Lords Sitting of 19 May 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 Sheffield.

Royal Wedding Stamp Issue
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether it is intended to issue a special stamp to mark the marriage of Prince Andrew and Miss Sarah Ferguson on 23rd July and, if so, whether they will, if necessary, recommend to the chairman of the Post Office that 12p stamps be included.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth): My Lords, special stamp issues are a matter for the Post Office, which has announced that it will be making a special stamp issue to celebrate the Royal Wedding. I understand that this will include a 12 pence stamp.
Baroness Burton of Coventry: My Lords, is the Minister aware that I left this Question on the Order Paper because, although I knew the answer, I wanted to have the opportunity of thanking the chairman of the Post Office for having done this? May I hope that the Government will also thank the chairman of the Post Office? I also express the hope that for other special issues 12 penny stamps will also be included.
Lord Lucas of Chilworth: My Lords, I am most grateful to the noble Baroness for the first part of her supplementary question and I shall certainly be pleased to pass her gratitude on to the chairman and the board of the Post Office. As regards the second part of her supplementary question, I have to confess that
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I can offer no hope of 12 pence stamps being included in special issues, other than at Christmas, for the reasons which I have explained to your Lordships' House on a number of occasions.
Baroness Burton of Coventry: My Lords, is it not a pity that the Government cannot just be generous and thank the chairman of the Post Office for having done this?
Lord Lucas of Chilworth: My Lords, as I said originally, I shall convey the gratitude of the noble Baroness to the chairman and the board of the Post Office, adding to it, of course, the Government's thanks. On the second point, I can offer no hope because the Post Office board has indicated, as I have done to your Lordships' House, that there were problems associated with 12 pence stamp issues on other occasions.

US Nuclear Missiles, Molesworth: Control
2.38 p.m.
Lord Kennet: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will now make the proposed deployment of US nuclear missiles at Molesworth subject to physical dual control.
The Minister of State for Defence Support (Lord Trefgarne): No, my Lords. We are entirely satisfied with the effectiveness of existing arrangements.
Lord Kennet: My Lords, will not the Government at last take the opportunity presented by the arrival of the second contingent of United States cruise missiles at Molesworth to do the right thing? It is what an enormous majority of people have wanted all along and what was done by the Macmillan Government way back in the days of the Thors and Titans; namely, to have physical dual control as well as political dual control.
Lord Trefgarne: My Lords, there is no need to proceed as the noble Lord suggests because, as I have said on a number of occasions, the effect of present arrangements is that no nuclear weapon will ever be fired from British facilities without the agreement of the British Prime Minister.
Lord Jenkins of Putney: My Lords, is the noble Lord aware that while he may believe what he has just said, no one else does? The problem is that recent events have shown that without operational control the government of this country have no influence over the matter at all. Will the Minister not take note of the arrival of the noble Lord, Lord Kennet, in this cause, which I have been pressing for so long? With such valuable additional help and having regard to recent events, will he not think again and ask his colleagues to reconsider the position? Does not the Minister agree that it is very important that this country should have control over missiles which are fired from its own soil?
Lord Trefgarne: My Lords, I reject the proposition that recent events have done other than wholly endorse the satisfactory arrangements now in place.
Lord Boston of Faversham: My Lords, can the Minister say whether there are any nuclear weapons in this country which are subject to physical dual control? If that is not the case, why not?
Lord Trefgarne: My Lords, as far as I know there are no nuclear weapons in this country subject to physical dual control. The answer as to why they are not is that the alternative existing arrangements are entirely satisfactory.

Chemical Weapons: Control
2.41 p.m.
Lord Kennet: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, if they agree to the stationing of US chemical weapons in this country in time of crisis or war, they will require physical dual control.
Lord Trefgarne: My Lords, any deployment of chemical weapons to the United Kingdom at any time would require the consent of Her Majesty's Government. If such a request were ever to be received, it would be a matter for decision by the British Government of the day, in the light of all the circumstances prevailing at the time.
Lord Kennet: My Lords, in view of the reported fact that the United States army is at present training its men in the use of binary chemical weapons of the kind which would be brought here in a crisis, and that it is also training its troops in chemical warfare with the use of real nerve gas—I repeat, real nerve gas—to give them confidence in their gas masks, will the Government take the opportunity to consider whether it might not be advantageous to proclaim now that if
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and when such weapons are stationed here (and all sides of the House hope they will never have to be) they will be under dual key?
Lord Trefgarne: My Lords, the noble Lord said that such weapons would be brought here in a time of crisis. That would be a matter for the government of the day and I am afraid that I am not in a position to bind future governments or, for that matter, to bind the present Government in regard to what is a hypothetical situation.
Lord Molloy: My Lords, in so far as successive governments have set a supreme example by having nothing to do with chemical weapons, may I ask whether that is still the policy of Her Majesty's Government? In the event of another country wishing to station chemical weapons in this country for use elsewhere, would it not be right and proper that Parliament should immediately be informed in order to obtain its opinion on whether such an act should be embarked upon?
Lord Trefgarne: My Lords, the view of the Government on this matter has been reflected on a number of occasions and during a number of debates, notably in your Lordships' House. The essence of government policy is to ensure a worldwide ban on these weapons, and we are working to that end in Geneva.
Lord Boston of Faversham: My Lords, can the Minister say whether Her Majesty's Government are contemplating any agreement with the United States along the lines of the one reported to have been made between Chancellor Kohl of West Germany and the United States, which I understand to be that West Germany would be prepared to station binary weapons on its soil at a time of imminent crisis? Can the Minister say further whether the Prime Minister has given an undertaking to Chancellor Kohl along those lines, and if so how can that be squared with his statement of government policy on 3rd May last year that we are not contemplating resuming possession of these weapons?
Lord Trefgarne: My Lords, the policy of the British Government remains exactly as it was when I referred to this matter earlier in your Lordships' House.
Lord Kennet: My Lords, may I ask the Minister whether this would be a convenient opportunity to consult with the noble Lord, Lord Glenarthur, who is sitting beside him, on the question of binding future governments, in view of the generous way in which the noble Lord, Lord Glenarthur, on Friday last proclaimed an obligation on future governments to look after certain citizens of Hong Kong in the right way?
Lord Trefgarne: My Lords, if the noble Lord imagines that he will be a member of some future government and wants to accept Conservative Government policy in advance, I should be happy to agree with him.
Lord Boston of Faversham; My Lords, I hope that your Lordships will forgive me for returning to the Dispatch Box. However, does the answer given by the noble Lord to my last supplementary question mean that no such undertaking has been given by the Prime Minister or any member of the Government to Chancellor Kohl?
Lord Trefgarne: My Lords, I can confirm that we have received no request from the United States Government along the lines hypothecated by the noble Lord.
Lord Mayhew: My Lords, can the noble Lord tell us the terms of the agreement that I understand has been reached at NATO that these weapons will not be deployed in Europe?
Lord Trefgarne: My Lords, no, I do not believe that any such agreement has been reached in NATO. I understand that what has happened is that a draft force goal has been agreed to but that it has yet to be agreed by NATO defence Ministers.
Lord Rea: My Lords, can the noble Lord the Minister say what the Government's position will be at the meeting of the NATO defence Ministers later this week on whether or not a force goal should be agreed? Before it can permit the production of this new generation of chemical weapons, the United States Congress has to see that the force goal has been agreed by the NATO nations.
Lord Trefgarne: My Lords, we shall be supporting that defence goal.

Emergency Powers: Need for Legislation
2.45 p.m.
Lord Jenkins of Putney: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have agreed with the United States Government that in emergency Her Majesty's Government will use powers known to the United States Government but not known to Parliament and whether these powers include the enforcement of military law, the conscription of labour and compulsory evacuation of homes.
Lord Trefgarne: My Lords, I refer the noble Lord to my Written Answer on 8th May when I told him that there have been no such agreements with the United States Government. The content and introduction of any emergency powers would be for consideration by the Government and Parliament of the day, having regard to all the circumstances at the time.
Lord Jenkins of Putney: My Lords, the noble Lord in his usual evasive manner says that there is no such agreement. However, is he aware that his colleague in another place has confirmed that there is such an arrangement and that an agreement is no less an
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agreement when it is called an arrangement? Is he also aware that his office has a copy of three draft emergency Bills? Is he further aware that the ground areas provided in those Bills have been discussed with the United States authorities? Is he still further aware that regulations to be issued under those three Bills have been drafted, though the Bills themselves have not been placed before Parliament? Finally, is he aware that under those Bills 15 detailed plans have been drafted, yet none of these has come before Parliament and none of them has been confirmed by Parliament? Does he know that such an arrangement, whether he calls it an agreement or not, is an absolute disgrace?
Lord Trefgarne: My Lords, the question on the Order Paper tabled by the noble Lord suggests that there has been some agreement with the United States Government to confer certain powers upon them under certain circumstances. I said then and I say now that there is no such agreement.
Lord Mellish: My Lords, is the Minister aware that in fact this Question is a lot of nonsense? Is he further aware that of course everybody knows that legislation has already been prepared in the event of an emergency arising and that it would be exactly the same as that which was produced when Winston Churchill was Prime Minister and supported by Ernest Bevin and Clem Attlee and others, when emergency powers were brought in to control manpower, and so on. That is what one expects any sensible government to do in a state of emergency. What is all this rubbish?
Lord Trefgarne: My Lords, the noble Lord is quite correct. Any responsible government will want to consider the appropriate powers that they ought to take in times of great tension, crisis or war.
Lord Kinnaird: My Lords, apart from the understanding that I thought we had in this House, that supplementary questions should be kept to one and not extend to two, three or four, can the Minister tell us how closely our debates and certain statements made in this House are read in Moscow?
Lord Trefgarne: My Lords, I was once told that the Hansard of your Lordships' House received careful scrutiny in the Kremlin; but how true that is I cannot say.
Lord Jenkins of Putney: My Lords, is the noble Lord the Minister aware that the noble Lord who has just spoken from this side of the House ought to be sitting on the other side of the House? Is he further aware that the agreements, though they are called arrangements, have been confirmed to be in existence by his colleague in another place and that it is entirely disgraceful that what his colleague calls an "arrangement" should be reached specifically with the United States forces without either House being informed of the matter?
Lord Trefgarne: My Lords, I can only assure the noble Lord again that there is no agreement or arrangement to confer the sort of powers that are referred to in the noble Lord's Question upon the United States Government or any other government.
Lord Mellish: My Lords, is the Minister aware that the only reason I made my intervention was because I have nothing but admiration and pride for a man like Ernest Bevin who did what he did at the beginning of the war because he was a great patriot? I am sure that somebody would follow him and do exactly the same if an emergency arose. I am proud to have known that man, which is something I cannot say of some people I know.
Lord Molloy: My Lords, in the situation that has been referred to by the noble Lord, Lord Mellish, Great Britain stood alone against the Nazi forces. There was no United States agreement to come to our aid or help us nor was there any other nation involved. Can the Minister please tell the House whether it would be necessary for the United States Congress to give approval if such a situation were to arise and their forces had the powers that are mentioned in the Question asked by my noble friend Lord Jenkins of Putney? Can the noble Lord tell us, or will he at least find out for us, whether the United States Congress would agree to such action by their military forces in another nation's land?
Lord Trefgarne: My Lords, experience leads me to suppose that to anticipate the views of the United States Congress, or for that matter the British Parliament, in a hypothetical situation would be unwise. But on the earlier part of the noble Lord's observation, I am happy to feel that in any future conflict (which I hope will not occur) we shall have the support of the United States and our NATO allies.

Business
The Earl of Swinton: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lady Young will, with the leave of the House, repeat a Statement that is being made in another place on South Africa.
It may be for the convenience of the House if I announce that the Committee stage of the Gas Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Second Readings of the Corneal Tissue Bill and the British Shipbuilders (Borrowing Powers) Bill will be taken.

Ullapool Harbour Order Confirmation Bill
Read a third time, and passed.

Armed Forces Bill
2.51 p.m.
Lord Trefgarne: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Trefgarne.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clauses 1 to 3 agreed to.
Clause 4 [Elimination of distinctions between certain offences]:
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Graham of Edmonton: Before we allow Clause 4 to stand part of the Bill I intend to raise with the Minister a matter of crucial significance for many outside the Chamber. As the Marshalled List shows, Amendment No. 1 stands in my name, but I have been advised that its terms do not fall within the proper rules of debate; in other words, it is out of order. Therefore it is not my intention to move it. But this Question provides me, and I believe many others, with the opportuniy to look, in essence, at the matters raised in that amendment.
Clause 4 is entitled:
"Elimination of distinctions between certain offences".
Subsection (2) states:
"In section 69 of each of the 1955 Acts and in section 39 of the 1957 Act (conduct or neglect to the prejudice of good order and military discipline), for the words 'of any conduct or neglect' there shall be substituted the words, 'whether by any act or omission or otherwise, of conduct' ".
Members of the Committee who follow these matters will be aware that for a number of years there has been concern or agitation over the question of Crown immunity. The ability of the Crown, by virtue of an Act, to plead that its servants are not to be held liable for damage, injury or death to servicemen in peacetime needs to be reviewed. When speaking to this matter I am sure that the Minister will give us his advice on the current position of such a review.
I simply want to tell the noble Lord that there is widespread support for the provisions in the clause but that many would wish that it went beyond them. The Committee will be aware that in another place there has been steadily mounting concern on an all-party basis. Those who volunteer—because we have an all-volunteer service and there are no conscripts—are often placed in intolerable and indeed tragic circumstances by virtue of the present state of the law.
I have here—and the Minister and his advisers will be well aware of it—an Early Day Motion put down in another place. We all recognise that that procedure is simply a device or a peg on which to hang an opinion. The history and subsequent effect are limited. But the Minister will be aware that more than 130 Members of another place put down their names to Early Day Motion 450, which says that the current state of the law in respect of compensation for acts committed against servicemen needs to be reviewed. That refers to Section 10 of the Crown Proceedings Act 1947, as does my amendment.
This is not a party matter. I took the trouble to look through the list of those who put their names to the Motion asking for a change in the law and in the compensation. Thirty-seven members of the noble Lord's party are satisfied that a change needs to be made. The long list includes ex-Cabinet Ministers who have lent their names to the Motion, new Members, and a great many knights who are long-serving Members who have followed such matters for a long time. It also includes many members of the SDP and the Liberal Party, and a great many from my side.

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No one in this House can be satisfied with the present position. Since at least 1983 the Minister and his colleagues have said that the compensation for servicemen who suffer injury and for the parents or other next of kin in the case of death requires review. I am satisfied that he will present to us the result of that review as early as possible. In the meantime we have to live with some very distressing facts.
The subject was given a good airing in an Adjournment Debate by my right honourable friend Jack Ashley. It was supported by others. I know also that the Minister was present earlier this year at a meeting that was held on an all-party basis. The honourable Member Ian Grist was also there and he has expressed the strong view that if the matter came to the Floor of the Commons there would be wide support for it.
3 p.m.
What is it that I am asking the Minister to express sympathy with? The position is encapsulated in an extract from an Adjournment Debate that took place on 26th March 1985, when Mr. Jack Ashley asked the other place to listen carefully to a letter that he had received from a lady. The extract reads:
"'Jonathan is dead. He sustained 60 per cent. burns when a Seacat missile was fired by mistake. He was our son. He was just eighteen years old and he died before we could reach him. Steven was seventeen years old. He was thrown from an R.A.F. truck, or was he? No-one seems to know for certain. He was irreparably brain damaged anyway, and died within a few hours. Kevin took rather longer about it. When he was found floating face downwards in a vat of lethal cleaning fluid he was seventeen years old. When he finally died he was twenty one years old and he weighed less than four stone.
There is nothing you can do for Jonathan or Steven or Kevin, but you can help those who have been injured. You can also help to ensure that greater care is taken in the training of all young servicemen'."—[0fficial Report, Commons, 26/3/85; col. 238.]
The noble Lord the Minister and his advisers, who keep closely in touch with such matters, will be well aware of a Yorkshire television programme "In the line of duty" in which those cases and others were given prominence. I do not want to anticipate the final report of the Minister, but I wish him to take on board the injustice felt at the differences in the rights and responsibilities of civilians and the rights and responsibilities of those who serve in the armed forces.
I appreciate that there are differences, but we are talking about 17 and 18 year-olds. I recognise that they have a contract and that the services pay a great deal of attention to this matter. I wonder how much attention is paid to the fact that when a tragedy of the kind that I have outlined takes place the ability of servicemen to have recourse to the law is limited. I am sure that the noble Lord the Minister will tell us that there are other ways in which a distressed and aggrieved serviceman and his family can obtain redress. When the 1947 Act was put on the statute book questions were asked about what the servicemen would get for giving up their right to sue. There are lump payments and pensions. I have seen correspondence that the noble Lord has had with Members of another place in which he fairly points out that some of the figures that I have given are not the totality of the support which such people receive. I am not making a political point.
I hope that the Committee will allow me to quote what Mr. Anthony Lester, QC, an eminent man who is respected in these matters, said in that television programme.
The Countess of Mar: I am sorry to interrupt the noble Lord, but I thought we were debating whether Clause 4 should stand part of the Bill. What he is speaking about seems to bear no relevance to the elimination of distinctions between certain offences. It sounds as though he is talking about compensation. There is nothing in the Bill that covers compensation. Could he please elucidate?
Lord Graham of Edmonton: I do not know whether the noble Countess was here when I first rose to my feet, when I said that it was my intention to deal head on with that issue in Amendment No. 1. However, the amendment that I have tabled is due to follow the debate on Clause 4, which substitutes the words:
"whether by any act or omission or otherwise, of conduct".
The cases that I am using to illustrate my point can be argued to be due to the "act or omission or otherwise" in the conduct of members of the armed services. In those circumstances, should we not use this opportunity to hear from the noble Lord the Minister where we are in respect of the review of the rights of servicemen to take the Crown to court? I should be grateful if the Committee will bear with me over a matter which deeply concerns not merely the limited number of cases that have been drawn to my attention but to many others.
In the television programme to which I have referred Anthony Lester said:
"You find a man involved in a motor accident in Germany, to take an example I know well, a man of 50 with a very promising career in the RAF, in hospital for five months, seriously disabled, but not so seriously that he has to be retired from the air force. As a result, he gets no pension of any kind because he hasn't yet retired, and not a penny for him or his dependants. Another example: a man goes into an RAF hospital, really in civilian conditions—we are not talking about field stations or the front line in wartime, an operation which goes wrong. He says it is the fault of the surgeon. He may be right, he may be wrong. Now, if it happens to you or to me we could sue for negligence and expect to get damages if we could prove our case, but that man is receiving a pension worth about 60 per cent. of the total he could possibly recover and he and his wife are in quite terrible circumstances without any funds at all."
We are rewording the provision which relates to members of the services who are covered by the Armed Forces Bill and which the Committee is asked to approve today. We are asked to agree to a form of words which will include:
"whether by any act or omission or otherwise, of conduct."
I should be grateful if the noble Lord the Minister recognises that this is a valid opportunity to deal with that matter.
I think the noble Lord is also aware of other Early Day Motions. Early Day Motion 212 relates to compensation for service personnel at nuclear tests. That is a matter of current debate. It will be seen, when these matters are considered fully, that there are some members of the armed forces who carry some responsibility in these matters. The provision I am talking to is:
"whether by any act or omission or otherwise, of conduct."

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Many aggrieved ex-servicemen will feel they are entitled to pursue their interests in these matters in another way.
I hope that the noble Lord and the Committee appreciate that we are talking about a Government statement which says that wherever possible they wish members of the armed forces to have equality with the civilian population. The civilian courts have taken on many new responsibilities. Later, we shall be asking the Committee to approve a similar reform of courts martial. We are asking whether the noble Lord the Minister has anything helpful to say at this stage to people outside your Lordships' House. The noble Lord knows, and the Committee will appreciate, that much more can be said about individual cases, but I believe that I have said sufficient to allow the noble Lord to be helpful to the Committee.
Lord Denning: May I say a word about this matter? I am doubtful whether it is legitimate in this debate to bring in this subject for discussion. Perhaps, as I have had some experience of the Crown Proceedings Act 1947, and knew the situation before, I may tell your Lordships what the position was. Before 1947 there was a maxim in the law which said, "The Crown can do no wrong". As a result, if a government lorry careered down a street and knocked down a bystander, that bystander could not sue the Crown or the government department in tort for damages.
We got round it a little in a particular case. Soon after the war a mine exploded on the sea shore near Criccieth. Those injured wanted to sue the government department. The House of Lords had to say that the Crown could do no wrong and that there could be no remedy. To remedy that we had in 1947 the Crown Proceedings Act that made it lawful for any citizen who was injured by the negligence of a government department or its servants on the road or anywhere else to sue for damages the same as anyone else. The government department was just as liable as any other concern.
There was, however, in Section 10 an exception to the new law—an exception that related to the forces of the Crown. If there was an accident in the training field—say, for instance, that a vehicle ran over a man and injured him, or a mine exploded by accident—Section 10 stated that the individual who was injured had no right of action for damages provided that the Minister certified that it was attributable to his service. If it was attributable to his service, he was treated just as any man injured in the war or suffering from a disease due to the war who, under the Royal warrant, received his pension. I was the nominated judge for the war pension appeals in all their numerous numbers in 1945 and 1946. I heard the appeals of our soldiers injured and wounded in the war and the appeals of those who were sick. The Ministry of Pensions did the job very well. Its awards were given. Some appeals came to me. The relatives of those killed in the war and those who were injured were well treated.
What is the position being raised today? It is said that pensions under the Royal warrant are to go. Those men have to sue and to prove negligence. They have to face a claim against them for contributory negligence,
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and unless they prove negligence by, say, a driver, they get nothing. This will be like ordinary civil litigation where a man injured in any way has to prove negligence. He can be met by cross-claims that he has not proved negligence or that he has been guilty of contributory negligence. Those experiences are very harmful to society. The important report of the Royal Commission of Lord Pearson and his colleagues recommended that instead of all this litigation for compensation it would be much better to do away with the litigation and controversies about negligence and have a pension or weekly award. In the experience of the Royal Commission and many lawyers it is far better that the injured person should have a good pension than a lump sum that may do him no good at all. That is the issue. The question is whether the Royal warrant procedure should go, whether the pension procedures for those who are injured should go, or whether all the pensions, where there is no need to prove negligence, should be taken away and the injured person left to go to a court of law.
I have tried to show that this is a wide question and really not fit for determination at the Committee stage of a Bill such as that now before us. It is an issue that requires long and reasoned debate by Parliament before a decision can be reached.
3.15 p.m.
Baroness Turner of Camden: I rise to support the comments made by my noble friend on the matter of Crown immunity. There is a strong case for repeal of a provision that has, I understand, existed since 1947 and that provides for total immunity to any legal action or claim for damages where negligence has resulted in serious injury or death of a member of the armed services. I understand very well the reasons why my noble friend's amendment has been ruled out of order as not apposite to the Bill. I should, however, like to hear the views of the Minister on what has been said.
There has been substantial agitation for a change in the law on the issue of Crown immunity. I have been supplied with instances, as has my noble friend, Lord Graham. I should like to refer to one, because it relates to the compensation aspect. It is the case of a young man called Martin Ketterick, was was descending a cliff as part of his training when the instructor cut through the supporting rope. He fell onto his back and is now completely paralysed. It is a case that, had it occurred in civilian life, could conceivably have attracted damages if there has been a case at common law. What happened in the case of Martin Ketterick, however, is that he was invalided out of the Marines with a gratuity of £3,553 and an invalidity pension of £47 a week. It is estimated that pensions paid in this way in total over a lifetime are approximately one-third of the awards that could be claimed if such a case was successful in the courts and if a lump sum was paid.
It is not only young people injured while taking part in a training programme in the armed forces who have got into this situation. As the Committee knows, I am a trade union official. Our union has been approached from time to time for assistance by union members who believe that they are currently suffering physical damage as a result of their experiences while working

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in jobs attached to HM forces. The most notable example concerns individuals who were involved in the atom bomb tests in the Pacific back in the 1950s. A number of these people believe strongly that they suffered radiation damage. They have appealed for suport to the union of which they are now members. I have to tell your Lordships' Committee, however, that it has proved impossible to get these cases off the ground at all because of the doctrine of Crown immunity. Had these individuals been damaged in this way while in normal civilian employment, they would almost certainly have been able to sue at common law and almost certainly would have been able to look forward, I believe, to substantial damages.
At least it should be possible to amend the law to cover those not on combatant duties. It is surely unacceptable that where serious injuries are sustained the families and the individuals concerned should have no compensation of a kind that they might expect had they been injured in civilian life.
I realise that this is not an appropriate point for an amendment to the Bill. I understand the reasons for that. I would, however, join my noble friend in asking the Minister to look at the situation. It is being looked at in another place. I know that there is agitation going on about the whole issue of Crown immunity. I would therefore be grateful for a response by the Minister.
Lord Campbell of Alloway: I hope that the Committee will allow a brief word of total and unqualified support for the advice that the noble and learned Lord, Lord Denning, has given from his experience. It would be wrong to depart from the warrant procedure that works reasonably well. There may be hard cases here and there, but in general it works well and works fairly. To expose applicants to a negligence action has serious disadvantages. At all events this is a matter of very important principle which warrants, as the noble and learned Lord has said, far deeper and more leisurely discussion than could ever be afforded in this Chamber.
Lord Mayhew: May I begin by apologising to the noble Lord, Lord Graham, for not being present during the opening sentences of his speech. I gather that there was some procedural difficulty. Whether, had I heard it, I should have understood it, I do not know. However, it seems to be in order to discuss Amendment No. 1, whatever the ruling may have been.
I should like to say how impressed I have been—and think my noble friends would agree with me—with the case made out by the noble Lord, Lord Graham, and by the noble and learned Lord, Lord Denning. It seems that the substance of this question is simply not capable of being contested. I am not at all surprised to have heard from the noble Lord, Lord Graham, of the very wide all-party support for the point of view that he put forward. Equally, however, it is clear that this is a huge subject of enormous importance. It is my guess that the Minister will say that there is a departmental inquiry. Perhaps we should study very carefully the report of the Ministry of Defence on this question before reaching a decision—whether it is in or out of order at the Committee stage of this Bill.
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I note that at the Select Committee the Labour speakers did not go so far as the amendment of the noble Lord; Lord Graham. The recommendation of the Labour Party at the Select Committee was that:
"as a matter of urgency, the Department should expedite its inquiries and that its report be published before the end of this Session of Parliament with a view to introducing any necessary amending legislation to Section 10 of the Crown Proceedings Act in the next Session of Parliament".
This seems to me a good line to take. I feel this more strongly having listened to the debate. I believe that this would correspond with the views of my noble friends. After all, the present situation was accepted by successive governments for a long period of time. It seems to me that we should consider this extremely carefully and address ourselves to it as soon as the Ministry of Defence reports. That does not mean that the ministry should not expedite its report. Perhaps the Minister will state when the report is due and whether it will be published. In the light of that, perhaps we can take a later decision.
Lord Trefgarne: It is perhaps a pity that the noble Lord, Lord Mayhew, was not in his place when this debate started because he would then have learned that the noble and learned Lord, Lord Denning, did not for a moment agree with the noble Lord, Lord Graham. Indeed, the noble and learned Lord was right to point to some of the difficulties and complexities of this matter.
It is not a simple and straightforward matter for one moment, as I myself have been made aware during the course of the inquiry that is now under way. I am not the chairman of the inquiry but I am the Minister responsible for these matters within the Ministry of Defence. In the first instance the inquiry will report to me and then to my right honourable friends. This inquiry is a comprehensive one. It has been under way for a little while and will certainly be completed just as soon as possible, and an announcement will then be made.
I am very sorry that it is not possible for me to go further this afternoon. I well understand the wide range of views that have been expressed on this matter. They are views which have come from both ends of the political spectrum and from a wide range of opinion outside Parliament as well. The Government are certainly taking all these views into account, and when we have the benefit of the study to which I have referred—which we hope to complete just as soon as possible—then an announcement will be made. I am afraid that I cannot be specific as to when that will be, but we well understand the anxiety which people feel in this matter.
Having said that, I believe that everyone would agree that we should not speed up the inquiry to the extent that we get an inadequate or wrong answer. I am sorry that I cannot be precise as to when the inquiry will be completed or when we shall be able to make an announcement following that inquiry, but I shall certainly undertake that we shall do both as soon as possible.
Lord Shepherd: May I ask the noble Lord whether it would be the intention of the Government to publish, shall I say, the results of the inquiry, so that

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we can have a better understanding of the difficulties to which, clearly, the noble and learned Lord, Lord Denning, referred? There is a deep sense of anxiety and injustice that is felt by many others. I think that your Lordships would benefit more from seeing a report on the matter than from merely a statement by the Government.
Lord Trefgarne: If I may be allowed to answer the noble Lord on that point, the study that is going on and the documents which will flow from it will be in the nature of advice to Ministers. As the noble Lord will appreciate, advice to Ministers is not normally published. However, having said that, we shall certainly want to give as much information as possible about our decision when we reach it, and the basis upon which we reach that decision. I do not think the noble Lord will have any cause for complaint about the quantity of information we shall make available at that time.
Lord Elwyn-Jones: Can the noble Lord give some approximate idea when this is likely to be? I appreciate the difficulties. It covers a very wide field. Is it contemplated that there shall be a Green or White Paper beforehand, or a decision to legislate? How does the noble Lord see the future of this matter? It obviously is of very considerable public concern. I note the hope that was expressed by my noble friend Lord Shepherd that there would be the publication of an informed paper, or whatever it may be, on this matter. It raises many wide issues.
Can the Minister and his colleagues think again about this? I know that there is a way of using Green Papers as a delaying stratagem. I make no admissions, of course, about any previous administration, but it has been known to happen. However, time is of importance in this matter. These sad cases are happening, and injustices are being brought about. I therefore ask two questions. First, when is it likely that there will be a conclusion? Secondly, can there not be some public information given beforehand by the Government?
Lord Trefgarne: Such information as I have so far on this matter leads me to understand that this is a much more complicated matter than we had at first imagined. When it comes to announcing some conclusion—and I am afraid that I cannot be specific on when that will be—I think the conclusion will be fairly straightforward. It will be either to abolish the present arrangements, to repeal the present protection that the Ministry of Defence and the armed forces enjoy in this matter, or to leave matters more or less where they are. Although there are a number of compromise possibilities that have been canvassed, they, too, present enormous complexities and difficulties. For that reason, they are not particularly attractive.
Added to that, we have to offset whatever new arrangements we might wish to set in place with the benefit of the existing arrangements. I think that the noble and learned Lord, Lord Denning, underlined those very effectively when he pointed out that under the present arrangements members of the armed
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forces, sadly injured, do not have to prove negligence and do not have to go to court at all to get the benefit of the payments we make in terms both of bounty and of future pensions.
There are those who say that the present arrangements are as attractive as they should be and that any future arrangements, given the uncertainties that they would inevitably involve, would be a good deal less beneficial to those sadly injured in these circumstances. These are the types of complexity that we are having to consider and to juggle with. I hope that noble Lords will therefore bear with me if I say that it is not possible for me to be specific now. It is a matter which is addressing Ministers' minds on regular occasions.
One noble Lord mentioned that an important delegation attended on my right honourable friend the Secretary of State for Defence not long ago. I was there on that occasion and listened very carefully to the views that were expressed.
3.30 p.m.
Lord Graham of Edmonton: Because this is the Committee stage I am entitled to make a few more observations. I am grateful to the Minister, and for the forbearance and tolerance of the Chamber, which recognises that this is a very important matter. The Minister provides us with the reason why we should not let this opportunity go by. He talks in terms of reporting "just as soon as possible", but that kind of language—this is not meant to be offensive—has been used frequently over the past period.
There are people outside who are not looking at this as academically as we are, even though our hearts may be full. They are the people who are suffering, or whose families are suffering, or whose parents are bereaved and bereft. I make no apologies to the Committee and nor, I believe, does the Committee expect me to make an apology for using this opportunity. The last thing I seek is for the Committee to come to a conclusion, but the mere fact that we have stirred the issue I think will mean that the next time it does come forward we shall at least be a little better prepared.
I have to say to the noble and learned Lord, Lord Denning, that he seemed to me to present the argument as one of either pension or the opportunity to sue. You cannot have it both ways. There are people who are employed in the public service who do have it both ways. The police and the firemen are able to get a pension and still have the right to sue the Crown. If I am wrong, of course I shall be put right. The noble and learned Lord, Lord Denning, may do it now or later and so may anyone else, but the records which I have read in preparation for this debate have told me that what is happening is that there are members of the public services—not the armed services, but those that you and I would say are at least as entitled to protection because they take risks on our behalf—and the police and the firemen have been quoted to me. What we are saying is that what is good enough for the police and the firemen ought to be good enough for members of the armed forces who take risks who actually engage in the exercises which they do which are as lifelike as possible, and who then find they are in some difficulty.

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Let me tell the Committee of my own personal experience, not during peacetime but in wartime. Mr. Ketterick was mentioned in the case described by my noble friend Lady Turner. That gentleman was in the Royal Marines and so was I. During the war in the Royal Marines in the pursuit of making myself ready for armed conflict I went through what was called a live ammunition exercise in Wales, at the foot of Llanberis. During the course of that live ammunition exercise I received Bren gun bullets through my back and my legs. I did not have any right to compensation and nor did I expect to because it occurred under conditions of war, but if the same thing had happened in peacetime I should certainly say to a serviceman who, through no fault of his own and perhaps by the negligence of his fellows, was injured, perhaps by virtue of this clause and due to the negligence of some people in the armed forces, that he would be entitled to take to court the fact that his circumstance was due to an error in carrying out proper safeguards and precautions, etc.
What in fact we are saying to the Minister (and there are many people outside) is that that in fact is what we want. May I remind the Minister also that in the Early Day Motion the names are Mr. Jack Ashley, Sir David Price, Mr. Paddy Ashdown, Mr. Roy Mason, Mr. John Hannam and Mr. Gordon Oakes? Members of the Committee who follow these things know that that is as all-party a body as one can get. The other names are the same, but what is important is that the Motion they want concerns those engaged in non-combatant duties and they want to make retrospective provision for the date of passing of the Act. This is what we are saying. We are concerned not only about the future but also about the terrible and tragic cases coming to our attention.
However, I am satisfied that the Minister has gone as far as he can. I very much hope that he will not simply say that he and his colleagues are watching this and are looking at it. I do appreciate the complexities. The Minister is quite right and no solution is likely to find universal favour. There will be some saying that this does not take account of their circumstances and some saying that they are entitled to that, but all I am saying is that the present position is wrong and Clause 4 allows us an opportunity to raise the matter. Certainly it would not be my intention to do other than to allow Clause 4 to stand part of the Bill.
Clause 4 agreed to.
Viscount Long: My Lords, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.

South Africa
3.35 p.m.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, with the leave of the House I shall now repeat a Statement on the South African incursions into Botswana, Zambia and Zimbabwe which is being made in another place by my honourable friend the Secretary of State, Sir Geoffrey Howe. The Statement is as follows:
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"As the House knows, a number of locations in Botswana, Zambia and Zimbabwe were attacked early this morning. The South African Defence Forces have acknowledged that they were responsible for these attacks, full details of which are not yet available.
"My honourable friend the Member for Wallasey has already summoned the South African Chargé to ask for an urgent explanation. She expressed to him our grave concern. Our Ambassador in South Africa has been instructed to seek an early call on the South African Foreign Minister.
"Our High Commissioners in Gabarone, Lusaka and Harare have been instructed to convey to their host governments the British Government's concern at these attacks, and to seek further details about them, including any indication of casualties
"We have always made plain our opposition to cross-border violence and have consistently condemned the resort to force by South Africa against her neighbours. Today's attacks by the South African Defence Forces represent a plain violation of the sovereignty of three fellow Commonwealth countries. It is particularly deplorable that they should have taken place while the Commonwealth Group of Eminent Persons were in South Africa, seeking to promote a process of dialogue which would lead to the ending of apartheid in the context of a suspension of violence on all sides. Today's events underline the urgent need for just such a suspension of violence."
My Lords, that concludes the Statement.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Baroness for repeating the Statement. We note and support the action taken by Her Majesty's Government in conveying their grave concern to the South African Government and in their sympathetic gesture to the affected governments. I should like to ask the noble Baroness two short questions. She referred to the Group of Eminent Persons. Would she not agree that this deplorable action could undermind the efforts of the group and that President Kaunda is right when he said today that these raids by South Africa could well be the object of the exercise? Secondly, could she give an assurance that these criminal acts of violence will be borne in mind when Her Majesty's Government discuss what further action is to be taken in concert with other Commonwealth governments when the six months from the date of the Nassau conference expires next month?
Lord Kennet: My Lords, we entirely endorse what has been said by the Leader of the Labour Opposition. The reaction of the Government to these raids is obviously absolutely right. They have asked for an urgent explanation, expressed grave concern, expressed opposition to the cross-border violence, which is the correct general point, and have called it a plain violation of sovereignty.
The South African Government of course carried out these raids because they thought that the premises they intended to strike were being used for terrorist actions inside South Africa. Whether that is right or not we cannot tell, but it is only six weeks since

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another government carried out armed raids on premises in the capital city of a foreign country and they did so from bases in this country. They were not subject to protest or reproof. The American ambassador was not sent for. When will the Government overhaul their double standard in this matter, because they are becoming a laughingstock around the world?
Baroness Young: My Lords, I should like to thank the noble Lord, Lord Cledwyn, for the way in which he has received this very serious Statement, and to thank the noble Lord, Lord Kennet, for what he said on the British Government's reaction to this matter. The noble Lord, Lord Cledwyn, raised two questions in particular. As regards the Group of Eminent Persons, they are of course a group of eminent individuals operating independently, so it will be for them to decide how these raids affect their mission. However, as I have made clear, the fact of the raids underlines the importance and urgency of working for a peaceful settlement in South Africa.
On the noble Lord's second point about any action that might be taken in addition to the measures that were introduced after the Commonwealth Heads of Government meeting in Nassau last October, following upon that we are of course not committed to any further acts at all. I have no doubt, however, that the raid will have been noted and will be considered.
I cannot accept the point that the noble Lord, Lord Kennet, made about double standards by the Government or indeed in the activities of the United States. Libya was a case on its own. There was the plainest possible evidence that a government was promoting and defending terrorist attacks on innocent targets. There is no evidence that violence by the ANC in South Africa is sanctioned, still less directed, by the authorities in Botswana, Zambia or Zimbabwe. Indeed, Botswana has close contacts, which are still continuing, with the South Africans on joint control of terrorism. Therefore, there is no comparison at all.
Lord Bottomley: My Lords, have the Government considered consulting other members of the Commonwealth and making a joint protest to the South Africa Government?
Baroness Young: My Lords, this point has not been considered, but I note what the noble Lord, Lord Bottomley, says.
Baroness Jeger: My Lords, in view of the Statement, which we on this side much appreciate, may we take it that if the three countries concerned take this matter to the Security Council, Her Majesty's Government will support them? Secondly, does the noble Baroness, the Minister, recall that just after the last raid on Gabarone there was a mission from the Commonwealth Parliamentary Association, of which I happen to be a member? When I asked to see the wounded terrorists in Princess Marina Hospital in Gabarone, I found there a little girl who was five years' old and who had a hip so injured that the doctors think that she will never walk again. I found her in a state of total shock because she had witnessed her little brother and grandfather being killed; her grandmother was
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wounded and in the same hospital. That was the total bag of the terrorists.
When the noble Baroness is having discussions with South African representatives, will she emphasise to them that when they attack built-up areas of cities, like Gabarone, it is impossible to avoid killing and injuring innocent men, women and children? Not only is this morally outrageous, but it is totally counterproductive from their point of view. Not only does it alienate all civilised people, but it means that any remnants of moderate black opinion in Southern Africa are completely destroyed.
3.45 p.m.
Baroness Young: Yes, my Lords. I am quite sure that the point which the noble Baroness, Lady Jeger, makes about the sufferings of people as a consequence of these raids is very true, and as she said as a member of a CPA delegation in Gabarone she will have witnessed it herself. It is for those reasons, as well as the political reasons, that the Statement is couched in the very firm language that it is.
On the first point that the noble Baroness made about Security Council resolutions, she will be aware of course that raids in earlier years by the South African Government into neighbouring territories have been the subject of Security Council resolutions, and that the British Government have of course condemned these raids.
Lord Boyd-Carpenter: My Lords, will my noble friend confirm that it does South Africa's neighbours no service to equate them with Libya?
Baroness Young: Yes, my Lords, I am glad to confirm that and to make yet again the point that there is no comparison in these two cases.
Lord Hatch of Lusby: My Lords, is the noble Baroness aware that I have had long contact with each of the three areas—not just the countries—that have been bombed during the past few hours? Is the noble Baroness aware that the Statement she has made will sound very mealy-mouthed to the people who have now been suffering for years from this kind of naked aggression? It is not an incursion, which is the word used in the Statement. Is it not an insufficient word to state that Her Majesty's Government are "concerned" about these raids? Do they not utterly condemn them?
Perhaps I may ask the noble Baroness whether she is able to answer two straight questions. First, does she not agree that this naked aggression should be met by Her Majesty's Government using their influence as a member of the Commonwealth to call an immediate meeting of Commonwealth representatives to consider calling off immediately the activities of the Group of Eminent Persons? Secondly, can Her Majesty's Government tell the House today what military assistance has been offered to the three Commonwealth countries that have been attacked by a foreign power? Finally, agreeing with the noble Lord, Lord Kennet, who never suggested that the three Commonwealth countries could be equated with Libya, is this not an example, not of state-supported terrorism, but of state-responsible terrorism?
Baroness Young: My Lords, I cannot accept that this is a weak Statement. As the noble Lord will see when he has the opportunity to read it in full in the record, the Statement in fact says:
"We have always made plain our opposition to cross-border violence and have consistently condemned the resort to force by South Africa against her neighours".
That seems to me to set out very plainly our position.
As regards the Commonwealth, as I have already explained to the noble Lord, Lord Cledwyn, the Group of Eminent Persons is acting independently and it would not be for the Government to instruct them. We accept that it is their strength that they are acting independently, and in the light of today's events, it will be for them to take a decision as to what they might or might not do. So far as military assistance is concerned, we have not been approached by any of the three countries involved for military assistance.
Lord Gridley: My Lords, can my noble friend the Minister say whether there has yet been time to receive a report from the High Commissioner at Harare about these events? In all the circumstances, would it not be better to treat this very serious question in a conciliatory, temperate and quiet manner for the time being?
Baroness Young: Yes, my Lords, my noble friend is quite right; we have not yet received the detailed information from any of our High Commissioners in the three countries involved. Nor indeed have we heard from our Ambassador in Pretoria. No doubt when we have the full information we shall be in a better position to assess what actually has happened.
Lord Pagel of Northampton: My Lords, regarding the Group of Eminent Persons from the Commonwealth, have they not already received the advice of Mr. Botha to mind their own business? Secondly, is there any doubt that when a country—whether it be Libya or anybody else—entertains terrorists for the purpose of chivying their neighbours, the neighbours are perfectly entitled under international law to take the action which South Africa very properly took today?
Baroness Young: My Lords, on the first question that the noble Lord, Lord Paget, asked, the Group of Eminent Persons has, we believe, had opportunities to talk to a great many people in South Africa, including members of the South African Government, as we believe this to be a valuable exercise. So far as his second point is concerned, may I make it clear that we oppose violence in South Africa wherever it may come from, but we cannot condone the attacks by South Africa on three sovereign states.
Viscount Mountgarret: My Lords, may I ask my noble friend whether Her Majesty's Government will, when considering their feelings and attitudes to South Africa, bear in mind the fact that South Africa was, is, and I hope will be, a staunch ally of the Western alliance? Will my noble friend remember the part that South Africa played under the leadership of General Smuts, that wonderful man, and not ignore the assistance that has been given by South Africa in the past to this country?
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Will the Government also bear in mind that there are many countries at the moment in the world which perpetrate other acts which offend human principles; not least one may say the rape of Afghanistan by the Russians? If everything can be borne in principle and in balance, perhaps we might not be carried away too much by emotive issues on certain things which South Africa, for various reasons of their own, may feel they have to do although they may offend some principles of your Lordships' House.
Baroness Young: My Lords, I take the point that my noble friend makes about the past history of South Africa. We are, however, in the situation in which these acts of aggression have in fact been committed by the South African Government, and I would only say to him, out of consistency, that we have completely condemned the Russian invasion of Afghanistan, as of course we deplore the Israeli raid on Tunis, and our attitudes have been consistent in this regard.
Lord Hatch of Lusby: My Lords, can the noble Baroness clear up a couple of points in her answer to me? First, is it not the case that it was the Commonwealth Heads of Government Conference which appointed the Eminent Persons Group? Would it not now be quite consistent for the Comonwealth representatives to meet immediately in this crisis in order to suggest that that group can no longer perform its task, and that if it continues, it would appear to be following Her Majesty's Government's line of appeasement of South Africa? Secondly, while I hear the noble Baroness say that Her Majesty's Government have received no requests for military assistance, what I asked was whether Her Majesty's Government have offered any military assistance to three Commonwealth Governments being attacked by a foreign power?
Baroness Young: My Lords, the idea of a Group of Eminent Persons was one of the results of the Commonwealth Heads of Government meeting, but of course the fact that it was set up, the fact that those in it act as individuals operating independently, means that it is for them to decide what attitude they will take in the light of the raids today. The answer to the noble Lord's second point is that we have not been approached for military assistance, but, as I am sure the noble Lord will be aware, Botswana is one of several African countries which benefit from British training schemes for their armed forces.
Lord Paget of Northampton: My Lords, surely there should be some evenness in all this? We object to American delegations going over to interview the IRA and then telling us how to govern our territories. Are not the South Africans in exactly the same position with this alleged Commonwealth group? Secondly, how on earth do we distinguish America's action against terrorists in Libya, with which we collaborated, from the South Africans' action against terrorists in Southern Africa? Both were sovereign countries. Surely the law is quite the same in both?
Baroness Young: My Lords, I should like to make it clear that the United States Government do not

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support the activities of the IRA—and I think that we should make that quite clear—and have condemned those activities.
Lord Paget of Northampton: Groups of Americans did.
Baroness Young: My Lords, we are talking about the United States Government. No doubt individuals within that country have differing views, as they do in any democratic society. On the second point of the noble Lord, as I made clear, Libya was a case of its own; and we do not accept that Article 51 can properly be invoked in the case of the South African actions.
Lord Soames: My Lords, is my noble friend aware that when I visited Zimbabwe in the early part of this year there had recently been a mine explosion just over the border in South Africa? This made both the Prime Minister and the Government of Zimbabwe extremely angry, because they have said consistently both in private and public that they did not wish their territories, nor did they intend to allow their territories, to be used for raids on South Africa.
I am astonished to hear that in the view of the South African Government this has happened recently. When my noble friend is in touch with our ambassador in Pretoria perhaps she will be so good as to ask him specifically whether the raids were made out of Zimbabwe recently; apparently this is considered by the South African Government to be a reprisal.
Baroness Young: My Lords, I should like to thank my noble friend Lord Soames for that helpful intervention. He speaks with great knowledge, and recent knowledge, of events in Zimbabwe. I shall certainly see that the point that he has made is conveyed to my right honourable and learned friend. I was of course aware that the Zimbabwean Government had denied the use of their territory by terrorists.

Armed Forces Bill
3.58 p.m.
House again in Committee.
[Amendment No. 1 not moved.]
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 2:
After Clause 4, insert the following new clause:
("Campaign against drug abuse and alcohol abuse.
. In section 43 of the 1955 Acts and section 28 of the 1957 Act (drunkenness), there shall be inserted the following subsection—
"(3) It shall be a duty of the Secretary of State to ensure that there is an effective and continuing campaign directed at those to whom this Act applies which publicises the dangers of drug abuse and alcohol abuse.".")
The noble Lord said: I rise to move Amendment No. 2. The Committee will appreciate that the Government have a good record on recognising the problem of drug and alcohol abuse. It is in order to seek to amend Section 43 of the 1955 Act—which in the margin relates to "drunkenness"—that I rise to
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move the amendment in my name on the Marshalled List. The Minister will appreciate that what I am seeking to do is to lay on the Government a duty to make it more positive that they recognise the realities.
The record of the select Committee on the Armed Forces Bill is my text for a great many of the matters that I raise. The Minister will be aware that on Second Reading I indicated that I would do this. It is not a matter on which I would seek to divide the Committee, but I believe the Minister should take the opportunity to explain as fully as possible the concern of the Minister of Defence for that for which we have a responsibility.
I refer to page 179 of the Select Committee on the Armed Services. We find an interesting contribution by Brigadier Peck. In item 624 he was asked by my honourable friend Dr. Godman:
"Alcohol and tobacco kill more people than other drugs. What education programme do you have, given that these are socially approved drugs and that no one is barred from access to them in the Armed Forces, what education programmes do you have for young Service personnel … in terms of warning them off these more dangerous and yet socially approved drugs?"
Brigadier Peck then said:
"whenever anybody joins a unit whatever definition that unit has, he would"—
not "is" but "would"—
"be made aware of the requirement to maintain a high standard of personal discipline. That would be explained to him. He would be educated in the general sense that commanders are expected to educate their young".
Then there was a contribution on the same matter and the discussion certainly contained no animus. Under paragraph 626 Air Vice-Marshall Campbell said:
"We do not have a specific education team, although the drug abuse lectures always start with an explanation that alcohol is a drug".
As the Committee will appreciate, unlike drug abuse the social acceptability of alcohol negates the need for clandestine use of drink and the true scale of any problem is therefore likely to be more accurately ascertainable once the new system is in operation. The factors which make the services a potential risk area for drug abuse—off-duty boredom, separations, stress and peer group pressure—apply equally to excess drinking. I do not want to exaggerate, although I believe there is a tendency for the ministry, perhaps for proper reasons, not to be fulsome in indicating the size of problems of this kind.
At Second Reading I quoted from an item in the Sunday Times dated 27th April. The part that I did not quote I believe is germane to this debate:
"A tri-service body on drug abuse prevention, that includes lawyers, educationalists, doctors and the military police, has been set up to monitor the problem and make recommendations on improvements in education, prevention and detection. The RAF has increased the number of its drugs education officers from one to five".
When we appreciate that each year we seek to recruit about 30,000 men and women to deal with the requirements of the services and that of the total of our armed services about 87,000—that is, about 27 per cent. of the total—are aged 21 or under, then we, representing some kind of stewardship over the welfare of young servicemen, have a right to hear from the Government what they are doing positively to meet a

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menace which, quite frankly, all of us are sad about and which clearly is not a matter just for the armed services. There are the prison services; and throughout society the problem is increasingly not just one of drugs but also of alcohol and other abuse. One thinks of the solvent abuse syndrome which has come on to the scene in the last five to 10 years. I should like the Minister to tell the Committee what he and his colleagues are doing to deal with this very difficult problem.
The recommendation which is part of the Armed Services report, recommendation No. 6, hangs on the peg of the Government response to the 1981 Select Committee. As the Committee is aware, we are debating a Bill of a type which is dealt with every five years. In 1981 the Select Committee said:
"We believe that drug abuse in the armed forces might be kept under better control if the other two services were to use specialist teams in this way and recommend that this possibility be explored before the 1986 Armed Forces Bill is introduced".
I am asking the Minister whether he can satisfy us that the best practice, which has been proved to be moderately successful in one service, is used by the others. The Minister will be aware that as long as 12 months ago the Minister of State announced in the continuation order debate on 27th June that a tri-service drug prevention group had been set up in March 1985. I am asking the Minister to tell us what progress has been made and with what success? I do not want figures about the number of people convicted, because these are tragedies in themselves. I want the Minister to satisfy the Committee that he is seized of our responsibility to deal with these matters not only on behalf of the servicemen, but also on behalf of parents and society. I beg to move.
Lord Denning: I should not think we need a statute on this. Cannot we leave it to the commanding officer?
Lord Trefgarne: I say at once that we take this matter very seriously. The services draw their recruits from society as a whole and they do, therefore, to some extent reflect the trends in that society. Thus they cannot hope entirely to escape problems such as drug and alcohol abuse. So far as alcohol abuse is concerned, the statistics are not readily available, but there is no evidence that alcoholism is a significantly greater problem in the services than in society generally. Statistics on drug abuse are carefully monitored, and I am glad to say that at this stage drug abuse is not considered to be a major problem.
Nevertheless, the services are well aware of the great dangers of both drug and alcohol abuse. Service chiefs rightly fear the debilitating influences of both drugs and alcohol and the effects these would have on the health, efficiency and discipline of our armed forces. As a result a comprehensive programme of measures has been instituted to combat these evils. This programme involves anti-abuse education including films, lectures and demonstrations—indeed, I have myself seen some of the new films on drug abuse that have recently been made and which will in due course he circulated to the fleet and elsewhere—measures to improve the prevention and detection of drug abuse, and the provision of medical remedial treatment.
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The campaign against the evils of alcohol and drug abuse is regularly reviewed. In recent months, for example, the Navy has set up a special alcohol education team and progress here will be carefully reviewed by the other two services. Furthermore, the whole range of anti-drug measures has recently been brought under the scope of a new tri-service drug abuse prevention sub-committee, to which the noble Lord referred. One of the steps it has been considering to combat drug abuse is the use of urinalysis equipment for drug detection. Indeed, as the noble Lord may know, I recently saw some of that equipment in action, and we shall be making our requirements known shortly. It is hoped in due course to be able to procure some equipment of that kind. It is intended that such equipment should be used as an additional aid to investigation in specific cases where there is a reasonable suspicion of drug abuse.
Steps have also been taken to improve the statistical basis for recording the incidence of drug abuse within the services so that trends can be carefully monitored. Perhaps I may add at this stage that it is clear that the incidence of drug abuse in the armed forces is way below the incidence of drug abuse in the community at large.
I and my colleagues are most concerned about the dual threat to the services presented by these evils, as indeed are the service chiefs. I hope that I have been able to persuade the Committee that every attempt has been made to combat this threat and that our methods of doing so are regularly reviewed and updated. In the light of that assurance, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Graham of Edmonton: I certainly intend to withdraw my amendment. The last thing that I would say is that the Minister is sanguine. I appreciate from what he said that steps are being taken. But, despite that, the Minister is aware that the number of British servicemen convicted of drug-related offences in military and civil courts has risen from 122 in 1982 to 353 in 1984. The Minister might say that that is a better record than in civilian life—that is, a doubling. It may very well be so; but it is a matter for concern. The item which I have read from the Sunday Times, which is validated, talks in terms of the figures for 1985 and 1986 showing a continuing increase.
They can still show an increase despite all the good efforts that the Minister and his colleagues are making. I do not agree that this is a matter which should just be left to the commanding officer. It is a responsibility of your Lordships' House to tell every commanding officer by way of primary legislation that we believe that there are responsibilities here. When we are endeavouring, as I am in relation to this amendment, to ensure that there is an effective and continuing campaign, what we are really saying is that we must never forget our responsibilities to the young people, to their parents and to society.
The Minister will appreciate, because I keep coming back particularly to the question of drugs, that I would never cavil at expenditure which is directly related to an attempt both to educate, which is difficult to quantify, or to eradicate or rehabilitate people who are unfortunately affected by drugs. It is not my intention

27
to press this matter to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 3:
After Clause 4, insert the following new clause:
("Offence of discrimination on sectarian grounds.
.—(1) After section 69 of the Air Force Act 1955 (conduct to prejudice of air-force discipline), there shall be inserted the following section—
>"69A. Any person subject to air-force law who acts or conducts himself in a manner which is discriminatory on sectarian grounds shall be guilty of a disciplinary offence."
(2) After section 69 of the Army Act 1955 (conduct to prejudice military discipline), there shall be inserted the following section—
"69A. Any person subject to military law who acts or conducts himself in a manner which is discriminatory on sectarian grounds shall be guilty of a disciplinary offence."
(3) After section 41 of the 1957 Act (aiding and abetting of naval offence), there shall be inserted the following section—
"41A. Every person subject to this Act who acts or conducts himself in a manner which is discriminatory on sectarian grounds shall be guilty of a disciplinary offence.".")
The noble Lord said: I beg to move Amendment No. 3 which the rubric indicates as dealing with the offence of discrimination on sectarian grounds. Those who have read with care the proceedings of the Select Committee on the Armed Forces Bill will understand that there was, to say the least, a hiatus in the Committee at the refusal of the majority on party lines to accede to the introduction of a witness who the minority side felt could help the Committee in respect of this matter. I think that that was rather sad. Clearly, we are talking here directly on this matter of sectarianism in respect primarily of the Northern Ireland situation—not explicitly of course; there may be other Members who wish to talk about this. I simply want to say to the Committee what a Member in another place, Mr. Mallon, had indicated that he would have been wanting to talk to if the matter which the memorandum dealt with (and which was received) had allowed him so to do.
This is what the Select Committee (which in effect we are discussing with our items today) had to say on page 257 under paragraph 12a.
"There are a number of examples which show what I mean when I describe the UDR as sectarian. (i) The UDR has had a proven involvement in loyalist paramilitary groupings, for example, the Miami show band murders, and the case of the Skankill Butchers both involved members of the UDR. (ii) Membership of the Orange Order and the Black Perceptory, an example of which is the charging of two men of the UDR following marching in Portadown in the summer of 1985. (iii) Open involvement in Unionist politics. There are for example members of the UDR who have been members of "Armagh District Council".
There is a great deal else. What I want the Minister to talk to us about in this amendment is, first of all, the status of the UDR as covered by this Bill; and, secondly, what actions the Government take in general, certainly over particular allegations of that kind, to make sure that the kind of discrimination which I am talking about in my amendment are—if not stamped out; and we all understand the realities in Northern Ireland—at least, so far as possible, not tolerated.
At Report stage of the Bill, my honourable friend Mr. McNamara not only relied on the evidence of Mr. Mallon, but he also introduced other evidence from the parish priest at Bessbrook, Newry, in County Down. He said:
" 'In my recent parish of Carrickmore, County Tyrone, I had reason to make representations on behalf of two of my parishioners at their request when they claimed that they were ill-treated by men from the UDR'."
Then he goes on to make those allegations. He does not simply say that they were bad acts by members of the armed services; he makes allusions to a sectarian aspect of it. The Minister would be helpful to the Committee if he gave us the benefit of his observations on the matter. I beg to move.
Lord Trefgarne: I want to stress right at the outset that discrimination by members of the armed forces on any grounds, whether of race, religion, colour or anything else, during dealings with other servicemen or with members of the public would not be tolerated. If it were to take place, it would be viewed extremely seriously and dealt with accordingly. Service law already contains a number of offences under which racial or religious discrimination would be an offence wherever it took place. Any conduct to the prejudice of good order and discipline under which any act of racial or religious discrimination would fall is an offence.
Moreover, anyone subject to service law commits an offence when he uses threatening, abusive or provocative words or behaviour. On 1st March this year the code of practice for the treatment and questioning of persons by the service police under the Police and Criminal Evidence Act 1984 came into effect and I should like to quote the following paragraph:
"Discriminatory behaviour on the grounds of a person's ethnic or national origin may render a service policeman, like any other member of the armed forces, liable to disciplinary action".
Taking into account all the safeguards that I have outlined, the provisions of which extend beyond those proposed in this amendment, I do not consider that the noble Lord's amendment would usefully assist in the prevention of discrimination in the armed forces. Having said that, our aims, I am sure, are absolutely parallel in this matter, and in the light of this I hope that the noble Lord will not wish to press his amendment.
Lord Graham of Edmonton: I do not intend to press the amendment. The Minister has had the opportunity to explain not just to the Committee but to the wider world outside that the Government (to the same extent that it is possible) do not agree to any extent with discrimination whether it is on sectarian or any other grounds. I am quite certain that the question of race relations, as well as equal opportunities and other rights which are enjoyed are equally applicable and are made available to members of the armed services. Certainly those outside your Lordships' Chamber, having heard the Minister, should recognise that if they know of instances, and have evidence to support those instances, which they believe are contrary to what the Minister has said, they have a responsibility not only to those who come to them with complaints but also to the Minister and to the Government in

29
order that they can deal with those matters. In the circumstances I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 4:
After Clause 4, insert the following new clause:
("Abolition of the death penalty.
Punishments
.—(1) In subsection (1) of section 24 (aiding the enemy), subsection (1) of section 25 (communication with the enemy), subsection (1) of section 31 (mutiny) and paragraph (i) of section 32 (failure to suppress a mutiny) of each of the 1955 Acts, for the words "death or any other" there shall be substituted the word "any".
(2) In section 2 (misconduct in action and assistance to the enemy), section 4 (obstruction of operations), section 5 (aiding the enemy), section 9 (mutiny) and section 10 (failure to suppress a mutiny) of the 1957 Act, for the words "death or any less' there shall be substituted the word "any".
(3) In subsection (2) of sections 71 (punishment of officers) and 72 (punishment of other ranks) of each of the 1955 Acts and subsection (1) of section 43 (scale of punishments) of the 1957, Act, paragraph (a) shall be omitted.
(4) Section 121 of each of the 1955 Acts and sections 78, 79 and 80 of the 1957 Act (execution of sentence of death) shall be omitted.").
The noble Lord said: This amendment concerns the abolition of the death penalty. I beg to move the amendment, always conscious that amendments drafted in opposition—bereft as we are of the panoply of assistance which is available to the Minister in the MoD and from the various sections—may very well have defects in them. However, the purpose of this amendment is clear. We seek to apply to members of the armed services the same law as is applied to or enjoyed by the civilian population. We rely very heavily for the extended debate that we shall certainly not be having here today on the matters which are being teased out and which will be dealt with when we look at the special report from the Select Committee. I believe it may help your Lordships if, in looking at my amendments, I could simply say:
"In subsection (1) of section 24 (aiding the enemy), subsection (1) of section 25 (communication with the enemy)",
and then take out the words,
"shall, on conviction by court-martial, be liable to suffer death or any other punishment."
What I am doing in fact is seeking to take out the words "death or any other", so that the passage would read, "to suffer punishment".
The matters with which your Lordships who are present here today are more conversant than I am, having argued about them, are quite clear. Section 24 has the heading, "Aiding the enemy". Section 24(1) says:
"Any person subject to military law who with intent to assist the enemy:

(a) abandons or delivers up any place or post which it is his duty to defend, or induces any person to abandon or deliver up any place or post which it is that person's duty to defend, or

(b) does any act calculated to imperil the success of operations of Her Majesty's forces, of any forces co-operating therewith or of any part of any of those forces, or

(c) having been made a prisoner of war, serves with or aids the enemy in the prosecution of hostilities or of measures calculated to influence morale, or in any other manner whatsoever not authorised by international usage, or

30

(d) furnishes the enemy with arms or ammunition or with supplies of any description, or

(e) harbours or protects an enemy not being a prisoner of war, shall, on conviction by court-martial, be liable to suffer death or any other punishment provided by this Act."

The case I am asking the Committee to accept is that capital punishment, the death penalty, has ceased to apply outside the armed forces in this country for many years. I am asking your Lordships to treat members of the armed forces in a similar way. Some of your Lordships may say that is essential and crucial, I do not intend to go over the great arguments—and they are great arguments—for or against the death penalty, because there are Members in this Chamber who are far better qualified than I am to argue for or against. However, I should like to draw the attention of your Lordships to exchanges which took place before the Select Committee. I quote from Question 396:
"396. I understand it is the policy that the death penalty would not be applied in peacetime?
(Lieutenant General Sir John Chapple.) Correct.
397. And yet the death penalty remains on the statute book? (Lieutenant General Sir John Chapple.) Correct.
398. Do I assume, therefore, that the statute remains as it is because the policy might change?
(Lieutenant General Sir John Chapple.) Yes.
(Mr Facer.) I think partly that and partly the difficulty of defining the point at which peace becomes war. There is considerable difficulty in this area."
I would refer now to an exchange which occurred in Question 452, which reads:
"452. So that in what is effectively a peacetime situation soldiers can be executed either in the United Kingdom or in Northern Ireland or, indeed, anywhere in the world, under one of these four headings?
(Mr Facer.) It has been made clear that it is not the intention for the death penalty to be invoked in peacetime. We are talking, therefore, about a situation that could not occur."
We also have a later exchange with Mr. Bermingham, who, following the same series of questions, said:
"463. Yes. The current policy is that no-one is to be executed, therefore currently no-one would be executed. I think that logically follows?
(Mr Facer.) Yes.
464. But it is possible at this moment in time, even though we are in a peacetime situation, for a British serviceman to be sentenced to death for one of these five offences if the offence occurs either in the United Kingdom, Northern Ireland, Belize, Gibraltar—anywhere where there is a British serviceman currently stationed, and he is liable for one of these five offences, if the court sees fit, to be sentenced to death?
(Mr Facer.) That is so.
(Mr Stuart-Smith.) The reality of the matter is that, as far as I am aware, there has been no such charge since the end of the 1945 war. Whether or not it was done in Korea I do not know. I cannot say with certainty there has been no death penalty imposed.
465. If charges have not been brought since 1945—and we have been through every type of conflict since then—Malaya, Borneo, Korea, Aden, Egypt, Cyprus, West Africa, East Africa, the South Atlantic and Northern Ireland—why do you still need it?
(Lieutenant General Sir John Chapple.) We need a good deterrent."
There you come back to the arguments about the value or the validity of the death penalty. I do not wish to say anything unkind about the ministry witness, but he said that one of the reasons why we need it is that it is a good deterrent.
We are members of the NATO community, and in that sense we need to have due regard to what our NATO allies do, because I assume they are as concerned as we are with the integrity of our defence and security systems. In a supplementary memorandum supplied by the MoD, on Wednesday, 12th February, the committee was told that Denmark, France, Norway, the Netherlands, the Federal Republic of Germany, Luxembourg and Portugal have abolished the death penalty completely. Spain retains the death penalty for use in wartime only. In Belgium, Canada, Greece, Turkey, Italy and the United States of America the death penalty is available as a sentence on servicemen in peace and in war.
The variations, the reasons and the peculiarities of each country's application of the death penalty are far too long to weary your Lordships with at this time. However, I would say that in 1986, in the light of what has been said in your Lordships' Chamber and in another place and in view of the current state of our law as applied to civilians, particularly in what we term an "all-volunteer armed service", I think it is about time we brought the law of this country as applied to our armed forces up to and alongside the same range of punishments as are available to those in civilian life.
Finally, I should like to mention the lack of seriousness of the nature of the five reasons.
I speak as an ex-serviceman and as someone who would certainly be very willing at any time to defend my country in any manner possible. I am not a pacifist and I can appreciate the seriousness of the situation. But I am talking of what I believe is the enlightened attitude of the British people, not just the attitude of the majority of our NATO allies, and the availability of the death penalty for servicemen who commit those crimes is not acceptable in 1986. I beg to move.
4.30 p.m.
Lord Denning: I think that most of us will have much sympathy with this amendment. There is no reason in principle for distinguishing between military law and our ordinary criminal law. We all know that capital punishment has been abolished for even the most heinous crimes, such as putting a bomb on an aeroplane and killing 300 or more people, kidnapping and the like. Many of us would feel that there ought to be capital punishment, but it has gone and it will not be restored. Should the position be different in the military field?
In the ordinary way, high treason still carries the death penalty, and high treason is still committed in Northern Ireland by those who levy war against the Queen and her realm, as well as against the Grand Hotel at Brighton. But that high treason has not been prosecuted and the charge is murder, which does not carry the death penalty.
If that is the position in the other parts of the law, is it logical or right to keep it for our servicemen? The clause applies not only in wartime but in peacetime, but does not history show how many people—whom others would forgive—deserted in wartime and were punished accordingly? Is there not a strong case for
32
removing the death penalty in these cases also, rather than to have inconsistency in the law?
Lord Elwyn-Jones: I rise to support the amendment and to agree with what the noble and learned Lord, Lord Denning, has just said. The inconsistency between abolition of the death penalty in the most grievous cases where death has been caused in the ordinary civil field and retaining it in the armed forces in regard to breaches of military discipline would be intolerable and unjust. What would be of interest, certainly to me and perhaps to the Committee, would be to know whether in the last war, from 1939 to 1945, there were, in practice, any death penalties carried out.
At the end of the war, I had the responsibility of being a Judge Advocate and I remember one famous mutiny trial where there was a refusal to pass the death sentence. I had better not go into more detail than that; otherwise, I shall be breaking the oath of secrecy. But if there was a case in the last war it would surprise me. The Minister has now indicated that there may have been a case or two and they would have been quite contrary to the feelings of those in the armed forces at the time. That is all I can properly say.
But at any rate, as a matter of consistency, the death penalty should go. I venture to think that we should be the only country in Europe, even in conditions of military law, retaining the death penalty. As the noble and learned Lord has said, high treason is something that is remote and not enforced. For instance, murdering the Lord Chancellor in the exercise of his duty—he is not here to be worried by this information—carries not only the death penalty but the penalty of beheading. That was the mediaeval law which is still the law of this country. Whether that will comfort the present Lord Chancellor—it certainly did not comfort me in any way—is, of course, another matter. But, seriously, it is time this went out of the code of military law as well, and I hope that the Committee will approve and carry the new clause.
Lord Mayhew: Logic seems to be wholly on the side of those who are seeking to amend the Act and the difficulties of the practical application of the Act, too. We might conceivably arrange a hanging or even a shooting, but a beheading as recommended by the Act for the murderer of a Lord Chancellor would present quite exceptional difficulties of an ethical, political and humanitarian kind.
This is a familiar debate on which views are constantly expressed in both directions within each party. That is the case today—certainly with my noble friends and myself—and I am speaking for myself when I say that I find the logic on one side. But, at the same time, one can argue both ways about the fact that it is inconceivable to use this penalty, it has never been used and it has never been invoked since the end of the war in 1945. It could be argued that is therefore out of date and should be removed, but it could also be argued that it has served as an extremely effective deterrent.
The one thing that reassures me is that we no longer apply the death penalty to a whole range of military offences to which it was applied earlier. We have grown up in a literary tradition. We have read books and poems and we have witnessed plays in which the

33
execution of soldiers was carried out for acts of cowardice or desertion. We are not, of course, discussing those now. We are discussing only the possible hypothetical use of the death penalty in cases of active assistance to the enemy and of deliberate treachery. Therefore, I think it is not a matter on which it is easy to be dogmatic on one side or the other.
Lord Kennet: May I rise on a point of information? It would greatly assist some of us if the Minister could give an authoritative list of the democratic countries which retain the death penalty in their armed forces and those which do not.
Lord Trefgarne: May I say at the outset that I do not have all that information in front of me, but I shall be happy to try to find it and let the noble Lord have it. That means that a copy of my letter to the noble Lord will go automatically to the Library.
May I at the outset confirm my nod to the noble and learned Lord, Lord Elwyn-Jones, about events during the second world war? There were, I understand, three officers who were executed in this way during the second world war. All three cases took place in 1942 and I understand arose from the same incident.
It might be helpful if I now begin by setting out the provisions in the Service Discipline Acts under which the death penalty could still be applied. The first and most fundamental point is that the death penalty can only be applied where the offence is committed with the deliberate intention of assisting the enemy or, where mutiny is concerned, with the deliberate intent to avoid or impede operations against the enemy.
Where this deliberate intention of assisting the enemy or avoiding or impeding operations against the enemy is present, there are now only five offences in the Service Discipline Acts that carry the death penalty as the maximum penalty available. These are misconduct in action, assisting the enemy, obstructing operations, mutiny and failure to suppress mutiny.
I have just been reminded that I did not quite get it right when I was replying to the noble and learned Lord, Lord Elwyn-Jones, just now. It is indeed the case that three people were executed during the second world war for offences arising out of the same incident, but they were not, I understand, officers as I inadvertently led your Lordships to imagine just now.
But, returning to the main issue, the 1981 Select Committee of another place looked at these five offences in some detail and accepted that the death penalty should be retained as the ultimate punishment where there was a deliberate intention to assist the enemy. I should stress that we are talking only about a maximum discretionary punishment. For these five service offences the death penalty is never mandatory.
We also looked very carefully at the question of retaining the death penalty in relation to these five offences and we concluded that we should. The issue was also examined by the 1986 Select Committee of another place which took both oral and written evidence on the subject. The noble Lord, Lord Graham, referred to that during the course of his remarks. Its conclusion, rightly in my view, is that no change should be made. I must stress that the death penalty could be applied to a serviceman only in
34
circumstances where the offence is tantamount to the civilian criminal offence of treason, for which capital punishment is still mandatory.
Treasonable activity within the ranks of the armed forces in war would undoubtedly be a crime of the utmost seriousness. If committed, it would almost certainly lead directly to the loss of the lives of other servicemen performing their operational duties bravely and trusting in the loyalty of those serving with them. The service chiefs are unanimous and clear that it is right to retain the death penalty for offences tantamount to treason and the Government share that view. The noble Lord, Lord Mayhew, towards the end of his remarks indicated that this was a matter of more than usual complexity and difficulty, and I hope therefore that the noble Lord will not wish to press his amendment on this occasion.
Lord Graham of Edmonton: I am obliged to the noble Lord the Minister for his remarks, but I am somewhat puzzled because I am still unclear as to the extent to which mutiny is capable of being defined or understood. In my view what the Minister has said is not on all fours with the words that appear in the 1955 Act.
I come back to the case that I made at the beginning. We are concerned to have in the Bill something that does not act as a deterrent, but which has meaning and purpose. This Chamber is well experienced not only in looking at changes over 40 years but also in not wanting the law to be brought into disrepute. As the noble and learned Lord, Lord Denning, said, we are talking in terms of horrendous situations. I take the Minister's point about a serviceman who, by an act of the kind that is listed, causes the death of his comrades in whatever circumstances; certainly when they are relying upon him that is an absolutely horrendous crime. But as the noble and learned Lord, Lord Denning, pointed out, these days there are equally horrendous crimes carried out by civilians which do not carry the death penalty. What the Minister has to prove is that in the circumstances in which members of the armed forces are serving they need to be treated separately. So far as I am concerned this is a right and proper time to test the view of the Committee and I intend to press the amendment.
4.44 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 76; Not-Contents, 116.

DIVISION NO. 1

CONTENTS

Amherst, E.

David, B. [Teller.]

Ardwick, L.

Davies of Penrhys, L.

Banks, L.

Denington, B.

Birk, B.

Denning, L.

Blease, L.

Donaldson of Kingsbridge, L.

Boston of Faversham, L.

Elwyn-Jones, L.

Bottomley, L.

Ennals, L.

Bruce of Donington, L.

Ewart-Biggs, B.

Caradon, L.

Falkender, B.

Carmichael of Kelvingrove, L.

Feversham, L.

Cledwyn of Penrhos, L.

Fitt, L.

35

Gallacher, L. [Teller.]

Paget of Northampton, L.

Galpern, L.

Phillips, B.

Graham of Edmonton, L.

Prys-Davies, L.

Grimond, L.

Ritchie of Dundee, L.

Hampton, L.

Rochester, L.

Harris of Greenwich, L.

Seear, B.

Hatch of Lusby, L.

Shepherd, L.

Henderson of Brompton, L.

Silkin of Dulwich, L.

Houghton of Sowerby, L.

Stallard, L.

Hughes, L.

Stedman, B.

Hunt, L.

Stewart of Fulham, L.

Jeger, B.

Stoddart of Swindon, L.

Jenkins of Putney, L.

Strabolgi, L.

John-Mackie, L.

Taylor of Blackburn, L.

Kennet, L.

Taylor of Gryfe, L.

Kilbracken, L.

Taylor of Mansfield, L.

Listowel, E.

Tordoff, L.

Llewelyn-Davies of Hastoe, B.

Underhill, L.

Lloyd of Kilgerran, L.

Wallace of Coslany, L.

Lockwood, B.

Walston, L.

Longford, E.

Wells-Pestell, L.

Lovell-Davis, L.

Whaddon, L.

Masham of Ilton, B.

White, B.

Mishcon, L.

Wigoder, L.

Molloy, L.

Willis, L.

Mulley, L.

Winchilsea and Nottingham, E.

Nicol, B.

Oram, L.

NOT-CONTENTS

Alexander of Tunis, E.

Hooper, B.

Alport, L.

Hunter of Newington, L.

Arran, E.

Hylton-Foster, B.

Attlee, E.

Ilchester, E.

Belhaven and Stenton, L.

Kimball, L.

Bellwin, L.

Kinloss, Ly.

Belstead, L.

Kinnaird, L.

Bessborough, E.

Lane-Fox, B.

Blake, L.

Lauderdale, E.

Boyd-Carpenter, L.

Lawrence, L.

Brabazon of Tara, L.

Layton, L.

Brougham and Vaux, L.

Long, V.

Broxbourne, L.

Lucas of Chilworth, L.

Bruce-Gardyne, L.

Lurgan, L.

Buckinghamshire, E.

Lyell, L.

Butterworth, L.

Macleod of Borve, B.

Caithness, E.

Macpherson of Drumochter, L.

Cameron of Lochbroom, L.

Campbell of Alloway, L.

Mancroft, L.

Campbell of Croy, L.

Manton, L.

Constantine of Stanmore, L.

Mar, C.

Cox, B.

Margadale, L.

Crawshaw of Aintree, L.

Marley, L.

Cromartie, E.

Maude of Stratford-upon-Avon, L.

Cross, V.

Cullen of Ashbourne, L.

Merrivale, L.

Davidson, V.

Mersey, V.

Dilhorne, V.

Mountgarret, V.

Donegall, M.

Murton of Lindisfarne, L.

Dowding, L.

Newall, L.

Drumalbyn, L.

Orkney, E.

Eden of Winton, L.

Orr-Ewing, L.

Ellen borough, L.

Pender, L.

Elliot of Harwood, B.

Plummer of St Marylebone, L.

Elliott of Morpeth, L.

Elton, L.

Porritt, L.

Faithfull, B.

Portland, D.

Ferrers, E.

Rankeillour, L.

Fortescue, E.

Renton, L.

Fraser of Kilmorack, L.

Rodney, L.

Gainford, L.

St. Aldwyn, E.

Gibson-Watt, L.

Saint Brides, L.

Glanusk, L.

St. Davids, V.

Glenarthur, L.

Sanderson of Bowden, L.

Gray of Contin, L.

Sandford, L.

Grey, E.

Sandys, L.

Gridley, L.

Savile, L.

Hampden, V.

Sempill, Ly.

Hanworth, V.

Shannon, E.

Holderness, L.

Skelmersdale, L. [Teller.]

Hood, V.

Soames, L.

36

Sudeley, L.

Vivian, L.

Swansea, L.

Ward of Witley, V.

Swinfen, L.

Westbury, L.

Swinton, E. [Teller.]

Whitelaw, V.

Thorneycroft, L.

Wise, L.

Trefgarne, L.

Wynford, L.

Trumpington, B.

Young, B.

Vaux of Harrowden, L.

Zouche of Haryngworth, L.

Vickers, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.53 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 5:
After Clause 4, insert the following new clause:
("Abolition of exemption of Services Acts under Sexual Offences Bill 1967.
. After section 19 of the 1981 Act, there shall be inserted the following section—
"19A. Subsection (5) of section 1 of the Sexual Offences Act 1967 shall cease to have effect.".").
The noble Lord said: This amendment seeks, as do a number of other amendments in my name, to apply to members of the armed forces the same conditions, rights and freedoms, wherever possible, as are currently enjoyed by those who are not members of the armed forces. This amendment seeks to apply all the conditions contained within the Sexual Offences Act 1967 to the armed forces.
Again, we are indebted to an extremely useful range of arguments that were deployed in the committee. I make no party point and certainly no party animus was raised in that committee; just as there is none in this House and in the other place whenever the question of sexual freedom or the way in which sexual offences are held to be criminal acts are discussed. I am certain that the same will apply during our discussions in this Committee.
I summarise for the benefit of the Committee the arguments that were put by the Ministry of Defence experts. Let me say that we are not arguing about what they said but about what the committee did; because the majority of the committee accepted their arguments. I believe I have been guilty more than once of saying that what I was opposing was what the MoD witnesses said, whereas, quite properly, I am now arguing against the conclusions of the committee.
They are summarised in a number of ways. First, one of the reasons given why members of the armed forces need to be treated separately is that they live in closed communities. Apparently they are the only people who live in closed communities, but that is one of the central arguments used—that there are conditions, an ambience, an environment which are peculiar to the armed services which are not applicable elsewhere. Secondly, the argument is that one needs to have an arrangement whereby there is absolute trust and confidence between all ranks. I should have thought that there needs to be absolute trust and confidence between all levels of management and in a hierarchal society; not merely in the armed forces but in many other organisations. However, one of the arguments put forward is that one needs to respect and build upon, not destroy, absolute trust and confidence. The other argument was that the potentially destructive influence of homosexual

37
practices should be excluded from the environment. If one looks at the words, that is given as the basic reason.
I intend to deploy my arguments by making several quotations, and this raises one of the aspects of the Bill which causes me the greatest puzzlement. It is very difficult, reading the statements of the witnesses—and it is upon the evidence of the witnesses that the committee came to its conclusions—to believe that one is on the same wavelength when going from one page to another. They shift all over the place. There is no black and white or hard and fast way to look at the matter. If one looks at the evidence one can become very confused. For example, the chairman of the committee said to Mr. Stuart-Smith:
"Is homosexuality as such, as opposed to homosexual acts, illegal under the Armed Forces law?"
The answer is "no", it is not illegal per se, to be a declared homosexual. It is not even illegal in some circumstances to be a practising homosexual because, as evidence shows, exceptions are made.
The question of disclosure, the question of consideration, the question of punishment—if that is the right word—when these matters come forward is a matter of judgment. One commanding officer may well come to a different conclusion from another. In some of the evidence which is attached to the report given by some of the organisations—and I respect the fact that they are much closer to these issues because they speak to the people who have been aggrieved and badly treated—one can see that there is a variety of ways in which the services seek to react to a revealed set of circumstances.
On page 183 of the committee's report Mr. McNamara asked:
"When you say that most persons convicted of an offence would be discharged, what would be the exceptions when a person would be maintained in the Service?"
Mr. Facer replied:
"It would depend very much on the nature of the offence."
In other words, one can make a subjective judgment. It depends; it is what one determines. I assume that this means that the view that is held by an individual with authority and power can apply differently in the same circumstances. Mr. Facer used the words "it would depend very much on the nature"; so one then gets into the argument of who precisely and exactly defines what is the nature of the offence.
Then Mr. McNamara asked:
"What are the circumstances, then, whereby a person who has been found guilty under service law of a homosexual offence would be retained?"
In other words, it is not an offence to be homosexual. We now know that it is not an offence to commit a homosexual act under some circumstances. Mr. Facer said:
"Well, there might be cases where the offender was a relatively young Serviceman where he made perhaps a voluntary confession that he indulged in some homosexual practice which was perhaps not of the most serious kind".
One has to apply one's own assessment of what is meant by the phrase "not of the most serious kind". I shall be told by the Minister whether I am right or wrong, but apparently someone, perhaps the
38
commanding officer, exercises judgment in those circumstances. Mr. Facer continued:
"It is very difficult again to be hypothetical because each case is considered in the circumstances of the case".
So each case is considered separately. We all know that, where there is only one arbiter or where the law is capable of being interpreted or applied in different ways, it is inevitable that for the same crime (if that is what it is) different levels of punishment will be meted out.
I should like to draw the attention of the Committee to some more words of Mr. McNamara:
"You say that the 'nature of service operations means that absolute trust and confidence within and between all ranks is essential and any activities, such as homosexual practices, which might disrupt such trust and confidence must be avoided'. That is one of your main arguments? Why do you not court martial for adultery between a serving man and perhaps the wife of another serving man, or between husbands, putting it in the other context?".
Mr. Stuart-Smith said:
"In certain circumstances, where there was a rank of difference"—
in other words, it depends not on the act but on the differentiation between the rank of those involved—
"I would not be prepared to say a charge would not be brought on the basis of conduct prejudicial to good order and military discipline".
There is the gravamen. In fact the charge ought to be,
"conduct prejudicial to good order and military discipline"
not whether a man is homosexual or a practising homosexual; but in whatever circumstances, whatever the conduct, whether that conduct is held to be prejudicial to good order and military discipline.
5 p.m.
If we are concerned with trust and confidence, which is one of the bases on which this view is held, we all know very well that the grave matters of disunity, distress, distrust and lack of confidence can be brought about by sexual acts which are not homosexual in nature. They can be sexual acts between a man and a woman; and one party may not necessarily be a serving officer, non-commissioned or otherwise. One may be a civilian. Those involved may be two members of the armed services, or the act may involve a man and the wife of another serving officer. So we have an enormous confusion as to precisely who and what are caught or held to be liable under this particular criterion.
I turn now to the point that I was making earlier about the relationship being a criminal offence. Mr. McNamara asked:
"I accept that entirely, and there would be reason for charging a person with conduct prejudicial to good order and military discipline, but why not charge him with conduct prejudicial to good order and military discipline; why make homosexuality per se as a relationship a criminal offence?"
Mr. Facer replied that the offences were not defined as "homosexuality" but that they were defined in a slightly different way and Mr. Stuart-Smith said that they were defined as "disgraceful conduct of an indecent kind".
So, something which is legal and permissible outside the armed forces—homosexuality between two consenting adults in private—when it takes place between one or two members of the armed forces is

39
held to be disgraceful conduct of an indecent kind. In simple equity, let alone in justice and humanity, I believe that we ought not to tolerate a situation in which that is the law of the land. As far as I am concerned there is a conflict; other members of the Committee who take part in this debate will clearly have their own personal points of view. Let me say again that this evidence is crucial. Mr. McNamara, a member of the Committee, asked:
"I am not saying that I necessarily disagree with that as a definition of such acts, but what I am asking is why you treat it as an offence when you can treat it in other ways? You are taking action and saying that purely and simply it is an offence. It is an offence if he is a member of the Armed Forces but not if he is a civilian; if he does it away from his place of duty it is an offence, or if he does it in private it is an offence; if he does it with somebody who has no association with the Armed Forces at all it is an offence. Why?"
Mr. Facer replied:
"There is an argument here for deterrence; we are trying to prevent actions which are detrimental to service discipline and operational effectiveness, and the existence of the specific provision is helpful in this respect."
I know that the Committee clearly has its own views on this matter, as indeed on other matters. We are the people who can retain the law or change it. We can change it by accepting my amendment. I simply plead in aid the evidence that was given to the committee by the National Council of Civil Liberties on this issue, who said:
"Homosexual acts are an offence for members of the armed forces, an anomaly, when compared to the law relating to the rest of society. Homosexual men and women often face harassment both official and unofficial. The organisations At Ease and Campaign for Homosexual Equality have details of individual cases where a person suspected of being homosexual has had his or her possessions and lockers searched by the Military Police and diaries and letters taken and the names therein recorded. Such harassment can have a profoundly disturbing effect on the individual under suspicion. Recently a 21 year-old private in the King's Regiment was convicted and jailed for life after strangling a friend who had threatened to tell the army about their homosexual affair. Sentences of 9 months imprisonment for merely having a homosexual affair are not unknown. Such conduct would not be punishable under the general law.
In the NCCL's view there is no justification whatsoever for the persecution under military law of homosexual men and women. We have stressed that civil liberties for servicemen should not differ from those of civilians without good reason".
I am satisfied not only by my own predilection for the arguments—which I have studied perhaps with rather less care than I should have wished before coming to the Committee—but also on the basis of the evidence put before the Committee. In the light of the current law, which as I understand it is not seriously challenged in either House, I cannot believe that a case has been made out for maintaining the non-application of the law to members of the armed forces. That is why I have put forward my amendment. I beg to move.
Lord Denning: Throughout history society has condemned homosexuality. Those members of the Committee who know the Bible will remember Lot's wife and how the vengeance and punishment of God came down on the cities of Sodom and Gomorrah—and sodomy has remained the name given to this offence. At common law it was called the abominable crime of buggery. I have tried non-commissioned officers and sentenced them to three years for it, because, certainly in the armed forces, it is detrimental
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to discipline and good order, destructive of morality and certainly to be condemned.
In the law, all that was altered in 1967. I remember it, and the debates that we had on it. Section 1 of the 1967 Act states:
"a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained the age of twenty-one years".
Is that to apply to the Army, Navy and Air Force? Is the only difference to be whether the man is just over or just under 21, when the sergeant or the sergeant-major may be 29, with these youngsters being 19, 20 or 21? We are getting into ridiculous distinctions.
I am pretty sure—and I have known many of them—that generals, admirals and air vice-marshals would certainly retain the offence. It is necessary to maintain the morale, the sense of dignity and the efficiency of the armed forces. I hope that the amendment will not be accepted.
Lord Mayhew: Once again the noble Lord, Lord Graham, has moved an amendment which I think he will agree is not a party matter. Any remarks that I may make now are simply on my own behalf. The first point that I would dispute in his admirable introduction, with great respect, is where he implied that there is no environment peculiar to the armed forces; that somehow the same atmosphere must exist in civilian as in service life. I believe that there is a profound difference in the atmosphere and environment of service life. We cannot get away from that. The armed forces are for a particular purpose, and they must be efficient for that purpose. They cannot necessarily be a mirror of our civilian society and fulfil the purpose for which we maintain them. That affects the issue that we are discussing on the amendment.
I agree with the noble Lord in that I do not believe that the Ministry of Defence witnesses to the Select Committee made out a very logical or persuasive case. We are discussing what kind of homosexual relationship or conduct, if any, should be permissible which is not prejudicial to good order and discipline. We all agree that homosexual behaviour and relationships which are prejudicial to good order and discipline are already dealt with, and no one is arguing about that at all. I think the noble Lord is raising the question of homosexual behaviour or relationships which are not prejudicial, and is asking: should they be permissible?
As a serviceman, I find it almost impossible to conceive of an open homosexual relationship or homosexual conduct which would not be prejudicial to good order and discipline. I am sure that many of us here would have had experience of active service as servicemen. I am speaking entirely for myself, but I cannot believe that most servicemen on active service would want to share their crowded billets with a pair of either heterosexual or homosexual lovers. I do not believe it, and I think that that is a perfectly reasonable attitude. It is not a matter of prejudice: it is simply a matter of common sense. It is what I would have felt myself.
I should like to hear from the noble Lord what is the homosexual relationship or conduct which is not prejudicial and which he thinks should be allowed. As

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a serviceman I find it difficult to envisage that. However discreet the heterosexual or homosexual relationship was, in conditions of active service it would be disruptive, would create tensions and would not be wanted. I ask myself whether the armed forces want us to move the amendment. I have no evidence of that at all. What I still know about the armed services suggests to me that they would not wish this amendment to be passed. That being so, on what grounds are we to impose our views on these matters on the armed services? With the most liberal interpretation possible, I do not think that this is a genuinely liberal amendment.
5.15 p.m.
Lord Marshall of Leeds: I very much admired the speech of the noble Lord, Lord Mayhew. Anyone who is attracted to the idea by some correlation between civilian life and life in the armed forces is severely misleading himself. In civilian life a person has the right to refuse to do something that someone else asks him to do. In the services one cannot without retribution refuse to carry out the terms of an order. Life is very different in civilian life from that in the armed forces.
In 1945 I spent many days defending a WO(1) at general court martial for that alleged offence in respect of nine private soldiers. That offence, of course, was absolutely prejudicial to good order and military discipline. I was fortunate enough to obtain his complete acquittal. I think he had been framed. But it was proper that the prosecution was brought at general court martial. Nothing runs like a virus through the services, or through any other body of men living together, as much as homosexuality. For that reason alone I very much oppose the amendment.
Lord Trefgarne: I think the aim of the noble Lord's amendment is to remove the statutory provision which enables homosexual practices on the part of members of the armed forces to be charged as offences against the service discipline Acts. At present the position is that under the services discipline Acts all homosexual practices involving service personnel continue to be offences regardless of the sex, age or willing consent of those involved. Section 1(5) of the Sexual Offences Act 1967, which otherwise permitted sexual acts between consenting adult males in private, specifically reserves the position.
The exemption of the armed forces was in recognition of the unique circumstances of service life. Servicemen and servicewomen serve in conditions where, both on and off duty, they are unavoidably living in closer proximity and sometimes under stress. In addition, service life, particularly in demanding operational circumstances, requires absolute trust and confidence among all servicemen, based on disciplined and professional relationships. The amendment proposes a more permissive approach to homosexuality which both the services and the Government are clear would not be in the interests of the good discipline or the professional efficiency of the service as a whole.
The Select Committee of another place considered this issue fully, receiving evidence from the Ministry of Defence and bodies in favour of allowing a more
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permissive approach to homosexuality in the armed forces. The committee concluded in paragraph 25 of its report that it would not be wise to change the existing law. The Government agree firmly with that conclusion, and I hope that your Lordships will likewise agree with it.
Lord Graham of Edmonton: I was hoping for at least one supporter, but I did not hear one.
Lord Trefgarne: I am afraid not.
Lord Graham of Edmonton: No, but the arguments deserve to deployed. I was intrigued by the noble and learned Lord, Lord Denning, who disclosed passionately where he stands on the issue. If he had been in this Chamber or in another place in 1967, he would have voted against the law of the land. The impression he gave, which I am sure the Official Report will reveal, was that since 1967 the law has been different from the views of the people. The general feeling was the the act was heinous and intolerable. Since 1967 society has believed that under certain circumstances it is acceptable. We are arguing about whether members of the armed services should be entitled to conduct themselves in the same manner as civilians.
An intriguing point made was about the nature of the closed unit in which homosexuality would be disruptive. The closed unit of 1945 is different from the closed unit of 1985. The nature of the people who serve in it has changed. There are men and women. There are far more women now than men. Far more women were on active service in 1985 than in 1945. I venture to suggest that conduct of a sexual nature—not homosexuality—which might cause disruption goes on in many units. It is known to other people. It occurs between two lovers—one man and one woman; but we are talking about two lovers who are both men.
We are talking about a sexual act between two people in a closed unit—not the barrack room—which is not disruptive. Permissiveness, promiscuity and adultery apparently do not worry people, but the sexual act between two male lovers or two female lovers is apparently not merely likely but certain to damage the viability and fighting capability of a unit. I beg leave to doubt that.
The noble Lord, Lord Mayhew, asked if we know whether the armed services want this change. I have no knowledge of it. We shall be dealing with trade union membership later. As legislators we are made privy to what the armed services want not just on this matter but on a range of other matters.
Earlier I said that a witness had said that one of the reasons for not permitting homosexuality in the forces was that they are a closed society. With respect, I did not say that there were other closed societies; I said merely that the armed services were not the only closed society. Prisons are not governed by laws similar to those relating to the armed services. I stand to be corrected if I am wrong, but I believe that they are in a different category. There are many communities outside the armed services, for example, the universities, which are looked upon as closed communities. The witnesses used the phrase "a closed

43
community". In those communities there is freedom for people to act as they wish.
The noble Lord, Lord Mayhew, was right when he said that I was talking about the extent to which one could remove taboos and allow two people, men or women, to act differently from heterosexuals and still not endanger good order and discipline. I appreciate that that matter is not easy to define.
I am grateful to the Committee and to the noble Lord the Minister for having taken part in this short debate. I may well reurn to the issue on Report, but at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 5 to 7 agreed to.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 6:
After Clause 7, insert the following new clause:
("Power of Secretary of State to set time limits in relation to preliminary stages of courts-martial proceedings.
. After section 103 of the 1955 Acts and section 58 of the 1957 Act, there shall be inserted the following section—
"(1) Without prejudice to section (Provisions for avoiding delay after arrest) above, the Secretary of State may by regulations make provision, with respect to any specific preliminary stage of proceedings for an offence, as to the maximum period—

(a) to be allowed to the prosecution to complete that stage;

(b) during which the accused may, while awaiting completion of that stage, be detained in military custody in relation to that offence.

(2) The regulations may, in particular—

(a) be made so as to apply only in relation to proceedings instituted in specified areas;

(b) make different provision with respect to proceedings instituted in different areas;

(c) make such provision with respect to the procedure to be followed in courts-martial proceedings as the Secretary of State considers appropriate in consequence of any other provision of the regulations; and

(d) make such transitional provision in relation to proceedings instituted before the commencement of any provision of the regulations as the Secretary of State considers appropriate.

(3) The Defence Council may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit if it is satisfied—

(a) that there is good and sufficient cause for doing so; and

(b) that the prosecution has acted with all due expedition.

(4) Where, in relation to any proceedings for an offence, an overall time limit has expired before the completion of the stage of the proceedings to which the limit applies, the accused shall be treated, for all purposes, as having been acquitted of that offence.
(5) Where—

(a) a person escapes from military custody before the expiry of a custody time limit which applies in his case; or

(b) a person who has been released in consequence of the expiry of a custody time limit fails to surrender himself into military custody at the appointed time;

the regulations shall, so far as they provide for any custody time limit in relation to the preliminary stage in question, be disregarded.
(6) Where—

(a) a person escapes from military custody; or

(b) a person who has been released fails to surrender himself into military custody at the appointed time;

the overall time limit which applies in his case in relation to the stage which the proceedings have reached at the time of the escape or, as the case may be, at the appointed time shall, so far as the offence in question is concerned, cease to have effect.
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(7) In this section—

"custody time limit" means a time limit imposed by regulations made under subsection (1)(b) above or, where any such limit has been extended by the Defence Council under subsection (3) above, the limit as so extended;

"overall time limit" means a time limit imposed by regulations made under subsection (1)(a) above or, where any such limit has been extended by the Defence Council under subsection (3) above, the limit as so extended; and

"specified" means specified in the regulations.".").

The noble Lord said: I believe that this amendment will be acceptable to the Minister.
Lord Trefgarne: The noble Lord is wrong.
Lord Graham of Edmonton: Even if I am wrong, I shall continue with my attempt. We are seeking to apply to service life as much as possible of what applies to civilian life. My case was made by the noble Lord, Lord Elton, when on Second Reading of the Prosecution of Offences Bill on 29th November, 1984, he said:
"The third of the principal innovations to be brought about by the Bill gives effect to our commitment to move towards a system of statutory time limits in criminal proceedings. Your Lordships will remember how, throughout the proceedings on the Police and Criminal Evidence Act, we considered a great many difficulties and anomalies, many of which concerned the way in which a suspected offender is taken into the criminal justice system and how he is handled thereafter.
We gave each of these questions our close and detailed attention in turn… Our proposal is to prepare for the development, trial and improvement of a set of statutory limits to the length of time that can be spent on the preliminary (that is to say, the pre-trial stages) of criminal prosecutions. These stages are fairly complex and the considerations can vary widely from case to case. Moreover, the concept that we wish to apply is new to English law…What the Bill does therefore is to set up an order-making power and a framework within which it can be exercised. When that framework is in place, the Home Secretary will use the power in the light of the results of the field trials which he will conduct".—[Official Report, 29/11/84; col. 1016.]
At a later stage of the Bill, on 24th January, the noble Lord, Lord Donaldson, said:
"The effect is a perfectly simple one. It will be a choice between two evils: would you rather have a large number of people kept in prison when they should not be there or would you rather have an approximately similar number of people out on bail for longer than they would otherwise be? It is as simple as that. You can do one or the other. My view is that the evil of keeping in prison people who should not be there is worse than the acknowledged evil of putting people back on bail in order to bring other cases forward".—[Official Report, 24/1/85; col. 418.]
Although the amendment, suggested to me by an eminent outside body, is lengthy, it may contain errors in drafting. In essence I seek to have applied to those who face charges in service life the same law that applies to non-service personnel. I beg to move.
5.30 p.m.
Lord Trefgarne: I appreciate that the noble Lord's intention in putting down this amendment is to bring service law into line with the provisions which apply to the prosecution of offences in England and Wales. As the noble Lord made clear, his amendment is based very closely on Section 22 of the Prosecution of Offences Act 1985. That section enabled the Home Secretary to make regulations concerning time limits for trial in the civilian criminal courts in England and Wales. It was an entirely new departure, since previously there had been no provision to apply time limits of this nature. In this respect, the general

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criminal law differed from service law and regulations which already contain a number of provisions designed to avoid delays in bringing cases to trial and lengthy periods in custody prior to trial. These provisions include regulations which ensure that charges must be investigated quickly without avoidable delay. In the case of the Army and Royal Air Force a person must be brought before his commanding officer and charged within 48 hours of being arrested. This compares with the 96-hour maximum available to the civilian police under the Police and Criminal Evidence Act 1984. There are also provisions which ensure that if an accused person is held for more than eight days without a trial being begun, this fact must be reported to higher authority. In the case of the Army and Royal Air Force there is provision that a person should not be held under arrest for more than 72 days pending trial without permission from higher authority. The higher authority in that case is myself. In the case of the Navy the equivalent provision is for up to 90 days. I stress that these provisions already exist under service law and regulations and their effect is to ensure that trials under service law are not unduly delayed.
I should also explain that these provisions are kept under review and that my department is certainly not averse to the consideration of ways in which these procedures could be improved and strengthened. Consequently I may say that I have found the noble Lord's amendment to be very interesting and I can assure him that it is something that we will wish to keep in mind for the future. However, as he will no doubt be aware, my right honourable friend the Home Secretary has as yet made no regulations under the relevant section of the Prosecution of Offences Act. I understand that trials are at present under way in four selected areas and that these trials will continue until the end of next month. Thereafter the results will be carefully analysed before the next step is determined.
My department will be interested in the outcome of these trials and of any further developments in this area of the civilian criminal law. Once the way ahead in this area is clear we shall of course wish to consider whether to adapt them to the rather different procedures of service law and the best way of doing so, bearing in mind the provisions which already exist in service law. In the meantime I believe that it would be premature to tie service law to procedures reflected in the noble Lord's amendment. These procedures were developed specifically for the civilian criminal law and, as drafted, would be unworkable in relation to service law. With that explanation of our objections to his amendment and my assurance that this is a matter which we shall wish to keep under close review, I hope the noble Lord will feel able to seek leave to withdraw.
Lord Elwyn-Jones: The decision to include in the Prosecution of Offences Act time limits for the bringing of prosecutions was a very important development in our criminal law and our criminal system. The Committee will be reassured by the noble Lord, Lord Trefgarne, saying that in the light of the trials and experimental investigations of how this has worked in the civil field he will be prepared to consider the possible application of the same kind of controls in the field of military law. There are time limits already,
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as the noble Lord has said, in some aspects of military and naval proceedings. I hope that my noble friend will be encouraged by the assurance that what is happening in the civil field will be carefully considered before the next version of the Armed Forces Bill comes up, or possibly before that, in respect of a similar application to proceedings in naval and military courts.
It is intolerable, and has been intolerable in the past, that those awaiting trial can be kept waiting for month after month. Scotland long ago set a limit on the time given to prosecutors. It is important to carry this reform through to the military field. After all, many of these prosecutions result in acquittals. It is not always that the police or the prosecuting authorities get the right man. It is right in principle that what has been done in the civil field should also be sought to be done here. I hope therefore that my noble friend will not press the amendment to a Division.
Lord Graham of Edmonton: My noble and learned friend is right. I am grateful to the Minister for pointing out some good reasons as to why it would be wrong to carry this amendment. If the purpose of bringing this forward is to permit a march on all fours with civilian legislation, we have to provide the appropriate Government Ministers with the opportunity to reflect. I am grateful also to the Minister for saying that at first sight there are perhaps some aspects of the amendment that may commend themselves to Ministers. Those outside the Committee will read what the Minister has said and will guide me as to the actions they might wish to take. My advice to them is that they should not look a gift horse in the mouth. The half promise that we have been given by the Minister that he will look sympathetically at the matter is, I suspect, the best offer that I will be given today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 8 to 10 agreed to.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 7:
After Clause 10, insert the following new clause:
("Non-custodial sentencing.
.—(1) In Schedule 5A to each of the 1955 Acts and Schedule 4A to the 1957 Act, in paragraph 10(1) (custodial orders in respect of offender under 21 but not less than 17 years of age), and subsection (1) of section 71AA of the 1955 Acts and section 43AA of the 1957 Act (young service offenders: custodial orders)—

(a) at beginning insert the words "Subject to paragraph (1A) below,"; and

(b) at end there shall be inserted the paragraph—

"(1A) The Court may not pass a sentence of imprisonment or make an order under paragraph (1) above unless it is of the opinion that no other method of dealing with the offender is appropriate because it appears to the court that he is unable or unwilling to respond to non-custodial penalties, or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified".").
The noble Lord said: The noble Baroness, Lady Faithfull, as always in respect of these matters, is in her place. It was during the passage of the Criminal justice Bill on 22nd June 1982 that the noble Baroness moved an amendment—at five o'clock apparently, according to Hansard—which read:

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"because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified".—[Official Report, 22/6/82; col 944.]
Those who have read with care my amendment and those who listened with equal care to the amendment moved by the noble Baroness, Lady Faithfull, will see that this is again an attempt to make the machinery of justice inside the forces the same as it is outside. The noble Baroness will be delighted that what she proposed has now become law, although she could not have been so delighted that she had to divide against the Government on that occasion. However, she carried the day against the Government by 102 votes to 81. I hope very much that the Minister will not be minded to stand in the way of this amendment or I presume in the way of the noble Baroness, Lady Faithfull.
I say with the utmost sincerity that this is a matter, widely understood by many Members in this Chamber, that has to be considered in the light of the prison population and also in the light of current considerations that are going on as to the level of recourse in this country, in comparison with others, to custodial sentences and the consideration of alternatives to custodial sentences in the non-service area. Surely it is not unreasonable for us to attempt to follow the same avenue in the Bill. On page 1526 of the Criminal Justice Act the amendment which the noble Baroness moved is there in the Statute. I very much hope that the Minister will tell us that this is something which he is prepared to consider. I beg to move.
Baroness Faithfull: I must respond to the noble Lord, Lord Graham of Edmonton, and thank him for what he has said. I have given notice of intention to oppose the Question whether Clause 11 stand part of the Bill, and the noble Lord, Lord Mayhew, has done the same. Perhaps I may speak to the two matters—Amendment No. 7 and Clause 11—together rather than speak twice.
As I understand the clause, it gives a court martial or a standing civilian court dealing with children of service families abroad the power for the first time to pass custodial sentences of up to 12 months on boys of 15 and 16. Perhaps I may speak to that.
The noble Lord, Lord Graham, is quite right that I moved an amendment to what is now the Criminal Justice Act 1982. I am very puzzled by the clause in the Bill because it is completely contrary to the policy of the Department of Health and Social Security concerning young people. I am not one who in the other discussions we have had has said that everything in the forces should stand alongside the civilian life. But where children and young people are concerned it is a slightly different matter.
Under the Children and Young Persons Act 1969, the Children Act 1975, and—as the noble Lord, Lord Graham, has said—the Criminal Justice Act 1982 the movement has been away from custodial care towards care in the community, remaining with families and helping families to take the responsibility for their children. This clause in this Bill is completely contrary to the policy put forward by the Department of Health
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and Social Security. May I therefore ask with the utmost diffidence whether the Ministry of Defence has been in touch with the Department of Health and Social Security, and which one—I was going to say—won; or were they not in touch with one another over this clause?
With regard to the well-being of the children, for custodial sentences to be passed, and for children to be brought to England away from the country where their parents are stationed, to a place where the parents and relatives of the child may not be living, would be a great disservice to the childen and would not help those who have committed offences. It is perfectly true that in this country rather than a custodial sentence, we are moving towards projects in the community known as intermediate treatment. The noble Lord, Lord Hunt, has done a great deal of work in this connection. Surely it would not be beyond the wit of man to have intermediate treatment projects in places where our services are stationed? I have not been in the services; I would not know. But perhaps other noble Lords can tell us. In any case, to remove a child from, say, Germany to a youth custody place in England away from relatives or parents does no good to that child. I also admit, quite frankly, that there are children who must be removed. But if that is the case, surely it would be better to have a care order made involving the local authority in the area where the relatives and friends of the family live. That would be a much more sensible way of dealing with a child who must be removed—and there are a few children, honesty compels me to say, who must be removed, but not in this other way.
I therefore very strongly support the amendment of the noble Lord, Lord Graham of Edmonton. I am also speaking to the Question whether Clause 11 stand part of the Bill; I very much hope that my noble friend the Minister agrees.
I see the noble Lord, Lord Glenarthur, sitting on the Front Bench. He well knows the situation with regard to youth custody centres. Perhaps the two noble Lords can get together and agree with the noble Lords, Lord Graham, Lord Mayhew and myself.
5.45 p.m.
Lord Mayhew: I should like to add a few words of support, especially with regard to the all-party move to reject Clause 11. The Government have had a fairly easy afternoon on the whole and now is the opportunity for the noble Lord, Lord Trefgarne, to earn some credit with a very sensible, not very fundamental, improvement to the Bill; namely, leaving out Clause 11.
It is very hard to see why we should now decide to increase the powers for giving custodial sentences to young people to courts-martial and special civilian courts at the very time that we are doing exactly the opposite in the United Kingdom. I understand that in Scotland they have done it for years already. It is an extraordinary moment therefore to bring forward an amendment to increase the powers for giving custodial sentences to persons under 17.
In addition, the number of offenders involved is minute—perhaps two a year. Yet the Government go to all this trouble to amend the Armed Forces Bill at

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this time for that purpose. There is a good deal of feeling that this is a sensible matter on which the Government might make a concession. I would very strongly urge the noble Lord to do so.
Lord Hunt: I have only just picked up the amendments and looked at the Bill, but I feel moved to rise very briefly to support the case made by the noble Baroness in support of the noble Lord, Lord Graham of Edmonton. The point that has not yet been made which is well known to anyone in the penal reform business is the enormously high record of failures of custodial sentences on young people. My own forecast is that by sending young people from their overseas station to a youth custody centre or detention centre in this country is likely to increase the failure rate. Young people would be separated from their families in nearly all cases. I should have thought that it would be possible to devise schemes for intermediate treatment or possibly community service orders in those places so that they remain with their families in the community. I speak from my experience of serving in stations abroad—where I have the edge over the noble Baroness. The range of activities permissible under an intermediate treatment order is so great that one can make some very useful programmes which would be constructive in their effect.
Lord Graham of Edmonton: The noble Baroness, Lady Faithfull clearly trying to be helpful, wrapped together her observations on the amendment which I moved and on the Question whether Clause 11 stand part. I hope that the Minister will deal with them separately. Indeed, we may have to deal with them separately.
Lord Donaldson of Kingsbridge: May I support what has been said from these Benches? I missed the first speech, but I heard the speech from the Liberal Front Bench and the speech of my noble friend Lord Hunt. I want to add my weight to the objection to any proposal which extends sentences for young people anywhere.
Lord Trefgarne: I was planning to deal with both the points made by my noble friend Lady Faithfull, who—spoke to the amendment of the noble Lord, Lord Graham, and subsequently to the Question whether Clause 11 stand part. If the Committee agrees, I shall now reply to both propositions during the course of my remarks.
I am pleased to be able to tell the noble Lord, Lord Graham of Edmonton, that the bulk of his proposed amendment was in fact introduced in the Service Discipline Acts by the 1982 Criminal Justice Act, Schedule 8, paragraphs 3 and 7. As a result, Sections 71AA of the 1955 Acts and 43AA of the 1957 Act provide that a service court shall not impose a custodial order on a young service offender unless it is of the opinion that no other method of dealing with him is appropriate. A similar restriction is in respect of young civilian offenders and is contained in paragraph 10 of Schedule 5A of the 1955 Acts and in Schedule 4A of the 1957 Act.
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I understand that the further wording:
"because it appears to the court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified".
is considered inappropriate to service law. This is because service law provides for a form of punishment, service detention, which is not available in the civilian criminal courts. This too is a custodial sentence but not in the sense intended in the wording of the Criminal Justice Act which I have just quoted. To adopt that wording would be to throw confusion on the position of service detention. However, I hope that with this explanation the noble Lord, Lord Graham of Edmonton, will accept that the intention behind his amendment is in fact already fulfilled in that service courts are already bound to impose a custodial sentence on those under 21 only if no other disposal is considered to be appropriate.
May I turn now to the later remarks of my noble friend Lady Faithfull. I know her thoughts were very much in the minds of other noble Lords as well. Clause 11 empowers service courts to impose custodial orders on young males of 15 and 16 years of age. At present, those youngsters under 17 years of age, who commit the most serious crimes such as murder and manslaughter, may be ordered to be detained for as long as the Secretary of State directs. Where their crime is of lesser gravity, but still very serious, the most severe punishment at present available to service courts is the imposition of a reception order, under which the child will be transferred into care in the United Kingdom, perhaps until its 18th or 19th birthday. In a number of cases which have arisen, this has not been felt to be the most appropriate method of disposal, and I dare say my noble friend will agree with that.
I do not want to give the Committee the impression that there is a crime wave among the younger members of the service families overseas; nothing could be further from the truth. However, there are inevitably a small number of cases where it is felt that some form of custody would be appropriate, and Clause 11 provides the power, on similar lines to the Criminal Justice Act 1982, to order the detention of young males of 15 and 16 for up to 12 months. Such sentences would of course be served in the appropriate United Kingdom institutions. No provision is made for the detention of young females because of the absence of any facilities to accommodate them for periods of less than four months. I can assure the Committee that I do not expect this power to detain young males to be used other than extremely sparingly, in the tiny minority of cases where a serious crime, of violence perhaps, has been committed. I can also say that the provision goes no further than the equivalent sections of the Criminal Justice Act 1982.
Members of the Committee have expressed concern that perhaps a court martial is not the most appropriate forum for dealing with juveniles. I am not sure that any of my noble friends specifically referred to that point, but it is a matter which has been raised. I should explain that this is not a new development introduced by Clause 11. Service courts, both courts martial and standing civilian courts, already have such powers to deal with the juveniles and will continue to have them

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whether or not Clause 11 is enacted. The new departure proposed by Clause 11 is the extension of the power to impose a custodial sentence on 15 and 16 year-old males both for courts martial and standing civilian courts. I appreciate, however, that in England and Wales there are special juvenile courts to deal with those under 17, while in Scotland there are children's hearings for those under 16.
In England these courts are composed of specially trained qualified justices, including lay justices. In Scotland the panels are composed entirely of lay members. Members of the Committee will, I am sure, understand that within the service community overseas there would be real difficulty in attempting to create anything equivalent to such courts. It would be extremely difficult, within the relatively small military communities overseas, to identify, train and retain sufficient numbers of people to form such panels. However, we have done what is possible to adapt service courts when dealing with civilians. A court martial dealing with a civilian can include, in the case of a general court martial, up to two civilians. Standing civilian courts, run by a civilian magistrate, were set up specifically to deal with civilians, and in practice these courts deal with most of the juvenile civilian offenders who fall to be dealt with under service law. Noble Lords will wish to be aware that when a standing civilian court is dealing with a juvenile, the magistrate can be advised by up to two lay assessors who may advise him on all matters other than points of law, although they do not have a vote on finding or sentence.
I should also stress that in all service courts great emphasis is laid on ensuring that the accused fully understands what is going on and this particularly applies when the offender is a juvenile. Taken together with the fact that an accused has the unquestioned right to be legally represented and may apply for legal aid on exactly the same grounds and terms as in England, I am satisfied that great efforts are made to ensure that trials under service law are not intimidatory, particularly where juveniles are concerned.
The Select Committee of another place has asked the Ministry of Defence to continue to monitor developments in civilian law so that if the civilian courts' powers to impose custodial sentences on 15 and 16 year-olds are replaced by perhaps residential care orders, we should bring forward proposals to amend service law accordingly.
I am happy to give the assurance that we shall of course take account of any such developments. Our aim, as I have said during Second Reading, is to bring service law as far into line as possible with civilian criminal law, and in the particularly sensitive area of the sentencing of those under 17 we shall be anxious to consider any changes which those responsible for such matters in the civilian criminal courts may wish to make.
My noble friend Lady Faithfull asked specifically whether we had discussed our proposals with the DHSS. I can assure my noble friend that these proposals were discussed with all the relevant departments within government, including the DHSS,
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and their views have been fully taken into account. Incidentally, perhaps I should add that detention centre orders were brought in for civilian defenders by the Act of 1982 and that of course includes those who are males of 15 and 16 years of age. Clause 11 is, to that extent, bringing service law into line with its civilian counterpart.
I hope that I have been able to persuade the Committee that the amendment proposed by the noble Lord, Lord Graham, is not appropriate; and, secondly, that Clause 11 ought to stand part of the Bill.
Baroness Faithfull: My Lords, I wonder whether I can get this point quite clear: do I understand that it is under consideration that care orders may be able to be made in the future, and that this is being considered rather than always using youth custody orders?
Lord Trefgarne: I am not entirely certain in what context my noble friend asks that question; but perhaps I may look into the matter and let her know if I have anything to add.
6 p.m.
Lord Graham of Edmonton: Perhaps the initiative as to whether Clause 11 shall stand part of the Bill lies with the noble Baroness; but I certainly have a view which I shall indicate to the Committee. Regarding the amendment that I moved which initiated this debate, I am satisfied—and I believe that the noble Baroness, Lady Faithfull, will be satisfied—with the caveat that we shall read very carefully what the Minister has said. In fact, our own researches and those outside may satisfy us that substantially the points we sought to be made are already covered. In that case, the Minister and his advisers have done us a good service for which I express my appreciation, and I do not wish to press Amendment No. 7 which I have moved.
However, when it comes to Clause 11, quite frankly, I am genuinely puzzled that the Minister has not even been prepared to say that he will look at our arguments. Despite what NACRO has told me, despite what the Children's Legal Centre has told me and despite what the At Ease organisation has told me—that they see Clause 11 in a different light from that of the Minister and his advisers—he is so certain, and those outside the Committee who advise him are so certain. I am more than willing to press that Clause 11 does not stand part of the Bill, but I am even more anxious not to do so if the Minister is prepared to say that he will read very carefully what has been said.
I understand that it is not possible at a Report stage to move that a clause does not stand part of the Bill. I understood that it was only at a Committee stage that one had that opportunity. In fact, I have now been told that it is possible. However, I would rather try to do this now, reserving the right to do it later on if necessary, although perhaps it may not be necessary.
These organisations have been very careful to point out to us the unsatisfactory nature of the content of Clause 11. I was very taken by the remarks of the noble Lords, Lord Donaldson of Kingsbridge and Lord Hunt, who pointed out the ineffectiveness of the custodial sentence route, which is inscribed in Clause 11. NACRO tells me that despite all the dedicated efforts of staff custodial sentences for this age group are

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strikingly unsatisfactory. It says that 72 per cent. of the juveniles leaving detention centres and 80 per cent. of those leaving youth custody centres are reconvicted within two years. They increase rather than reduce the propensity of young people to commit crimes. Both those noble Lords did not need to read part of a brief, as I have had to. They are aware of all this because of their involvement in trying to assist such young people. We are talking about school children of 15 and 16 years old who may very well be faced with the panoply of a court martial.
It is all very well the Minister saying that courts martial are not intimidatory. There is the matter of care, access to legal representation, etc. I should imagine that a 15- or 16-year old who is involved in a charge of this kind, for which a custodial sentence may be imposed, will feel intimidated even if the best intentions of the Minister are carried out. Therefore, I very much hope that the Minister, with an opportunity at the Committee stage, is prepared to listen to the arguments and allow us to come back at the next stage. Otherwise, at the appropriate stage I shall certainly be minded to move that Clause 11 shall not stand part of the Bill.
Amendment, by leave, withdrawn.
Clause 11 [Extension of power to make custodial orders in relation to civilians]:
On Question, Whether Clause 11 shall stand part of the Bill?
Baroness Faithfull: I am still somewhat worried. There are some children who need to go to youth custody centres: but most of the children, if they must go away from home—and that is the very last resort—would do better with a care order. I should prefer to read Hansard and see what my noble friend the Minister has said. Therefore, I shall not press this now, but I shall raise it at the next stage.
Clause 11 agreed to.
Clause 12 agreed to.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 8:
After Clause 12, insert the following new clause:
("Composition of Courts-Martial.
.—(1) After section 89 of the Army Act 1955 there shall be inserted the following section—
"89A. Notwithstanding the provisions of sections 87, 88 and 89 in the case of a general, district, or field general court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank.".
(2) After section 89 of the Air Force Act 1955 there shall be inserted the following section—
"89A. Notwithstanding the provisions of sections 87, 88 and 89 in the case of a general, district, or field general court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank.".
(3) In section 54 of the Naval Discipline Act 1957, at the end there shall be added the following subsection—
"(9) In the case of a court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank.").
The noble Lord said: I beg to move the amendment standing in my name on the Marshalled List. The purpose of this amendment is indicated in the first proposed new section:
"… general court martial convened to try a person of below commissioned rank, the defendant shall have the right to insist that at least one member of the court-martial is also a person of below commissioned rank".
Again, the Minister can put me right, but a court martial is peopled wholly by those of commissioned rank. If the defendant is below commissioned rank—that is, if he is a corporal, as I was in the Royal Marines, a sergeant or an RSM—then it should be laid down as mandatory that a sergeant shall be a member of the court martial. Outside this Committee we often use the phrase that one wishes to be "tried by one's peers". That phrase has a special connotation here. It is not merely a question of being tried by those with whom one has an association, a link, a friendship or an equality of status. We are talking here of those who, from day-to-day living, understand the conditions, the pressures and the many other aspects which a person who is of non-commissioned rank quite clearly bears. If they are not special problems, they are special matters that ought to be taken into account.
I know that when this matter has been looked at before some very important pronouncements have been made. In 1946 there was a report by Lord Justice Lewis. Mr. Justice Lewis, as he was at that time, and his committee, recommended that other ranks should not serve on courts martial. They were against it. However, as regards the report itself, there are some interesting footnotes by Mr. Raymond Blackburn. He is well-known to senior colleagues of mine and others round the Committee from his service in another place. He was a member of that committee, and this is what he said:
"While subscribing to the report as a whole, I regret that on one subject I do not wholly agree with my colleagues on the Committee—namely, on the composition of the court in courts-martial. I believe (1) that a private soldier, lance corporal or corporal or lance bombardier or bombardier should have the right to demand that one corporal or a bombardier should sit on a court-martial composed of three persons trying him or that two corporals should sit on a court-martial composed of five persons trying him".
Now, of course, a great many more people hold the views of Mr. Blackburn, and it is not my intention to weary the Committee with those particular views. I believe that we need to be fair. We are saying that a person who is a non-commissioned officer on a Wednesday is incapable of serving on a court martial, but when he is promoted and becomes a commissioned officer on a Thursday, overnight, ipso facto, he becomes a new man or woman, and he or she then suddenly has the gift; he or she has suddenly had a visitation and is competent and capable.
I know that Mr. Viggers, the Member for Gosport, in another place, argued that officers are peculiarly well-fitted because, besides being gentlemen, in their training as officers they receive a certain veneer. I have news for Mr. Viggers. People are being tried every day in our criminal courts—for instance, at the Old Bailey—where juries pass judgment upon them. The jury listens very carefully; but it does not receive special training. The members of the jury, because of the jury system, are simply brought in off the streets. They are qualified in various ways, but there is not a

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semblance of being trained to try people. And yet officers are capable of trying people at a court martial but non-commissioned officers are not. That requires a big stretch of the imagination.
This is nothing remotely against the capability of commissioned officers, who I understand have thorough training, one aspect of which is in the legal niceties, and particularly of service law. They will know more about the Armed Forces Bill than anyone in this Committee ever will because they have to apply it. I am simply arguing for a movement. The movement is that one ought not exactly to liberalise but to make less hidebound in the future than in the past the composition of courts martial.
I imagine that there are Members of this Committee who are engaged even now from time to time in pleading in the courts. The question of the composition of a jury, the question of ethnic origins, of sex and of background, are all carefully weighed from the point of view of the jury being capable of producing a verdict which is more likely than unlikely to be favourable to your client. What I say is that if you are a non-commissioned officer you would like to feel that there was at least one non-commissioned officer on the court martial.
I am not saying that they are going to bully them, or that they are going to be bullied by the others. I am not even saying that they may be as competent. I am talking in terms of equity and justice, or the appearance of equity and justice. The noble Lord, Lord Mayhew, may well ask me whether I have been prevailed upon by the armed services, and is there an agitation about this. I do not know. I have not detected it. I have read every word of the blue book and the reports in order to be prepared for these debates. I cannot honestly say that there is even a surreptitious agitation from within the services, or from non-commissioned ranks, or in any other way, but I like the sense of what is being sought in this amendment.
I hope that the Minister and people around the Committee will agree that this is something we can look at, even for an experimental period. I am not certain that it will not be welcomed. There could well be a school of thought in the Army, say, where they feel they want to be tried by their officers. In other words, not by their peers, not by those of their own rank, but by superior beings. That may be the situation. I do not know. But I certainly hope that the Minister will take on board the point that I am seeking to make. I beg to move.
Lord Mayhew: The noble Lord, Lord Graham, declared that his purpose is to "liberalise" the courts martial, and of course at that word, like Pavlov's dogs, I salivate. And yet I am not convinced that the amendment would have the effect that he expects. I agree with a good deal. I agree that a non-commissioned or under-commissioned ranked person might well have a more intimate understanding both of the offence and of the accused.
I also rather agree that the training of officers, certainly in my experience, is very rudimentary. I remember being told the rudiments of court martial procedure and military law at the time of
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commissioning, so I am some way with him in what he says. At the same time the assumption behind his amendment is that there are, and have been, unjust convictions by courts martial because they have been composed solely of commissioned officers.
The noble Lord did not put forward any evidence for this. I am personally not acquainted with any evidence. It is important not to make reforms unless there is good evidence that something is wrong. If I had a string of instances, or indeed if I had evidence that there was a feeling in the services that there were these unjust sentences as a result of courts martial being formed wholly of officers, then I should be a great deal more sympathetic. Otherwise, I wonder.
I heard the noble Lord say that it would be some comfort to an offender who was an NCO or a private to know that there was a private or an NCO on the court martial. I must say that when I was in the ranks if I had been summoned to a court martial and told that there was to be an NCO on it, I would have immediately asked, "Which NCO?" If I was told that there was a private on it, I would have asked, "Which private?" This leads me to suspect that an NCO and a private on a court martial might be exposed to rather warmer pressures than an officer. On the whole, I have some reservations about this amendment, and will wait with interest to hear what the Minister has to say.
6.15 p.m.
Lord Marshall of Leeds: Again I find myself in almost total agreement with what the noble Lord, Lord Mayhew, had to say. I think that the noble Lord, Lord Graham, deceives himself a little if he tries to compare the duties of a juryman on the one hand and the duties of a person, whoever he may be, sitting on a field general court martial, a district court martial, or a general court martial. The juryman has the benefit of having the judge, who goes to some great trouble to address the jury before they retire to give their verdict.
It is not quite the same at a court martial, even though in my time on the general court martial a member of the Judge Advocate General's staff invariably sat on the court for the purpose of advising the court on matters of law. This sometimes happened in less serious cases at field general courts martial.
I was concerned with tanks, but my time was very much taken up by being asked to prosecute or defend cases in the field and not in the field. Therefore in the end I was concerned in defending, or prosecuting, every rank from trooper to Major General. I never heard any of them complain that there was not on the particular court martial or general court martial a person of equivalent rank. Had that been the case, and had there been a feeling of dissatisfaction, at least I should have heard it in the number of cases in which I was concerned, both during the war and after the cessation of hostilities in Europe.
Lord Trefgarne: As the noble Lord has made clear, the objective of his amendment is to ensure that one of the members of a court martial should be someone other than an officer, where those of below commissioned rank are being tried. Although the conclusion of the 1946 Lewis Committee was that to widen the composition of courts martial to include those below commissioned rank would neither tend to

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improve the quality of the court nor the appearance or prospect of justice being done, this issue has been given regular consideration since then.
Following a recommendation by the Select Committee of another place which examined the 1981 Armed Forces Bill, the question of the composition of courts martial has been looked at again in detail. As my right honourable friend the Minister of State for the Armed Forces said in another place, we found no grounds for departing from the conclusions of the Lewis Committee. Morever, there is no evidence of any desire within the non-commissioned ranks of the armed forces for the composition of courts martial to be altered.
Both oral and written evidence was taken from my department by the 1986 Select Committee of another place which inquired particularly into the grounds for saying that there is no discernible pressure for change within the armed forces. I note that the committee's report makes no recommendation for change or even for further consideration of this issue but accepts the validity of the Government's arguments. I believe that the present system works well and enjoys a high degree of respect throughout the services. I hope that the noble Lord will therefore not wish to press his amendment.
May I say before I sit down that when he said that there was a possibility of a man being a non-commissioned officer one day and not being eligible to sit on a court martial, and then becoming commissioned the next day and being able to sit, that is not quite so. You have to have held a commission for two years before you can sit on a district court martial, or three years for a general court martial or for any Royal Naval court martial.
Lord Graham of Edmonton: The noble Lord obviously speaks from experience! I do not know from which side of the table he speaks from, but I take the point.
Taking the point of the noble Lord, Lord Mayhew, there has been a little misunderstanding. To paraphrase Lord Mayhew, he said that if he had to appear before a court martial and was told that there would be a non-commissioned rank on it, he would want to know who it was. If he did not want that person to be there he would not be there, because my amendment talks about the right to insist. If the noble Lord, Lord Mayhew, felt as a non-commissioned ranker that he wished to be tried by all officers (of course he is a Liberal) that would be up to him. I believe the noble Lord, Lord Marshall, talked in terms of rights and insistence. I am saying that it will not be imposed.
Where the person who is to be charged is a non-commissioned officer feels that he would be better served if at least one of those hearing his case is of equivalent rank he would have the right to ask for that. The Minister is absolutely right. I do not speak from evidence. There is no petition or agitation. I simply speak from conviction. I believe it is wrong to talk in terms of a caste society in the services; where the only people who apparently are competent to try others who serve in the services are those of a commissioned rank and that those of a non-commissioned rank are not competent. That is why I was making this case.
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The noble Lord has satisfied me not least because the Select Committee, having heard the arguments, came to the conclusion that there needed to be no change. Thus I am not prepared to press the amendment but beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 13 [Change of place of safety and return to United Kingdom of children in need of care or control]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 9:
Page 12, line 27, at end insert—
("( ) For subsection (4) there shall be substituted the following subsection—
"(4) The grounds which justify the making of such an order are that there is reasonable cause to believe that damage to the child's health or well-being is likely unless he is immediately removed to or detained in a place of protection for the duration of the order.".").
The noble Lord said: I believe that it is the wish of the Committee that Amendments Nos. 9, 10, 11, 12 and 13 should be taken together because they hang together. I shall be dealing in particular with Amendment No. 10, for that I believe is the best one to argue the case contained in this series of amendments. At this stage it will not be my intention to press any of them to a vote, but on this occasion and on others we need to use the very limited opportunity that the Committee has to deal with matters of crucial concern to every serving member of our armed forces. We are concerned with the detection, prevention and treatment of child abuse. As my honourable friend in another place Dr. Godman said, one Jasmine Beckford is one to many. We are engaging the Minister and his advisers in convincing the Committee regarding the arrangements in respect of children who may be within our purview and responsibility. I shall not say I am not concerned with other people's interests, but I am primarily concerned with the interests of the child.
Amendments Nos. 9, 11, 12 and 13 strengthen Amendment No. 10, which is concerned above all else with the primacy of the interests of the child. The 1981 report on the Armed Forces Bill, referring to children at risk, states in paragraph 10, on page 6:
"The grounds on which an order may be made, (e.g. that the child is being ill-treated, exposed to moral danger or beyond control) follow civil legislation".
We are trying to be satisfied, as the Minister satisfied me earlier about the non-custodial sentence availability, that what we have here is on all fours with what is available for civilians. On this we want the Minister to do exactly the same as he did previously.
We also have to hear from the Minister further on the report of the Armed Services Bill which we are now dealing with. Paragraph 16, on pages 8 and 9, reads:
"The procedures under service law for dealing with children at risk are broadly comparable to those under English civilian law. Different procedures, however, operate in Scotland. Under Scots law, a child detained in a place of safety must be brought before a 'children's hearing', composed of 3 lay members, within 1 or 2 days. The hearing has power to appoint a 'safeguarder' to represent the child's interests. Both the child and its parents have the right to be represented at the hearing and to appeal against the hearing's decision".
I believe that the Scottish situation is either broadly or generally what we want here. I am taken by this

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concept of the children's hearing. Anything we can do to try to relate the panoply of the court to the circumstances of the defendant (in this case the child) is likely to be helpful. The report states that the children's panel or hearing was set up under the provisions of the Social Work (Scotland) Act 1968.
I was interested to hear what was the purpose of the hearing—to consider whether there is a conflict between the interests of the child and those of his parents—and that the panel may appoint a safeguarder to represent the child's interests. It is interesting that the case powerfully made in Committee in another place by Dr. Godman was codified into an amendment to the Bill. The amendment was pushed to a Division and there was an equality of votes. The issue powerfully argued by Dr. Norman Godman resulted in a vote of four for and four against. I make no point about parties because a Conservative Member of the Committee joined the Liberal and Labour Members. Dr. Godman is the person particularly concerned with the English child care law.
I should like the Minister to tell us something about the current status of the interdepartmental working party's report to Ministers which figured in the Committee. The purpose of that was to consider place of safety orders, how much they have been used and how much they have been criticised. The special report says a great deal about the ways in which the procedures can be strengthened.
I hope that the Minister will tell us something more about that. The Children's Legal Centre drew my attention to place of safety orders which are enshrined in Clause 13. This is what it said:
"The clause appears to have been drafted without reference to the review's recommendations for changing place of safety order provisions in domestic child care law".
In the report to Ministers of the inter-departmental working party it is recommended that the DHSS with the Ministry of Defence should consider the implications of changes to the main place-of-safety powers, the powers which cover children of families living abroad. If I were in the business of stretching these things out, there is a great deal more information which has been given to me which certainly is very interesting but which I am sure all Members of the Committee will have studied with care. I beg to move the amendment and hope that the Minister can say something sympathetic.
6.30 p.m.
Baroness Faithfull: May I ask the Minister whether, when he is replying, he could help me in regard to care and protection cases? For those children who have been, say, battered and are at risk, there are two stages. There is the stage where it is hoped to help a family to look after its own children and to come to terms with the difficulties within the family. Then there is the stage where a case is taken to court because an offence is alleged to have been committed. What happens in the forces? Is there somebody nominated to whom families can be referred before the case is actually taken to court? I should be most grateful to know.
Lord Trefgarne: Perhaps I may answer my noble friend first before dealing specifically with these amendments. May I say that that is a matter which falls slightly outside the scope of this amendment? If my noble friend will allow me, I shall get the precise information and write to her as soon as I can.
Having said that, I must confess that I am slightly surprised to see this amendment down in the name of the noble Lord, Lord Graham of Edmonton. These amendments to Clause 13 were proposed and thoroughly discussed in another place when my right honourable friend the Minister of State for the Armed Forces explained that although he fully understood that the aims of the proposer were extremely laudable—as indeed they are—his amendments were based on a misunderstanding of the purpose of service place-of-safety procedures. The amendments were then withdrawn and we had thought that that was the end of the matter. Nevertheless, our view of the amendments remains entirely the same and I hope that I can persuade the Committee to deal with the amendments as they were dealt with in another place.
Although the reasons for our rejection were thoroughly gone into in another place, it may be helpful if I rehearse the major points of our arguments today. The first part of the noble Lord's amendment seeks to alter the grounds which justify the making of a place-of-safety order under service law. However, the present provisions, contained in section 14 of the 1981 Armed Forces Act, follow very closely the wording of section 1 of the children and Young Persons Act 1969. I am aware that the proposed amendment derives from the review of child care law which my right honourable friend the Secretary of State for Social Services has in hand. While the proposed new definition might offer certain advantages, it does not seem to me right for the armed forces to move ahead of the civil authorities in this matter; it is proper for us to await the outcome of my right honourable friend's review, when we shall certainly consider very carefully its implications for service law.
Turning to the second amendment, which, I understand, is derived from Scots law, I admit that the proposal might have a certain attraction in child care proceedings. However, service place-of-safety procedures are merely short-term emergency orders which are not dealt with by way of a formal hearing. Since there are no parties to the procedures, there can be no need for the appointment of a safeguarder. Even in Scotland, a safeguarder is only appointed for the children's hearing, not at the initial stage when application is made to a JP or sheriff. This amendment is, I am afraid, wholly inappropriate to service procedures which equate only to this first emergency stage.
I look now at the third amendment. The main points to be made here are that it would be most unlikely that we should ever want to withhold from his parents details of a child's whereabouts under a place-of-safety order. I believe that that is the thrust of the amendment. Nevertheless, there may be occasions, for example, when the child has been subjected to serious abuse by a parent, when we would feel it important to deny the parent access to the child. In such rare cases commanding officers would invariably have administrative

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means at their disposal to select a place of safety under service control that would effectively ensure the exclusion of the parent.
This amendment would not be consistent with either English or Scots civil law, and for these reasons I cannot accept that this is an appropriate matter for legislation at this stage, although I would of course consider any relevant proposals which might emerge from the DHSS review to which I referred just now.
The fourth amendment derives, I think, from a misconception about the type of procedures involved. The sort of provisions envisaged for attendance or representation at hearings and for appeal are of course appropriate where child care proceedings are being considered, and where the child's longer-term future is at stake. But, as I have already explained, service procedures do not deal with care proceedings; they deal only with temporary emergency place-of-safety orders which may only be made overseas.
The noble Lord's amendment goes far beyond the equivalent provisions affecting the initial granting of a place-of-safety order in either England or Scotland so far as attendance, representation and appeal by parents at the initial stage of place-of-safety orders are concerned. However, I should stress that service law in fact already goes further than either English or Scots law in providing that parents have a right wherever practicable to make representations to the commanding officer before the order is made. We do not think it would be right to go any further; to do so would be to risk delaying proceedings while possibly leaving a child in a dangerous situation. This, clearly, would not be acceptable.
I turn now to the fifth and final amendment. Again, I stress that I fear the noble Lord, Lord Graham, has misunderstood the type of procedures involved. Service place-of-safety orders do not involve written applications and formal hearings. They are designed to react swiftly to events where a child is in immediate danger. The noble Lord's proposals for written applications again go far beyond anything in English child care law or indeed in Scots law so far as the initial application to a JP or sheriff is concerned. Our principal objection to this proposal is that it would cause unacceptable delay in removing a child from a source of danger. Of course, where the child is transferred back to the UK and further care proceedings are instituted by the local authorities, the services make arrangements to provide all the necessary supporting evidence and documentation to the UK courts.
I hope and believe that I have said enough to persuade the noble Lord that it would not be right to proceed with these amendments.
Lord Graham of Edmonton: I am grateful to the Minister because, as he points out, the procedure in another place was known to me and, on reflection, perhaps one ought to have left it at that. But I took the view, that, having read the proceedings of the Select Committee, I wanted to take part, to raise matters and to have the assurances which the Minister has given. There are people, and certainly organisations, outside this place who despite what has happened in another place seek to get support for their point of view by
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writing to Members of this House. So we are under an obligation in that respect.
I am most grateful to the Minister for having taken the trouble and care to assure not just those outside but those inside your Lordships' Committee who are, sadly, faced with terrible stories about ways in which due to defects in bureaucracy and defects in the law, the victims are not people like ourselves who can look after themselves, not even adults, but children. As my friend Dr. Norman Godman said, one Jasmine Beckford is one too many.
I am grateful to the Minister. In the light of what he has said, particularly in regard to what action he and his colleagues may take when the report from the DHSS appears, if there is some merit in some of the recommendations I feel sure he will not hesitate to come to the House. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10, 11, 12 and 13 not moved.]
Clause 13 agreed to.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 14:
After Clause 13, insert the following new clause:
("Report to Parliament on proposals for war time emergency.
.—(1) After section 175 of the Army Act 1955, there shall be inserted the following new section—
"175A. It shall be the duty of the Secretary of State to lay before each House of Parliament from time to time a report on any proposals by him with respect to measures designed to determine the relationship between the army and the civilian population in a transitional period which is expected to lead to an outbreak of war."
(2) After section 175 of the Air Force Act 1955, there shall be inserted the following new Clause—
"175A. It shall be the duty of the Secretary of State to lay before each House of Parliament from time to time a report on any proposals by him with respect to measures designed to determine the relationship between the air force and the civilian population in a transitional period which is expected to lead to an outbreak of war."
(3) After section 131 of the Naval Discipline Act 1957, there shall be inserted the following new Clause—
"131A. It shall be the duty of the Secretary of State to lay before each House of Parliament from time to time a report on any proposals by him with respect to measures designed to determine the relationship between the navy and the civilian population in a transitional period which is expected to lead to an outbreak of war." ")
The noble Lord said: The rubric to this clause refers to a report to Parliament on proposals for war time emergency. Perhaps I may ask, the Committee to look at what was said in the Select Committee on the Armed Forces. This is Mr. Kevin McNamara speaking at page xxiv of the Special Report:
"With regard to possible Emergency Powers for the Armed Forces in a transitional period leading to a possible outbreak of war, the existence of such draft legislation has not been denied; indeed it would be remiss of any Government not to have prepared for such a contingency, however, remote. Long before the circumstances have arisen which would lead to such powers being implemented, Parliament should have an opportunity to examine the proposed primary and secondary legislation in order to be satisfied that a correct balance is struck between the individual's rights and liberties and the needs of the Armed Forces to carry out the tasks assigned to them in such an emergency. In the heightening tension and the pressures of a period leading up to the possible outbreak of another world war, the ability of Parliament carefully and rationally to examine such legislation would be curtailed. It was to protect the citizen from the arbitrary use of powers by the Forces of the Crown

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that the eventually leading to the formation of this Committee were established. It is worthy of note that many of our NATO allies already have such legislation on their statute books.".
My attention has been drawn to an item in the Observer yesterday. I am sure the Minister's advisers will have drawn his attention to it as well, because on page 6 of the paper we see the headline,
"BBC war memo censored by MoD".
That may not be an unusual occurrence. It says,
"The Ministry of Defence has taken steps to suppress evidence of a secret agreement between the Government and the BBC on dealing with news in times of national crisis.".
If indeed such an agreement is made, I should have thought that Parliament should have an opportunity of discussing the matter. It goes on:
"One of the authors of the study, Derrick Mercer, former editor of 'Channel Four News', has been shown an internal MoD memo written in April 1984 and marked 'Restricted'. It revealed that there are 'formal understandings with the BBC Board that in times of crisis it would act responsibly and consult fully with the Government.'
"The implication is that the BBC would co-operate with the Government in the way it handles news, not just in times of nuclear war, but also during periods of tension, perhaps leading up to war. The BBC has always maintained that it is independent from the Government and this is the first time the existence of such an agreement has been revealed."
My amendment is saying that of course the precise details of any such agreement may very well need to be concluded in the utmost secrecy, but surely at some stage this Chamber ought to be made aware in general of the kinds of arrangements which are likely to be made in the event of an emergency.
What we have got, particularly considering the devastating swiftness with which tension becomes war, is a situation where Parliament and this Chamber are bypassed and take no part in a discussion of the details. We may well be told of the major decisions. It is all very well the Minister signifying that this is perhaps not a matter of the utmost importance. It may not be to him or to the MoD at this moment; but the consequences of not being fully aware of what is entailed could well be crucial to those who are affected.
For instance, what is to happen to the civilians who live around the bases? What powers will suddenly be revealed as being in the hands of either a visiting power or even in the hands of our standing forces? How is the environment going to be affected, with the roads and so on, and what will happen in regard to the compulsory acquisition of property? It is an area in which we can either shrug our shoulders and say that we do not need to be consulted or, like myself, not speaking as a parliamentarian, say that we are entitled at least to be told by the Government what kind of arrangements they are going to make. That is the basis on which I move this amendment. I beg to move.
6.45 p.m.
Lord Harmar-Nicholls: I must say that I have not followed the proceedings of the Committee on this point and I have only just come into the Chamber. I have such a respect for the noble Lord, Lord Graham—solid, reliable—but I must say I have never heard a more ridiculous speech than the one he has just made. I mean that. If in a time of crisis we would not expect the BBC to act responsibly (which is what he said) whether or not their actions are based on any
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agreement, and if the BBC (whether implied or on the basis of a document) will not behave responsibly at a time of crisis, then it is time we thought about closing down the BBC. But of course we know that the BBC will do that. Whether or not there is an agreement in general or specific terms I do not know, but if there is, I would not expect it to be blazoned in the headlines.
If we are in a time of crisis—and that is what the whole thing presupposes, when we think about it—there are dangers around and we do not start to advertise in headlines what we are going to do in order to protect our own interests, and those of our country. I do not know anything about this Bill apart from the small scraps that I heard just now. I certainly have not studied this amendment, and I am forming my words purely on the speech which the noble Lord has made in support of his amendment. I think it is quite ridiculous and I should like to feel that we are not going to spend any more time going down that particular road.
Lord Trefgarne: My trouble is that, listening to the speech of the noble Lord, Lord Graham, I could not quite make out to what part of the Long Title his speech referred. Then, turning up the Standing Orders with the help of the Clerk, I find that amendments must be relevant to the subject matter of the Bill and to the clause in respect of which they are proposed. It further says that they must not be inconsistent with the previous decision of the Committee on the same question.
I think the noble Lord's amendment fails on almost all of those counts. He has raised a matter which falls quite outside the scope of this Bill and quite outside the Long Title. I do not really think that in the circumstances I am supposed to reply to it; but if the noble Lord wishes to table a question on the matter, I shall be happy to deal with it.
Lord Graham of Edmonton: The Minister confirms what I feared—that is I was chancing my arm. However, the Table having accepted the amendment and not, as with the earlier amendment, Amendment No. 1, having advised me that it was out of order, I felt it was not unreasonble. The Minister has said that the substance is something on which he is at least prepared to give an answer if I put the matter to him in another way. Of course, I do not propose to press this amendment. However, may I say to the noble Lord, Lord Harmar-Nicholls, that we have had a very useful period of almost four hours really on a matter which is crucial: that is, how our armed forces are going to be guided by a code of discipline which affects not only themselves and their families.
The gravamen of this amendment is that when an emergency occurs it is then too late for this Chamber to debate the governing powers for that emergency. I take the view that this matter is not out of court, although it may be out of the Long Title, in discussing in advance of an emergency the kind of powers which we feel, as a community and as a country, that we want to take. I have listened to what the Minister is mumbling and I deciper it in the most kindly of spirits. I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Clause 14 agreed to.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 15:
After Clause 14, insert the following new clause:
("Social Inquiry Reports
. For any case brought before a court martial or a standing civilian court, the court shall have power to call for a social inquiry report to be made where it is considered that to do so would assist the court.")
The noble Lord said: This amendment is concerned with social inquiry reports and I ought not to delay the Committee long. What we are seeking to ensure is that whenever a court martial or a Standing Civilian Court deals with matters on which a social inquiry report would be helpful, just as in other courts such a report is seen to be helpful, it ought to be made available. We are trying to put a court martial on all-fours with a civilian court. We are not saying that there should be a statutory duty. What we are saying is that it ought to be available. Even when a formal social inquiry report is not provided full information as to an offender's character, background and circumstances must already be given to the court, and we are asking the Minister to say whether he considers that a court martial should have power to call for a social inquiry report. I beg to move.
Lord Trefgarne: As the noble Lord has said, his amendment seeks to empower all courts martial and Standing Civilian Courts to call for social inquiry reports to be made. Although he has not included in his proposed clause a definition of the phrase "social inquiry report", I assume he means a report, prepared by a social worker, containing all relevant personal information on an offender to enable the court to decide upon the most appropriate sentence, taking into account the individual's circumstances.
As a result of a recommendation made by the Select Committee of another place which examined the 1981 Bill, we have looked carefully at the sort of information made available to a service court. The Navy already had a system of providing full social inquiry reports on all offenders where this was considered desirable; these reports were provided by the qualified social workers of the naval personal family services. This was possible because of the much smaller numbers of Royal Navy courts martial.
We therefore concentrated on the Army and Royal Air Force, where a rule of procedure laid out the type of personal information which was required to be presented to a court martial. Administrative guidelines have now been introduced which considerably strengthen and broaden the range of this information, so that it now covers family background, finances, education and other relevant circumstances. This information is now routinely provided on all offenders appearing before a court martial. Similar information is also required by a Standing Civilian Court.
We considered further the case of young offenders, where the Select Committee of another place had been particularly concerned about the provision of full social inquiry reports. For such reports we are dependent on the qualified social workers of SSAFA, and in Germany the senior probation officer. Their resources are limited and they do not necessarily extend to all areas where servicemen are currently
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stationed. For that reason we introduced instead a scheme whereby social inquiry reports will be produced wherever practicable on all young servicemen appearing before a court martial on a serious offence. Such reports may also be provided in other appropriate cases. They will further be provided in similar circumstances on all young civilian offenders appearing before a court martial or Standing Civilian Court. This scheme has now been in place for over a year and appears to be working very well.
I hope the Committee will agree, therefore, that within the constraints of available SSAFA support we now operate a system which ensures that full information on every accused is available to service courts with additional formal social inquiry reports on young offenders charged with serious offences. Because of the constraints I think this is as far as we can realistically go, but I should stress that if for any reason a service court is not satisfied with the information available to it on an offender's background, it may call for further details to be provided and it may adjourn while these are prepared. I can assure the Committee that the duty to provide information on all offenders is taken very seriously indeed. I hope that this information will persuade the noble Lord, Lord Graham, not to press his amendment.
Lord Graham of Edmonton: It has persuaded me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 16:
After Clause 14, insert the following new clause:
("Review and Report to Parliament on rules governing membership of trade unions and other bodies.
.—(1) After section 7 of the 1955 Acts and section 131 of the 1957 Act there shall be inserted the following new section—
" .—It shall be a duty of the Secretary of State to make a periodic review of and lay a report before each House of Parliament on the rules governing trade union membership or membership of a professional body by those to whom this Act applies, and the Secretary of State shall take into consideration the practices in this regard of other member countries of the North Atlantic Treaty Organisation." ").
The noble Lord said: This amendment deals with a review and report to Parliament on rules governing membership of trade unions and other bodies. Those who have read the report will be aware that there were some interesting exchanges in the Select Committee. The noble Lord, Lord Mayhew, drew attention on Second Reading to some discussion taking place because I then failed to make a direct reference to the possibility of an amendment along these lines, although I gave notice of substantially all of the other amendments. I am not privy to any agitation, call or concern by the armed services that they want a trade union, but this is the only peg this Chamber and the other place have on which to raise issues. I am only asking the Minister to make a periodic review and to lay a report before each House of Parliament on the rules governing trade union membership.
Assiduous readers of the report will see that the first question to be answered is: is it permissible to be a member of a trade union while a member of the armed services? The answer is, yes; there is no proscription. There is then the question of how active one wants to

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be and what is one stopped from doing? In the case of a serviceman near the end of his service, to what extent are trade unions given an opportunity not necessarily of canvassing for members, but of making their presence known? If one is in the catering corps, the Union of Shop, Distributive and Allied Workers, the General and Municipal Workers, or some other union may be concerned. If one is a carpenter, the Amalgamated Society of Woodworkers may be concerned. If one is an engineer, the AEU may be concerned. I think it is no longer the AUEW; the "W" has gone. One gives access.
Let us look at the experience in other countries. We were told by the MoD in a supplementary annex that Belgium, Denmark, the Federal Republic of Germany, Luxembourg, the Netherlands and Norway have established trade unions. In the case of Belgium there are three unions, one for regular officers, one for conscripted officers and another for NCOs and other ranks. In the Federal Republic of Germany all members of the armed forces are permitted to join a trade union, and the majority are members of the DBV. In the Netherlands officers, NCOs and other ranks have separate associations. I am simply inviting the Minister to tell the Committee whether he thinks it is a good idea that a report should be laid every five years simply to provide each House with an opportunity to discuss trade union membership in the armed forces. I beg to move.
Lord Mayhew: I have a few doubts about the amendment of the noble Lord, Lord Graham. It is true that members of the armed forces can join unions as it is, and they can pay the political levy as it is. This amendment is innocently moved to the effect that the Government should give a report on the state of play, but there is a very strong political implication in the amendment that the Government should also change the rules and we have been told about other countries where the rules are different.
I am doubtful whether the rules should be changed. I doubt very much whether there is any demand—indeed, the noble Lord, Lord Graham, conceded this point—for change from within the armed services. Therefore, one is bound to ask whether this amendment is moved on behalf of the armed services or on behalf of the trade unions, though any suspicions of this kind must be carefully kept in check. Nevertheless, the only meaning behind this amendment must be to facilitate the unionisation of the armed forces. This can be the only reason for it. I doubt whether this is called for or appropriate. After all, the other armed forces to which the noble Lord, Graham, referred, are all conscripted armed forces. There is a much better case for a conscript citizens' army to be highly unionised than is the case for the much smaller highly professional forces that we have in this country. It would be most inappropriate to have a campaign to unionise those forces.
When I listened to the noble Lord, Lord Graham, moving in a most charming manner one amendment after another this afternoon, I had a general feeling that he was envisaging a large citizen's army, highly unionised, egalitarian and gay. This is the sensation that one had when listening to him. Of course, we
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know the noble Lord, Lord Graham. He has made many contributions in the field of defence. We know his genuine dedication to the armed forces and that this is a false impression. Nevertheless, I think the Committee should not pass this amendment. I see no call either on behalf of the armed services or for the good defence of the country for unionising the British services.
7 p.m.
Lord Trefgarne: We are approaching the end of four hours' consideration of this Committee stage, and I know there is other business to follow. I hope the noble Lord will therefore forgive me if I do not speak at any great length—
Lord Ponsonby of Shulbrede: Less injury time for the Statement.
Lord Trefgarne: —on the amendment that he has now proposed. But, needless to say, I share the view of the noble Lord, Lord Mayhew, that this is not an appropriate amendment and I hope that the noble Lord will not seek to press it.
The argument for some form of trade union in the armed forces has been deployed and dismissed on a number of occasions. Perhaps the most important aspect of that argument is the need to ensure that the armed forces do not become politicised and maintain their party political neutrality. That is something which they highly prize and is crucial to the effective discharge of their role.
The noble Lord's amendment seeks to impose on my right honourable friend the Secretary of State a duty periodically to review the Government's policy on these matters and to report to the House. I do not consider that such a thing would be a matter for legislation. Our policy on the subject is of course reconsidered from time to time in the same way as my department reviews a whole range of matters relating to service welfare and discipline. However, there are ample opportunities for noble Lords who are interested to discover whether any change of policy is planned or has been decided upon, either by putting down Questions or during the annual debates on the Service Discipline Continuation Order; or, for that matter, during the consideration of Bills such as this. I therefore consider that specific legislation such as is proposed by the noble Lord would be superfluous, and at this late hour I hope he will see fit to withdraw it.
Lord Graham of Edmonton: I intend to withdraw the amendment. I am disappointed by the dismissive nature of the Minister's comments, and also by those of the noble Lord, Lord Mayhew. If I gave other than the impression that I believe it would be a good thing for trade unions, I am guilty of misleading the Committee. I never said that there is a demand, either from the trade union movement or from the armed forces. When one looks at the experience of other countries one sees invariably that there is a no-strike clause. A range of things is contained in the arrangements which are made. One of the matters that has disappointed me in reading this report is the extent to which the MoD believes there is very little it can learn from experience elsewhere or be told by anybody else.

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That is wrong. The attitude that the MoD has it just about right permeates all these pages.
We have debated some very important issues. I should like to have seen the Ministry and the Minister prepared at least to examine the experience of other countries which are as democratic as ours. I take the point about conscription and all-volunteer forces (there are variations) and about the difference between the armed services and a great factory. I have been very disappointed by some of the responses from the Minister, and in particular by what I detect as the attitude of the MoD.
However, not only is the night young but the stages of the debate have just begun. We have other stages at which amendments can be put down, not only in the light of what the Minister has said but, more importantly, in the light of what the Minister has not said. I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Remaining clauses and schedules agreed to.
House resumed: Bill reported without amendment.
Lord Trefgarne: My Lords, I am not sure what has been agreed for future stages of this Bill, but since no amendments have been agreed to today it would be open to me to move now, That this Report be now received. I should be grateful for the views of the noble Lord.
Lord Graham of Edmonton: My Lords, I certainly would not wish to agree with that, for two reasons. The first is a matter to which I did not refer directly—the report by Mr. Calcutt on the methods of interrogation in respect of airmen in Cyprus. I do not refer to the detail of the case. The Minister knows how disappointed many people are that that report was not available before the concluding stages of the Bill in another place. We were not led to believe—that is right—but we hoped that we would have it before today. Certainly, in the light of that report there may be grounds on which we would put forward amendments.
Secondly, the noble Baroness, Lady Faithfull, and others have said that not only will they want to look at this report but they will want to take guidance from those outside the House who may well have valuable points to make. I certainly would resist, if need be by a vote, a Motion to proceed to Report stage.

Forestry Bill
Brought from the Commons; read a first time, and to be printed.

Business
The Earl of Swinton: My Lords, I beg to move that the Committee stage of the Gas Bill be postponed until after the Second Readings of the Corneal Tissue and British Shipbuilders (Borrowing Powers) Bills.
Moved Accordingly, and, on Question, Motion agreed to.

Corneal Tissue Bill
7.8 p.m.
Lord Cullen of Ashbourne: My Lords, I beg to move that this Bill be now read a second time.
Fortunately for people on the waiting list for eye transplants, my honourable friend Mr. John Hannam was lucky in the ballot in another place for Private Members' Bills, and his Corneal Tissue Bill had a smooth passage with the support of Her Majesty's Government and the other parties. He has asked me to sponsor his Bill in your Lordships' House, and this I gladly do.
The Bill amends the Human Tissue Act 1961 and its Long Title. That Act requires that the removal of organs from bodies for medical purposes can be carried out only by fully registered medical practitioners. This has been a perfectly proper requirement and needs to continue for organs other than eyes or parts of eyes. Nowadays, however, a comparatively simple operation for the removal of eyes can be carried out, as it is in other countries, by eye technicians suitably trained and supervised. The whole purpose of this Bill is to bring that about.
The limited number of ophthalmic surgeons are under great pressure of work and cannot be available by day and by night to interview relatives to get their permission and then remove the eye tissue. This is the reason why hundreds of people are on waiting lists for eye transplants. By adding trained and supervised technicians to ophthalmic surgeons it would be possible to set up eye banks similar to those in the United States and Europe. In this country we currently perform 1,500 to 2,000 grafts annually. In the United States, in 1984, 24,000 corneal removals were carried out, 98 per cent, by eye technicians.
I must stress that the Bill is concerned only with the removal of eye tissue from bodies. The actual graft, a highly skilled and delicate operation, would still be performed only by an ophthalmic surgeon. The cornea is the circular and transparent lens on the front of the eye and is 11 by 13 millimetres in size. When disease, degeneration or injury causes a loss of transparency of the cornea, light fails to get through to the retina and blindness occurs. The operation is to transplant a graft of donor tissue of some 7 by 8 millimetres in size into a recipient hole in the eye.
This Bill enjoys the support of ophthalmic surgeons, the National Health Service, RNIB and Her Majesty's Government. Even more important is the support of hundreds of people facing the prospect of blindness and desperately awaiting transplants. I hope and trust that the House will also support it.
If the Bill is enacted and more corneal tissue is made available, it will be possible to set up eye banks. It is to be hoped that new procedures will make it possible to store corneas for quite a long time. Thus ophthalmic surgeons may soon be able to choose from a well-stocked eye bank corneal tissue suitable for each patient. They are increasingly preferring to use tissue-matched corneas, and this obviously means that there needs to be a greater range, and therefore supply, of donor material available.
There is little that I need to say about the amendments to be moved in Committee. The first

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four are simply drafting amendments. Amendment No. 5, by removing the word "fully" opens the way for Amendment No. 6, which ensures that the person who is instructed to remove the eyes, or parts of eyes, will be a properly trained technician, employed either in the health service or at a hospital ophthalmic unit. Amendment No. 7 explains the separate definitions for the English, Welsh and Scottish health authorities. In the case of Northern Ireland, which country wishes to implement this legislation, the amendment will need to be made by Order in Council. Amendment No. 8 is to remedy a mistake in the Long Title of the printed Bill and brings it into line with the Human Tissue Act 1961.
Finally, I should like to pay a tribute to the Iris Fund and in particular to its director, Mrs. Susanne Burr. The Iris Fund, which, with the support of the DHSS and the South-West Regional Health Authority, in 1983 established the United Kingdom Corneal Transplant Service in Bristol, is promoting this change in legislation—a change which I believe will be of incalculable benefit to very many people in the future. I therefore commend the Bill to your Lordships. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Cullen of Ashbourne.)
7.15 p.m.
Lord Ennals: My Lords, I first congratulate the noble Lord, Lord Cullen, upon introducing this very valuable Bill and echo his tribute to the Iris Fund. I think it shows the role that a voluntary organisation, with dedicated commitment, can play by bringing forward a Bill which we laymen would not have thought of. I should like to add, as the noble Lord, Lord Cullen did, my thanks to Mr. John Hannam, of another place, for having introduced the Bill in the first place.
As the noble Lord, Lord Cullen, said, there are over 1,500 corneal transplant operations in Britain every year. In 1985 the UK Corneal Transplant Service handled 529 corneas, with some 4,500 corneal transplants having been performed nationally since the inception of the UK Corneal Transplant Service in the autumn of 1983. Sadly, there is still a long queue of patients on the waiting list and organ culture may well provide the answer.
Over the whole country, some 4,000 eye grafts have taken place during the past two years, in hospitals as far apart as Bristol to Edinburgh. As many as 1,500 extra transplants a year could take place if this Bill is enacted. The life of eye tissue is very short—a matter of 14 hours from removal to transplantation—so the need for an efficient system is obvious. At present the Human Tissue Act 1961 requires that corneal tissues be removed for the purpose of corneal grafting only by registered medical practitioners. This makes very heavy demands on the valuable and limited time of ophthalmic surgeons. In practice it means they have considerable difficulty in removing corneal tissue from donors who happen to die elsewhere than in hospitals that have an ophthalmic surgery department. In turn, this means that in most departments of ophthalmic surgery corneal grafting is still an emergency
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procedure undertaken only as and when the right sort of corneal tissue becomes available for a particular patient. This often results in the wasteful use of hospital beds and theatre time, heavy additional demands on surgeons and theatre nurses, and uncertainty for patients. If more corneal tissue became available, corneal grafting could become a scheduled procedure and much would be gained.
As the noble Lord, Lord Cullen said, the purpose of this Bill is to enable this task to be done not necessarily by ophthalmic surgeons but by suitably trained technicians. They would be able to operate more quickly and while it would not save lives it might save the eyesight of very many people who at present are waiting, and have been waiting for a long time. We perhaps talk much more about other transplantable organs such as kidneys, hearts and livers but there are some differences. First, in the case of corneal tissue removing, it is a much less complex procedure than for other organs. It does not require the skills of an experienced surgeon. Secondly, the cornea does not deteriorate so quickly. It can safely be removed from a body up to several hours after death.
So far as I can see there are no disadvantages, no unfortunate side effects and no dangers in the Bill now before us. I warmly welcome it and I hope that it will have a rapid and harmonious progress through your Lordships' House.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington): My Lords, St. Cecilia, the patron saint of music and of the blind is said—I beg your pardon!
7.20 p.m.
Lord Rugby: My Lords, I want to congratulate the noble Lord, Lord Cullen of Ashbourne, on introducing this Bill. Am I allowed to make a statement at this point? I thought I was entitled to do so.
Baroness Hooper: My Lords, I think that it is normal practice for noble Lords to inform the House and put their names on the speakers' list so that we know who intends to speak, but there is no reason why the noble Lord should not speak.
Lord Rugby: My Lords, all I have to say is that I feel it is important to look carefully at the wording of the Bill, especially at the word "safeguards". It may so happen that eyes are taken for commercial purposes by fringe medical people and so they could be turned to a commercial purpose. That is all I have to say at the moment. I think that we shall have to wait until the Report stage in order to make quite sure that the correct people will obtain these eyes for medical education and experimentation.
7.22 p.m.
Baroness Trumpington: My Lords, I shall start again. St. Cecilia, the patron saint of music and of the blind, is said to have been given new eyes after she had plucked out her own. The first recorded ophthalmic surgery for the removal of cataracts took place in ancient Egypt. The first successful corneal graft was

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performed in 1886—which was 100 years ago—and the first corneal graft in this country was in 1925.
These are surprising facts, and I am glad to say we have come a long way since then. Today it gives me great pleasure to express the Government's gratitude to my noble friend Lord Cullen of Ashbourne for introducing this important Bill. My noble friend has already explained the purpose of the Bill, and I am glad to record the Government's full support for a measure that will have the effect of facilitating what is now a well-established and accepted procedure, which is very successful in restoring sight to people who are in danger of becoming blind.
Under the provisions of the Human Tissue Act 1961 organs may be removed from a body after death for the purposes of transplantation only by a registered medical practitioner. In the case of most transplantable organs, such as kidneys, hearts, livers and pancreases, this restriction is necessary and it is our intention that it should remain in force. But the removal of corneal tissue is different from the removal of the other organs that I have mentioned in two important respects. The first is that the removal of corneas—as the noble Lord, Lord Ennals, has already mentioned—is a much simpler procedure that does not require the skills of an experienced surgeon; and the other is that corneal tissue is suitable for transplantation even when it is removed several hours after death.
At present the requirement that corneas be removed only by a qualified doctor is a serious constraint on the supply of corneal tissue which is urgently needed for corneal grafting. My noble friend Lord Cullen has referred to the heavy demands on the valuable and limited time of ophthalmic surgeons, and in practice it means that with rare exceptions corneal tissue is removed only from donors who die in hospitals that have ophthalmic surgery departments. This, in turn, means that a high proportion of corneal grafts are performed as emergency procedures as and when the right sort of tissue becomes available, making unnecessary demands on hospital resources and creating uncertainty for patients. If the constraints on the procurement of corneal tissue were to be eased, and the supply increased, much would be gained.
The number of people who die in circumstances where corneal donation is practicable is far in excess of the number of people who die in circumstances that enable them to become potential donors of other organs. Corneal tissue suitable for grafting can be taken from patients in older age groups, and the longer permissible period between death and the removal of the tissue means that tissue can be taken from donors who die in hospital wards and even at home. But under the present requirements it is not possible to profit from these advantages, since the constraining factor is the surgeon's time. The potential benefits will be realised only if more people are permitted to remove corneal tissue, and the comparative simplicity of the procedure means that suitably trained health service staff who are not doctors are capable of doing so. The effect of the Bill will be to permit this.
Yet it would be wrong to allow the removal of corneas from bodies unless the procedure were undertaken competently and sensitively; so certain
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safeguards are needed. The safeguards need to be flexible enough to ensure that the procurement of corneal tissue is not unnecessarily constrained and yet rigid enough to ensure that due regard is given to the safety of patients and the sensitivities of relatives. The Bill provides four safeguards to achieve this balance.
The first is that non-medical staff may remove corneal tissue only if they are acting under a doctor's instructions. This means that non-medical staff may go to distant hospitals and to people's homes to remove corneal tissue, but only if they are acting on the instructions of a doctor; and the doctor would, of course, be professionally accountable for any instructions he gave.
The second safeguard is that the doctor who gives the instructions must satisfy himself that the staff he instructs are suitably qualified and trained. For obvious reasons there are at the moment no recognised qualifications or training courses in this field, and we think that the most appropriate safeguard for ensuring their competence is that responsibility should be laid upon the doctor. I am pleased to say that the medical profession is prepared to accept this. Your Lordships will be interested to know that the United Kingdom Transplant Service in Bristol is preparing a training course on the procurement of corneal tissue which will be run in the event of this Bill becoming law. We have every confidence in the UKTS, and its training course could make an important contribution in getting the new arrangements off the ground.
The third safeguard is that the people who will be permitted to remove corneal tissue must be employees of a health authority. As employees these people will be subject to whatever procedures their employing health authority considers necessary, and this provision will ensure that the procurement of corneal tissue does not become an entrepreneurial activity undertaken outside health authority control. I hope that that meets the point of the noble Lord, Lord Rugby. I should add that we do not see this restriction as presenting an unreasonable constraint on private hospitals. Private hospitals will not be prevented from undertaking corneal grafts; they will be able to obtain the necessary tissue either through making arrangements with a health authority or through their doctors procuring their own corneal tissue as now.
The fourth safeguard is that certification of death will remain very firmly a prerogative of the medical profession. It would be totally wrong for corneal tissue to be removed before death had been properly certified by a doctor, but the doctor who certifies death will not under this provision necessarily have to be the same doctor as the one who gives the instructions for the tissue to be removed.
So I commend the Corneal Tissue Bill to your Lordships' House. Corneal grafting is a procedure that can safeguard or restore people's sight, but it can be performed only if an adequate supply of tissue is available. As things stand the last confirmed number of corneal grafts performed in the UK annually was in the region of 1,200. New techniques are being developed which enable corneal tissue to be successfully stored, but the eye bank to which my noble friend Lord Cullen referred will need to be well stocked, and this will require an increase in supply. The Bill will

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significantly ease the present constraints on supply, and do so in a way that will ensure that the needs of donors and their relatives are properly safeguarded. So patients will benefit, and the National Health Service as a whole will benefit as demands on staff time are reduced and resources allocated more efficiently.
I have been told that two of the sponsors of this Bill in another place, the honourable Members for Richmond and Barnes and Weston-Super-Mare, have had corneal grafts. Their personal experiences may well be shared by Members of your Lordships' House.
In congratulating the noble Lord, Lord Cullen of Ashbourne, I should also like to thank my honourable friend the Member for Exeter who introduced the Bill in another place, and to join with both my noble friend Lord Cullen and the noble Lord, Lord Ennals, in congratulating Miss Susanna Burr of the Iris Fund who did so much of the groundwork in preparing the way. I can assure your Lordships that the Bill has the Government's unqualified support.
Lord Cullen of Ashbourne: My Lords, I am extremely grateful both to the noble Lord, Lord Ennals, and to my noble friend Lady Trumpington for their strong support for the Bill. I am particularly grateful for a lot of additional information that my noble friend gave us about the subject, on which I am by no means an expert. What I hope also is that the noble Lord, Lord Rugby, will have been pleased to hear about the various safeguards that my noble friend mentioned and that as a result of that the Bill may perhaps not be committed and will have a smooth passage through the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

British Shipbuilders (Borrowing Powers) Bill
7.30 p.m.
Lord Lucas of Chilworth: My Lords, I beg to move that this Bill now be read a second time.
This is a very short, technical Bill containing only one operative clause. It is nevertheless very important because it allows British Shipbuilders to increase borrowing limits. British Shipbuilders has a present borrowing limit of £1,200 million, against which it has already borrowed some £1,170 million. The purpose of the Bill is to raise the borrowing limit to £1,300 million with provision to increase the limit further to £1,400 million, subject to affirmative resolution in another place.
The increase in the borrowing limit is needed now because British Shipbuilders' borrowing will approach the £1,200 million limit in the summer. British Shipbuilders can borrow from the Government in the form of public dividend capital and loans and it can also borrow from the market. Borrowing to date is almost entirely in the form of public dividend capital—£1,122 million in that form has been paid to date. Finance is also provided to British Shipbuilders in the form of grants from the intervention fund in
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support of ship prices. I should make it clear, however, that the borrowing limit does not apply to intervention fund grants or to the shipbuilders' redundancy payments scheme.
I think that it may be helpful in commending the Bill to your Lordships if I say something about the current position. The Bill comes at a time when orders for ships are few and world capacity greatly exceeds the level of demand. All the British Shipbuilders yards currently have work in progress. This includes a P & O ferry at Govan, four container ships for Cuba at Smith's Dock, Middlesbrough, and two advanced bulk carriers for a German owner at Austin and Pickersgill. On 25th April the "Stena Seawell", a diving support vessel, was named by my right honourable friend the Prime Minister at Sunderland. This yard has a second diving support vessel, as well as a crane barge for ITM. In the smaller yards, Ferguson Ailsa and Appledore, there are a number of small ships under construction or on order.
All this work is due to be completed by the end of the financial year. Against a target in 1985–86 of 200,000 compensated gross tonnes of new orders, British Shipbuilders secured only 23,000 compensated gross tonnes because the orders simply did not materialise. The world market at the end of 1985 amounted to a total of just over 25 million gross tonnes, the lowest level for three years, and this world situation is not forecast to improve for some years yet. To put the decline of the industry in perspective, it is worth remembering that the peak order book of recent times, that of March 1974, stood at 133 million gross tonnes, which is more than five times the present level.
When this Bill was debated in another place, the Members on the Opposition Benches raised points about this country's public purchasing programme both on the defence and on the civil sides. It may help if I repeat some of the comments that my honourable friend made on that occasion. Other things being equal, an influx of early home orders would be a good thing and could alleviate British Shipbuilders' present difficulties. But other things are very definitely not equal.
To take defence requirements first, British Shipbuilders has worked up a commendable marketing initiative on the FSK 20/20. The corporation's proposals have been studied with interest by the Ministry of Defence. However, there can be no presumption that, when a concept such as the FSK 20/20 is actually offered to the MoD, it is necessarily right in specification and timing for the MoD's needs. My honourable friend the Minister of State for Defence Procurement has clearly stated that the Royal Navy has no requirements at present for the vessel. British Shipbuilders is nevertheless actively seeking overseas possibilities. Your Lordships can be assured that the Government will give it every support in its efforts.
British Shipbuilders is facing a lean future. Orders are scarce but not non-existent, and it will have to fight extremely hard for any that it has a chance of securing. This means cutting costs as far as they will go, and that is why British Shipbuilders last week announced very sweeping rationalisation measures.

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I should say something in this context about the government response to the efforts of British Shipbuilders. The Government will be funding the new British Shipbuilders Enterprise Ltd. to an amount of £5 million; £1·5 million of this will be from the Department of Trade and Industry. This was announced by my right honourable friend the Secretary of State for Trade and Industry last week in another place and by my noble friend Lord Young in your Lordships' House.
My right honourable friend and my noble friend here outlined further measures to alleviate the social and regional problem of the North-East, amounting in total to £9 million. These are benefits to aid redundant shipyard workers.
I now want to go on to the support we give to the industry itself. Credit terms for UK shipowners are intended to provide an incentive for those owners to order in this country. The credit terms match those generally available overseas. The question of whether length of credit terms should be increased was covered in the Report of the European Communities Committee on European Maritime Transport Policy. This report was debated in this House on 2nd May. But I should remind your Lordships that the commission does not look at credit terms in isolation; it looks at credit terms and direct supports together. A change in one would almost certainly lead to a counterbalancing change in the other.
As it is, our direct support mechanism—the intervention fund—stands international comparison as one of the most generous world-wide schemes in the context of direct cost subsidy. All British Shipbuilders' orders facing competition from outside the EC are eligible for this support. The rate is 20·5 per cent. of contract price; in effect, 22·5 per cent., taking account of Shipbuilders' relief. These rates can be increased in exceptional circumstances.
The Government are about to begin discussions on the regime of assistance to follow the EC 5th directive. I assure all noble Lords that we shall be working hard in those discussions to obtain the most helpful arrangements possible for the United Kingdom.
For export orders which contribute to development for the country concerned, the Government are prepared to consider the use of the aid and trade provisions. We are now ready to use that form of assistance for a particular order for China which I hope will be thereby secured.
I shall sum up by saying that the Government intend to continue shipbuilding industry support. Since 1979, British Shipbuilders has received £1,481 million indirect support, including £236 million from the Intervention Fund and £178 million in support under the shipbuilders' redundancy payments scheme. I cannot emphasise sufficiently that it is because of our intention to continue supporting the industry that the Bill has been introduced. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Lucas of Chilworth.)
7.41 p.m.
Lord McIntosh of Haringey: My Lords, it is commonplace in politics that the old saying:
"Those whom the Gods wish to destroy they first make mad"
applies more strongly to governments at the end of their credibility than to almost any other public institution. The Government are at the end of their credibility and in their dealings with the shipbuilding industry over recent years, and particularly over the past few weeks, they have gone beyond the edge of credibility.
It is incredible that a Government can announce British Shipbuilders' decisions in one week which virtually destroy the shipbuilding industry and then, a week later, introduce in this House a Bill designed slightly to extend credit for the corpse.
The noble Lord has referred to the excellent terms which the Government make available to shipbuilding. I noted his words carefully. He said that the credit terms matched those generally available overseas and that they provided one of the most generous worldwide schemes. I note that that attitude towards support for British shipbuilding is not shared by all his honourable friends. Mr. John Butcher has expressed considerable disturbance at the general levels of public support of all Western countries for their shipbuilding industries. He described it as a corrosion. It will be interesting to know where, in what is inevitably a difference of view between the noble Lord and his noble friend, the official government position will land.
If it is true that we provide adequate support for British shipbuilding, why should this country, which has virtually the highest level of defence expenditure as a percentage of gross national produce in the Western world, have such a small shipbuilding industry? Why should a country, with the huge maritime business that we still have, be buying so small a proportion of its ships from its domestic shipbuilding and repair market? I understand that the percentages for Germany, Belgium, France and other Western countries are about 90 per cent. to 95 per cent. of home-registered shipping bought from their own shipbuilding industries whereas in this country the figure is more like 40 per cent.
The noble Lord referred to the fact that British shipbuilding now accounts for perhaps 1 per cent. of the world market whereas in the 1950s the figure was more like 20 per cent. He has referred to the fact that orders in the current financial year of 23,000 compensated gross tonnes are barely over 10 per cent. of the targets set by British Shipbuilders. If Government support is so generous and is comparable with that of other countries, why is our shipbuilding industry in the state that it is, and why is it that a virtual shut-down of the British shipbuilding industry has now been announced?
If any noble Lord should think that I am speaking for myself in this matter, exactly the same sentiment has been expressed recently by Sir Robert Atkinson, the former chairman of British Shipbuilders, who described the Government's policy as being hell bent on closing the whole industry.

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The cost to this country of abandoning the British shipbuilding industry is immense. It is far more than the jobs directly involved. It can be calculated that indirectly we shall lose three additional jobs in the supply industries and the communities involved for every job that is lost in shipbuilding. The shipbuilding communities have been particularly hard hit by the Government's policies and the decline of manufacturing output in this Government's lifetime.
It is not just a matter of neglect; it is a matter of positive vindictiveness in the Government's policy for our shipbuilding industry. After all, it was this Government who, by privatising the naval yards, removed the possibility of cross-subsidy from profitable Navy contracts, and the staggering of work for all our shipbuilding industry by the timing of naval orders.
Some of those possibilities have gone; some remain. It would still be possible for the Government, by advancing orders for vessels such as fishery protection, ancillary defence or ferries, to make some move towards the replenishment of British order books which is desperately needed before the end of this financial year. In those circumstances, the phrase, "fiddling while Rome burns" is too generous to the Government. The idea that it is an adequate response to the British shipbuilding industry's problems to propose the increase in borrowing powers that have been proposed by the noble Lord in moving the Bill is grotesque. It is cynical to suggest that the Government's economic policies are in any way adequate for the needs of British shipbuilding. Although of course we shall not oppose the Bill, I assure the noble Lord that the defence of the British shipbuilding industry is a major concern for the Opposition. A Labour Government will see to it that the vandalism of the previous years is corrected.
Viscount Hanworth: My Lords, it should be said that at least a part of the condition of the shipbuilding industry is due to the unions, demarcation disputes and inefficient methods of working. The same happened in our docks on the Thames. That should never be repeated in another industry. I hope that the lesson has been learnt, but it never seems to be.
7.48 p.m.
Lord Lucas of Chilworth: My Lords, I was glad to hear from the noble Lord, Lord McIntosh of Haringey, that he does not intend to oppose the Bill. Indeed, that would show a vindictiveness which I do not believe that he personally feels towards this Government, nor do I believe that he can possibly sustain the accusation that the Government are vindictive towards the shipbuilding industry.
I am tempted to ask him, when he suggests that the Labour Government will reverse the position: are they going to conjure orders from the air? He will know equally as well as I that there is a surplus capacity of tonnage in the world today which is over twice the amount of world shipbuilding capacity. The general position which he and I have outlined is no different for this country than it is for any other.
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I appreciate that the noble Lord was abroad when my noble friend Lord Young made the Statement in this House. He will no doubt have read Hansard and taken on board the fact that the Swedish shipbuilding industry, for example, is almost non-existent, and that France, Germany and now Japan are in some decline; and even in Korea our understanding is that there is no further new investment going in.
The noble Lord asked why we received only 23,000 compensated gross tonnes against a target of 200,000. The answer is that in the middle of 1985 the world market collapsed. The total world market was reduced. As a result, we received a consequentially lower share. The Government are not hell bent on abandonment. That is absolutely not so; otherwise, we would not have been in the position of agreeing to the suggestions that British Shipbuilders made to us when they reviewed the position. That the scenarios put before the Government by British Shipbuilders were unpalatable, there is no doubt. Their recommendation, and our acceptance of it, was the least that we could do. To support our concern, we introduced the measures that I have outlined.
The noble Lord opposite asked specifically about the fishery protection vessel for the Scottish Office, and two Scottish ferries. I can tell him that we anticipate a response next month. That is about as far as we could go in bringing forward orders. It is no good suggesting to my honourable friend the Minister of State for Defence Procurement that he brings forward the ordering of vessels for which he has no need. The person who pays at the end of the day is, of course, the taxpayer.
As to the remarks of the noble Viscount, Lord Hanworth, yes, one might perhaps have agreed in part with his comments some years ago. I do not believe for one minute that the position obtains today. There has been a remarkable change in all the shipyards; in fact, across the whole range of industrial affairs. I am going to suggest here and now that it is as a result of measures that this Government have brought in that much of that change has occurred. I do not believe that there is anyone working in a shipyard who still continues demarcation disputes or who does not want to achieve the highest possible quality in the shortest possible time for any vessel ordered from his yard.
The Government wish to see a merchant shipbuilding capacity maintained in this country. But orders have to be won in a fierce international market. I give your Lordships the assurance that where those orders are to be won support will be available from Her Majesty's Government. Part of that support is contained in the Bill. I beg to move.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Gas Bill
7.53 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Belstead.)
Lord Stoddart of Swindon: My Lords, before the House again resolves itself into Committee, I feel that I must make some comment about the time that we are entering upon this business. I must express my concern and, indeed, displeasure that we should be entering upon this Bill, perhaps the most major and most contentious Bill, at eight o'clock in the evening. Noble Lords opposite will know that we expected to enter upon this Bill at a much earlier hour, certainly not later than four o'clock. I simply cannot understand why the Government decided to put down the Armed Forces Bill in front of the Gas Bill.
The Armed Forces Bill, judged by the discussion that took place on it this afternoon, certainly produced a fair amount of contention. It aroused a great deal of interest, as one can see from the number of noble Lords from all sides who spoke. We have lost a lot of time. I do not know until what hour the Government intend to sit tonight. What is certain is that we have lost nearly a day's debate on the Gas Bill.
What is more—noble Lords will understand what I am talking about—we have lost time during an important period when noble Lords may have wanted to be here to vote. Now, of course, they have made their other arrangements and they may have left the premises. That is unfortunate. From the Opposition point of view, I cannot call it a dirty trick, because I am sure that there was no intention to play a dirty trick on the Opposition. But the Government will understand that the Opposition—I mean the whole Opposition—are discontented over what has gone on in relation to the Gas Bill.
I do not intend to divide on the Motion, That the House do resolve itself into Committee. That would perhaps be a little unreasonable. We can perhaps get a couple of hours, or three hours, on it. I am tempted to have a Division. Nevertheless, I want to be reasonable with the Government. I hope that the Government, during discussions that I hope will take place between the usual channels, will also be reasonable with us.
We are entitled to express the views that I have expressed. I hope that the noble Lord, Lord Belstead, the Deputy Leader of the House, who has heard what I have been saying, will consider the matter seriously and will agree that the Opposition have been injured and that discussion of the Bill has been injured, and that when the time comes he will see that proper discussion regarding additional time for the Committee stage of the Bill will be fruitful.
Lord Belstead: My Lords, I quite understand why the noble Lord, Lord Stoddart of Swindon, has spoken about the late start of the Bill. We, indeed, share his regret that the Bill did not start earlier in the afternoon. It was agreed through the usual channels that a Bill would be taken beforehand. That Bill proved, as the noble Lord rightly said, to have attracted more interest than perhaps we had thought.
I have listened carefully to what the noble Lord has said. One matter with which I do not agree is that starting after dinner means that the Bill has been injured. Some of us are at our best after dinner. Let us
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hope that this will be the case as we again discuss the Bill in Committee.
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD WELLS-PESTELL in the Chair.]
Clause 4 [General duties of Secretary of State and Director]:
The Deputy Chairman of Committees (Lord Wells-Pestell): In calling Amendment No. 47, I should remind your Lordships that the debate upon it was adjourned at the previous sitting pursuant to Standing Order No. 55. Unless, therefore, any noble Lord wishes to continue the debate, I shall now put the Question.
8 p.m.
Lord Bruce of Donington: I regret to inform the Committee that I have, in this instance, to continue the debate on Amendment No. 47 because, of course, it was at a very late hour that the amendment was discussed. Precisely because of that the proceedings were somewhat attenuated, and the amendment did not get a thorough airing. The amendment was:
Page 3, line 28, at end insert—
("( ) to ensure that due account is taken of the operations of British manufacturers and suppliers in the procurement policy relating to plant, equipment and appliances of a public gas supplier and to monitor the buying policies of such suppliers in this regard.").
This is one of the most important amendments to the Bill. It seeks to insert into the statute,
"that due account is taken of the operations of British manufacturers and suppliers in the procurement policy relating to plant, equipment and appliances of a public gas supplier and to monitor the buying policies of such suppliers in this regard".
Supplies and materials bought by British Gas in the year 1984–85—no accounts are yet available for the year 1985–86—amounted in total to about £1 billion. That was spent mainly in the United Kingdom for the purchase of all the supplies—other than gas—that are needed by the British gas industry. A very substantial proportion of the spending of £1 billion per annum accounts for a very large amount of employment in the manufacturing industries of this country. When industries were nationally owned—for example, British Telecom—there was always the assurance, which did not require any legislation, that the utmost effort would be made by the management of British Telecom to get most of its supplies from this country. Indeed, as we were told in the Second Reading debate on the British Telecommunications Bill, some 95 per cent. came from the United Kingdom. It did not need any regulation or statute to accomplish that.
One of the great advantages of a nationalised industry is that those who run it, from the managing or governing director down, know perfectly well that they are answerable to both government and Parliament and, through them, to the country. This therefore makes it very easy for them, without having any legislative constraints placed upon them, to follow policies in the purchasing field which they know are in

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the best interests of British industry, in particular of British manufacturing industry, and through industry to the economy at large. The more people are employed in manufacturing industry—as the noble Lord should know very well by now—the more people are employed in those other industries which supply and serve manufacturing industry. The multiplier factor may be as high as two-and-a-half times. In other words, every time a person in the primary industry becomes unemployed it does not create merely one other unemployed person, but probably two-and-a-half because that is the figure generally accepted by economists as being the multiplier factor. This is therefore a matter of very great importance indeed.
The noble Lord, Lord Brabazon of Tara, when he was taxed with this point—true enough, it was almost one o'clock in the morning—delivered himself of the observation:
"Members of the Committee do not need reminding that one of the cornerstones of the Government's philosophy is to create a sound economic base in this country so that real growth and industrial development can take place"—[Official Report, 8/5/86; col. 948.]
He went on to outline the virtues of competition in this matter. But, as if to clinch the point, having said that even if he accepted the amendment we put forward, which made it obligatory upon the successor company, broadly speaking, to buy wherever possible British manufactures, he concluded by saying:
"Finally, perhaps the main reason that I cannot accept this amendment this evening is that such a specific focus on British products would be contrary to Article 30 of the Treaty of Rome. For the reasons that I have given, I must ask the noble Lord to withdraw his amendment".—[col. 949.]
The noble Lord still has time to reconsider this matter if he wishes. He will agree that in order to shorten our proceedings I gave him notice that I would raise this point so that he could seek specific advice. Article 30 of the Treaty of Rome reads as follows:
"Quantitative restrictions on imports and all measures having equivalent effect shall without prejudice to the following provisions be prohibited between Member States".
Article 31 goes on to enlarge upon that.
The question I have to ask the noble Lord on that point is whether he considers that this amendment, if incorporated into the Bill itself, would amount to a "quantitative restriction". If the noble Lord still thinks it does, I would invite him—and this is one of the reasons I gave him notice; there have been oceans of cases before the European Court—to say whether he has any case law which would back up his contention, because it would be very helpful to us to know.
For the moment, however, I am prepared to accept what the noble Lord has said. If I accept what he has said, I ask the Committee to consider what flows from it. It means that Her Majesty's Government know perfectly well that a publicly-owned industry, without any regulations whatsoever, and in the general interests of the British economy, can buy British. But to put restrictions on a private company means that that company, if it is to pursue its short- and medium-term profit, is bound to buy in the open market.
The noble Lord and the Government knew perfectly well at the time they introduced their privatisation Bill
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that the new privatised company would not follow, or could not be compelled to follow, the policies pursued by the publicly owned undertaking. This exposed once again the hollowness of the whole Bill. The Bill has nothing to do with the prosperity of British Gas. It has nothing to do with the welfare of the consumer or the quality of the services. It is a pure money-raising exercise that the Government want to carry through in order to bribe the electorate prior to the election. The fact that they declined to accept the amendment underlines the whole point. If they wanted to be of assistance to British industry why did they deliberately deprive it of the safeguards it had through the existence of the public corporation and throw it to the winds of a private enterprise company responsible to nobody but its shareholders and not bound in any way to give any preference to British-produced manufactures whether they be pipes, appliances, cookers or whatever?
I still hope that at this stage the Government, if they are completely dedicated, as we are told, to the national interest, as a safeguard to British industry as well as the British public, will see the wisdom of accepting this amendment and showing their good faith. Otherwise, the country will know exactly the truth that lies behind their propaganda claim that the whole thing has been done for increased efficiency and the benefit of the consumer. I beg to move.
Lord Taylor of Gryfe: On these Benches I would like to support the amendment that the noble Lord, Lord Bruce of Donington, has so persuasively moved. We have the example of British Telecom before us, and I think that is not reassuring from the point of view of all of us who are concerned about the survival of British manufacturing industry. No such provision was contained in the British Telecom Bill that this House passed, and before British Telecom was privatised some 95 per cent. of its requirements were taken from British industry. Since then a good deal of its ordering of new supplies has been placed in other countries.
Now, it may be said by the Minister that to discriminate in favour of British manufacturing is a violation of the Treaty of Rome, and the noble Lord, Lord Bruce of Donington, dealt with that point, but surely the Treaty of Rome does not limit the capacity of a British-owned industry to work closely with its suppliers in the development of research and development within our country so that almost automatically it becomes the supppliers when bids are invited. This is the case and was the case in the development of System X in the telecommunications industry with British Telecom and GEC and Plessey, who worked together to ensure that Britain had an excellent piece of plant and was competitive in every way.
Now, if British Gas is going to be set free in the proposals of the Bill before us, I do suggest that it is important to British industry, and particularly for the future of the manufacturing sector, that there should be some guidelines to the company so far as the encouragement of British manufacturing is concerned. The nationalised industries as a whole had something like 90 to 95 per cent. procurement from British

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sources and it would be a serious blow to British manufacturing capacities if we were not to advise in this Bill or lay down a marker to the new board of British Gas as to what Parliament would expect them to do in discharging their responsibilities.
I do not think that any agreement of this kind will necessarily featherbed British industry because there are many competitors in the field of supplies in heavy engineering who are supplying the gas industry. It is not a monopoly situation, so the consumer will not be exploited as a result of such arrangements, but I would seriously ask the Government to look at this question in the light of some recent statements we have had on the state of the economy and the steady deterioration in the position of British manufacturing industry, particularly in the engineering section. I would ask them to lay upon the new company some kind of obligation to pay attention to the national welfare in that regard.
8.15 p.m.
Lord Sanderson of Bowden: This is indeed an important point raised from the Opposition Benches and I do not cavil at the point that it is in the interests of all British industry to buy British as much as possible. I look forward to hearing what the Minister has to say about our commitment to the Treaty of Rome and to seeing whether or not a clause of this sort would be breaking that treaty.
However, I did think that British Gas was already a signatory to the Memorandum of Understanding between the United Kingdom Offshore Operators Association and the Government, under which companies in the United Kingdom sector agree to give British suppliers of goods and services full and fair consideration. I do think we have to be careful where we tread in this matter. If I was a director of a company that made appliances for the UK gas industry and I was intent on increasing my business, I should wish to export. I should know (and I have quite a lot of experience of this in my own neck of the woods in the textile trade) that if we did not export we should not survive. I think it is extremely important, and I understand and sympathise with the view that British Gas should buy British and has bought British in every case where it is possible. Indeed great help and assistance has been given by the "Better buy British" campaign in this country, but I do think we want to look very carefully before we actually say to the British Gas Corporation that we insist, as the amendment seems to imply, that it buys British wherever possible.
Lord Bruce-Gardyne: I very much agree with what my noble friend Lord Sanderson was saying and I want to add that I do find the attitude of the Opposition parties somewhat bizarre. We have heard a great deal during the course of the debates on this Bill about the need to protect the consumer from the dangerous intentions of the British Gas Corporation in the private sector. I must admit that I have always felt, and indeed argued at other stages of this Bill, that the real anxiety is more likely to concern the well-being of the suppliers of British Gas and the shareholders of British Gas than the consumers, for whom Sir Denis Rooke
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seems to believe that he undoubtedly knows best. I find it hard to reconcile the proposition which lies behind this amendment with the protestations we have heard from the Opposition parties about the need to defend the consumer.
The noble Lord, Lord Taylor, told us there were ample suppliers and ample competition to ensure that even if this amendment were accepted the consumer would not lose out. If in fact these suppliers can offer the best terms to British Gas in the interests of the consumer, then they will get the business anyway. The assumption behind this amendment must be and can only be that it is important for the consumer to suffer so that the suppliers from British industry can be given a distorted competitive edge in the business.
I so much agree with my noble friend Lord Sanderson that if we go down this road we are inviting reciprocal treatment in our export markets. I am sure that cannot be wise and I must say I hope very much that, whatever may be the considerations under the Treaty of Rome, my noble friend advises your Lordships to resist this particular amendment.
Lord Brabazon of Tara: I will not repeat all the arguments that I used the other evening in dealing with this amendment. Perhaps I may start by going to Article 30 of the Treaty of Rome, which the noble Lord, Lord Bruce of Donington, particularly focused upon. The noble Lord indeed quoted the article, as follows:
"Quantative restrictions on imports and all measures having equivalent effect [and I would like to highlight those words] shall without prejudice to the following provisions be prohibited between member states."
This amendment would require the Secretary of State and the director to exercise their functions under the Bill in the manner best calculated to ensure that due account is taken of the purchasing policy of public gas suppliers in relation to British manufacturers and suppliers. The clear intention of the proposed duty in the amendment is that the Secretary of State and the director should exercise their functions under the Bill differently in relation to two public gas suppliers, who are otherwise in exactly the same position, by favouring one of those gas suppliers who bought all British goods and disadvantaging the other who purchased a mixture of British, French and German goods. The effect of this would be that public gas suppliers would know that, in order to get favourable treatment from the Secretary of State and the director, they had to favour British goods over the goods offered by manufacturers and suppliers in other member states. The imposition of this duty in the Bill would therefore amount to a measure having equivalent effect to a restriction on imports, which is prohibited by Article 30.
Lord Taylor of Gryfe: I should like to ask how far industry in France is supplied from outside France. I have in mind the telecommunications industry, the gas industry and the nuclear industry.
Lord Brabazon of Tara: I do not have an answer to that, but I do not think that that is really the point. At the moment British Gas has a record of about 90 per cent. being supplied by British suppliers and most of that is won in competition and not just because they are British suppliers. I would go further than that. To answer the point made by my noble friend Lord Sanderson, who spoke about British Gas and offshore procurement, I would point out that British Gas is a party to the memorandum of understanding and the code of practice between the UK Offshore Operators Association and the Government under which companies operating on the United Kingdom continental shelf agree to give British suppliers of goods and services a full and fair opportunity to compete for orders. There is therefore no need for any new provision on offshore procurement in the Bill.
As I said last time, British Gas has an excellent record on this. For instance, as regards the Rough Field, 85 per cent. of the £700 million worth of orders generated were placed with British industry. I am sure that Members of the Committee are aware of the role of the Offshore Supplies Office; but if they are not perhaps I may remind them that the office assists in the promotion of the UK offshore supplies industry both at home and abroad. Procurement for the UK continental shelf is monitored to ensure that UK suppliers are given a full opportunity to tender for and win orders on a competitive basis. Taking the whole of the industry—not just what British Gas have done—this has been extremely successful in that in 1985 the total orders for operators was some £3.42 billion and the UK share was 80 per cent. of that.
Returning to the amendment, the noble Lord, Lord Bruce of Donington, asked me whether I had any case law to support this interpretation of Article 30. The answer is that I do not have any at present, but I am advised that that would certainly be the interpretation of this article if it were to come before the courts. I should have thought that that would be fairly obvious from what I have said.
The noble Lord then went on to talk about the supply of cookers, heaters and other appliances. I must tell him, first, that a vast number of cookers and heaters are not even supplied by British Gas; at the moment they are freely available on the open market as it stands, and quite a number of them are already imported. As has already been mentioned during the Committee stage of this Bill, the noble Lord will be aware that early next year the Department of Trade and Industry is proposing to introduce more stringent safety measures on the import of that type of equipment. However, I do not think that that is relevant to this amendment. As I say, a large number of these appliances are already outside the control of British Gas and are brought from elsewhere.
The noble Lord also seeks to compare the position of the present corporation and the new private sector company. This is not what we are debating. The noble Lord proposes to put a restriction in terms of nationality into the statute. We must object to that, and not to the final decisions of the management of British Gas, which already has an excellent record of
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purchase from British firms, and I see no reason why that should not continue.
My noble friend Lord Bruce-Gardyne quite rightly said that the Bill was about promoting efficiency and good value for the customer. I would refer the Committee to just a little further up the page from where it is suggested that the amendment should be made to the Bill, to Clause 4(2)(b). That states that one of the duties of the director and the Secretary of State is:
"to promote efficiency and economy on the part of persons authorised by or under this Part to supply gas".
I am not quite sure how that would necessarily fit in with the amendment proposed by the noble Lord, Lord Bruce of Donington. I am quite certain that British industry can produce the goods to which the noble Lord referred efficiently and economically. However, let us suppose, for example, that British Gas went out to tender for a piece of equipment, and that that equipment produced by a German or French company was cheaper than that offered by British manufacturers. Where would we stand? Does the director insist on his role in Clause 4(2)(b) to promote efficiency and economy, or does he go to the noble Lord's amendment and say that the equipment must be British?
For all those reasons, and for the same reasons as I gave the other evening, I must reject this amendment and hope that the Committee takes the same decision as it did the other night.
Lord Bruce of Donington: I have listened to the noble Lord. He really cannot have it both ways. The amendment that I have put before the Committee does not say that British products shall be preferred; the noble Lord puts words in my mouth which were not there and they certainly are not in the amendment. The amendment simply says:
"to ensure that due account is taken of the operations of British manufacturers and suppliers in the procurement policy".
That is all that is asked for. The noble Lord assures me that that is already the case. Therefore, what is his objection to the amendment? I invite the noble Lord's acute perception as regards this matter. He must know that the policies of a public corporation, responsible as they are to Ministers, to Parliament and ultimately to the people, are essentially long-term as well as short-term ones. A public corporation is not concerned with short-term profit. It may be concerned, and indeed should be concerned, with efficiency and with giving the customer the best possible value. There can be no complaint about British Gas as a public corporation on that account.
One thing that the Government have not been able to do when bringing forward this privatisation Bill is to allege that as a nationalised industry this industry has been inefficient. They have never made that allegation. They dare not so so. In fact, they dare not even attack it on grounds of profitability. It is an industry under public ownership which has taken care of efficiency but which nevertheless at the same time has sought to safeguard its own long-term interests and those of its customers as well as British industry generally.

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The new successor company is a private limited company responsible not to the country, not to a Minister, not to the Government, but only to its shareholders. If the noble Lord were to survey the whole climate of the institutional and indeed private shareholder atmosphere in the City of London today, he would discover—and he knows this perfectly well—what they are after. They are after a short-term buck as quick as they can get it. We are afraid that when this industry is privatised the sheer pressure from the institutions, the pressure of the market in shares itself, will be to seek short-term profit and short-term capital gains.
I should like for a moment to address myself to the remark made by the noble Lord, Lord Bruce-Gardyne. The noble Lord is such an expert in these affairs. With the full knowledge that this bull market on stocks and shares cannot go on indefinitely, you can bet your life that the shareholders of the new British Gas company will seek as quick a buck as possible as long as they can possibly do so. This is what we want to safeguard against, and this is the reason why this amendment is put down. Once again it does not seek preferential treatment. It seeks that "due account is taken". The words are precise. They do not permit of any particular exaggeration.
When are the Government and their supporters going to take the attitude towards their own manufacturing industries in this country that is taken in other countries among their friends in Europe—in France and in Germany—and in Japan, Korea, and anywhere else? They are proud to look after their own industries. They do not mouth this wretched cackle so well beloved of the City that they must stand up to competition wherever it may come from, fair or unfair—in the case of Korea, as the noble Lord knows perfectly well, miserably unfair at that. I am sorry that the noble Lord cannot accept this amendment. A question of principle is involved in it, and the Committee will have to decide which way it is going to go.
8.31 p.m.
On Question, Whether the said amendment (No. 47) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 60.

DIVISION NO. 2

CONTENTS

Airedale, L.

Kilmarnock, L.

Barnett, L.

Lockwood, B.

Blease, L. [Teller.]

McGregor of Durris, L.

Bruce of Donington, L.

McNair, L.

Carmichael of Kelvingrove, L.

Mar, C.

Cledwyn of Penrhos, L.

Nicol, B.

Crawshaw of Aintree, L.

Phillips, B.

David, B.

Pitt of Hampstead, L.

Dean of Beswick, L.

Prys-Davies, L.

Gallacher, L. [Teller.]

Raglan, L.

Grey, E.

Seear, B.

Hampton, L.

Silkin of Dulwich, L.

Hanworth, V.

Stewart of Fulham, L.

Hatch of Lusby, L.

Stoddart of Swindon, L.

John-Mackie, L.

Taylor of Blackburn, L.

Kilbracken, L.

Taylor of Gryfe, L.

90

Tordoff, L.

Williams of Elvel, L.

Underhill, L.

Wilson of Rievaulx, L.

Walston, L.

Winchilsea and Nottingham, E.

Wells-Pestell, L.

Whaddon, L.

Winstanley, L.

White, B.

NOT-CONTENTS

Auckland, L.

Inglewood, L.

Beaverbrook, L.

Kimball, L.

Belstead, L.

Kinloss, Ly.

Brabazon of Tara, L.

Lane-Fox, B.

Brougham and Vaux, L.

Layton, L.

Broxbourne, L.

Lindsey and Abingdon, E.

Bruce-Gardyne, L.

Long, V. [Teller.]

Butterworth, L.

Lucas of Chilworth, L.

Caithness, E.

Lyell, L.

Cameron of Lochbroom, L.

Macleod of Borve, B.

Campbell of Alloway, L.

Marshall of Leeds, L.

Campbell of Croy, L.

Mersey, V.

Cathcart, E.

Middleton, L.

Coleraine, L.

Munster, E.

Cox, B.

Murton of Lindisfarne, L.

Craigavon, V.

Norfolk, D.

Cullen of Ashbourne, L.

Pender, L.

Davidson, V.

Rankeillour, L.

Donegall, M.

Renton, L.

Dundee, E.

Rodney, L.

Elliot of Harwood, B.

St. Aldwyn, E.

Elliott of Morpeth, L.

Sanderson of Bowden, L.

Elton, L.

Sandys, L.

Faithfull, B.

Skelmersdale, L.

Fortescue, E.

Swinton, E. [Teller.]

Gibson-Watt, L.

Torrington, V.

Glenarthur, L.

Trumpington, B.

Gray of Contin, L.

Vaux of Harrowden, L.

Grimston of Westbury, L.

Wynford, L.

Hooper, B.

Ypres, E.

Resolved in the negative, and amendment disagreed to accordingly.
8.39 p.m.
Viscount Hanworth Viscount Hanworth moved Amendment No. 48:
Page 3, line 28, at end insert—
(" ( ) to promote the interests of the purchasers and other users of gas fittings';").
The noble Viscount said: This amendment is to give powers to the Secretary of State,
"to promote the interests of the purchasers and other users of gas fittings".
In 1980 the Monopolies and Mergers Commission published a report on gas appliances. They were concerned that the British Gas Corporation was almost a monopoly in this area. The Government first decided that the corporation should withdraw its retailing operations, but in the event the corporation made the necessary changes itself.
It seems incredible that the Government should not take the power to prevent this happening under privatisation, and should leave no deterrent or remedy except by a complete re-run of the earlier and relatively recent investigation by the commission. The noble Lord the Minister should surely say why, with a privatised industry, the situation which I have described is less likely to arise. Otherwise, surely, logically, he should agree the amendment. I beg to move. The consequential amendments are Nos. 64, 118, 120, 121, 122C, 129C, 134C and 135.
The Minister of State, Scottish Office (Lord Gray of Contin): Perhaps I could get clear with the noble Viscount, who has so succinctly moved Amendment No. 48, that he is also speaking to Amendment No. 48A and Amendment No. 52, which according to my list are grouped with No. 48.
Viscount Hanworth: I certainly was not moving Amendment No. 48A. That is a much more important amendment, and, if it were earlier in the day and we had not just had a Division, it is one that I would certainly have divided upon. This particular amendment is important, but it is nothing like as important as No. 48A.
Lord Gray of Contin: Might I ask the noble Viscount about Amendment No. 52?
Viscount Hanworth: I am not certain. I may not move that amendment.
Lord Gray of Contin: I find it very difficult, even after three years, to get used to the procedures in your Lordships' House and Committee. I understood that the groupings of amendments had been agreed by the usual channels. Perhaps that is not the case. While I am delighted that the noble Viscount has included a very substantial list of consequential amendments, when he announced that list it came as news to me. I had not realised that we were also including those amendments. But I am happy to have them dealt with in that way.
The noble Viscount has tabled his interesting amendment, which seeks to promote the interest of purchasers and users of gas fittings. I imagine that his main interest is in appliances for this purpose, and also to promote competition between fuel suppliers.
The noble Lord will be aware that steps were taken in another place to add a new clause, Clause 33, to the Bill to make it clear that the Gas Consumers Council would be able to investigate complaints relating to gas appliances. It is that body which properly acts as the advocate and promoter of gas consumer interests, and it is right that they should be able to investigate a full range of complaints. But a duty on the Secretary of State and the director would be meaningless. Neither has any functions under the Bill in the area of gas appliances. There is already considerable competition from other firms in the supply and installation of appliances, and normal competition law applies as in any other normal commercial activity. The appliance area of the market is already under the eye of the Director General of Fair Trading, and the normal MMC and OFT controls are perfectly adequate to ensure that the new utility and other suppliers compete on proper terms. There is therefore no reason to give the Secretary of State or Ofgas any functions or duties in this area.
As to the question of promoting competition between fuels, the noble Viscount indicated that he was taking that amendment separately, so I shall deal with that in due course when we reach it. In the meantime, perhaps what I have said will convince the noble Viscount that the amendment which he is
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proposing, Amendment No. 48, is unnecessary. Perhaps he will consider withdrawing it.
Lord Bruce of Donington: Before the noble Lord sits down, I wonder whether he could answer me this question. If he would turn to Clause 4(2)(c) he will see the words:
"to protect the public from dangers arising from the transmission or distribution of gas through pipes"—
and then come the important words—
"or from the use of gas supplied through pipes".
Will the noble Lord inform us whether he still wishes to say that, in those circumstances, within the existing terms of the Bill, the supply of gas has no concern at all with the appliances?
Lord Gray of Contin: I am not suggesting that the supply of gas has no concern at all with the appliances. What I was suggesting was that the terms of this amendment deal principally with appliances as opposed to the supply of gas, and that there are already ways in which this is taken care of. I think I did my best to spell those out for the benefit of the noble Viscount.
Lord Bruce of Donington: But how is gas used unless one sets fire to it when it comes out of the pipe? The word "use" is in the phrase "from the use of gas". It can only be used with an appliance. Surely the noble Lord must agree that, even under his own Bill, there is some concern for the gas supplier with the appliances. It is in his own Bill.
Lord Gray of Contin: I am afraid the noble Lord is getting a little away from the subject we are discussing. The noble Viscount's amendment clearly says:
"to promote the interests of the purchasers and other users of gas fittings".
The noble Lord is widening the argument very considerably by what he is saying. I have dealt with the point raised by the noble Viscount, and I have given him my answer. I suggested to the noble Viscount that perhaps he might be prepared to withdraw his amendment.
As far as the use of gas is concerned, the noble Lord refers to safety in the use of gas. The director has a legitimate interest in this but is not concerned with the regulation of the sale of appliances, which is the subject of this amendment.
Lord Bruce of Donington: The use of appliances.
Lord Gray of Contin: The sale of appliances, not use.
Lord Stoddart of Swindon: Let us take the amendment as it is printed:
"to promote the interests of the purchasers and other users of gas fittings".
I take it that what we mean by "gas fittings" is a whole range of commodities which would attach to the gas main and to the appliance itself. The great problem here is that gas is a highly dangerous, volatile substance, and it is absolutely essential that standards

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relating to fittings are of the best. I believe that that is what the noble Viscount, Lord Hanworth, is getting at: that, in fact, the purchasers of such fittings should be protected against the sale by unscrupulous merchants of inferior fittings.
I believe that that is a proper matter in which the Secretary of State and the director should interest themselves. After all, bad fittings can result in fires, and perhaps even in explosions. That is why it is essential that we have some protection for the consumer within the Bill. I think that that is altogether reasonable.
Viscount Hanworth: I am certainly willing to withdraw this amendment, but I am not wholly satisfied that the Minister has taken the points I was trying to make or that I have taken the points that he was trying to make. So, without any commitment, I would ask him whether, with his advisers, he will read what I said because it seems that things have gone wrong in the past and I do not see what provisions there are in the Bill to prevent them going wrong in the future. That is really the case; and so I would ask him to have another look at what I said and I shall certainly have another look at what he said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Hanworth Viscount Hanworth moved Amendment No. 48A:
Page 3, line 28, at end insert—
("( ) to maintain and promote effective and fair competition between persons engaged in commercial activities connected with the supply of fuel and power.").
The noble Viscount said: This is a much more important amendment and it goes right to the root of the problem of privatising gas. The intention is quite clear from the wording: it is to give the Secretary of State and the Director of Ofgas the power to promote effective and fair competition in the commercial activities between the four main suppliers of fuel and power. In effect, that is between coal, gas, oil and electricity. I would stress that these are only enabling powers. All governments usually like to have enabling powers, but apparently that is not so in this case.
In another place no real arguments were advanced against a similar amendment, and even less so, late at night, on Amendment No. 37 in this Chamber. In fact I then castigated the Minister's reply in rather strong terms for his failure to give any reasons against the amendment. The point is that in the past all governments have tried to keep the four fuels in some sort of balance because no one wants more sudden switches from, say, coal to oil or gas than can be avoided. Today we have a subsidy for coal because the CEGB is obliged to pay about twice as much for coal as it would for other sources. We also have a government levy of £1 billion (or is it £2 billion?) on gas. No doubt the Government will find ways in the future of continuing this; but this amendment is far narrower. What we face after the passage of this Bill are nationalised coal and electricity industries competing against a privatised gas industry. It would be possible for the new owners of the gas industry to
94
resort to dubious commercial tactics which could not be matched by their controlled nationalised competitors.
The sale of this would not arise. You have only to refer to the situation which occurred with gas appliances, which I mentioned in my previous amendment. But even more important is the distortion which can result from a misguided short-term pricing policy, as set out in paragraph 47 of the report of the Select Committee on Energy referring to the development and depletion of gas resources.
No doubt the Government's opposition to other amendments on these lines is simply that they do not want to frighten prospective buyers by inserting provisions in the Bill which are relatively undefined. But if the Government insist on privatisation, against the wishes of most people and without any mandate, they really must see that so far as possible it will work in the national interest and in the consumer's interest. Unless the Government can produce some powerful arguments against this amendment, I shall try to introduce it again at the Report stage. I am really sorry that on two occasions (Once in the other place and once the other night) no solid, reasonable argument was put forward by the Government. If they really are afraid that these sorts of provisions are going to make it more difficult to sell off the gas, I would say to them please have the guts to get up and say so. I beg to move.
Lord Gray of Contin: It is correct, of course, that we discussed this amendment with Amendment No. 37 the other night. Indeed, the noble Viscount at that time indicated it was not his intention to move Amendment No. 48A. As I recall, on 8th May at col. 918, he said:
"I have down an amendment, Amendment No. 48A, which is similar to this one. I propose not to move mine but to speak to this one".
However, the noble Viscount is of course perfectly entitled to change his mind. I know that this is a subject in which he has a great interest and of which he has considerable knowledge. Naturally I am only too happy to deal with the matter again now and I hope that I shall be able to persuade him on the third occasion.
Promoting competition between fuels is something which we believe already exists to a very great extent. We believe that the strong and effective competition which exists just now is likely to continue. The Government need no persuasion that in general the best protection for consumers is competition, where the efficient thrive and customers can choose the best fuel for their purposes in the light of the service they receive.
The Gas Bill is not the place to encourage competition between different fuels. Competition is achieved by the stimulus of market forces, and needs no bureaucratic intervention from government. We have of course given the Secretary of State and the director a duty, in Clause 4(2)(d), to enable competition to take place in the contract area of the gas market. I am not sure whether the noble Viscount intended to go beyond that in the amendment which

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we are now discussing, but we believe that a competition duty, of the kind which was accepted in another place, makes sense in the light of the opportunities for competition within gas supply introduced under the provision of the Oil and Gas (Enterprise) Act 1982 and carried forward in this Bill.
No such duty is necessary or appropriate to stimulate competition between fuels. Indeed, it would fall entirely out of the scope of this Bill, and I am sure that we have all read in the press about the negotiations which are taking place outside this building in order to try to ensure the efficiency of a different fuel altogether.
But, so far as this Bill is concerned, we are talking about the gas industry and about the efficiency of that industry. We believe that the competition duty now included in the Bill is the right one and that a duty in respect of purchasers and users of gas appliances, as I said a little earlier, would be inappropriate. The noble Viscount, I think, indicated that if I was unable to convince him on this occasion, he would return to this subject at Report stage, and of course he is absolutely entitled so to do. In the meantime, I would invite him to consider withdrawing this amendment.
Baroness Seear: How can the noble Lord the Minister say that market forces deal with competition between these industries when two of them are under government control on pricing? We know perfectly well that there have been occasions when, as a result of government requirements, prices have been both held down and put up in nationalised industries. Where are market forces in those circumstances?
9 p.m.
Lord Gray of Contin: With respect to the noble Baroness, one has only to consider forms of home central heating to find that there is very considerable competition between fuels. It is not uncommon to hear of a householder changing completely from one fuel to another because he feels that the second fuel might be more economical for his needs.
Baroness Seear: That may well be the case in particular circumstances, but the noble Lord the Minister has not answered my point. You cannot have genuine market forces at work between industries when the pricing of two of them is controlled by what the Government tell them to do. There are no market forces there. It may be the only way to do it and it may be a bad way to do it, but there are no market forces operating.
Lord Stoddart of Swindon: The noble Lord's reply really exposes this Bill for what it is. As my noble friend Lord Bruce of Donington said earlier, this a Bill about getting money to bribe the electorate, because there was no rationality about the replies he gave to the noble Viscount, Lord Hanworth, and the noble
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Baroness, Lady Seear. The noble Lord knows perfectly well that, in the matter of energy, market forces simply cannot be a substitute for an energy policy.
The noble Lord said that there was adequate competition between the fuels and he instanced central heating. But when somebody puts a central heating system into his home it is a heavy capital item. If I, for example, spend £1,500 putting a gas central heating system into my home, it is unlikely that the following year, because electricity prices are marginally lower, I am going to rip out the gas central heating system. After making a capital investment of £1,500, I am not likely to switch over and spend another £1,500 in installing electric storage heaters. The noble Lord knows that what he said is nonsensical and that, in that respect, competition simply cannot exist.
What the noble Viscount, Lord Hanworth, is trying to do is to ensure that there is a fair balance between all the fuel industries, particularly between gas, electricity and coal. He was quite right to suggest that there could be circumstances in which a privatised British Gas could use its monopoly power to gain an unfair share of the market through predatory pricing. It would be able to do that because it was free to operate within this market which the noble Lord talks about, but coal and electricity would not be able to operate within that same market in the same way. That is what the noble Viscount was getting at and it was a highly relevant contribution that he made.
I have said before, and I repeat it now, that the Bill is a nonsense and the Government's adherence to market forces in the pricing of fuels is also a nonsense. How on earth can we make proper decisions about our future energy needs and how those are to be met, unless we are prepared to take all the fuels together? For example, if gas—again using its monopoly power—decided on a predatory pricing policy which could undermine the electricity industry, that in turn would necessitate less coal being taken to burn in power stations and therefore coalmines which would otherwise be viable would be closed down, while others which ought to be open for the long-term good of the energy needs of this country would not be sunk. That is what it is all about and the noble Lord, Lord Gray, knows that.
The unfortunate thing about this Bill and the unfortunate thing about the noble Lord is that, because he has his brief and has to maintain his position in relation to that brief, he will not listen to or accept very reasonable amendments which are put forward from this side of the Committee. I urge the noble Lord to rethink his position and go back to his right honourable friend the Secretary of State and say, "We really are getting some decent arguments from the House of Lords. The House of Lords is getting its teeth into the Bill, so far as it is allowed to get its teeth into the Bill and so far as it is allowed time to get its teeth into the Bill, and it is exposing the weaknesses which were not exposed or which were overruled in the House of Commons". I urge the noble Lord to give better attention than he has done to the very reasonable amendment which has been moved by the noble Viscount, Lord Hanworth.
Lord Sandys: The suggestion was made by the noble Lord, Lord Stoddart, that this is a reasonable amendment. I suggest that this is a very unreasonable one, because we are looking at a world energy situation and three of the fuels concerned have a world energy content. Whether the generation of electricity depends on coal—and let us assume that a proportion of it does—coal is drawn from markets other than our own domestic market. It is drawn from Australia, Poland and many other countries in the world, and to suggest that we can be Little Englanders in this regard is to delude ourselves.
While I have every respect for what the noble Viscount, Lord Hanworth, has suggested, in that the proposition is that there should be some attempt to control the scope of pricing, it is right outside the terms of this Bill and my noble friend has said exactly that. Surely the noble Viscount knows, as we all do, that the pricing of petrol and other fuels depends very largely on the world market.
Viscount Hanworth: I am afraid that that is not quite what I said. What I said was that the Government had, for a long time, tried to keep a reasonable balance in prices between the four fuels. But I then went on to say that this amendment was concerned with a far narrower field and that was to keep fair competition between them. This amendment is concerned only with fair competition and not with fixing prices.
Lord Williams of Elvel: Perhaps I may just add a short word to what the noble Viscount has said. The amendment calls for the Secretary of State, who presumably is responsible across the range of these various fuels,
"to maintain and promote effective and fair competition".
Effective and fair competition means among other things that the advertising which is engaged in by the privatised British Gas Corporation or the coal board should be consistent with what is allowed by companies or organisations which, as the noble Baroness, Lady Seear, pointed out, may be under the control of the Secretary of State.
We saw two or three years ago the intense competition between two nationalised industries—the electricity industry and the gas industry—in advertising. Some of us would like to see that a proper balance is struck between a privatised gas operation advertising in a relatively unrestricted manner and public utilities such as coal and electricity, which I think the noble Lord will agree, and from what he said the other day, will remain in public ownership at least for the time being so that we do not have a total imbalance in exactly the market, as my noble friend Lord Stoddart said, which is the new market where capital investment comes and which will remain unprotected.
All the noble Viscount, Lord Hanworth, is saying is that the Secretary of State in the discharge of his functions should have regard to this and should maintain and make sure that nothing untoward occurs, particularly in the realm of marketing to first-time consumers—I think people are liable to change their minds. In his reply the noble Lord cast aside this aspect. I do not want to follow my noble
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friend Lord Stoddart in a general discussion on energy prices because I do not think that is a very fruitful line at the moment—we shall come to that—but I should like the noble Lord just to respond to the point of marketing by a private British Gas against a public coal board and a public electricity board. This is the point that the noble Baroness, Lady Seear, was making.
Lord Gray of Contin: I have already dealt in some detail with the amendment proposed by the noble Viscount. I respect his view but I am afraid that I disagree with him on this issue. He has said that he may wish to return to this at a later date.
There is a wide philsophical gap between the party opposite and the Government and there is no point in our trying to bridge that because we would not have it any other way. I would suggest that the party opposite is still wedded to an approach of state planning in energy industries—
Lord Williams of Elvel: Perhaps I may—
Lord Gray of Contin: The noble Lord is perhaps trying to dissociate himself from that suggestion—and I am very glad if he is—but the Government do not agree with that and it will always be best to allow market forces—
Lord Williams of Elvel: May I—
Lord Gray of Contin: I was going to deal with the noble Lord's noble friend first.
Lord Williams of Elvel: I do not dissociate myself at all from the views of my noble friends and, if I may say so, the noble Lord the Minister is being slightly mischievous in suggesting that I was doing so. I was trying to concentrate the Minister's mind on a particularly narrow point in order to help him with his thinking, which seems sometimes to be somewhat diffuse. I was concentrating his thinking on the point made by the noble Baroness, Lady Seear, and I was trying to focus that on advertising and marketing as between a public company—a plc—and a nationalised industry.
Lord Gray of Contin: I am sorry if the noble Lord thought that I was mischief-making. That certainly did not enter into my thinking. Nevertheless, I am glad that he has reaffirmed that he is one of them, which is good to know.
Perhaps I may return to the point which was made by the noble Lord, Lord Stoddart. The thinking of the party opposite is always governed by this overall desire to have a state planning system for energy, with everything cut and dry—this source of energy must not do this, and this source must not do that. That is completely alien to our beliefs. We believe that market forces in energy development are in the best interests of the consumer and that consumers should be left to choose for themselves the fuels that are best suited to their own needs. This is the right way to proceed and this is precisely what the Bill will do.
The noble Lord, Lord Williams of Elvel, quite rightly drew my attention to the fact that I had not

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dealt in detail with what the noble Baroness had said. We had an exchange across the Floor but I had not really answered her point. The noble Baroness has identified one of the main reasons why we are seeking to remove the British Gas Corporation from the artificial constraint of government, to enable it to compete unhindered and to expose it to the realistic effect of market forces—
Lord Williams of Elvel: Perhaps I may—
Lord Gray of Contin: I am sorry, the noble Lord must be patient. He may not agree with what I am saying, but I believe that this Bill will be for the benefit of British Gas in the long term and for the benefit of its consumers in the long term.
Baroness Seear: The noble Lord referred to artificial constraints under which British Gas, as a public sector industry, labours. In doing so he is admitting that coal, gas, and electricity are operating under artificial constraints and therefore cannot be in a market relationship to a privatised gas industry. That is what I am trying to say. I could not have put it better.
9.15 p.m.
Lord Gray of Contin: I do not think that it is quite what the noble Baroness was saying. The point I was making in arguing with the noble Baroness is that until now the British Gas Corporation has been very much subject to the views of Ministers, which it will not be once it is privatised. Indeed, that applies to any industry in which energy Ministers, Treasury Ministers, or any other Ministers, are involved. I feel that this is a good move. It is a move in the right direction to relieve the British Gas Corporation from the constraints of ministerial discipline and to let it operate entirely on its own.
The noble Lord, Lord Williams, made a point about marketing. There is no reason for there to be any conflict because one fuel industry is in the public sector and the other is in the private sector. This has been the situation for many years as regards oil and gas, or electricity for that matter. There has not been any difficulty so far as the advertising budgets of the public sector industries are concerned. Indeed, the public sector industries carried out very major advertising campaigns from time to time.
As regards the private sector, obviously oil is the main supplier—or has been until now—in the private sector and it has been able to take on the public sector and to compete very favourably with it. We believe that by removing the constraints of government from the British Gas Corporation the corporation will be able to do even better than it has. I am not suggesting that it has not done well.
Lord Stoddart of Swindon: The noble Lord still has not dealt with the point raised by the noble Baroness, Lady Seear. As I understand it, she wanted to know what will be the situation in relation to a coal industry and an electricity industry which are still under public constraint, and a gas industry freed from that constraint. In other words, one at any rate of the points
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which arises in my mind is what would happen if a privatised gas industry rapaciously exploited the North Sea reserves in order to make quick profits by selling gas at a cheap rate to undermine the other fuel industries?
The other point is this; and the Minister will have to deal with it. If he is in favour of a free market and if he is in favour of competition does that mean that the noble Lord intends to free the Central Electricity Generating Board from the necessity to buy British coal? In other words, is he going to say to the CEGB that it may now buy coal from anywhere in the world? If that is the case, what will happen to our own coal mining industry? How many further coal mines will be closed? How many more miners' jobs will be lost? What are the long-term implications? Those are the questions that the noble Lord must answer. He has not answered them. He is evading those questions. The noble Baroness, Lady Seear, is entitled to a straight answer to her question and I am entitled to an answer to my further questions arising from her question.
Lord Gray of Contin: Perhaps, but not under this amendment.
Viscount Hanworth: I know the noble Lord is doing his best, but his best is no better than it was on Amendment No. 48. He simply does not address himself to the points at issue—namely, fair competition and a reserve power for the Government, but not one that has to be used. We heard all that was said about using the power, but no one is suggesting that it is used like that. Why we should disagree on this matter still utterly defeats me.
The noble Lord goes on talking about market forces, which is nothing more than a red herring. As has been pointed out by almost every speaker tonight, and the noble Lord knows it perfectly well, the gas industry has a levy of £1 billion or more imposed upon it and the CEGB is forced to take coal at uneconomic prices. We are not talking about that; we are talking about fair competition. The noble Lord has said nothing this evening that in any way answers this amendment, which is concerned purely with fair competition and a reserve power.
I do not like bringing these matters back again and again but I think that the Minister ought to go away and produce some reasonable arguments because I cannot see what is between us. Therefore I fear that I shall probably raise this matter once again on Report in the hope that we may obtain some more reasonable reasons for opposing the amendment.
In the meantime, at this time of night—and it is highly unfortunate of course that it should be late, because, if this amendment had come up at the reasonable time of 4 p.m., then I think that, had I divided the Committee (which I had intended to do) we should without any doubt have won this amendment—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 49 to 51 not moved.]
Viscount Hanworth Viscount Hanworth moved Amendment No. 52:
Page 3, line 28, at end insert—
("( ) to promote effective competition between persons engaged in commercial activities connected with the supply or use of gas through pipes.")
The noble Viscount said: This is another amendment which I think would be useful in the Bill. I shall not put it higher than that. I hope that perhaps the noble Lord will take a better view of this amendment than he has of some of the other general amendments that were meant to improve the Bill. I beg to move.
Lord Gray of Contin: The noble Viscount certainly did not give us very much to go on about this amendment, and I think he is probably as short of notes on it as I am. As I explained a little earlier, in the list which I was given the amendment was grouped with Amendments Nos. 48 and 48A, and I therefore think that during the discussion on those two amendments we pretty well covered what I imagine the noble Viscount had in mind in tabling Amendment No. 52. So rather than weary the Committee by going over the arguments again, I think that perhaps the noble Viscount may be prepared to withdraw the amendment.
Viscount Hanworth: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Hanworth Viscount Hanworth moved Amendment No. 52A:
Page 3, line 28, at end insert—
("(3) The functions assigned to the Director referred to in subsection (1) above include in particular those described in sections 7(7)(a), 8, 11(4), 19 to 22, 23, 24, 26, 29, 31, 32(3), 34(1), 34(2), 34(4), 35(1), 36, 37, 38, 39(1), 39(2), 39(4), and in Schedules 1(4), 3(3), 4(2)(2), 4(4)(2) and 5(3)(3), together with those described in sections 7(2), 8(1) and 16 and in Schedule 3(1).")
The noble Viscount said: This amendment covers the idea of putting down clearly all those sections in the Bill which concern the director, so that without reading through the whole Bill his staff and others can see quite clearly what are their duties. It is an unusual thing to do but I think it has some merits, and I therefore beg to move.
Lord Williams of Elvel: The noble Lord, Lord Belstead, when he was replying to an amendment concerning the functions of the director, referred the Committee to Notes on Clauses and particularly to Annex A in the notes on Clause 1, spelling out the duties of the director. Some Members of the Committee on this side were not entirely happy that the duties of the director should be relegated to an annex in Notes on Clauses, which so far as we can see has no particular legal validity. Therefore, the thought (which I think is a proper and sensible thought) emerged that the noble Lord might consider putting the duties of the director fairly and squarely in the Bill rather than relegating them to an annex in Notes on Clauses. I think we should support this amendment.
Lord Gray of Contin: I cannot accept this amendment. I do not believe that it would be right to accept it for several reasons, and I shall try to explain to the Committee why I cannot do so.
The first is because I believe that including a list of functions in Clause 4, as the amendment seeks to do, would not be helpful to the layman, since there are functions on the director relating to other clauses in the Bill which are not listed but which are also important. For example, the principal duties to supply on a public gas supplier under Clauses 9 and 10 are to be monitored and enforced by the director. If the noble Viscount's amendment was included in the Bill, a customer who considered that a public gas supplier had breached one of these duties might be misled into thinking that the director had no role in the matter, since Clauses 9 and 10 are not included in the list of functions. I believe that it is far better for the Bill to stand as it is, and for the functions to speak for themselves.
I also have a second reason why I cannot accept the amendment. This is because it is totally unnecessary. The Bill already sets out quite clearly what the director's functions are. Clause 4 lists duties which the director must use as guidelines when exercising his functions. There can be no doubt as to what those functions are. In addition, it is important to note that the duties set out in Clause 4 guide the Secretary of State as well as the director. It would again risk misleading the layman if one was only to give a list of clauses which referred to the director's functions and failed to give those of the Secretary of State.
I recognise that noble Lords have raised an important point by tabling this amendment and that we should indeed try to set out our legislation in the most helpful way possible for the general public. However, for the reasons that I have stated, I do not think this would be achieved by the amendment, and I hope that the noble Viscount will be prepared to withdraw it.
Viscount Hanworth: I can only say that I wish that the noble Lord had given the same attention to my amendment, Amendment No. 48A, as he has given to this one, which is of little consequence. I am impressed by what he said, and I shall, with pleasure, withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Lord Taylor of Gryfe Lord Taylor of Gryfe moved Amendment No. 53:
After Clause 4, insert the following new clause:
("Regional development.
. To achieve the fullest contribution to regional development—

(a) the regional management responsibilities of the Corporation prior to vesting day shall be at least sustained by the successor company and this requirement shall appear in the Memorandum of Association for that company; and

(b) the board of directors of the successor company shall include at least one non-executive director with special responsibility for Scotland, and similarly for each of the distribution regions of England and Wales.")

The noble Lord said: This amendment ought to appeal to the Minister since it concerns regional

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development, with specific reference to Scotland. As will be seen from the three names printed above the amendment, they represent Members of this House who have a deep concern for Scotland and its economic welfare. I am sure that the Minister will understand the anxieties which exist and which were reflected recently in the municipal and local government elections in Scotland, in which there was a complete rejection of the Conservative Government.
That is not because of weaknesses perhaps in the rating system or the health system exclusively, but it reflects a feeling in Scotland that too much is being centralised in London to the disadvantage of regional development in that part of the country. That is true of other parts of the United Kingdom too. That is accentuated not only by the creation of the new privatised, centralised industries. The recent mergers and takeovers in the City tend to centralise economic power and decision-making in London. For that reason, I was encouraged by the Scottish Council (Development and Industry), which is an organisation not unfamiliar to the Minister, to put down this amendment.
9.30 p.m.
The Scottish Council (Development and Industry) is representative of local authorities, banks, industry, the universities and all parts of the commercial and social life of Scotland. In its submission on this amendment it has said that it is not arguing the question of private or public ownership of the gas industry; it is concerned about the tendency to centralise the organisation which may follow the passing of the Bill. It acknowledges that in the House of Lords on Second Reading the noble Lord, Lord Gray, as Government spokesman, gave an assurance that no dilution of existing management automony is intended under the structure post-privatisation, but the council goes on to argue that those assurances are worthwhile in the short run but are not binding on successor governments or, even more importantly, are not binding on successive managements of British Gas plc.
The council points out that in the Airports Bill which is currently before the House there is a specific assurance with regard to the retention of local authority interest in the management structure of BAA. The council argues that it expects that the structure to be proposed will be similarly copied by gas and that we are in great danger of creating a centralised, monolithic management structure if the Bill goes through without any of the suggested commitments.
Scotland is a rather special place, as the noble Lord the Minister well knows. It has only 10 per cent. of the population of this country, but it has 30 per cent. of the country's land mass. It has special problems in the distribution of gas, telecommunications and so on that should be understood, but are not always understood south of the Border.
We do not suggest that any special arrangements should be made for Scotland, but that other regions should be catered for. I had experience for some years as the member of a nationalised industry board. My
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experience in a centralised organisation suggests that it is easy to be superficial about the problems of the regions if all one's might, social and commercial life are centralised in London. I suggest to the noble Lord the Minister that a gesture towards a commitment to regional policy should be acceptable.
During the past year Scotland's regional development grant was cut by 50 per cent. and it is for that reason that there is great resentment, a growth of Scottish nationalism, and a rejection of the Government which indicate a deep unease in Scotland. I suggest to the noble Lord the Minister that that may be to some extent alleviated if the amendment is accepted. I beg to move.
Lord Sanderson of Bowden: I, too, have a great interest in what happens north of the Border, and I have great sympathy with a great deal of what the noble Lord, Lord Taylor of Gryfe, said. I have had a close look at the amendment and under paragraph (a) I agree that,
"the regional management responsibilities of the Corporation prior to vesting day shall be at least sustained by the successor company".
It is important that the noble Lord the Minister should give us an assurance as to that fact.
I take issue with the noble Lord, Lord Taylor of Gryfe, with regard to paragraph (b). The British Gas Corporation, as it is structured, has a board which, I understand from looking at the report and accounts, has six full-time directors plus a chairman and five part-time directors. The noble Lord, Lord Taylor, with his great experience, will realise that this size of board is manageable in any public company. But underneath that, immediately below the board, there are at present regional chairmen. I should like to know from the noble Lord the Minister what is the intention for the future in respect of those regional chairmen. They form, obviously, an important and necessary link between the regions and the central body. It would not be easy but, I suppose, not impossible to have a board of directors that contained 12 non-executive directors each coming from a different region. While fully accepting the important position that Scotland holds and the special problems that is has—I hope that there will be a Scotsman appointed upon merit to the board of the new privatised British Gas—one has to look carefully at the structure of the intended board before going down the road proposed in paragraph (b) of this amendment, although I have a lot of sympathy with paragraph (a).
Lord Gray of Contin: It is useful, I believe, to have a discussion of this sort. I am grateful to the noble Lords who tabled the amendment for giving us the opportunity. I should like to reassure noble Lords that British Gas has no plans to change its regional structure. I can give my noble friend Lord Sanderson the assurance he seeks regarding regional chairmen.
British Gas has, over the years, made considerable investments in extending its facilities around the country in order to provide a supply of gas and associated services as widely as possible. It has created an integrated network which is constantly growing,

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and has involved itself in extensive research in order to maximise the service provided to customers. Indeed it has sought to make the most efficient use of gas and to reduce costs. We all applaud BGC for these efforts.
It is because of the successful, integrated nature of BGC that we are privatising it as a whole, and are carrying over the general and the specific duties to supply. The directors of BGC must carry on these duties irrespective of the area involved, and there is certainly no reason to suppose that, following privatisation, BGC will seek to meet these duties to supply in a way which would demand a different regional structure from that adopted at present. It will, in any event, be for the new BGC plc to decide for itself whether the assets employed by a particular part of the country are ideal for providing an efficient and effective service.
It is our ambition that British Gas should be exposed to normal commercial disciplines in a much more real way than through the central control of Whitehall. This is probably in keeping with what the noble Lord, Lord Taylor, has in mind. Imposing a requirement on the newly privatised company to include in the Memorandum of Association an obligation to maintain the level of regional management responsibility in the way proposed by this new clause would run totally contrary to this ambition and would be an unacceptable and unnecessary fettering of BGC plc's ability to meet its obligations as it sees fit. Moreover, such an amendment would actually prevent BGC plc from reorganising a particular aspect of its regional activities in order to provide a more cost-effective and efficient service to its customers.
Noble Lords have also proposed that the board of directors should include at least one non-executive director to have special responsibility for each of the 12 existing marketing regions. This would be an extremely cumbersome, and, in my view, unnecessary requirement. BGC at present handles its business in Scotland and Wales most sensitively, and I fail to see how this would be improved by the amendment. As a Scot myself, I can confirm the experience of my right honourable friend the Minister of State for Energy that there is absolutely no difficulty in getting matters resolved on a local basis in Scotland. Indeed, anyone who has been in the other place and has had frequently to raise constituency issues on this matter would, I am quite sure, confirm that that is the case.
The way in which British Gas have organised their administration means that consumers in Scotland enjoy benefits of scale as well as recognition of a well-devolved administration. I am perfectly confident that they will continue to enjoy these benefits. Indeed, it is in the best interests of BGC plc that they should. Within the framework of duties and privileges of BGC in this Bill it is vital that the company should be allowed to organise its operations in the way it sees fit. Noble Lords are leading us in the direction of regional differentiations of rigid decentralisation, with all the inefficiencies and losses of economies of scale that that might entail and of a regime of inflexible controls.
I believe that we have struck just about the right balance in the Bill with regard to this. I can assure
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noble Lords that it is certainly our intention that the consumers in Scotland—and Wales, too, although this amendment specifically relates to Scotland—will have the same privileges and opportunities as far as their relationship with the new BGC plc is concerned as they have at present. In view of what I have said, I hope that the noble Lord will be prepared to withdraw his amendment.
Baroness Macleod of Borve: Before the noble Lord sits down, I wonder whether he could confirm that at present BGC is divided—not at board level perhaps, but under board level—into twelve regions. If he agrees with that, can he tell noble Lords whether he would hope that after privatisation those twelve regions would still exist?
Lord Gray of Contin: This will have to be a matter for the new BGC plc, but the present arrangements are working very well and I can see no reason why they would wish to change them. Certainly what they would not wish to do, I am quite sure, is to engage upon a process of centralisation such as the noble Lord, Lord Taylor, suggested, because that would not be in the best interests of the new privatised corporation. However, ultimately that decision must be for the new corporation.
Lord Mackie of Benshie: It is interesting that the noble Lord said that it is an opportunity for discussion. What he has done is to reject the suggestion wholly and completely. To say that the new board must decide for itself, and that he has no doubt it will be sensible, is to go against all the experience we have had of centralised boards so far if there is no statutory obligation on them to cater for the regions. They can of course put up some form of front and centralise even more behind that. But I think that the noble Lord has treated this in a rather cavalier way. He has said that it is up to the new privatised boards to decide for themselves what they will do.
It is scandalous that regional matters—national in the case of Scotland—should be totally ignored in this way, and that the Minister should say that they will decide and that no doubt they will be sensible. It is quite extraordinary that the noble Lord should ignore a body, the Scottish Council, which has done such sterling work for Scotland, and should simply say that he is certain that the privatised board will be sensible. I do not think that this is a proper answer. I very much doubt whether it will be sensible. It is a monopoly.
Lord Gray of Contin: I shall go a little further, if that is what the noble Lord seeks me to do. I shall tell him that British Gas Corporation has told us that it is its intention to keep the 12 regions. However, ultimately at the end of the day, obviously, when a company is being privatised, it must be for the new BGC plc to shoulder that responsibility. But certainly it is its intention to have the 12 regions, exactly as my noble friend Lady Macleod asked me. However, I think it a mistake to write this into legisaltion.
9.45 p.m.
Lord Gallacher: I have listened carefully to the Minister's statement, particularly his opening statement, and I shall certainly read it in detail when it appears in Hansard. But it seemed to me, listening to that statement, that the Minister, while giving an indication that British Gas when it becomes a public limited company will maintain a regional structure such as that which has now, is reserving his options in the matter. He used a phrase about altering the regional structure if such alterations were warranted in order to make the best possible use of assets. That would not be unreasonable for a public limited company to want to do, and I think it is the fact that it may want to do that which is probably giving concern to the Scottish contingent in the Committee this evening and which certainly worries us here so far as the other regions of British Gas are concerned. It ties in, of course, with the fairly adamant refusal of the Government when we asked for regional consumer councils to be preserved, though there the sole authority for rejection was apparently some of the evidence given by the chairman designate of the National Consumer Council to a Select Committee in another place. I think that what is being asked for here is not unreasonable and that given the size and the spread of the business after privatisation some form of regional involvement should be written into the memorandum of association. I think that those who have drafted this amendment have been modest in asking for only a non-executive director; so in that sense he will not carry a great deal of clout so far as the board is concerned. Nevertheless, his regional background and regional experience will be invaluable to the board and I think the Minister might give us a slightly better assurance than he has hitherto so far as Amendment No. 53 is concerned.
Baroness Seear: I think one must challenge the remark of the noble Lord the Minister that once British Gas is privatised you just leave the matter to the good sense of the privatised company. This is a great national asset which is being sold. It is of great importance to the industry and to the private consumer, and surely we are entitled to write certain conditions into the deal being done between the now public industry and the privatised industry. It is not good enough to say that once it is privatised we must leave it to them to decide. That would be fair enough if it was a new company which had been started by private enterprise and was developing from the grass roots, but it is not. This is a great company which has been built up with public money for public purposes. We are now making this big change and we are absolutely entitled to put in conditions as Parliament sees fit. We should not say that it is just like any other private company and it can do what it damn well likes.
Lord Gray of Contin: I have listened carefully to what the noble Lord and noble Baroness have said since I gave my original wind-up to this discussion; but I have said that there is no intention to change the present structure. The centralised management of British Gas has been in place since 1972 and during the last 14 years there has been none of the centralising tendencies which noble Lords have feared and which have been mentioned tonight. I see no reason why
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there should be any now. I am afraid I cannot accept that it would be an advantage and that it would be desirable to write into the Bill the sort of proposals which the noble Lord, Lord Taylor of Gryfe, has suggested.
Lord Stoddart of Swindon: Why not?
Lord Gray of Contin: The noble Lord asks, why not? I know that it is within his philosophy to tie everything up in such a way that it would be strangled before it ever got off the ground; that is Labour philosophy. That is how they work, and I am not likely to be persuaded by any of his suggestions so far as this is concerned. I am listening to the noble Lord, Lord Taylor of Gryfe, who has seen the folly of his ways and has moved elsewhere from the rigid Clause 4 attitude of the party opposite. Mind you, I do not know whether he is very much better off where he is, but at least he thinks he is better off for the time being.
Baroness Seear: I do not share that folly, but I do share that point of view.
Lord Gray of Contin: The noble Baroness has a happy knack of making just the right remark at the right time, and of course I accept what she tells the Committee.
I am afraid that I cannot go further than I have already, and I do not think that this amendment would improve the legislation in any way. If the noble Lord insists on pressing it, I shall ask my noble friends to resist it.
Lord Taylor of Gryfe: I am afraid that the Minister has not given the necessary assurances committing the future board of British Gas, which is what we are talking about. He has paid tribute to the efficiency of British Gas in the past, and to the fact that it has been concerned with decentralisation in its management structure. The noble Lord has also said that in another place, of which he was a Member for a number of years, it was easy to raise questions in connection with British Gas and that he obtained responses from Ministers in connection with British Gas. All that is past.
Lord Gray of Contin: If the noble Lord will give way, I did not mean from Ministers; I meant that as a constituency Member of Parliament it was very easy to raise regional matters within the region, and they were always resolved there.
Lord Taylor of Gryfe: That just proves the point. That was why British Gas was a nationalised body with some public responsibility. We are now talking about the creation of a private limited company which will produce a prospectus which will indicate that, if you buy shares in the company, the profits to be reaped will be handsome in terms of dividend. In that prospectus there is no public commitment nor any social responsibility. The company has a responsibility only to service the shareholders, which is a totally different environment from the environment in which British Gas now operates.

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In connection with this amendment, I do not propose to discuss the basic philosophical question that divides the Committee on nationalisation or privatisation. We are concerned about a commitment to regional policy in the future administration and management structure of this business. As I said earlier, the Airports Bill, which is currently before the House, specifically requires that a management structure will be presented for Government approval before the vesting date. We are now looking at the management structure of this new organisation and, when we are transforming a public monopoly into a private monopoly, we are entitled to write into the articles of association some protection in this regard.
Consequently, I must tell the Minister that I think we should divide the Committee. This is a matter which we shall discuss with the Scottish Council to see what further pressure can be brought to bear at the Report stage. I propose to raise the matter with the Scottish Peers' Association, which did excellent work on the Housing (Scotland) Bill, which I have no doubt the Minister will recall, to see how far we can press this. In the meantime, I move the amendment and suggest that the Committee should divide.
9.54 p.m.
On Question, Whether the said amendment (No. 53) shall be agreed to?
Their Lordships divided: Contents, 22; Not-Contents, 49.

DIVISION NO. 3

CONTENTS

Blease, L.

Raglan, L.

Bruce of Donington, L.

Seear, B.

Crawshaw of Aintree, L.

Silkin of Dulwich, L.

Dean of Beswick, L.

Stoddart of Swindon, L.

Gallacher, L.

Taylor of Gryfe, L.

Hanworth, V.

Tordoff, L.

Hatch of Lusby, L.

Whaddon, L.

Kilmarnock, L.

White, B.

Mackie of Benshie, L. [Teller.]

Williams of Elvel, L.

McNair, L.

Winstanley, L.

Pitt of Hampstead, L.

Ponsonby of Shulbrede, L. [Teller.]

NOT-CONTENTS

Ailesbury, M.

Grimston of Westbury, L.

Beaverbrook, L.

Hooper, B.

Belstead, L.

Inglewood, L.

Blake, L.

Kimball, L.

Brabazon of Tara, L.

Long, V. [Teller.]

Brougham and Vaux, L.

Lucas of Chilworth, L.

Bruce-Gardyne, L.

Lyell, L.

Butterworth, L.

Margudale, L.

Caithness, E.

Marshall of Leeds, L.

Cameron of Lochbroom, L.

Mersey, V.

Campbell of Croy, L.

Munster, E.

Cathcart, E.

Murton of Lindisfarne, L.

Cox, B.

Pender, L.

Craigmyle, L.

Rankeillour L.

Cullen of Ashbourne, L.

Rodney, L.

Davidson, V.

St. Aldwyn, E.

Elliot of Harwood, B.

Sanderson of Bowden, L.

Elliott of Morpeth, L.

Sandys, L.

Elton, L.

Skelmersdale, L.

Erroll of Hale, L.

Swinton, E. [Teller.]

Faithfull, B.

Torrington, V.

Fortescue, E.

Trumpington, B.

Gibson-Watt, L.

Vaux of Harrowden, L.

Glenarthur, L.

Wynford, L.

Gray of Contin, L.

Resolved in the negative, and amendment disagreed to accordingly.
10 p.m.
Clause 5 agreed to.
Clause 6 [Exception to section 5]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 54:
Page 4, line 7, leave out ("either")
The noble Lord said: In rising to move this amendment, it may be convenient also to speak to Amendment No. 55. The purpose of these two amendments is to ensure that the supplier of gas under the clause which we are now considering should have the financial stability required to perform his task. The Bill as at present drafted requires the Secretary of State, if he objects to the proposal from the gas supplier, to notify either that he is of the opinion that the rate of supply would be unlikely to exceed the required rate or that he is unable to form an opinion.
We should like to suggest to the noble Lord the Minister that he adds to paragraphs (a) and (b) the text of Amendment No. 55, the thrust of which is that the proposed supplier of gas should have the requisite financial stability to continue the supply of gas when he has received authorisation (if he does so), and that because of financial instability for whatever cause such a supply of gas is not interrupted.
The amendment really has two points to it. The first is the direct point which is the supplier himself—that he should have the financial means to continue his supply in an adequate manner. The second is a slightly more complex point. The supplier of gas, in circumstances which we cannot at present envisage but which it is possible to envisage, may be part of a group; and other companies in the group of which the supplier is one may fall into financial problems and the supplier himself may be dragged down by the performance of other people in the group. In other words, if you look at the holding company arrangement (if you like) which has a number of subsidiaries, one of which is the gas supplier, if the other subsidiaries go down financially, then the gas supplier himself would go down.
As we interpret it, Clause 6 requires the Secretary of State to look specifically at the gas supplier and not range wider than the supplier himself to look at the group of which the supplier may be a member. I think it is very important that we have a response from the noble Lord the Minister on this point. We should like to see this amendment in; but, if it is not acceptable to the Minister, we should like to have assurances that the Secretary of State will look wider than at the firm itself, the corporate entity itself, which is the proposed gas supplier, and will look at the group of which it may be a member. I beg to move.
Lord Gray of Contin: I recognise that in general the noble Lords are opposed to the introduction of competition into the gas supply business and that their view of the notification provisions introduced under the—
Lord Stoddart of Swindon: Really—
Lord Gray of Contin: No, I shall not give way: I have only just started. I shall give way in a moment. I have just started my remarks. As I was saying, their view of the notification provisions introduced under the Oil and Gas (Enterprise) Act 1982 has not changed.
Clause 6 permits a potential supplier to notify the Secretary of State that he proposes to supply premises with more than 2 million therms a year, without the need for an authorisation and without committing an offence under Clause 5. The exception from authorisation only applies where the Secretary of State is satisfied that the supply is likely to exceed 2 million therms a year, the "required rate". The clause carries foward the provisions of Section 29A of the Gas Act 1972, as introduced by Section 12 of the Oil and Gas (Enterprise) Act 1982.
The rationale behind the provision is that supplies above 2 million therms a year will only be undertaken by companies of substance with considerable experience is handling dangerous substances. Thus not only will they be capable of ensuring that safety arrangements are adequate but will also be of sufficient weight to meet their contractual supply of obligations—I think that is the point the noble Lord, Lord Williams of Elvel, has in mind, if I can have his attention just for a moment—without the application of a test of the kind proposed in the amendment.
The duty on the Secretary of State and the director at Clause 4(1)(b) is similar to the amendment proposed. Clearly, however, the Secretary of State or the director have to take into account a number of considerations in deciding whether to grant an authorisation under Clause 7 or Clause 8; a test as to continuing financial viability is relevant not only in ensuring continuity of supply but also as a guide to the director in exercising his functions under the Bill, not least the operation of price contol in relation to Clause 7 authorisations. No such considerations arise in respect of notified supplies under Clause 6. There have been a number of notifications of supplies of over 2 million therms under the provisions of the Oil and Gas (Enterprise) Act 1982. We believe that the notification provisions serve a useful purpose in promoting competition and that it is right to carry them forward unchanged to Clause 6 of the Bill. Therefore, for those reasons I think that the amendment proposed by the noble Lord, Lord Williams, is unnecessary, and perhaps he would consider withdrawing it.
Lord Williams of Elvel: I am grateful to the noble Lord the Minister for his reply. I wonder whether I could ask him to reply to the second point that I made in speaking to this amendment. I understand that notifications are made and that the Secretary of State has to process them: that is quite proper. I also understand that the Secretary of State has to take all sorts of factors into account. The point that I am really stressing is that notifications may be made by companies which form part of a group. For all sorts of reasons, nothing to do with the company which is making the notification, other parts of the group may get into financial problems and drag with them the notifier. This is the problem—I am afraid I may have put it badly at the time I moved the amendment—that I am trying to get at. The Secretary of State should take into account in considering notifications the financial
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strength of the whole of the group of which the gas supplier forms a part.
Lord Gray of Contin: Yes, that is a very good point; but I think that, on reflection, the noble Lord will agree that it is covered by what I said under Clause 4(1)(b). That is very similar to the amendment which is proposed. The Secretary of State or the director have to take into account a number of considerations in deciding whether to grant an authorisation under Clause 7 or 8. The important part of my answer was that a test as to the continuing financial viability is relevant not only in ensuring continuity of supply but also as a guide to the director in exercising his functions under the Bill. Whether or not a company is of such merit as to justify the confidence of the director in his belief that that company is of continuing financial viability is relevant. So the fact that the company might be part of a group would presumably be taken into account by the director, so far as his consideration of the merit of that company is concerned.
Lord Bruce of Donington: I wonder whether the noble Lord will again take this point on board. He will recall that Clause 5 of the Bill deals with the prohibition of unauthorised supply, and that Clause 6 deals with exceptions to Clause 5. Therefore, it specifically deals with Clause 5, and it stipulates that the supply has to be in excess of 2 million therms a year. I am not at all sure—and I should be glad if the noble Lord would confirm this—that Clause 4(1)(b) overrides Clause 6 in this respect. But even if it does—and this is something that we may have to consider on Report—the point made by my noble friend Lord Williams of Elvel still applies.
We live in a mad world, at the moment, of merger after merger and take-over after take-over, almost to a point where it has now become obscene and is a matter of some grave disquiet in the City itself. All kinds of individuals take over without due regard being paid to their financial resources. The practice of take-overs these days is sometimes to take over on borrowed money which is afterwards recovered from the company taken over by virtue of a whole series of asset strippings. I trust that the noble Lord does not live in a sheltered world and that he knows these things happen.
I do not mind whether it is under Clause 4(1)(b) or Clause 6(1)(c), which would incorporate the amendment put forward by my noble friend, but just how do the Government propose to deal with this kind of situation, which is certainly not a figment of the imagination? It is easily perceptible within the gigantic casino transactions that are taking place week by week. Your Lordships will remember Al Fayed taking over Harrods, of which I warn the noble Lord we shall be hearing a little more later on.
What do the Government propose to do? Where there is a series of mergers and take-overs and one of the firms taken over is a supplier with the full authorisation under Clause 6, just what does happen? Let us say that slipping through the net of the glorious casino some corporation which may be able to bluff the Stock Exchange and the City that it has funds—not that they inquire over much, anyway—acquires a gas

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supplier. It decides that it has to pay off the debts by virtue of which it was able to make the acquisition, and it then decides that it will strip this off anyway—it is no longer interested in it. It may well be that there is a cessation of supply and a financial inability to continue supply. What is the noble Lord going to do about it?
10.15 p.m.
It is all very well referring to the predetermined answer to the question and to the predetermined response to the amendment. Let the noble Lord exercise his independent commonsense. What is going to happen? This is the question that my noble friend Lord Williams of Elvel asked and to which he does not have an answer. Why does not the noble Lord answer it?
Lord Gray of Contin: If the noble Lord, Lord Bruce of Donington, would listen, he would hear answers, but he frequently closes his ears to anything which he does not particularly want to hear. I have answered the noble Lord, Lord Williams, in detail already. Perhaps when the noble Lord reads the record he will find out that I did.
The noble Lord included in his comments a number of matters which were irrelevant to this amendment. He is totally obsessed with take-overs in the City. We get lectures about them almost every day we meet. Of course we are grateful to the noble Lord for giving us the benefit of his great experience as a chartered accountant, but there are many highly successful take-overs—
Lord Bruce of Donington: Hear, hear!
Lord Gray of Contin: —and it is wrong of the noble Lord to suggest that every take-over is of dubious merit because that is not the case. I am sure that the noble Lord advises people from time to time about the merit of a take-over. I am sure that his advice is always good and is taken. I do not always take what he says about take-overs as being gospel.
The noble Lord said that I did not fully answer the noble Lord, Lord Williams, and so I shall revert to what the noble Lord, Lord Williams, asked me and try to make the answer a little more clear. In considering notifications the Secretary of State needs to judge only whether or not the supply is above or below 2 million therms per year. He will not need to consult the duties under Clause 4 in coming to such an objective conclusion. If a company can get through the 2 million-therms-a-year test, it will get authority to supply under Clause 6. But the commercial arrangements are a matter for the parties, which will have to form their own judgment in due course on the merits of a particular deal.
The noble Lord, Lord Bruce, when he asked me how the director would deal with these matters did not raise any new point with which I had not dealt in my previous summing up. I explained that in each case it will be a matter for the director and his staff to determine whether the company in question is of continuing standing. The fact that that company might belong to a group will be, as I explained to the noble Lord, Lord Williams of Elvel, a little earlier, for
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the director to determine; it will be for him to make his own investigations.
Lord Bruce of Donington: The noble Lord is short-circuiting once again. He says "the director". Clause 4 lays the duty on the Secretary of State and the director; it is not only the director.
Lord Gray of Contin: I am not the one who is short-circuiting; it is the noble Lord. This amendment deals with Clause 6. We have moved on from Clause 4 and I referred to Clause 4 only because there is a relationship between them.
Lord Williams of Elvel: Can the noble Lord help me on one point? In his response he said that in considering those who had notified, were in a position to notify, would or might become gas suppliers or are gas suppliers under this clause, the Secretary of State would presumably—I think he used the word "presumably"—consider the other companies of a group of which such a gas supplier might or might not be a member. If the noble Lord can remove the word "presumably" and give us the assurance that the Secretary of State "would" consider the circumstances of other members of a group, that would meet our point.
Lord Gray of Contin: This would be the Secretary of State and the director, and they will use their own means, as they see fit, to examine and explore the financial status of a company. However, I am not going to give the noble Lord that assurance in the middle of an exchange across the Floor during the Committee stage of a Bill. I am too long in the tooth for that.
Lord Stoddart of Swindon: Oh!
Lord Gray of Contin: Yes, "presumably" is a term of speech in some matters. The Secretary of State and the director would examine the situation in the case of a group and I used the term as explanation that presumably they would investigate thoroughly. The director particularly will be very interested. But I am not going to give any assurances without consideration—certainly not.
Lord Williams of Elvel: I fail to see the problem that the noble Lord the Minister has in giving us an assurance that the Secretary of State and the director would look at other companies in a group when assessing the status of a gas supplier; but if he refuses to do so we shall consider the matter and if we feel strongly about it will come back on Report. I am bound to say that what we are asking the Minister to give way on is not very significant but in view of what he said I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 55, 56 and 57 not moved.]
Lord Stoddart of Swindon Lord Stoddart of Swindon moved Amendment No. 58:
Page 4, line 31 leave out from ("receiving") to ("the") in line 33 and insert ("a notification from a gas supplier under subsection (1) above and before making a direction or notification under subsections (1) or (2) above").
The noble Lord said: This amendment stands in the name of myself and my noble friend Lord Gallacher. To some degree this is a probing amendment and I can deal with it briefly.
The amendment seeks to write an element of consultation into the process of non-authorised gas supply. As the clause stands, the Secretary of State is in the position of informing the director and the other interested bodies of a decision made. The amendment seeks to clarify that he must inform the bodies before making a direction or notification, thereby giving them the opportunity to comment.
It seems absurd that all the Secretary of State need do is inform the director, the Health and Safety Executive and,
"any public gas supplier whose authorised area includes the premises or any part of the premises to which the gas supplier's notification relates",
that he is doing something after he has done it. It seems reasonable to me that he should inform them that he is about to do it so that if they wish they can make some comment.
It may be that I have the whole thing wrong. That is why I say that this amendment is in the nature of a probing amendment. Therefore I shall sit down and listen to what the noble Lord, Lord Gray, has to tell me about it. I beg to move.
Lord Gray of Contin: I shall try to explain the position to the noble Lord as best I can. The Bill makes no specific provision for consultation on the question of whether or not to accept a notification or to invalidate a notification because the required rate has not been achieved, but it is open to the Secretary of State to consult the director where he thinks it will be helpful to him to have the director's view on any matter arising under the clause.
As to the role of the Health and Safety Executive, as we have already made clear, the assumption is that where supplies of over 2 million therms a year are concerned the customers are likely to be major companies with their own comprehensive safety arrangements, with the premises subject to inspection under the Health and Safety at Work Act. Such supplies automatically attract the requirements of gas safety legislation. There is no requirement for formal consultation with the Health and Safety Executive under Clause 6 since there are no matters under that clause on which their views would be relevant to a decision of the Secretary of State.
The general purpose of the provision is to promote competition. While it is right that a public gas supplier should be notified of a proposed supply within his authorised area, it would not be right to go beyond this. The noble Lord's amendment would make the provisions of Clause 6 more restrictive. The noble Lord indicated that this amendment was in the nature of a probing amendment, and I shall go a little further and tell him that this would be completely at odds with
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the Government's objectives and the (competition) duty on the Secretary of State and the director at Clause 4(2)(d). So in what I have said, I hope that I have explained to the noble Lord what we seek to do and why I believe that the amendment which he has proposed is not acceptable to the Government. In view of that explanation perhaps he will be prepared to withdraw it.
Lord Stoddart of Swindon: I am not at all sure that I am entirely happy with the reply that the noble Lord has given, but at this late hour I think that my best course will be to read at a later date what he has said, withdraw the amendment and perhaps come back to it at a later stage.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Authorisation of public gas suppliers]:
10.30 p.m.
Lord Stoddart of Swindon Lord Stoddart of Swindon moved Amendment No. 59.
Page 4, line 41, after ("section") insert ("as contained in Schedule (Authorisation to be granted by the Secretary of State for Energy to a public gas supplier under section 7) to this Act").
The noble Lord said: I beg leave to move Amendment No. 59 standing in my own name and that of my noble friend Lord Williams of Elvel. I am afraid that I cannot move this amendment as briefly as I did the last one because this is an important amendment. Indeed, so far as we are concerned, it is a vital amendment. I am extremely put out (if I may put it that way) that this important amendment is being discussed at this time of night. I think that it would have been far better if the Committee could have discussed it when the Chamber was fuller and more Members could have understood just exactly what we were trying to do.
The Committee will know that the BGC operates under statute. It is under the general, though not detailed, control of the Department of Energy and the Treasury, and is ultimately responsible to Parliament for its efficiency and general behaviour. That has been the case since gas was nationalised. But even before then a large part of the gas industry was owned by the municipalities and was therefore under direct public control. In addition, we have the influence of the consumer being brought to bear directly on the BGC through the national council and through the regional councils and their local committees.
Under those circumstances, the BGC has no alternative but to act in the public interest. If it does not do so, Parliament can take positive steps to remedy that position. However, once it is privatised, parliamentary control over the industry becomes virtually non-existent. Although the Secretary of State lays down the conditions of the authorisation, there is no parliamentary input. He does not have to go to Parliament to justify the conditions that he is imposing, nor answer for those that he should impose but is not imposing. Indeed, during the passing of the Bill we cannot discuss the authorisation in any meaningful way and cannot add or delete any conditions, and nor can we amend them in any way.

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That is unacceptable. For that reason we seek to add the authorisation as a schedule to the Bill.
Members of the Committee will notice that the new schedule that we propose is identical to the proposed authorisation—no more, no less. That is not because we believe that the proposed authorisation is satisfactory; we certainly do not. It is far from satisfactory in much that it proposes, and totally unsatisfactory in what it does not propose. I do not intend to embark on a detailed critique of the proposed authorisation. That would be unfair to the Committee and would be a time-consuming exercise. But, for example, we are not satisfied with the price formula, and are certainly not happy that it is likely to operate for only five years. Therefore, if the Committee agrees to the amendment we shall seek at Report stage to strengthen the authorisation by moving amendments at that stage of the Bill.
We are certainly not happy with the situation whereby changes to the authorisation can be made with the consent of the supplier, provided that agreement is reached with the Director General of Ofgas; nor do we believe that the Monopolies and Mergers Commission should necessarily be the final arbiter of alterations to the authorisation. There may be changes which ought to be made but which do not come within the competence of the MMC.
The safest way of proceeding in the public interest is to write the authorisation into the Bill. It may be argued that by so doing we shall remove flexibility and that the procedure for making alterations to the authorisation will be too cumbersome, but I doubt whether that is so. In any event, if the amendment is agreed we can write into the Bill procedures for amendment by Parliament that will be quick and efficient. What is certain is that if the authorisation is in the Bill everyone will know where to find it and will be able to consult it, and Parliament itself will be able to keep a proper watching brief over the conditions under which a powerful, private monopoly operates. We can ask no less, bearing in mind the great change which will take place to this previously publicly-owned industry.
Noble Lords opposite say they are returning the gas industry to private enterprise. It has never been wholly in private hands; there has always been a big public input. From the time it began, the municipalities (the local authorities) have had a great deal of control and ownership of the industry. By the Bill we are, therefore, creating something which is new, not something that is old and is being returned to. The least we can ask for is what is contained in the amendment, which is to see that the licence which the new private monopoly of British Gas will have will be strong enough and that the public, through Parliament, will have some say in how the licence operates and any amendments which may be made to it. I beg to move.
Lord Belstead: I am grateful to the noble Lord, Lord Stoddart, for moving fairly succinctly this long new schedule to the Bill, which is in fact a rewrite, as he explained, of the authorisation which was made available to the Committee soon after Second Reading so that we could all have a good look at it in order to debate it. I welcome that.
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To get myself on the same network as the noble Lord, I realise that we are debating this point late at night, but there will be another opportunity to debate this matter when the noble Lord and his noble friends come to Amendment No. 101BA. The noble Lord referred to wishing to look at how the authorisation is finally revoked. That will also be dealt with under Amendment No. 63B. We shall have more than one bite at this cherry, and I therefore content myself with saying only three things.
Lord Stoddart of Swindon: When I moved Amendment No. 59 I should have said that it might be for the convenience of the Committee if I spoke also to Amendment No. 84A.
Lord Belstead: I am grateful to the noble Lord. I assumed that we were taking Amendment No. 84A as well. I shall content myself with saying only three things. The first is that I am sure that the noble Lord will not mind if I say that there are certain slips of the pen in the drafting of the amendment which make the amendment considerably defective. I say that only because Amendment No. 101BA has the same printing errors. I know that he will be the first to say, if we start crawling over them, that they create defective amendments. I merely say that for the record.
The second point is that I say from my record that we should not forget that this is a licence—an authorisation—which provides some protections for the consumer which have not been seen before in the organisation of the gas industry. I have in mind Condition 6 in the authorisation, which lays down important new conditions for the protection of people with regard to connection charges. I have also in mind Condition 8, which relates to the provision of information to the Gas Consumers Council, where there is a significant new departure from current practices which requires British Gas to meet any reasonable request from the new Gas Consumers Council for information on complaints on gas supply matters. The new Gas Consumers Council will therefore be able properly to investigate those complaints and come to an informed conclusion. Important points are to be found in the new licence, or authorisation.
The third point is that I want to explain why I have difficulty in being able to accept the amendment, persuasive though the noble Lord was. The reason is very simple. It is that the authorisation, we plan, is to be given to British Gas for a period of at least 25 years. It is a long period, I know. But it is to give certainty to gas consumers that they will continue to receive supplies and that they can happily invest in expensive gas appliances such as central heating systems in the knowledge that gas will continue to be available, and to give confidence to investors who will want to know that the business in which they are buying shares will continue to be able to make profitable use of the assets for a reasonable period.
But, given that the authorisation must be for a reasonable period, provision must surely be made for it to be adaptable to meet changing circumstances so that consumers can be protected, not only in the kind of energy market that we have now, but also in whatever markets develop in future years. If we are to

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have sensible flexibility for the future, with respect to noble Lords opposite, it does not make sense to freeze the authorisation in statute. That is what this amendment would do. The consequences of accepting Amendment No. 59, which we are now discussing, together with Amendment No. 84A, would be that once any change was made to the conditions contained in the authorisation granted to British Gas, however minor or uncontroversial a change might be, the authorisation would no longer be that set out in the schedule. Hence, British Gas would no longer be a public gas supplier for the purpose of the Act.
The consequences would be that customers would no longer enjoy the extensive protection given by the provisions in Clauses 9 to 15 and Schedule 5 concerning the right to demand a supply if they are within 25 yards of a main, or the continuation of existing supplies, as contained in Clause 10. In addition, British Gas would lose the old historic operational rights of being allowed to break up roads to put in pipes. In other words, if one wanted to change one dot or comma of the authorisation—if one accepted the amendment—it would mean that one would have to have a new Gas Bill. With respect to noble Lords, I do not think that that is reasonable. For that reason I cannot accept the amendment.
Lord Bruce of Donington: I am very sorry indeed that the noble Lord cannot accept the amendment. Surely the confidence of the investing public, of the consumer, of Parliament and of the people is based on the authorisation to which the noble Lord refers. The noble Lord says that he wants flexibility. But he was careful about this. The noble Lord mentioned only such minor amendments that might be effected—the odd dot or comma. He raised the horrifying prospect of coming back to Parliament to get minor matters corrected. By the same token major alterations to the authorisation could be made under pressure from the company's shareholders, under pressure from the institutions, who might, after two or three years, find that some of the conditions, yes, even the safety conditions, contained within the authorisation were much too onerous and meant that not enough profit was being yielded.
Under the somewhat volatile conditions (if I may use the term in a different context) characteristic of the entire energy market including coal and oil, and with a question mark over nuclear power and all the rest, it is quite likely that after a year or so the institutions which invest in British Gas plc—it will in the main be institutions, although for propaganda purposes we shall have a suitable littering of individual shareholders so that it may be dressed up as people's capitalism or something of that kind—may bring pressure to bear for the authorisation to be altered. There the argument of flexibility will have some force because, instead of having to come back to Parliament for the authorisation of major change, it can be done under what the noble Lord calls flexibility, very quickly, without all the trouble.
This Bill is in part being sold to the electorate, to Parliament and to the investors on the basis of the contents of the draft authorisation—and it is only a draft at the moment. As the noble Lord knows full
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well, there is many a slip 'twixt cup and lip. The final licence to British Telecom was altered from the draft licence before the Bill came into operaton.
What conceivable objection can there be to having its own authorisation drawn up after much consultation with the industry, and after much heart searching by individual Ministers? It may even have gone to Cabinet for all I know, although it is a rare occasion when matters of this kind go to the full Cabinet.
Are we saying that there are circumstances which the noble Lord already envisages which will change the draft authorisation before we go very much further? Surely there has to be some finality about this. I willingly concede that conditions may arise, with or without the pressure of shareholders—though the pressure of shareholders will grow as time passes—where it is quite proper for alterations to be made. We are not talking about commas, or semicolons, or provisions to eliminate "and" and put "but", or matters of that kind. But changing circumstances may produce the necessity for a major review. This ought to be the subject of an amending Bill. In my experience of Parliament in another place and in this place, if the Government require something urgently they normally get it. The existing Government—despite their somewhat precarious position today, to which it is perhaps unkind to refer—could get the matter through another place in a very short time by the sheer volume of votes. There is no problem there. If the amendments are reasonable they coud go through the House and through this Chamber very quickly indeed. Or is the noble Lord assuming that his amendments arising in the future for which he wants flexibility will be so unreasonable that they will be a matter of contentious argument? Surely that will not wash.
We are dealing here with an industry that differs in very significant respects from British Telecom. For example, there are very few physical dangers to which a telephone subscriber is subject. He may occasionally be inconvenienced by lack of maintenance and matters of that kind. He may be inconvenienced by certain breaches of the existing licence of British Telecom. But they are not so vital in terms of the welfare of the individual as any potential relaxation or change of the rules that are incorporated in the authorisation.
I plead with the noble Lord to be reasonable about this. If the Government believe in the authorisation as of now—as they presumably do, otherwise they would not pray it in aid, bring it forward and circulate it—let it be put in the Bill. What is wrong with that? Let the noble Lord explain.
Lord Belstead: I hope the Committee will not think me tedious if I very briefly repeat part of what I have said before. The reason why I part company with what the noble Lord, Lord Bruce of Donington, is saying is simply this. I agree with the noble Lord that there are very important things in the authorisation—and I mention two examples, one being that there are important new safeguards for consumers of gas so far as connection charges are concerned, which is something which is very important, and another being important new provisions giving information-

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gathering powers to the new Consumers' Council, which I think is very important.
However, there are a lot of other important things in this authorisation. On that I agree with the noble Lord. Where, with respect, I disagree with the noble Lord is that if the Government were to accept this amendment it would mean that if any change was made to any of the conditions, however minor or uncontroversial that change might be, the Government of the day would have to come back to Parliament to get a completely new Bill in order to get a new authorisation in order to go on running the gas supply in this country. That is the inevitable consequence of accepting this amendment.
If I may just go on for a second, the noble Lord then raised the spectre of interests (which he did not really specify, but clearly they were supposed to be sinister interests) getting at the authorisation and making changes which would affect the safety of gas. I acquit the noble Lord of not having looked at the Bill because I know he has looked very carefully at the Bill. The part of the Bill I think the noble Lord, with respect, ought to have referred to is the part that we have not yet come to. When we get to Clauses 23 to 27, the Committee will then find that changes to the authorisation—and this is the part of the Bill called "Modification of public gas supplies authorisations"—man only be made if the director makes a reference to the Monopolies and Mergers Commission, and of course that Commission will have to have regard to the very important duties which are laid on my right honourable friend and on the director in Clause 4, which we have dealt with.
In Clause 4 we find that protection for the consumer is put up front, both in terms of gas supply and in terms of pricing, and so with respect to the noble Lord I reject the suggestion that in some way some sinister influences would be able to get at the authorisation and would make changes which would affect the safety of consumers. The Bill has been very carefully drafted, in the part that we will come to, to make sure that that could not happen.
We are going to come, I expect, in 10 days' time to a subsequent amendment, No. 101 BA, when we will be able to go over this ground again. I ask Members of the Committee not to press this amendment this evening, partly because it is, with respect, defective, and most importantly because it would have the effect of creating a situation where, if one then wanted to make the slightest change to the authorisation, it would need a new Bill.
Lord Sandys: I do think that my noble friend has gone as far as it is possible to do. Perhaps it would be a suitable moment to draw the Committee's attention to the fact that in preparing and examining legislation of this nature the Committee have a particular responsibility. Regarding the stability of the statute book, it is a major matter. My noble friend attempted—and he is quite right to do so—to seek that this statute should remain in operation for at least a generation. If we think back to the state of the gas industry 25 years ago and look at it in 1961, and think of the changes within the industry since that time, this is a real reason to have that degree of flexibility.
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Since 1961 the entire operation of North Sea gas has come into being, and changes which were absolutely unheard of have come forward. If we followed the proposal of the noble Lord, Lord Bruce of Donington, we should be forced into a position in which Parliament and naturally your Lordships' House would be obliged, in the course of a number of years, to undertake another primary legislative exercise which would be quite unnecessary.
Lord Stoddart of Swindon: I am most obliged to the noble Lord, Lord Belstead, for the courteous way in which he has dealt with this amendment. As my noble friend Lord Bruce of Donington made quite clear, we do not agree with his reasoning. I say now that I shall not press this amendment tonight; I shall withdraw it, because we should like to look very closely at what the noble Lord has had to say.
However, the noble Lord said that in the proposed authorisation there are protections for consumers not seen before. That may very well be, but protections exist for the consumer under the Gas Act 1972. There is the protection of Parliament itself, and the ability for detailed matters to be discussed by Parliament; and, indeed, there is the relationship between the gas industry and the Minister. Neither the proposed authorisation nor the Bill as a whole is a substitute for what exists at present. It is our view that by this Bill the consumer loses out very considerably, and loses many of the protections which he has by various means at present.
The noble Lord said that the authorisation would be for 25 years. That is in the authorisation itself. I understand that 10 years' notice will have to be given to end that authorisation. Of course, security must be given. I did not want to discuss matters which were in the authorisation; it is the principle about which we are concerned. However, 25 years is a devil of a long time. It is far longer than is given to an independent television company. If my memory serves me correctly, I think that the period there is 15 years, perhaps even less. However, 25 years is a long time, and many things can happen.
The noble Lord said that we shall be freezing the authorisation in the statute. I do not know that we are. The noble Lord seemed to be saying that if we have the authorisation as a schedule to the Bill, because it is a statute we must have a whole new Bill before we can alter that schedule. That clearly is not so. It is possible to have an amending Bill; and, indeed, if the noble Lord accepted this amendment we would co-operate with him in agreeing that the authorisation could be amended by affirmative order. There are all sorts of ways in which we can amend Bills without actually having to have primary legislation and a new Bill. If that is his problem—that, as he says, he fears that he would have to have a new Bill—I am sure that we could meet him on this and I am quite sure that we could write in at a later stage that the schedule, which constitutes the authorisation, could be amended by affirmative order.
The hour is late and I have already said that I shall withdraw the amendment. However, in return for that I wonder whether the noble Lord will have a look in Hansard at what we have said and will think about it between now and the next stage of the Bill. We have

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listened to the noble Lord and we shall read what he has said, and he also should listen closely to, and read, what we have said, because our fears are real and it could be that we can come to some accommodation. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Belstead: We have had a long day and we have just completed an important amendment. I think perhaps this might be a moment when the House might be resumed if your Lordships agree. I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Marriage (Prohibited Degrees of Relationship) Bill [H.L.]
Returned from the Commons, agreed to.

Isle of Wight Bill
Returned from the Commons with the amendments agreed to.
House adjourned at one minute past eleven o'clock.