Lords Sitting of 18 March 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 Leicester.
Lord Derwent—Sat first in Parliament after the death of his father.

Water Industry: Environmental Protection
Baroness Nicol: 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 advice they have obtained on the implications for environmental protection of the proposed privatisation of the water industry.
The Minister of State, Department of the Environment (Lord Elton): My Lords, we have received comments on last year's discussion paper which was circulated to a wide range of environmental interests. We shall shortly publish a consultation paper containing our detailed proposals for environmental protection and will consider the responses to it with care.
Baroness Nicol: My Lords, I am grateful to the Minister for that reply, and am glad to hear that there has been limited consultation. Does the noble Lord not think that in view of the importance of this particular issue it would have been more appropriate to have a Green Paper on the subject? Is he aware that in the first paragraph of Professor Littlechild's report he draws attention to the fact that he specifically does not cover the matter? Does that not in itself mean that perhaps more importance should be given to it than the Government are giving?
Finally, will the noble Lord please clear up for me one point? Where the supervisory role which is mentioned in the White Paper between the Government and the water services PLCs which are to be formed covers conservation of wildlife, if the catchment land is sold does the responsibility transfer with it?
Lord Elton: My Lords, I must try to reply briefly to the number of questions that the noble Baroness has asked me. I re-emphasise the importance which the Government attach to environmental issues. I advise the noble Baroness to await the publication of our consultation paper, when she will see what is proposed and will note the care with which we consult. I can assure her that no responsibilities will be lost in any process of which I am aware towards the environment as a result of privatisation.
Lord Elliott of Morpeth: My Lords, may I ask my noble friend whether, in his further consideration of the water industry, he will take into due account that the statutory water companies have tried always to put
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the consumer first; that they have returned excess profits in the way of reduced water charges; and that the environmental concern in the area of their operations has always been given the highest priority?
Lord Elton: My Lords, we are well aware of the work which has been commendably done by the outgoing authorities, and we shall strive to recognise this by seeing that it is preserved.
Baroness White: My Lords, is the noble Lord able to tell us when we are going to receive this document which is so eagerly awaited? Is he aware that there are at least four likely options for environmental control, including the possible establishment of Her Majesty's Environmental Inspectorate which is recommended by the planning committee of the Department of the Environment, and that there is no consensus as yet of informed opinion? The matter is really urgent if there is going to be adequate consideration before the Government start drafting their proposed legislation.
Lord Elton: My Lords, I can assure the noble Baroness that the consultation paper will be published very shortly—by which I mean in a matter of weeks. I would not wish to anticipate its contents.
Lord Taylor of Gryfe: My Lords, may I ask the Minister whether a similar procedure will be adopted in connection with advice that he may receive on consumer protection which will be affected by the privatisation of water?
Lord Elton: My Lords, I have said that we shall preserve all the safeguards that exist, but the Question on the Order Paper is directed specifically to environmental protection.
Lord Hunt: My Lords, I think the noble Lord said that all the existing safeguards will be preserved. Can the noble Lord, even at this early stage before the consultation paper appears, assure the House that public access and recreation on reservoirs and rivers in catchment areas owned by the regional water authorities will be safeguarded under the terms of sale to private ownership?
Lord Elton: My Lords, the answer is yes.
Lord Cledwyn of Penrhos: My Lords, in view of the considerable public concern and interest in this subject and in the Government's proposals on water generally, can the noble Lord give an assurance that the House will be given an opportunity to debate this fairly soon in Government time?
Lord Elton: My Lords, I believe that the noble Lord knows very well what the usual channels are because I believe he constitutes a part of them. Therefore, I would not presume to anticipate his part in that.

Lebanon: UN Resolution
2.41 p.m.
Lord Chelwood: 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 why, having spoken in favour of it, they did not vote for the Security Council resolution on 17th January requiring Israel's withdrawal from Southern Lebanon, the deployment of UNIFIL to enable it to carry out its mandate, and the full restoration of Lebanese sovereignty.
The Minister of State for Defence Support (Lord Trefgarne): My Lords, we agree with the call in the Lebanese draft resolution on 17th January for complete Israeli withdrawal and respect for Lebanese sovereignty. We abstained because it included no constructive suggestions as to how these objectives might be achieved and did not refer specifically to the role of UNIFIL.
Lord Chelwood: My Lords, while not finding that Answer particularly convincing may I, in general terms, ask my noble friend whether he does not agree that, when speaking to a Security Council resolution and having reservations, and thinking perhaps of abstaining, it really is of the utmost importance that this should be made clear in the opening speech, and that, if this is not done, then, should there be a change of mind during the course of the debate, an explanation of our vote should be given? Is there not a serious risk of a misunderstanding of what British policy really is unless this is done?
Lord Trefgarne: My Lords, I think the most important risk of a misunderstanding of British policy would have been to have voted in favour of a resolution with the shortcomings that I have referred to. It is all very well identifying the problem, but we need to seek a solution as well.
Lord Bottomley: My Lords, is it not the case that the biggest obstacle to the restoration of power in Lebanon is not a small traditional zone but the presence of large numbers of Syrian troops and the political threat that they pose?
Lord Trefgarne: My Lords, I think that the way forward in the Lebanon is for the Lebanese Government and people to be allowed to solve their own problems without outside interference from wherever it comes.
Lord Mayhew: My Lords, is it not an unconvincing explanation that Her Majesty's Government declined to vote for the withdrawal of Israeli troops from South Lebanon and for the full restoration of Lebanese sovereignty because the resolution did not mention UNIFIL?
Lord Trefgarne: My Lords, our problems with the resolution went a little wider than the noble Lord is suggesting. It did not point the way forward to a solution in this area; and we look forward very much
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to the next Security Council debate in April, which will be in connection with the renewal of the UNIFIL mandate, which we hope will be helpful in this regard.
Lord Cledwyn of Penrhos: My Lords, is it not the case that the Secretary General of the United Nations has now proposed an international peace conference on the conflict in the Middle East? Can the noble Lord say what is the attitude of Her Majesty's Government to that proposal?
Lord Trefgarne: My Lords, with respect to the noble Lord, that goes a little wide of the Question on the Order Paper. Nevertheless, Her Majesty's Government will support any constructive proposals in this area.
Lord Chelwood: My Lords, in more specific terms, has not UNIFIL been put in a dangerous and difficult, if not near impossible position by the United States veto of this resolution, which referred back to previous resolutions about the setting up of UNIFIL, and by the continued occupation of a large part of the Lebanon by Israel's forces more than nine months after Mr. Peres promised their complete withdrawal?
Lord Trefgarne: My Lords, I certainly agree that one of the major obstacles in the way of UNIFIL properly fulfilling its mandate is the continued Israeli presence in the south of Lebanon, and I hope that that matter can be corrected very soon.
Lord Glenamara: My Lords, will Her Majesty's Government not vote for any resolution demanding the withdrawal of Israeli forces which does not also demand the withdrawal of Syrian and PLO forces from the Lebanon?
Lord Trefgarne: My Lords, the noble Lord is right, if I may say so, to point to the need for these resolutions to be balanced. The one which is the subject of this Question failed, for example, to pay proper regard to Israeli security concerns and those of Lebanon. Those are among the reasons why we were obliged not to vote.
Lord Molloy: My Lords, is the Minister aware that, as he said, the resolution did not dot every "t" and cross every "t" but that distinguished people in the Middle East, including distinguished Israelis, believe that it provided a basis which, with the help of UNIFIL, could have begun the achievement of peace? What we should have said, having spoken in favour, and remembering that it could have been said in a speech, is that perhaps the resolution was not 100 per cent. perfect but that it deserved our support in endeavouring to bring peace to a very troubled land and to ease the strain on Israel.
Lord Trefgarne: My Lords, if Israeli interests are concerned with UNIFIL fulfilling its mandate, then perhaps they could help them to do so.

Unemployment: Hackney
2.47 p.m.
Lord Stallard: 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 are the up-to-date figures for (a) adult unemployment (b) unemployed young people aged 16–19 years, and (c) long-term unemployed in the London Borough of Hackney, numerically and in percentage terms of the borough's population.
The Secretary of State for Employment (Lord Young of Graffham): My Lords, on 9th January 1986, the latest date for which figures by age and duration are available, the number of unemployed claimants aged 18 years and over in the London Borough of Hackney was 20,137. The number of unemployed claimants aged 16 to 19 was 2,474, and the number of claimants who had been unemployed for over 12 months was 9,743. The equivalent population figures are not available.
Lord Stallard: My Lords, I am grateful to the Minister for that partial reply. Is he aware that some of the figures he gave, and other figures that he did not give, have quadrupled since 1979 in an inner London borough which is part of the so-called prosperous South-East? These figures are as high as anywhere else in the country, or—dare I say it before the Minister does?—in France, Germany, Japan, Greece or Ireland. Is he also aware that as well as the generally high level of youth unemployment in Hackney, 20 per cent. of the youngsters have been unemployed for over a year and there is a real problem among the black and ethnic minority groups of unemployed youngsters? Will the Minister reconsider his decision not to include Hackney in his tour of visits to parts of the country to look at these problems? Will he accept an invitation to Hackney to see those problems and meet the people trying to deal with them, who would welcome a chance to discuss with him the problems in Hackney?
Lord Young of Graffham: Yes, my Lords, I am grateful to the noble Lord for pointing out that Hackney is an area of high unemployment. Although Hackney is in the South of England, it often seems to me that unemployment is not so much a North-South divide as an inner urban-suburban rural divide and there are many areas in the South which have high unemployment.
Visiting Hackney poses a small problem. Last October the leader of Hackney went on the radio and alleged that that rioting was caused, or was likely to be caused in Hackney, by unemployment of those between 14 and 19 years old. I replied that Hackney is in the centre of London, and, first, from 14 to 16 you are at school, and from 16 to 18, from next year onwards, you have the right to a two-year place on the YTS which will lead you towards real qualifications. That remains the issue.
Since then, there has been an effort by the leader of Hackney to get me to come down there in order to have some form of political confrontation. I spend
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much of my time on those days when I am not in your Lordships' House travelling the country. I was in Cardiff yesterday before coming here to answer a Question. I was in Huddersfield, Wakefield and York on my way to Felixstowe at the weekend. In all those areas I was looking at unemployment. It is a large nation. We have many areas to look at, and I am concerned to do so. I will meet anyone who is interested genuinely to solve the unemployment problems of our youth and not to make short-term political capital out of them.
Lord Avebury: My Lords, in addition to the North-South divide which the noble Lord the Minister mentioned, is there not a black-white divide? Pursuing the point made by the noble Lord, Lord Stallard, I ask the Minister whether he can give a breakdown of the total into the number of people from different ethnic groups who are unemployed. I suggest that that would show an enormous differential unemployment rate to the detriment of the black people in Hackney. When are the Government going to take new initiatives which will secure the racial equality in employment to which they pay lip service?
Lord Young of Graffham: My Lords, I resent the accusation about lip service, because it is not lip service. We are concerned to ensure that all our young have opportunities to get on in life. We have to look at the quality of education which many young people receive in the inner city areas; we have to take into account that many politically motivated people are concerned to prevent us even from taking stock of those of the ethnic minority who exist among the unemployed. I have had considerable difficulties in that regard. Without the information, it is extremely difficult to answer the supplementary question.
Lord Dean of Beswick: My Lords, does the Secretary of State not recall a couple of weeks ago saying in your Lordships' House in answer to a question that he would like to go and see the areas that were described as industrial deserts? On the figures that he has given, has he not described one of many such areas today? Will he try to oblige my noble friend Lord Stallard with his request to visit this area which is an industrial desert in London?
Lord Young of Graffham: My Lords, I was pointing out that there is an enormous difference between areas like Middlesbrough and Cleveland, where unemployment is very high and where the job opportunities are, alas, few, and Hackney, where unemployment is very high. I was making the point that it is situated in the middle of London where considerable job opportunities exist. I think that it is necessary and serious that we should go to investigate why these pockets of high unemployment should exist in areas where there are many job opportunities. It is a matter which concerns me and one which I shall happily look into, provided that no opportunity is taken merely to make political capital out of such a visit.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that he does neither himself nor the Government any good by accusing those who criticise

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of trying to make cheap political points? Is he not aware that criticism of the Government's record has come from a number of sources, including the CBI, and also from the House of Commons Select Committee on Employment? Instead of accusing people of making cheap political points, will he take note of the criticism and act upon it to do something about bringing down unemployment, particularly for the 41 per cent. who have been unemployed for more than a year?
Lord Young of Graffham: My Lords, I often have opportunities to point out to the CBI and to your Lordships' House that it is not the Government who directly create jobs; it is the people. It is for the Government to do all they can in order to encourage those circumstances to come about. There is an enormous difference between a report of a Select Committee in the other place or a report of the CBI and those who seek to achieve political confrontation.
Lord Underhill: My Lords, is the noble Lord aware that I travel through Hackney every day in order to come to your Lordships' House? Is he also aware that in connection with one of the previous local government Bills I, as president of the Association of Metropolitan Authorities, accompanied by my noble friend Lord Graham, spent a day visiting Hackney? I thought that I knew Hackney. When I saw the scale of deprivation I was staggered. It would do not only Hackney a world of good but the Minister, too, if he could do likewise.
Lord Young of Graffham: My Lords, I, too, am no stranger to Hackney. I pointed out to your Lordships' House that, for example, for adult training in Hackney we shall see an increase in the figures between this year and next year of no less than 226 per cent.; that is, from 370 to 1,200 in those who will be engaged in adult training. We are concerned to ensure that conditions improve in Hackney, but what I must repeat again and again to your Lordships is that Hackney is not an island; it exists in the whole of London. What we must do is ensure that the job opportunities that exist in the whole of London are available to those who reside in Hackney.
Lord Oram: My Lords, is it not suprising that the noble Lord was unable to give a population figure for a London borough? Will he not try again, more successfully, so as to give my noble friend Lord Stallard a fuller Answer than he was able to give him in the first place?
Lord Young of Graffham: My Lords, among the many responsibilities I have for answering Questions in your Lordships' House, the census is not one of them. I can only give the figures I am given. I am told that no figure exists for the London borough of Hackney. I will inquire again. If it does exist, I will write to the noble Lord and have a copy of the letter placed in the Library.
Baroness Fisher of Rednal: My Lords, the noble Lord talks about helping the ethnic minorities and then he quotes the two-year training course, but is he
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not aware that in the inner cities there is the greatest difficulty for these young people to get on YTS courses because in the main they are employer-led? When employers are choosing, for some reason or other, these are not the people who are chosen.
Lord Young of Graffham: My Lords, I am aware of the difficulty. That is why in many areas of the country there is an adequate supply of premium places which help schemes whether or not there are sufficient employers. What I am also aware of is that there are those who for political motivation or other causes go around telling young people that they are working for slave wages and that they should avoid YTS. They tell young people for sheer political reasons that they should not go on to a scheme; a scheme which I believe to be real and not only to be helping young people but to be thoroughly endorsed by the TUC and the CBI.
Baroness Fisher of Rednal: My Lords, is the noble Lord aware that I am involved in the city of Birmingham? I know the Handsworth project. I know the area well, and I take what he has said as a slight on what I am trying to do in my small way.
Lord Young of Graffham: My Lords, let me say two things. First of all, as far as I am aware, Hackney is in London and not Birmingham, and I was referring to Hackney. Secondly, I am referring not to any Member of your Lordships' House but to those who, out of sheer political opportunism, are saying to young people directly, "Do not join YTS!" I see that there are those on the other side of the House who agree with me.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that young people will not be fooled by what they are told by people who have a political axe to grind? They will judge the scheme by what they find within the scheme and what it achieves for them. I hope that the noble Lord feels that his job is to ensure that the scheme is acceptable to young people and that it does them some good by providing them with jobs at the end of it.
Lord Young of Graffham: My Lords, I hope that the noble Lord is correct. I find it slightly curious that in large areas of the country many young people willingly go on to YTS. It is only when we get to certain areas within the inner cities that we find these difficulties. In some areas that I look at many young people I meet say to me and to those who work in the scheme that they are entitled to more money. They do not take into account the real value of YTS to them and to the community as a whole.
Lord Stallard: My Lords, will the noble Lord accept that his reasons for declining the invitation to Hackney will not be welcomed by the voluntary workers and the local authority workers who are now working very hard to try to do something about the problems in that area? I understand that the latest invitation was sent to him by the chief executive, the Town Clerk, on 10th March. Again, can I ask him to reconsider that invitation in a positive manner so that he can see for himself rather than have to learn from hearsay what is going on in Hackney?
Lord Young of Graffham: My Lords, I have no doubt that the invitation which I received on Monday was totally unconnected with the noble Lord's Question. I shall consider it and see what can be done.

Official Secrets Legislation
2.59 p.m.
Lord Molloy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what changes are envisaged in the Official Secrets Act following the Westland affair.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, a Bill was introduced in 1979 to reform Section 2 of the Official Secrets Act 1911, but there was insufficient agreement to enable it to be carried through Parliament. The Government have at present no further plans to amend the Act but will gladly listen to any suggestions which are made.
Lord Molloy: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his reply. I am sure he would agree that the Official Secrets Act is an essential and vitally important piece of legislation. Could he perhaps enlighten the House as to the authority under which Ministers can grant immunity from that Act of Parliament to certain civil servants, who gives them that authority, and whether they in turn are able to enjoy any form of immunity in relation to actions of theirs which might contravene the Official Secrets Act?
The Lord Chancellor: My Lords, this Question related to changes in the law, and not to authority. If the noble Lord cares to put down a Question in the terms of his supplementary, one of us, at any rate, will do our best to answer.
Lord Molloy: My Lords, is the noble and learned Lord aware that that reply could be given to almost every supplementary asked on a Question put down on the Order Paper in your Lordships' House? This is not a frivolous matter: a large number of people think it is very important indeed.
The Lord Chancellor: My Lords, all the same, supplementaries should have some relevance to the original Question.
Lord Mishcon: My Lords, would the noble and learned Lord not agree that the provisions and, indeed, the enforceability of the Official Secrets Act constitute a nonsense and make fools of us all—except, of course, for Her Majesty's Opposition? Would the noble and learned Lord not agree that his reference to the previous attempt to revise this Act, while being perfectly correct, ought to lead to an official consultation between the leaders of the various parties to see what can be done about agreement in this connection?
The Lord Chancellor: My Lords, I am not quite sure that the Official Opposition escapes as lightly as the noble Lord, Lord Mishcon, has indicated. Our attempt was based upon the Franks Inquiry, which they set up and which issued a report; and it was an attempt to put it into effect. I think people have been making remarks like those of the noble Lord ever since 1911, when the last Liberal Government were in power.
Lord Mishcon: My Lords, I should like only to ask a short question of the noble and learned Lord, and it is meant to be practical. Would the noble and learned Lord consider, having regard to the scandal, really, of the present position of this Act, a proper legal consultation with the leaders of the various parties, possibly in both Houses, to see whether an agreed reformation of the Act cannot take place?
The Lord Chancellor: My Lords, I am never weary of well-doing. I said in my original Answer that we would gladly listen to any suggestions. I gladly listen to that; but whether the leaders of the parties will pay the slightest attention to what I may say I do not know. However, I am perfectly sure that we are open to suggestions.
Lord Hatch of Lusby: My Lords, in view of the fact that the Westland affair has displayed that the use of this Act may discriminate between, on the one hand, Ministers, who apparently can provide the press with confidential letters from their Cabinet colleagues without being prosecuted, and, on the other hand, civil servants, who 12 months ago were being prosecuted by the Government for passing on such information, would the noble and learned Lord not agree that the Westland affair, as stated in the Question on the Order Paper, should lead the Government to think again about this Act and the way in which it is being openly flouted, and to bring forward proposals in order that all parties in this House and in another place can get a law which is given some respect?
The Lord Chancellor: My Lords, if the noble Lord has any sensible proposals to make, I shall be delighted to hear them.
Lord Marsh: My Lords, is it not a gross slur on the integrity of Ministers and ex-Ministers to suggest that, regardless of party, they leak confidential information, when it is well known that they have always confined themselves to confidential and helpful background briefing?
The Lord Chancellor; My Lords, I do not know about confidential information; nor do I know of the slightest grounds for prosecution under this section in this context.
Lord Molloy: My Lords, in view of the subsequent replies to supplementaries, may I now take it—I do not expect the Government to make a comprehensive statement—that in the not too distant future they will assure this House, the other place and, indeed, the nation, where there is some concern as to what happened over the Westland affair, that they are prepared to have a sensible, hard look at the Official Secrets Act in the interests of our nation?
The Lord Chancellor: My Lords, there have been a series of sensible, hard looks since 1911, but I do not believe in reinforcing failure.

Marriage (Wales) Bill
3.6 p.m.
Bill read a third time, and passed.

Law Reform (Parent and Child) (Scotland) Bill
The Earl of Selkirk: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or, indeed, to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged—(The Earl of Selkirk.)
On Question, Motion agreed to.

Local Government Bill
3.8 p.m.
Read a third time.
Lord Denning Lord Denning moved Amendment No. 1:
After Clause 2, insert the following new clause:
("Liability for unlawful publication.
.—(1) In the case of any publication by a local authority of any material contrary to this Act, any ratepayer may apply to the High Court for a declaration that such publication was unlawful and for an injunction to restrain the publication of any further material in breach of it.
(2) On any such application, the High Court may order that any person responsible for incurring or authorising any expenditure on such unlawful publication shall repay it in whole or in part to the local authority concerned, and when two or more persons are found to be responsible, that they shall be jointly and severally liable to repay such expenditure.
(3) In exercising its jurisdiction under this section, the High Court shall have regard to any just cause or excuse which such person may have and to all the circumstances of the case.")
The noble and learned Lord said: My Lords, at the Report stage we considered whether this Bill could be enforced, and in what way. As a result of the discussion then I intimated that we might move an amendment, and I am glad to say that it had the support of my noble friends Lord Campbell of Alloway and Lord Mottistone, and of the noble Lord, Lord Harris of Greenwich.
It is an important point that I raised, because this Bill does not provide any machinery for its enforcement. The particular and prominent provision is in Clause 2:
"A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party."
Suppose that provision is broken? Suppose an extreme Left-wing body in control of a local authority should issue political propaganda against any other party or
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its opponents; or, vice versa, suppose a conservative majority should issue political propaganda against another party. What is the remedy? The ratepayer may go to his lawyer and say, "Look, they are spending the money which I have contributed on political propaganda. What can I do about it? What is the remedy?" He could go to the courts. He would say, "I have not myself suffered any damage. I cannot claim damages in money because they have indulged in this political propaganda. What can I do?" What can anybody do to enforce this provision?
My noble friend Lord Mottistone put forward a suggestion on Report that the matter could be gone into and those who were in the majority on the offending council could be made liable, not in damages perhaps but jointly and severally. There were defects in that proposal. My noble and learned friend the Lord Advocate said, "There is already a provision in Section 19(2) of the Local Government (Finance) Act 1982. If you look at that, you will see that at the end of the year when the district auditor audits the accounts, he can look into the items and if he finds any item of expenditure unlawful he can certify and apply to the courts", and so forth. It was suggested that that was the remedy.
I have looked into the matter and, as I shall explain in a little while, I do not think that at the moment there is any remedy in law for a breach. I shall take as a parallel the case of the Lambeth and Liverpool councillors—Smith and Skinner—which was reported in The Times on 6th March this year. That was just before Report stage.
Your Lordships may remember—and, if not, I shall recall it for you—what happened in Lambeth and Liverpool. The local authorities there wanted to go on spending money beyond question. When they found that they could not get any more, they decided to defer making a rate, so they did not make their rate by 1st April as they would and should have done, with the result that they were short of money. What they really wanted to do was to bring pressure on the Government to subsidise Lambeth and Liverpool, as they had done with Liverpool the year before.
When the district auditor looked into that conduct and found that the councillors were deferring the rate to put pressure on the Government, he said that he thought that that was wilful misconduct and that there had been a loss on account of that misconduct. The matter went to the Divisional Court and, as I have mentioned, was reported on 6th March. The judges all held that there had been wilful misconduct by those councillors and that there had been a "loss or deficiency" because they had lost the interest on the money that they would otherwise have collected. Those councillors were ordered by the court to pay the penalty—to pay the loss or deficiency—and they were disqualified for five years. That is a different section altogether from the one with which we are concerned. It is Section 20.
I mention that because of the parallel which is now drawn and said to be available in Section 19(1), which states:
"Where it appears to the auditor carrying out the audit of any accounts … that any item of account is contrary to law he may apply to the court for a declaration".

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If it is unlawful, they can be made liable. That applies when the district auditor finds that any item of account is wrong. Where will we find that when a local authority publishes material like this? It may get a local newspaper or somebody to publish it for nothing. There may be no item of account about it at all, and therefore the district auditor will have nothing to query or to go on at all. If that is so, Section 19 will not avail.
3.15 p.m.
I come back to the original question. If there is a breach and if political propaganda is issued by an extreme organisation in control of the local authority, what is the remedy? In the amendment that I have suggested today, inspired by what my noble friend Lord Mottistone suggested before, the remedy is simple. Any ratepayer who is offended by the publicity may go to a judge of the High Court, because I warn you that whether it is designed as a party political matter is a difficult question. Let the judge consider the publicity. He will declare whether it is lawful or unlawful. If need be, he can grant an injunction to stop it again.
Is that not much better, as I said on Report, than for the district auditor to wait until the end of the year when he goes through the audit, and for us to wait for him to certify the matter? We would wait for 12 or 18 months or two years and the publicity would go on meanwhile. Surely it is right that there should be an immediate remedy available to any ratepayer if the majority on a delinquent council is using propaganda contrary to law. That is why I have put down my amendment which should be simple for anyone to understand. It provides:
"In the case of any publication by a local authority of any material contrary to this Act, any ratepayer may apply to the High Court for a declaration that such publication was unlawful and for an injunction to restrain the publication of any further material in breach of it."
I go on to say that any individual who is responsible for that, with others:
"shall be jointly and severally liable".
Of course we should have to have regard to:
"any just cause or excuse"
that that person may have. Is not that a remedy which should be made available and put into the Act rather than that the Bill should leave this House without anyone knowing how it is to be enforced? I beg to move.
Baroness David: My Lords, the object of the amendment would seem to be a cheap, effective and quick way of dealing with those who are transgressing the law. Cheapness is certainly not the hallmark of litigation which starts in the High Court especially if it goes via the Court of Appeal to the House of Lords. At the end of the day, the litigant could find himself heavily out of pocket. If the litigation were to run the whole gamut of the hierarchy of the courts, it would certainly not be quick.
I ask whether it is right to effect reforms of administrative law in this piecemeal manner. If more efficacious remedies are needed, there is a good argument for the whole corpus of administrative law,
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comprising a wide range of public bodies, including government departments, to be examined as a whole. This Local Government Bill scarcely seems to be the right vehicle with which to introduce reforms along the lines of the amendment. Apart from this—I think that it is important—Widdicombe is now considering the need for a simpler method for ratepayers and electors to challenge the decisions of local authorities. It is now taking evidence on that point. It would surely seem sensible to await Widdicombe's recommendations, which should be published fairly soon.
Aside from these more general objections, there are more specific objections that could be levelled against the amendment. What really is under attack is the principle in Section 19 of the Local Government Finance Act 1982, that the duty to challenge improper expenditure in the first instance lies on the external auditor. It is only when he refuses to do so that the aggrieved person may apply to the court. This is, in fact, a useful and necessary sieve, because eccentric ratepayers with bees in their bonnets are not unknown to local authorities. The decision of the auditor is usually an end to the matter, but this could change if there were to be direct access to the court. The local authority associations would certainly not wish to see any system which encouraged a ratepayer indiscrimi-nately to test the legality of a local authority's decision. There has to be some bar against frivolous litigation.
The noble and learned Lord the Lord Advocate criticised at Report stage the similar amendment of the noble Lord, Lord Mottistone, on the gound that it introduced a special procedure for unlawful publicity, in contradistinction to other unlawful expenditure incurred by local authorities which could be just as heinous. He went on to point out that the important discretion of the court was missing from that in Section 19 of the Local Government Finance Act 1982 requiring it to take into account whether the person responsible for the unlawful expenditure,
"acted reasonably or in the belief that the expenditure was authorised by law and"
—in awarding penalties—
shall have regard to all the circumstances, including that person's means and ability to repay that expenditure or any part of it."
The amendment of the noble and learned Lord, Lord Denning, draws such a distinction between unlawful publicity and other unlawful expenditure and is not satisfactory for that reason. Nor is it clear whether his amendment contains the safeguarding elements in the court's discretion, as in Section 19 of the 1982 Act, of which the noble and learned Lord the Lord Advocate spoke at Report stage at col. 728 of the Official Report. The ability of the court to take into account belief in the legality of the expenditure is particularly important. This is because of the uncertainties of adjudging whether or not publicity is caught by the Bill. The local authority associations' fears that the Bill will be a lawyer's paradise have not been dispelled during the course of its progress through Parliament. So, for those reasons, we hope that the House will reject the noble and learned Lord's amendment.
Lord Mottistone: My Lords, I agree with a tiny bit of what the noble Baroness said. I shall not speak in detail on this amendment, which I strongly support, because

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I put most of the detailed points in my own opening speech on Amendment No. 4 at Report stage. The important point about it is that it limits the provisions of this Bill, which is obviously more practicable than what my noble and learned friend the Lord Advocate encouraged us to do, which was to widen them. I think the noble Baroness said that, if the amendment is applicable to this potential breaking of the law by a local authority, there are a whole lot of other cases which might be similarly treated and—this is where I agree with her—this is something which Widdicombe must take into account. I prepared an amendment which sought to achieve that, but after discussion and on reflection it seemed to me that it was much too late in the proceedings to introduce into this Bill such a widening amendment, because it would mean great consultation throughout the whole range of government and there really was not time for that. But I think it is an important point.
The key to this is that the ratepayer must have quicker access to deal with any breaking of the law by a local authority using ratepayers' money than waiting for the auditor next to do the audit. That is not necessarily so in every case, but some cases are more urgent than others and this general area of political publicity is an urgent one and it has to be dealt with immediately rather than waiting for several months, which is what I expanded on at the other stage of this Bill.
So what comes out of this is that this amendment, if it does not appeal to your Lordships as it stands—though I should like to think that it might—is something about which I hope my noble friends on the Front Bench will give me two assurances. One is that Widdicombe will be formally invited, if that is not automatically part of the Widdicombe Committee's affairs, to study carefully all the reports of the proceedings on this Bill through your Lordships' House, with particular reference to the amendments on the subject which we have under discussion at the moment. That is the first point.
The second point is that I noted that the noble Baroness said she thought Widdicombe would be reporting soon. I hope that that is true and it would be nice to have some reassurance on that. But, above everything, I do not think the matter should be left to get dusty in some cupboard and, when Widdicombe has reported and has convinced your Lordships as a whole that it has properly tackled the problem that we currently have under discussion, I hope that the Government will give an undertaking that if they get a recommendation on these lines from Widdicombe they will take care to bring forward legislation, at least within the next Session, in order to tidy up this process completely before much more time is lost. If it would be possible for my noble friend to give that sort of reassurance, I should be very happy that the noble and learned Lord's amendment had achieved all that it was reasonable for us to expect it to achieve at this stage.
Lord Winstanley: My Lords, I am grateful to the noble and learned Lord, Lord Denning, for bringing forward this new clause, because I believe that it points to what I regard as glaring omissions in the Bill as it now stands. When I first read the original Bill—and I
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read it without very great satisfaction—I looked in vain for the sanctions. All manner of things were declared unlawful and I wondered what were the sanctions. But I could not find any and I think that the noble and learned Lord is right to draw attention to that.
I think that the noble Lord, Lord Mottistone, said that he agreed with a tiny bit of what the noble Baroness, Lady David, said. Perhaps I should say that I agree wholly with the noble Baroness, Lady David, and that I agree with a little bit of what the noble Lord, Lord Mottistone, said. He recommended that we ought to wait for Widdicombe. I understand that Widdicombe will be dealing with these matters and I hope that when the committee reports on them the Government will take its recommendations on board. I am bound to say that the Government have not hitherto been wholly faithful in their adherence or attachment to the recommendations of Widdicombe, but on this matter they should consider them very seriously.
Before I sit down I should like to make another point. The noble Lord, Lord Sandford, in his comments on various other amendments, pointed to what I regard as one of the great dangers with regard to this Bill. The noble and learned Lord's amendment is related to enforcement. I do not think I need tell the noble Lord, Lord Elton, that I am not entirely happy about what is being enforced. Nevertheless, if certain matters are declared unlawful then there has to be some kind of sanction and some kind of enforcement.
The noble Lord, Lord Sandford, said that one of his fears about this Bill was that it would rightly stop certain local authorities from doing things which were improper, which they should not be doing and which will become unlawful, but that it might very well stop certain other local authorities from doing things which each and every one of us believes they ought to do. While the law remains uncertain, there is a danger that local authorities may be reluctant to do certain things which we would all like to see them doing. Therefore, the sooner there is some satisfactory method of having specific matters tested in the courts, so that local government knows precisely where it stands, the better. I think I agree with the noble Baroness, Lady David, that perhaps this is not the method by which to do it, but it must be done sooner or later and I prefer it to be done according to the recommendations of Widdicombe when they come forward.
3.30 p.m.
Lord Campbell of Alloway: My Lords, on Second Reading I raised three questions which, within the structure of Part II of the Bill, affected prohibition and enforcement, which of course interact. Of these questions, reimbursement in Clause 2 proceedings is the only remaining one. Already on Report it has received attention in the debate on the amendment of my noble friend Lord Mottistone, which was withdrawn. In its stead the noble and learned Lord, Lord Denning, has moved a workmanlike proposal free from any drafting objection which has the merit of total simplicity and intelligibility.
The new clause is designed to perfect the enforce-ment procedures, to fill the gap which was noticed by

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the noble Lord, Lord Winstanley, and to which he has just referred, in a logical, reasonable and appropriate manner having regard to the limited scope of prohibition: the test of apparent design only. A clause without hint of punitive provision notwithstanding that breach of the prohibition involves disregard not only of the codes of guidance, which have no legal effect, but also of the mandatory safeguards of Clause 2(2), which have full legal efficacy.
I support the spirit of the amendment, as I supported the spirit of the amendment of my noble friend Lord Mottistone. An amendment of the noble and learned Lord, Lord Denning, when moved by him, has a quality of compelling logic, as one would expect from a master of the legal art. However, having studied with care the three short speeches of my noble and learned friend the Lord Advocate at cols. 729 and 731 of the Official Report, there is a clear countervailing argument in which he raised three distinct objections.
Until my noble and learned friend spoke on Report, the attitude of the Government was not known. It is entirely due to the initiative of my noble friend Lord Mottistone that we no longer gaze into the crystal ball only to discern the dim shadow of a sphinx, for now it appears that the tripartite objection is as follows. First, it would be wrong to import a new dimension of liability into the relationship between local government and central government without prior consultation. That was the first point made by the noble Baroness, Lady David.
Secondly, although the surcharge machinery has to all intents and purposes in any relevant sense stood idle, nonetheless it has been kept in mothballs and can be brought into action albeit at one remove by the district auditor in a tardy and somewhat cumbersome fashion—a proposition questioned on the authority of no less than the noble and learned Lord, Lord Denning. Then there was a third objection which again was taken by the noble Baroness, Lady David, in her speech just now. It was that before any decision was taken the Government would wish to consider Widdicombe Part II, no doubt in consultation with the local authorities and in the light of experience.
Surely it has to be recognised that the spirit of this amendment, if put to a Division, could well evaporate in contact with the countervailing argument. An argument which is a matter of political judgment urges cautious restraint in a very sensitive area. As I understand the position, the Government do not say and will not say that the amendment is wrong in principle. What I understand they do say and will say is, "Give us time to consider whether it is right in principle and broadly acceptable". If some such assurance were given along the lines suggested by my noble friend Lord Mottistone, the fons et origo of this important discussion, neither my noble friend Lord Mottistone nor the noble and learned Lord, Lord Denning—nor indeed any of us who has spoken on this matter—will have toiled in vain.
Lord Orr-Ewing: My Lords, I should like to give support to the amendment moved by the noble and learned Lord, Lord Denning. Later, perhaps, I should like to draw attention to other imperfections in the Bill
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where, if the House does not make amendments, it will have failed to do its duty.
As we are constantly reminded, this Bill is a small bite as a result of the Widdicombe interim report. I should like to be absolutely certain in my mind—and I hope that the Front Bench will be able to reassure me—that the full Widdicombe Report will be seen fairly soon. We should like to have a date. I want to be sure that the Government are going to find time in the legislative programme of the next Session to bring in those parts of the main Widdicombe Report which they believe are necessary, and possibly at the same time to patch and stop any holes which have been found in the existing Bill.
I cannot help feeling that no Act of Parliament is perfect and none is effective unless there are built-in sanctions. Here I go along absolutely with the noble Lord, Lord Winstanley. I was hopeful that the Liberal and Alliance Benches were going to give solid support to the Government. But then, of course, there was a little backing down—"There is a tiny bit we like, but we like mainly what the Opposition said". That is what their votes always do in this Parliament. I support the noble Lord's idea of sanctions, and I wish he had endorsed it more forcefully. The sanctions must be relatively quick, they must be effective, they must be fair and they must be relatively cheap. Sanctions are really useless—we had some examples quoted from the Front Bench—if they are slow, ponderous, complicated and of such heinous cost that no citizen can afford redress.
Lord Winstanley: My Lords, I am most grateful to the noble Lord for giving way. The noble Lord quoted me, and he referred to the fact that he hoped that noble Lords on these Benches would be supporting the Government on this amendment. This is not a Government amendment. We have not yet heard the Government's attitude.
Lord Orr-Ewing: My Lords, I did not feel that the noble Lord was wholeheartedly behind the points made from these Benches. I was disappointed that the noble Baroness, Lady David, who spoke from the Front Bench, had not at last come to say, "Here is a way out". People always plead that this is not the moment. It is a standard recipe. They say that this is not the moment, that this is not the way and that this is not what one ought to do, and they therefore turn it down. One becomes a little frustrated in hoping that the day will come when they say, "Yes; here is a quick, simple and effective way of bringing transgressors to book, and we will support it". It would make a nice change.
We have heard arguments that the district auditor or the independent auditor should do this. I was glad that the noble and learned Lord, Lord Denning, dealt with this point. But as the noble and learned Lord rightly said that is at least one and a half or two years away, and, meanwhile, the publicity and the costs go on accruing. We were also told that the Ombudsman might look at these matters. The local government Ombudsman is responsible for maladministration. There have been cases of maladministration and the misuse of moneys. But as was reported in The Times recently, the House of Commons Select Committee is

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finding that the Ombudsman is being totally disregarded by local government. This has not proved a way out at all, so that is also a dead duck.
Finally, at Report stage we were asking our noble and learned friend the Lord Advocate how many times the existing law as set down in Section 19 of the 1982 Act had been used during the past four years. The answer was, twice—and in neither case had it been effective. So surely the 1982 Act is not a matter that can be put right, and this amendment seems to me to be a way of dealing with the matter acceptably.
I hope that democrats in all parts of the House will support this amendment in spirit. I hope also that the formula that my noble friend Lord Mottistone so rightly, sensibly and moderately put forward is one that will commend itself to the Government. Unless we do something of this kind, I am afraid that those people who are trying to make a nonsense of government and who are disregarding the wishes of the majority of their ratepayers—and who, above all, are disregarding their ratepayers' purses—will not be brought to book under the present legislation.
Lord Sandford: My Lords, I hope that my noble friend will firmly resist this amendment for all the reasons that the noble Baroness, Lady David, gave—but most particularly, for the reason that it is a matter upon which the main Widdicombe Committee has yet to report.
Lord Elton: My Lords, I start by commending my noble friend on his brevity. The noble and learned Lord, Lord Denning, has proposed with his usual brevity and clarity an amendment that is intended to bring closer to the hand of the private citizen a remedy when the terms of Part II of the Act are broken. I see the attraction of giving to the ordinary ratepayer a recourse to the courts when he feels that those who collect his money to pay for local government use it for other purposes that may not be in his interest at all. It is clear that there is some sympathy with that view all around the House.
That principle is not a new one. As my noble and learned friend the Lord Advocate reminded the House at the last stage of this Bill, and as the noble and learned Lord, Lord Denning, himself reminded us a moment ago, Section 19 of the Local Government Finance Act 1982 already provides a route by which a local government elector aggrieved in that way can seek redress from the court. However, as my noble friends have also reminded the House, that route is a rather different and longer route, because the ratepayer may not embark upon it until the auditor has had an opportunity to make the challenge and has decided not to make it. It is, as it were, a ratepayer's default power and therefore lacks the directness of that which the noble and learned Lord now proposes—although it does of course lead eventually to possible surcharge and disqualification.
As well as that, there is the route of judicial review, but the court cannot in such cases order repayment. The noble and learned Lord pointed out that the provision in Section 19 would not bite on offending councils and councillors if there was no item of account into which to sink its teeth. Having heard the
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noble and learned Lord say that, I was a little puzzled then to look at subsection (2) of his proposed new clause, to see what the teeth of the High Court were to do, and to find that:
"On any such application, the High Court may order that any person responsible for incurring or authorising any expenditure on such unlawful publication shall repay it in whole or in part to the local authority concerned".
That seems to me to be precisely the same juicy lump of flesh into which the noble and learned Lord is suggesting that his amendment should sink its teeth—and if it is not there in the one case, then of course it will not be in the other.
If the existing law is narrower than that which the amendment proposes, then it is in another sense a great deal wider. That is because the noble and learned Lord's proposal relates only to expenditure on the publication of material contrary to the provisions in the Bill, whereas the provision in the existing statute can be used against expenditure that is contrary to law in any respect and covers the whole gamut of council activity. In that respect the noble and learned Lord's proposal is much more limited in its approach than both the existing law and judicial review, which can of course bear on any decision questionable at law. The amendment gives a quicker recourse for the private individual but on a very much narrower front.
At this point we need to pause for a moment and lift our eyes from detailed scrutiny of the Bill before us, to consider the context within which it is being enacted. That context is a regrettable decline in the observance by some local authorities of the canons of behaviour that most of us had taken for granted for more than a generation.
Part II of the Bill addresses an aspect of that decline that has excited particular concern and criticism, and upon which there was considerable pressure to legislate. It is a narrow aspect, and our proposals are similarly narrow. The conduct with which we are concerned relates to publicity, and it is to publicity that our proposals are addressed. It is perfectly proper that the noble and learned Lord's amendment is addressed to that same narrow subject, and that the remedy he proposes for the aggrieved ratepayer is a remedy only against a breach of the constraints set down in the Bill on publicity and expenditure upon it.
3.45 p.m.
However, the conventions that used to bind all local authorities, and which some local authorities now consistently breach, go far beyond publicity. It is true that Widdicombe reported first upon publicity—and this Bill is one of the fruits of his early labours. However, that report was an interim report, and there is another to follow that covers much wider ground. It will touch on many activities other than publicity, and many of those acitivities will involve some form of expenditure. In those cases, too, the proper recourse for an individual aggrieved by improper conduct is more than likely to be a challenge in the courts to the improper expenditure that resulted from it.
It seems to me that in that case, the proper course for us to follow would not be to deal with improper expenditure piecemeal—as the noble Baroness, Lady David, suggested we should not—according to the type of activity on which the expenditure was incurred, but

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across the board, as is now the case with both Section 19 and judicial review. That is something it is not possible for us to do in this Bill with its limited purpose. That would be to tackle a large issue piecemeal. Here I am glad to find myself in the unfamiliar position of being on common ground with the noble Baroness opposite, and in the rather less unfamiliar position of being on the same ground as my noble friend behind me.
Even if it were proper to do that, I do not believe that it would be right to do so until we were able to see, consider and react to the main Widdicombe Report later this year. Our position is as my noble friend Lord Campbell of Alloway has suggested, and I much regret therefore that I have to tell my noble friend Lord Orr-Ewing that in that context, the hackneyed government response that he has heard so often from this Dispatch Box, regardless of which Minister or indeed which party has been behind it, is the right one; and that this is neither the right time to take such action nor the right Bill.
The main Widdicombe Report will in great part be a response to the anxiety that we have expressed about accountability for decision-making in local authorities. It will be very necessary for us to consider it before we decide how and by whom the decision-makers shall be held to account, and what penalties they shall suffer when they are found to have abused their responsibilities. The noble and learned Lord will therefore realise that I do not consider that it would be appropriate to press his amendment at this stage.
In case I have not persuaded the noble and learned Lord of that, I briefly remind him that Part II applies not only in England but also in Scotland. I am sure that this is an unnecessary reminder, but the legal machinery devised in this amendment does not fit into or take account of the differences between English and Scottish law and procedure. Thus, jurisdiction to hear an application by a Scottish ratepayer would lie with the Court of Session and not with the High Court, while Scottish procedure would require an application for declarator and interdict and not a declaration and an injunction. The amendment as presently framed would therefore have no effect in Scotland, but I am sure that the noble and learned Lord was aware of that point and was about to tell me that it would be our job to put that right, if he were to proceed.
Lord Denning: My Lords, I should like to thank all noble Baronesses and noble Lords for their contributions. I am sure that they will be most useful to Mr. Widdicombe and his committee when they have to consider this matter. I should just like to round this off—
Lord Mottistone: My Lords—
Lord Denning:—by quoting what Widdicombe stated at the conclusion of the interim report.
Lord Elton: My Lords, I am in some difficulty. I thought that the noble and learned Lord was merely intervening. He is right in detecting the almost immediate conclusion of my speech, but he anticipated it by a fraction.
Lord Denning: My Lords, I thought that, with Scotland, the Minister had finished.
Lord Elton: One often has, my Lords, but not on this occasion. I was only going to add to my noble friend Lord Mottistone, who wisely and in your Lordships' interest withdrew his own amendment—and I am grateful to him for saving time thereby—that, first of all, I undertake, and repeat my undertaking, that I shall draw to the attention of the Widdicombe Committee the proceedings of your Lordships' House on this Bill and particularly on this amendment.
Secondly, I should say that the timing of the report is, of course, a matter for the committee itself, but we understand that it should be presented in May with a view to publication in June. It is a wide-ranging report and the Government will consider very carefully its recommendations and the need for legislation. I cannot at this stage give an undertaking on the timing of any subsequent legislation, but I can assure my noble friends that we are very much seized of their concerns on the need to ensure that when we legislate that legislation actually bites on the offender.
In the meantime, I believe the flavour of the noble and learned Lord's earlier remarks—in a sense, I am intervening in his speech—suggests that I am right in believing that he considers it would be premature to put this amendment into the Bill until we have seen the major Widdicombe Report.
Lord Denning: My Lords, I am sorry I intervened too soon. I was about to refer to a very important passage in the Widdicombe Report, at paragraph 243. It states:
"We are very conscious that the main part of our work lies ahead. One of the questions we shall have to consider in our Main Report is the rights of the public to challenge local authority activities and decisions. This is a wide issue on which we have already asked for views from the local authority associations, the local Ombudsman, the Audit Commission and others concerned. At that time we shall be looking to ensure that the citizen has a prompt, effective, inexpensive and local remedy for dealing with complaints about local authorities".
There it is. I welcome the assurance and the contemplation; the fact that my noble friend expects the main report in May, which is very good, and that in June we shall be getting it. I welcome very much the assurance that when the report is received the Government will act on it promptly. Let us get on with the good work of enforcing the law. In the circumstances, I do not press my amendment and beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 3 [Other restrictions of existing powers]:
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 2:
Page 2, line 34, after ("below") insert ("or by other bodies mentioned in subsection (1C) below;").
The noble Lord said: My Lords, I rise to move Amendment No.2 and to speak to Amendments Nos. 4 and 5 standing in my name and supported, I am glad to say, by the noble Lords, Lord Sandford and Lord Hayter, the noble Baroness, Lady David, and, incidentally, by all the local authority associations. Amendment No. 2 is a paving amendment. Amendment No. 4 refers to England and Wales, and

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Amendment No. 5 refers to Scotland. Therefore, the three amendments belong together.
Last week at the Report stage of the Bill I drew attention to the unsatisfactory way in which Clause 3(1) drastically limits the scope of legitimate local government information and publicity. It does this by removing the words,
"as to local government matters affecting the area",
from Section 142 of the Local Government Act 1972, and substituting the narrower phrase,
"relating to the functions of the authority"—
that authority only.
The noble Lord, Lord Elton, responded to earlier criticisms of this clause when he moved a Government amendment—Amendment No. 6, I believe—which widened the original clause a little by including other local authorities in the area as well as joint boards of local authorities. This step is to be welcomed, but in our opinion it does not go quite far enough.
On Report I argued (reported at col. 739 of Hansard for 13th March) that the subsection should be extended to cover the work of public bodies and government departments. I was pleased that the noble Lord, Lord Elton, did not immediately refute my point when he replied and instead suggested (at col. 741) that I should raise the matter on Third Reading. I am now following that advice and urging this amendment on him.
I should tell the House that the amendment has been drafted by the legal advisers to one of the local authority associations. I believe that it enables us to make a better job of Clause 3(1). Incidentally, we have had very little time since Report to get our amendments drafted and printed, and virtually no time for them to be widely circulated and made available to other noble Lords who might be interested. I should like to register my protest on that point. Even so, I believe that the amendment is technically correct. If I am wrong, the noble Lord will correct me.
The effect of the amendment is to add to Clause 3 a group of public utilities, plus the health authorities and the postal and telephone services. The statutory undertakers mentioned in the amendment, and defined in the Town and Country Planning Act 1971 and its Scottish equivalent, are mainly transport operations on road, water, railway or tramway, together with the relevant docks and harbours and the main public utilities; that is, gas, electricity and the water supply. Incidentally, on Report (at col. 738) the noble Lord, Lord Elton, said that sewerage was already covered, but my understanding is that that now comes under the remit of the regional water authority, and the noble Lord might like to clear up that point. In any case, it would be covered under my amendment. The statutory undertakers are those I have already mentioned.
I have striven not to widen this clause one iota more than is strictly necessary for the proper working of local authorities. The noble Lord will note that I have not even included the DHSS in my list of relevant bodies because of an assurance given by him at the bottom of col. 738 where he says:
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"Incidentally, the difficulty which I think the noble Lord, Lord Hayter, put before me of a local authority anxious to assist a voluntary body promoting an advice service for take-up social security is swept up in the list of responsibilities which I have already read out".
I hope that the noble Lord can reaffirm that. I assume it is because such advice services are covered by the aims and objectives of the voluntary bodies concerned. For that reason I did not include social security matters in the amendment, but I would certainly welcome his assurance on that point.
The reason why we should widen this clause a little further than the noble Lord has done is to keep it in line with the powers which local authorities of all parties have used for nearly 40 years. Section 142 of the 1972 Act is based on wording which goes back, as I understand it, to the 1948 Act, and it has enabled districts and county councils, especially in rural areas, to comment on and give information about other public services in their area.
In doing this work local authorities are representing their communities. They are directly responsible to their electors through wards which are often so small that councillors are personally known to most of the voters, and so genuine local democracy is properly taking place. If the local council decides to take a view or to issue information about, for example, the closure of a sub-post office, the state of the rural bus services, developments of local hospitals, or the electrification of a railway line, it has up to now been able to do so. For example, the electrification of the Tonbridge to Hastings line was achieved, I understand, largely as a result of a local authority campaign which would be banned by the Bill as it now stands.
Conservative authorities, no less than Alliance and Labour authorities, have made good and sensible use of these powers. Why should they be taken away just because a few maverick councils abuse Section 142 with publicity campaigns about defence and foreign affairs?
4 p.m.
This amendment is expressly and tightly drafted to rule out the abuse which was rightly condemned by the noble Lord, Lord Elton, where he deplored:
"the spectacle of London boroughs pursuing their own defence and foreign policies on the hoardings in their streets".—[Official Report, 17/3/86; col. 736.]
At the bottom of the same column the noble Lord ridiculed—quite rightly, in my view—the idea that local authorities should spend public money as if they had the powers to make treaties or declare war. We agree with him, but it is one thing to try to stop that abuse which goes well beyond what we all understand to be the concerns of local government; it is quite another to place restrictions on local government information work which may completely alter its role as a voice for the community on genuinely local affairs.
In our view, it is not right to make such a fundamental change to rights and procedures which have existed since 1948 under the guise of a Bill dealing with recent and rather special exceptions to the standards which most local authorities have always adopted in their publicity work. We are being asked to throw out the baby with the dirty bath water.
I should like to conclude with a reference to Widdicombe. On page 8 the report specifically agrees with the proposition that
"local government is more than the sum of the particular services provided".
As your Lordships are well aware, Widdicombe rejected the idea of narrowing Section 142, and in that respect Mr. Widdicombe and his committee were only repeating the view advanced by the Bains Report as long ago as 1972, when it said:
"Local authorities have a firm duty to inform the community of their activities and to put the council's view on matters of concern to that community".
We should not go back on that view in this Bill.
In my submission this amendment improves the text of the Bill; it widens its scope to cover traditional matters of local government concern, without thereby permitting excesses and abuses which are now outlawed under Clause 2 of the Bill. It certainly does not drive a coach and horses through the clause. At Report stage the noble Lord, Lord Sandford, said that we were being offered something between a third and a quarter of the loaf. I should say that on that scale this amendment presses for half a loaf. We think that is a very reasonable proportion of the loaf to request from the noble Lord, and on those grounds I commend the amendment to your Lordships' House. I beg to move.
Lord Sandford: My Lords, I should like to support this amendment. In fact, my name is on the Marshalled List. Before speaking to the amendment, however, I should like to say, in agreement with the noble Lord, Lord Kilmarnock, that I think it was a mistake for the House to have agreed to the foreshortening of the normal time that should elapse between the Report stage and the Third Reading of a Bill of this kind.
Amendments Nos. 2, 4 and 5 ought not to have been put down yesterday for the department to consider and deal with in less than 24 hours. They are amendments which ought to have been discussed with my noble friend, so that, if possible, one could arrive at a satisfactory compromise. It is only the lack of time that has made that impractical. I think that is something which this House will want to guard against in the future.
To return to Clause 3, this, as the House will remember, deals with Section 142 of the 1972 Act. The Widdicombe Committee proposed quite categorically that Section 142 of the 1972 Act should be left unchanged, and it went on to argue closely the reasons which were put to it for either narrowing or widening its scope. That is the conclusion to which it came.
My noble friend spent considerable time at the Committee and Report stages of this Bill explaining that the Government have taken a different view. I think that he has been rather short on explanations as to why the Government have taken a different view. Certainly the changed circumstances since the Widdicombe Committee report would have led most people to the conclusion that it was not necessary to be as rigorous now as might have been thought to be the case last July, but we do not need to go over all that again.
As the noble Lord, Lord Kilmarnock, has clearly set out, this amendment is an attempt to widen the scope
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of the publicity which the Bill now allows in respect of a whole number of issues which hitherto have been thought to be the perfectly normal concern of all local authorities. These are matters about which they normally issue publicity either in support or in criticism of what the statutory undertakers and others listed in this clause are going to do.
I should like to give your Lordships a few examples. Who would have thought that it was at all out of the way or extraordinary that the Cumbrian County Council and the Eden District Council should engage in publicity, as indeed they are doing, against the closure of the Settle-Carlisle railway line? Who would have thought it improper and regarded it as out of the ordinary if the borough council of Wolverhampton publicised, perhaps in support of it, something which the British Waterways was doing in connection with the canal which passes through that borough? Surely it would be quite unreasonable for the city of Northampton to say nothing about where British Telecom intended to put a number of new call boxes in one of its suburban areas. Why on earth should the Suffolk County Council not engage in publicity perhaps in criticism of what the Anglian Water Authority was doing about the banks of the river Orwell?
All these actions are perfectly normal, but without this amendment they would be excluded from those matters about which local authorities can engage in publicity. For those reasons and many others like them which I need not mention, I urge this amendment on my noble friend.
Lord Mottistone: My Lords, I also should like to support this amendment and to continue from where my noble friend Lord Sandford has just ended. My noble friend the Minister very splendidly put down Amendment No. 6 at Report stage, and it was accepted by your Lordships. It gave effect to his undertaking to pay regard to my amendment, Amendment No. 13, at the Committee stage.
My amendment had greater wideness, if that is the word. It did not cover these authorities, but perhaps that was an oversight rather than anything else. However, it did speak about voluntary bodies and charities. In his remarks on Amendment No. 6 at Report stage (which I should have picked up at the time) my noble friend did not give me any reassurance, and I did not call for it, as to whether voluntary bodies and charities were automatically encompassed within Section 142, as amended by what is now subsection (2) of Clause 3 of this Bill. It would be helpful to have that reassurance.
The splendid examples which my noble friend Lord Sandford gave of the actions which may be in jeopardy if the amendment is not passed could be widened to cover various forms of charities and voluntary bodies which are respectable. I should be grateful if my noble friend the Minister, when he comes to reply, could reassure me that the matters that were originally in my Amendment No. 13 at Committee stage are fully taken care of by the Bill as it stands at the moment.
Lord Campbell of Alloway: My Lords, I should like to oppose the amendment. It is not readily understood why the general powers to provide information should

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be extended beyond the scope of existing powers as proposed in this set of amendments, Amendments Nos. 2, 4 and 5, to statutory undertakers, health authorities, the Post Office and British Telecom. By concession, the noble Lord, Lord Kilmarnock, says that the object is (and this is at col. 739 of Hansard, to which he referred) to enable a voice to be heard on matters which are not strictly related to their functions. How can it be necessary to the proper working of local authorities that their voice should be heard on matters which, by concession, are not strictly related to their functions? The examples given by my noble friend Lord Sandford do not, with respect, quite seem to meet the point in a Bill which is concerned with a prohibition. Any extension of general powers to provide information must inevitably offer some indirect means of getting round the prohibition.
My noble and learned friend the Lord Advocate, albeit in another context, referred to this danger at col. 712 on Report: a prohibition which, let us face it, is narrowly defined and cannot bite even where the publication may affect or is likely to affect, or, indeed, has affected, public support for a political party, unless on objective analysis the material appears to be designed to affect such support. For this is the sole test. The alternative route to prohibition, and the intendment of this Bill as a whole, was bound by the excision of the second limb of Clause 2(1). Furthermore, there are the safeguard provisions of Clause 2(2), which again protect the local authority from undue restraint as regards the provision of information. This, again, was confirmed by my noble and learned friend the Lord Advocate on Report at col. 722.
Surely this amendment, if included in the Bill, would carry into a safe area of activity the possibility—I put it no higher, and surely that is enough—of activities which could otherwise fall within the prohibition, some of which would appear to lie more properly within the area of central government. As the whole intendment of the Bill, and in particular Part II, is to prevent abuse of ratepayers' money for political purposes—an abuse indulged in by only a handful of local authorities, as my noble friend Lord Elton has emphasised on more than one occasion—general legislation has to be introduced.
In considering the merits of this amendment, surely one has to have regard to the way in which the proposed extension would put power in the hands of local authorities, and one has to have regard to the way in which this would be used or abused by the minority, and not by the majority. This is no doubt unfortunate, but it is a fact of life. We have to face up to it in the circumstances in which we now live.
One has to bear in mind that the safeguard provisions in Clause 2(2) have been very substantially enhanced by the excision of the second limb of Clause 2(1), as my noble friend the Lord Advocate also confirmed on Report. This, in conjunction with the limited prohibition in Clause 2(1) as it now stands, I respectfully suggest to those who think otherwise does show that there really is no need for this amendment, and that it could open the door to the possibility of abuse by indirect means. We just cannot afford to take that risk.
4.15 p.m.
Baroness David: My Lords, I should like very briefly to express my support for this amendment. My name is set down to it. I think the noble Lord, Lord Sandford, put the case admirably. He expressed the broader view of local government, and the noble Lord, Lord Campbell, the narrower view of what local authorities can do.
I should also like to say that the Minister almost invited this amendment on Report from a speech made by the noble Lord, Lord Kilmarnock, and, indeed, a speech that I myself made, so I hope he is getting ready to accept it!
Lord Elton: My Lords, the noble Baroness has ignored the context of my speech, as sometimes she is tempted to ignore the context of the Bill. I was inviting the noble Lord, Lord Kilmarnock, to consider that his ambition of amending this part of the Bill could not be satisfied if he assisted in removing it from the Bill altogether. I thought thereby that by cold logic and a warm human sympathetic approach combined I would persuade him to vote for the Government in the Lobbies but I failed. However, having failed to get his cake in one direction he is trying to eat it in another.
I recognise that the time available for the drafting, printing and indeed consideration and discussion of these amendments has been limited. I would say to the noble Lord, Lord Kilmarnock, that since he made a formal protest I take it he was speaking as his party's Chief Whip. I did understand that he had been notified of the proposal 14 days in advance, and I was not aware that this was something that gave him concern. If I am incorrect in that, I am merely trespassing on the normal channels, where no unsanctified feet of a non-Whip belong and I apologise.
The amendment of the noble Lord, Lord Kilmarnock, seeks to amend that part of the Bill which, in turn, seeks to amend two other Acts; that is to say, the Local Government Act 1972 in Section 142, and the Local Government (Scotland) Act in Section 88. The purpose of the amendments proposed in the Bill as now drafted—and it is difficult because I am referring to amendments that are actually in print as part of the Bill because they are proposed to amend another Act—is to narrow the description of permitted expenditure on publicity to expenditure on publicity which relates to the functions of local authorities and the services provided by them. In our original drafting this description was so drawn as to limit the expenditure to publicity about the authorities' own functions and services.
In response to much anxious pressure from within the House and elsewhere, we widened that drafting to include the functions and services of all tiers of local government so that an authority at any level could publicise its own functions and services and also the services of the relevant authority at every other level of local government in their area. Your Lordships felt at first that this was a step in the right direction, but a very small one. I hope that my reply to that debate, and the list of powers to which I was able to refer as giving authorities a right to give publicity about them, did something to reassure your Lordships that it was, in fact, rather a larger step than had at first been supposed.

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At this point, may I confirm to the noble Lord, Lord Kilmarnock, that social security and welfare benefits are government department services and are therefore covered by Section 142(1). An authority may accordingly make or assist in the making of arrangements for information about benefits to be available on application; for example, at an advice centre. That was the specific confirmation that he wanted, and I am glad to give it.
The noble Lord now proposes to make that step a good deal larger still, and to give to local authorities a right to spend money on publicity about services provided by organisations which, for the most part, have fairly considerable publicity accounts of their own. His amendments attempt to attract the definitions in Section 290(1) of the Town and Country Planning Act 1971 and the equivalent Scottish provision of statutory undertakers. These cover those authorised by statute to provide railway, light railway and tramway services; all road transport services, freight as well as passenger; water transport, canal, dock, harbour, pier or lighthouse undertakings; and suppliers of gas, electricity, hydraulic power and water. Apart from these, the noble Lord wishes to bring in health authorities, postal services and other services provided by the Post Office, and also services provided by British Telecom.
We doubt the necessity or the wisdom of that. It is not just the Government who have those doubts. There are the doubts of the Widdicombe Committee itself. As I emphasised at Report stage, the Widdicombe inquiry did not consider that local authorities should be permitted to publish
"any material that was in the interests of the area even if it did not relate to local government".
The committee was very firm on this point. It went on to say that having
"agreed that local government is more than the sum of the services it provides, it does not follow as a natural consequence that publicity powers should be widened in this way".
I accept, of course, that Widdicombe's conclusion, as my noble friend Lord Sandford and the noble Lord, Lord Kilmarnock, were quick to remind us, was that the protection that we seek could be achieved without a change in the existing law. But that appears to me to result from the fact that Widdicombe's interpretation of the law coincides with our interpretation of what was the intention of Parliament when the law was made, but did not recognise the much wider interpretation of that law by local authorities that has resulted in the abuses that we now seek to check. Whether I am right or wrong in that inference or assumption, the fact remains that we have studied, with an intensity sharpened by the interest of the present Parliament, how the protection could be achieved without amending the law so as to ensure an interpretation narrower than that now current in some quarters.
I have to tell your Lordships that we have come to the conclusion that it cannot be done. That is the short but, I think, sufficient answer to the concern of my noble friend Lord Sandford as to our reasons for differing from Widdicombe about the need to change the law. An amendment is therefore required along the lines of the one that the noble Lord, Lord Kilmarnock, now asks your Lordships to alter.
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The result of what we propose is no strait jacket in view of the considerable extent of the authorities' existing powers and the services that they provide. I had intended to add something at this point, but I do not know what it was. It was labelled "C". No doubt the noble Lord who does not receive an answer will remind me when I come to sit down. We need therefore to consider what it is that the noble Lord now asks us to do to loosen this jacket that is not a strait-jacket. The list that I read out a moment ago of the bodies embraced by these amendments would apply where local authorities did not have any relevant functions. The amendments seek something aproaching a general competence for local authorities but by another name. They go well beyond what we believe to be the original intentions of Section 142 and beyond any reasonable definition of local government matters.
The noble Lord, Lord Kilmarnock, raised the matter of sewerage, saying that this would not be covered as it goes to a water authority and is that authority's function. Certainly, sewerage is a function of a water authority. But local authorities can comment on sewerage and sewage disposal matters when these involve their environmental health function, as inevitably they will, and also, where appropriate, in relation to their carrying out of sewerage works, such as repairs and replacements, as agents for the water authorities.
I turn now to the cogently put interpretation of my noble friend Lord Campbell of Alloway, when he set out for your Lordships the general effects of what these amendments propose. I should like to focus on them a little closer. I would say to my noble friend Lord Sandford that, although the Bill would not permit a local authority to carry out an advertising campaign about a proposed rail closure or about the treatment of the banks of a river, there is no reason whatever under the Bill why an authority should not lobby British Rail about such a closure in the traditional way. But, as Widdicombe rightly said, publicity and the dissemination of information are quite different from lobbying. We have no intention of intervening in the lobbying function.
To turn back, if I may, to what my noble friend Lord Campbell of Alloway said, I should like to focus on the unlooked-for results of the amendments. A specific effect of the amendments in the area most directly concerned with this part of the Bill, with which your Lordships are also concerned, would be to permit every local authority, provided it refrained from references to political parties and so on, to campaign either in the near future against, for instance, the privatisation of British Gas, in which they might have the support of noble Lords opposite, although mistakenly, or, in some more remote and questionable future, against a possible proposal by central government to renationalise British Telecom, which would infuriate them.
Noble Lords could find themselves on either side of these debates. But they will surely be able to agree that they are not activities on which local authorities should properly spend public money. I am making a mess of this, because I wanted now to wind up. I have, however, found what I wished to say in response to my noble friend Lord Mottistone. He asked me whether voluntary bodies would be automatically

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encompassed. Under Section 142(1), local authorities may still make arrangements for information about the services provided by charities and voluntary organisations to be made available on application. On the other hand, the new subsection (1A) only allows the local authority to arrange for the publication of information as to the services provided by the bodies in the new subsection (1B). I hope that this has given my noble friend the reassurance that he wants.
Not only have I tried to show, perhaps in not so cogent a way as I would have wished, that the areas in which local authorities may use their funds to publicise, to make matters public, are wider than your Lordships supposed at the beginning of Report by reason of the list that I then gave—a list that is far from complete and parts of which I have reaffirmed today—but I have also shown your Lordships, in the able company of my noble friend Lord Campbell of Alloway, that if you were so to enlarge the permission in the Act to publicise matters you would actually be opening a very wide gate through which the abuses that the whole of this Bill is about would freely range. I hope that your Lordships will not accept the amendment.
Lord Kilmarnock: My Lords, I am grateful to the noble Lord, Lord Elton, for his thorough response to the amendment. I am also grateful to the noble Lords, Lord Sandford and Lord Mottistone, who supported it. The noble Lord, Lord Sandford, from the great background of his knowledge, gave some much more concrete instances of legitimate activities which local authorities would be inhibited from carrying on if this amendment was not passed. I think that was a very useful contribution to the debate.
The noble Lord, Lord Campbell of Alloway—in the words of the noble Lord, Lord Elton—made a cogent intervention, as he always does. But I am not quite sure whether the cogency leads one to the conclusion which he drew. The noble Lord said that local authorities would be protected for legitimate campaigns under Clause 2(2); but if a campaign is already prohibited under Clause 3 it can hardly claim protection under Clause 2.
The other thrust of his speech was that this amendment would be giving a handle to the bad boys, the mavericks—the 13 authorities who abused their position—by whatever name one chooses to call them. However, I pointed out in my opening speech that the amendment is extremely tightly drafted and Clause 2(1) in the Bill bites on all types of information which are improperly put over with a political gloss on them so that the "bad boys" would already be caught by that clause.
I was grateful to the noble Lord, Lord Elton, for confirming that information on social security is covered, although I think he said that it was covered only if it was available at an advice centre, and that cast some doubt as to whether it could be pushed out in a wider form.
The noble Lord, Lord Elton, also said that Widdicombe did not push for any widening of the powers. The point is that Widdicombe was considering two options, one of narrowing Section
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142; and the other of widening it. What they rejected was widening Section 142, not widening the Bill as it now stands. That is a rather important point. They went straight down the middle and said, "No, we should not narrow Section 142 and nor should we widen it". This amendment is well within the existing limits of Section 142.
I also think it reasonable to take exception to the assertion of the noble Lord, Lord Elton, that such matters as the siting of post-boxes in a village, or closing of a rural post office, or the management of a waterway or a canal which is an important local amenity, are not matters of proper concern for a local authority. I should have thought that they were pre-eminently so.
On privatisation of British Gas or the renationalisation of British Telecom—if either of those events should ever come about—I should have thought that any improper political publicity paid for out of ratepayers' money is already well catered for and well covered under Clause 2 of the Bill.
On all those grounds, although I am grateful to the noble Lord for the attempt he has made, I am not satisfied with it and I shall have to test the opinion of the House.
4.34 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided; Contents, 103; Not-Contents, 146.

DIVISION NO. 1

CONTENTS

Airedale, L.

Hampton, L.

Alport, L.

Hanworth, V.

Amherst, E.

Harris of Greenwich, L.

Ardwick, L.

Hatch of Lusby, L.

Attlee, E.

Hayter, L.

Aylestone, L.

Heycock, L.

Banks, L.

Houghton of Sowerby, L.

Birk, B.

Hunt, L.

Blease, L.

Ilchester, E.

Blyton, L.

Irving of Dartford, L.

Boston of Faversham, L.

Jacques, L.

Bottomley, L.

Jeger, B.

Buckmaster, V.

Jenkins of Putney, L.

Campbell of Eskan, L.

John-Mackie, L.

Caradon, L.

Kagan, L.

Carmichael of Kelvingrove, L.

Kearton, L.

Chitnis, L.

Kilbracken, L.

Cledwyn of Penrhos, L.

Kilmarnock, L. [Teller.]

Collison, L.

Kirkhill, L.

Crawshaw of Aintree, L.

Kissin, L.

David, B.

Leatherland, L.

Davies of Penrhys, L.

Llewelyn-Davies of Hastoe, B.

Dean of Beswick, L.

Lloyd of Kilgerran, L.

Denington, B.

Lockwood, B.

Donaldson of Kingsbridge, L.

Lovell-Davis, L.

Elwyn-Jones, L.

Mackie of Benshie, L.

Ennals, L.

McNair, L.

Ewart-Biggs, B.

Milford, L.

Fisher of Rednal, B.

Mishcon, L.

Flowers, L.

Molloy, L.

Gallacher, L.

Mulley, L.

Galpern, L.

Nicol, B.

Gladwyn, L.

Oram, L.

Glenamara, L.

Parry, L.

Graham of Edmonton, L.

Pitt of Hampstead, L.

Grey, E.

Ponsonby of Shulbrede, L.

891

Rathcreedan, L.

Taylor of Gryfe, L.

Ritchie of Dundee, L.

Taylor of Mansfield, L.

Rochester, L.

Tordoff, L.

Ross of Marnock, L.

Turner of Camden, B.

Sandford, L.

Underhill, L.

Seear, B.

Wallace of Coslany, L.

Sefton of Garston, L.

Walston, L.

Serota, B.

Wedderburn of Charlton, L.

Shackleton, L.

Wells-Pestell, L.

Shepherd, L.

Whaddon, L.

Simon, V.

Wheatley, L.

Stallard, L.

White, B.

Stedman, B. [Teller.]

Wigoder, L.

Stoddart of Swindon, L.

Winchilsea and Nottingham, E.

Strabolgi, L.

Taylor of Blackburn, L.

Winstanley, L.

NOT-CONTENTS

Ailesbury, M.

Hood, V.

Airey of Abingdon, B.

Hooper, B.

Alexander of Tunis, E.

Hunter of Newington, L.

Allerton, L.

Hylton-Foster, B.

Auckland, L.

Inglewood, L.

Beaverbrook, L.

Kimball, L.

Belhaven and Stenton, L.

Kimberley, E.

Beloff, L.

Kinloss, Ly.

Belstead, L.

Kitchener, E.

Birmingham, Bp.

Brabazon of Tara, L.

Lane-Fox, B.

Brentford, V.

Lauderdale, E.

Brougham and Vaux, L.

Lawrence, L.

Broxbourne, L.

Layton, L.

Butterworth, L.

Loch, L.

Caithness, E.

Long, V. [Teller.]

Cameron of Lochbroom, L.

Luke, L.

Campbell of Alloway, L.

Lurgan, L.

Carnegy of Lour, B.

Lyell, L.

Cayzer, L.

McFadzean, L.

Chelwood, L.

Macleod of Borve, B.

Coleraine, L.

Malmesbury, E.

Colville of Culross, V.

Mancroft, L.

Cork and Orrery, E.

Mar, C.

Cottesloe, L.

Marley, L.

Cox, B.

Marshall of Leeds, L.

Craigavon, V.

Massereene and Ferrard, V.

Cullen of Ashbourne, L.

Maude of Stratford-upon-Avon, L.

Davidson, V.

De Freyne, L.

Merrivale, L.

De La Warr, E.

Mersey, V.

Denham, L. [Teller.]

Middleton, L.

Denning, L.

Milverton, L.

Dormer, L.

Montagu of Beaulieu, L.

Drumalbyn, L.

Mottistone, L.

Dundonald, E.

Mowbray and Stourton, L.

Effingham, E.

Norrie, L.

Ellenborough, L.

Nugent of Guildford, L.

Elliot of Harwood, B.

Onslow, E.

Elliott of Morpeth, L.

Orkney, E.

Elton, L.

Orr-Ewing, L.

Erne, E.

Pender, L.

Ferrier, L.

Plummer of St Marylebone, L.

Fortescue, E.

Fraser of Kilmorack, L.

Portland, D.

Gainford, L.

Radnor, E.

Geddes, L.

Renton, L.

Gibson-Watt, L.

Rochdale, V.

Gisborough, L.

Rodney, L.

Glanusk, L.

Romney, E.

Glenarthur, L.

Russell of Liverpool, L.

Gray, L.

St. Aldwyn, E.

Gray of Contin, L.

Saint Levan, L.

Gridley, L.

Saltoun of Abernethy, Ly.

Grimthorpe, L.

Sanderson of Bowden, L.

Hailsham of Saint Marylebone, L.

Selkirk, E.

Sempill, Ly.

Harmar-Nicholls, L.

Shannon, E.

Harvington, L.

Sharples, B.

Headfort, M.

Skelmersdale, L.

Henley, L.

Stockton, E.

Holderness, L.

Stodart of Leaston, L.

Home of the Hirsel, L.

Strathcarron, L.

892

Strathcona and Mount Royal, L.

Trumpington, B.

Vaux of Harrowden, L.

Strathspey, L.

Vickers, B.

Sudeley, L.

Vivian, L.

Swinfen, L.

Waldegrave, L.

Swinton, E.

Ward of Witley, V.

Terrington, L.

Westbury, L.

Teviot, L.

Whitelaw, V.

Thomas of Swynnerton, L.

Wise, L.

Thorneycroft, L.

Wolfson, L.

Torphichen, L.

Wynford, L.

Tranmire, L.

Young of Graffham, L.

Trefgarne, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.43 p.m.
Lord Elton Lord Elton moved Amendment No. 3:
Page 3, line 11, after ("local") insert ("or other such").
The noble Lord said: My Lords, this technical amendment clears up a minor defect in one of our Report stage amendments to Clause 3. Amendment No. 6, passed at Report, provided among other things that under their Section 142 powers local authorities would be able to make available and to publish information as to the services available in their area provided by "other authorities". The amendment explains that what "other authorities" means is defined in the new subsection (1B).
Our intention was that this definition should include all the local authorities set out in Clause 6(2) of the Bill for England and Wales. However, the effect of the difference between that definition and the definition of "local authority" in the 1972 Act is as follows. It prevents local authorities from publishing material under Section 142 about services provided by any authority, board or committee which discharges functions which would otherwise fall to be discharged by two or more joint authorities or ILEA or by a combination of one or more local authorities working with ILEA or a joint authority. That was an unintentional effect, and this amendment puts it right. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 4 and 5 not moved.]
Lord Elton Lord Elton moved Amendment No. 6:
Page 4, line 15, leave out ("refers to") and insert ("means").
The noble Lord said: My Lords, at Committee stage of the Bill the noble Lord, Lord Airedale, was kind enough to propose a clarificatory amendment in Clause 3(2). Clause 3(2) contained a passage explaining that in that subsection the word "publicity" "refers to any communication in whatever form, addressed to the public at large or to a section of the public". The noble Lord's amendment, which the House of course accepted, replaced the words "refers to" with the word to which we are more accustomed, "means".
I explained then that it would be necessary to reflect the change in one of our amendments to Clause 3(2). Now that Clause 3(2) has been amended we need to ensure that the new wording is used in the provisions applying to Scotland as well as those applying to England and Wales. I am happy to suggest that we extend the ameliorating influence of the noble Lord north of the Border, and I beg to move.
On Question, amendment agreed to.
Clause 6 [Interpretation and application of Part II]:
Lord Elton Lord Elton moved Amendment No. 7;
Page 6, line 10, at end insert—
("( ) This Part applies to the Common Council of the City of London as local authority, police authority or port health authority.").
The noble Lord said: My Lords, this amendment to Clause 6 of the Bill is designed to ensure that the publicity provisions of the Bill apply to the Common Council of the City of London when it is acting as a local authority, police authority or port health authority. The treatment we are proposing is one which is fully precedented. The form of words used in the amendment is that used in Section 68(4) of the London Government Act 1963 and again in the Local Government (Prescribed Expenditure) Regulations 1983, Schedule 3, paragraph 11(B). I hope that your Lordships will be satisfied with that precedent, and I beg to move.
Lord Mottistone: My Lords, I may be very dumb but I do not understand why this is necessary in view of the fact that the Common Council of the City of London comes under Clause 6(2)(a) at the top of the page.
Lord Elton: My Lords, I can probably best reply by reading out that part of my brief which I thought I could do without. The Common Council of the City of London is in many ways unique. It is not simply a local authority. It administers considerable private funds and the City's Cash which is of ancient origin. It is empowered to levy a general rate and to administer its rate fund under the London Government Act 1963 in its capacities as local authority, police authority and port health authority. We consider it appropriate that the Bill should therefore apply to the City when it is acting in these latter capacities.
I am not at all sure that that answers my noble friend's question, which is whether the Bill does not already so provide, but I am advised that it does not.
On Question, amendment agreed to.
Lord Elton: My Lords, I beg to move that this Bill do now pass.
It is customary to make a speech at this stage. I do not intend to make it a long one, although your Lordships may provoke me to return to the Dispatch Box in your responses. I ought to start by reminding your Lordships that by far the greater part of this Bill has been agreed by your Lordships without controversy simply because its provisions are so clearly sensible and necessary. It is sensible and necessary, for instance, to insist that councils shall not sell the mortgages they hold without the knowledge and consent of the borrowers who are their mortgagors. The building societies have made it clear to us that they would not act in this way, and it is perfectly reasonable to expect local authorities to conform to the same standards.
It is sensible and necessary also for a council to make its rate before the beginning of the financial year in which the rate has to be paid. It may be surprising and sad that a council should be prepared to submit its ratepayers, and indeed employees, to the uncertainty of facing the year with no rate set, but once it has
894
shown itself capable of that it is up to Parliament to protect the ratepayers and the council's own workforce.
It was also sensible and necessary to see that joint authorities should not after 1st April be left temporarily without members following a local election. I am grateful to all noble Lords on all sides of the House for the way your Lordships have assisted in making these necessary additions to the statute book. That was something that we could do which caused very little difference between us.
There was also very little difference between us on the necessity of doing something about a recent and regrettable change in the nature of local government publicity by some local authorities. Part II of the Bill led to real controversy and deeply divided views, but our differences were more about the prescription than the illness we are trying to cure. None of your Lordships did, and I do not think any one reasonably would, maintain that the political party in control of a council ought to be allowed to use the authority of that council to take money out of its citizens' pockets to spend on its own political campaign.
It may be—indeed it is—surprising and sad that some local political parties have started doing just that but once they have done so my noble friends and I have felt, as have the Government, that it is time for Parliament to put a stop to it. That has also been the view of the great majority of your Lordships on all sides of the House. Our differences were not about that but about the way in which it should be done. In the event your Lordships decided to draw some of the teeth from Clause 2 and we send it back to another place weaker than it came to us. That is a matter for regret.
Your Lordships also differed from us on the final aspects of the Bill which seek to establish a code of good practice for the vast majority of local government publicity which is properly non-political. Here our differences were about the effect of what was proposed rather than about the intention. Your Lordships decided that it should be changed. As I have said, I do not believe in long speeches at this stage of a Bill. We have all of us had our say and it remains my firm opinion that in the part of the Bill that has been in dispute, as well as the rest, the Government have proposed a framework of law which is rendered necessary by circumstances. I believe the abuse we seek to eliminate is real and damaging to the credibility of our institutions of local government and that it cannot be left unchecked.
I am grateful to your Lordships for your co-operation in taking the Bill through its various stages and to the various bodies we consulted and whose advice made it possible to modify Clause 3 to remove what they persuaded us was an unnecessary and harmful limitation on the everyday conduct of publicity by local authorities, particularly at parish level. I beg to move.
Moved, That the Bill do now pass.—[Lord Elton.]
Baroness David: My Lords, there were many reservations expressed from all sides of the House at Second Reading particularly about Part II of the Bill. It has been remarkable how many of the amendments

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moved both at Committee and Report stages had all-party support. That is perhaps not quite so remarkable when one considers that there has been strong opposition to those parts of the Bill from all the local authority associations—the ACC, the AMA, the ADC—as well as from voluntary organisations. We can congratulate ourselves that the Bill is leaving the House in considerably better shape than when it arrived here six weeks ago.
Two very important amendments have been carried to Clause 2 and to Clause 4. By moving others we have persuaded the Government to come forward with amendments which have gone some way towards meeting anxieties expressed, though perhaps not as far as most of us would have wished, with the great exception of some concession to alleviate the fears of those who believe the Bill will inhibit local authority and community relations councils from furthering good race relations and eliminating discrimination. About this my noble friend Lord Underhill, who moved the amendments on this subject, may have something to say.
I believe that in dealing with this hastily produced Bill the House has shown itself at its best as a revising Chamber. I have said that this was a hastily produced Bill. That is evident from the drafting, which is not clear, and the intentions behind the Bill are therefore uncertain and difficult to understand and interpret. I refer to the discussions at Report stage on my amendment to delete Clause 2(2)(b) as an example. Four noble Lords, some of them learned, were not certain whether the subsection was a help or a hindrance. I should like to quote the exchanges between Lord Allen of Abbeydale and the Lord Advocate at that stage. Lord Allen asked:
"have the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Silkin, got it right? Is subsection (b) a protection, and would the removal of it be to the detriment of those concerned?"
The Lord Advocate replied:
"I may respond to that. I think I made it plain that it acts in two particulars. It can be both a safeguard in the circumstances which my noble friend outlined. Of course it is also directed to the other area where what would appear to be innocuous can, when seen in full context, be within the prohibition. It acts in two ways."—[Official Report, 13/3/86: col. 724.]
What in the circumstances are the wretched officers and councillors to make of some of the provisions in the Bill? I had hoped that the noble Lord, Lord Campbell of Alloway, would have come forward with a redrafting of Clause 2 at this stage because he produced a good draft at one moment. But he has chosen not to do so. However, his redrafting and amendments to Clause 4 were extremely successful and very well presented. The fact is, as my noble friend Lord Ardwick said at some stage, that the Government have set themselves a near impossible task in trying to produce a Bill on this subject. As the noble and learned Lord, Lord Denning, said, it is difficult to draw a line beween what is information and what is persuasion of a party political nature. I am sorry for those officers of local authorities who have to interpret this Bill when it is enacted and advise their councillors about whether they are within the law or not. What we fear is that they will feel that they must play for safety and the public will suffer.
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An example of what can happen was brought to my attention yesterday in a letter from the director of finance of Glasgow district council to his chief executive about the statement he had drawn up for inclusion in the rates notices to be issued by the regional council in 1986–87. This statement was similar to many produced in earlier years. I should like to quote from his letter:
"I have just been informed that the region's solicitor, who is now censoring all material published by the region to ensure that it will not contravene the new laws, has refused to pass the three extracts marked on the first page of the enclosed statement…
"The three statements are accurate, straightforward and in no sense party political. I am horrified that they might have caused legal action to be taken against either the regional or district council. I am astounded that my words can be interpreted in such a way as to breach any British law."
Having read the passages to which he refers I certainly agree with him. Let us hope that when the code of practice finally appears it will be a real help and give guidance to those in local government.
I should like to ask the Minister whether he will help with something about the amendments to Clause 3(2), which has turned out to be rather complicated. I am asked by the local authority associations to pose this problem. I do not expect that he will be able to answer today, but I wish to get it on the record and I expect that he will wish to write to me so that I can circulate the letter later.
The recent appeal court judgment in the District Auditor v. Leicester City Council case held that Section 137 was a function of local authorities. Previously local government lawyers had tended to think that it was not. Specifically, the judgment against the council in the Leicester case found that because Section 137 was a function, staff and related costs should be counted against the 2p limit rather than charged to Sections 111 and 112, which allow "incidental", etc., employment for staff and other expenditure. The Government amended Section 137 on Report to make it clear, first, that Section 142 could be used to publicise activities undertaken under Section 137 (in line with a commitment made in another place) and, secondly, that such Section 137-related expenditure under Section 142 should be counted against the 2p limit in Section 137.
The Government's intentions are unclear. The Minister seemed to be arguing at Report that this would faithfully replicate the post-Leicester case situation. This is only true if Section 142 is regarded as an ancillary type power on all fours with Sections 111 and 112. But, if this is the case, the logic of Leicester is that publicity for Section 137 purposes should be undertaken under Section 137 itself; in other words that the Widdicombe recommendation be ignored and publicity issued under Section 137 for Section 137-related expenditure. This is close to what the new passage means. It makes Clause 3(2) say that Section 137 may not be used for publicity, but if Section 142 is used for section 137-related publicity, Section 142 should be treated as though it were Section 137 expenditure.
5 p.m.
I agree that it would be quite impossible to answer this complicated paragraph immediately but I hope

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that when the Minister and his civil servants read it later they will be able to help with clarification. I should like, while we are on Section 127, to ask also if his department will give very serious consideration to upping the 2p limit because, with the districts and boroughs having so many things more to do under this section with the demise of the GLC and the met counties, it is going to be very necessary. Where we are at odds with the Government is in their going so far beyond the recommendations of the Widdicombe interim report which they themselves called for. I say again that the Labour Party does not approve of party political propaganda being paid for by the ratepayers; and where the Bill follows the recommendations of the report we have no quarrel with it. However, we think it probably would have been much wiser to wait for the whole report to appear and have one Bill to deal with all the matters that the Committee are considering.
In producing the Bill at this stage, the Government are really shutting the stable door when the horse has bolted, because most of the councils against which this Bill is aimed will have gone in a few weeks' time and, in the case of other councils that were thought to have offended, their councillors are being surcharged and disqualified. There are bound to be recommendations in the final report which will have repercussions on the provisions of this Bill and I imagine that we shall then be presented with the thirteenth Local Government Bill produced by this Government. I hope that, when it comes, it will be more sympathetic to local government and more considered.
One aspect of this Bill that I have not mentioned is the tidying up clauses, Clauses 11 and 12, one of which was introduced by the Minister only at Report stage, because, as he said, of a "technical defect in the Local Government Act 1985". The other, the present Clause 11, the Minister explained at Second Reading:
"makes good our unfortunate failure, for which I apologise, to provide in last year's rather bigger Local Government Act for those giving their services to authorities set up by that Act to be able to claim attendance allowances".
The point that I want to make is that this Government rushes into legislation. The legislation is ill-prepared and the impression the local authorities get is that the Government are hostile to them. As my noble friend Lord Ardwick said at Second Reading, one feels that this Government would like to have minimum local government.
It is really sad for those of us who have spent years in local government that the relationship between central and local government is so bad, as the Minister himself has acknowledged that it is. What the Government ought to be considering instead of how to curtail local authority freedoms is how best it can be organised to provide the services that it is its duty to provide, services which affect the lives of everyone, every hour of the day, at a time when many new methods of management and so on are available.
Widdicombe had a certain vision of local government. It is a broad, generous vision and it is not a vision of local government as being confined to the sum total of its limited statutory functions. I hope very much that when the Government come to consider their action on the full report they will try to share that broad, generous vision.
I must end by thanking the noble Lord, Lord Elton, for seeing this Bill through so competently with both humour and good humour. Even his opponents would acknowledge that he made a very spirited defence of what a lot of us thought was fairly indefensible. I should also like to thank the noble and learned Lord the Lord Advocate for his efforts to explain the Government's case to the House even if he did not convince us, and the noble Lord, Lord Skelmersdale, not only for moving some of the numerous government amendments but for his assiduity in running to and from the Box—and he is still at it at that moment. As an aside, I cannot help wondering why in this age of swift communications and electronics and so on it is still necessary for these messages to be carried to and fro by hand. That is my last comment on the Bill.
Lord Winstanley: My Lords, perhaps I may at this stage agree wholeheartedly with the noble Lord, Lord Elton, on one point. He said a moment ago that it was his view that your Lordships' House did not want long speeches at this stage of a Bill. I would go a little further and say that in general it seems to me your Lordships' House does not want long speeches at any stage of any Bill. That having been said, I shall do my best to be very brief in (shall I say?) allowing this Bill to pass. We can do no other than that from these Benches. I think it is appropriate that something should be said from these Benches.
I agreed with those parts of the speech of the noble Baroness which I actually understood and, frankly, I did not understand it all. I think I ought to say hastily here—and it is no doubt understood—that local government is not my subject. I have had the responsibility for dealing with this matter mainly because of the unfortunate illness of my noble friend Lord Evans of Claughton, who has vast experience of local government matters but was not able to do the job himself. I must personally express my indebtedness to my noble friend Lord Kilmarnock, who has done the bulk of the work on these Benches.
I think that we regard this in general as a Bill which has perhaps been conceived in haste and executed in a hurry. I very much share the view expressed rather broadly or implied by the noble Lord, Lord Sandford, that, in order to control the activities of a handful of erring local authorities, we should somehow cause difficulties for a whole number of local authorities which have never misbehaved in these directions at all at any time. That, I think, is our worry. The noble Lord, Lord Elton, a moment ago said that the Bill had been rendered necessary by circumstances. It is our view that there may presently be circumstances not unrelated to the local elections which could render the Bill wholly unnecessary. I believe that the electorate themselves are capable of taking charge of many of these things and I think that perhaps it is regrettable that the Government have seen fit to step in in this draconian way.
It seems to some people perhaps wrongly as yet another step in this Government's programme of gradually reducing the powers of local government. If one goes along that path to its end, the obvious ultimate conclusion is to abolish local government altogether and one can only do that if one changes the

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whole nature of central government and makes it much more accountable than it now is. I echo the fears expressed by the noble Lord, Lord Sandford, and I very much hope that what remains in this Bill at this moment does not deter some local authorities from doing things which I think all of us would like them to do. I think it is our fear that some local authority officials and officers may feel cautious about the Bill and may advise their authorities not to take certain steps which otherwise we should like them to take.
On an earlier stage today, on an amendment moved by the noble and learned Lord, Lord Denning, the noble Lord, Lord Orr-Ewing, expressed the hope that the Alliance Members would support the Government. Perhaps he noticed that we were in fact supporting the Government because the view we took was the view that the Government took on that amendment. The noble Lord, Lord Orr-Ewing, will remember that, in replying, the noble Lord, Lord Elton, said that at a later stage the Government would do what we on these Benches would like them to do; that is, implement the recommendations of Widdicome as and when they come forward fully. I hope that on that occasion the noble Lord, Lord Orr-Ewing, will join us in supporting the Government to make sure they do what they have undertaken to do then.
I shall say no more save this. As one with very little experience in local government matters, I have felt gratitude for the manner in which the noble Lord, Lord Elton, has been handling the Bill and has taken steps to keep us informed of what was going on and of his own thinking I personally have appreciated that very much indeed, just as I appreciated his acceptance of one or two of the amendments which were brought forward from these Benches. I should like to express my indebtedness to him for the manner in which he has kept us fully informed of matters about which we are perhaps not as knowledgeable as we might be.
Lord Orr-Ewing: My Lords, I will try to be brief but, as the noble Lord has just referred to me, perhaps I may answer his point. I concede that I was wrong. I hoped that the Government were going to see wisdom and incorporate that good amendment, beautifully drafted by the noble and learned Lord, Lord Denning, in the Bill. As it was, the Alliance supported the Government in not including it in the Bill.
Having heard a number of speeches, I cannot help reflecting that about a year ago we in this Chamber were discussing the rate-capping bill and the horrific things which were going to happen which were being quoted by leaders of councils. I have a few here. They are very different from what in fact has happened. In the Labour Council of Lambeth they said:
"We face having to sack 3,000 workers in Lambeth alone."
A former GLC deputy leader said:
"A cut of £100,000,000 would result in sacking about 1,000 fire fighters and 1,000 GLC staff".
We heard from the Hackney leader:
"That would mean we have to sack one-third of our workforce".
The next one says:
"Jobs lost … services across the board simply stopped: libraries, day centres, home helps".
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That came from the Islington leader Margaret Hodge. Rate capping went ahead and not one of those things came about. I hope that some of the horrid things that have been said about this Bill will not come true. I would absolutely go along with other views that have been expressed, that we do not want to see local government organisations and central government quarrelling, whatever the complexion of the central government and local government. There must be a degree of understanding. I only wonder whether the councils have begun to believe some of the propaganda their councillors have been putting out at our expense—because they seem to have been influenced. I only hope that that turns out to be as wrong as it was on rate capping. We had all those horrible warnings about all our rates going up, and now we see what the rates are for the coming year and all over London the rates are down—in my own borough by 31 per cent. So again "bogey, bogey" is less effective than reality.
I concede that this Bill was perhaps hastily drafted and I do not think it was awfully well drafted. It is a small Bill for a specific task, and I am sad that much will go on which has not been put right as a result of this Bill. It will permit councils to publish material which does affect support for the political party, provided that it does not appear to be the intent for which the material was designed. It stops overt campaigning, that is true; but it allows the more subtle, insidious and therefore more effective, campaigning to continue.
I think the single most glaring loophole in the Bill relates to the funding of outside bodies. The Bill prohibits councils from funding pressure groups for publicity purposes but allows councils to fund pressure groups for other purposes. It is like running costs which may be released by some money coming in, which can then be used for other purposes. There will be a reshuffle of any money coming in to these "umbrella groups", as they are sometimes called; and money can be shuffled within those umbrella groups and be used for political purposes. The Bill permits councils to spend an unlimited amount on information and contains no reserve powers for the Secretary of State. I tried to move an amendment so that at least we gave reserve powers to the Secretary of State should there be an outstanding mis-spend or overspend for publicity purposes.
The Bill prevents councils from using Clause 137—and I do so much agree with the noble Baroness that, as between Clause 137 and Clause 142, the question of what they can do and how it is done has got us all in a tangle, I think. Certainly I am in one myself. The Bill prevents councils from using Clause 137 to fund publicity themselves, but it still permits them to fund non-profit making organisations for publicity purposes.
Again, policing difficulties, as we have found in many areas, present another loophole for what is called "creative funding"—that is to say, shuffling the funds. If the Bill is to have any value, your Lordships' amendment to Clause 2 must, I feel, be put back. I very much hope that this will happen in another place. I hope, too, that there will be opportunities for tightening up where there are some glaring omissions, and not just in this Bill. There are some loopholes here

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and no doubt coaches and horses will be driven through those; but amendments are now necessary also as a result of experience of the Local Government Act 1982 and on even earlier legislation. I hope that the opportunity of Widdicombe Part 2 will be taken to include in a Bill some other measures which are not particularly party measures but which need to be put right if local government's transgressing and spending of ratepayers' money is to be reduced. I do not think we can stop it—I am afraid a certain amount will always go on—but I am sure that noble Lords opposite will remember as well as we do on these Benches that there are some pretty evil men who do not want local government to work well and do not want smooth relationships with their ratepayers. I hope they at least will be made to pause and think before they undertake further excessive expenditure on totally unnecessary items which may be close to their hearts but which do not reflect the views of the ratepayers whom they represent.
5.15 p.m.
Lord Campbell of Alloway. My Lords, would your Lordships allow me a very brief word of personal gratitude to my noble friends Lord Elton and Lord Skelmersdale for the concession they made on Amendment No. 2, moved by the noble Baroness Lady David, on Report? Although they could have appointed tellers and there were plenty of reinforcements hidden in the hills, they refrained from doing so in deference to the sense and merit of the debate in your Lordships' House. A concession such as that, and one of such magnanimity, makes the exercise of the revisory role so much a lighter burden. The reason I did not draft a further amendment in answer to the noble Baroness, Lady David, was because I thought the Government would do so, and I still live in such hope that it will happen in another place. It was a mere matter of cosmetics and did not go to substance.
I should like to compliment my noble friend the Minister on his handling of a very difficult Bill, which was full of legal bear-traps, even for the seasoned practitioner.
Lord Denning: My Lords, I know that the local authorities and the voluntary associations were very apprehensive about the Bill, and whether it would curb their publicity and their information services. I always thought they were unduly apprehensive, but as the Bill is now coming before your Lordships amended, I do not think they need be afeared at all. This Bill will really condemn only the evil practices.
I should like also to say one word more about Sections 137 and 142, which were full of ambiguities and uncertainties. It is very important that they have been made much clearer and better by the amendments which have been put forward. On the whole, I should like to congratulate the Government on putting through quickly an important Bill which will do no harm to the good associations, the voluntary associations and the like, but will do much, I hope, to stop an evil. I should like to congratulate the Government accordingly.
Lord Underhill: My Lords, my noble friend Lady David said that I would deal with certain aspects of the
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Bill so far as it affected race relations, but before doing so may I say one brief word about Clause 4 in relation to the codes of practice? As the president of the AMA, I am delighted with the changes that have been made to that particular clause in so far as it is now a code of practice for the guidance of local authorities and, in the first instance, it has to be approved by a resolution of both Houses. I think those two changes are very beneficial.
Tributes have been paid to the courtesy and the manner in which the noble Lord, Lord Elton, the noble and learned Lord the Lord Advocate and their colleagues have handled this Bill in all its stages. I echo those tributes; but that makes it a little more difficult for me to say that I, along with, I am certain, many other noble Lords, am very angry at what has not been done with regard to race relations. With all due respect to the noble and learned Lord, Lord Denning, we are still left with apprehensions. The Bill will inhibit local authorities and local community relations councils in carrying out the duties placed on them by the 1976 Race Relation Act.
If I may also echo what other noble Lords have said, we accept completely what Widdicombe says—that rates must not be used to meet the costs of party political propaganda. Incidentally, many of us never had to wait for Widdicombe to give that assurance. But, as was said at Report stage, the Race Relations Act was passed by Parliament for specific purposes: to eliminate racial discrimination and to promote good relations between races—and that is just what local authorities and community relations councils have been doing. Now, after 10 years, concern is being expressed about what they are doing. What they are doing and wish to continue to do is now under question.
Let me briefly go over the history of the matter during the passage of the Bill. We tried to meet the situation in Committee by excluding publicity issued in accordance with the duties placed upon local authorities under Section 71 of the Race Relations Act 1976. We were criticised and told that it would be wrong to exclude one Act. On Report, we made a further attempt to exclude publicity material issued to carry out specific race relations activities. On that occasion, I and other noble Lords were told that nothing would be allowed which permitted attacks on a particular party, even though in carrying out duties placed upon them by Parliament there is no need for a local authority to refer to a particular organisation or party. The very fact that one deals with race relations and racial discrimination means that some organisations will be adversely affected and others will be helped.
On Report, however, the Government brought forward Amendment No. 17. The noble Lord, Lord Elton, said that it was:
"to make clear that the publicity provisions in Part II of the Bill do not conflict with local authorities' duties under the Local Government (Access to Information) Act 1975".—[Official Report, 13/3/86; col. 770.]
That is what we wanted to do with regard to the Race Relations Act. We now have the following words in Clause 6(5) of the Bill:
"Nothing in this Part shall be construed as applying to anything done by a local authority in discharge of their duties under".

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That amendment was introduced into the Bill. It excludes one particular statute and certain duties. I and other noble Lords sought to introduce an amendment on Third Reading today which would have added to that clause the provisions of the Race Relations Act. We were advised that that would be wrong on the grounds that the House had already declared on the principle of the Race Relations Act in relation to this Bill. I do not challenge that ruling, but the Government could have been helpful by meeting the point made by noble Lords in all parts of the House and said that there should be some way whereby Clause 2 could meet the duties placed by Parliament on local authorities.
We now have the situation, as has been stressed by various noble Lords, that chief officers will be very chary of giving advice. There is conflict between what is contained in Clause 2 of the Bill and the provisions of the Race Relations Act which places specific duties upon councils. It is not sufficient, in my view, to say that the courts can decide on unlawful acts under the Race Relations Act 1976. Sometimes a local authority needs to act to see that action is taken to deal with such unlawful acts.
With all the good will in the world, it is not sufficient for Ministers to say that they sympathise with the points being raised on this issue. Although we are having the Third Reading and debating the Question, That the Bill do now pass, when amendments to the various clauses are considered in the other place there is still an opportunity for the Government to introduce their own amendment to put that important matter right. I hope that they will do so in the interests of the carrying out of obligations which have been placed upon local authorities by Parliament.
Lord Pitt of Hampstead: My Lords, I rise to support the noble Lord, Lord Underhill, and to say that if the Minister does not give such an undertaking I shall be forced to oppose the passing of the Bill by this House. All the information that I have received has suggested that lawyers are likely to tell their councils that funding community relations councils, if those councils publish material which is critical of the National Front, will be unlawful. As I have said more than once, and I do not wish to keep repeating myself in your Lordships' House, my fear is that when they have been given such advice many councils—not all—will take the advice and not fund their community relations councils. I am talking as a layman, and I have read Section 71 and Clause 2. I cannot see how a council can carry out its obligations under Section 71 without affecting public support for a political party which advocates the direct opposite.
By coincidence, when I arrived in your Lordships' House this evening, I received a letter addressed to me here. Inside the envelope it said, "Niggers out". The paper was headed "White International" and it contained several quotations showing approbation of the National Front from Sweden, the USA and Germany. That was bad enough. There was a clipping from a newspaper showing that Princess Diana had visited Tottenham and charmed Bernie Grant. I have forgotten to say that "Long live racialism" was on the bottom of the first piece of paper. On the second piece of paper was written "Nigger lover" and "Stupid
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Royals. They are decadent, second-rate, nigger riff-raff, shit". I only mention that because of the coincidence. I get these things all the time. I just tear them up. I should have torn that up except for this debate. One does not bother with them. That is the sort of stuff that one gets. It is no use suggesting that we can deal with these issues without dealing with matters like that. If we deal with matters like that, of course, we shall affect support for the National Front which is a political party.
It was always possible for the Government to deal with the matter either by the amendments that were put down in Committee or better still by the one that was introduced on Report. Even at this stage, merely by including the Race Relations Act 1976 in Clause 6(4) we could have dealt with it. The fact that the Government are at no stage prepared to deal with this matter tells me that, perhaps they do not want local authorities to carry out Section 71 of the 1976 Act.
I am afraid that unless the Minister can give an undertaking that the Government will attempt to do something like that in the other place—I know the convention and that the vast majority of the House will support the Bill—I must vote against the Motion and hope that someone is prepared to be a Teller with me and that one or two Members of your Lordships' House will see the matter in the way that I do.
5.30 p.m.
Lord Boyd-Carpenter: My Lords, I am very sorry that at this stage of the Bill both the noble Lord, Lord Underhill, and the noble Lord, Lord Pitt, should seek to resume the discussion which we have had at very considerable length at both Report and Committee stages on a point about which I fully understand they feel seriously, but which I hope they will allow me to say seems a thoroughly bad point.
The Bill—rightly, in my view—inhibits the use of ratepayers' money for action taken by a local authority which is in respect of and likely to affect a political party. The only doubt that I and a good many other people have is whether it is sufficiently strongly or widely framed really to affect that. But on this point it seems perfectly clear that there is nothing in the Bill which would inhibit a local authority from carrying out properly its duties under the 1976 Act.
If one looks at the relevant clause of this Bill, it reads:
"A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party."
Any competent local authority can perfectly well carry out its duties under the 1976 Act, and give support to those who are working at the task of improving relations between the various communities in this country, without also publishing material designed to affect public support for, in this case, the National Front. I really cannot see how any competent local authority that wants honestly to do its job, as I am sure most of them do, can possibly see any difficulty whatever in so doing.
All that would be restricted would be an attack, under the guise of the 1976 Act, on a political party. It happens to be a political party for which I have no use, and for which I doubt whether any of your

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Lordships have any use—it is not one of any great significance in this country, anyhow—but it is a good principle of the Bill that political parties, however insignificant or unattractive, shall not have public money used in action designed to affect support.
The only reason that I have risen to intervene is that it seems to me that this is a misguided, as well as a three-times repeated, attack on the Bill inasmuch as I can see nothing whatever in it which will hamper the good work which well run local authorities undertake, and want to undertake, under the 1976 Act. Having said that—and I rose only for that purpose—I should like to join in the very proper tributes paid earlier to my noble friend Lord Elton for his infinite patience and good humour in handling this Bill. As my noble friend Lord Campbell of Alloway said a little time ago, it is a Bill which is full of legal bear traps, and indeed there have been quite a number of legal bears who were apparently more than willing to spring those traps. But my noble friend Lord Elton succeeded in avoiding them all and has steered this Bill most successfully—and it has not been an easy Bill to steer; it has obvious political sensitivities and political difficulties—in a way on which he is entitled to look back with pride, and which reflects very favourably on the conduct of this House.
Lord Elton: My Lords, I am most grateful to my noble friend for that introduction to my concluding speech on this Bill in this House. It is particularly gratifying, when one has felt oneself for four or five weeks to be a toad under the harrow, to discover that one still smells of roses and I am most grateful to my noble friend for that biological improbability.
I have to turn, first, to the serious point raised by the noble Lord, Lord Pitt of Hampstead. He will understand that of course it is not for me to bind another place. That is for another place to do. But I have to remind him, first, of the procedural possibilities, and the course of action open to another place is only to accept an amendment of your Lordships, to reject an amendment of your Lordships, to amend an amendment of your Lordships or to substitute an amendment in lieu of an amendment of your Lordships. Beyond that, there is no scope at this stage. Otherwise, we should be in permanent Committee on every piece of legislation from the beginning of this century.
I hope therefore that the noble Lord will feel that he has put vehemently on the record very strong feelings, which he quite properly has, about racism. I would not wish him to think that the Government were in anything but sympathy with those who regard racism as unacceptable and uncivilised, and that he will realise that I sympathise with him on the sort of literature that he gets through his letterbox, as no doubt he would sympathise with me if he saw some of the letters which I get through my letterbox.
It is not necessary to divide the House in order to place our consciences or our creeds on record. I think the noble Lord has sufficiently done that. I hope that the record of the Government in other legislation has established our record in this respect, and I rely upon
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the arguments of my noble friend Lord BoydCarpenter—and indeed the perhaps untimely speech given in aid of the noble Lord, Lord Winstanley, by the noble Lord, Lord Grimond, at an earlier stage—to explain why we felt it was necessary to resist the amendment which he has in mind.
My noble friend Lord Orr-Ewing was very right to start by pointing out that the most extreme local governments are, when they act as prophets of doom, the most unlikely to be fulfilled, and in fact have been proved very misleading on previous occasions. He went on to say that this was a small Bill that did too little. The noble Baroness, Lady David, said that it was a small Bill that did too much and that it had been brought in in much too great haste. The noble and learned Lord, Lord Denning, said that the Government should be congratulated on bringing it in so quickly, and that the Government had done well to allay the fears of the voluntary sector. I cannot reply specifically to the first letter that the noble Baroness read out, because it was about a text that I have not seen and that she did not repeat; and, of course, I cannot comment on the second because it was rather too closely drafted for me to follow it by ear, but I will attempt to follow it by eye when it appears in the Official Report.
It was my noble friend Lord Campbell of Alloway who was kind enough to acknowledge, as did the noble Lord, Lord Winstanley, the concessions that we were able to make; and, together with other noble Lords, the noble Lord, Lord Winstanley, made many kind references to myself, to the nimble feet of my noble friend Lord Skelmersdale and to the nimble mind of my noble and learned friend the Lord Advocate. I am deeply indebted to both and I should add that my noble friend Lord Skelmersdale has some fairly good thoughts as well as nimble feet, and I am grateful for those.
I am grateful to all your Lordships for your courtesy and patience, which I do not monopolise in this Chamber, in taking this narrowly controversial Bill through the House. My only other reflection is that embedded in the kind comments that the noble Lord, Lord Winstanley, made was an assumption that I had given an unshakable commitment to implement every single recommendation of the Widdicombe Report before we had actually read it. That was not precisely the intention I had when I mentioned the Widdicombe Report; but I said that we regarded it as extremely important and that we expected to act on it when we had received it after consultation. I do not wish your Lordships to think that I, in any way, now resile on our commitment to act. However, I wanted to say that it was not an unlimited commitment. I am grateful to your Lordships for the kind way in which you have recognised the difficulties of this legislation and for the thorough way in which you handled it. I think I said at the beginning that I did not believe in long speeches. Five minutes is quite enough on this occasion and I beg to move.
5.39 p.m.
On Question, That the Bill do now pass?
Their Lordships divided: Contents, 147; Not-Contents, 10.

DIVISION NO. 2

CONTENTS

Airey of Abingdon, B.

Lurgan, L.

Alexander of Tunis, E.

Lyell, L.

Allerton, L.

McFadzean, L.

Alport, L.

Macleod of Borve, B.

Ampthill, L.

Malmesbury, E.

Auckland, L.

Mancroft, L.

Beaverbrook, L.

Mar, C.

Belhaven and Stenton, L.

Margadale, L.

Beloff, L.

Marley, L.

Belstead, L.

Marsh, L.

Birmingham, Bp.

Marshall of Leeds, L.

Boardman, L.

Maude of Stratford-upon-Avon, L.

Boyd-Carpenter, L.

Brabazon of Tara, L.

Merrivale, L.

Brocket, L.

Mersey, V.

Brougham and Vaux, L.

Middleton, L.

Bruce-Gardyne, L.

Milverton, L.

Butterworth, L.

Mottistone, L.

Caccia, L.

Mowbray and Stourton, L.

Caithness, E.

Munster, E.

Cameron of Lochbroom, L.

Newall, L.

Campbell of Alloway, L.

Norrie, L.

Carnegy of Lour, B.

O'Neill of the Maine, L.

Chelwood, L.

Onslow, E.

Coleraine, L.

Orkney, E.

Colville of Culross, V.

Orr-Ewing, L.

Cork and Orrery, E.

Pender, L.

Cox, B.

Peyton of Yeovil, L.

Croft, L.

Plummer of St Marylebone, L.

Cullen of Ashbourne, L.

Davidson, V.

Portland, D.

Denham, L. [Teller.]

Radnor, E.

Denning, L.

Reay, L.

Dormer, L.

Renton, L.

Drumalbyn, L.

Renwick, L.

Dundonald, E.

Rochdale, V.

Eden of Winton, L.

Rodney, L.

Effingham, E.

Romney, E.

Elliot of Harwood, B.

Russell of Liverpool, L.

Elliott of Morpeth, L.

St. Aldwyn, E.

Elton, L.

Saltoun of Abernethy, Ly.

Ferrier, L.

Sanderson of Bowden, L.

Fortescue, E.

Sandford, L.

Fraser of Kilmorack, L.

Selkirk, E.

Gainford, L.

Sempill, Ly.

Gibson-Watt, L.

Shannon, E.

Gisborough, L.

Sharples, B.

Glanusk, L.

Skelmersdale, L.

Gray, L.

Somers, L.

Gray of Contin, L.

Stockton, E.

Greenway, L.

Stodart of Leaston, L.

Gridley, L.

Strathcarron, L.

Grimston of Westbury, L.

Strathcona and Mount Royal, L.

Grimthorpe, L.

Hailsham of Saint Marylebone, L.

Strathspey, L.

Sudeley, L.

Halsbury, E.

Swinfen, L.

Harmar-Nicholls, L.

Swinton, E. [Teller.]

Harvington, L.

Thomas of Swynnerton, L.

Henley, L.

Torphichen, L.

Home of the Hirsel, L.

Tranmire, L.

Hooper, B.

Trefgarne, L.

Hylton-Foster, B.

Trumpington, B.

Inglewood, L.

Tryon, L.

Kaberry of Adel, L.

Vaux of Harrowden, L.

Killearn, L.

Vickers, B.

Kimball, L.

Vinson, L.

Kinloss, Ly.

Vivian, L.

Kissin, L.

Waldegrave, L.

Kitchener, E.

Ward of Witley, V.

Lane-Fox, B.

Whitelaw, V.

Lauderdale, E.

Wise, L.

Lawrence, L.

Wolfson, L.

Layton, L.

Wynford, L.

Loch, L.

Young of Graffham, L.

Long, V.

908

NOT-CONTENTS

Campbell of Eskan, L.

Rea, L.

Carmichael of Kelvingrove, L.

Sefton of Garston, L.

Fisher of Rednal, B.

Stallard, L.

Hatch of Lusby, L. [Teller.]

Taylor of Blackburn, L.

Jenkins of Putney, L.

Pitt of Hampstead, L. [Teller.]

Resolved in the affirmative, and Motion agreed to accordingly.
Bill returned to the Commons with amendments.

Royal Assent
5.49 p.m.
The Lord Chancellor: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts and Measures:

Consolidated Fund Act,

Agricultural Holdings Act,

Prevention of Oil Pollution Act,

Marriage (Wales) Act,

Greater London Council (General Powers) Act,

Bishops (Retirement) Measure,

Ecclesiastical Fees Measure.

Legal Advice and Assistance (Financial Conditions) Regulations 1986
5.50 p.m.
The Lord Chancellor The Lord Chancellor rose to move, That the regulations laid before the House on 3rd March be approved. [15th Report from the Joint Committee.]
The noble and learned Lord said: My Lords, I rise to move the affirmative resolution standing in my name on the Order Paper. The House will have seen, however, that there are three other resolutions also relating to legal aid, against which the noble and learned Lord, Lord Elwyn-Jones, has given notice of his intention to pray. With the permission of the House, I shall deal with all together so far as my speech is concerned.
I have the honour and privilege—possibly also the misfortune—to preside over the largest and most rapidly rising social service of them all. In 1979, when I commenced my second term of office, total legal aid expenditure was £134 million. In 1984 and 1985, the total was £346 million. In both cash terms and in real terms, it has risen in proportion. Notwithstanding that, we have managed to introduce the formal arrangements for the duty solicitor scheme in magistrates' courts; the 24-hour duty solicitor scheme for suspects held in custody; the provision of payments to solicitors and counsel on account of legal aid bills; the extension of assistance by way of representation to proceedings before mental health review tribunals; and now, in the resolution that I am about to move, an increase in the capital allowance for assistance by way of representation to £3,000.
The subject of this affirmative resolution is the Legal Advice and Assistance (Financial Conditions)

909
Regulations 1986. They increase the capital eligibility limit for assistance by way of representation—known in the horrible jargon of the trade as ABWOR—from the present figure of £800 to £3,000; that is, the same as the lower eligibility limit for civil legal aid.
As the House will know, assistance by way of representation is the form of legal aid used for domestic proceedings in magistrates' courts and also for proceedings before mental health review tribunals. The financial eligibility conditions for such assistance have, until now, been tied to those of the green form scheme. For the most part, that is a sensible arrangement: in both cases it is the solicitor who undertakes the means assessment, and it is clearly sensible to have common limits. However, it did give rise to one significant anomaly.
When assistance by way of representation was introduced for domestic proceedings in magistrates' courts in 1980, it replaced full legal aid. But the capital eligibility limit for legal aid has always been higher than that for the green form. That is deliberate. The green form scheme is intended for the provision of preliminary advice and assistance and the average cost of the advice given under it is around £50. Someone with disposable capital of £800 can reasonably be expected to pay that. The average cost of a legal aid bill is of course substantially higher, so a higher capital limit is appropriate. The introduction of assistance by way of representation, therefore, tied to green form eligibility, meant that some people whose disposable capital put them within the limits for legal aid could not qualify for such assistance.
In practical terms, that did not matter greatly while representation was confined to domestic proceedings in the magistrates' courts, because the alternative of full legal aid remained for those who fell between the two stools. However, when assistance by way of representation was introduced recently for proceedings before mental health review tribunals, the position was different because legal aid was not available as an alternative.
The solution was obvious: to raise the capital limit for assistance by way of representation to the level of the lower legal aid limit. However, the legislation as it then stood did not permit the setting of different eligibility conditions for ABWOR and green form. In last year's Administration of Justice Act, therefore, I took the power to make separate arrangements for the two types, and the regulations now before the House are the result of that new power. I announced in 1983 my intention to make that change as soon as time could be found for the necessary legislation. The regulations fulfil that commitment and I commend them to the House.
The other Motions with which we are today concerned relate to the change in the dependants' allowances given when assessing the means of applicants for legal aid. Those changes apply to both civil and criminal legal aid and to advice and assistance, which is why there are three sets of regulations.
When assessing the means of an applicant for legal aid, various deductions are made from the applicant's gross income in order to arrive at what is called his
910
disposable income, which is what determines the extent of his entitlement to legal aid. Certain expenses are allowed in full at the actual cost to the applicant (for example, tax and national insurance, and, in civil and criminal legal aid, actual housing expenses). Allowances are also made in respect of each dependant the applicant possesses. Those allowances are for a set sum. For many years now, that sum has been set in relation to similar allowances given for social security benefit. Hitherto, the legal aid allowances have been set at a level 50 per cent. above the equivalent social security levels. The regulations laid before the House on 19th February will reduce that 50 per cent. premium to 25 per cent.
It is important that that should be seen in context. As I have said, since 1979, expenditure on legal aid has approximately trebled. In real terms, it has even doubled. Perhaps I could give a few additional figures. For civil legal aid, net expenditure in 1979–80 was £25.4 million; in this financial year it is expected to be around £84 million. For advice and assistance, net expenditure was £11.9 million; in this financial year it is expected to be around £62 million. For criminal legal aid in 1979–80, net expenditure was £60.8 million; in this financial year it is expected to be £155 million. Nothing could give a clearer indication of the importance that the Government attach to legal aid.
Furthermore, significant improvements have been made to the legal aid scheme. I mentioned earlier the duty solicitor scheme in magistrates' courts, the 24-hour duty solicitor scheme from the beginning of this year for suspects held in custody; the provision of payments to solicitors and counsel on account of legal aid bills; the extension of assistance by way of representation to proceedings before mental health tribunals; and now, the increase in the capital allowance for assistance by way of representation to £3,000. The 24-hour duty solicitor scheme, which came into operation in January, is one of the most important developments in legal services for many years.
It really is vain to suppose that legal aid can be looked upon in isolation from other competing demands on public expenditure. The rate of growth we have seen over the past few years shows no sign of moderating. Next year, we expect to spend about £380 million. That is about 15 per cent. more than the comparable figure for the present financial year; that is, 1985–86. This is after the savings which we expect to make from the dependants' allowance changes have been taken into account.
It is important that this point is fully recognised by those who suggest that the Government are cutting the legal aid scheme. Nothing of the kind. It is mounting rapidly by the extent which I have mentioned. Even after the dependants' allowance changes have been made, expenditure on legal aid next year is expected to be some 15 per cent. higher than this year.
The changes will of course mean that some people who would previously have qualified for civil legal aid will not now do so. But by definition these are people who would in any event have been at the top of the contribution range and would therefore already have been paying towards the cost of their case. Even so, I am told that they can be numbered at fewer than 1,000; and it is important to remember that that is

911
1,000 out of 250,000 civil legal aid applications each year.
Some people within the limits will have to pay more by way of contribution than they do at present, but again this needs to be seen in perspective. These will be those applicants whose incomes are at the higher end of the qualifying range, and they will be asked to pay no more than they can reasonably be expected to afford. At present nearly 80 per cent. of civil legally aided persons receive their legal aid free of contribution. Some of these will now be required to pay a small amount; but the large majority will in practice be totally unaffected by the changes, and anyone who is receiving supplementary benefit or whose income is at around supplementary benefit level will still receive non-contributory legal aid.
The point, however, that I must come back to—and which I cannot stress strongly enough—is that the money available for legal aid is not limitless. It has to compete with other claims on the public purse—claims which we hear every day in the field of education, housing, sickness, pensions and other social services. Rates of growth such as we have seen in recent years cannot be allowed to go on without bearing some of the burden of increasing Government expenditure. The reduction in the dependants allowance premium is necessary because we have to do something to moderate the rate of growth. It is against that background that I have had no alternative but to lay before the House the necessary regulations. I beg to move.
Moved, That the regulations laid before the House on 3rd March be approved. [15th Report from the Joint Committee.]—(The Lord Chancellor.)
6.2 P.m.
Lord Elwyn-Jones: My Lords, I begin with the small silver lining over the dark cloud which the noble and learned Lord the Lord Chancellor is creating in the field of legal aid and advice by these regulations. I approve of the first affirmative resolution which increases the disposable capital limit for availability by way of representation for ABWOR under the Legal Aid Act from £800 to £3,000. In practice, not many beneficiaries will enjoy benefits from the change. The primary beneficiaries from the increase will be mental patients who have slowly built up savings while under care. How many extra applications will flow from that we do not know, but there will be a small amount. So far as it goes, this little, modest improvement is welcome.
It is in stark contrast with the rest of the instruments that we are dealing with. For the first time since the inception of the legal aid scheme in 1950 the Government are cutting back eligibility for legal aid—in this case to those most needing it. The changes proposed in these three orders will have a significant effect on the ability, above all, of families to benefit from legal aid. Last year more than a million-and-a-half people received the means of proceeding by way of legal aid. These regulations reduce by one-sixth the sums allowed for dependants in the income means test used to assess applicants' entitlement to legal aid and, if they are entitled, the amount of their contributions. This is achieved by reducing from 50 per cent. above
912
supplementary benefit to 25 per cent. above those levels. The result will be that the amount of the cuts—and they are cuts so far as concerns those who have previously benefited in this field—that will result is estimated by the Goverment, as I understand it, to be £7·5 million a year. That is the amount that it is estimated will be saved. That sum will fall almost exclusively on families with children.
The estimate that I have from the Law Society, which strongly opposes these regulations—as do the CABs and other bodies—is that some 9,000 additional legal aid applicants will be asked to pay an increasing contribution; increasing the number by 20 per cent. The savings will be concentrated on families; as opposed to single legally assisted persons whose position remains largely unaffected.
The types of families that these regulations are directed against, and who are most likely to have to bear the brunt of the changes, will be large families with two wage earners or a single parent with a number of children perhaps in part-time work. Those are the very people whose resources are most likely to be strained already. Regarding contributions, the family with three children will now begin to pay contributions at an earnings point which is over £1,000 lower than is the case now and will lose over £750 in allowances. I submit that the changes will have a significant effect on the ability of families to enjoy the benefits of legal aid.
Last year more than a million-and-a-half people received legal aid to defend criminal charges, obtain divorces, child custody and maintenance, to enforce housing, employment and other benefits, to sue for compensation in respect of injuries inflicted upon them by negligence and to exercise many other legal rights. The result of these regulations will be that the parents of Britain's 6 million families with dependent children stand to lose most from the cuts.
The noble and learned Lord explained the process of assessment. Financial liability is assessed by considering various disposable income factors, but all the tests bring into play the important element of the allowances for dependants. The most significant effect of the cuts will concern civil legal aid. The annual allowance now for a child aged 16 will, if the regulations are approved, be cut from £1,420 to £1,183. From 12th March the difference of £237 will be added to the applicant's disposable income, raising the contribution by £60, or possibly resulting in disqualification from the scheme altogether. Reduced allowances for a full complement of dependent spouse plus three children will amount to around £850, with additional contributions, assuming the applicant is still able to qualify, of £210. I submit that this is sadly a case of aiming the cuts at those who are most in need of help. The curious formula is applied that the greater the need, the greater the reduction in legal aid. It is a crazy logic, an anti-social logic and an unsympathetic logic.
A similar system of financial assessment of contributions applies to criminal legal aid, which is dealt with in Statutory Instrument No. 274, with the exception that there is no upper eligibility limit on income. A very high proportion of criminal defendants are unemployed and therefore are not potential contributors under the legal aid scheme; but the additional contributions in that field that will be

913
demanded as a result of the cuts in allowances again increase the burden on defendants' families or discourage them from benefiting from legal aid in civil proceedings.
The great sadness of the proposals which the noble and learned Lord feels obliged to bring forward tonight is that they will seriously damage the reforms which I proposed as Lord Chancellor in 1979 and which were faithfully implemented, if your Lordships will allow me to say so, by the noble and learned Lord who succeeded me. The savings which I was able to achieve in legal aid expenditure in my time, by reducing the scope of legal aid in divorce cases (as a result of making divorce simpler to obtain) were used at that time—and this practice was continued by the noble and learned Lord—to increase eligibility and to reduce the high burden of contributions.
The present changes will turn against that trend and will reduce the proportion of the population which is eligible to receive legal aid. The new rules will adversely affect people who are seeking legal aid both in the civil courts and in criminal cases, as well as those who need help under the legal advice and assistance schemes. As I have said, the entire burden will be borne by families.
If I may say so, although legal aid costs little (in spite of the figures which have been given by the noble and learned Lord) compared with other means-tested benefits, it is not a marginal benefit that society can readily do without. Legal aid underpins many other public benefits by helping citizens to enforce welfare, housing, employment and other rights and above all by promoting access to justice. As I have said, the changes proposed in these instruments are objected to by responsible bodies such as the Law Society and the National Association of Citizens Advice Bureaux. They run counter to the approach of all political parties in recent years, which has been directed to the purpose of ensuring that lack of money shall be no bar to the citizen and his family in obtaining justice in the courts.
I ask and urge the noble and learned Lord the Lord Chancellor to take these orders away and to look at them again. They run counter to what the noble and learned Lord has done in the past and I hope that he will stand firm and reject them now.
6.14 p.m.
Lord Wigoder: My Lords, I am beginning to find that my attendance in your Lordships' House is inducing in me a state of schizophrenia. I come on Mondays and Wednesdays and listen to Government Ministers, who are very often Cabinet Ministers, extolling our economy and telling us what a prosperous society we now live in. I leave your Lordships' House with my head held high and proud of being a member of such a society. I also come on Tuesdays and Thursdays to your Lordships' House, and tonight I find the noble and learned Lord on the Woolsack (who is, if I may say so, the most generous of men) constrained to have to put forward on behalf of his department niggardly proposals of this sort. It is being done in the name of saving a paltry sum in the region of £7½ million a year.
914
I say "a paltry sum", and there are of course many individuals who would regard it as a paltry sum, but there are certainly many other individuals who would wish to save £7½ million a year of their own money if they could. We are not taking about individuals; we are talking about the nation. We are talking about a state of affairs such that in the other place this afternoon figures not of £7½ million but of scores of billions of pounds have been quite freely mentioned in discussing the national economy. I think that in those circumstances it is idle to say that the sum which it is proposed to save by these orders represents a significant amount.
Nor indeed do I accept the argument that this is only one item and that there will be many other items like this which in due course will add up to a significant amount. If my arithmetic is correct, it would take 150 similar savings of this order to amount to one billion of the billions of pounds that have been talked about so freely in another place today. So I cannot regard the saving in this case as being significant or one which is worth making if there is an element of injustice involved.
Clearly there is an element of injustice, and I do not believe that that element of injustice will be offset in any way by the increase in the other order and the raising of the eligibility limit for ABWOR. I note that the noble and learned Lord on the Woolsack did not attempt to estimate how much that measure would cost. I hope that he will be able to give us an estimate of that expenditure when he comes to reply. I suspect that it is a sum which is very much less than the proposed saving of£7½ million which is involved in the other orders. In those circumstances, we on these Benches will of course want to support what the noble and learned Lord, Lord Elwyn-Jones, has said. I adopt his arguments and it would be quite superfluous of me to seek to repeat them.
When I said that the measures which are proposed are niggardly, I did so for several reasons. First, they will remove altogether something like 1,000 people from eligibility to legal aid, advice or assistance. Secondly, they will mean that a great many more than 1,000 people—and again, though I may not have heard this correctly, I do not think that the noble and learned Lord on the Woolsack gave any estimate of the figures—will find that they are obliged to make a contribution if they are to exercise their legal rights. The figure I have seen is something like 9,000 families, but perhaps it may be more than that.
I think the significance of this figure lies in the fact that it is known from experience that once people who apply for legal aid are ordered to make a contribution, somewhere between a quarter and a third of them will decide that in those circumstances legal aid is beyond their means and something which they do not wish to pursue. In effect, increasing the number of people who will be required to make contributions is tantamount to telling that number of people that they will not be able to pursue their legal remedies. This is what is left of the great concept of legal aid in our society.
The third reason why this is a niggardly proposal is because of what has been said by the noble and learned Lord, Lord Elwyn-Jones, as to how it is to be decided which people are to be deprived of legal aid or ordered to make a contribution in future. The effect of these

915
three orders is very simple: the more children that a man has, the less eligible will he be for legal aid. That is an astonishing criterion. I do not know—and perhaps the noble and learned Lord on the Woolsack can tell us—whether either the Law Society or the Legal Aid Advisory Committee were consulted about this. I am bound to say that I should find it astonishing if either of those bodies were consulted and agreed that this was a fair and equitable way of reducing the burden of legal aid.
In those circumstances, it is perhaps hardly necessary at this hour to say any more. I agree entirely with what my noble and learned friend Lord Elwyn-Jones has said when in his Motion he describes these proposals as retrogressive. It is a word that is entirely appropriate and quite indisputable.
Lord Denning: My Lords, may I first address myself to the wider Motion:
"That this House regrets the retrogressive actions of the Government in regard to Legal Aid and Advice".
I go back 50 years or more when there was no legal aid. If a man had to be defended in the criminal courts, he would be put up to be arraigned and he would say to the judge: "Can I have a dock brief?". The judge would point to one of us there and say to the man, "Have you £1.3.6d?". If he had it he would say, "Yes". The judge would say, "You can choose any of those gentlemen sitting there". He would point to us. The man could only see the back of our wigs. And then for that £1.3.6d. it was the etiquette of the Bar that one would have to defend him to the best of one's ability day after day if need be, for £1.3.6d.; but at his expense, not at the expense of the taxpayer. That was in the criminal courts.
In the civil courts, let me tell you, my Lords, of my first case. It was a case where a lady had gone to a dentist and under the anaesthetic her tooth had broken and dropped down her chest, and she was very ill in consequence. She wanted to bring an action against the dentist. She had no money. Under the poor prisoner defence scheme the solicitor took it up, only getting his out-of-pocket expenses. I took up the case for nothing. Fortunately, we won and she received her remedy without any expense to the state at all through the services of the lawyers.
That was all before 1950 when the Rushcliffe Committee introduced legal aid. We were astonished by it. My word, talk about retrogressive, my Lords! Governments from that time to this have been most progressive. Everyone in the civil courts in such a case as I have mentioned, could get the action on; and the lawyers—both solicitors and counsel—would be paid by the state all the way through. If they lost, they did not have to pay the other side's costs. It was a jolly good thing for the poor people.
Then afterwards in the criminal courts—oh how it went on!—the burglars, the crooks, all of them were brought up and they would be able to get their defence. They probably had none at all but they would plead Not Guilty and have a solicitor and counsel all at the expense of the taxpayer. We were paying for it. The lawyers would defend their clients right the way through. Sometimes they carried it on for too long because of the fees they were getting. But there it was: legal aid, not only in civil cases—which I have told you
916
about—but in the criminal cases all the innocent and all the guilty were paid for by us; all the lawyers were paid for through legal aid.
What a wonderful system of progress it has been! I have said so many times how legal aid is perhaps the greatest revolution to have come for years in the legal profession. No longer is there the jibe of one law for the rich and another for the poor. The poor get their representation in the courts at the expense of the taxpayer. There is only this one qualification: "Let him pay as much and contribute as much as he can reasonably afford". Surely that is sensible: to contribute as much as he can reasonably afford.
There it is, talk about retrogressive, in the time of this Parliament we have had legal aid extended: we have had the advice beforehand, help in the magistrates' court, we have had duty solicitors in attendance when a man is charged. When a man is charged, he goes to the police station, and as soon as he is taken there he is asked, "Do you want a solicitor and can you afford one?" He replies, "yes, but I have no money. He is told, "It does not matter about money, we will telephone the solicitor", and the taxpayer pays. No wonder the bill has gone up to over £300 million, or whatever it is.
I am not saying it is wrong; all I am saying is that it is very progressive. Legal aid has been a wonderful service to the community, paid for by the taxpayer. I would not say that the actions of the Government have been retrogressive in any way; I would rather perceive that they have been progressive.
I now come to the Motions for alteration. I agree that they seem insignificant. However, in the papers which I have received—and it is much better to take an example—they say that a family of husband, nonworking wife and three children aged four, eight and 13, with a gross income of £10,460, is currently eligible for free legal aid—not paying anything. The husband will now be asked to make a contribution of £190. If he is suing for damages for an injury and has a case, is it very unfair to ask him, with an income of over £10,000, to contribute £190, which is not so much perhaps as the cost of a new television set or whatever it may be? It is a contribution of £190 from the man who is being defended, if he has that income, instead of the defence being at the expense of the state. Is it not fair? That is the whole point of this. What is a fair contribution for him to make?
So I do not think that it is retrogressive; but we have to remember, as I stressed at the beginning of my speech, that the legal aid bill is enormous; it runs into hundreds of millions. Surely the Government are right to say. "Well, we have to look at our ways and means. We think those who can contribute ought to contribute". I do not know the rights and wrongs of it but those who advise the noble and learned Lord the Lord Chancellor—and I hope that there has been consultation even on this slight alteration—feel that just this small alteration means that the contribution will be just what is fair and reasonable. It is small; it is only £7½ million. In assessing what the proper contribution would be, I would go by those who help and advise the noble and learned Lord the Lord Chancellor on the finances of it. I hope that he has considered all the representations, and as long as it is confined to a fair contribution all well and good.

917
For those reasons, at the moment I would trust the Government and those advising them that this is a fair alteration to make. Therefore, I would not support the amendment and I would approve the measure.
6.30 p.m.
Lord Campbell of Alloway: My Lords, I support the Motion to approve the regulations and oppose the prayers and the Motion of the noble and learned Lord, Lord Elwyn-Jones. Some time ago, in answer to a Written Question that I put down on 17th February, as to whether the Government were proposing to make any changes in the operation of the legal aid scheme—this appears at cols. 497 and 498—my noble and learned friend the Lord Chancellor gave a very full reply. This heralded these four regulations, three of which are sought to be annulled but the fourth of which, increasing the capital eligibility, the noble and learned Lord, Lord Elwyn-Jones, does not oppose. Notwithstanding the hostile reaction of the Law Society—I have received today a packet of documents from it in which it is claimed, no more nor no less, that these regulations,
"shatter the carefully constructed reforms"
planned by the noble and learned Lord, Lord Elwyn-Jones, between 1977 and 1979—these regulations have to be seen in context with the substantial improvements offered, referred to in the Answer to the Written Question, as well as in context with available resources—a phrase that has a very important impact in any system of responsible government.
As I sought to mention in the debate on the Roskill Report, such resources (although some seem to think otherwise) are not within the personal gift of any Lord Chancellor. The cost of legal aid expenditure has doubled in real terms since 1979. There is now, we are told, a £30 million over-run, and £380 million, I believe, is to be spent next year. It is therefore small wonder that the noble and learned Lord, Lord Denning, should say, "Well, we have to look at our ways and means". It is a matter for Government. Hence, the Motion of the noble and learned Lord, Lord Elwyn-Jones, which regrets the retrogressive actions of this Government.
But on reasonable examination, are these regulations retrogressive? Have they not to be seen in context with the proposed improvements to which my noble and learned friend the Lord Chancellor referred in answer to the Written Question? That Answer referred to changes in the operation of the statutory charge; to the extension of the advice and assistance scheme to allow solicitors to visit the housebound; to the extension of ABWOR—that terrible term—to proceedings under Section 47 of the National Assistance Act; and to the extension of ABWOR to applications under the Children and Young Persons Act. It is stated, looking ahead:
"The Government also accept that the following improvements should be made at an appropriate time in the future".
How are improvements to be introduced unless one indulges in a measure of prudent housekeeping?
There is, of course, in this respect, the increase in the capital eligibility sum. All these factors have to be taken into account with the reduction in allowances
918
given against income for defendants when assessing eligibility for legal aid, civil and criminal, from 50 per cent. to 25 per cent. Assuredly, this will remove from legal aid some of those who should otherwise have qualified. That is, frankly, a pity. But, with the greatest respect to the noble and learned Lord, Lord Elwyn-Jones, are these really the needy? Are they the impoverished? Are they the destitute members of society who most need it? In this, is it not proper to keep a sense of balance? There is really, in respect of these proposals, no justifiable sense of outrage. There is no unfair and unjustifiable discrimination against those who simply cannot afford to pay for legal aid and advice.
I take the point that a cut may be a cut in the eyes of the beholder, but not in the way in which it is regarded by Government. I take the point that the Government would even resent, perhaps, the suggestion that there was a cut when the amount of expenditure increases. I can, however, see the difficulty as regards the recipient.
One has also to take into account the quality of legal aid and advice available. It is of a very high quality indeed. It is very important that the poorest in the land—the pauper is in no way disadvantaged by these proposals—can find the finest and most expensive advocate. That is marvellous. The standard is maintained. But it costs the state a bit of money. For my part, I would prefer that standards were maintained as high as they are rather than that there should be any reduction of standards by cutting expenditure.
It appears from what the noble Lord, Lord Wigoder, says that about 1,000 people will be removed from eligibility. Again, that is a pity. But seen in perspective, it is not a very great percentage of those concerned. The noble Lord, Lord Wigoder, says that more people will have to make a contribution. Yes, my Lords. That, also, is a pity. However, when the noble Lord goes on to say that when these people are told that they will have to put their hand in their pocket to find a penny piece they will not do so, and therefore it is unfair because they will not then receive legal aid, the logic of any criticism, certainly criticism of the Government, seems to dissolve.
Like the noble and learned Lord, Lord Denning, I worked on the Western circuit in the days when there was no legal aid. I agree with the noble and learned Lord that "retrogressive" does not seem an apt term to use against a Government who propose to spend £380 million in the forthcoming year. For those reasons, I support the Motion and oppose the prayers.
6.40 p.m.
Lord Hatch of Lusby: My Lords, it has always seemed right, since I read these regulations, that they should not be debated here simply by lawyers, as has happened so far. Therefore, although my name does not appear on the list—and I did not know there was a list until today—I indicated my intention to speak. I would hope that I am speaking for the people who are affected by legal aid and the victims of these regulations.
I am also concerned that we are debating these regulations tonight but that apparently there is no

919
means by which they are to be debated in another place. I should have thought that something which touches the lives of so many citizens of this country should be debated by their elected representatives, and not simply by the unelected members of your Lordships' House.
I should also like to ask the noble and learned Lord on the Woolsack, who opened this debate, one or two questions concerning the effect of these regulations. For example, will the regulations involve extra administrative costs at the changeover? If that is the case, will those costs not fall mainly on the DHSS rather than on the department of the noble and learned Lord? Will this not then be an extra charge on an important government department which has nothing to do with the law?
The second question I should like to ask the noble and learned Lord is whether this is an executive action by his department, or whether there have been any consultations with those organisations—both legal and those giving citizens advice—to discover before the regulations are made what kind of effect this will have on the people involved.
My noble friend Lord Elwyn-Jones has taken himself out of the legal straitjacket and spoken—most movingly, I found—for the ordinary people who will be involved in the changes that are now proposed. I believe that every member of this House, including the noble and learned Lord on the Woolsack, would agree that the central objective of legal aid is to ensure that lack of money is no bar to justice. If that principle is to be maintained, how is it possible to argue that some people who are today entitled to legal aid should not be entitled to that legal aid tomorrow? Is this not removing the opportunity of justice on the basis of the amount of money that an individual possesses?
When the noble and learned Lord introduced these measures the only reason he gave for them that I could discover was that there is competition for public expenditure. It has already been said that these measures will save something like £7 million a year. But how many people will be affected by that saving? Is this the way that the Government believe in honouring that principle—which again I believe the noble and learned Lord would totally accept—that lack of money should be no bar to justice?
I should also like to ask the noble and learned Lord why there has been such a hurry. As I understand it, the first of these regulations was not laid until 17th February; the last on 3rd March. Again if I understand it correctly—and I hope that the noble and learned Lord will correct me if I am wrong; indeed, I am sure that he will—they came into operation on 12th March. Are we then being asked to legislate retrospectively? Did these regulations come into effect last week? If so, they came into effect presumably by executive action without approval from Parliament. However, the whole kernel of the case against these regulations has been outlined very fully and very movingly by my noble friend Lord Elwyn-Jones.
The reduction of the allowances for children is the central issue to which we should address our minds. The reduction in the allowances for a child of 16 is, I understand, to be 16.6 per cent. What will this mean, particularly to families? As my noble friend pointed
920
out, these cuts are aimed at just those people who are most in need of help. Apparently, the greater the need for help the greater is the reduction in legal aid and the increase in contributions.
This Government have claimed that they are concerned for families. It is surely the families who will be most severely attacked by the new financial arrangements included in these regulations. As the noble Lord, Lord Winstanley, has pointed out, anybody who has anything to do with families in this country knows that many families do not pursue their rights because they do not believe they can afford to do so. Under these regulations, there will be more. Nobody can say how many more. The Government are saying that in order to save this piddling little amount of £7 million more people in this country will not pursue the justice which is their right.
It seems to me as a layman that the families of defendants in criminal cases will be most bitterly attacked. They will feel these measures more severely even than those in the many civil cases that today claim legal aid. Why?—because the defendant in a criminal case has no choice but to defend himself. No one supposes that the family of that defendant is anything other than innocent, yet, when the assessement of legal aid is entered into, it is the family income, including the benefits, which are added to the defendant's assessed income and contributions are levied on it. Families will suffer if defendants are convicted. But should families suffer in order to give defendants the right to the legal aid assistance that can give them a proper defence?
As my noble friend has pointed out, in civil cases when families need to take action to protect their housing, or to enable them to gain the welfare benefits to which they are entitled or defend themselves in matters of employment these proposals attack the family. All these are matters which deeply concern the family. I hope that the noble and learned Lord who has introduced these regulations will address himself in his further speech to telling us why it has been felt necessary by this Government to take away that defence from some of these who have been protected in their social life, above all in their family life, by the present legal aid provisions. Why is it that the Government, who claim to be a Government protecting the family, are quite deliberately and openly reducing the rights of the family to apply the laws of this country and to claim the justice of a British citizen?
6.50 p.m.
The Lord Chancellor: My Lords, while I am grateful to all noble Lords who have taken part in this debate, I am bound to say that having listened to all the speeches I am not particularly impressed with the case against me as it stands at the moment. I shall, if I may, deal in a moment with the intervention of the noble Lord, Lord Hatch of Lusby, who made a series of thoroughly bad points, but it seems to me that the critics cannot have it both ways.
When a sort of Doomsday approach is adopted towards these very small changes, with people saying—I think quoting from my noble friend Lord Campbell of Alloway, to whom I was grateful for his support—that the whole line is shattered by these

921
minute changes, I am bound to say that that does not live very well with the correct estimate of the noble Lord, Lord Wigoder, that the saving is £7.5 million and the description of it by the noble Lord, Lord Hatch of Lusby, as a paltry sum. You cannot have it both ways. You are either shattering this grand social edifice or you are saving a paltry sum, but you cannot be doing both. That is nonsense.
If I may say so, dealing now with the noble Lord, Lord Hatch of Lusby, we are always glad for laymen to take part in even the most intricate of legal debates. They add a breath of common sense; they stop us convoluting ourselves in intricacies and logical difficulties. But I must tell him, first of all, that he began by saying that these regulations could not be debated in another place. Of course that is nonsense, and he ought to know it. If regulations need an affirmative resolution, they require an affirmative resolution. If they are subject to negative resolution, they are subject to negative resolution; and as a matter of fact they are being debated next Tuesday, the 25th. That is the sort of remark which is not particularly helpful.
The noble Lord asked me what is the extra administrative cost to the DHSS, which he gloomily said was one of the departments most in need. The answer is, nil. There is no additional cost to the DHSS. There was no hurry. The regulations were laid on 19th February, we gave the proper 21 days' notice, and apparently the noble Lord has not studied his constitutional law even to the extent of studying Section 1, negative procedure. It is that the regulations come into force unless they are prayed against. This, I am bound to say, was a series of tear-jerking attempts which have utterly failed to jerk a single tear anywhere in the Chamber.
Now we come to the more substantial meat of this. The 24-hour duty solicitor scheme, which was one of the improvements introduced this year in January, will cost between £20 million and £30 million at least this year. We are being asked to save £7.5 million, which shows the proportion in which this has to be viewed. When it was clear to me that I would have to make some saving somewhere, I inquired as to that which would do the least harm to the recipients of legal aid. I was clearly and unequivocally advised that this was the right choice to make. Obviously no one, but no one, who is responsible for a spending department welcomes a pressure of any kind upon him, but this was the advice I received and nobody has suggested an alternative which would have cost less.
As for the idea that the percentage of persons who would be excluded from legal aid—which has been fixed at about 70 per cent. Of the population ever since the 1979 reforms of the noble and learned Lord, Lord Elwyn-Jones, which I was broadly able to applaud and have applauded ever since—
Lord Elwyn-Jones: Until now!
The Lord Chancellor: No, my Lords, even now. The noble and learned Lord raised it to 70 per cent. Of the population entitled to legal aid.
I think the result will be practically unobservable. There will be about a thousand people out of 250,000 people removed from legal aid. As for those entitled, a
922
man with two children can earn, after the changes, up to £13,024 and still be entitled; a man with four children will qualify up to £16,108. That is the fact of the matter which is said to be so bad. I was very grateful to the noble and learned Lord, Lord Denning, for putting the matter in its historical perspective. He gave the example of the contribution of £190, but he did not put the case as strongly as he might have, because that £190 is only payable over a period of 12 months so far as I know. Really this is not a very good case.
In the meantime, one has to face the realities of the situation. We soon will top the £400 million mark on this social service. I am as much in favour, and have always been as much in favour, of this social service as anybody else. I do not claim enormous credit for those vast sums being expended on it because it is in fact a reflection of the number of people who commit, or who are charged with, crimes. I do not get any joy out of that. They are of course entitled to defence. A very large number get off, so they are presumed to be innocent, but a great part of this sum is caused by people who give false evidence in their defence and do not get off. Although they are entitled to be defended under this scheme, and rightly, I must say that my withers are slightly unwrung, because if there is one person who is innocent of the offence of which they are being convicted it is the taxpayer.
I was very grateful to the noble Lord, Lord Wigoder, for saying that I was a generous-hearted man. It is probably more than I deserve, because some of my friends think that I am a bit mean. But one thing I do not either claim to be or plead guilty to is being generous with other people's money or niggardly with other people's money. I am a member of the Cabinet. I have to be the steward of the whole Consolidated Fund. Every penny that comes out of these regulations comes from the legal aid fund. That is funded by moneys provided out of Parliament, and money which comes out of that fund has to be at the expense of other spending departments or else the taxpayer.
That is the reality of the matter. It is not a question of whether I am generous. It is not a question of whether I am niggardly. It is a question of whether I am being responsible as a member of the Cabinet for the whole of government expenditure, and whether I have fought my corner with sufficient success.
As a matter of fact, though it is not for me to brag, if it be true that I have got away with a saving of only £7.5 million I should receive a pat on the back from those who favour more money on legal aid. My withers are slightly unwrung. I think that I have done rather well by legal aid on this matter. If we are looking at the realities of this, legal aid largely goes on matrimonial cases in civil law, and in criminal law on people who plead not guilty and get convicted. The taxpayer is innocent of the breakdown of marriage. We provide generous legal aid in such cases for the ancillaries, and we provide generous legal defence even for those who plead not guilty and turn out to be telling lies.
The last of the points I should like to make is that the noble Lord, Lord Hatch of Lusby, went so far as to say that in criminal legal aid people are hit hardest, but nobody will be taken out of legal aid in the criminal field because there is no upper limit. In criminal cases

923
all that will happen is that some people will be asked to pay a slightly bigger contribution and, according to the best advice I have, they will be able to afford that extra contribution.
This is a very small matter to have taken up the time of the House for so long, but I attach a great deal of importance to my administration of this fund. I have done the best that I can for the people who gain by it. I have also done the best that I think I ought to do as a steward of the public money which I am just as much as is the Chancellor of the Exchequer. That is all I have to say. I am not guilty!
Perhaps, before I put the Question, as I know that the noble and learned Lord wants to divide' somewhere, I should ask him to give me some indication where he wishes to divide.
Lord Elwyn-Jones: My Lords, I must obey the orders of my Chief Whip. I understand that the procedure to be followed is that the Motions in regard to the statutory instruments will now be put. I shall not move my Prayers against those Motions, but I shall certainly move the Motion standing in my name which is:
"That this House regrets the retrogressive actions of the Government in regard to Legal Aid and Advice".
The Lord Chancellor: My Lords, I am much obliged to the noble Lord. The Question is therefore that the Motion standing in my name be agreed to.
On Question, Motion agreed to.

Legal Aid in Criminal Proceedings (General) (Amendment) Regulations 1986
7.2 p.m.
Lord Elwyn-Joneshad given notice of his intention to move, That an humble Address be presented to Her Majesty praying that the regulations (S.I. 1986 No.274) be annulled.
The noble and learned Lord said: My Lords, I do not wish to move the Prayer.

Legal Advice and Assistance (Amendment) Regulations 1986
Lord Elwyn-Joneshad given notice of his intention to move, That an humble Address be presented to Her Majesty praying that the regulations (S.I. 1986 No.275) be annulled.
The noble and learned Lord said: My Lords, I do not wish to move the Prayer.

Legal Aid (Assessment of Resources) (Amendment) Regulations 1986
Lord Elwyn-Joneshad given notice of his intention to move, That an humble Address be presented to Her Majesty praying that the regulations (S.I. 1986 No.276) be annulled.
The noble and learned Lord said: My Lords, I do not wish to move the Prayer.

Legal Aid and Advice
7.3 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones rose to move, That this House regrets the retrogressive actions of the Government in regard to legal aid and advice.
The noble and learned Lord said: My Lords, the matter which arises in this debate is not a small one at all. The question we are having to consider is, if savings in the legal aid scheme are to be found—we are talking about £7½ million—from whom should those savings be derived; from the people most able to pay the money that is sought, or those least able? This is directed against the least able people living on the fringe of entitlement to supplementary benefit. They are the poorest families in the country and they are the people who are to be punished by this proposal to save £7½ million. There was an attempt by the noble Lord, Lord Campbell of Alloway, to justify what is being done by the savings effected by the ABWOR proposals. Those, as I understand it, will be minimal, but will in no way amount to the extractions proposed by these new regulations.
My information is that about 9,000 more people living on the fringe of supplementary benefit will have to find money to promote their interests in court. It is their interests that are being sacrificed. In the future millions of families could be adversely affected. This is, in my submission with great respect, a shaming way of saving money, for this great country with its enormous wealth and income that now we should seek to save £7½ million on legal aid by making the poorest people in the country with families make up the costs. I beg to move.
Moved, That this House regrets the retrogressive actions of the Government in regard to legal aid and advice.—(Lord Elwyn-Jones.)
The Lord Chancellor: My Lords, I shall not repeat myself, but those affected are at the top of the contribution limit and not at the bottom. They are therefore not those most in need of aid.
7.5 p.m.
On Question, Whether the Motion shall be agreed to?
Their Lordships divided; Contents, 83; Not-Contents, 115.

DIVISION NO. 3

CONTENTS

Airedale, L.

Denington, B.

Amherst, E.

Elwyn-Jones, L.

Ardwick, L.

Ennals, L.

Barnett, L.

Ewart-Biggs, B.

Bernstein, L.

Falkender, B.

Birk, B.

Fisher of Rednal, B.

Blease, L.

Gallacher, L.

Bottomley, L.

Galpern, L.

Brockway, L.

Graham of Edmonton, L. [Teller.]

Brooks of Tremorfa, L.

Campbell of Eskan, L.

Grey, E.

Carmichael of Kelvingrove, L.

Hampton, L.

Cledwyn of Penrhos, L.

Hanworth, V.

Collison, L.

Hatch of Lusby, L.

David, B.

Heycock, L.

Dean of Beswick, L.

Jacques, L.

925

Jenkins of Putney, L.

Rhodes, L.

John-Mackie, L.

Ritchie of Dundee, L.

Kagan, L.

Rochester, L.

Kaldor, L.

Ross of Marnock, L.

Kilbracken, L.

Seear, B.

Kilmarnock, L.

Sefton of Garston, L.

Kirkhill, L.

Serota, B.

Kissin, L.

Shackleton, L.

Lawrence, L.

Shepherd, L.

Lloyd of Kilgerran, L.

Simon, V.

Lockwood, B.

Stallard, L.

Lovell-Davis, L.

Stedman, B.

McIntosh of Haringey, L.

Stoddart of Swindon, L.

Mackie of Benshie, L.

Strabolgi, L.

McNair, L.

Taylor of Blackburn, L.

Melchett, L.

Taylor of Mansfield, L.

Meston, L.

Tordoff, L.

Mishcon, L.

Turner of Camden, B.

Mulley, L.

Underhill, L.

Murray of Epping Forest, L.

Walston, L.

Nicol, B.

Whaddon, L.

Ogmore, L.

Wigoder, L.

Oram, L.

Williams of Elvel, L.

Parry, L.

Winchilsea and Nottingham, E.

Phillips, B.

Pitt of Hampstead, L.

Winstanley, L.

Ponsonby of Shulbrede, L. [Teller.]

NOT-CONTENTS

Airey of Abingdon, B.

Hylton-Foster, B.

Allerton, L.

Kaberry of Adel, L.

Ampthill, L.

Kimball, L.

Ashbourne, L.

King of Wartnaby, L.

Beaverbrook, L.

Lane-Fox, B.

Belhaven and Stenton, L.

Lauderdale, E.

Belstead, L.

Layton, L.

Birdwood, L.

Lindsey and Abingdon, E.

Boyd-Carpenter, L.

Long, V.

Brabazon of Tara, L.

Lurgan, L.

Brentford, V.

Lyell, L.

Bridgeman, V.

McFadzean, L.

Brougham and Vaux, L.

Macleod of Borve, B.

Butterworth, L.

MacLeod of Fuinary, L.

Caithness, E.

Malmesbury, E.

Cameron of Lochbroom, L.

Mancroft, L.

Campbell of Alloway, L.

Margadale, L.

Carnegy of Lour, B.

Marley, L.

Chelwood, L.

Marshall of Leeds, L.

Cork and Orrery, E.

Maude of Stratford-upon-

Cox, B.

Avon, L.

Croft, L.

Merrivale, L.

Cross, V.

Mersey, V.

Cullen of Ashbourne, L.

Milverton, L.

Davidson, V.

Mottistone, L.

Denham, L. [Teller.]

Mowbray and Stourton, L.

Denning, L.

Munster, E.

Dundee, E.

Napier and Ettrick, L.

Effingham, E.

Newall, L.

Elliot of Harwood, B.

Orkney, E.

Elliott of Morpeth, L.

Orr-Ewing, L.

Elton, L.

Peyton of Yeovil, L.

Fanshawe of Richmond, L.

Radnor, E.

Ferrers, E.

Reay, L.

Fortescue, E.

Renwick, L.

Fraser of Kilmorack, L.

Rochdale, V.

Geddes, L.

Russell of Liverpool, L.

Gibson-Watt, L.

St. Aldwyn, E.

Gisborough, L.

Sanderson of Bowden, L.

Glanusk, L.

Selkirk, E.

Glenarthur, L.

Selsdon, L.

Gray of Contin, L.

Sharples, B.

Greenway, L.

Skelmersdale, L.

Grimston of Westbury, L.

Stockton, E.

Hailsham of Saint Marylebone, L.

Stodart of Leaston, L.

Strathcona and Mount Royal, L.

Halsbury, E.

Henley, L.

Swinfen, L.

Holderness, L.

Swinton, E. [Teller.]

Home of the Hirsel, L.

Terrington, L.

Hooper, B.

Teynham, L.

926

Thomas of Swynnerton, L.

Vivian, L.

Thorneycroft, L.

Waldegrave, E.

Torphichen, L.

Ward of Witley, V.

Trefgarne, L.

Whitelaw, V.

Trumpington, B.

Windlesham, L.

Vaux of Harrowden, L.

Wise, L.

Vickers, B.

Wynford, L.

Vinson, L.

Ypres, E.

Resolved in the negative, and Motion disagreed to accordingly.

Housing (Scotland) Bill
7.15 p.m.
The Minister of State, Scottish Office (Lord Gray of Contin): My Lords, I beg to move that this Bill be now read a second time.
This Bill extends the rights of tenants by bringing tenants of housing associations and regional councils into the right to buy, and by increasing the discounts for tenants living in flats, The Bill makes a number of further changes to the right to buy, and it also provides for improvements to the system of building control.
The right to buy is only part of our wider housing policy, which aims to provide greater choice in housing matters, in line with the clearly expressed wishes of ordinary people. To this end, we have set out to promote variety in housing provision and greater choice of tenure, and we have aimed to tackle the problems of the large and dispiriting council estates, which have for so long been a depressing feature of the housing scene in Scotland, by giving control and responsibility over their housing back to the tenants.
The right to buy has made a major contribution to these changes. The 1980 Tenants' Rights Act gave many people their first opportunity of realising their wish to buy their own home. Since the Act came into force, more than 75,000 houses have been sold by district councils, the new towns and the Scottish Special Housing Association. Nearly 8,000 sales are at an earlier stage in theprocess. Sales are to the benefit of the community as a whole, not least because they release extra resources which can be spent on the remaining council stock. Nor have sales been concentrated exclusively in the better houses, as some opponents of the right to buy feared.
If I may turn now to the detailed provisions of the present Bill, Clause 1 extends the right to buy to tenants of registered housing associations and regional councils. Tenants of housing associations have had security of tenure since 1980, but they have not previously been able to buy their homes, except at the discretion of their landlord. We have been disappointed by the small number of houses which associations have sold to their tenants. To date, despite our encouragement to associations to operate a positive policy of voluntary sales, very few houses have been sold. We had been particularly concerned that a substantial number of housing associations in Scotland interpreted the voluntary nature of the sales policy as an avenue for simply refusing to sell houses under any circumstances. We concluded that it was unfair to continue to deny housing association tenants the rights enjoyed by other public tenants in Scotland. Housing associations were given a very clear warning,

927
over a period of months and, indeed, years, of our intention to introduce a right to buy. I find difficult to accept, therefore, their claims that the present legislation has come as a surprise.
The provisions extending the right to buy to housing association tenants were given very careful consideration and were amended substantially in another place, in the light of representations received from various quarters. Particular concern was expressed over the issue of housing associations with charitable status. As a result, the Bill has been amended to exempt from the right to buy those Scottish housing associations which have been registered with the Housing Corporation under charitable rules from the outset and which have had charitable status for tax purposes continuously since October 1980. The main benefit of exempting these associations from the right to buy will be to protect their charitable tax status.
The Bill was also amended in another place to exclude from the right to buy integrated housing association schemes, where mainstream housing is linked with appropriate support services, with the aim of providing care and support in the community for groups such as ex-offenders and people suffering from mental disorder. Again, these changes were made in response to representations received. They indicate the Government's willingness to be flexible and to listen to views as to how the legislation can be improved.
Clause 1 also extends security of tenure and the right to buy to tenants of regional councils. Again, our experience of the right to buy has led us to the view that it is no longer possible to defend not giving such tenants the right to buy their homes. We recognised, however, that there are houses which regional authorities need to retain for operational purposes, and provision is made to exclude these houses from the right to buy.
Clause 2 provides that the discount to which a tenant is entitled under the right to buy will be increased by 10 per cent., where the dwellinghouse being purchased is a flat. We have been concerned that flats, which account for almost half the Scottish public sector stock, have been selling more slowly than other types of houses. When we undertook research into sales, it became clear that tenants of flats were deterred from buying by the thought of expenses which might arise after sale, such as service charges and common repairs. We concluded that it would be fair to give tenants of flats extra discount to reflect these additional responsibilities. As the Bill stands at present, tenants buying a flat will be entitled to discount at a new minimum level of 42 per cent. after two years, rising to 70 per cent. after 30 years.
There has been concern in another place that the additional 10 per cent. discount does not go far enough and that an additional incentive is needed if we are to make the purchase of a flat an attractive and reasonable proposition. The corresponding part of the Housing and Planning Bill has been amended, with the result that its provisions for England and Wales no longer reflect those in the present Bill for Scotland. We do not think there can be justification for tenants living in similar types of flats to have different entitlement to discount North and South of the Border. We have
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therefore undertaken to give further consideration to the issue of the discount on flats, and I envisage that we shall bring forward amendments to these provisions at a later stage.
The Bill contains a number of further provisions intended to amend and clarify aspects of the right to buy and other rights of public sector tenants. Our experience of operating the right to buy scheme has suggested a number of ways in which the legislation might be amended to make it easier for tenants to purchase and to remove anomalies which have given rise to difficulties in practice. Perhaps the most substantial of these changes is the proposal in Clause 11 and Schedule 1 to reduce the period within which a purchaser is liable to repay discount on early resale from five years to three; this will help aid mobility. The Bill also deals with certain other matters relevant to housing associations, including letting policies, share ownership and the granting of benefits to committee members in special circumstances.
I do not wish to spend a long time on a detailed description of these remaining provisions of the Bill. If noble Lords have particular questions on these provisions, I shall be happy to attempt to answer them in my concluding remarks.
Perhaps I may say a few words, however, about Clause 18, which amends the system of building control in Scotland. The provisions in the clause follow from a comprehensive review, involving wide public consultation, of Scotland's distinctive building control system. They are designed to make the system simpler and more efficient, in keeping with present-day needs. Clause 18 provides for a range of small additions to buildings to be excluded from the full requirements of the building standards regulations; it provides for the introduction of a measure of self-certification of design and a system of class warrants for standard building types; and it provides for more flexible fee arrangements which will enable work carried out for the benefit of disabled people to be exempt from building control fees.
I have described the main purposes of the present Bill. The changes introduced by the Bill are in line with the wishes of Scottish tenants for greater freedom and choice in housing matters. In their different ways, these measures will extend opportunities for home ownership and cut out unnecessary red tape. I believe that our policies are leading to a significant transformation of the housing scene in Scotland, distributing wealth more widely and providing for greater responsibility and choice.
The changes introduced by this Bill are in line with the wishes of the vast majority of tenants. On that basis, I commend it to the House and trust that your Lordships will give it your support.
Moved, That the Bill be now read a second time.—(Lord Gray of Contin.)
7.25 p.m.
Lord Carmichael of Kelvingrove: My Lords, I must thank the Minister for the explanation that he has given of this Bill. We in this House have the advantage, in dealing with a Bill such as this, of having had the ability to look at the Committee stage in another place. I am sure the Minister will have read reports of the 18

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sittings, plus the Second Reading and two sessions on Report and Third Reading of this Bill.
I should like to confine myself this evening principally to the effect of the right to buy housing association houses. There are a number of points in the Bill, as the noble Lord has said, which are quite good, including the provisions of Clause 18 and a number of other points. But the guts of the Bill and what has caused most interest in Scotland is the question of the right to buy housing association housing.
When I was reading through some of the reports of the Committee stage and the Second Reading of the Bill in another place, I was surprised to discover just how ill-informed many Conservative Members in another place are about the history of Scottish housing. Some of them seemed to give the idea that there was a period in Scottish housing when everything was lovely and when there was an abundance of housing to rent—a kind of victorian paradise in which people could move from house to house with very little effort. Of course for certain people—a small group of people—there was always this opportunity. The group included secure skilled craftsmen, and that is important because one of the things that bedevilled Scottish housing was that there was such insecurity in jobs that loans for the vast mass of the people were not possible. Because of the type of heavy industry we had and the hunger and so on that tended to go with it, the vast mass of the Scottish people had a housing problem.
It has always been inadequate, frequently mean and often insanitary. There are historic reasons, of course. There was the enormous influx of people from Ireland, from the North and South of Scotland and even from abroad. With people coming in, particularly in the industrial belt in Scotland, the growth of population was so incredible that housing facilities were very strained. We have never really got over that. We have been left with this legacy, and successive governments have tried to deal with it.
To give an example, I have a collection of what are known as "tickets"—they are actually little cast-iron discs that were on doors of houses, mainly slum property. I rescued some of them from houses in Bridgeton and some from Partick. The standard of housing round about 1900 was that an adult got 400 cubic feet of living space. One of the tabs has "six and a half adults, 2,600 cubic feet". Taking into consideration the height of the ceiling, it means that each individual had a space to live in of something like 4ft. by 10ft.; and a child had half of that. By the time the 1920s came, these tickets were ignored and the numbers living in those houses were way beyond the six and a half adults for a 2,600 cubic foot house. Housing became such a problem that it has always amazed me how people coming from housing such as that, with such overcrowding—with cold water and outside lavatory facilities—could still live and behave with a dignity and pride.
I am sure that part of the reason for the survival was that there was a wrap around them of the community. People belonged to an area; they had some identification with their environment and neighbourhood. I discovered in my surgeries that even people who had left the old areas and gone to live in
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some of the big housing schemes still talked about their roots and their sadness at seeing so many of the old landmarks disappearing. That, I believe, is the way in which housing associations have made a very great contribution—much greater than a purely statistical assessment of their work conveys to us.
I am sure that it will be stressed again and again during this debate and in Committee that the uniqueness of the Scottish housing associations is that so many are community based. That has meant, to a much greater extent than in England and Wales, that it has been local people who felt for their neighbourhood who have been the driving force and, to some extent, the corrective force to the professionals who did the associations' day-to-day work. I have in my time been close to a number of the Glasgow housing associations. I can assure the House that no amount of money could have provided the involvement and commitment that those voluntary members freely and enthusiastically gave to their associations.
Those people knew what was needed in their areas. Sometimes, with an almost obsessive persistence, they lobbied anywhere that there was a chance of an open door, making it possible for their ideas to be accepted. I am thinking, for instance, of some cases where people thought to try and preserve houses which were technically impossible to preserve, perhaps because of the subsidence which we have in many parts of the west of Scotland. Because they belonged to a community housing association and knew the area, were easily accessible and met in a responsible way, it was frequently possible for the experts to explain to them—not in a "them and us" situation, but in a genuine situation—that the rebuilding of the property was impossible.
On the other hand, those people held out a number of times for a house or a close to be rebuilt at sometimes much more than the face value would allow, in order to preserve the facade. I must give credit to my noble friend Lord Ross of Marnock. When he was Secretary of State I took several cases to him and was able to obtain additional grants to preserve a whole row of tenement property. When I go back and look at it now, I can assure the Minister that the tenants were right and, perhaps, the experts were wrong. Twice I was able to intervene in that way, and other people were able to do much the same because of the feelings and the pressure of the local housing associations.
There was a period during which certain parts of our industrial cities had blue lines drawn around them—Glasgow was blue, but I do not know what the other areas were—and building societies did not give mortgages within those areas. I do not say that it was only the housing associations, but partly because of their work, which gave a sense of local pride to and cleaned up the areas, building societies regarded it as highly desirable to give grants in those areas, and they are giving them now.
I agree that the housing associations were only one of the factors in the regeneration of our inner cities, but I suggest that their existence brought a local dimension to the problem which would have been much more difficult to arrest without them. I am also sure that

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their examples spurred private owners to clean up their properties, which is of great aesthetic benefit to us all.
I believe that the Bill will change the nature of the housing associations. By reducing the number of houses available for rent, it will reduce the scope for flexibility to undertake new work. I believe that it will reduce much of the activity and a great deal of the input that went into a genuine housing association. Without in any way belittling other types of associations, I think we may finish up by having merely tenants' associations. They have their place, but it is a different place from that of the housing associations.
I believe that comparisons with the housing associations in England and Wales, which have the right to buy, are not appropriate. Community-based housing associations are a unique experiment. They are different from other associations and the public sector. An examination of the size of the Scottish associations, as against the English and Welsh associations, shows how marked that difference really is. By 1984 there were 2,450 housing associations in England and Wales, owning 500,000 houses. That is nearly one-quarer of all the public sector housing capital investment in England. In Scotland, by a little later—in mid-1985—there were 194 housing associations owning 25,000 houses, improved or purpose-built. Most of them were for rent. That is less than one-sixth of the Scottish public sector investment.
The size of the associations north and south of the Border also differs significantly. In England and Wales, 50 per cent. of association housing stock is in management units of more than 2,500 houses. In Scotland, just over 40 per cent. of the total stock is managed by associations which have between 500 and 1,000 housing units. That is a totally different scale altogether. Community-based housing associations in Scotland manage 72 per cent. of all housing associations' stock, so they are essentially small organisations.
Since community-based associations have closely defined geographic areas—this is an important point—the right to buy could have a very marked effect on associations' work in specific localities. The introduction of the right to buy will create a number of strains on the internal organisations of those community-based associations. Local committee members may become disheartened and feel that personal effort has been wasted when a number of recently rehabilitated properties are sold at substantial discounts, particularly now that the new discounts have been announced by the Minister.
Implementing the right to buy will involve associations in a complex administrative process which could mean that small professional staffs are distracted from the task at hand, which is really the rehabilitation of houses. The rehabilitation programmes will certainly suffer, particularly those of associations which expect a high demand for the right to buy.
Another point which worries people is that if too many houses are bought from the housing associations
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by people who can just make the buying price and who have very little extra, the possibility is that repairs will be neglected. It is not a criticism of private owners, but while it would be wrong to say that owner-occupiers do not maintain their properties it is true that adequate maintenance puts a severe financial strain on many, and some repairs are put off. That, of course, creates a problem. As witness to that, there has been a remarkable demand for repair and improvement grants by owner-occupiers over the past five years.
I know that the Government are very well aware of the financial costs of introducing the right to buy to housing associations, but I am not sure that they fully appreciate the social costs that that could bring. Houses sold to sitting tenants will be permanently lost from the stocks for rent, thus reinforcing the previous system of restricted choice. For those unable to obtain a rented property within the community there will be no alternative but to accept housing elsewhere. That, of course, is not the way to build stable inner city communities. Housing associations are greatly concerned and alarmed about the impact that sales will have on their ability to meet housing need within their communities.
As I said earlier, most associations have a relatively small housing stock, and, therefore, the loss of a few houses, particularly large family or specially managed units, will seriously limit their ability to meet the future requirements of those who wish or need to rent.
The right to buy will also take away one of the big advances that housing associations have been able to make; that is, the fact that they have been the third arm of housing choice. There was the private sector, the local authority and the housing associations. Experimentation in tenure is not achievable when associations are treated as a normal part of the public sector.
The success of the community-based housing associations' inner-city work has been dependent on a very strong sense of working for the community, both by staff and by committee members. The introduction of the right to buy introduces a new set of issues which have clear implications for both the organisation and the community. Collectively, the community associations are stressing that the right to buy really denies the right, in their case particularly, to rent.
I do not believe that this Bill helps in any special or noticeable way with our dreadful housing problems. By convention we do not oppose Bills on Second Reading in this House, particularly those that have gone through another place. But as the Committee stage approaches, we on this side will be putting down amendments as a last ditch stand which we hope will improve the Bill in a way that was not possible because of the situation in the other place. I believe that it is an extremely important Bill, particularly for inner-city areas such as the one which I represented and at present live in.
7.42 p.m.
Lord Mackie of Benshie: My Lords, I should like to start with an apology to the House, in that I may have to leave before the Minister gets up to reply. The reason for that is that I organise my affairs according to the Order Paper and I accepted an invitation to dine

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fairly late. But suddenly the usual channels put in the lawyers, who are off to their dinner, happily, and the Scots were put back in time, whereas I think they may well have deserved to stay in their place. However, I apologise for that.
I now follow the excellent speech by the noble Lord, Lord Carmichael. I must say that the Government are being slightly doctrinaire. One of the most attractive things about the Tories is that they are pragmatic and often quite sensible. But why, having been successful with the selling of municipal houses, which has been going well, do they suddenly feel that they have to upset the housing associations by making them sell houses? They are on quite a different basis, being brought in to counter the great mass of municipal houses and it will upset the political balance, let alone anything else. Having that going reasonably well, why do they suddenly feel that they have to tamper with the housing associations, most of which in Scotland are small and have been working extraordinarily well?
This is a piece of retrospective legislation, and I am surprised that the Minister, who is a very sensible and nice man, should be talking so convincedly about the purposes of the Bill. However, as the noble Lord, Lord Carmichael, said, we shall endeavour to assist him by putting down sensible amendments which will perhaps make it a better Bill.
There are a whole number of points that one must raise. It is very difficult to speak about the broad aspect of the subject without mentioning the particular, and the charitable status will surely bring a lot of anomalies into this business. I understand that there will be exceptions made, if the associations were formed as charitable organisations before 1980. But that precludes any new associations—and they are very valuable and are acknowledged as such by the Government—being formed with charitable status and getting the advantage thereof, which does not appear to me to be particularly sensible.
In the Highlands areas, the new requirement on the regional authorities to sell houses will make it extremely awkward in the case of teachers, firemen and the police. The regional councils will be exempted only if housing is a condition of employment whereas there are many factors against it being a condition of employment. It is purely a matter of practicality that you get better people in the remote areas if you can offer them a house, and, in fact, it is often a condition of getting anyone at all; so we want to look at that.
The other question affecting the rural areas is that one-third of the stock has to be sold before the Government will consider making an exception. Even after one-third is sold, in some small housing associations, the houses must still be sold and have gone into the owners' possession as holiday homes before the Government will allow an association to hold on to the rest of the houses. I think that we shall want to look at that in the case of the rural and Highland areas.
The noble Lord, Lord Carmichael, has spoken with knowledge and with great truth about the community housing associations. They have certainly done much more than improve houses. In many cases, they have brought an entirely new spirit into the community and have acted not only as house improvers, but very
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much as community improvers. This is more necessary in the inner cities than practically anything else.
For example, there is a very interesting scheme in Edinburgh. The Grass Market scheme is in a lovely old part of Edinburgh which fell into disrepair and, in many cases, disrepute. The Grass Market Association has 86 houses and, having brought the area up, it has suddenly become extremely attractive. If the association sells one-third of its houses or anything near it, it will be too small to do the repairs. Furthermore, there are already people trying to tempt the association into selling, because that will be an extremely attractive inner area when it is cleaned up. It is an attractive place now, and it will get more attractive, and there will be a very artificial city centre there if a community scheme such as this is destroyed.
Of course, these are mostly flats, which means that they will be sold at upwards of 40 per cent. discount, and how the association will stand that sort of loss without a very large subvention from the Government I do not know. It does not appear practical, and great harm will be done to the morale of the committee if this whole Bill goes through unamended. It is very important that successful schemes and housing associations in Scotland, and particularly community ones, should be encouraged and not discouraged.
There is unanimity of opposition to the scheme. I do not know whether the pressure is coming from the tenants or from the Government. I suspect that the doctrinaire attitude of the Government has more to do with it than the desire of the tenants of the many excellent associations to buy their houses. However, the Government and the Minister are reasonable people, I suppose, and I have no doubt that they will listen to us with great attention and with reasonableness when we are speaking to our amendments. We shall put them down in that spirit and expect a similar response.
7.49 p.m.
The Earl of Selkirk: My Lords, I hope my noble friend is right in saying that this Bill will help housing in Scotland, and I wish him every joy. But I must confess that this is one of the most complicated Bills that I have tried to understand for a long time. Practically every single clause is amending some other section in two or three other Acts. I am quite certain that nobody will understand this Bill unless it is explained by professional advisers. Whether people are on legal aid or not, they will need such advice or they will not understand their rights under this Bill, and that is a matter of regret.
There are two clauses which are not amendments of old Acts. First, there appears to be something being done to the Scottish Special Housing Association. This organisation has done a magnificent job over half a century and we wish it every good fortune. Whether what the Government are doing to it is an improvement is wholly obscure and it is not in the least clear how it stands. It may be useful—I do not know whether it will or not.
Clause 18 amends the building regulations. It appears too much to put the emphasis on structure. Perhaps I may suggest that some consideration be

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given to design. I do not know whether anyone in the Scottish Office has an eye to design, but there are many architects who with shrewd changes of the line can make a hideous house into an agreeable one. Is this a consideration which is coming in? Clause 18 refers to class warrants for houses. Does that mean identical houses in rows, or are they going to be houses which at least to some degree are amenable and pleasant to look at?
I must reiterate what has been said by the noble Lords, Lord Carmichael and Lord Mackie. I do not know why the Government want to give a slap in the face to the housing associations. They are formed from a large body of people who are devoting themselves to improving the housing in Scotland, and for special cases. Why should the Government not treat them with a great deal more respect, as a minimum? Having made a code of practice negotiated by the present Secretary of State when he was holding a junior appointment, the Government simply scrapped that and without consultation put forward a completely new scheme. This needs some explanation. These are people who should be encouraged. The noble Lord says, "Oh, well, the choice will be better", but the choice will be smaller. The Government are reducing the number of houses to let, which is the great shortage at the present time.
The building societies have made tremendous progress in owner occupation. The noble Lord cannot say that I have not done everything I can to encourage owner occupation in appropriate cases—but not at the price of destroying housing associations which are dealing, as they say repeatedly, with special cases of all kinds which come to them. I have no reason to believe that that is not correct. Why do the Government flatly refuse to follow the example of England in this matter? I am not commonly saying this but we had very extensive debates on this subject some two, three or four years ago, in which a great majority in this House—one of the biggest majorities the House has had—said that respect should be shown in this field to charitable houses. That has been completely ignored. I am afraid that we shall have quite strong discussions about this.
The noble Lord, Lord Mackie, mentioned this extraordinary date—3rd October 1980. It is like 1066 and All That—these famous dates which come up from time to time. Why should charitable houses after that date be cut off? Are you really trying to destroy the soul of the housing associations? This is a matter on which they feel very deeply. In the other place the Minister in charge was asked to explain the date 3rd October 1980. He gave no answer at all. He said, "Oh well, that is when the 1980 Act came into operation". That has nothing whatsoever to do with the subject. I hope that the noble Lord will look at this a little more seriously. There seems to be no reason why the people engaged voluntarily in helping housing in Scotland should be treated in this way as if they had done something they should not have done; but to put forward a Bill to break a code which was working—though perhaps not perfectly, by all means—without consultation is an act of discourtesy. I very much regret that the Scottish Office should be engaged—I think, quite wrongly—in something of this
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kind. They may have had warnings but to put forward such a Bill, which goes far further than the English Bill, is sad.
Charitable purposes are well established and are perfectly clearly laid down. They are well established in the Housing Associations Act which was passed last year. I cannot see why something nearer the English line should not be made. They deal with a special class of people—people who are older, who are infirm, who no doubt are mentally weak or physically handicapped. This is a class of person which wants special attention and which may not always get houses of a different kind. In some cases they are sheltered occupiers but others are cases where a minor amount of attention is given. I very much hope that the Government will look at this. I shall certainly go for this date of 3rd October 1980. I have had no answer to that point in any of the papers so far and it is something we should look at carefully.
I am afraid that the noble Lord's Bill will take the heart out of the housing associations. The 180 associations, or whatever is the number, will feel very much subdued. I should have thought that it was the task of the Government to encourage them to go on with their work instead of giving them something which will be of grave discouragement to the whole movement. Amendments will certainly be put down at the Committee stage and I hope that the Government will look very carefully at what they are doing at the present time.
7.56 p.m.
The Earl of Dundee: My Lords, while clearly this Bill is closely connected to the Tenants' Rights, Etc. (Scotland) Act 1980 there is every good reason for judging it quite apart from that Act. We may support the right to become a house owner; we may consider that the 1980 Act has worked reasonably well in Scotland. But before welcoming this Bill, which seeks to extend further the right to buy in the public sector, it should be asked whether any of the measures threaten to undo some existing achievements; and equally whether the Bill in its present form may threaten to deflect Government initiative and energy from other important aspects of the Scottish housing problem.
In regard to housing associations, for example, if their inclusion in the previous legislation had not threatened to be counter-productive, they would not have been exempted as they were. In recent years, as we know, they have done a great deal to help rehabilitate inner city areas. In Dundee, where there is an acute shortage of homes that people want, although the number of council houses exceeds demand, housing association properties are much sought after. Naturally Scottish housing associations are concerned about the effect of this proposed legislation on their current activities. The noble Lords, Lord Carmichael and Lord Mackie, and my noble friend Lord Selkirk have already referred to this.
Can my noble friend the Minister give an assurance that the creative work of Scottish housing associations will not now be restricted but that money released by the Bill can instead be channelled into an enlarged programme of rehabilitation and into the special provision of homes for the elderly, sick and disabled?

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Then there is the parallel extension of the right to buy to regional council properties. There are also in the Bill the new incentives to prospective buyers arising from the improvement in discounts and in the alterations in the cut-off dates. Undoubtedly, extension to regional council properties brings consistency and it can remove the loophole which district councils are alleged to have used on occasion to prevent purchase. This can arise when a district council sells houses to a regional council which then leases them back to the district council which in its turn sublets to tenants, who thus lose their statutory right to buy from the district. Nor will improved discounts and altered cut-off dates, as measures in themselves, detract from home ownership. They are bound to increase it.
Conversely, however, it should be asked as a separate question: what effect will the increases of house sales of all the types concerned have on those who buy, on those who continue to rent, and on the quantity and quality of Scottish housing stock? Take first the housing stock. All of us are aware of the report on the state and fabric of Scottish housing, and of the fact that our housing estates are in very poor condition. At present roughly 250,000 properties are not occupied at all. How do we find capital and resources to carry out necessary work soon enough? Certainly council house sales have been contributing towards annual receipts. This year Glasgow District Council now estimates that it will exceed its own calculation of all budgeted receipts by £2 million. My information is that this amount could enable it to modernise an extra 600 houses. But everywhere the process of modernisation is far too slow.
What is significant, however, is the action which has been taken by a number of councils of all political parties, for which they deserve a great deal of credit. Those councils have brought in private developers to develop estates and then sell them. One notable and now well known example is the Pilton Estate in Edinburgh. It was said to be a highly undesirable place to live. The council sold it to a private organisation which renovated the estate, and it is now one of the most popular places in Edinburgh. Clearly, there may be several variations of this kind of venture.
For example, private developers may take on properties in association with, or independently of, local authorities. Occupants of the properties, once the properties have been rehabilitated, may be a mixture of owners and tenants. Then again, estates might be handed over to tenant organisations for management in partnership with building societies and other financial institutions.
What all those variations have in common is that resources from the private sector are made use of to improve the quality and quantity of the housing stock and to give people the houses that they want far sooner than would otherwise be possible.
Does my noble friend the Minister agree that such ventures should be actively supported? Will he say what particular steps the Government are prepared to take to stimulate further the healthy developments that have already occured?
I turn now to the effect of the legislation on those who buy, or on those who would like to buy. There are
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a great number of people who, in spite of sales discounts, either can only just afford a mortgage or else cannot afford one at all. As a result, both the decision to buy, for those who can afford a mortgage, and the prospect of buying, for those who cannot, is a constant frustration. Nor, while in theory it may be, is it in practice much consolation to them to reflect that the right to buy might not have existed in the first place.
Does my noble friend the Minister not accept that if it is customary to subsidise people who cannot afford to pay their rented costs, then it is consistent to subsidise people to enable them to meet mortgage payments? Are the Government prepared to introduce low-cost mortgage schemes accordingly, possibly in conjunction with local authorities and building societies?
Apart from that, there will always be a number of people who, even if they can afford fairly easily to buy their own homes, prefer to rent. Until and unless mortgage schemes are reorganised, there are also those who have to rent because they cannot afford to buy. For such people, it is necessary that there should be wide choice of rented accommodation throughout the country. As it is, the choice is not nearly wide enough. Clearly, that situation restricts mobility for those who do not necessarily want to stay in the particular community where they currently live. Equally, it diminishes opportunities for employment for those who are otherwise eager to move to another area to obtain a job.
While this Bill sets out to improve mobility and to widen choice, does my noble friend the Minister not acknowledge that a great deal more ought to be done in that respect? Further, does he not agree that reform of the rent Acts in which all new lettings were deregulated would create a vital new supply of accommodation for all those who wish to move, as well as for those who at present have little chance of being housed by the local authority at all?
Insofar as this Bill further encourages ownership and control of houses by their occupants, it is to be welcomed. However, it is very much to be hoped that action will soon be taken to lower mortgages for those who want to buy; to widen choice for those who wish to rent; and to encourage more private sector resources in the housing stock. If such measures were carried out, they would be of lasting benefit to all housing communities and to the Scottish housing problem.
8.3 p.m.
Baroness Elliot of Harwood: My Lords, I have listened with great interest to all the speeches that have been made on the Second Reading of this Bill. I take a more optimistic view of what this Bill will achieve than that taken by my noble friend Lord Selkirk and possibly by the noble Lord, Lord Carmichael. I speak this evening simply because I have had some experience of housing. I was on the Roxburgh County Council for 29 years, and one of the responsibilities I had there for a number of years was to be chairman of its housing committee.
Indeed, my recollections go back much further; to 1936, when my husband, the Secretary of State, started the Scottish Special Housing Association,

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which did more to build houses in Scotland than any other legislation. Fifty years later it still is a vital part of Scottish housing.
The situation today is different. The demand now as I see it in my own area is for the right to buy, which was encouraged by the tenants' rights Bill of 1980 and the increase in private company building. All that is good. I have been a tenant of my house in London for 47 years. When I was given the right to buy by my landlord—which in this case was Westminster City Council—I accepted it readily. I am sure that most people would like to own their own houses if they possibly can.
In this new Bill, 22,000 housing association tenants will be given the right to buy their houses, and I believe that that is only proper. I do not share the gloomy view that has been put forward by some that the housing associations will not benefit from this legislation. They will probably have more money to build more houses. I would have thought that this legislation will be a great asset to them.
The Bill proposes to increase the discount on the sale of flats by 10 per cent., and flats are nothing like so popular to buy or to live in as are houses. However, with a discount starting at 42 per cent. and rising to 70 per cent., there will be more opportunity and thus more incentive to buy.
One of the problems that we face in connection with unemployment is that very often jobs are only available some way from the places where people are living and from where houses are available. I hope very much that as a result of this Bill, people will be able to move from their original house or flat to places of work where there will be homes available for them. It is important that that should be done under this Bill, and I can see no reason why housing should not be made available in that way.
Immobility of the workforce is one of the troubles that we have in this country, as opposed to other countries such as the United States, where people move much more readily because there are more houses available. In order to assist employment, priority should be given to housebuilding in areas where jobs are available and to which people can move. I should like to see the Secretary of State being able to help council tenants to transfer to new areas where jobs are available, or perhaps to exchange houses if such were possible. That would give added help under this Bill.
The problems of housing vary enormously. What was said by the noble Lord, Lord Carmichael, is absolutely true. Glasgow is, on the whole, an area that, in my long experience, has always been different from any other part of Scotland. I can remember when the housing waiting list in Glasgow numbered more than 100,000, whereas I believe that today it is down to something like 20,000 or 30,000. That is all to the good.
Other areas are quite different. For example, I live near a town that has 200 empty houses. That is not because those houses are uninhabitable but simply because the council overbuilt. At the same time, the people in that town are building their own houses and buying new homes. They are leaving the council
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housing. In many ways that is interesting, but certainly it is not what one normally expects.
Again, in a rural area such as that in which I live in Scotland, empty houses are very often found. Owing to the mechanisation of farming, there are very often rather nice agricultural houses left empty. They are usually let as holiday homes, but sometimes they are not used at all. I have a feeling that under a Bill such as this, there might be more enterprise and more use made of houses that are empty but which could be used, if that were at all possible.
In the very old parts of cities, reconstruction is desperately needed. I agree with what has been said about reconstruction in cities. As I understand it, that is an aspect about which the Government are very keen. Certainly they appear so in England and I believe that that applies in some of the cities in Scotland. I hope that this will be encouraged and helped by this Bill.
In Scotland we are still below the figure of home ownership compared to England. By the end of 1984 nearly 60,000 houses had been sold from the public sector—5·8 per cent. of the housing stock. In England the proportion is very much greater. But there are three new towns in Scotland—Cumbernauld, Glenrothes and East Kilbride—where 16 per cent. of the housing stock has been sold to private families. I am sure that that is a good idea which should be encouraged.
I believe in the importance of private building and home ownership. In the Bill there is much to help that policy. I do not believe that the worry that has been expressed about housing associations cannot be met quite generously by the Government. I am sure that can be done. I give my wholehearted support to this Bill. I believe that it will be of great help to the housing situation in Scotland.
8.11 p.m.
Lord Sanderson of Bowden: My Lords, I apologise for not putting my name down to speak in this debate, but I am moved to rise as I have had some experience in the subject, having been chairman of a Scottish housing association for some years. I should like to echo what the noble Lord, Lord Carmichael, said about the dedicated people of all political persuasions who have made the housing association movement in Scotland. I speak of an association in a rural area as opposed to the noble Lord, Lord Carmichael, who knows Glasgow so well. I know what good work has been done. Therefore, I go along with him on that particular matter.
I also agree with the noble Lord on the architecture and architects involved. The schemes which have been produced in our area are a great credit to the profession. Certainly they have improved a lot of very poor housing that has been remodelled. My remarks also apply to some new buildings.
However, there is one aspect on which I look forward to hearing from the Minister when he replies to the debate—that is, we must never forget that the cash involved is taxpayers' money. My aim as chairman of a housing association in Scotland was to do as much for as many people as possible. If the right to buy that is given under this Bill is going to release

941
cash which will help more people to be better housed, then I for one will support the Bill wholeheartedly.
I look forward very much to the debates when amendments are tabled in Committee. I shall follow them very carefully. However, I believe that we must be very careful to remember that we are all in the business of improving the lot of people in Scotland. There must be better housing, particularly for single parents who we are helping dramatically, and particuarly for the elderly who wish to have warden services, and so on, to help them in their later years. If the housing associations in Scotland have done nothing else, they have certainly shown the way in that direction.
8.13 p.m.
Lord Ross of Marnock: My Lords, it has been an interesting debate. I do not know that it has covered the actual Bill, but then I do not blame anyone for not covering the Bill because it is a difficult Bill to understand. The Minister did his best. However, when one looks at it one discovers that clause after clause is amending the 1980 Act. And it is not just the 1980 Act. Your Lordships should not refer only to the 1980 Act, because that was amended by the 1984 Act; or was it the 1983 Act? There are also amendments to the 1985 Act. Believe it or not, when another place dealt with it the 1985 Act had not even been printed. So there was a little, secret enclave within the Scottish Office amending an Act and nobody else in Scotland had any idea of what they were doing. Well, we have made this complaint before about the comprehensibility or incomprehensibility of Bills. It will lend some interest to the Committee stage and we expect to know more about the Bill, when we finish it, than when we started. We hope to know more about all these complicated technical terms and about paragraphs (a), (b) and (c) of Clause 1(3), as amended by whatever it is, and so on. They do not mean a thing. Therefore, I have a feeling that a number of noble Lords were speaking very much in the dark.
The noble Lord, Lord Mackie of Benshie, made a very sensible speech. He pointed to the nonsense that there is. I shall tell the Minister the answer. It was cyclostyled and people were able to obtain a copy. That was the promise that was given and I hope the Minister gives the same promise in respect of the 1985 Act.
However, the housing associations in Scotland are very different from those in England and they are so different within Scotland. One cannot make comparisons with the Link Association work at Barnton, which is a very big association. It is even cynically suggested that the reason for the Bill is that the sitting Member of Parliament has a majority of only 500 or so. He hopes that giving the right to buy to people so that they can purchase a £60,000 house for probably less than £30,000 will endear him and the Government to the hearts of the people concerned. I would not be as cynical as that; but it is a fact that the people who are going to be hardest hit by this are the smaller and uniquely Scottish community-based housing associations. They have been saving tenements from disaster. Some of them have been worth saving because of their architectural features. Anyone who has paid attention to what has been going
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on in Glasgow and other places will appreciate the new spirit that has arisen. These are local people dealing with a local problem. They know the difficulties. Not one housing association has asked for this Bill. Where did it come from? That is what we want to know.
It was suggested by some people in 1980 that housing association tenants should be given this right to buy, but it was turned down. The right to buy was raised again when we had an amending Act in 1984. An amendment was tabled by that very Member of Parliament I mentioned. But there has been no indication of extensive interest by tenants to purchase houses except at the Link Housing Association at Barnton. That was the answer given by a Minister in 1984. Then, late in August 1984, the Secretary of State said that he believed in the principle of a voluntary code and that there was no need to introduce legislation. In late 1985 Mr. Younger himself, speaking in another place, said:
"I … feel sad that tenants in housing association properties are precluded from the right to buy".—[Official Report, Commons, 28/11/85; col. 1049.]
This sudden cloud of sadness appeared over the Secretary of State. He had nothing else to worry about, but then sadness descended upon him and he said, "We must have an Act", and so it appeared. I do not believe this for a minute. This Bill is pure dogma. It is something which may help him but which may well prove destructive. I am very glad that the noble Lord, Lord Sanderson, is present tonight because he knows the nature of housing associations in Scotland. He knows the enthusiasm of people in the locality which springs from being in houses which they know, in which they were brought up and which are worth saving. Yet the Government went ahead.
These housing associations cannot be compared with housing associations in England and Wales, which have a stock of about half a million houses altogether. Scotland has a very small stock of houses. The housing associations need a stock of empty houses into which they can decant people from the houses which they are going to repair. If the size of the rented stock is reduced even by five, then their job is made impossible.
At the moment, operating on a shoestring, as they are, with few professional advisers, it means that they will be distracted from their task and must turn to the administration of selling houses, obtaining surveys and all the rest of it; and then they are left with the problem. The problem of tenanted property in Glasgow is that it is in multi-ownership. Some is rented by factors, some belongs to owner-occupiers, and some is owned by "spiv" owner-occupiers who proceed to pack seven or eight students or single people working in Glasgow into one place. Then problems arise as the standard of the houses goes down. They cannot get agreement, for example, to a repair which is needed to the roof.
The Secretary of State at the Scottish Office said that the maintenance requirement in respect of one of these flats is £500 a year. Can that be afforded by the people who buy their flats from these community-based housing associations? One may well find that within a period of a few years there is a repetition of the situation which led to the need for the housing associations. Their work will be destroyed, as will be

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their enthusiasm. Some of them will leave—I think this point was made by Mr. McClelland, of the Partick Housing Association—because they see the work which was their pride, which consisted in saving something for their own area, their own community, with their own people in it, just disappearing. There is no guarantee that once you give the right to buy after a tenancy of only two years, people from the same area will live in them. There is no guarantee at all of that. In fact, I heard only the other day about a man who lives nearly a hundred miles away from his father who bought the house for his father and who will get the house when his father dies. This was a local authority house. How do people whose sons and daughters are on the housing waiting list feel about this situation? On a smaller scale, what do the people in the housing associations feel about it?
I do not think this measure is right. Nobody asked for it. No tenant of a housing association asked for it, and no housing association asked for it. But suddenly there was a sadness which descended on the Secretary of State for Scotland, and Mr. Younger produced this mockery of a Bill which will not add one house to the housing stock. There is no guarantee that the money coming from the sale of housing will be passed to that particular fund. The noble Lord, Lord Sanderson, knows that. He also knows that the amount of money given to the Scottish housing associations this year is a reduction of £21 million in real terms. Would it not have been far better to have left these unique associations alone? Their work has been lauded to the skies in Scotland—and by Ministers—but the Government must meddle and interfere. It is quite wrong.
I was interested in what people were saying about the problem of housing in Scotland and the interest that the noble Earl, Lord Dundee, has shown in this matter. He hoped that the process of modernisation, which he said was slow, would be improved. The noble Baroness, Lady Elliot, also said that she hoped that the Bill would be an encouragement and help, as did the noble Earl, Lord Selkirk.
By pure chance I happen to have the report of the Scottish Office in respect of housing, which is headed "Housing Trends in Scotland: Quarter ended 30 September 1984", and was published in March 1985. It says:
"From information reported to date applications approved"—
that is, for improvement of dwellings—
"have again dropped both in the public sector and to private owners. The public sector figures show a decrease of 66 per cent. over the corresponding quarter of 1983".
The same thing applies even more so in the private sector, where there is a decline of 50 per cent.
So we have this problem, the nature of which has been mentioned by CSLA: in Scotland there are 300,000 houses which require modernisation; 118,000 houses require re-wiring; 314,000 suffer from damp and require treatment; and 50,000 require structural repairs. And less and less is being done.
I had hoped that this would be a housing Bill. But it is a miscellaneous provisions Bill which does not merit the title "Housing (Scotland) Bill". There are no great principles involved. It is merely a tinkering with the
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sale of houses. They have no right to be proud of the numbers that have been sold. Only 75,000 houses have been sold, and that is all. The peak was reached in the first quarter of 1983. It is shown in the telling graph which I have here. The first quarter of 1983 showed the peak, and since that time, right through 1984 until today, it has declined.
It has happened as we said it would happen. The desirable houses in the desirable areas have been sold. This will happen with the housing associations. As the noble Lord, Lord Mackie of Benshie, has said, it is the flats in the Grassmarket and the houses in Barnton which will be sold. We have problems with housing in Scotland, and this Bill does nothing to resolve them.
What happened with the sale of houses? About half the sales of public authority houses in Scotland have fallen through. The ones which have not been sold are the ones in the less desirable areas, even when they say that after two years they will give a greater discount and they will pay up to 70 per cent. of the purchase price. It is a bribe to purchase—but many of the people who have already purchased find themselves in difficulty because they have discovered for the first time what it means to own their own house. For the first time they have a mortgage to pay, and the rates, which carry on, and they have discovered that the repair grants from the local authority are not exactly what they want. According to this leaflet a total of 4.5 per cent. of local authority houses, 9.9 per cent. of SSHA stock and 13 per cent. of new town stock has been sold. But numbers are declining, so they must inflate it further.
Of course, the people who are saving money are the Treasury. It is not for the local authorities because they cannot get the money to do exactly what they require in respect of these immense problems. Figures have been produced elsewhere but what they are not getting is the support they require, the money supply or the right to spend the money that they require. The Scottish Office is responsible. It is a great pity that here we have the business of a Bill which does nothing to stop the impoverishment of Scotland's housing stock. Indeed, it is extending dangers into an area where we have had every reason to be proud of the achievements. I have long supported the development of housing associations in Scotland. It came very late to Scotland, and so comparative figures are nonsense when it comes to what this Government did against that. But the actual fact is that it has been a success. It has been growing. The chances are that it is going to be killed by this Bill unless we can get the right measure of support for amendments during Committee stage.
As I understand it, when the Bill went through the House in respect of the English and Welsh housing associations, more than half of the stock of their houses was exempted from the right to buy. What is the percentage of Scottish houses? I think the number of Scottish houses is only 2,500. Can we have an estimate of how many of them as compared with England and Wales will be exempted?
The Bill is really rightly irrelevant, and disappointingly so. The only good thing we can say about it is that the licences required for putting a porch on your house will probably be ended. There will be little improvements like that. That is not something to trumpet abroad. That is something that should be

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done in a very realistic way with a gathering together of all the little things that are needed, but not this business of bringing in a measure that really to my mind does not do credit to the Scottish Office or even to the hopes of the Scottish Office.
I understand that we shall see the Bill eventually. We shall have an opportunity of looking at it. May I refer to what Mr. Younger said on Second Reading in another place? He said that there was a major problem to be tackled; that there was a vast amount to be done but maximum resources would be put into solving the problems. That was dampness improvement and all the rest of it. What do we get? We get a Bill that does nothing about them at all.
Lord Gray of Contin: My Lords, this has been a very useful debate. The fact that our discussions have not been over-prolonged reflects the very close consideration which the Bill has received in another place, where, for example, its provisions were examined for over 41 hours in Committee—18 Sittings.
The Bill introduces no new principles, but it extends rights created by The Tenants' Rights (Scotland) Act 1980. The noble Lord, Lord Ross of Marnock, in winding up suggested that there was no demand for this, no demand by tenants of housing associations to purchase their houses. The Labour Party would have had us believe a few years ago that there was no demand for the purchase of council houses. Lord Ross suggested in rather a derisory way, that only 75,000 houses have been sold; 75,000 families now own their own homes and have had the right to do so under this Government. With the greatest respect, his colleagues along the corridor are doing their utmost to change their ground on this whole question now. If it has been such a flop, I cannot think why the Labour Party in another place is changing its tune at this late date about the purchase of houses.
Nevertheless, I will come back to the noble Lord, Lord Ross of Marnock, in due course because his contribution, although I seldom agree with it, is always lively and deserves the courtesy of a reply. A reply he will surely get.
The noble Lord, Lord Carmichael of Kelvingrove, is one whose knowledge of the city of Glasgow is indisputable, whose knowledge of the housing situation there over the years is probably not exceeded anywhere in either House. I listened with great interest to the most interesting speech which he gave us this evening. He asked me a number of questions and he also referred to the good work done by housing associations, particularly community-based housing associations. Others who contributed to our debate this evening did the same. I agree absolutely. The housing association movement has achieved, is achieving and will continue to achieve a very great deal to improve the condition of Scottish housing stock. I am delighted, therefore, to acknowledge the importance of the housing association movement and the very considerable efforts made by those who involve themselves at all levels in its organisation. Indeed, I was delighted to hear my noble friend Lord Sanderson, who has direct experience, and my noble friend Lady Elliot also make reference to the housing
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associations. None of us can possibly deny the very great contribution that they have made. However, that does not mean to say that those who happen to be their tenants should be debarred from the same right as is available to other tenants so far as the purchase of their homes is concerned.
The noble Lord, Lord Carmichael, spoke about the unique nature of community-based housing associations and the contribution of the voluntary committee members. The community-based housing associations are perhaps unique to Scotland. They have made a major contribution to inner city rehabilitation. I cannot accept that the right to buy will lead to a major disruption of those activities. A house and its occupants do not cease to be part of a community because the house goes into owner occupation. The reverse may even be true, and indeed often is true: that when people own their own homes or their own flats they take a much more lively interest in the general wellbeing of the community in which they are located. The valuable work of the voluntary committee members will be able to continue in undertaking new and challenging projects and managing the existing stock.
The noble Lord, Lord Mackie of Benshie—who indicated to me earlier his regret that he would have to leave us before the wind-up—made a number of points. He suggested that there was no means of creating any new charitable housing associations. Well, it is wrong to suggest that the Bill prevents the formation of any new charitable housing associations in Scotland. I accept, however, that no new association could benefit from the particular exemption from the right to buy which a new paragraph in the Bill would insert. Nevertheless, your Lordships will no doubt appreciate that there are other reasons why housing may be exempt from the right to buy. Both the Tenants' Rights Act and this Bill provide for other circumstances in which the right to buy does not apply. Section 1(11)(c) of the Tenants' Rights Act provides exemption for sheltered housing which has a call system and the services of a warden. Such things as hostels, cluster flats, etc., are excluded by definition.
The noble Lord, Lord Mackie of Benshie, also spoke about regional sales and sales in rural areas. The noble Lord referred to various exclusions from the right to buy designed to safeguard houses required by the regional councils to house employees and to avoid houses in rural areas being sold as holiday homes. No doubt we shall discuss these matters more fully at Committee stage, but I believe the exclusions in this Bill and in the parent Act of 1980 are sensible and strike just about the right balance. However, this is something to which we shall no doubt return at Committee.
The noble Lord, Lord Mackie, also asked about the cost of discount to the housing associations. The housing associations concerned will not suffer any loss as a result of discount given to the tenant. Where necessary an appropriate adjustment will be made to the grant to be repaid to ensure that there is no loss to the association concerned.
My noble friend Lord Selkirk spoke about the purpose of Clause 17. It is very much a technical and financial clause. It amends and updates the existing powers of the Secretary of State to make grants to the

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Scottish Special Housing Association and the new town development corporations. The opportunity has also been taken to introduce a new power to make grants to the Scottish Special Housing Association for affording relief from income tax and corporation tax which was previously lacking.
My noble friend also asked me about views expressed earlier on charitable housing associations. He maintained also that legislation that existed for England and Wales was being ignored. I do not see the need to follow slavishly England and Wales in these matters. We have separate legislation on housing; and, indeed, charities legislation is different north and south of the Border. The present proposals, which exclude most charitable housing associations, reflect long and careful consideration in another place. But, again, this is no doubt a matter to which we can return in more detail at Committee stage.
In addition, my noble friend asked me whether Clause 18 would do anything to encourage designers to improve house design. Clause 18 deals with changes to the building control system, and this is concerned with health and safety rather than amenity issues, which are for the planners. The Government's proposals will, however, permit designers to certify, in certain circumstances, that their designs comply with the building standards regulations.
My noble friend also asked about charitable status and the justification of the 1980 date. The Bill produces exemption from the right-to-buy for those associations that were established on a charitable basis from the outset, thus reflecting their original objectives. The requirement to have had charitable status since 1980 reflects the fact that prior to that date the right to buy would have no bearing on how the association was established. Again, this is something with which my noble friend may wish to deal in more detail in later proceedings.
The Earl of Selkirk: My Lords, may I ask one question? It is very difficult, amid these complications, to know exactly what is the right-to-buy. If my noble friend was able to say which brands of houses have an exemption, that would help a great deal. There are many ways in which special houses are acquired. I should like to know whether my noble friend can explain at some time which types of houses are exempted.
Lord Gray of Contin: My Lords, I am grateful to my noble friend for that intervention. I shall make that clear. I have already mentioned tonight some types of houses. I shall, however, make sure that a complete list is prepared for my noble friend and made available at Committee stage.
My noble friend Lord Dundee, in an interesting speech, put forward useful points, both in his criticisms and in his constructive attitude, which I much appreciated. He asked about the stimulation of joint venture initiatives by the Scottish Office. As my noble friend said, many councils in Scotland have already entered into joint venture private sector arrangements with a range of developers to improve previously rundown housing stock. We greatly welcome such initiatives. The Scottish development department issued a circular in 1983 to local
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authorities indicating ways in which planning and housing authorities may be able to co-operate more effectively with private builders. The department is also undertaking research to evaluate experience of low cost home ownership initiatives and joint ventures with the aim of making rcommendations to local authorities on the best possible practice.
My noble friend also asked whether the Government would take action on low cost mortgage schemes to help people to buy. He drew attention rightly to the need for low cost mortgage schemes. The Government's home loans scheme is just such a scheme giving first-time buyers a hand on to the home ownership ladder. Our support for the housing association movement and other initiatives will illustrate our determination to introduce helpful methods to make it easier for tenants to achieve what my noble friend has in mind.
My noble friend Lady Elliot, in an interesting contribution, reminded us that it was her late husband Colonel Walter Elliot, when Secretary of State, who set up the Scottish Special Housing Association. All of us were, I believe, rather shattered to realise that it was as long ago as 1936 that that wonderful organisation was created. I warmly thank my noble friend for what she said about the Bill and what we seek to achieve. I look forward to her further support as we proceed through our deliberations.
My noble friend asked me about support to help tenants who wish to move. I agree that a large public sector is a barrier to mobility. This Government have introduced two schemes to help tenants who wish to, or need to, move: the national mobility scheme and the tenants' exchange scheme. Clause 7 of the Bill places the power of the Secretary of State to contribute to such schemes on a regular basis.
My noble friend Lord Sanderson of Bowden, to whom I have already referred, spoke about the right to buy, saying that this would release cash. My noble friend is absolutely right. This is a significant point. Sales release substantial resources that housing authorities can use in accordance with their own priorities.
The Earl of Selkirk: My Lords, does not money from houses sold by housing associations go back to the Housing Corporation?
Lord Gray of Contin: My Lords, I was talking about money that is available for rebuilding by authorities or associations in due course when the opportunity presents itself.
The Earl of Selkirk: My Lords, if a house is sold, surely the housing association has to pay the money straight back to the corporation. Is that not correct? It is important to know that.
Lord Gray of Contin: My Lords, the money is available, as I understand the position, to the authority to be used in accordance with its own priorities, whether building new homes or modernising older properties. The sums involved since 1980 run into hundreds of millions of pounds.
My noble friend Lord Selkirk and the noble Lord, Lord Ross of Marnock, complained that the Bill was

949
complicated. I recognise that the Bill is not easy to understand. This is inevitable in amending legislation. But the Notes on Clauses are available in the Library of your Lordships' House. Study of those will, I believe, considerably help to simplify the Bill, read in accordance with the respective clauses.
The noble Lord, Lord Ross of Marnock, also asked about multi-ownership in tenements. Housing associations already have direct and successful experience of operating in tenements alongside owner-occupiers. The noble Lord said that there was no indication that housing association tenants want to buy. I accept that the number of housing association tenants who choose to buy may not be large. What matters is that, like tenants of municipal authorities, they should have the right to buy if they wish.
The suggestion that this is a sudden change of heart by the Government is simply not so. We have learnt over a long period of time that if we were not satisfied with the results of the voluntary sales policy—and only a very small proportion of the housing association stock has been sold—we should introduce a right to buy. The conditions which led us to arrive at that conclusion have been well known for a long time. We have never made any secret of the fact that it was our intention to enable the greatest possible number of people who lived in rented accommodation municipally, and more recently through associations, to have the opportunity to purchase their homes.
The noble Lord, Lord Ross of Marnock, spoke about the CoSLA campaign for increased investment in Scottish housing stock. The convention alleges that £700 million requires to be invested in Scotland's council housing stock each year for the next 10 years; a total of £7 billion. But the bids for resources for 1986–87—that is, what individual authorities indicated they wished to spend—amount to only £475 million. That alone casts a slight measure of doubt on the CoSLA figure, where the total is patently greater than the sum of its parts.
Nor has any detailed explanation yet been offered of how the figure of £700 million is made up, apart from the words in a recent press release:
"About half is for the repair and modernisation of existing stock and the remainder for new build and conversion".
That hardly seems to me to provide a sufficient basis for reasoned discussion. The campaign also appears to shy away from any assessment of priorities as between the more and the less urgent works.
The noble Lord suggested that there is not enough money for housing. Capital allocations for local authority stock have increased by no less than 41 per cent. over the two years 1984–85 to 1986–87. This is substantially higher than the increase which would have corresponded to inflation. It shows the concern to ensure that authorities have necessary resources.
The noble Lord also suggested that sales are declining. He suggested that the best houses have been sold and that the situation will continue to exist that only the really good houses will be sold. The noble Lord quotes selectively, I am afraid. I do not blame him for that. We all quote selectively when it suits our argument; but he has certainly been quoting selectively. Applications to buy—the best guide to the interest which exists—have been running at 1,600 a
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month, slightly less than the peak of last year which was 1,750 a month, but still a very healthy demand. Our research shows that sales have not been concentrated in the best estates, and it is not true that all the most popular houses are the ones which have been sold. There has been a very good mix.
Lord Ross of Marnock: My Lords, I think it is wrong to say that I quote selectively. I quoted from a Government paper and I quoted every word that was there. It was not selective; it was in full.
Lord Gray of Contin: My Lords, my retort to that would be that the noble Lord selects his Government papers!
Lord Ross of Marnock: My Lords, what is wrong with taking the latest one, which is March 1985?
Lord Gray of Contin: My Lords, I have no doubt that the noble Lord and I could continue for a very long time and still not agree at the end of the day. The figures which I gave perhaps put the problem in perspective a little more accurately.
We have had a very useful debate. I should like to thank those noble Lords who have taken part. Many points have been raised. I am sure that I have not answered them all but I have tried to cover as many as I reasonably could. I look forward to the further stages of the Bill in due course. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Parliamentary Constituencies (England) (Miscellaneous Changes) Order 1986
8.56 p.m.
Viscount Davidson: My Lords, on behalf of my noble friend Lord Glenarthur, I beg to move, That the draft order laid before the House on 20th February be approved.
This draft order is meant to give effect to the Boundary Commission for England's recommended alterations to 19 constituencies following the completion of its 1985 interim review. The report on that review was submitted to the Home Secretary on 23rd January and he proposes that the commission's recommendations should be implemented without modifications. If the draft is approved by your Lordships today, it will be submitted to Her Majesty in Council to be made.
Articles 2 to 6 of the order substitute the constituencies in the schedule for the existing constituencies created by the Parliamentary Constituencies (England) Order 1983. Article 1(3) provides for it to come into operation 14 days after it is made and for the new boundaries to take effect at the next general election. Any by-elections held in the meantime will therefore be unaffected by this order.
This was the second of a series of interim reviews necessitated by alterations to the boundaries of several counties, districts and district wards which originally coincided with those of the constituencies created by the Parliamentary Constituencies (England) Order

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1983. The first was completed in 1985 and the commission recently announced the start of a third involving a further 42 constituencies. The Scottish and Welsh Commissions are currently engaged on similar reviews in their respective areas. This means that most of the present anomalies caused by the local government boundary commissions' reviews should be removed in time for the next general election.
The English commission published its provisional recommendations for these 19 constituencies last summer. Since it proposed in each case that the constituency boundary should simply be aligned with the altered local government area, it is hardly surprising that the majority of the representations received by the commission supported its proposals. The only exception was an objection to the boundary between two constituencies, one of which was not included in the review. The commission accordingly confirmed its original proposals as its final recommendations. Your Lordships will readily appreciate, therefore, that the review was relatively uncontentious and that the commission's proposals seem to have commanded widespread acceptance in the areas concerned.
No representations have been received by the Home Secretary since the receipt of the commission's report, and the number of electors affected by each of the proposed changes is quite small, ranging from two to 246. I therefore invite your Lordships to approve this draft order for implementing the commission's recommendations in full. My Lords, I beg to move.
Moved, That the draft order laid before the House on 20th February be approved. [13th Report from the Joint Committee.]—(Viscount Davidson.)
Lord Underhill: My Lords, I need not detain the House more than a few moments. I thank the noble Viscount for explaining the order.
As I read the report of the Commons Standing Committee on Statutory Instruments, it appears that the only issue which arose was an alleged imbalance of the constituencies in Hampshire. However, as the Commons report does not appear in Hansard—they debated it last night—we do not know whether any other issues arose. However, as the noble Viscount said, the changes are so minimal that I can content myself by saying, as the spokesman said in the standing committee, that the Opposition approve this order.
On Question, Motion agreed to.

Highways (Amendment) Bill
9 p.m.
Lord Dean of Beswick: My Lords, I beg to move that this Bill be now read a second time. I know that your Lordships present will bear with me if, for a few moments, I pay my respects and regards to the right honourable Michael Cocks, the Member for Bristol, South, who piloted this small but important Bill through another place.
I do so because for quite a while I was closely associated with Mr. Cocks in his role as the Labour Chief Whip in another place. This was a role in which he served with distinction for nine years, four of them
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in government, when his organising skills were put to a severe test because it was a minority Labour Government. By virtue of his organisation and zeal they were kept in Office far longer than a lot of people expected.
Though I talk about his organising zeal, he was in addition a man of great compassion. He was always ready to listen to Members who had genuine problems, and on every occasion when it was possible he responded. Following that period he spent five years as the Chief Whip in Opposition. He also fulfilled that job efficiently, although it is not as rewarding as being a government Chief Whip. I believe from the remarks that have been made about him that he held the total respect of all sides of the Chamber in the other place. He did a first-class job as Chief Whip and also, as I understand, a first-class job in his capacity as Member of Parliament for the constituency of Bristol, South. It is sad that in these days of politics those two highly commendable qualities do not appear to rate as highly as they have in the past. He will obviously leave the other place when the next general election is called. I have no doubt that, as with hundreds of people who have graced the other place before, the other place will be the poorer for his no longer being there.
Knowing him personally and the way that he dedicated himself as Chief Whip and as a constitutency Member of Parliament, I have to say that the people of Bristol South may also be the losers as a result of what has happened. I thought that on this occasion your Lordships would perhaps bear with me if I briefly paid respect to the service that that particular Member of Parliament, colleague and friend has given over the years.
May I now deal with the Bill that he piloted through another place? It has to be the straw and stubble burning in the main. Straw and stubble burning is largely controlled through local by-laws made under Section 235 of the Local Government Act 1972. However, to avoid any risk of conflicting requirements, the Act does not authorise by-laws to deal with matters covered by statutory legislation. Consequently the by-laws cannot tackle the problem of smoke from careless straw and stubble burning obscuring visibility on roads, this being dealt with under the Highways Act 1980.
Section 161(2) of that Act currently provides that:
"If a person, without lawful authority or excuse, lights any fire, or discharges any firearm or firework, within 50 feet of the centre of a highway … and in consequence a user of the highway is injured, interrupted or endangered, that person is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale (£400)."
The difficulty is that this is not necessarily an adequate distance to allow smoke to disperse safely, particularly when measured from the centre of a wide major road. The code of practice on straw and stubble burning drawn up by the National Farmers' Union, for example, advises farmers not to burn within 100 metres of a motorway or dual carriageway. The penalty is also low compared with the maximum fine of £2,000 for offences under the by-laws, and a farmer burning his own straw and stubble might argue successfully that he was acting with lawful authority.
The proposed Bill, which would amend the existing provisions on fires in Section 161(2), would make it an offence to light, or direct or permit to be lit, a fire at

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any distance froma highway if a user of the highway is injured, interrupted or endangered by the fire or the resultant smoke. The maximum penalty would be level 5 on the standard scale, £2,000, in line with the by-laws.
The provision would apply to all fires, since there is no equitable reason to single out straw and stubble burning. No distance from the road is specified because it would be impracticable to impose universal standards without regard to the size of the fire, the type of road or local weather conditions. It would be for the individual to ensure that what he was doing was safe but, unlike the existing offence, it would be a defence to show that all reasonable care had been taken. The provisons relating to firearms and fireworks and to fires lit in the highways itself would remain unchanged. Local authorities, as well as the appropriate highway authority, will be able to prosecute, so, where an offence under the new provision is linked to other offences under the by-laws, the case can be dealt with by a single prosecuting authority.
Just before I came into the Chamber I was handed a note by the noble Lord, Lord Henderson, who had put his name down to speak. He is just recovering from a bout of the 'flu, and sends his apologies that he had unfortunately had to withdraw, thinking it better to go home and rest and get better. However, he indicates in his letter his general support for the provisions in the Bill. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Dean of Beswick.)
9.8 p.m.
Lord Denning: My Lords, I should like to add my enthusiastic support for this Bill, so ably introduced by my noble friend Lord Dean of Beswick. This is a very useful Bill. Your Lordships, like me, will often, when driving along a road, be furious when smoke or fire from stubble or straw-burning comes across the road and obscures the view. I have a field or two, and I am equally careful to tell my man when he is lighting a fire to take care that the wind is in the right direction and the smoke does not go across the road. Those are the simple dangers that we know.
Our existing law, now codified in the Highways Act 1980 but going back for many years, is quite incapable of dealing with the question because it applies only when the fire is lit within 50 feet of the centre of a road. That is very unsatisfactory and insufficient because of a leading case. This is not reported in the ordinary reports, but it is Hunton v. Last reported in 1965 in 109 Solicitors' Journal at page 391. It came before the magistrates at Stowmarket in Suffolk. A farmer had a heap of straw 60 yards from the centre of the highway, but there was a grass verge in between and although he lit the straw at that distance away it spread and was carried by the wind across the road. In consequence, there was a collision between two cars, whereupon that farmer was prosecuted before the magistrates. They overcame the 50 feet limit, because it was 60 yards. They said that he intended all the time that the fire should run along the road. So the magistrates, finding that he had that intention, found him guilty and fined him £2.
He appealed to the Divisional Court, over which Lord Parker, the Lord Chief Justice, was presiding.
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Lord Parker said it was a very difficult and doubtful case, but on the whole he would not interfere with the magistrates. I am afraid that in strictness that farmer should have been acquitted because his fire was 60 yards from the centre of the highway whereas the statute said only 50 feet.
It is to remedy that absurd decision that this Bill is now introduced. The Bill says that it does not matter how far from the centre of the highway one is: if one lights a fire and that spreads across the road and endangers traffic on the road, then prima facie, one is guilty. The man in the car cannot prove anything except that smoke or fire went across the road. The man lighting the fire is prima facie guilty, but he can defend himself. This is one of those unusual cases where the burden of proof is on the defence. In this case the man who is liable is the man who lit the fire, and not only the man himself but the farmer or anyone else who directed him. It is made clear. If one goes against that and shows that the fire occurred, wherever it started, and endangered the traffic, then the burden of proof is on him.
It will give him a good let-out if he can show in discharging the burden of proof that at the time he lit the fire he was satisfied that it was unlikely it would spread: that perhaps the wind was in another direction, or that he was tending it all the time. If he can show that he gets away with it, but he also has to show, even after that, that he did all he could reasonably do to prevent it from spreading. If he can prove that he was completely innocent in the matter, then he is acquitted. Otherwise, if he lets this fire go across the road then prima facie he is guilty and should be found guilty accordingly.
This is a small Bill but it is remedying a grave defect in the previous legislation if it is going to deal effectively with this grave nuisance of stubble or straw-burning across the road. It is a small Bill but a most valuable Bill, and I hope that your Lordships will give it your entire approval.
9.15 p.m.
Lord Underhill: My Lords, as is customary, any speech on a Private Member's Bill by the Opposition from this Dispatch Box is purely an individual view. My name was added to the list of speakers merely in case there was any criticism of my noble friend's Bill. I should like to congratulate him on the way he introduced the Bill, though, with the support of the noble and learned Lord, Lord Denning, this is a case where, frankly, any extra support is unnecessary. There was also the valuable support that was promised by the noble Lord, Lord Henderson of Brompton. As I noted very carefully—at least I think I noted carefully—there was not a single word uttered at any stage in the other place and I am certain that the noble Earl is going to accept this Bill on behalf of the Government. As the noble and learned Lord, Lord Denning, has said, it is a very useful Bill. It clears up an anomaly and it is one which I think it is very valuable to support.
9.16 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (The Earl of Caithness): My Lords, I too should like to thank the noble Lord, Lord

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Dean of Beswick, for his introduction of the Bill. He gave the House a very clear exposition of what will be achieved if this Bill reaches the statute book. It was the noble and learned Lord, Lord Denning, who put his finger on it when he referred to road accidents. Road accidents are a source of concern to all of us. I am certain that all noble Lords would agree with me in saying that we should take sensible and reasonable steps to make our roads as safe as possible. For that reason the Government support this Bill.
Smoke on roads is not a major hazard but it is a hazard which, by and large, can be and ought to be prevented. There are provisions in the Highways Act 1980 which deal with this problem but, as has been said, they are inadequate. They apply only to fires lit within 50 feet of the centre of a highway, but now that we build wider roads than formerly this is not sufficient to protect major high-speed roads in particular. In addition, the maximum penalty under that part of the Act currently stands at £400, and that really is too low given the problems that can arise.
I should perhaps make it clear that although this proposed change to the Highways Act covers straw burning, it will have a general application to all fires lit off the highway. The Government fully support the view that it would be a false distinction to separate out straw and stubble fires from any other fires and, indeed, it applies to all of us who have a garden next door to a highway. If the noble Lord, Lord Dean, happens to burn some leaves in autumn and the smoke goes across the highway, then he, too, will come under the Act (as it might become) unless he takes due precautions and the wind was blowing in a totally different direction when he started and he took due preventive measures.
The Highways Act has always applied to all fires without distinction and there is no good case for changing this approach. The Bill is intended to ensure that anyone who intends to light a fire which could affect visibility or safety on a road should pause and think whether they have done all they reasonably can to prevent inconvenience, danger and possible injury to road users before they strike the match. That is the point. The point is to try once again to get at the rogue person who lights a fire. The sensible person takes precautions anyway. The very great majority of farmers, as I have said on more than one occasion, are sensible when it comes to straw and stubble burning
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and most people who are not farmers but who light fires next to highways also give very serious consideration to the consequences of their actions. Therefore, it is the rogue person whom this Bill seeks to tackle.
I would urge the House to agree that this Bill should be read a second time. I understand that it commands the support of the National Farmers' Union, the Country Landowners' Association and the Associations of County and District Councils. We believe it is a useful and desirable measure which will give better protection to road users in the future.
Lord Dean of Beswick: My Lords, may I very briefly say that I do not intend at this time of the night to delay your Lordships for very long. May I express my appreciation to my noble friend and colleague on the Front Bench, Lord Underhill, for his kind support of the Bill? May I also express my sincere thanks to the Minister, the noble Earl, Lord Caithness, for the very kind, considerate and objective way in which he has responded? I should like to pay special regard to the noble and learned Lord, Lord Denning. In the short period that I have been in your Lordships' House, I have quite clearly come to understand that to have the support of the noble and learned Lord, Lord Denning, on legal matters is very good support, and is a bonus on any legal Bill. He encapsulated what the Bill is really about when he said that it remedies a grave defect in the existing law. That is what the Bill is meant to do. That is why I think it has received such universal support.
In opening my remarks, I referred to the Member in another place who sponsored this Bill and piloted it through another place. Having been in another place and here, perhaps I may say that some of us go through public life without ever having the privilege of getting a Bill through of any kind. The first thing Michael Cox did when he stepped down as Chief Whip in another place was to sponsor this Bill. It was a very fine parting shot for him. I am grateful to those of your Lordships who are present for your unstinting support for the Bill.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at twenty-one minutes past nine o'clock.