaps, not to hypothecate capital and current expenditure. However, if one looks through the Budget Statement one can quickly see the total amounts of money which have been raised from the various items about which the noble Lord asks in his Question.
Lord Morris: My Lords, is my noble friend aware that he is absolutely right? This has been the custom since the days of William Pitt. But does he think that it is relevant in 1986?
Lord Brabazon of Tara: My Lords, I am most grateful to my noble friend for giving me the date when this started.
Lord Williams of Elvel: My Lords, is the noble Lord aware that in his Answer he has given support to the Labour Party position, which is that we should have a national balance sheet, as I think the noble Lord, Lord Wolfson, implied, and the public sector borrowing requirement should be projected in the function of that balance sheet? Is he also aware that we in our party are grateful to him for his support for that concept? I hope very much that the Government will pay attention to what the noble Lord said and that he will be able to give us those assurances.
Lord Brabazon of Tara: My Lords, in case in my original Answer I gave support to the party of the noble Lord opposite, I shall have to read carefully what I said and perhaps correct myself.
Lord Taylor of Gryfe: My Lords, can the Minister tell us whether the advice of the noble Lord, Lord Wolfson, will be observed in making a clear distinction between using the receipts of the sale of surplus assets and their being distributed in some form of taxation relief? Will he commend any public company which sells capital assets in order to realise the payment of dividends?
Lord Brabazon of Tara: My Lords, as I said, we have to look at the Budget as a whole. If the noble Lord wishes to do that, over the years since this party has been in office, he will find that the amount of fixed public capital investment has exceeded the receipts of privatisation some 20 times.
Lord Ezra: My Lords, can the noble Lord say how the quantum of public investment that he has indicated for the United Kingdom compares with that of the major countries in the European Community?
Lord Brabazon of Tara: Not without notice, my Lords.

Business
Lord Denham: My Lords, with the leave of the House, I should like, as usual, to say a word about the two short debates this afternoon standing in the names of my noble friend Lord Campbell of Alloway and the noble Lord, Lord Jacques. It is customary in short debates that the mover is allowed approximately 15 minutes, that the Minister should rise to reply not less than 20 minutes before the scheduled end of the debate and that I should advise the House as to the maximum time that should be applied to each other speech so as to avoid the risk of depriving others. That is not really necessary in either debate this afternoon, as such maximum would be 14 minutes in each case, and I know that the House would appreciate it if speeches were kept to a brevity in keeping with the spirit of these short debates.

Codes of Practice and Legislation
3.4 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway rose to call attention to codes of practice as affecting the incidence of legislation; and to move for Papers.
The noble Lord said: My Lords, this Motion calls attention to a situation whereby as a matter of practice, maybe on grounds of administrative convenience, Royal Assent is given to a Bill authorising the Executive to introduce a code of practice before the proposed provisions of that code of practice have been tabled; and so consideration may not be given in either House to which provisions should be embodied in which of the various types of code, the disparate incidence of which has been settled by the judiciary and settled by reference to the construction of the trigger clauses which introduce
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such codes. In that, the legislative role of Parliament is slighted, and indeed spent, by the time the code is laid for approval or for activation by statutory instrument.
The revisory role of your Lordships' House is hobbled and inhibited. The judiciary, fully conscious that administrative convenience and justice are often not on speaking terms, cannot usurp the role of Parliament even if that role has been pre-empted. A constitutional, a procedural and a legal problem for the certitude of law is infected with incipient erosion, because it is the terms of the trigger clause and not the provisions of the code which are determinative of legal effect. So any assumption that the codes are enforceable, save in the rare, exceptional cases that I shall deal with—save in those cases where the form of the trigger clause so provides—is wholly illusory. Apparent rights either lack legal significance or are subject to unchallengeable discretion.
That state of affairs is a matter of current concern to the Statute Law Society, to my noble friend Lord Renton, its president, and to another distinguished member of that society, that éminence grise of all matters procedural in your Lordships' House, the noble Lord, Lord Henderson of Brompton, at whose suggestion this Motion was tabled. What is to be done about it? Ought there to be some revision of procedures? Ought there to be some form of scrutiny at the drafting stage of Bills; or ought there to be perhaps a committee set up under the authority of the Lord Chancellor of the day which could look at the proposed revisions and the form of the trigger clause proposed and perhaps make recommendations to both Houses of Parliament?
It is upon such questions as those that the noble and learned Lord, Lord Elwyn-Jones, raised the curtain. That was in the debate on the code under the Police and Criminal Evidence Act. The noble and learned Lord was of course primarily directing his mind to Section 67(11) of the Act, a common form and type of trigger clause in current usage. But his observations, which were of great importance and authority, were also of general application. The noble and learned Lord, as one would expect, went straight to the heart of the problem. He contrasted the authority of codes with that of statutes. He questioned the efficacy of remedies available to individual citizens, and he reminded us that reliance upon these codes was representative of a modern and unhealthy trend towards rules of indeterminate status.
There are, so far as I can judge—there are no books on this—five main types of trigger clause with disparate effect, two of which give rise to particular concern. The first which gives rise to concern is the "shall have regard to" type of clause directed to local authorities in the realms of public administrative law. An example of this is the Child Care Act 1980 where the authorities must give consideration to the claims of the wider family, the natural parents, of a child in care. That has been judicially interpreted by no less an authority than the Appellate Committee of your Lordships' House, and therefore, inevitably, is right, as meaning that such persons have no right whatever to be heard and that
"the code lacks any legal significance".
That is the noble and learned Lord, Lord Scarman's, opinion.
Similar considerations arise with the code under the Housing (Homeless Persons) Act; and a similar conclusion was reached by the Court of Appeal. That case is at present under consideration by the Appellate Committee of your Lordships' House. Similar considerations arise in the context of the code that is to be issued by the Mental Health Act Commission. Why do I say "similar"? Because if you compare the trigger clauses, Section 12 of the Act of 1980 and Section 18 of the 1983 Mental Health Act, they marry in the conclusion that the codes lack legal significance. We shall have the great advantage of hearing my noble friend Lord Colville of Culross as to the situation of the code under the Mental Health Act. I shall not seek to pre-empt anything that he might say.
But can it be right, on any law, that measures designed for the protection of the disadvantaged should lack legal significance? Can it be right that the only man in the field of enforcement shall be the longstop of judicial review on grounds of perversity? Ought we not, perhaps, even by analogy with the immigration regime, to enlarge the scope of judicial review? Section 3 of the Immigration Act 1971 does give the rules legal effect. By analogy, some form of new trigger clause might be devised to deal with the situation.
The second type that gives rise to concern is the type with which the noble and learned Lord was dealing—the common form in current usage. That type is admissible in civil and criminal proceedings. Indeed, if it appears to the court or tribunal to be relevant to any question, it is provided that it shall be taken into account in determining that question. I say "common form". Some examples of codes are the five codes in employment law under the Act of 1975 and the Act of 1980, others under the Sex Discrimination Act and another under the Race Relations Act. There are many of them. The judicial approach to this type of code means, in one phrase, that rights are subject to unchallengeable discretion. Although it is accepted that the codes should be regarded as an integral part of legislation, it is said judicially that they form no principles of law and only provide what are standards of good practice and behaviour. No appeal may be entered on the ground that the court or tribunal failed,
"to take into account the provisions of the code".
Only in cases of perversity, where the decision flies in the face of commonly accepted standards of fairness, will the decision be quashed on judicial review.
True, much of that judicial approach was a result of what was said by the Vice-Chancellor in a case concerned with the code applicable to dismissal on grounds of redundancy which was introduced under paragraph 46 of the code and which, in turn, was introduced by Section 6 of the Employment Protection Act 1975. But to this type of code in common usage the reasoning is of general application.
There are, in contrast, two other types of code both of which give legal effect, one in civil proceedings and the other in criminal proceedings. The third type, the one in civil proceedings, may be relied upon in civil proceedings as tending to negative or establish liability. The sole example that I have been able to find is the Highway Code, introduced by the trigger of Section 35(5) of the Act of 1972. This enabled the
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noble and learned Lord, Lord Denning, to elevate that code into principles of law of general application in the field of contributory negligence in road accident cases. But it is the rare case, the exceptional case, and, so far as I know, the only example.
In criminal law, which is the fourth type, there is the code where breach constitutes an offence. It is in a sense full-blooded subordinate legislation. It gives rise to no cause for concern. Examples are the Health and Safety at Work Act 1974, clothing and equipment, or the Radioactive Substances Act 1948, transport, and handling of these substances. A breach of those codes is a criminal offence.
The fifth type is the type of code where there is no legal effect at all, such as that proposed, for example, under Clause 21(2) of the Animals (Scientific Procedures) Bill, or such as has been implemented for the convenience of the disabled under the Transport Act 1985. Within this type one has various sub-categories of consumer codes with which there is not time for me to deal. There are also codes which have no statutory derivation. Inevitably certain questions arise. There is not the time in introducing this debate to deal with them.
In conclusion I would only wish to say that the problems under discussion in this debate arose in a most acute form at the Committee stage in your Lordships' House during the Animals (Scientific Procedures) Bill and induced a veritable miasma of confusion. Hansard shows that the hope was expressed that today's debate in your Lordships' House might serve as some measure of clarification as the Report stage of that Bill is tomorrow. Such is the spirit in which I beg to move. My Lords, I beg to move for Papers.
3.22 p.m.
Lord Denning: My Lords, I should like to thank my noble friend Lord Campbell of Alloway for introducing this subject, which is important constitutionally and legislatively. I gather that this was at the suggestion of the noble Lord, Lord Henderson of Brompton, whom we all regard so highly in this field. However, I should just like to say a word on my experience in dealing with codes of practice. The first one which comes to mind is the first in date, the Highway Code. That came into being in 1930 by the first Road Traffic Act. Then it was proclaimed and left to the Secretary of State to be able to issue directions for the guidance of road users. He did it by virtue of the Highway Code which all your Lordships will have seen.
When I was sitting trying these cases I had the Highway Code on the desk before me and was always looking to see whether the man ought to have held out his hand as a signal or not. This question always arose, for instance, whether it was a case of a man driving without due care and attention, or whether it was one of negligence in driving. The statute could not deal with all the details which would arise in the ordinary case of road users and therefore Parliament—and I think rightly—issued a code of practice, a Highway Code, for the guidance of individuals using the road. That was not a statute which was imperative and for which one could be punished for disobeying, but was

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for guidance. It could be taken into account by a magistrate or judge trying a civil or criminal case. It could be taken into account and is therefore not without legal significance. It is an important element in deciding the case. That was the function of the code and, so far as my experience is concerned, I should have thought that worked admirably.
Similarly with the industrial relations code, going back to 1971. Other parts of that Act were repealed, but this part, the industrial relations code, was excellent. The statute could not provide details as to how management was to deal with men, but it authorised the Secretary of State to issue a code for the guidance of management and men. For instance, if a man complained of wrongful dismissal one could look at the code to see whether the employer ought to have had a word with him beforehand or not. The industrial relations code governed the details of the matter which could not be dealt with in the statute. It was for guidance, and was therefore of relevance. It was of legal significance, but on the other hand it was not a statute itself.
That is my experience as a judge of these codes of practice. The present and latest one is in the Police and Criminal Evidence Act, which we discussed a little while ago. Again, the right was given to a constable to search people whom he thought he ought to search. Again, the statute could not go into details about that. Guidance was given by a code of practice, which was issued after much consultation all round.
The important thing is that these codes give guidance in simple, intelligible language—which they ought to do because the layman has to read them—not in the somewhat stilted or obscure language of a statute. From my practical experience, I would say that so far as that type of code is concerned, this is a good legislative device for helping the courts to come to a just decision in the cases before them.
My noble friend Lord Campbell of Alloway has referred to the other point. There are the series of statutes which give not only guidance but say that the body of magistrates or the council—whatever body it may be—shall have regard to this, that or the other. My noble friend suggests that those have no legal significance at all. However, I would say—and I can cite dozens of cases on this—that if an administrative body of that kind does not have regard to the matters to which by statute or by code it ought to have regard, then that is a ground for interfering with that body. I should have thought that that was not without legal significance. It is of legal significance—they shall have regard to that.
I need not go further because the whole question is as to whether or not this is a proper legislative device to deal with the practical problem when one has to deal with masses of detail. One cannot deal with them in a statute. One cannot even deal with them in a regulation.
Finally—I know that my noble friend Lord Campbell of Alloway knows all about this—let us take our planning legislation. A planning committee has to decide whether or not there is a material change of use. One will not find any help in the statute. The planning department has issued dozens of circulars to give guidance; and it gives guidance to the planning
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committees. Those circulars have no legal significance whatsoever but they are most useful to those in the planning committees who have to deal with them. In other words, there is a whole field in which guidance can be properly given, I suggest, by way of codes of practice and the like. Therefore, although I warmly welcome this discussion, for myself I think that the legislature is not doing at all badly at the moment.
3.29 p.m.
Lord Airedale: My Lords, following as I do the noble and learned Lord, Lord Denning, I am reminded that after the Lord Mayor's Show follows the dustcart. But I can at least safely join with the noble and learned Lord in congratulating the noble Lords, Lord Campbell and Lord Henderson, on providing for us this interesting topic for debate this afternoon.
My particular interest in this subject at this time is that it was I who ventured, during the Committee stage of the Animals (Scientific Procedures) Bill shortly before the Christmas Recess, to put forward an amendment to incorporate verbatim into that Bill the "trigger clause", as it is called, of the Police and Criminal Evidence Act. Your Lordships will remember that that is the clause which makes the codes of practice, wherever relevant, admissible as evidence in court in either civil or criminal proceedings. That seemed a fair and reasonable position to take. It can operate either in favour or against either party to a dispute. On the one hand, it can be said to the person accused, "You had the codes of practice before you. You chose to disregard them. You took that risk and you must face the consequences". On the other hand, the accused person may be able to say, "I faithfully observed the codes of practice which I was required to observe. What more could you expect me to do in the circumstances?"
I received a good deal of sympathy from the Minister, the noble Lord, Lord Glenarthur, for the amendment which I was seeking to introduce. However, the noble Lord has since written me a very detailed letter in which he sets out the reasons why he thinks that a trigger clause of this kind is not appropriate to the animals Bill. Having explained his reasons—and I shall not trouble the House with those reasons—we come to the sentence which says:
"It would therefore be inappropriate to insert in the Bill a reference of the sort proposed in your amendment. In addition it is in any case unnecessary since there is nothing in the Bill which bars the admission of codes of practice [as] evidence in civil or criminal proceedings, and if they are relevant to an issue arising during proceedings they could be taken in evidence."
If that is a statement that it is a general principle that codes of practice, where relevant, can be used in evidence in court, then one wonders why we insert a trigger clause in a particular statute at all. Is one not therefore going to mislead people who will say, "Well, there is no trigger clause in the animals Bill and therefore the codes of practice under that Bill are probably not admissible in evidence because if they were to be admissible Parliament would have inserted a trigger clause"? Therefore, I believe that we are in rather a muddle about this point. Let us either have a general principle which is widely accepted and understood or else, if we are to have trigger clauses, let them be put into every Bill in which they ought to be put.

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Let us suppose that the code of practice comes before the court. It is rather questionable as to whether or not it will be of much assistance to the court. At this point I am indebted to Messrs. Baldwin and Houghton of Brunel University for drawing my attention to part of the judgment of Mr. Justice Streatfeild in a case reported in The Times Law Reports of 1949. The case was called Patchett v. Leatham and it concerned various Home Office circulars. In the course of his judgment, Mr. Justice Streatfeild said:
"Whereas ordinary legislation, by passing through both Houses of Parliament or, at least, lying on the table of both Houses, is thus twice blessed, this type of so-called legislation is at least four times cursed. First, it has seen neither House of Parliament; secondly, it is unpublished and is inaccessible even to those whose valuable rights of property may be affected; thirdly, it is a jumble of provisions, legislative, administrative or directive in character, and sometimes difficult to disentangle one from the other; and, fourthly, it is expressed not in the precise language of an Act of Parliament or an Order in Council but in the more colloquial language of correspondence, which is not always susceptible of the ordinary canons of construction".
That seems to be a rather scathing indictment of some codes of practice.
It is perhaps not surprising that in those circumstances the courts show a disinclination to interfere in these cases short of finding a breach of natural justice or something as grave as that, in the same way as the courts are disinclined to interfere in cases of subordinate legislation where a Minister is given discretion. In that type of case the court will never substitute its own opinion for the opinion of the Minister, but will only interfere if it considers that the Minister has acted not far short of perversity—to borrow a word from the speech of the noble Lord, Lord Campbell.
We are beset by codes of practice on every side. There are procedural rules, like the prison rules; there are instructions to officials as to how they should perform their tasks, such as departmental circulars; there are voluntary codes of self-regulation exercised by financial institutions, professional bodies and sporting bodies, and some of them have the most swingeing powers. For example, a dentist or a jockey may have his very livelihood taken away and will have to submit to the particular disciplinary body which governs the affairs with which he is concerned. There are also the rules of practice, such as the extra-statutory rules applied, for instance, by the Inland Revenue in arriving at their decisions. There are many other instances of codes of practice.
If codes of practice generally can be said to be working more or less satisfactorily, in my view it is only because they rely to a large extent upon goodwill. Without goodwill any code of practice is liable to be very exposed, naked and defenceless. For instance, a departmental code of practice about picketing is not likely to survive unscathed a situation like the miners' strike of 1984.
I suppose that any good speech should arrive at some discernible conclusion. Judged by that criterion, I fear that I have failed this afternoon. I think that all that I have managed to do is to contribute one or two random thoughts to what is a very interesting topic.
3.40 p.m.
Viscount Colville of Culross: My Lords, I too am grateful to my noble friend Lord Campbell of Alloway for giving us an opportunity to discuss this question. As he accurately forecast, I should like to confine myself to one code of practice which is required to be prepared under Section 118 of what is now the Mental Health Act 1983. Let me just tell you Lordships what has to be done. The Secretary of State is told to,
"prepare, and from time to time revise, a code of practice"
which, in summary, is to guide all the relevant professional people,
"in relation to the admission of patients",
suffering from mental disorder,
"to hospitals and mental nursing homes",
and for their treatment while they are there.
Before the code is published there is a requirement to consult widely, and there is then a procedure which in fact was introduced in another place (which was the second House when this legislation was going through Parliament) on Report stage, right at the end of the parliamentary process, which requires copies of the code and any revision to be laid before Parliament under the equivalent of the negative resolution procedure, which is then spelt out because it does not have the benefit of the statutory provision. After that has been done, and provided that Parliament does not want it altered, the Secretary of State publishes the code as it is for the time being in force.
The Secretary of State, by statutory instrument, delegated the preparation of the draft to the Mental Health Act Commission; and for two years we have been struggling with this and I am sorry to say that this is what we have produced. It is written on a word processor, which makes it a little larger than might otherwise be the case, but it is 209 pages long and there are 25 pages of index by way of mitigation. It has been a formidable task, and I therefore come to this House fresh from the positive exercise of having to prepare a code of practice in response to the requirement of Parliament and the Secretary of State. Indeed, I wrote some of it myself. I do not know what will happen to that bit.
There are two things I should like to say about this. I take the point made by the noble Lord, Lord Airedale, that we ought to try to reach a conclusion. The first is the positive side of it. There was a tremendous amount of interest in the mental health legislation when it was going through both Houses in 1981–82, and there were a large number of matters suggested by noble Lords and right honourable and honourable Members of another place for inclusion in the legislation. We all know the pressures to put things in the Act. A great deal of this was resisted, and the legislation itself was kept much more simple than might otherwise have been the case by the idea of incorporating a great number of these matters in a code of practice which would be prepared.
Then of course there is the point to which the noble Lord, Lord Airedale, referred in the judgment of Mr. Justice Streatfeild, about the way in which this code should be expressed. I have never found that the statutory language that we use in this country is particularly easy to interpret, and it is particularly

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difficult to interpret if you have to use strict rules of interpretation. It is certainly not a matter that professionals, say, in the mental health field would wish to do battle with. Therefore, I suggest to the House that there is a great deal to be said for putting this sort of material into easily understood, everyday language, and particularly of course if you can change it from time to time and bring it up to date. Therefore, from that point of view the code of practice also is a great advantage. I grant that it may turn out to be too long, but at least it is tolerably easy to understand.
With those advantages one is then drawn up to a halt by the provisions in this section about the parliamentary approval of the code. What on earth is this supposed to achieve? It is not a statutory instrument, but it is, in some shape or form, blessed by Parliament. I put this to a test for myself. I attempted to write a draft introduction to this code of practice to suggest to those who might in due course come to use it what ought to be done with the thing. The noble Lord, Lord Renton, will look in vain in the beginning of it for any such insertion, because it was immediately taken out by the department; and very wisely so too.
However, it points to the issue—and particularly to those who are actually told to prepare a code of practice of this sort—for what purpose is it to be prepared, who is to use it, and how? The real message that I should like to bring to this short debate is that if Parliament is going to do this sort of thing—and I have suggested two good reasons why it should—then it must at the same time apply its mind to saying, in terms, what is to be the effect of the code when it is prepared.
I can envisage all sorts of problems arising. I do not wish to suggest what the courts are going to do because that is a matter that no doubt will have to be adjudicated upon in due course, but I can see two areas where this code might well be used, or be sought to be used. One is in individual actions for some sort of mistreatment, or negligence, or something of that sort by any one of the numerous sorts of professionals who are engaged in looking after mentally disordered persons.
Happily, these cases do not very often come before the courts, but I hope that we do not follow the American pattern and make this a great source of litigation. It could be that people could pick upon various passages in the code and suggest that if they had not been followed this is something which might give rise to a claim in negligence or some other fault. That would be, I fancy, the opposite of what Parliament had in mind when it required the creation of this code.
The other thing for which it could be used—and again the noble Lord, Lord Airedale, referred to this type of proceeding—is the internal professional disciplinary procedures whereby any one of the multifarious disciplines involved in the mental health field might find themselves up against their own disciplinary procedures for failure to take account of, or to act upon, the precepts of the code of practice.
In those circumstances—and I would think in those alone, at any rate in this context—one might get into the realm of judicial review, because it could well be
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that a court would look at the proceedings of the disciplinary body and say that they perhaps ought not to have taken into account the code of practice as being evidence of what is good practice in that particular professional field. All those matters are at large. Therefore, I think that there are good reasons to say that even if it is a good plan to have codes of practice for various complicated things put into statutes, Parliament must say what is to be done with them.
3.48 p.m.
Lord Rochester: My Lords, I hope that the House will bear with me if I deal only with the one aspect of the question that the noble Lord, Lord Campbell of Alloway, has raised this afternoon on which I feel at least qualified to speak; namely, its application to industrial relations. In that field I should like to take this opportunity briefly to illustrate how codes of practice might, in my view, prove to be useful as preludes to possible legislation subsequently.
When, nearly five years ago, the noble Lord, Lord Renton, introduced a debate in your Lordships' House on the Government's consultative document on trade union immunities I said that the strongest case for altering the law in that respect seemed to me to reside in the removal of immunities from industrial action taken in breach of collective agreements. However, it was plain from the Green Paper that that question was inextricably bound up with the further problem of whether it was feasible to make collective agreements legally enforceable contracts. I shared the view expressed in the consultative document that a great deal of education would be needed before negotiators were sufficiently convinced of the desirability of such arrangements for them to become workable.
I went on to ask whether, as a first step, the Government would consider in their consultation at that time the possibility of introducing a code of practice additional to those on picketing and on the closed shop which followed the Employment Act 1980. The code that I had in mind was to deal with negotiating procedures.
Among other things, it might draw attention to the clear distinction which is already made in western Europe between disputes of right involving the terms or interpretation of agreements already entered into and disputes of interest. In disputes of interest there is for example in western Germany an obligation not to resort to industrial action before referring the issue to a court of law or to arbitration. Almost invariably the parties to the dispute abide by that independent decision. Disputes of interest, on the other hand, arise out of bargaining situations; and, typically, when an existing agreement affecting pay expires and a new one is negotiated, both parties retain their freedom until a new agreement is reached. In that interval, if they cannot agree on the terms of a new agreement then a dispute of interest arises and both parties are free to use industrial action if they wish; that is, the union side may call a strike and the employers could operate a lock-out.
However, even in disputes of interest although industrial action is considered entirely legitimate, great efforts are always made to avoid it. The code of practice that I had in mind was to be based on the proposition that negotiating procedures should be

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introduced in which both management and employees had sufficient confidence to see that they were observed. It was to have as its aim that in all disputes concerning the terms of interpretation of agreements already entered into, whether they affected individuals or groups, there should in the last resort be recourse to arbitration which both management and employees would abide by.
The provisions of such a code, like those others stemming from the 1980 Act, could then be made admissible in evidence and taken into account in proceedings before a court, an industrial tribunal or the Central Arbitration Committee. In that way I felt that we might gradually and with a sufficient degree of consent reach a position where the organisers of industrial action taken in breach of collective agreement would no longer have legal immunity and could be sued for damages.
In replying to that debate, the noble Earl, Lord Gowrie, said that he found that an interesting proposal, and he said that serious consideration would be given to it. Since then however I have heard no more from the Government on the matter, despite one or two reminders. I appreciate that the noble and learned Lord, Lord Cameron of Lochbroom, when he replies to this debate may not be in a position without notice to give a considered response. But I should like at least an assurance from him that the Government still have a proposal of this kind in mind as a means of extending the use of codes of practice prior to possible legislation. I suggest that it has special relevance to instances of industrial action that have sometimes taken place in essential services.
More generally in political terms the present position in the industrial relations field appears to me to be very fluid. There is talk of positive rights for trade union members replacing immunities from legal action. We have examples of no-strike agreements being entered into with provision for pendulum arbitration when negotiations result in a failure to agree. There are also calls for more legislation to limit still further the power of trade unions to inflict damage on third parties, specifically in essential services.
For my part, I suggest that the Government would be wise to think carefully before introducing any immediate additional legislative measures concerning the conduct of industrial disputes. On the other hand, it seems to me that two great merits of seeking to extend the use of codes of practice in the industrial relations field are as follows. First, that before they are introduced there must of necessity be consultation with interested parties and recognition of the need (mentioned already by my noble friend Lord Airedale) to obtain the widest possible measure of agreement as to the terms of the particular code that is contemplated. Secondly, codes of practice in this field can operate over a period which affords time for their provisions to be tested in such a way as to establish whether in practice they are sufficiently acceptable to the employers on the one hand and to the general body of employees on the other to warrant their eventual translation into legislation.
In conclusion, I simply welcome the imaginative initiative that the noble Lord, Lord Campbell of
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Alloway, has taken in raising this afternoon a question which has such wide-ranging applications.
3.58 p.m.
Lord Renton: My Lords, although I share his interest and concern with regard to trade union law, I hope that the noble Lord, Lord Rochester, will forgive me if I am not so rash as to express an instant opinion about his suggestion that there should be a code of practice for negotiations between employers and the employed. That is a very big question. I want also to refer to more general matters and give some other examples.
I, too, should like to congratulate my noble friend Lord Campbell of Alloway not only upon his initiative but on the helpful way in which he introduced this debate. This question of codes of practice is of undoubted and growing importance. It is a practice which has increased enormously in the last ten years. It is already clear from the speeches that we have heard from some noble Lords that the time has come for Parliament and the Government to consider where the practice is leading us: how legislation is affected, how it affects legislation and what should be done to achieve some consistency and order of principle and practice when codes of practice are being prepared in future. Indeed, I venture to suggest that the time has come for us to have an approved code of practice for preparing codes of practice.
I hope that it may help if I try to put this matter into a bit of historical perspective—because I think we need to do so—in order to see where we are going, and so fast. Perhaps I may start by mentioning that I have several times been asked by noble friends on both sides of the House why this matter was not considered by the Committee on the Preparation of Legislation of which I had the honour to be chairman. The two-fold answer is that, first, it was not in our terms of reference and, secondly, it did not need to be; because in 1973 when we started our deliberations there were only two well-known codes of practice, the Judges' Rules and the Highway Code. There were, however, half a dozen minor and obscure codes of practice under six different statutes between 1967 and 1971. But, with the help of the excellent staff in the Library who, in turn were helped by the Lexis system of retrieval from computer, I found that since 1973 the habit has grown so much that there are now 25 statutes in force under which no fewer than 48 codes of practice may be made.
Of course, all of them have not yet been issued, but all these under the more recent legislation of the last 10 years are more important than those earlier minor ones that I mentioned. They are more important because they are of wide application to the citizens of this country and more far-reaching in their effects. Most of these codes of practice—but I am sorry to say not all—made under statute require parliamentary approval. That is obtained, as your Lordships well know, by a Minister laying the code in draft, supported by a statutory instrument which names the code, refers to it and prescribes a date when it shall come into force.
May I say in passing that, unfortunately, it is difficult to get hold of these codes of practice. They are not readily available in the Printed Paper Office, but

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they can be obtained after some delay. Alas, they are not all available in your Lordships' Library. But may I say that, like the noble and learned Lord, Lord Denning, and others who have spoken, I am broadly in favour of codes of practice so long as we get them right and, above all, so long as Parliament is given an opportunity to approve or reject them. I think these codes of practice, if they are properly done, are far more satisfactory than some of the departmental circulars that we have to put up with. If I may give a recent example, under the Transport Act 1985 the Department of Transport is issuing a circular to tell local authorities how to carry out their functions under the Act. Parliament did not require to be consulted about those circulars but the contents of them may be very influential. The department puts forward its own interpretation of the Act, and that interpretation might not always be acceptable to Parliament. So, as I say, codes of practice are right if they are approved by Parliament. I think that we must accept that the system has come to stay and that therefore we should make the best of it.
Clearly, we cannot expect complete uniformity of style and content so far as codes of practice are concerned because, as my noble friend Lord Colville of Culross mentioned, they necessarily have different purposes. One code of practice may have several different purposes, as he has so clearly illustrated with regard to the code of practice on which he has been working under the Mental Health Act, and I shall have something more to say about that in a moment. But I suggest that we should and could avoid some of the present confusion and the uncertainty as to the status of the terms of these codes of practice.
May I give two more examples? I have been told in a letter which came to me out of the blue from a representative of the chemical industry that they are worried because of the Health and Safety Commission's so-called approved code of practice. I do not think that it is approved by Parliament; it is approved by the Health and Safety Commission. Their codes of practice are not mandatory but they reveal a growing tendency towards a quasi-legislative status or pretension of status. This quasi-legislative status is being extended to non-statutory material, clearly non-statutory material, which goes under the heading of the "Health and Safety Commission's Guidance Notes". I am told that this is having a distorting effect in the chemical industry on its efforts at self regulation as proposed by the Robens report. Therefore, the chemical industry seeks clarification. If I may repeat an expression used with regard to the Police and Criminal Evidence Bill on the police codes, they have a three-tier system: regulations, codes of practice and guidance notes.
Lord Elwyn-Jones: My Lords, the term is "Notes of Guidance".
Lord Renton: My Lords, I am much obliged. So much for the chemical industry. My other main example is from the Police and Criminal Evidence Act. I agree with those who spoke at the time, that they are good in substance but I must point out to your Lordships that parts of those codes may repeat or paraphrase provisions of the Act without any
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attribution whatsoever; so that when you read those codes you do not know whether, in fact, they are a repetition of laws which have been passed by Parliament or are commentary, no doubt valuable and helpful commentary, but commentary by the Home Office. I think that the courts and the people appearing before them and their advisers have a right to know the true status of each of the provisions of the codes of practice.
As to the status of the codes under that Act, it has already been pointed out that in police discipline proceedings every word of those codes has full legal effect; and a policeman can have his whole career affected by something in the codes which may not be precise, statutory provision. Therefore we find that these provisions, many of which but not all of which are really penal provisions in a sense, and some of them have never been considered in detail by Parliament, could not be amended by Parliament when we approved them before Christmas and, as I say, they are additional to the statute. But in all other proceedings these codes are merely of persuasive value—as the noble and learned Lord, Lord Denning, said, helping the courts to reach decisions, but of course without binding legal effect.
My noble friend Lord Colville of Culross has set a very good example, if I may say so, because after some difficulty I did manage to get hold of his not-yet-published code of over 200 pages. I should like to congratulate him upon the industry which has gone into it, which must be something terrific. I am sure that those of us who are involved—like the noble and learned Lord, Lord Elwyn-Jones, is, with the mentally ill, and the mentally handicapped, as I am—will be grateful for the painstaking way in which it has been done. But the great thing about that code is that it specifies the sections of the Mental Health Act to which each part of it refers. That is a great advantage.
It has another advantage too, which I think is worth the Government bearing in mind always in the future preparation of codes of practice. It is expressly a consultative document. One assumes that it will not be presented to Parliament for approval until there has been a period of consultation so that Ministers can take note of the representations made with regard to it. That is a great advantage.
May I take now the Highway Code? Really, after all these years we ought to have learned how to do this better. In half a dozen lines of very small print you manage to find that it has got a statutory origin, but when you read it—and we are nearly all motorists, are we not?—you have no idea that the advice that it contains and the instructions that it gives are based upon statutory provisions or have come out of the fertile mind of a member of the staff of the Department of Transport. Possibly you will think it is right that there should be a difference, and that at any rate when there is a statutory foundation there might be a little marginal note saying that it refers to section so-and-so of such-and-such an Act. To do this would not be a great problem and it would clarify the legal position. So the first principle in drafting codes of practice must be to indicate their statutory sources and to clarify their legal effect. Other principles will no doubt emerge from your Lordships' debate, but I must now sit down.
4.13 p.m.
Lord Mottistone: My Lords, I too should like to congratulate my noble friend Lord Campbell of Alloway on introducing this debate. I have been concerned for some time, and I was particularly interested in what my noble friend Lord Renton had to say, about the way in which the practice of having codes of practice has increased so tremendously in the past 12 years or so. That has been more and more obvious and one has become more and more concerned that somehow these codes of practice were growing like Topsy and not growing in any orderly way.
There are not only codes of practice. There are guidelines, which creep into some legislation, and I do not know how the status of a guideline compares with that of a code of practice. Then we are told about guidance notes; and so it goes on. In the same area, there was the licence for British Telecom, which, thanks to quite a lot of pressure, my noble friend Lord Cockfield managed to arrange to have presented for parliamentary consideration before it was brought into force by special machinery through using the statutory instrument which controlled it. But that had to come as a result of parliamentary pressure. It would not have happened in the normal course.
We are then left with the fact that with these codes of practice and other documents of the same sort, when you do get a chance to look at them you cannot amend them. They have the same failing, if one can put it in that way, as has the statutory instrument: you have either to take it or leave it. I remember very well the code of practice that my noble friend Lord Colville has been telling us about, when we were being asked as the Mental Health (Amendment) Bill went through Parliament whether we would agree to a code of practice. A lot of us were very concerned about that because we were not at all sure that the Department of Health's policy at that stage was really quite straightforward and that we would get the right sort of code of practice. I am very pleased indeed that my noble friend has had the privilege of putting it together instead of that being done by the department, because I think one can trust him a great deal more.
The great point about all this—I do not want to labour it, because other people have said it—is that it is untidy and that when Parliament does get a look, it does not get a chance to amend it. I believe that in some cases these kinds of things do not require amending and it is proper from the point of view of getting the business through that we should not waste our time in trying to amend them; but I should like to suggest to your Lordships that there are two things which might make this more controllable.
One is the suggestion of my noble friend Lord Campbell of Alloway that there might perhaps be a special scrutiny committee which scrutinises these things on behalf of your Lordships. I do not say that is necessarily the right answer, but I should very much like my noble and learned friend the Lord Advocate not to discount that idea but to bear it in mind as something which might be introduced in order to give Parliament a sense of satisfaction that it has a proper measure of control of these obviously necessary new types of semi-legislation, which it does not seem to have at the moment.
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There is another possibility which I floated in your Lordships' House from the Opposition Benches. I got very short shrift for it—it might even have come from the noble and learned Lord, Lord Elwyn-Jones, although I do not think I was grand enough for that from the Lord Chancellor of those days. It seems to me that we have now got negative orders and affirmative orders, neither of which can be amended. I should have thought that for special cases we might have—I am not by any means saying for all cases—a third category, which could be amended like a Bill. It would mean extra parliamentary time and therefore one would obviously have to have relatively few of them; but I think there is room for that. I think that some of these codes of practice could usefully fall into that category. Perhaps we might have both that new type of order/code of practice and a scrutiny committee.
Above all, I think it is unsatisfactory if we are not confident that we have proper control of what is going to affect the citizen, because that is what we are here for; and I think we must have a greater degree of control in this sort of area.
4.18 p. m.
Lord Henderson of Brompton: My Lords, after the opening of this debate by the noble Lord, Lord Campbell of Alloway, for which we are all extremely grateful, and the impressive speeches which have followed, it seems to me that it must be clear to the noble and learned Lord the Lord Advocate by now that the whole question of the use, the status and the categories of codes of practice ought to be examined officially.
I think it was the noble Lord, Lord Airedale, who said that a good speech should end with a conclusion. I am starting my speech with a conclusion, but I hope that does not mean that it will be considered a bad speech. Having listened to the noble Lord, Lord Campbell of Alloway, and others, right down to the last speech by the noble Lord, Lord Mottistone, with his interesting suggestion that there might be a scrutiny committee, perhaps of both Houses, my conclusion is, that all the speeches really have indicated that something needs to be done and that the growth of the use of codes of practice has been Topsy-like, just as the growth of statutory instruments was Topsy-like, and that the time has now come for it to be properly looked at and properly regulated. So that is my conclusion at the outset of my speech.
Having reached that conclusion, perhaps one ought to say what one thinks would be the appropriate body to perform this task. The Government might think that a Government committee or a departmental committee might be the answer. Possibly, it might be a select committee or a joint committee of both Houses. But, for myself, I think that the Law Commissions provide the most convenient body for examining this very important development. I was going to say this legislative or semi-legislative development. I do not myself know, because I have not looked up the Law Commissions Act, whether they can act on their own motion or whether they need a reference by the Lord Chancellor. But I very much hope that the Government might see fit to present this to the Law Commissions as a possible, and indeed an urgent, subject for discussion and for a report by them.

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I think that the noble Lord, Lord Campbell of Alloway, has done a service by exposing some of these problems posed by the use of codes of practice, and he has given an opportunity to noble Lords who have given in great detail from their own experience—not least the noble Viscount, Lord Colville of Culross—examples of where it would be to the immense advantage of the general public at large, such as those who have to operate the Mental Health Act, and to those affected, that there should be imported some certainty into the application of these codes.
I think it would not be impertinent of the Law Commissions to undertake a study of this sort. I have in mind that they did at one time, many years ago, make proposals on the interpretation of statutes. They fully recognised the constitutional position of the judiciary, as one would expect, in these words:
"Under our constitutional arrangements it is the function of an independent judiciary to interpret the law and no proposals which we make can or should undermine the freedom which this function requires."
But they nevertheless went on to say that a certain degree of statutory intervention was necessary or desirable and they formulated a set of draft clauses. So there is a precedent for the Commissions to undertake such a task.
As to statutory intervention, of course the interpretation Act is the most prominent example, I suppose. There was also the Rules Publication Act 1893 which was overtaken and incorporated—not before time—by the Statutory Instruments Act 1946. It seems to me that Parliament requires that an Act equivalent to the Statutory Instruments Act 1946 should be placed on the statute book in respect of codes of practice, not least so that Members of both Houses know the precise effect of what they are doing. One of the foremost principles of the Renton Committee was to promote certainty in the statute law, and an inquiry of this nature by the Law Commissions followed by a statute would, in my view, import certainty where there is doubt now.
When I read the report of the debate—which I unfortunately could not attend—of 9th December on the police codes, I found what seemed to me a distinct difference of opinion on the legal effect of those codes. The undisputed fact that breach of the codes by the police can give rise to a disciplinary offence does not mean that there is any redress before the courts or anywhere else for a breach—and that seems to me a very serious thing to say, but it has been said most clearly by the noble Lord, Lord Campbell of Alloway—except in the very rare cases of perversity or breach of the ordinary accepted rules of fairness. The difference of opinion on 9th December was remarkable, in view of the fact that the codes of practice in the Police and Criminal Evidence Act had been freely debated in both Houses during the passage of the Bill. So that alone, to my mind, is an index of the need to codify the use of codes of practice.
But I grant that this is not an easy matter. Like the noble Lord, Lord Renton, I have looked at the statutes incorporating codes of practice over the last 20 years or so. Not only were they few and far between until quite recently—say, 10 years ago—but they were also of a different character on the whole. Leaving aside the best known code, the Highway Code, they tended to be
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of an administrative or executive character, a typical example, which has already been referred to, being the codes under the Health and Safety at Work etc. Act 1974, in which codes of practice for the purposes of that Act are defined. It is slightly unusual for codes to be defined, so I should like to quote, as an example of an early kind of code, what that Act contained. This is the definition:
"a standard, a specification and any other documentary form of practical guidance".
That is what we used to think of as the proper material for which a code should be formulated. It is reasonably precise and you know exactly where you are with it.
Codes of practice have now grown and have been applied to extremely sensitive areas—areas which concern human liberty. As the noble Viscount has pointed out, there is detention under the Mental Health Act and, of course, under the police codes; the exercise by the police of powers to stop and search or on searching of premises; on detention and questioning of persons and on identification of persons by the police. These are quite a different order of subject for codes of practice than the codes which were defined in the Health and Safety at Work etc. Act 1974. They are of such a different kind and character that that alone is a justification for the use of codes to be examined officially. I think that justifies the House spending two hours or so on this subject, and it justifies the noble Lord, Lord Campbell of Alloway, in asking us to do so.
I would just conclude by saying that this is something which is quite clearly with us for the near future and, indeed, for the foreseeable future. We have all heard how this has grown and there have been so many examples recently before us that they are fresh in our minds. But I am looking forward to, perhaps, the next Session or the Session after that. We have had a social security White Paper and that White Paper envisages guidelines for the administration of the social fund. In the old days, or indeed now, one would expect a ministerial circular which would be largely of an administrative character, because the area of discretion is small for the social workers who have to operate the social security system, but under the White Paper things will change dramatically.
The Act which follows the White Paper will be important. It says very clearly in the White Paper that instead of operating by the book or by rule of thumb a great deal of discretion will be given to the social workers as to the individual circumstances of those with whom they are dealing. It was said in the White Paper, or by a Minister introducing it, that there would clearly have to be guidelines for social workers who are going to administer the social funds and that these should be something less than rules or regulations and, I suppose, something more than a ministerial circular. I can only suppose that half way between rules and regulations and a departmental circular comes code of practice. That, I very much hope, will come about when social security legislation is before us. I leave your Lordships with the thought that this is not a question that will go away. It is with us now, and it will be with us for the foreseeable future.
4.30 p.m.
Lord Elwyn-Jones: My Lords, I join noble Lords who have already spoken in congratulating the noble

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Lord, Lord Campbell of Alloway, on putting down this Motion and on introducing and explaining it so clearly. It was a somewhat discouraging Motion on the face of it, but it has given rise to a most vigorous and interesting debate. It has concluded with increasing pressure upon the Minister for a commitment that, in the light of the doubts and questions of an important character that have been raised in different parts of the House on this matter, it may be the time for consideration by a high-powered committee, and ad hoc committee, or the Law Commission. For the moment I cannot think of a better head to it than the noble Lord, Lord Renton. I do not suppose he will forgive me for that unfriendly suggestion. At any rate, there is room for reviewing this matter in the light of the enormous increase in the practice of the user of codes of practice.
We considered some of the implications on the criminal side in the debate on the codes of practice issued by the Secretary of State in compliance with the Police and Criminal Evidence Act. Half a century ago Lord Chief Justice Hewart fulminated against delegated legislation in his famous book The New Despotism, which was a ferocious attack on the civil servants. I confess that I myself thought it was somewhat exaggerated. Indeed, the effect of the exaggeration was such that it was rumoured at the time that all civil servants in Whitehall had a notice on their desks saying, "Power is delightful; absolute power absolutely delightful", I do not know whether there was any single instance of that being done in practice. But in the light of what has been said by noble Lords and from one's own experience, I submit that we are in the face of a new danger of uncertainty—uncertainty in legislation, in the effect of legislation and in the effect of rules governing whole ranges and aspects of the life of the community. My emphasis in my observations will be on the dangerous impact of the use of codes of practice in the criminal field. In the civil field, I see the value of codes of practice in the ways that have been indicated but subject to the changes and reforms that have been called for.
In the criminal field, uncertainty is indeed the enemy of the law, particularly of statutory law. The main charge which can be levelled in general against codes of practice is that they create a considerable area of greyness and uncertainty. It is important to bear in mind that in so far as these criticisms are justified—and I think they are; and they have been given a good deal of authority by notable speeches today—there is taking place what Mr. Baldwin and Mr. Houghton of Brunel in their valuable piece of writing on this matter have described as,
"a retreat from primary legislation in favour of government by informal rules of indeterminate status".
It is a sinister development and one which needs to be very carefully considered. It takes place when two other factors are operating upon our law. First, there is the steady and relentless growth of delegated legislation which grows apace from year to year. Then there is the vast mass of European legislation imported into our law by Section 2 of the European Communities Act 1972. Those rules and the European legislation cover a very wide range of subject matter from various and sometimes not clearly identifiable sources.
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It has been fascinating to hear from noble Lords, particularly in regard to the detail given by the noble Lord, Lord Renton, about the extent of the increase in user of codes of practice. This has been done by varying administrations. I cannot put on a cloak of virtue or innocence in this matter. I have no doubt that the administration in which I took part had a hand in this exercise. I shall not say "careless exercise", because that would be too much criticism. Successive administrations have used the codes but largely and principally in civil law situations. There, of course, they could well have use and value. The planning field has been mentioned.
I have been delighted to hear from the noble Viscount, Lord Colville of Culross, that there has fallen upon his shoulders the task, which must have been an appallingly difficult one, of preparing for a code of practice in the mental health field. I am sure that we are all most grateful to him. Those of us who are involved and work in that field will be waiting with anxiety to see what Parliament makes of it in due course. As the noble Viscount has said and as has been indicated, his draft is not burdened with the intention of finality but is intended for further discussion. Therefore, there is clearly room in the civil field for the addition to legislation of codes of practice so long as they are done effectively and clearly and with proper authority.
In the civil field, in the common law system there is room for what one might call shadowy fringes in its development, but there should not be room for such latitude and uncertainty in the criminal field. The Police and Criminal Evidence Act was perhaps the first express and major incursion of codes of practice into the criminal field. As the noble Lord, Lord Renton, has indicated, in the highway code and in other places there have been incidental consequences that can result in criminal proceedings arising. But here in the Police and Criminal Evidence Act we had to consider a code which had immensely important potential significance, first, for the police themselves and for the nature and extent of their powers and the guidance in how they should be exercised.
Then there is the individual citizen and the protection that should be accorded to him in the course of legislation deliberately intended, in view of the threat or challenge of crime, to increase and enlarge the powers of the police.
The mischief—if I may put the matter as strongly as that—of the uncertainty of the code of practice under Section 67 derived in part from the trigger mechanism provided, to use the language of the noble Lord, Lord Renton, and provisions of Section 67(11) of the Act itself. The words have already been referred to:
"In all criminal and civil proceedings any such code shall be admissible in evidence; and if any provision of such a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question."
My Lords, what does that mean? What help is given to the judge? He has to take it into account. He has to read it. Does he have to pay attention to it? What weight has he to give to it or any part of it? Here is an important criminal provision and it will not do. It leaves the matter in a state of total uncertainty. It does

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not indicate, for instance, that if a breach of the provisions of the code in the course of taking statements from a potential witness by the police is established that that should automatically or generally result in the exclusion of the evidence. There is no such commitment or suggestion. It is left totally at large. As has been said by the noble Lord, Lord Henderson of Brompton—and we discussed this in some detail when considering the Police and Criminal Evidence Bill—there is no remedy provided for the injured citizen should he suffer from the abuse of power and abuse by the police of the provisions of the code, should such arise. The matter is left uncertain and completely in mid-air.
Therefore, I venture to submit that it is indeed timeous for this matter to be carefully and fully reviewed afresh. The Statute Law Revision Committee performed a great service. It became a watershed in the attitude towards legislation. I think that it is time now for a fresh look at the codes of practice, especially in the context of the parallel developments which I have ventured to describe as taking place.
There should be greater precision as to the exact intention of Parliament itself in relation to the codes of practice. That was so well expressed, if I may say so, by the noble Viscount, Lord Colville. At least we should know what is the intention and purpose and where we go from there. I venture to submit that there should be in any code, especially one affecting the criminal law, a clear enunciation of the intention of Parliament so far as concerns the status of the particular code and it should be spelt out in the clearest detail in the enabling section; in the triggering mechanism which the noble Lord, Lord Campbell, so clearly and helpfully identified. That is absolutely crucial.
Then, where codes enshrine fundamental human rights, the rights of civil liberty, the sanctions in relation to a breach of the codes, and particularly in the field of admissibility of evidence, must be stated and must be potentially severe and effective if those fundamental rights are not to be eroded. As I have submitted, words like "shall be taken into account" should be rejected as wholly inadequate and be replaced by precise and specific provisions.
I now mention one further matter which I think should be taken immediately into account; namely, that wherever possible the code which it is intended to bring into existence after the passing of an Act should be available in fairly final form when the relevant legislation is passing through Parliament in so far as that is possible. It may not always be possible, but at any rate there should be some attempt. Far too many codes are sanctioned more or less as blank cheques. We have already been reminded of the limits for parliamentary action which in any event exist. I share the plea that the codes should be more readily available. It took an excessive time in our brilliantly efficient Library for me to lay hands on one or two of the codes which it is useful to study.
What sounded like—and I say this without offence to the noble Lord who initiated the debate—a mere academic exercise which on the face of it was perhaps more suited to a symposium at a university, has turned
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out in the event to raise very important constitutional, legal and parliamentary questions. We await with impatience the answer from the noble and learned Lord who is to reply to the debate.
4.46 p.m.
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, perhaps I may begin by thanking my noble friend Lord Campbell of Alloway for tabling this Motion with the encouragement of the noble Lord, Lord Henderson of Brompton. It has been a great pleasure to hear him also speaking on the Motion before the House today. It has given us an opportunity to debate a subject which noble Lords have clearly indicated is of considerable importance in modern legislation. The debate has, I suggest, been a useful, constructive and wide-ranging one. Indeed, our thanks are due to my noble friend Lord Campbell of Alloway for the clarity with which he analysed the issues in his opening speech and allowed the debate to concentrate on the important issues.
In what I say I shall endeavour, so far as I can, to cover the points made by noble Lords during the debate, but your Lordships will perhaps forgive me if I am not able to cover them all. I am bound to say that I come as a novice to the legislative process. I have come in on the act, as it were, very shortly before rising to speak, but I recognise that today we are concerned with codes of practice which have some statutory basis. There are many voluntary non-statutory codes setting out standards of practice or behaviour in various fields; but I suggest that the problems which my noble friend perceived do not arise in connection with such codes.
Perhaps in parenthesis I may say that the noble Lord, Lord Airedale, made reference to the case of Patchett. I am subject to correction, but I have a suspicion that the case related to departmental circulars rather than the statutory codes of practice with which we are concerned today. Therefore, while I accept the twice blessed and four times cursed comment of Lord Justice Streatfeild about the circulars, I think that we are dealing with something which may be called into being by statute and then becomes twice blessed or twice cursed according to how you like to look at it in consequence thereof.
So far as I can judge from your Lordships' speeches, there appears to be general agreement that there is a place for codes of practice with statutory authority. Statements of what constitute good practice may be very technical and detailed; they may be too imprecise to be readily expressed as legal duties and in such cases a code of practice authorised by a statutory provision will provide the necessary guidance in a form which does not clutter up the statute book and is sufficiently flexible to be altered in the light of developments in the area to which it relates.
In regard to its terms, it depends on, first of all, to whom it is addressed, and, secondly, the purpose for which it is intended. I entirely agree with the noble and learned Lord, Lord Denning, about the requirement for simple language—one cry which I think found an echo in the hearts and indeed the voices of other noble Lords today, not least my noble friend Lord Colville of Culross—and I entirely accept that point, though I

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suggest that perhaps my noble friend might now have even more sympathy for the task of a parliamentary draftsman than he did before.
I suggest that the matters which concerned my noble friend in opening this debate are in broad terms these: first, whether the variation in the statutory provisions introducing such codes and in the legal effect which such codes may have is capable of causing confusion and uncertainty on the part of those affected by the codes; and, secondly, whether the use of codes of practice rather than primary or secondary legislation is restricting the legislative role of Parliament. As a Scots lawyer, I am bound to say that I find a great attraction in the point which was made by my noble friend Lord Renton and echoed by the noble Lord, Lord Henderson of Brompton, that there is a need to get back to first principles in considering these questions.
As regards the first question, I think there were identified a number of different forms of what were termed "trigger clauses" according to the legal consequences which flowed from them. There is of course a category of provisions which are silent as to the legal effect of the code they introduce. I think that both my noble friend Lord Campbell of Alloway and my noble friend Lord Renton made reference to the code which related to the convenience of the disabled in using public transport vehicles, provision for which was made in the Transport Act 1985. In such cases the code is nothing more than what it appears to be; namely, a statement of what constitutes good practice in the area to which it relates.
The code is not intended to have any legal effect but is simply to provide guidance, and I think that in that case my noble friend Lord Renton is correct in saying that there was in fact no requirement that the code should be submitted to Parliament when it was drawn up. While one may of course argue that the subject matter of the code is sufficiently important to justify primary or secondary legislation—and I shall return to this point in a moment—the legal status of this type of code is fairly clear.
Then there is the category of codes introduced by a clause which does contemplate possible legal proceedings against a person and provides that breach of the code does not of itself give rise to civil or criminal liability. In such a case the clause provides that the code is admissible in evidence in a court or a tribunal and that the court or tribunal shall, if it considers provisions of the code to be relevant, take them into account—and this, I think, is now much the most common type of code.
Again, the legal effect of such a code is really limited. For example, if there were an action in which it was maintained that loss had been caused by the defender's method of carrying out some duty, it would be relevant to the outcome of the action to prove to the court what was the generally accepted way of carrying out the duty. For instance, the pursuer might call an expert witness to explain the matter to the court, and I am sure that the noble and learned Lord sitting opposite, Lord Elwyn-Jones, has frequently experienced these kinds of cases. If, however, there were a code of practice relating to the question in dispute, I would suggest that it seems perfectly
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reasonable in determining the issue of liability that the court should take the code into account to the extent that it is relevant.
As I have said, the code is a statement of accepted good practice and I suggest then that it is appropriate that the court should take it into account. A provision of this nature does not of course prevent either party to an action from showing that the matter in dispute has been dealt with satisfactorily in a way other than that stated in the code, and therefore the code does not of itself by virtue of breach of it give rise to either civil or criminal liability.
There were, I think, other codes to which reference was made—and which my noble friend in opening suggested gave cause for some concern on the ground that they do have some legal effect in civil or criminal proceedings. The highway code is an example of a code which, as has been said, has effect as tending to establish or negative liability in civil or criminal proceedings; and the noble Lord mentioned codes under the Health and Safety at Work Act as having effect in criminal proceedings. Certainly it is true, as the noble Lord, Lord Renton, pointed out, that these codes are not subject to parliamentary scrutiny.
I suggest that these codes are very much the exception rather than the rule. Subject to what I have to say about the role of Parliament in relation to such codes, it is however surely right that the existence of a code of practice governing conduct which may be an issue in legal proceedings should be acknowledged. If a code represents generally accepted standards of practice in relation to a particular matter, surely it is reasonable to say to a party in legal proceedings: "These are the accepted standards. What you have done does not conform to them. It is therefore up to you to show that your way of doing things is equally satisfactory".
Failure to observe the provisions of the code does not thus in itself render a person liable to any civil or criminal proceedings. What it does—and I instance the case where a code such as the highway code is relied upon by a party to the proceedings as tending to establish the liability which is in question—is to place on the other person the burden of proving that that conduct, which was not in accordance with the code, was nevertheless in compliance with, or not in breach of, his legal duties, whether they be statutory or common law.
In addition to the examples mentioned by noble Lords, there are of course cases in which compliance with the provisions of a code may constitute a defence to a particular charge. The Control of Pollution Act 1974 contains examples of such cases. Where, for instance, Section 31 creates an offence of polluting streams or controlled waters, there is a defence if an accused person can show that the entry of the pollutant into the water was in accordance with good agricultural practice. The section goes on to provide that any practice recommended in a code approved for the purpose by the agriculture Ministers shall be deemed to be good agricultural practice.
A similar provision is to be found in the case of a person accused of contravening a noise reduction order in terms of Section 66, where there is a defence if he proves that he used the best practicable means to

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prevent the noise or minimise its consequences. Under Section 71 of the Act the Secretary of State may issue codes of practice on appropriate methods of noise reduction or may approve codes issued by others.
Thus the references to best practicable means are to be interpreted having regard to such codes. I would say in answer to the noble and learned Lord, Lord Elwyn-Jones, that there is a use of codes in criminal law where the shadowy fringe or the uncertainty which appears in the legislation itself is in fact made stark and clear by the codes. So with very great respect to what the noble and learned Lord has said, I suggest that codes of practice still have a part to play in certain of our criminal laws.
All these cases, I submit to your Lordships, are examples of the general proposition that where a code of practice exists, it is right and proper that it should be taken into account in any proceedings which raise issues to which the code of practice is relevant. The provisions in the primary legislation—the trigger clauses—regarding the weight which courts are to give to such codes do not create or confer enforceable rights; they are simply part of the rules of evidence. They give rise to what I think the noble and learned Lord, Lord Denning, in the course of his speech to this House in the case Brown v. Rolls-Royce Limited, once called the provisional burden of proof upon a party. I apologise for mentioning a Scots appeal but it is one which has become fairly well-known to me in the course of my experience as a lawyer.
Lord Elwyn-Jones: And it is good authority, my Lords.
Lord Cameron of Lochbroom: Indeed, my Lords, it is authority in Scotland and of undoubtedly persuasive value even south of the Border and in Wales.
There are a few instances, such as the provisions which introduce the Highway Code, where compliance or non-compliance with the code may have an important bearing on the outcome of civil or criminal proceedings, but these instances are, I think, exceptional and represent the extreme end of the spectrum of legal effect. Any obligation, breach of which would result in civil or criminal liability, I suggest, should be in the primary or secondary legislation: and it is breach of that obligation, and not breach of any code relating to the obligation, which results in civil or criminal liability.
That leads me on to the second issue which I see as arising in this debate; that is, the issue of parliamentary control of codes of practice. I think that it was suggested in the consideration given by my noble friend in opening that there was, as indeed there is, a distinction among primary legislation, secondary legislation and codes of practice. As I rather understood what he said, he was suggesting that codes of practice might be restricted simply to matters of exhortation or guidance, having no legal effect. I suggest that that may be more easily said than done.
Much of what is contained in codes of practice is extremely detailed and technical, and does not seek to impose legal duties. To include it in subordinate legislation would create a substantial increase in the already large volume of statutory instruments without any corresponding benefit in terms of legal certainty as
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to the status of the code. I readily accept that a provision, breach of which creates civil or criminal liability, ought to be in primary or secondary legislation; but, as I indicated earlier, most of the codes which we have considered contain an express provision to the effect that breach of their provisions does not create such liability, and in those circumstances I am unable to see what benefit there would be in including such codes in subordinate legislation.
Another factor to bear in mind is that codes which have a statutory basis are not always issued by the Government; in a number of cases the Secretary of State or Minister is given power to approve or recommend a code prepared by an outside body, such as ACAS or the Equal Opportunities Commission. It would be at the very least anomalous if the Secretary of State, when he received a draft code from ACAS for his approval, had to prepare a statutory instrument to which the draft code would be annexed, the only legal effect of the whole exercise being that the code could be used in proceedings before an industrial tribunal, a fact which would already be stated in the original primary legislation.
I suggest to your Lordships that the important point is not so much whether a particular matter is dealt with in a code of practice or in subordinate legislation, but rather the extent to which Parliament has control over the contents of a code which may be relevant to the rights of individuals in legal proceedings. I think that throughout the debate in a sense that has been the touchstone—the point to which noble Lords kept coming back frequently.
If the provisions of a code are capable of being introduced into and affecting the outcome of legal proceedings, even if only as to which party has to discharge the burden of proof, I consider that in principle it is right and proper that the trigger clause should provide for the code to be laid before Parliament and for your Lordships' House and another place to have an opportunity to consider the terms of the code and to express a view on it through a form of negative or affirmative resolution procedure, according to the importance of the subject-matter. That means that Parliament at the outset has to consider the statutory basis from which the code of practice takes birth. It also, I suggest, enables Parliament at that stage to deal with the kind of question which, for instance, my noble friend Lord Colville of Culross raised, of what is to be done with them, because that of course can be set out in the legislation itself, so that there can be no dubiety.
The noble Lord, Lord Rochester, made reference to employment law and in particular to a discussion which took place in a previous debate on the matter of a code of practice as affecting it. He will forgive me if perhaps in this debate I make no response to that. Obviously, the views expressed by the noble Lord, and indeed by all noble Lords today, will be considered by myself and my colleagues, as to whether there is need to take the matter further, as was referred to.
Certainly, as I say, such being the situation, then it seems to me that that point also to some extent answers the criticism which my noble friend Lord Renton made as to the uncertainty of the status of a code of practice. It would provide, if need be, for the

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form of consultation which is to be gone through; and indeed one knows that that is sometimes provided for. That seems to me something which arises at the first stage.
As I say, it is accordingly open to Parliament even now to achieve the result which I think that noble Lords have been suggesting would be appropriate. In considering a Bill which contains a provision for codes of practice it will be relevant to consider what sort of topics the code will deal with. If the topics set out in that provision are likely to give rise to the use of the code in legal proceedings, it is open to Parliament to ensure that the code cannot be issued without coming before Parliament and being approved either expressly or by acquiescence.
Certain suggestions were made as to the powers to amend a code in the course of such consideration. I think, indeed, that it was my noble friend Lord Mottistone who made reference to that. I do not think that I can venture any views on that, because that seems to me to be a matter for the House to determine as regulating its own procedure; and as it is something which involves the other place, it would require, I assume, consideration by both Houses before a solution could be achieved.
Be that as it may, I would simply say this in response to a criticism. I think that it was my noble friend Lord Campbell of Alloway who used the phrase "the slighting of Parliament". There is no slighting of Parliament if Parliament has, as it has, the opportunity to consider the primary legislation, and the terms of it, which give rise to the code of practice.
Of course, as I have said already, the majority of existing statutory provisions regarding codes of practice already provide for parliamentary control of the very sort that I have just mentioned. This applies equally to codes issued by the Government and to codes emanating from outside bodies and being approved, under statutory authority, by the Government. I suggest that that does not amount to hobbling, which I think was another phrase used.
It seems to me, too, that in the discussion of the code of practice, there is then an opportunity always for your Lordships to make clear, as you have done today, the importance of the kind of language that is used in a code. I would simply make this qualification. It has been recognised today that a code of practice cannot be placed within a particular straitjacket or skeleton because it is intended to cover such a wide variety of circumstances—for guidance and the like. The idea that it should become formalised is not one, I would suggest, that runs well with the concept behind codes of practice as they are. Indeed, the instance of the code that has been prepared under the Mental Health Act 1983 seems to establish that very point.
My noble friend Lord Campbell of Alloway suggested a possible system for scrutinising draft provisions in Bills which would permit codes of practice. Certain of your Lordships, especially my noble friend Lord Mottistone, went slightly further in this regard. I think, perhaps, that my noble friend himself appreciated some of the practical and constitutional difficulties that would arise in any proposal to scrutinise a draft Bill before it had been introduced into your Lordships' House or another
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place. I appreciate that it is helpful to have sight of a draft code when considering a trigger clause. The noble and learned Lord, Lord Elwyn-Jones, drew attention to that fact, as did certain other noble Lords. Indeed, it is helpful to see draft regulations—for instance, when considering a regulation-making power. But it is not always possible. The example under the Mental Health Act is again pertinent. It may take some time to draw up a code. There may have to be discussions and consultations with interested bodies. It may be that the power to issue a code is not intended to be exercised immediately. But the absence of a text of a draft code should not cause undue difficulty. I suggest, as I did earlier, that the primary legislation, the trigger clause, will specify what topics the code may cover, and it should be possible to judge from that provision how important the code is likely to be and what controls, if any, might be appropriate.
Reference was made to the code of practice under the Police and Criminal Evidence Act. Your Lordships will perhaps forgive me, since there was a debate on that code a short time ago, if I do not deal further with that particular matter. It was that debate, as my noble friend indicated at the outset, that gave rise—
Lord Elwyn-Jones: Triggered!
Lord Cameron of Lochbroom:—along with the encouragement he had elsewhere, to this debate today. Indeed, as I am suitably reminded, this was the trigger for the debate.
Mention was also made of the Animals (Scientific Procedures) Bill that is, of course, before your Lordships' House tomorrow. Again, perhaps your Lordships will forgive me if I do not anticipate anything that takes place tomorrow, nor that I comment upon the terms of the letter that the noble Lord, Lord Airedale, received from my noble friend the Minister.
The use of codes of practice has grown up over the past 15 or 20 years as a means of providing guidance in a clear and, it is intended, helpful way, and in a form that is sufficiently flexible and allows for the inclusion of detail and of material that it would not be appropriate to put in primary or secondary legislation. Where it is envisaged that such codes should have any form of legal effect in relation to individuals, the Government accept that Parliament should have similar powers to those that it has in relation to subordinate legislation. Beyond that, I would not be prepared to go today. At the end of the day, and particularly in the light of what has been said and focused upon in today's debate, it is clear that your Lordships will now look at codes of practice with a very much more practised eye than has perhaps been used previously.
Today's debate has very helpfully focused attention on the issues that arise when considering statutory codes of practice and the provisions introducing them. I suggest that the debate will be a useful one for many to consider in the discussions that this House and another place may have on codes of practice in the future. I would simply say at this stage that I am not persuaded that there is any reason to take certain of the lines, proposed, for instance, by the noble Lord, Lord

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Henderson of Brompton, and others, in establishing further skilled consideration of the whole topic of codes of practice. This is, I suggest, something that the House itself is fully capable of dealing with in its own deliberations where the occasion arises.
Lord Renton: My Lords, before my noble and learned friend sits down, would he care to comment on the suggestion made by myself and other noble Lords that where a code of practice contains a repetition of statutory provisions there should be an indication of what those provisions are?
Lord Cameron of Lochbroom: My Lords, again, I would simply say this. That has the merit of concentrating the attention of the reader as to where the provision is drawn from. It would appear from what has been said that a draft code is already in existence where that form is followed. Obviously, as I have said already, my colleagues and myself will pay particular attention to the criticisms that have been made about codes of practice in the past. That seems to me a suggestion that is eminently sensible for those who will be responsible for drawing up codes of practice in the future.
5.17 p.m.
Lord Campbell of Alloway: My Lords, this is no trite acknowledgement. I am really most grateful to all noble Lords who have spoken in the debate. Having listened with close attention to what they have had to say, I am at last beginning to think that I understand a little about the subject. It really has been for me an education to listen to your Lordships. I should also like to thank my noble and learned friend the Lord Advocate for his contribution.
It seems to be the general sense of the House that there ought to be parliamentary control and that, where possible without too much rigidity, the draft proposed code should be laid with the trigger clause so that both Houses of Parliament can understand what they are doing. Some means should be devised to try to ensure this. Various means have been suggested. It seems also to be the sense of the House that the present situation is not at all satisfactory. This is not really anyone's fault. It has simply arisen over the last few years and has produced a situation that no one has really got round to dealing with. In those circumstances, I am sure that all your Lordships will be grateful to my noble and learned friend the Lord Advocate for having said that he will consult with his colleagues as to what may be done about it.
I have to express my gratitude to the Executive, the departments of state—the Home Office, the Department of Transport and the Department of Employment—who have provided me with the inaccessible material without which I should not have been able to open the matter. However, this is an aspect that has been touched upon.
There is only one matter which, with your Lordships' leave, I would wish to commend to my noble and learned friend when he consults with his colleagues. It is on the question of what should be primary legislation, what should be secondary legislation, and what should be embodied in a code of practice. As far as what should be embodied in
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primary legislation and is not, an example is the provision of Item 31 of the Employment Act code about picketing, which limits pickets to six. That is a simple matter which goes straight to individual rights in a quite categorical situation. Surely that should not be in the commmon form code, which is subject to unchallengeable discretion, but should be there by the will of Parliament on the face of a statute.
I would ask my noble and learned friend whether, when consulting with his colleagues, he could make that point to them. I renew my thanks to all your Lordships and I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.

Employment Policy
5.21 p.m.
Lord Jacques Lord Jacques rose to call attention to the importance to the nation of full employment and to the case for an annual employment budget which, inter alia, analyses unemployment and indicates what the Government are doing about it and what co-operation they need from both sides of industry; and to move for Papers.
The noble Lord said: My Lords, I rise to move the Motion standing in my name on the Order Paper. I am one who has always taken the view that one of the greatest needs of our country is full employment. I regard the demoralisation associated with unemployment as inconsistent with a civilised society. It is a special problem and one which ought to have special attention because of its importance.
In addition unemployment is a terrific waste. That was shown in the first 25 years after the last war. We had full employment; and we had the greatest increase in our standard of living in our history. That shows the amount of waste there would have been had we had a good deal of our resources lying idle. By employing the whole of our resources we were able not only to increase our standard of living to the highest in our history, but we were also able to initiate the welfare state. We initiated the welfare state during full employment because then people were paying taxes instead of drawing benefits. It is advisable that we should bear in mind that the welfare state has only existed under two sets of conditions: first, under full employment; and, secondly, under great subsidy from North Sea oil. Unless we take steps to get back to full employment—or something like full employment—before the oil runs out, we shall have the very greatest difficulty in maintaining a welfare state.
Because of the importance of the problem I have suggested that there should be an annual employment budget—an annual budget on employment policy. I have used the term "budget" because I want not only a review of what has happened in the previous year, but I want a project of what the Government intend in the subsequent year. For that reason I have used the term "budget"; but I should not mind if the term "report" were used, provided I got what I wanted.
I would expect such a report or budget to analyse employment and unemployment in various ways, according to the nature of the goods and services

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produced, and according to the region of the country in which they were produced. I would expect the analysis to be for the preceding and succeeding year. I would expect it to deal specifically with changes in structure which were giving rise to employment; and associated with that, to say what the Government had done in retraining and what they intended to do in the subsequent year.
That brings me to the whole question of training. I would expect such a budget or report to have a very important section dealing with training. The fact is that all research shows that so far as our leading competitors are concerned they are well ahead of us in training, and that it is one of the principal reasons why their productivity is greater.
I should like to see a long-term, very definite scheme of training at a very high level. I think that it should be the first priority of every polytechnic to encourage the exercise of the skills which are required in industry, especially in local industry, and to prepare the students for examination on a national basis. I do not want training which does not have the discipline of an examination. I want an examination and a national certificate which are acceptable to employers and for which employers are prepared to pay a premium when they employ the person concerned. Unless that is done in this definite way the training will not be as good as it ought to be.
We want training not only in the skills associated with industry, but training in management. I would say that every one of our universities in an industrial area should offer a postgraduate diploma in management, even if it is only a one-year course. I would say that a number of selected universities—probably half a dozen throughout the United Kingdom—should offer a three-year degree course in management. We have to get down to management, which is not as good as it should be. We have to take steps to make our management better.
After a section dealing with training I should like to see one dealing with industrial relations. We know as a fact that some of our competitors are able to have far better industrial relations than we have. Rather than confrontation we have to seek co-operation between the two sides of industry. There has to be partnership. An annual budget or an annual report on employment would tell us what progress had been made during the past year in improving industrial relations and what was expected in the coming year. For example, it would tell us what progress has been made in getting consultation between the two sides of industry in each of the firms; what kind of machinery we are setting up. Nothing would be laid down in statute. Let them do this in their own way, as long as they do it.
Arising out of that position, the report would tell us what progress has been made regarding flexibility of labour. Flexibility of labour is of exceptional importance in management. It would tell us what progress has been made in conciliation, where the parties do not agree and ultimately adopt arbitration rather than industrial action. We can get these matters through partnership. It is the duty of every Government to foster partnership in industry.
Next, I should like to see a section of the report dealing with new ideas to meet new problems that have arisen. For example, in a period of unemployment the workers seek reductions in hours. The employer very often resists reductions in hours because such reductions will increase his costs. Both have a very reasonable point of view. However, what is sometimes overlooked by both sides is that reduced hours will facilitate a two-shift system. If we have a two-shift system working on the same plant, we can save more than it costs to have the reduced hours. In other words, we must look for ways and means of employing more labour in relation to the same amount of capital.
Next, I would expect there to be a paragraph on rates of interest and the way in which rates of interest during the previous year have affected employment. I would want to know what action the Government have taken to try and get control of the rate of interest if it were causing unemployment, and what they expect the rate of interest to be during the next year and its effect upon employment. I would also expect a section dealing with the planned maintenance of the infrastructure of our country; how that will affect employment in the following year; and how it has affected employment in the past year.
Moreover, I would expect a section in the budget or report dealing with the exchange rate and the way in which in the past year the exchange rate has affected our imports and exports and, therefore, affected employment, and what the prospects are for the subsequent year. I would expect that analysis to deal with imports and exports in respect of each of the important nations with which we trade.
Finally, I would expect another section dealing with the inhibitions which are necessary in connection with international trade. In the last analysis we shall achieve full employment in the Western world only in so far as we are able adequately to control economic forces. We shall never achieve full employment if we allow economic forces to have full rein. There must be some control. It is best that that control should be on an international basis with international agreement. However, in so far as it cannot be by international agreement, it is sometimes necessary for sovereign states to take action in protection of the employment of their people.
I believe that the time will come when we shall have to take more action than we are taking now to protect the employment of our people. I accept immediately that once we start restricting international trade and reducing competition, we increase our costs. However, I also point out that if we are using the whole of our resources, we reduce our costs. Consequently, one compensates for the other. At present, for example, by agreement with other states we limit their imports to us of such things as textiles and motor cars. I should like to see a section in the report or budget dealing with what happened in the past year and what will happen in the future—in the next year—in relation to those agreements which protect the employment of our people.
In conclusion, I would say that this subject is of such great importance that it deserves an occasion once a year when the attention of Parliament and the media

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is focused upon it—indeed, when the attention of the whole nation is focused upon it—until we are able to resolve it to a far greater extent than we have up to now. My Lords, I beg to move for Papers.
5.34 p.m.
Lord Rochester: My Lords, I am sure that the whole House will wish me to congratulate the noble Lord, Lord Jacques, on having introduced the Motion. We have had many debates on employment and unemployment, but the noble Lord's rather novel approach—if I may put it that way—to the subject is most welcome and, as always, we admire the forthright way in which the noble Lord always speaks.
As I understand it, the basic concept underlying the Motion of the noble Lord, Lord Jacques, is that it is desirable to return to as full a state of employment as is compatible with a viable economy, and that the Government should be prepared periodically to indicate in a businesslike manner the various ways in which they are making progress towards that goal. I am happy to subscribe to that general principle.
In his speech, the noble Lord referred specifically to training as a means of improving employment prospects, and I should like to develop that theme. In a recent report which was commissioned jointly by the Manpower Services Commission and the National Economic Development Office, the authors wrote:
"We formed the impression that training managers themselves tended not to view their activities as being the cutting edge of the competitiveness of their firm—and nor do senior executives".
Furthermore, to judge from this report, training is often not seen as an investment leading to identifiable income. Indeed, many companies are apparently not even aware of the volume of their expenditure on training. To quote again from the report:
"More than a few of the training managers and personnel directors we interviewed told us that it was better that the full costs of their firm's training should not be made known to the board, because if it were, the board might wish to reduce it".
The authors put forward a number of proposals aimed at stimulating investment in training, including improved tax incentives for both companies and individuals, and a statutory requirement that companies should disclose in their annual reports how much they were spending on training.
The report concluded that there must be a positive will to change and that this would require clear leadership both from senior members of the business community and from government at the highest levels. If such leadership were not forthcoming, the authors saw no alternative to legislation to give statutory backing to some of the components of the strategy which they advocated. As regards this matter I do not think that we can afford to wait that long.
Ever since under the Education and Training Act 1981 the number of industrial training boards was reduced from 24 to, I think, seven, leaving training arrangements to be organised on a voluntary basis, I have been troubled by the absence of adequate national training standards. In my view the problem will not be solved without the imposition on companies of a training levy, remission of the levy to
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employers being made conditional on training conforming to certain specified criteria which should be framed so as to encourage an approach to training of an organic, problem-solving kind which focuses on objectives and on achievements. I do not, for my part, see how, without some such arrangement, we can as a nation either remain internationally competitive or achieve a substantial improvement in the employment position.
The noble Lord, Lord Young, may not agree with me but I feel entitled to ask him to say, when he replies to the debate, whether the Government are themselves satisfied with the current state of industrial training, particularly for adults, in updating their skills and knowledge to keep pace with new technology and, as the noble Lord, Lord Jacques, suggested, in the management of people and of change. If the Government are not so satisfied—and I am not here thinking of projects such as those with which the noble Lord, Lord Young, has been associated in such a distinguished way; I am not thinking of projects such as the Youth Training Scheme or the Community Programme, which mainly affect young people—I would ask what additional action, if the Government are not satisfied with the position in the area of adult training, they propose to take to remedy the situation.
Another matter which is highly relevant to this debate is the relationship between employment levels and pay determination. Here, too, I should like to refer to a report published last year by the Institute of Personnel Management, entitled, Pay and Unemployment. It has special relevance to that part of the Motion of the noble Lord, Lord Jacques, which calls for an indication of what co-operation the Government need from both sides of industry in tackling the problem of unemployment.
The view of the IPM is that the National Economic Development Council, whose meetings are attended by representatives of government, employers and trade unions, could promote a greater awareness among all sectors of the economy of the effects which reduced labour costs and increased productivity could have on job creation. The institute considers that if the movement out of recession is to be anything other than fragile, then employers and employees must agree effective output-related productivity deals, but the benefits of improved productivity should not be used solely to raise the real earnings of those in work. As the report of the institute puts it:
"Rather they should be shared between increased profits, dividends, wages and capital investment on the one hand, and the reduction of unit costs and prices on the other, with the specific aim of contributing to job creation."
The Government are rightly concerned that currently increases in pay are greatly in excess of the rate of inflation, yet they give no indication that the National Economic Development Council has an educative role to play in spreading, however informally, knowledge and understanding of the Government's own attitude towards pay and the implications of pay levels for employment.
One does not have to be a supporter of formalised incomes policies—the Institute of Personnel Management is not—to recognise the contribution which a national pay forum of this kind could make in

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seeking to promote realistic expectations regarding increases in pay and helping to avoid, in the words of the institute,
"The worst excesses of high unemployment, inflation, and uncompetitive costs."
Again I would ask the noble Lord, Lord Young, when he comes to reply, to comment specifically on this proposal as a means of withstanding political and economic change by maintaining continuity of policy, and in the long term increasing job opportunities and—a point rightly stressed by the noble Lord, Lord Jacques—also improving industrial relations in this country.
There is one other matter which I should briefly mention as a potential long-term contributor to the creation of more jobs because of the effect that it would have in improving this country's industrial performance. It is that companies should do more than they now appear to be doing to promote employee involvement. Because I have tabled an Unstarred Question on this subject so that it can be debated adequately, I shall say no more now than that, to judge from the latest relevant analysis, and indeed from statements recently made, as the noble Lord, Lord Young, will know, by the responsible Minister, the situation in this regard is, to say the least, disappointing.
I do not wish to end on a despondent note. It is only through co-operation between government, employers and employees that this complex problem of unemployment will be alleviated. In conclusion, therefore, I express the hope that in his reply the noble Lord the Secretary of State will respond as constructively as he can to the Motion before us.
5.47 p.m.
Lord Dean of Beswick: My Lords, may I also first congratulate my noble friend and colleague on this side of the House for introducing this subject for debate. It is well realised that it is the most important social problem that the country is facing at present. I was interested to hear some of my noble friend's proposals regarding measures for training on a mandatory basis, and that type of thing. I agree with the previous speaker too that it was a false economy for the Government to have butchered the original list of training boards, as they did, on the so-called premise of cutting public expenditure.
While I am all in favour of the Government's training schemes, and I think they are absolutely necessary, I do not think they will very much alter the present situation. Specialised training is needed more in certain industries today than a broad-based, two-year training programme, which could in some respects, if there was an upswing, produce an imbalance of youngsters available.
I should like to put a specific point to the Secretary of State regarding training at present and in the future, and concerning some persistent rumours. The disappointing unemployment figures are showing little, if any, decrease, and I think in a statement that the noble Lord, Lord Young, issued on 9th January, he ended by saying:
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"Next month will see the usual January seasonal increase, but overall in the last six months there has been little change in the level of unemployment and it still appears that the trend is broadly flat".
Those words do not accord with what the Chancellor of the Exchequer keeps saying. He keeps saying that things are improving so profoundly that we are on the way to a substantial recovery, but once again there has had to be an intervention and an increase in the bank rate with the adverse effect that that will have on industry. The Chancellor of the Exchequer appears to be wrong almost as persistently and as regularly as some of the weather men in their predictions.
People are getting a little sick and tired of hearing the Chancellor of the Exchequer and the Secretary of State for Industry when the report of a Select Committee of noble Lords was rubbished before anybody had a chance to have a look at it. People are getting a little tired of that type of behaviour and are asking for objective answers to some of these problems.
There are rumours persisting. One of the Cabinet Ministers was asked the other night whether it was true, because of the appalling and persistent unemployment trends, that the Government are considering doubling places on the Government training schemes. If that is true I hope it is not being done just as a cosmetic exercise to prepare the electorate for the forthcoming general election. If that was the reason—and after the election the same Government were in office and the present policies were pursued—it would mean that a tremendous number of people from the most disadvantaged groups (some of whom are the long-term unemployed, the size of which group is growing menacingly all the time) would be kidded and deceived disgracefully by the Government. This is worse than anything I have known in my lifetime, if that is the objective of that exercise. I ask Lord Young: Do the Government have this in mind and, if so, will he give us adequate reasons for doing it and assure us that it is not just an election gimmick?
This is the second debate that my noble friend Lord Jacques has initiated on this subject of unemployment during my short period in this House. The same points are being put persistently by some of us, that the Government's policies are wrong, that they have to change tack and that public money will have to be used. But the Government keep saying "no". Without going into detail I see that the CBI, which one could class as an organisation which supports the Government, was calling not for tax cuts yesterday (if there is any money available when the Budget is presented) but to plough the money back into industry and job creation. The CBI talked in terms of £1,000 million immediately. Some of us have held that view for a long time. Unemployment debates here and in another place become rather repetitive, because all that alters are the figures and they are still dangerously edging upwards.
Many noble Lords will remember, and I am sure the Secretary of State does, that just before Christmas a number of questions were raised regarding manufacturing industry. The Government were asked what percentage of new jobs—which the Government were, I am sure, entitled to announce and draw some comfort from—were in manufacturing industries. I

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believe the question was put by my noble colleague Lord Hatch. The figures were given by the Minister; I believe it was the noble Lord, Lord Trefgarne. Of the 628,000 jobs he quoted, just over 600,000 created no wealth because most of them were in the service industries and others were self employed. The total over that period in what I might call real jobs in manufacturing industries was just over 20,000. I submit that that is not a performance from which the Government can draw any comfort if they are talking about us once again becoming a wealth-producing nation.
The Government have the solution in their hands. I listened carefully to what my noble friend Lord Jacques said and I agreed with most of the proposals he made. But if they were implemented they would have no immediate effect on unemployment. He outlined a good strategy, but there is urgency about this. I find it odd because there could be substantial reductions in unemployment without using Government money, by letting some people use their own money that the Government are holding for them. I have a Question down for next week, asking the Government how much money they are now holding in capital receipts for local authorities from the sale of their own capital assets. The last time this was quoted the figure was £6 billion. The Chancellor of the Exchequer is so interested in cutting unemployment that he reduced the figure that was allowed to be drawn from the totals, and the interest of 40 per cent. was halved to 20 per cent. That only serves to exacerbate unemployment in building. Not only that; I understand that the figures are considerably more. They have grown because of the interest and the sales.
I read in one of the more responsible papers—and it was stated quite definitely—that there were strong rumours that while the Chancellor of the Exchequer was drawing together his autumn Statement he wanted to reduce still further that 20 per cent. to 15 per cent. but he was told by the new Secretary of State for the Environment, Mr. Kenneth Baker, that he would not support that and that it would be a nonsense.
That is a huge sum of money available that could be put into an industry that would take people off the dole queue quicker than could be done by any other industry. I am referring to the building industry. This debate is not about building, but that is the industry that successive governments have used as a regulator when they have wanted to cut public expenditure. They have just turned the tap down a bit, but the first people to feel the draught are always the building industry workers. However, they would be the first to feel the benefit and would start to train more apprentices.
I was discussing last night in this building with the chairman of one of our largest building companies what a realistic figure might be and what he considered the industry could cope with if money was made available. He said that within a month or two he thought we could increase this figure by a 2 per cent. load, then build on it and aggregate it. He is not suggesting, nor am I suggesting, that we should suddenly make up to £6 billion available and push it into the building industry because that would have a
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disastrous effect of overheating. If the Government were serious about reducing unemployment and discussed with the representatives of local authorities and the building industry what could realistically be done, I believe that a substantial number of those half a million building trade workers could quickly be taken off the dole and put back into necessary work. This would not only get unemployment down, but it would form an investment for the nation.
There is to be a debate shortly in your Lordships' House on the Duke of Edinburgh's commission on housing. I do not want to impinge on that debate or to pre-empt it, but the report only underlines all the other reports on the nation's stock of housing and public buildings and what has been said by other people. In total almost all the groups are non-politically motivated and they say that this is a necessary investment required for the health and the future of the nation. I suggest that if the Government are serious in their intention of getting unemployment down in real terms, they should enter into those discussions, put some money in and, I am sure, achieve the results.
It is sad to see what this nation has come to in manufacturing terms—I was a shop floor engineer. It led the world in the Industrial Revolution and just before and just after the war. In my own industry of general engineering there have been more jobs lost than in mining and steelworking put together. I believe I am right in thinking that the intake of apprentices to become skilled engineers in general engineering, which was always the biggest employer of apprentices, is down to one-fifth of what it was some 10 or 15 years ago. If that is not getting rid your seed corn in the worst possible way, I do not know what is.
I close in this way. I believe that the Secretary of State is sincere and serious about wanting to see those figures reduced. Will he have a little talk with his colleague in the Cabinet, the Chancellor of the Exchequer, and tell him to start giving some realistic prediction based on facts and come down from cloud-cuckooland?
6.1 p.m.
Lord Mellish: My Lords, this is the second time that I have the privilege of speaking in this House, and it is on a matter in which I am very interested and concerned. I am obliged to my noble friend Lord Jacques for raising it. What he said about full employment strikes at the hearts of all of us, at the heart of any man or woman in this country who is dissatisfied with the present level of unemployment. It cannot be allowed to continue. It is a disgrace; it is a slur to humanity. Let us be quite frank. There are no simple solutions. I wish there were. If there were simple solutions, the previous Labour Government would have found them, this Government would have found them—must have found them. One question that has to be asked—and we must try to answer it—is: what has caused the situation? What has created the position where even today a figure of something like 3 million unemployed is almost taken for granted in certain circles. Why should this be so?
I have lived on this earth for three score years and ten and I have seen some dramatic changes. I lived through the recession of the 1930s, not understanding much about that because I was a bit too young. Half

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my life has been spent in the political world and the other half has been spent in the trade union world; so I know a bit about industrial relations and I know a bit about politics. And then, of course, towards the end of the 1930s we saw the complete revolution of demand due to the coming war with Hitler and his cronies, and all that flowed from that. After the effects of the war, we saw this tremendous situation of consumer demand and full employment. We just did not have enough people.
That was the position right up to the early 1960s. What has happened since then? There has been a dramatic change in my whole existence. I never dreamt that I would see it. Take the dock industry, where I was born and lived. In the whole of the inner London area, the dock industry, with its thousands and thousands of decent men, is no longer there. It has been shut down. Why? I gave the reasons in my maiden speech. It was, of course, due to the economic factors, to the demand, to pressures from abroad, changes in work, changes in methods of loading and discharging ships. The truth is that London was completely uneconomic and unviable. We could not compete and therefore it was shut down.
I have been reading about this nonsense that is going on in the other place these days. I remember that throughout the whole period of the docks nobody ever discussed the industry. I was the only one who kept getting up and arguing about how it was that this great industry had shut down. However, there it was; it did shut down. This is relevant to part of what my noble friend Lord Jacques has said. What I am worried about—and I am proud of what is being done in the community, on youth, on the youth training scheme and the rest—is this. Does anybody care about ex-dockers? They did not leave that industry because they wanted to do so. It was taken away from them for the economic reasons I have given, and not because of bad management. Let me say at once that it was not because of bad management. It just was not a viable proposition, and thousands lost their jobs.
I want to ask the Employment Secretary what we are doing to train those who were dock workers and who knew how to load and discharge ships but who do not have the slightest idea of what is supposed to be done inside a factory, if there are any factories. What are we doing about adult training, for example? I get worried about that.
It is appropriate, in view of today's debate, that there was published this morning a number of reports. One of them, I noticed, is from Prince Philip. Some people regard his intervention in the world of industry and politics and what-have-you as an impertinence. I am not one of those who believe that to be so. I think it shows him to be highly intelligent and, whether or not one agrees with his views, at least one can admire the guts he has to say some of the things that he has said. One of the things he said was:
"Industry had suffered from an old-fashioned view that it was a rat race and involved working on a production line and living and working in uncomfortable surroundings".
That is the impression that people outside get, particularly of manufacturing industries. It is one which in my view is among the most important aspects of the
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challenge to industry to provide more employment. This important aspect is the conditions under which people work.
If one looks back, it seems only yesteryear that it was taken for granted that in the leather industry men worked in the cold, in the wet and in dirt. I had a great knowledge of the leather industry in my own constituency. One could not believe it. They worked in nearly a foot of water. It was incredible. Conditions of employment must be changed.
Prince Philip also said—and it is right:
"We're also suffering to an extent from an unintentional fall-out of Marxism which blames all the world's ills on capitalism. Capitalism is represented by industry, so industry is seen as being antisocial".
That is what the Prince said. And how right he is! This is the impression that has got about. If you work in a dirty job, somehow you are rather different; you are a bit menial. I can only ask the Government—and I do not know what future plans they have, if there are such things as plans for resolving problems of this kind—to take seriously the fact that Prince Philip has, I think, put his finger on it. The presentation of the case, the argument of manufacturing industry, in particular, as to how to attract people is conditioned on the way in which conditions of work are put over.
The CBI (and my noble friend Lord Dean referred to them) issued their report this morning. It is intriguing what they have said. They have asked that the Government should provide £1 billion for job creation measures and at least the same amount from the private sector. That is what they said. They said that this should create up to 330,000 jobs within two years. That brings me on to what I think is a fundamental point. Let us get this straight. Let us cut out all the party political jargon. We live in a mixed economy. We live in a society where a vast part of industry is private enterprise, and you have got to get private enterprise to work, to improve conditions and to provide the jobs. What can the Government do? I do not suggest they should pour in money, throw in money and say, "There it is". That is not the answer. We have to ask ourselves what we can do to ensure that private enterprise picks it up and spends its own money, as well as Government money, in providing jobs.
To be modest—although I have never been modest, for I found years ago that if I was not my own PR man nobody else would be—I like to think we can look back and say that we have an example here. I do not know why borough councils have not been brought in where you have derelict land. Why not encourage the purchase of that land and then make it available for development to private enterprise? We have done it on a vast scale. The Government—let us be fair and pay tribute here; we have had this argument before, but I had better get away from party politics—to their credit found £42 million in one year for us to buy land that was derelict. The moment we got that money and got the whole of that derelict land, we changed it. Today, we have a situation where in the Millwall docks, for example, where at the height of the dock industry there were 1,700 people working, there are now nearly 7,000. Not one part of it belongs to the Government. It belongs to private enterprise; because once it saw the land was available, once it saw that road access was

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there, once it saw that there was a possibility and a potential there, private enterprise was shrewd enough to see it as a good investment and it stepped in with its own money.
If we can do it in that small way, why cannot it be done on a much larger scale? For example, why can we not ensure some action over those local authorities which have acres and acres of land which are derelict? If I go into a diatribe about local authorities and their inactivity I really could take up a lot of the time of the House. However, the truth of it is that people are crying out for leverage to be given for these sorts of people to do a job of work. In the docks, for example, I understand a public inquiry is going on and so I must be careful what I say. The inquiry will decide on the compulsory purchase of all the land in the Royal group of docks.
Perhaps I may say that I am so impressed by what is now being said and done, because from the moment compulsory purchase order procedures were applied for, the PLA (they owned the land) said, "All right, we will sell." So they have sold two-thirds of the land as a result of the CPO procedure. That is very good and I am delighted to hear it. Let me say to the Minister that you can never, never regenerate unless you own. You must in the first instance own the land and provide the facilities—the roads, the sewers, the drains and everything possible on access. You must make certain that everything in the whole area is ready for this development, and then—and only then—will private enterprise come in.
I see that the corporation's director of operations was asking for land at Becton, Canning Town, George V Dock, and the Royal Albert Dock. He went on to say that the corporation has the ability to prepare land for development and make it available for private sector investment within an acceptable timescale. He added:
"The only effective way in which this regeneration can be brought about in dockland is by bringing forward cleared, accessed and serviced parcels of land so that private investment can be attracted."
That is the key, my Lords, and I am saying to the noble Lord, Lord Jacques, who raised this matter, that I am obliged to him for giving us the opportunity to discuss it; but let us all be realists. As I said at the beginning of my speech, there are no simple solutions: if there were, we would have found them. If people really believe that by pouring money into certain things they will find a solution, I am afraid they are wrong. It might work for a short time but we have to change the image of our nation and in particular we have to change the image of what is now called the "manufacturing industry outlook".
Conditions of work have to be improved. The noble Lord referred to industrial relations. I am all for sending management on courses but I think the time has well come when we might send some trade union officials there too. It only seems yesterday that I was appointed at the ripe old age of 21 to be a union official by Ernest Bevin, and I remember him talking to a very large crowd of trade union officials. He said things then that I wish Mr. Arthur Scargill could hear me saying now. I remember him saying some simple things. For example:
"Never pull men out on strike: any fool can do that. It is getting them back to work that matters."
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Another thing he said, which is to me very elementary and very simple, was this:
"Don't ever negotiate with a firm unless you know what the financial position of the firm is."
How right that is! If you are going to go in and argue with the firm and they have no money, you are wasting your time. I care about public relations and industrial relations. First of all, find out if they have any money, and if they have a few bob go in and "do 'em". But if they have not—for goodness sake!—that is another matter. And of course with state-owned industry this brings special problems because in many cases the boards are not answerable and they have to go back to the Government to get the final decision. So I would ask your Lordships not to raise the subject of state-owned industry.
However, may I say again to the noble Lord, Lord Jacques, first of all, "Thank you for raising the matter." It is a very important one and I hope very much we shall see what I call the realistic approach to this matter. I hope that the Minister will have something more to say when he comes to reply, as the noble Lord, Lord Rochester, pointed out quite rightly. I support every part of youth training. We are living today in an entirely different world from the one in which I have lived for the past 70 years. It is entirely different, and different demands are made. Adults today have to be trained in a different way. There has to be a different approach; and the idea that somehow Government itself, of its own volition, by pumping in money can provide work is not on.
What the Government have to do is to pump in money and make sure that private enterprise pick it up and also spend their own money in going ahead, because if you do not have that you have got to have an entirely different system. You have to abolish capitalism and bring in something else. But, my Lords, nobody here is advancing that theory—or are they? If they are, then let them say so. If you have a capitalist system you have to try and make it work, and the only way you make it work is by incentives.
6.15 p.m.
Lord Oram: My Lords, we are all grateful to my noble friend Lord Jacques for raising this subject and for doing so in that crisp, no nonsense style with which we are familiar and which we appreciate so much from him.
As the noble Lord, Lord Rochester, reminded the House, we have had a number of opportunities recently of discussing the problem of unemployment, whether at Question Time or in debate. The case of the Government, such as it is, is now well known and we shall no doubt hear it again this evening. The policies of the Opposition parties are also well known. What distinguishes my noble friend's Motion and his speech is the freshness and originality of what he had to say, together with the wording of his Motion, asking for an employment budget and subsequent Government action based upon the budget.
I hope that I may claim some credit for prompting this debate because it may have arisen in my noble friend's mind following some correspondence which I had with him a few months ago about the writings on employment policy of an American economist, John

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Pierson, whose ideas are claiming increasing attention in the United States.
The essence of John Pierson's proposal is that the starting point should be, as in the case of my noble friend's Motion, an annual commitment by the President of the United States and by Congress to the provision of jobs for all those able and willing to work, and that there should be a previously agreed series of economic and fiscal regulators which would automatically come into effect in the event that consumer expenditure either proved to be too little or excessively large to achieve that level and that pattern of employment which was proposed in the budget statement.
As I understand my noble friend, he has basically that same idea in mind although of course he speaks, as we all do, within the context of the British machinery of government rather than the American. But my noble friend, it seems to me, is saying in effect that the Government's approach to the unemployment problem is exactly the wrong way round; and I entirely agree with him in that proposition. The Government set themselves the wrong targets and the wrong priorities. They place their concern for levels of employment at the wrong end of the continuum of economic policy. They concern themselves primarily with inflation and, as a consequence of that, with money supply, taxation, the level of wages and the balance of payments.
All these things are of immense importance and quite rightly they are the concern of the Government. However, the level of employment—full employment or otherwise—is not regarded as an objective, as the other elements of economic policy are so regarded. It is regarded as the residual consequence of all the other elements. Therefore employment or unemployment is something with which the Government cannot directly concern themselves except at the edges of the problem, as with the youth training scheme or the community programme. I echo what has been said by the noble Lord, Lord Rochester, and by my noble friend Lord Dean of Beswick about those schemes.
That approach of the Government, to my mind, is putting the cart before the horse. The level of employment should not be the residual consequence of other factors: it should be the driving force and the motivator of economic policy, as well as being the raison d'être of the other elements of economic policy.
There are strong economic and social reasons for the pursuit of full employment, as my noble friends Lord Jacques and Lord Mellish have so clearly indicated. However, that should be pursued as the main objective and not merely as a by-product of what happens in the pursuit of other things.
Without full employment, there is what the economists are now calling the output gap which, as I understand it, means the difference between what is being produced in present conditions, in the conditions of mass unemployment, and what could, and should, be produced if all were productively employed. The gap between what is being done and what it is possible to do represents an enormous waste of resources. It is a waste of resources which partly causes, and certainly prevents us from curing, many of
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the economic and social evils which plague our society today: inflation itself; unbalanced budgets; high interest rates; industrial unrest; balance of payments problems; and not least—a subject of so much debate these days—social deprivation on a major scale; the erosion of the man-made infrastructure of society and of the natural environment in the countryside.
How then, if we follow my noble friend's reasoning about an employment budget, could it be implemented? As I see it, there would in effect be two budgets. There would be the manpower budget, or as the great Ernest Bevin once called it the human budget, and the normal financial budget; and that financial budget should be geared to the requirements of the manpower budget. The Department of Employment and the Employment Minister would be a force in the machinery of government as powerful as the Treasury and the Chancellor of the Exchequer. That may appeal to the noble Lord when he replies to the debate.
The manpower budget would be as detailed and as fully prepared as the financial budget is today. It would, as my noble friend Lord Jacques explained, take into review all the skilled and unskilled labour available throughout the economy and would compare it with the industrial and commercial needs of society. There would be identified gaps between the two and mismatches; and the manpower budget would indicate the changes in the pattern of labour deployment that needed to be brought about.
There would in my judgment be an annual Employment Bill which would be subject to as much parliamentary scrutiny and argument as the present Finance Bill, and the two would form an integrated whole with fiscal measures appropriate for the achievement of the manpower objectives. For this purpose, the Chancellor should have at his disposal an armoury of previously agreed regulators, including public works, which could be called into action in response to signals from the employment situation as it develops over the ensuing year.
That as I see it is a sketch of the role of government as envisaged by my noble friend. But, quite rightly, he goes on in his Motion to point to the need for co-operation from both sides of industry. On that theme, we do not need reminding that one of the root problems affecting the economy today is, and has been for all too long, the frequent confrontation between employees and employers. The cause of that confrontation, with increasing frequency, is not so much wage demands and disputes over wages, but the determination by the workforce to protect their jobs, and that is a very understandable determination. We saw it last year on a very large scale in the mining industry, and we see it today on a lesser but vital scale in the Gartcosh dispute.
It is the protection of jobs which is in the workers' minds. All the time that unemployment is at its present intolerable level, fear of life on the dole will be a major cause of restrictive practices and of strikes, and that will constantly stand in the way of that increased efficiency and competitiveness for which Ministers are for ever asking and for which they are quite right to ask.
But if the Government were seen to be giving priority to the proposition of jobs for all as their

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primary objective, I believe that it would remove one of the chief obstacles to harmony in industry and to moderation in wage demands. But more important, it would, I believe, restore to those millions of our citizens who are at present wasting in the dole queues one of what I regard as the most basic of human rights—the right to have a job in which to express yourself and to earn your living.
6.16 p.m.
Lord Roberthall: My Lords, like all the other speakers we have heard so far, I think we should welcome the initiative of the noble Lord, Lord Jacques, in introducing another debate on unemployment. We have had a good many, and we shall have a good many more. That is because it is the most important and difficult subject that we have before us.
When I first read the Motion before us tonight, I did not realise how ambitious the noble Lord was being. It seemed to me that to produce the kind of budget that he has in mind you would need another enormous Government department. We saw that once when the noble Lord, Lord Wilson of Rievaulx, set up the Ministry of Production, and we know what happened to that. But I also thought that this was not really a question of the machinery of government, which I at first thought was what the noble Lord was advocating. The structure for having an employment budget is in existence already. We enjoyed it, or suffered from it, in this country, if you like to put it in that way, over the whole period from 1947 to 1975–76.
That was because the Government were pledged in the 1944 White Paper to the policy that they accepted responsibility for maintaining a high and stable level of employment. For many years, governments honoured that pledge, maybe because in those days it was thought that it would be political suicide to let unemployment rise. But I also think that there was a sort of agreement on both sides in the country that that was the most important economic objective at which to aim.
The Budgets that Chancellors of the Exchequer introduced during that period were the sort of employment Budgets which the noble Lord has in mind today. The state of the economy was examined and the constraints on it provided by the balance of payments and, to some extent, increasingly as time went on, by inflation, were set against the target of maintaining the level of employment. That is what the Chancellor set out to do, and for a number of years I had the honour of helping to write the speeches on that subject.
What has changed is not that the machinery has gone to pieces but that the objectives have gone to pieces. The noble Lord, Lord Oram, has already said in the course of his remarks the kind of things that I was going to say on the subject, but I should like to say a little more on it. It is very difficult to know what is the Government's economic policy at present, because they have changed it a number of times. It used to concentrate on sterling M3. Then it concentrated on the public sector borrowing requirement. Now, as I understand it, it concentrates on exchange rates. It is certainly said a good deal at present that what we really require is a reduction in the real wage rates. One can
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understand this being put forward by a Government who are so keen on the market, because it is said that if there is a surplus of anything one can always clear the market by reducing its price.
When I was a young economist in about 1930 the argument among economists was on this very point. That very remedy was being put forward by a group of economists centred mainly at the London School of Economics. Other economists, of whom I was one, were accepting the views put forward by Lord Keynes. From then onwards the views of Lord Keynes were more generally accepted and took shape in the form of the 1944 White Paper which governments endeavoured to follow for the period which have I mentioned.
We had a Budget which was a review of the economy, but it was considered from the point of view of the target of maintaining the level of employment. As we all know, that led gradually but with an accelerating rate to the growth of inflation at a rate that became alarming. This Government then came in pledged to put the control of inflation at the head of their policy. They had some success for a while. They have brought the inflation rate down to about 5 per cent., and as long as the exchange rate is high inflation may even go a little below that. The trouble is that we have shifted our priorities. We are looking at the matter primarily from the point of view of inflation.
I should like to mention what I think is the view now that it ought to be by a lowering of the price of wages that we solve the problem. As I said, this was a controversial view but was accepted. Lord Keynes said that what applies to a single commodity in the market does not apply to the whole number of commodities which constitute the national income. There, the condition for full employment is that all who receive incomes will spend them either on consumption or on investment. If they change what economists call their liquidity preference—their desire to hold money rather than buy goods—there will be a deficiency of demand. That led to the policy which was adopted by so many governments of using the Budget as a kind of balancing force. If there was a deficiency of demand, you inserted some; if there was too much and you were having a boom, you took some out.
We are back now to this controversy of the 1930s which for a long time we thought had been solved by Keynes. The difficulty now is that the country is divided on the question of putting some kind of stimulus into the economy, which could not do very much at first. This is one of the policies on which the Alliance and the Labour Party tend to agree. One needs to put some stimulus into the economy, because while there is a real deficiency of demand the problem will not be solved. This is very important, and it is very important to the noble Lord, Lord Young, who is to reply to the debate tonight. We have a great respect for the noble Lord, Lord Young—if he does not mind that being said from this side. Anybody who knows anything about him would not say that his heart is not in his job and that he does not feel very much for unemployment. Whatever tears may come from other places, the tears of the noble Lord are never crocodile tears. If what is wrong is a deficiency of demand and not high wages, his labours will come to nothing.

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We admire very much his concern for the long-term unemployed. The noble Lord is in a very difficult position, because there never were long-term unemployed in the period to which I have referred. All school-leavers could get a job quite easily. If there is a heavy load of unemployment which is going to hang around our necks, whatever the noble Lord does he will be dragged back. The noble Lord trains them (and it is an admirable thing to train them) but if there are not jobs for them all when they come to look for jobs they will feed into the pool of the long-term unemployed, which, as I say, we never had before—the 1,400,000 who have been out of work—and he will not be able to get them back into work so long as the underlying conditions are so serious. The pool will not stabilise until those coming on to the labour market and not getting jobs every year equal in number the ones who are leaving at the other end.
It is important that we should be able to make up our minds between these two alternative views. Needless to say, I believe that there is a deficiency of demand and I believe that the methods that were adopted in the period to which I referred were basically the right ones. There are great difficulties, of which the principal one, the one which caused the collapse of the old policy, was the accelerating rate of inflation. This was due in my opinion to the failure of the incomes policies. We ought now to look at it in terms of never having full employment again until we succeed in conquering the problem of incomes policy. The result is that the country is now deeply divided in a way it never was before. Both Conservative and Labour governments at one time were agreed on the importance of a high level of employment. If they were not agreed on it, the country was agreed on it and so they had to conceal it. What we ought to be addressing our minds to is how to give a stimulus without getting back to inflationary conditions. The Government are not telling us how to do that. They are not offering any hope to anyone. They are saying, "You will get lower wages and perhaps you will get full employment".
My time is up. I shall leave it at that except to say that these divisions in the country are doing a lot of harm and it must be a bleak outlook if we have a period where there is one fundamental economic policy from a government who, in the end, are turned out by the electorate, so that we get another fundamentally different policy—with each preparing a much more difficult situation for the one who follows.
6.40 p.m.
Baroness Lockwood: My Lords, I, too, should like to thank my noble friend Lord Jacques for introducing this debate and for the way in which he introduced it.
I think that whatever may be our differences on policy and on methods there can be little disagreement among us about the importance to the nation of improving the unemployment situation. Both my noble friends Lord Jacques and Lord Oram referred to the enormous waste of human resources when we have such a high level of unemployment. My noble friend Lord Jacques referred to the demoralisation of those involved—those who are unemployed—and the lack of confidence and self-respect which becomes a feature of unemployment. On those matters I think we are all agreed and are all concerned.
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My noble friend went on to call for an annual employment budget which could analyse employment and unemployment trends, examine the action of the Government and look at the co-operation that would be needed from the two sides of industry. He listed a number of very pertinent components to this budget. My noble friend Lord Oram expanded on the advantages of having such a budget. I support this because I think it would enable us to have an overall view of the problems and be able to monitor progress and what needs to be done.
This evening, however, I should like to deal with two aspects of the problem as I see it. First, I should like to look at some of the features of the employment and unemployment situations and, secondly, I should like to consider in, I hope, a positive way some of the possible remedies. If we look at the Government's approach to employment policies, a cornerstone of that policy is to encourage more flexibility in the labour market. I think it would be true to say that nobody is more keen on this than the noble Lord the Secretary of State. Consequently, he takes some pride in telling us of the number of jobs that have been created.
According to the November issue of the Department of Employment Gazette about 670,000 more people were in employment in March last than in the March of the previous year. I think we need to look a little more carefully at the problems behind this and at the situation here. This growth has come in the service industries—solely in the service industries. I would not complain about that if there was not a decline in employment in other industries; for instance, that same Department of Employment Gazette tells us that there has been a decline in employment in the manufacturing sector and in the construction industry. The construction industry is very important, as my noble friend Lord Dean said.
The increase is, of course, almost wholly in part-time work. In the statistics a part-time worker equals a whole employment unit. The increase is largely among women. In fact, between June 1984 and June 1985 there was a decline in male employment. Again, I do not complain about the increase in the number of women in the labour market, nor about the fact that they are involved in part-time employment. I do not complain about that on principle because, like the Minister, I see a need for a more flexible labour market.
Having said that, my agreement with the Minister ends. I think his concept of a flexible labour market and his reasons for wanting a flexible labour market are quite different from mine. I suspect that the Minister's concern is to reduce labour costs. He finds that this is difficult to do through an almost entirely full-time labour market and that it is easier to work through part-time workers. The fact that it is easier to work through part-timers is perhaps a cause for reflection and one that should be an incentive to my trade union friends to do more recruiting among part-time workers.
However, my reason for supporting flexibility is to assist those who need part-time work—parents, women in particular, who should be enabled to combine parental responsibility with an outside job in the labour market. My concept of a flexible labour

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market combines full-time and part-time employment and includes job sharing. It also includes the same pro rata rate of pay for the job: in other words, both full and part-time workers would receive the same rates of pay. Often that does not happen, and there is evidence to prove this. It would include pro rata holiday and sick pay entitlement. It would include pro rata entitlement to entry into a pension scheme and it would include the same opportunities for training and for promotion. In other words, the part-time employee would be fully integrated into the labour market.
The present situation is entirely different. There was a recent review of part-time workers, which only gives the position in 1982 (and since then the number of part-time workers has increased considerably) but the report indicated that at that time 35 per cent. of part-time women employees had earnings too low to require national insurance contributions. This means that there is no security for them if they become unemployed and that there is no eligibility for them to enter a community scheme. Very often there is no eligibility for entering a pension scheme and certainly no career prospects. Therefore, the growth of flexibility and position of part-time employment in this country is entirely different from the way in which I should like to see it develop. I think that it is an unacceptable trend. An annual employment budget would, I hope, be capable of exposing some of those problems and pointing to possible remedies.
I move now to my second concern, which follows on from my first concern—that is, having an expanding and a more efficient labour market. This means more investment, both by Government organisations and by private organisations, in new technological processes in both the service and the manufacturing sectors.
Like most of the speakers so far, I think it is important for the Government to help stimulate this process of expansion, and, like the noble Lord, Lord Rochester, I accept what has been done under the YTS scheme, under the Community Programme Scheme, and under the various schemes to assist and encourage the growth of small firms. All these might be good so far as they go, but they are no substitute for the kind of approach about which the noble Lord, Lord Oram, was talking, or, if I may say so, the kind of approach that the CBI were recommending in the report which was published this morning. The CBI list three priorities, and the first and overriding priority that they have is a package of measures to reduce unemployment and to stimulate more employment. What the CBI have said in their report today is what they have been saying on a number of occasions in the past and what other organisations have been saying. One hopes that, having had this said time and again, the Government will begin to take note of it and give some priority to being much more positive in their approach.
However, I think there is also another problem which is related to this. Nineteen eighty-six is Industry Year, which is encouraging us to become more industry-oriented in this country. It might have been better if we had called it "British Industry Year" and become more oriented not only toward the culture of industry but toward buying the products of British industry. If your Lordships will forgive me, I think we might start here in this House—or at least in your
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Lordships' car park, where, if we look round carefully—and it is no better in another place—we shall see that it pays no tribute to British industry. Neither is it an indication of our loyalty and our faith in British industry. I think that both the manufacturing and the service sectors need to do something about the growing trend away from British goods: manufacturing industry by improving the quality control within the manufacturing process, and service industry by providing the services that consumers require.
I can give a very vivid, personal illustration of this situation. Over the Christmas period, which is one of goodwill, gifts and so on, we decided to have a new kitchen in our home. We looked round for a British firm that could provide us with the kitchen units and fortunately we found one or two—and very good units they were providing, too—but when we looked more closely, we found that all the companies which we considered were providing electrical equipment which came from abroad. Not one of them, apart from the electricity board, was putting forward British electrical goods.
I think that that is absolutely outrageous. It is just not good enough. When we asked the firms, "Why are you not providing British equipment and suggesting British equipment?" they replied, "Well, the quality is not as good and the servicing is not as good." So, if one could perhaps use the phraseology of an impeccable source: it really is time that we got our finger out.
Only last night I received the latest information sheet from the Think British Campaign, which indicated the number of areas where imports were overtaking British goods. It indicated that, if all the 20,000 million or so households in the United Kingdom switched £3 per week in their expenditure from imported to British goods, thereby reducing the average weekly expenditure on imports from £28 to £25 per household per week, 350,000 jobs could be created in two years. I think that we ought to take issues like this very seriously indeed. It is a threefold responsibility: for all of us in our capacity as consumers and for those of us who also have a capacity as managers or as employees. I think that this problem falls very squarely within the terms of the debate this evening.
6.55 p.m.
Lord Kagan: My Lords, my noble friend Lord Jacques called for a budget and an analysis. It is a timely call and we do require a fundamental analysis, but it is also a fact that the number of jobs that we are seeking for full employment are not there and that they are not going to be there. In 1964 Britain still had 14 million manual workers. In 1973 the number in manufacturing industry had been reduced to 7½ million workers; in 1980 it was 6½ million; and in 1985 it was 5·35 million. Yet this declining number of people produced approximately the same quantity of goods right through those years. In fact, in 1985, with a labour force which was 20 per cent. less, we produced 4 per cent. more in quantity than we did in 1980.
This trend is consistent, relentless and accelerating. No political dogma or theology and no manifesto resolutions will change that. One has to be careful not

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to dodge that essential fact. The answer to unemployment is not the dole; but it is not jobs as we are discussing them. The answer to unemployment is activity—useful activity. This can only be created by an economy such as the Japanese, the Swiss or the German economy. We must not say that it cannot be done. They have done it. The Japanese have done it, though they have no coal and no oil. The Swiss have done it, though they have no raw materials whatsoever. So it is in our power to do it if we want to. And we must not want to squander our resources on disagreeing with each other rather than getting on with the job. I was very much impressed with the courage of my noble friend Lord Mellish who made that point, and who has the stature to do it.
The future worker, the future wealth creator and the future taxpayer will be the robot and the computer. We cannot avoid it, and it is not a bad thing, because if that creates the wealth, then we can promote the social services and undertake other activities such as the complete renewal of the infrastructure, new roads and new sewers. But this cannot come from an impoverished economy and from an artificial finding of jobs.
In my own town of Huddersfield I can point to a factory which is now making 18 per cent. more goods with 22 per cent. of the labour force that they had five years ago. This is fact, and this we have to face.
In order to achieve the kind of economy that will give us the wealth to create the jobs that we are talking about we need to be advanced in technology and in science. That is where the great opportunity and danger is. Although once upon a time we had the lead, we are slipping back slowly. A great deal depends on education, and education has to be encouraged and funded on as high a priority as defence. In the long term that is where the impetus will lie. There is no market in the world for second rate technology or for science which is not up to date. In this field only four-minute milers will do, not four-minute-and-10-second milers.
We live and survive by exports, and we have to encourage them. It has been suggested that restrictions on imports may help. Trade barriers are not an option open to England any more than air-conditioning is an option open to a hotel with open windows. We live by buying and selling.
I can only repeat that we do not need to search for the means to do this. We should take a look at the Swiss, the Japanese and the Germans to see what they have done. If we fail to do that, perhaps noble Lords on both sides of the House should buy Gibbon's Decline and Fall of the Roman Empire and console themselves by reading it.
7.2 p.m.
Lord McCarthy: My Lords, the task of somebody on this side of the House in replying to a debate of this kind, I suppose, should be discharged in three ways. The first is to thank the proposer of the Motion, which I do most heartily, and I congratulate the noble Lord, Lord Jacques, as my noble friend Lord Oram said, on putting the case in his usual crisp, no-nonsense way. The second is to summarise, as I see it, the nub of the case that has been put from this side of the House; and
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I shall do that in a moment. The third is to reply to those who have opposed the Motion—and here I am in a difficulty because nobody has actually opposed it.
I agree with what the noble Lord, Lord Rochester, said about the relationship between pay and employment. I agree with what my noble friend Lord Dean said about the need for urgent action; with what the noble Lord, Lord Mellish, said about the need for a realistic partnership between private industry and the state; and with what my noble friend Lord Oram said as he developed and explained the original idea of the noble Lord, Lord Jacques. I agree with the noble Lord, Lord Roberthall, that once upon a time we had an early de facto version of an incomes policy. I agree with the noble Baroness, Lady Lockwood, that there is a case for more flexibility and more protection, particularly for part-time workers; and I agree with the last speaker that everybody is much better off for reading Gibbon's Decline and Fall of the Roman Empire. But none of them opposed the Motion. Therefore I have to imagine what the opposition to the Motion will be.
Of course there may be no opposition. The noble Lord who speaks for the Department of Employment may get up in a little while and tell us that the Government will have a national employment budget and do all the things that the noble Lord, Lord Jacques, wants done. But I am not sure, and I have to try to anticipate. First of all, what is the central focus of what is being said? It is that there should be an annual employment budget; that it would have three central advantages; and that it would focus the minds of everybody (Ministers, civil servants, trade unionists and employers) on the importance of the employment objective and put it back into the centre of politics. Secondly, it would enable us to spell out a series of targets to measure our progress towards that objective. Thirdly—and I thought that these were the most interesting aspects which the noble Lord, Lord Jacques, did not have enough time to develop—it would emphasise the link between employment and other policies; between employment and training, which the noble Lord mentioned, management education, industrial democracy, partnership in industry, and even such things as the rate of interest and the rate of sterling.
What can be said against all that? It seems to me that there are only two things, and to some extent they have been said in other places by Government spokesmen. The first is that it has never been done, despite what the noble Lord, Lord Roberthall, says, in the way suggested by the noble Lord, Lord Jacques, and it certainly has not been done in any way for some time. It was not even done, it might be said—and indeed it has been said from the other side from time to time—by the last Labour Government.
Secondly—and I suppose that in a way this relates to the first point—it could not be done now because employment is such an imprecise thing. It is such a difficult thing to anticipate. It depends on so many other things that to issue targets of the sort that the noble Lord, Lord Jacques, suggests, is a waste of time. That was the view put forward in the Government's blue paper, Employment: The Challenge to the Nation, on page 4, when the Treasury said that employment levels are not pre-ordained. They depend upon:

1127
"our enterprise, our adaptability, our control of inflation, our productivity, our wage moderation, our competitiveness".
I do not think that either of those arguments stands up. On the first, it is true that the Labour Government of 1974 to 1979 did not offer systematic overall estimates of the kind that would be involved in the acceptance of this Motion, but they gave estimates from time to time. They also stressed their determination to avoid using unemployment as a central instrument of policy. Because they declared this intention, and because they acted upon it, they had to have another policy—and here one goes back to what the noble Lord, Lord Roberthall, was saying—for dealing with the problem of inflation. That policy was an incomes policy. It was an incomes policy, rather than an unemployment policy, that was used by the previous Government to reduce the rate of price and wage increases in the years between 1975 and 1978, and they were successful.
Because they were successful in doing that, they were able as a deliberate act of policy in 1977 to see a reduction in the rate of unemployment (an increase in the level of employment) which was repeated in broad terms in 1978. It may be said by the other side that that policy ran into difficulties in 1979. I do not deny that. What I am saying is that the policy of the late Labour Government was not to use unemployment as an instrument of policy to reduce inflation. The central difference between us, and the central issue which the Government would have to accept if they accepted the Motion of the noble Lord tonight, is that unemployment should not be used as an instrument of policy. It is because this Government have used unemployment as an instrument of policy that, while the level of inflation has gone down significantly in the past two years, the level of unemployment has inexorably risen and is likely to remain, if not above, at least at the present level for the next two years.
The second difference that is directly relevant to this debate is that from time to time a Labour Government did give estimates of where they thought the level of employment would be—not only estimates of the level of employment, such as the ones that Mr. Healey gave in his Budget Statements in 1975 and 1977, but also estimates of the impact or likely impact of the measures that the Government themselves took. This is where the noble Lord, Lord Young, could help us tonight. Even if he says that he cannot agree to an employment Budget of the kind that my noble friend Lord Jacques suggests because unemployment is an imprecise thing, surely, the Government could do much more than they do to tell us the anticipated consequences of their own measures.
I realise that the Government do something to tell us about the consequences of some of their measures. In particular, they tell us what they think is going to be the employment effect of the job creation programme and the youth training scheme. That is fine. But they do not say what they consider to be the employment consequences of the Budget changes. The Chancellor did not tell us in the last Budget what he thought would be the employment consequences of the change in national insurance contributions. All kinds of unofficial organisations speculated on what would be
1128
the consequences of those changes. But the Government left us in the dark. We do not really know what the Government expect to be the likely consequences of those changes of policy relating to national insurance contributions and others introduced in the Budget. I believe that the Government could go some way in meeting the measures and the ideas that have received considerable support in the House this evening if they were prepared to do so.
The Government could also tell us what they think about the general feeling among all independent forecasters—for example, the London Business School, the National Institute, the Institute of Fiscal Studies and the CBI—about the fact that tax cuts are about one-fifth or one-sixth as job creative as public expenditure and that they have less effect on the retail price index and less effect on the balance of payments. Do the Government think that this is so? Or do the Government maintain that tax cuts of the kind that the Chancellor is toying with are every bit as job creative as selective public expenditure? If they think so, then what are the likely employment consequences of cuts in public expenditure as against cuts in taxation from the Government's point of view? We have not been given authoritative responses and arguments about these things.
Finally, there were two questions that I asked the Leader of the House on the last ocasion that the subject of unemployment was discussed in this House to which we have not received any answers. It is inherent in the kind of approach that my noble friend Lord Jacques has made today that we should expect to get answers of that sort. I should like therefore to put those questions once more back again at the Secretary of State. The House will know that it is part of the Government's policy to argue—this has been mentioned by speakers from the other side tonight—that what we have to do is to get the level of wages down. It is sometimes not clear whether what we have to get down is the level of real wages or the rate of increase in money wages. The rate of increase in money wages has been coming down for a long time, and the rate of increase in employment has been going up for a long time. The Government therefore tend to fall back on the argument about real wages.
I asked the Leader of the House, at col. 283 of the Official Report for 13th November:
"Suppose the Government still believe that if we can get the level of wages down we can get the level of employment up. Suppose they do not dispute my assertion that the level of wages was falling until the last two years, and that it is almost certainly going to rise next year".
This is the crux of the question that I should like to put to the Secretary of State. I quote again:
"In his opinion, what is the level of pay increases that the Government would like to see in the next two years if the level of employment is, first, to be stabilised or, secondly, reduced?"
What is the relationship that the Government consider exists between the level of wages and the level of employment? If there were an employment Budget, that would have to be stated. Even without an employment Budget, it could be stated to us tonight.
Or let us take the last set of measures which the Chancellor of the Exchequer gave in his Autumn Statement on 12th November. Once again, we were

1129
not told what the employment consequences of those measures were. Once again, there were many speculations by unofficial organisations about whether the Autumn Statement was inflationary or deflationary, whether it created employment or whether it did not.
In an effort to find out, at col. 281 of the Official Report for the same day, I asked the Leader of the House. I quote again:
"I should like the Leader of the House to tell me: what is the net job worth of the additions in public expenditure which were announced last night?"
—that is to say, in the Autumn Statement.
"I hope the Leader of the House can tell us that. This £4.5 billion increase seems to be not an increase on last year, but an increase in previously announced targets".
I was saying that we did not really know which it was. I added:
"Half of it seems to be going either in social security payments because inflation was wrongly forecast or because the Government underestimated the cost of the miners' strike. But, never mind, let us not worry about the details".
My noble friend Lord Jacques would say, of course, that we should worry. I said:
"Can the Government tell us whether there will be a single additional worker employed in the National Health Service or in local government or in repairing houses as a result of the increases in previously announced targets which the Government announced yesterday?".
This is the essence of what is being suggested. What my noble friend Lord Jacques is asking for, in a sense, is another bit of open government. What he is asking for is an end to subterfuge, an end to pretence, an end to talking about employment rather than unemployment, an end to stressing the number of new jobs rather than the old, abandoned long-term unemployed, a return to an attempt on the part of the Government to take responsibility for the level of employment and to spell out what are the consequences of their own policies on the level of employment. It was King John, Shakespeare tells us, who said:
"How oft the sight of means to do ill deeds makes ill deeds done".
What we are suggesting here is that the converse is true in politics, that the realisation that there is a means to do both good deeds and bad deeds, spelt out and quantified, so far as this can be done, may help to change both policies and attitudes, even the policies and attitudes of those who say, "There is no alternative".
The Duke of Norfolk: My Lords, before the noble Lords sits down, if it is in order I would very much like to ask if he really believes that it is the policy of the Government to try to get wages down. I would suggest that it is the policy of the Government to try to get costs down. I took the greatest exception when the noble Lord said earlier in his speech that the Government were using unemployment as a means of dealing with inflation. I have often heard the noble Lord speak. I cannot make a speech now. I have not been able to be here. I really believe, however, that it is quite wrong to suggest that the Government wish to get wages down. The Government want to get costs down. The need for this is illustrated in our country by the way in which Jimmy Reid caused the Clyde
1130
shipping to go wrong and by the way Jack Dash transferred the docks to Rotterdam by trying to perpetuate out-of-date means of employment.
Lord McCarthy: My Lords, the noble Duke asks me these questions, and I must therefore be allowed to answer them as briefly as I can. If the noble Duke will look at a review by Treasury officials on the relationship between employment and wages which was published by the Government he will see that there the Chancellor argues that there is a relationship between the rate of increase in money wages and real wages and the rate of increase in employment. Also, the noble Duke will find that quite recently. In another place, the Minister of State for Employment said that if only the level of wages had not risen as fast as it did over the last few years we could now have a million more people in employment. This is what the Government said. It is not so much a cut in wages that is asked for as a reduction in the rate of increase in wages and in particular a reduction in real wages. That is Government policy.
7.21 p.m.
The Secretary of State for Employment (Lord Young of Graffham): My Lords, before I address the subject of this debate today may I join my noble friend in saying that I reject utterly any statement that this Government would use unemployment as an instrument of policy. Nothing could be further from the thought of any member of the Government, nor I believe in any Government of a civilised society.
The noble Lord, Lord McCarthy, quoted from a Treasury report. That report—on which I shall comment later—makes a very real but utterly different point from that of the noble Lord. It is simply that the more those of us in employment pay ourselves above the rate of inflation, or whatever, without unit costs going down, the more we shall encourage the increase in the number of those who are unemployed.
But apart from that one single point I very much welcome this debate. There is no issue in our land today more important than the creation of jobs. There is no problem more urgent than that of unemployment. But whatever our differences as to means, the objective of achieving the highest possible level of employment has been common ground between all political parties and all economic philosophies for 40 years or more. Perhaps I could say to the noble Lord, Lord Roberthall, it is common ground today that where we differ—and I suspect differ fundamentally—is the means under which we can achieve the highest possible level of employment.
I take that phrase because it is part of and included in Lord Beveridge's 1944 White Paper on employment policy. I chose those words deliberately because I should like to quote two further sentences from the same Paper:
"Employment cannot be created by Act of Parliament or by Government action alone. Without a rising standard of industrial efficiency we cannot achieve a high level of employment combined with a rising standard of living".
There could be no clearer statement of the link between employment and competitiveness. The message of the 1944 White Paper is every bit as relevant now as it was then. Lord Beveridge was

1131
writing about an economy weakened and distorted by five years of war. In the 1980s we face the problems of an economy weakened and distorted by decades of inflation and high wage settlements but low productivity.
We have suffered precisely because of our failure to heed the simple message that Lord Beveridge spelled out in his White paper. We have paid the price. The price, as Lord Beveridge predicted, was paid in unemployment. It is all there in those two sentences. We cannot remind ourselves too often of that simple truth. That is why I welcome this debate. It has not been a long debate but it has ranged widely and, as befits the subject, it has been both thoughtful and thought provoking.
I am grateful to the noble Lord, Lord Jacques, for his Motion, but I hope that he will not think me discourteous if I say that, as I read his Motion, I had a sinking feeling when I came to the words "annual employment budget". The noble Lord, Lord Oram, said that the Government get things back to front. The more I heard from the noble Lord, and the more I too began to think back—and as your Lordships may know I try to avoid nostalgia; indeed, I believe it to be one of the most debilitating features of our national character—the words "annual employment budget" remind me irresistibly of the 1960s, the heyday of centralised economic planning, and the attempt to achieve economic growth by Government decree and artificial consensus.
That was the era of the 1965 National Plan. What memories that brings back. I remind the noble Lord, Lord Roberthall, not of the noble Lord, Lord Wilson, but of the late Lord George-Brown, of the Department of Economic Affairs. That plan embraced every detail of economic life but was rendered meaningless by the tide of economic events before the printers' ink was dry. Some of your Lordships will recall that the National Plan identified a gap of 200,000 people between the demand for and a likely supply of labour; in other words, a shortage of 200,000 people. In the 18 months between the middle of 1965 and January 1967 unemployment rose by more than 300,000 and the manpower gap was quickly forgotten.
No one, except possibly the noble Lord, Lord McCarthy, seriously imagines that we could return to that brave old world. The proposal of the noble Lord, Lord Jacques, is, I understand, much more modest. The noble Lord rightly emphasised the need for training; and I agree with him. I hope that the youth training scheme and the work that we are doing throughout the field of training shows how much the Government agree with him.
The noble Lord rightly emphasised the need for partnership. I agree again because that very self-same youth training scheme was designed by the unions and the employers together. The noble Lord rightly emphasised the need for good industrial relations. Once again I need hardly remind the noble Lord and your Lordships' House that in the first 11 months of 1985 we experienced the lowest number of industrial disputes in any year since 1936. That shows that there is a new spirit spreading throughout the land.
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The noble Lord, Lord Rochester, referred to the report financed partly by and authored partly by the Manpower Services Commission and by Neddy on competence and composition, and the difficulty we have in making employers accept the sheer economic sense of training. The noble Lord asked me whether I was satisfied with the current level of adult training. I am not, and neither are the Government. What we must do is find the best way and the best method of increasing it.
The noble Lord, Lord Mellish, shared in that concern, and quite rightly so. But I suspect that one of the areas which needs most attention is the validating bodies themselves. I live in considerable hope that before many months are out we shall be doing more towards bringing in a consensus and reorganisation in all the vocational qualifications in this country which will give employers a standard of acceptance of the ability of individuals and which will bring order out of what has been a slightly unordered system. I hope that through that and through Industry Year and many other measures which the Government are trying, we shall begin to see a more professional attitude adopted.
In his proposal the noble Lord, Lord Jacques, uses the word "budget". I can only take that, in the employment field, to be a plan. I simply want to make the point that economic and employment growth depends upon the enterprise and the energy of individuals. Jobs are simply not created by Government but by people.
The noble Lord, Lord Kagan, said that we should look at the Swiss, the Japanese or the Germans. I would rather look at the United States of America and in particular at the State of Massachusetts which contained many of the so-called "sunset industries". I met some of their legislators only this week and they have brought their rate of unemployment down from 11 per cent. to 3.6 per cent. They brought it down by policies which relied on enterprise and the ability of individuals to go out and create the wealth which the nation requires.
If the 'sixties and the 'seventies taught us nothing else, they surely taught us the folly of the economic philosophy once memorably summarised in the phrase, "the man in Whitehall knows best". I must say to the noble Lord, Lord Jacques, that I fear that he may be making the same mistake which the governments of the 'sixties and 'seventies made. What the economy needs is not more planning or more bureaucracy, but freedom from the constraints of unnecessary regulations and controls. That is the way in which to create jobs. I am not suggesting—far from it—that the Government have no role to play. Indeed, there is already in one sense an employment budget, and that is my own department's expenditure on measures to help the unemployed and to improve the operation of the labour market.
We shall be spending more than £2 billion this year on employment and training measures. Across the whole range of our programmes we are currently helping a total of 670,000 people. I can assure the noble Lord, Lord Jacques, that no one is more convinced than I of the importance of ensuring that we have a trained and educated workforce. That is why we are spending the best part of £1 billion next year on the youth training scheme.

1133
However, more than that, we are promoting other initiatives through local schools and colleges and through employers. The technical and vocational education initiative will cover more than 100,000 young people in projects to improve their preparation for the world of work and their motivation at school at a cost of some £250 million. One very clear benefit of the initiative has now become apparent. It has encouraged young people to stay on at school. In 12 of the 14 projects which began in 1983 the staying-on rate has been far higher than average—in some cases considerably higher.
Finally, the Manpower Services Commission is working with local education authorities to ensure that non-advanced further education is more responsive to employers' needs. Of course it is also the Government's responsibility to stimulate enterprise and initiative by removing the obstacles to the growth of business and employment—obstacles which I must confess have only been created by Governments themselves over the decades. We shall shortly be introducing a Bill in another place to reform the wages council system so that young people are no longer priced out of jobs by statutory wage fixing. Our drive to reduce the burden of regulations and controls which discourage new businesses and sap entrepreneurial energies will he continued in a second White Paper which I hope will be published during the first half of this year.
However, more than that, we are taking steps directly to encourage the creation of jobs where there is the greatest scope for employment growth: in small firms and in self-employment. In particular, we are spending some £111 million in this financial year in helping up to 65,000 people—all of them unemployed—to create their own jobs through the enterprise allowance scheme. In the next financial year that figure should rise to some 80,000.
Finally, we are directly helping those who are likely to find it hardest to get back into work—those who have been unemployed for 12 months or more. By June of this year we will have expanded the community programme to provide temporary jobs which will benefit some 300,000 people a year at an annual cost of about £1 billion.
I am grateful this evening for the knowledge that the noble Lord, Lord Dean of Beswick, is an avid reader of my press releases. I would suggest to the noble Lord that he sticks to them and does not listen to Members of the Opposition who tell us that the Government are about to double this particular programme or that particular programme. It is very tempting to listen to Members of the Opposition advising the Government as to what the future Budget should cover.
As regards considering and helping those who have been out of work for a long time, we started only at the beginning of last week a series of pilot schemes to give an entirely new form of help to the long-term unemployed. We are inviting those who have been out of work for a year or more to come into their Jobcentre for an in-depth counselling interview to assess their potential and to identify jobs or training opportunities from which they might benefit. Above all else, we must ensure that those who have been out of work for a long time do not lose touch with the world of work
1134
altogether. What we are saying is, "To us you are not a statistic. You are a person with needs. You are a person with ambitions. Let us see what we can do to help". Our experience with jobclubs shows what can be achieved if unemployed people are given just the opportunity, just the chance, to regain a belief in their own capabilities.
We are experimenting with an entirely new job start allowance of £20 a week for the long-term unemployed to take jobs with gross earnings of less than £80 a week. The aim is to give unemployed people, particularly those with a high benefit entitlement, a financial incentive to take some of the job vacancies which are already available. We have had some of the drearily predictable responses from some quarters that this is forcing people into low paid jobs. Perhaps the critics should explain to the long-term unemployed why life on the dole is so much better than a foothold on the employment ladder.
In looking at the whole matter, it is clear that the Government's primary responsibility is to create the economic climate in which enterprise can flourish and new jobs can be created. That means, above all else, controlling inflation. Average inflation in 1983 and 1984 was under 5 per cent. At the end of next year it should be below 4 per cent. As a result of our success in keeping inflation under control, we are now set to enter a sixth year of continuous economic growth at an average rate so far of 3 per cent. per annum.
The growth in GDP has been matched by growth in employment. It is no good the noble Lord. Lord McCarthy, saying that we should not talk about employment. The only way in which to reduce unemployment is to get employment up. The latest figures show—and they were released this morning—that the employed labour force of this country increased by 31,000 in the third quarter of 1985. That was a slightly lower increase than in the previous quarter. However, the employed labour force now stands at over 23·7 million, the highest since the summer of 1981. Since the spring of 1983, the number of people in work has increased more than in the rest of the European Community in the same period.
There are now some 709,000 more jobs than there were in the spring of 1983. There are more people working in services than ever before: over half a million new service jobs have been created since 1983. Of course, there are fewer people employed in manufacturing. However, as I hope I made clear to your Lordships' House when we debated before Christmas the report of the Select Committee, the health of the economy cannot be judged only by the number of people who work in what we classify as manufacturing industries. Employment in manufacturing has been falling in this country since 1966 and has decreased in all Western industrialised nations.
I believe that the majority of people in employment in the service industries would not appreciate the remarks this evening of the noble Lord, Lord Dean of Beswick, that their jobs are not real and that their jobs do not create wealth. As some noble Lords have pointed out, there are indeed more people working part-time. Surely that should not be a cause for complaint. There is nothing wrong with part-time jobs

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particularly if the alternative is no job at all. There are many people who welcome the chance to work part-time.
Perhaps I may assure the noble Baroness, Lady Lockwood, who was such an eminent chairman (or should I say "chairwoman"?) of the Equal Opportunities Commission, that a recently published survey showed that only 11 per cent. of women employed part-time—I stress, only 11 per cent., my Lords—would have preferred longer hours, and indeed 31 per cent. of full timers would have preferred shorter hours. For new forms of employment call for new patterns of working. Clocking on at eight in the morning and off at five in the evening five days a week may seem inevitable and natural to those who grew up in the post-war decades, but, as the traditional smokestack industries decline, as office work is revolutionised by new technology, as the service sector itself expands, the nature of work is bound to change.
I should like to quote one more set of statistics. The number of people in the labour force has grown rapidly since we came to office. It rose by over half a million in 1984 alone—the largest rise in a single year since figures began to be collected. This has added to the challenge we all face as a nation. Over the next few years there will be more growth, but we expect it to be at the slower rate of abut 150,000 a year up to the end of the decade.
The prospects for employment are nothing like as gloomy as some noble Lords have suggested. The OECD project the United Kingdom to have the highest employment growth among European countries in 1986. The CBI forecasts imply that by the end of this year one million new jobs will have been created since the spring of 1983. And the growth in jobs seems now to be having a positive effect on the level of unemployment. Unemployment rose in December and will rise again in January, as it does each year, but it fell in the preceding three months and there is every reason to hope that the upward trend in the seasonally-adjusted level of unemployment has now been halted.
The noble Lord, Lord McCarthy, spoke about forecasts. In this country it is more akin to going to a lawyer for the opinion you want. You can go to the forecasting authority and get almost any forecast you want. Indeed, in the first annual report that was issued during my time as Chairman of the Manpower Services Commission we even produced an average of forecasts. Cambridge showed unemployment being enormously high; Liverpool showed it being extremely low; all the others were in the middle. If you averaged them through you got somewhere.
However, I do not believe that any of these forecasts are particularly valid. I recall that the Manpower Services Commission, when it was in the business of making forecasts, made one in 1978 and saw the level of forecasts up to the early 1980s as varying between 900,000 and 1.3 million. The world changes faster than the forecasters. Even if we got those forecasts, it seemed to me that we would be in danger if we actually acted on them.
The noble Lord, Lord Jacques, spoke of co-operation from both sides of industry. Here we
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approach the heart of the matter. Competitiveness depends above all on the attitudes and the efforts of employers and the attitudes and efforts of employees. It depends on a willingness to abandon restrictive practices and to root out inefficient working methods. It depends on the acceptance of new technology and a willingness to learn new ways of working.
It depends upon producing the right goods and services at the right time and at the right price. It depends upon maintaining standards of quality. That is where we will, "Buy British". It depends also on employers investing in training on the same scale as their competitors overseas. And it depends on trade unions showing the same realism and farsightedness as their counterparts in other countries.
Above all, my Lords, it depends upon controlling costs. Not, as the noble Lord, Lord Roberthall, or the noble Lord, Lord McCarthy, opposite say we wish to do, by reducing real wages, but by reducing real unit costs. It is unit labour costs in this country which rose by 6½ per cent. in the year to June 1985. That was 6½ per cent.; well above the rate of inflation. But in the United States of America unit labour costs rose by 1¼ per cent., well beneath the rate of inflation, and in West Germany and Japan unit labour costs actually fell.
The price of this is inflation. The price of this increase is paid by the unemployed. The most valuable thing employers and trade unions could do to help the unemployed would be to give them a seat at the bargaining table, metaphorically speaking, and that they should help to reduce the level of pay settlements.
That is the co-operation the unemployed need. That is the "employment budget" they need—not a return to the bureaucratic devices which have failed us in the past, which the noble Lord, Lord Rochester, advocates in different forms through industrial training boards and others. Above all they need the rest of us—employers and employed, the unions, the CBI and the Government—to learn and to apply the lessons set out so clearly by Lord Beveridge 40 years ago: the lesson that jobs are created in only one way—by competing successfully in the world market for goods and services.
Lord McCarthy: My Lords, before the noble Lord sits down, I have asked him two questions for the second time. Will he tell me when he is going to answer those questions? Maybe he could answer now the third question. In the light of the intervention from the noble Duke, the Duke of Norfolk, is it not true that it is Government policy to bring about a reduction in unit costs by a fall in real wages?
Lord Young of Graffham: No, my Lords, it most certainly is not. It is the Government who are pointing out time and time again that unless we reduce unit costs we shall not maintain employment in this country and generate the wealth of this nation. We can reduce unit costs in a number of ways. One is by increasing efficiency, by competitiveness, and by ensuring that we do not give ourselves unnecessary wage increases.
If we are talking of employment, that is the one lesson which the Government wish to bring home. Far from reducing real wages, in the last four years wages

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have consistently gone up at about 2½ per cent. over the rate of inflation. The employed each year get better, better, and better off. It is the unemployed who increase.
7.47 p.m.
Lord Jacques: My Lords, I should first like to thank everybody who has taken part in the debate. It has been a worthwhile debate, although I am disappointed with the reply of the Minister. We do not get anywhere. We are getting the same kind of reply as we always get.
I would make only two points. Research in comparing productivity in this country with our competitors does not show that our wages are too high. It shows that our management is not good enough and that our training is totally inadequate. They are the things to be looked at, not wages.
The second point I would make is that the Minister accused me of going back to the 1960s. If, by doing that, I got the same measure of full employment as we had in 1960, I should be an extremely happy man. I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.

Public Order (Northern Ireland) Order 1981 (Incitement to Hatred) (Amendment) Bill [H.L.]
7.49 p.m.
Lord Dunleath: My Lords, I beg to move that this Bill be now read a second time. In effect this is really a tidying up amendment to bring the law as it applies to Northern Ireland into line with that which obtains in Great Britain. But for all that, it has some significant implications. Perhaps it would be helpful if I were to give your Lordships some background to this. I hope that I may be forgiven if I read portions of my speech on this because, for the sake of the official record and the fact that there are various titles, dates, and quotations involved, I would wish to be accurate.
The background is that the offence of inciting to hatred on the grounds of religious belief, colour, race or ethnic or national origin was introduced in Northern Ireland for the first time in the Prevention of Incitement to Hatred (Northern Ireland) Act 1970. That Act was one of the results of a meeting between the Westminster and Stormont Governments in August 1969. The communique from that meeting stated that it had been agreed that:
"effective action in the following fields is fundamental to the creation of confidence",
and in subsection (2) it said:
"protection against the incitement to hatred against any citizen on the grounds of religious belief".
In the event the Act has proved to be almost useless in terms of preventing incitement to hatred. There has been only one prosecution under that Act, in 1971, and the defendant was acquitted on the basis that he did not actually intend to stir up hatred.
Then, in 1981, when a new public order order was introduced for Northern Ireland, the opportunity was used to repeal the 1970 Act and instead include its
1138
provisions in the new order. Therefore the present offence relating to incitement to hatred is to be found in Article 13 of the Public Order Order 1981.
The law in England and Wales has no equivalent to the incitement to hatred offence in Northern Ireland; but in 1965, when the Race Relations Act was first introduced, Section 6 of that Act dealt with incitement to race hatred and was broadly similar in terms to the Incitement to Hatred (Northern Ireland) Act 1970. It perhaps goes without saying that there is a difference in emphasis here, in that the Race Relations Act in Great Britain is concerned more with the ethnic minority, whereas the equivalent legislation in Northern Ireland is more concerned with the religious and differences of loyalty about which state someone considers he belongs to.
As in Northern Ireland, the need to prove a subjective intention on the part of the accused to stir up hatred has stultified prosecutions in this country. The same requirement had a similar effect under the Race Relations Act in England. The fact that in England the law on incitement to race hatred was not achieving its attendant purpose was recognised by the noble and learned Lord, Lord Scarman, and in the course of his report in 1974 on the Red Lion Square disorders he stated in paragraph 125:
"Section 6 is merely an embarrassment to the police. Hedged about with restrictions it is useless to the policeman on the street, the section needs radical amendment to make it an effective sanction, particularly … in relation to its formulation of the intent to be proved before an offence can be established".
Similarly the right honourable Member Mr. Roy Jenkins in another place, when introducing the Race Relations Act in 1976 said,
"The prosecuting authorities believe that the need to prove a deliberate intention as well as the other ingredients of the offence have made it unlikely that prosecutions will succeed except in the most blatant and extreme cases".
The concerns of the noble and learned Lord, Lord Scarman, thus expressed led directly, I am told, to an important reshaping of the incitment to race hatred offence in England and Wales. His concerns were echoed by the Standing Advisory Commission on Human Rights in Northern Ireland, and indeed by spokesmen for my own party, the Alliance Party in Northern Ireland.
The present situation in England and Wales in this regard is set out in Section 70 of the Race Relations Act 1976 where the offence of inciting race hatred is stated to be committed where a person,
"publishes or distributes written matter which is threatening, abusive or insulting … uses in any public place or at any public meeting words which are threatening, abusive or insulting, in a case where, having regard to all the circumstances, hatred is likely"—
that is the important word, "likely"—
"to be stirred up against any racial group … by the matter or words in question".
Therefore it can be seen that in the British context the race hatred offence of 1976 removes the need subjectively to show that the accused intended to stir up race hatred and replaces that requirement with one on the prosecutor objectively to show that
"hatred is likely"—
again the important word—
"to be stirred up … by the matter or words in question".

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Since the Northern Ireland Alliance Party's private parliamentary draftsmen drew up this Bill it has come to our notice that the Public Order Bill which was printed on 5th December contains slightly different wording. I believe that this Bill was read a second time in another place just yesterday. The relevant wording, as opposed to "likely" which I have just quoted, is:
"for anyone to use threatening, abusive or insulting words which are, or behaviour which is, intended or likely either to provoke immediate violence or to cause another to believe that immediate violence will be used".
Therefore it is not just "likely" or "intend" but "either." This is a drafting point in regard to the Bill which I am now advocating before your Lordships' House, and it may be felt it should be subject to amendment for that reason.
There is another difference, in that "hatred" is not actually used here in the Public Order Bill, and in the Bill which I am presenting to your Lordships we have a number of words which perhaps ought to be amended. I am entirely open to suggestion on that. We say:
"to stir up hatred, violence, contempt or hostility".
There is a drafting difference between this Bill and the Public Order Bill, and I should be flexible on the wording of that.
But in Northern Ireland it is a relatively straightforward matter to change our incitement to hatred law in the same manner so that it would become irrelevant to know what the accused intended. The question is really, having regard to all the circumstances, whether his words or any other matter have the likely effect, not necessarily the intended effect, of hatred being stirred up against any section of the population.
As I said, this would bring the legislation more or less into line. The fact that the Attorney-General would have to be consulted before any prosecution were brought would ensure against there being any trivial or frivolous prosecution, as is the case on this side of the water. I can think of examples. For instance, shortly after the 1971 measure was passed in Northern Ireland a member of the Opposition in the original Stormont Parliament asked whether the writing on a gable wall in the militantly Protestant Shankhill Road of Belfast, where there appeared the words "No Pope here", was an incitement to hatred or violence. The answer came from the Front Bench at that time, "No, sir. It is not an incitement to hatred or violence. It is a plain statement of fact whose accuracy cannot be disputed. Inquiries have revealed that His Holiness was not in the Shankhill Road on that particular Saturday evening. Instead, he was in the Vatican minding his own business".
Well, the writing of a slogan like that in the Shankhill Road may not be an incitement to hatred, but written in other circumstances it could be. Individuals have been subjected to harassment through having slogans written on the walls of their houses. An isolated Protestant in a mainly Roman Catholic area can have a considerable degree of intimidation inflicted on him by having, "No Pope here!" written on his house. Similarly, an isolated Roman Catholic in a mainly Protestant area can suffer intimidation by having "Up the IRA!" written on his house. Indeed, on my own wall which surrounds my house at the
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moment I have a slogan written by an anonymous contributor, "Ulster says No!". I was tempted to write underneath it, "But the man from Delmonte says, `Yes'!—and he is an Orangeman". But I desisted from so doing because I did not want to start a mural correspondence column which might be acceptable in Peking but would hardly add to the attractiveness of the Northern Ireland countryside.
Nevertheless, there are certain speeches, certain actions and certain writings of slogans and certain graffiti which can lead to dire consequences. There is the self-fulfilling prophecy, the warning to Her Majesty's Government that, "If Her Majesty's Government do not do so-and-so, I cannot guarantee that the people whom I represent will not take to the streets, will not take up arms, will not resort to violence". And the speaker or writer may claim that he or she has no intention of stirring up violence. But we know well that that can be a provocative statement. We know well that the prisons in Northern Ireland are bulging with people serving long sentences and that in many cases they are young people easily swayed who, like me, are not possessed of the mental capacity of the late Dr. Einstein, who are persuaded by these speeches and who think that in conducting whatever activity they have been persuaded to conduct—an act of violence, probably—they are striking a blow for freedom of one sort or another.
They are now, many of them, languishing in gaol serving long terms for crimes very often as serious as murder; yet those who have incited them to it, whether they be politicians or not, are free and indeed basking in the publicity that they have gained from the statements that they have made, and do not appear to have all that much concern for the gullible people who acted as a result of their statements and actions and who have had to pay the penalty therefor.
While, as I say, the purpose of this amendment is to aim for conformity between the law as it stands in England and Wales and the law as it would stand in Northern Ireland, there are significant implications to it. Therefore, I would respectfully submit to your Lordships that this Bill be read a second time. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Dunleath.)
8.5 p.m.
Lord Hampton: My Lords, the noble Lord, Lord Dunleath, is once again to be congratulated on introducing a Bill designed to help in the battle for sanity and calmer times in Northern Ireland affairs. Our task tonight is to consider whether this Bill, introduced with the most honourable intentions, will help to that end. As has been made clear, the aim is to check the spread of hatred by making incitement to hatred an offence without having to prove that the accused consciously intended this. It is worth re-emphasising that this will do no more than bring the law in Northern Ireland into conformity with the similar law in Great Britain on incitement to race hatred as contained in the Race Relations Act 1976.
Hatred is an ugly attitude of mind and I imagine that there is probably no Member of your Lordships' House and none present this evening who does not

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consider it an unmitigated evil. Without hatred in the first person, there would be no desire to incite hatred in a second person. The disease, as perhaps I may term it, lies in the initiator; and that is what really needs to be cured. It is nonetheless important to stop it spreading.
There are those who hold that freedom of speech is of paramount importance and must in no way be checked. In an ideal society that would be so but, when we read of bitter men stirring up mob violence in the strife of the Province, I cannot believe that all restraints should be abandoned. It is a loss of personal freedom not to be able to say exactly what one thinks. But if by so doing one causes mental or physical suffering to another, the privilege has been taken too far.
The noble Lord, Lord Fitt, my good friend, kindly drew my attention to the debate on the Prevention of Incitement to Hatred Bill in the Northern Ireland House of Commons on 30th June 1970 and the noble Lord. Lord Dunleath, referred to this. The noble Lord, Lord Fitt, has been over much of this ground already and I note that he has not put down his name to speak tonight. He said then that the great difficulty lies in proving the intent to stir up hatred. That, of course, will no longer be necessary. He accepted that that Bill was bristling with difficulties and I think that we also may well question the effect for good that the present Bill may have. The Public Order Bill introduced by the Government yesterday, I think, will need careful perusal.
I should like to ask the noble Lord, Lord Dunleath, two questions when he comes to wind up in the debate. First, I would ask about graffiti and writing on the walls. He has referred to this. Many vicious messages are spread in this way. Does he not think that the task of preventing it may be almost impossible and failure counterproductive? Secondly, can the people of Ulster be assured that incitement to hatred will be punished quite impartially from whatever quarter it arrives?
It seems to me important to keep things in proportion, to face the unpalatable fact that there is much hatred in Northern Ireland today. Free the Province of hatred and of fear and you will have solved its problems. That may sound simplistic and it is certainly immensely difficult to achieve, but it remains the truth. While we concentrate on the negative influence of hatred, let us not forget the many positives in the Province today.
Only recently, many of us received a news sheet from Lagan College, proud of its splendid progress in the field of integrated education of excellence. Let us salute the courage and determination of those beavering away to spread goodwill and break down the divide between the two communities. I pay tribute to the noble Lord, Lord Dunleath, again for his work in this field. I believe that in the long run we need to find a better way than the way of legislation to tap the powers that can change the human heart and make the ideal we all cherish of a happy and united Northern Ireland a practical possibility. But in the meantime, while regretting this necessity, we on these Benches support the aims and intentions of this Bill.
8.10 p.m.
Lord Hylton: My Lords, I should like to thank my noble friend Lord Dunleath and congratulate him on introducing and explaining this Bill tonight. My noble friend, I would say, has a very enviable record when it comes to legislation. Seven or eight years ago he piloted through the House a measure to do with schools which has made it possible for shared, integrated Christian schools to be accepted into the system of public education in Northern Ireland. That is of very great benefit, in my view, in enabling children to grow up mixing freely with each other and learning to appreciate the good and constructive points of their respective traditions. Lagan College has already been mentioned this evening. It was the first of these schools and has by now proved the point beyond question. Last term, Lagan was joined by the two Hazelwood schools in North Belfast and by the Forge Primary School in South Belfast: three new, integrated, shared schools opening in one term.
The Bill promoted by the noble Lord was an enabling one. Tonight's measure I would describe as a preventive one. Its purpose is to diminish, if not eliminate, the flow of incendiary language. When I use those words, I think I should point out that we have seen and heard some language which very precisely and literally was of an incendiary nature. Such language is bound to disturb people's emotions and I fear it is all too likely to create fears and mistrust. As the noble Lord pointed out in his opening speech, it can be an incentive to intimidation when it is not in itself an act of intimidation.
It is for these reasons that I personally welcome the changeover in the onus of proof from the question of intention to the more provable matter of likely effect. If we look back over the last few years and perhaps go back as far as 1969, it can be seen, I think, that successive governments have laboured hard and honourably to change the institutions of Northern Ireland. Perhaps the classic example was the creation of the Housing Executive, which has done—I think it is widely acknowledged—some very good work.
This process of changing institutions has been tried not only in the executive sphere but also in the judicial and legislative spheres and has culminated, one might say, in the recent Anglo-Irish Agreement. That is desirable and it may be necessary in many ways, but, alas, it has not had the effect yet of changing deep-seated attitudes. I would submit that a great deal more work is going to be called for in modifying, changing and improving attitudes—for it is attitudes that are to a large extent the cause of the troubles we experience, as they are the cause of threats and of language used which is likely to provoke hatred and disturbance.
The underlying attitudes in many ways are still much as they were, and I should like to suggest tonight that the attitudes of people, both in Britain and in the Republic of Ireland, have a strong bearing on the situation in the North of Ireland. In Britain, alas, too many people look upon Northern Ireland as a remote and incomprehensible place. Really, to put it briefly, too many people do not want to know about it. Others in Britain take the line that we ourselves are not too

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closely involved and can therefore be considered to be neutral, to be arbitrators of a kind and peace-keepers of a kind.
That, I would suggest, is an insufficient attitude. We need to be a great deal more constructive and creative than that. Some of these attitudes apply in the Republic of Ireland but I think one should point out that in that country there has traditionally been, and still is, a greater commitment to one particular cause. And that cause, of course, has been the cause of the nationalist community in the North. But one has only to think of the very great financial burdens that fall as a result both on Britain and on the Republic of Ireland to see how desirable it is that our own attitudes should change and thereby help attitudes in Northern Ireland to change. It seems that on a rough calculation it is costing the inhabitants of Great Britain something like £1,000 a year per head of the Northern Irish population. The Forum for a New Ireland did some work on quantifying the cost to the Republic of Ireland, particularly the security costs, the loss of revenue from tourism and the loss of investment from outside the country.
To come back to the internal attitudes of people inside Northern Ireland, the events of 1981 and of the last year, 1985, have shown how relatively little change there has been and how very easily fears, emotions and prejudices can be stirred up. I think that probably all we can do at present, and certainly this evening, is to urge and encourage bodies such as churches, trade unions and the very numerous voluntary organisations of Northern Ireland to keep up the good work which has been started on changing some of those fundamental internal attitudes.
In conclusion, I would say it is becoming clear that there are regular and frequent elections of all kinds in the North of Ireland but that there is very little representative democracy, as we know it, in this country. I say that because there are no parish councils or town councils. District councils have very limited powers, and indeed at the present time a considerable proportion of them are unfortunately adjourned by their own act. The elected Assembly remains consultative, and of course at the level of the House of Commons, even when there are no by-elections pending, the small number of elected Members are unlikely, in the nature of things, to be able to change the policy of any determined Government sitting in London.
It is because of this lack of representative democracy in a situation of direct rule that the question of human rights becomes so important, in my view. Here is the opportunity for government action; and once again I should like to urge the Government to take steps to legislate so that the European Convention on Human Rights is written into the law of Northern Ireland. This, in a simple and direct way, would make it possible for human rights issues to be heard in the courts of Northern Ireland, thus eliminating the extremely long delays which happen whenever an aggrieved individual wishes to take his case through the European Commission and on to the European Court of Human Rights.
I again urge the Government to consider bringing together into one human rights commission the
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somewhat numerous pieces of machinery and advisory bodies—ombudsmen and so on—which at the present time deal with human rights locally in the North of Ireland. I hope that I have not strayed too far from the original Bill, but I should like to support it and I consider that it is a timely measure.
8.20 p.m.
Lord Fitt: My Lords, I fully support this Bill and I fervently hope that the Government will assist it in its passage through this House. Any attempt to bring about legislation which will dissipate some of the passions and allay some of the fears and suspicions that are in Northern Ireland is to be welcomed. I have vivid memories, which have already been referred to by my noble friend Lord Hampton, of 3.45 p.m. on 30th June 1970 in the Northern Ireland Commons, when the Government introduced the Prevention of Incitement to Hatred (Northern Ireland) Bill. Within the space of five or six hours, it had passed all its stages.
The Bill was regarded with such urgency at that time that there were only two dissenting voices in the Northern Ireland Parliament, which had 52 Members. One of them was then the honourable Member for Bannside in Northern Ireland, who is now the honourable Member for North Antrim, and the other was his colleague, who was then the honourable Member for South Antrim and is now in the Northern Ireland Assembly as well. There were a number of Divisions on amendments put down by those two gentlemen, but at the end of the day the Bill was passed almost unanimously, with the exception of those two honourable Members.
I remember speaking on a number of occasions during the course of that debate in June 1970. The troubles had broken out in Northern Ireland after the Civil Rights march in Derry in 1968. In 1970, the deaths that had been brought about by the violence were still in double figures at less than 100. I remember thinking, and fervently hoping, that the legislation which we were enacting would do something to ensure that no further deaths would occur. Now, 16 years after, I read the reports of the speeches which I made during that debate, as well as the other speeches. There have now been 2,000 more deaths in Northern Ireland, with all the terrible things that have happened and we find that legislation such as that brought forward by my noble friend Lord Dunleath is still more necessary.
Since 1970, we have had four Westminster Governments. We had the two Labour Governments of 1968 and 1974 and the two Conservative Governments of 1979 and 1983, and there have been no Northern Ireland Parliaments since 1972. A succession of British Governments and of Secretaries of State must be only too well aware how necessary it is to have legislation of this type on the statute book, to see whether it will prevent any further erosion of humanity and civilisation in Northern Ireland.
It is well-known that some of the greatest legal luminaries in the land, the most eminent legal brains that can be found in this country, sit in this House, and we have had the experience of the Northern Ireland Act, which, as was rightly said by my noble friend Lord Dunleath, was totally ineffective. Many of us had

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reservations when it was going through Parliament. We found that only one case was taken and the person was acquitted, because it could not be found that he had the intention of creating insulting behaviour, harassment and intimidation.
As was said in that earlier debate, it all depends on what is meant by "insulting" and what is meant by "abusive language". I am quite certain that the Minister who is here tonight will be in no doubt as to what is abuse and insulting language, and the Secretary of State will have his opinions after what happened to him at the City Hall in Belfast and what happened yesterday afternoon to the Minister of State, Dr. Boyson. So they themselves could be protected by the provisions of this Bill.
We have to remember as well, as regards intimidation and harassment, which are in the wording of this Bill and were in the wording of the Northern Ireland Act of 1970, that it was taken that Protestants or Unionists could be harassing or intimidating Republicans, or the other way round. But in Northern Ireland there has been such a breakdown in community relations since then that it is now not uncommon for Protestants to be intimidating Protestants because they do not agree with the political stance which the others are taking.
One can only recall the Unionists, Loyalists and Protestants, and the intimidation and harassment of members of the RUC which took place in August last year because the RUC had insisted on rerouting Loyalist demonstrators in Portadown. It was not Catholics or Nationalists, it was not Unionists, Republicans or Loyalists who intimidated or attempted to intimidate me for so many years in Northern Ireland. It was not Unionists or Loyalists who burnt my home to the ground. So one can see that intimidation can be used within the two communities in Northern Ireland.
I should not like to think that this House will tonight give approval to the Second Reading of this Bill and then just say, "We have expressed our good wishes, but nothing will happen." I appeal to the Government to do everything they possibly can to ensure that this Bill passes through the House and that it is taken seriously in another place.
As I said, 16 years have elapsed since the first introduction of the Prevention of Incitement to Hatred (Northern Ireland) Bill in Northern Ireland. I am quite certain that the legal brains in this House can give advice and that my noble friend Lord Dunleath will be quite happy to accept that advice if it will put on to the statute book a law which will afford some protection to those people within both communities in Northern Ireland who have been so intimidated, harassed and victimised over so many years. Anyone with any knowledge of events and history as they have been seen unfolding in Northern Ireland should be only too happy to be in a position where he can encourage this Bill on to the statute book. So many people in Northern Ireland will want to see it become an Act, rather than remain a Bill.
8.28 p.m.
Lord Prys-Davies: My Lords, I, too, should like to join in thanking the noble Lord, Lord Dunleath, for
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his contribution in sponsoring the Bill and for intoducing it to the House this evening. We see clearly that the Bill introduces into the law of Northern Ireland the main provision of Section 70 of the Race Relations Act 1976. Indeed, it follows the wording of that section, except that it also covers hatred stirred up on grounds of religious belief. But the main change is clear. As the noble Lord, Lord Dunleath, has explained, it is the abandonment of the requirement of intent to stir up hatred.
The Bill if enacted would close a gap in the law which applies in Northern Ireland. But interestingly the general argument advanced tonight by the noble Lord, Lord Dunleath, is the argument heard in your Lordships' House 10 years ago when the Race Relations Bill, and in particular Section 70, was before the House. On that occasion, the House followed the lead of the noble and learned Lord, Lord Hailsham, and came down heavily on the side of freedom of speech. The noble Lord, Lord Hampton, has touched upon the significance of the freedom of speech in this context. In the result, 10 years ago in the context of England and Wales the House supported an amendment that the intent to incite hatred should remain an essential element of the offence. But—we think fortunately—the House of Commons took a different view. It decided that the offence would be committed if the words complained of were likely to stir up hatred.
I am grateful again to the noble Lord, Lord Dunleath, for giving us the history of this legislation in Northern Ireland. I was puzzled on reading the Bill to discover that Northern Ireland had been left outside the scope of Section 70 of the 1976 Act. It seemed very odd and anomalous that Section 70 did not apply to Northern Ireland, a part of the United Kingdom where, as every noble Lord has mentioned this evening, there is so much serious social disharmony and deep rooted religious division. Why should that be so? Why was Northern Ireland left outside the scope of the Act? I now know why it had been excluded. It had been excluded at the request of Stormont because Stormont saw the problem in Northern Ireland not as being racial but as being religious.
I should like to know from the noble Lord, Lord Lyell, to what extent Section 70 has been successful in practice in the 10 years which have passed since its enactment. Has it helped to make speakers and writers tone down and modify their language? Is there any comfortable evidence available? Is there any firm evidence to show that it has helped to prevent discrimination and intolerance? Is there any comfort from the Great Britain statistics? Has it been any more successful than the Prevention of Incitement to Hatred Act 1970? I ask these few questions because there are people who believe that there is no short cut to solve deep rooted problems of hatred within our society. Nevertheless, if there is just a possibility that this Bill will help to prevent hatred and intolerance, if there is just the possibility that it could have some practical value, it is sound and worthy of our support.
That may not be quite the end of the matter in terms of new legislation because we find that Section 70 is in fact an amendment to Section 5 of the Public Order Act 1936. Indeed, it is regarded as Section 5A of the 1936 Act. That is right and proper because there is a

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close link between this offence and the preservation of public order.
Therefore I wish to ask the Government this question. When the Public Order Bill comes before Parliament, is it intended that Clause 17 will apply in the Northern Ireland situation? Is there an intention on the part of the Government to look at the Public Order (Northern Ireland) Order with a view to reviewing it in its entirety and not merely concentrating on the one section? With those few questions to the Minister, we give our support to the Bill introduced by the noble Lord, Lord Dunleath, and we look forward anxiously to the Government's response.
8.35 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell): My Lords, I should like to thank the noble Lord, Lord Dunleath, for raising this most interesting subject before your Lordships this evening and, as I am sure all noble Lords will agree, for making such a fair and reasoned case for his Bill in his traditional forthright and succinct manner.
I should like to look at Article 13 of the Public Order (Northern Ireland) Order 1981 as it stands at present and comment on how we think it would be changed by the Bill which has been put forward this evening by the noble Lord, Lord Dunleath. Article 13 makes it an offence for a person to publish written or other matter or to use publicly words likely to stir up hatred against, or arouse fear of, any section of the public in Northern Ireland on grounds of religious belief, colour, race or ethnic or national origins. It also states that for this to be an offence, such a person must intend that his words or actions should have these consequences.
As I understand it, the noble Lord's Bill goes a little further. It would remove the intent provision, by providing—with certain limited exceptions such as court reporting, and the reporting of proceedings in your Lordships' House and perhaps in another place—that a person disseminating matter or words likely, having regard to all the circumstances, to stir up hatred, violence, contempt or hostility against, or arouse fear of, any section of the public in Northern Ireland should be guilty of an offence. I think the noble Lord will agree that in the case of his Bill it would not be necessary to prove that his actions or his words were intended to have that effect.
As I am sure the noble Lord will agree, this aspect would bring the public order law in Northern Ireland into line with the similar law in England and Wales on incitement to racial hatred. It would have the second effect of making it easier to mount prosecutions against those extremists on both sides of the community in Northern Ireland who, as we have heard from the noble Lord, Lord Fitt, may from time to time make statements which are likely to stir up hatred there.
But the noble Lord, Lord Dunleath, places the Government in some difficulty. Your Lordships will know—the noble Lord pointed it out, as did the noble Lord, Lord Prys-Davies—that the Public Order Bill, as distinct from the Public Order (Northern Ireland) Order which we have been discussing this evening, is
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currently being considered in another place and received its Second Reading earlier this week. That Bill, which with certain exceptions applies to England and Wales, already contains proposals which, if they meet with the approval of another place, and of course your Lordships, would revise the Great Britain legislation into the line where the noble Lord, Lord Dunleath, is seeking to bring Northern Ireland this evening with his Bill. Of course, we look forward to considering the Public Order Bill on your Lordships' House in due course.
It is certainly not my task this evening to pre-empt any view which will be taken on that Bill in another place and certainly not in your Lordships' House. I ask your Lordships' indulgence to look at the relevant clauses. Under the Public Order Bill as it stands at present your Lordships will see that Section 5A of the Public Order Act 1936, which was inserted by the Race Relations Act 1976—this was mentioned by the noble Lord, Lord Prys-Davies—is to be re-enacted and revised. It will be an offence for anyone to publish or to distribute, or indeed possess, with a view to publication, written matter which is threatening, abusive or insulting and intended, or is likely, to stir up racial hatred. It will also be an offence to use in a public place or at a public meeting words or gestures which are threatening, abusive or insulting and which are intended, or likely, to stir up racial hatred.
These provisions of the Public Order Bill, if both another place and your Lordships' House adopt them, will place English and Welsh law on incitement somewhat in advance of, and different from, Northern Ireland law as it would be if the noble Lord's Bill were to amend the law in Northern Ireland. I want to stress that my right honourable friend the Secretary of State for Northern Ireland is looking very closely at the proposals for England and Wales contained in the Public Order Bill. In the light of whatever is finally approved in another place and by your Lordships' House, my right honourable friend will consider amending Northern Ireland legislation on similar lines.
This last point that I have thrown into the discussion this evening is where the dilemma lies for your Lordships' House and for the Government. I ask your Lordships to consider with me the question of what we should do. Should we go ahead and amend Northern Ireland legislation on the lines so eloquently proposed by the noble Lord this evening? Or should we take the defensive line and wait to see how your Lordships and another place react to the Public Order Bill? I think that the noble Lord, Lord Prys-Davies, touched on one element of this consideration.
I have to say that the Government would prefer to adopt the latter course of seeing how the Public Order Bill rubs down and how it finishes its passage in another place and here. In the light of this, I ask the noble Lord, Lord Dunleath, to be patient enough to await the passage of the Public Order Bill, especially when it comes to your Lordships' House, and then see whether my right honourable friend the Secretary of State is able to bring proposals which meet his concerns. We are more than grateful to the noble Lord for allowing this matter, of which the noble Lord, Lord Fitt, has such experience, to be raised with your Lordships this evening. However, I think that the

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noble Lord will understand that we have one or two doubts on how we want to achieve what he wishes to achieve.
I shall now answer one or two of the points raised this evening. We are very grateful for the forthright comments of the noble Lord, Lord Hampton. We hope that the Bill of the noble Lord, Lord Dunleath, will be of considerable assistance to my right honourable friend in his consideration of the Public Order Bill. The comments that have been made this evening by the noble Lord, Lord Dunleath, and by all noble Lords, will be of considerable value to my right honourable friend.
The noble Lord, Lord Hylton, raised one or two queries. I stress to the noble Lord that so far as concerns human rights, tonight's Bill is just one item in the vast area of human rights. I am sure that he will accept my replies tonight in that light. I stress to him, and to your Lordships, that the Government are committed to the protection of human rights in Northern Ireland. However, we are not entirely certain that the incorporation of the European Convention on Human Rights is immediately the best way of ensuring that.
I want to pay tribute, and the Government's tribute, to the work of the Standing Advisory Commission on Human Rights and to the work of other human rights bodies in Northern Ireland. They are, of course, independent bodies and we shall have to look with particular care at any proposals to amalgamate them.
We were very grateful for the brief and forthright comments of the noble Lord, Lord Fitt. He referred to the Royal Ulster Constabulary. I am sure the noble Lord, and all noble Lords, will wish me to pay our wholehearted tributes to that body. Indeed, those of us who have anything to do with Northern Ireland, let alone those of us who live and work there, pay wholehearted tribute to the officers of the Royal Ulster Constabulary who enforce the law fairly and impartially for every member of the community in Northern Ireland.
The noble Lord, Lord Fitt, also said that abusive words had been flowing around. The noble Lord is very gracious and I shall certainly see that his good wishes are passed to my honourable and right honourable friends who, the noble Lord feels, may have been the unfair victims of those abusive comments. When I read what is said about me in the newspapers I often think that it is just the Ulster way of expressing things, and I reflect that possibly I deserve about half of the comments directed to me. The other half of the comments are, of course, aimed in the direction of the Almighty since most of them concern the atrocious weather of 1985. Of course, abusive, violent and intemperate language causes a great deal of distress, fear and alarm in Northern Ireland. Possibly noble Lords and my honourable and right honourable friends in another place ought to develop slightly thicker skins; but it is no excuse for the use of intemperate language and actions. We are grateful for the tributes paid this evening by the noble Lord. Lord Fitt.
The noble Lord, Lord Prys-Davies, asked about Section 70 of the 1976 Act. I am sure he agrees that
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there are problems with it. We can see how these problems are covered in paragraphs 6.5 and 6.9 in the White Paper which was issued by my right honourable friend the Secretary of State. That is why the Government are introducing legislation in another place. Of course there are difficulties but I hope that the noble Lord will accept that we should try to keep the difficulties of Section 70 in perspective and, above all, on a Northern Ireland plane.
My Lords, I conclude my remarks by saying that we are most grateful to the noble Lord, Lord Dunleath, for raising this very important matter so well in your Lordships' House this evening. He seeks with his Bill to bring Northern Ireland legislation into line with the law in England and Wales. This, as I have spelled out to your Lordships, is in process of revision starting off in another place, and very soon we shall have our chance to add our thoughts to that as well.
The Government will certainly not oppose the noble Lord's Bill this evening, but I should just like your Lordships, and indeed the noble Lord, Lord Dunleath, to know of the reservations which I raised earlier in the course of my remarks. I pay tribute to the noble Lord, Lord Dunleath, and I want to thank everyone who has spoken this evening, since it has provided much valuable material for us.
8.50 p.m.
Lord Dunleath: My Lords, I should like to thank the noble Lords who have so kindly contributed to this short debate for their very helpful and constructive comments. The noble Lord, Lord Hampton, referred to the problem of graffiti. I understand only too well the difficulty that this presents, because unfortunately, as I said in my opening remarks, they are normally the work of anonymous contributors. They do not sign their literary efforts, which they write on walls, any more than did the person who wrote "Ulster says No" and accompanied it by a very attractive Union Jack. Therefore it is very difficult to see how the provisions of the Bill which I am proposing could be brought to bear on that. However, as I also tried to bring out, graffiti are not all that much of a worry except under certain circumstances. There are many more things to be worried about, as the noble Lord, Lord Fitt, said during his speech.
The noble Lord, Lord Hampton, also wondered whether it would be possible to administer the provisions of this Bill in an impartial manner. I sincerely hope so, because incitement to hatred and violence can come from any section. On the one hand, you have Sinn Fein who speak in glowing terms about the cutting edge of the IRA as being the element which will produce progress; on the other hand you have the inflammatory statements of so-called Loyalist spokesmen. Incidentally, I should add that when this Bill was drafted we did not know that the Anglo-Irish agreement was going to be signed at Hillsborough on the date that it was and we did not know that there would be an "Ulster says No" campaign. But this is a sensitive period and I should hope that, if the provisions of this Bill were in force (and of course I cannot expect them to be in force in the very near future), then it would discourage certain Loyalist leaders from making statements which could result in

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the sort of violence which took place outside the gates of Maryfield at the end of the march just after Christmas.
Incidentally, I am not saying that the Loyalist leaders who were on that march incited violence. In fact they were responsible for appealing to their followers that there should not be violence. But there were others whose statements, public or otherwise, obviously incited some people to take certain most regrettable action, with the result that over 30 policemen were injured on that occasion. So, in answer to the noble Lord, Lord Hampton, I sincerely hope and am confident that the provisions of this Bill would be implemented in a totally even-handed manner.
I was grateful for the support of the noble Lord, as I was grateful for that of the noble Lord, Lord Hylton. Both noble Lords made mention of Lagan college, and in that connection I would remark that although the 1978 Education Act (which I proposed to your Lordships and which your Lordships' House was good enough to agree to, as was another place) may have been slow off the mark, in fact integrated education in Northern Ireland seems to be really taking off now and I think we shall see more and more results from it. I am grateful to the noble Lord for having mentioned that point.
I was also glad to hear what the noble Lord, Lord Fitt, had to say. I entirely agree with him that we have a weight of legal expertise in this House which I would greatly welcome if we come to the point of trying to get this measure which I am proposing on to the statute book. I certainly freely acknowledge that I am no legal expert and would welcome any guidance at all which can be obtained.
The noble Lord, Lord Prys-Davies, made reference to the Lord Chancellor's point about freedom of
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speech. I would merely draw attention to the fact that, as I said in my opening remarks, we should be quite happy with the wording of the new Public Order Bill, which I understand had its Second Reading yesterday in another place, where it says, "intended or likely". Either covers it perfectly well, I think. We should be quite happy about that and I hope that there would be no question of infringing freedom of speech in that respect.
I am grateful to the noble Lord, Lord Lyell, for his reply on behalf of Her Majesty's Government. I take his point that the new Public Order Bill is in process in another place. I should not like to withdraw at this stage but I am just wondering what the procedure would be if the Bill were allowed to lie in abeyance, perhaps for a short while, until we see how the Public Order Bill progresses in another place. Perhaps that might make it more relevant.
If the noble Lord would like me to give way, he would be very welcome to reply to that point. I should be happy enough to allow the Bill to lie in abeyance for a while—but I prefer not to withdraw, if your Lordships are in agreement, because I should not like us to lose sight of it. I think it is important and I would like to see it followed through without too much delay. So long as there is an assurance that the other Bill is being processed in another place, I should be happy enough not to press for a Committee stage in the immediate future.
In conclusion, I should like to thank those noble Lords who have participated in the debate. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at two minutes before nine o'clock.