Lords Sitting of 14 December 1987

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

M.25: Service Areas
Baroness Macleod of Borve: 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 when the other three service stations on the M.25 will be completed.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, subject to the outcome of public inquiries, it is hoped that service areas will be available at Thurrock, to the east, and Clacket Lane, to the south-east, by late 1989 or early 1990. I am unable to say at present when a fourth service area will be available.
Baroness Macleod of Borve: My Lords, I thank my noble friend the Minister for that encouraging news. Is he aware that at certain times of the day and on certain parts of the M.25 there are very long delays caused by queues? Will the department consider putting notices on the exit junction boards saying how far away services can be obtained off the M.25?
Lord Brabazon of Tara: My Lords, I am aware that there are queues at certain times of day on certain sections of the M.25. It is our proposal that there should be four service stations at the four cardinal points of the motorway. As to putting notices on the exit junctions pointing the way to the nearest service station, I am not quite sure whether that would be possible. I shall look into it and let my noble friend know.
Baroness Macleod of Borve: My Lords, is my noble friend aware that that is done on other main roads? It would be an enormous convenience to people on the motorway.
Lord Brabazon of Tara: My Lords, I am aware that it is done on certain other main roads, including trunk roads. I shall have to look into the case of the motorway and write to my noble friend.

Iran-Iraq War
2.39 p.m.
Lord Molloy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have asked the USSR to support an arms embargo
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against Iran and to co-operate with the Gulf States and those nations with a naval presence in the Gulf to bring hostilities to an end.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, on 25th September the Soviet Foreign Minister joined the other permanent members of the Security Council in agreeing to start work on an arms embargo while the Secretary-General takes parallel action to try to obtain Iranian and Iraqi compliance with Resolution 598. We continue to press the Soviet Union to live up to this agreement. My right honourable and learned friend the Foreign Secretary most recently raised this with Mr. Shevardnadze on 7th December.
Lord Molloy: My Lords, I thank the Minister for that most encouraging reply. In so far as there seems now a new atmosphere between East and West—between Russia and the USA—would it not be a good thing for this Government of ours to approach both sides to try to hasten the endeavours that the Government are trying to bring about?
Lord Trefgarne: My Lords, if by "both sides" the noble Lord is referring to Iran and Iraq, who are involved in this unhappy conflict, I think the best way forward lies in all the world community supporting the activities of the United Nations Secretary-General. We shall certainly do that.
Lord Mellish: My Lords, even on the assumption that Russia were to co-operate with the West, what assurances are there that that fanatical crowd in Iran will stop fighting?
Lord Trefgarne: My Lords, one of the matters that we shall have to investigate is the attitude of Iran and the circumstances in which it might be willing to stop fighting. But if we were to accept the proposition of the noble Lord at its face value, then we should not make any efforts at all to bring this conflict to an end and that is certainly not our policy.
Lord Cledwyn of Penrhos: My Lords, the noble Lord said that the Resolution 598 was discussed at the meeting between Mr. Shevardnadze and Sir Geoffrey Howe on 7th December. Can he say what the result of that discussion was? Is he aware that he implied that Her Majesty's Government take the view that the USSR is taking no action whatsoever? Is that the case? If so, what pressure is being brought upon the USSR against the background of the new spirit of co-operation to comply with the resolution?
Lord Trefgarne: My Lords, I am bound to say that we have been disappointed in the response of the Soviet Union in this matter of late. However, as the noble Lord says, there is a new spirit abroad, certainly between the super powers and we hope that the Soviet Union, as one of the five, will agree that we should now be seeking to take this matter forward. As we see it, there is now a need for the Security Council to move to enforcement measures.
Lord Cledwyn of Penrhos: My Lords, I am obliged to the Minister for that reply. Will he go a step further

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and say whether there is any co-operation whatsoever between the Armilla patrol and our four minesweepers with the Russian forces in the Gulf?
Lord Trefgarne: No, my Lords. The United Kingdom forces in the area operate in conjunction with other allied forces; that is to say, the United States, France, Italy, Belgium and the Netherlands. We do not operate in conjunction with the Soviet Union.
Lord Molloy: My Lords, in so far as the Soviet attitude is changing dramatically and the Soviet Union supported the UN resolutions, could it not be made clear to its leaders that the resolution which we, the United States and the Soviet Union all support, is also supported by Iraq?
Lord Trefgarne: My Lords, the noble Lord has a point, but I think the way forward in this matter is to persuade all those who agreed to Resolution 598 in September to seek to have that resolution enforced. I do not believe the way to do that is by ringing declarations; it is by quiet, active diplomacy.

EC Food Surpluses: Distribution
2.43 p.m.
Lord Ardwick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they are taking to ensure a full and systematic distribution of Common Market food surpluses next year.
Lord Hesketh: My Lords, the Council of Ministers has now adopted a permanent scheme providing for distribution of free food from intervention stocks. A 1988 financial ceiling of £69 million for the Community as a whole will limit the quantities distributed. The Government are now considering the implications in close consultation with the main charitable organisations.
Lord Ardwick: My Lords, I thank the noble Lord for that Answer. I am glad that he is already discussing the matter with the charitable organisations. He may recall that last year the distribution was improvised, and although the charitable organisations did a magnificent job they earned a good deal of opprobrium because it was not perfect. On this occasion, will the noble Lord associate the local authorities with the distribution? They were excluded from the distribution last year, but they have the best list of needy people through their social services departments. Many of them would be willing to help, especially if there were some financial help with the cost of distribution.
Lord Hesketh: My Lords, this is one of the points we are considering, but we should need to be clear that it was an appropriate task for them. One change this time compared with last time is that charities and
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others will be able to recoup administrative costs and have them reimbursed up to 1 per cent. of the value of those products which are distributed.
Lord Sainsbury: My Lords, this may seem a small practical point, but is the Minister aware that one of the difficulties during the previous distribution of this ancient butter was that it came in bulk packs and not in domestic quantities? This made practical and fair distribution more difficult.
Lord Hesketh: My Lords, so far as I am aware, the butter to which the noble Lord, Lord Sainsbury, referred was made available to charitable organisations in bulk from intervention stores and after repacking was distributed by them in retail-size packs.
Lord John-Mackie: My Lords, is the noble Lord aware of the feeling in the country that it is better to distribute some of the food in this way than to give it to Russia and other places cheaply? I am glad the Minister has taken up the point. Is he aware of the report in the Guardian—I am sorry that the Government are sometimes not keen on reports in the Guardian—that the Minister is still considering the scheme? Have the Government definitely accepted the scheme for this year? If so, will it not be much cheaper, because the EC will be prepared to pay for transport and distribution to distribution points in this country'? Would that not make cheaper the work of charities and councils, if indeed councils take up the work?
Lord Hesketh: My Lords, we are considering the implications of the free food regulation now that the Council has adopted it. We will need to establish that there is a scheme which is workable in United Kingdom conditions. We are in close contact with the main charities. We will consult more broadly as appropriate before any distributions take place.
Lord Wallace of Coslany: My Lords, is there any possibility of dispatching urgently some of the surpluses to Ethiopia and Mozambique?
Lord Hesketh: My Lords, I feel that that question is slightly wide of the one on the Order Paper.
Lord Cledwyn of Penrhos: My Lords, is the noble Lord aware that the criticisms of the organisation on the last occasion were harsh and well justified? Can he give the House an assurance that on this occasion there will be a co-ordinated plan and that the Government themselves will take responsibility for it? Is he aware that I do not blame the charities, which are many and which do their best in the circumstances, because they are not competent to arrange a distribution of this kind? Can he say who in the Government is responsible for this scheme?
Lord Hesketh: My Lords, in order to avoid any criticism in the future and to ensure that any plans that are laid are well laid, we are considering very seriously the implications and are consulting broadly to ensure that anything that is done is done properly.
Lord Cledwyn of Penrhos: My Lords, with respect, the noble Lord has not replied to my question. Can he say who in the Government is responsible? Is it his right honourable friend the Minister of Agriculture, Fisheries and Food, and was he responsible on the last occasion? Somebody must take responsibility. Will he tell the House who that person is?
Lord Hesketh: My Lords, I am unable to inform the noble Lord the Leader of the Opposition who was responsible last time, and so I shall have to write him a letter on the subject.
Lord Wallace of Coslany: My Lords, with all due respect to the noble Lord, I submit that my supplementary question was quite in line with the Question on the Order Paper. As this is a matter of urgency, I think it deserves a better answer.
Lord Hesketh: My Lords, I shall write to the noble Lord.
Lord John-Mackie: My Lords, the noble Lord is always emphasising that the Government are considering the implications. Have the Government accepted the scheme or not?
Lord Hesketh: My Lords, we are considering the implications of the free food regulation now that the Council has adopted it.

EC Agricultural Surpluses: Disposal Costs
2.49 p.m.
Lord Bruce of Donington: 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, if they were empowered to dispose of all EC agricultural surpluses currently held in storage or elsewhere within the United Kingdom, what would be,

(a) The estimated total cost to be borne by the United Kingdom;

(b) the estimated cost per annum over the period required for disposal;

(c) the vote number under which parliamentary sanction would be sought.

Lord Hesketh: My Lords, if all the intervention stocks held in the United Kingdom were sold at current world market prices, the loss on sale would be approximately £690 million. if disposal were spread over a period the actual cost would depend on movements in world prices, which cannot be forecast.
Losses on sale are normally borne by the Community. If member states bore the disposal costs of stocks held in their territories the effect on the United Kingdom would be much less than £690 million because we would not be contributing to disposal of stocks elsewhere. In fact, the present distribution of stocks is such that the effect on the United Kingdom would be broadly neutral.
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The vote number under which parliamentary sanction would be sought would be a matter for decision at the time.
Lord Bruce of Donington: My Lords, I thank the noble Lord for his reply, but may I ask him to differentiate between the £600 million that he mentioned earlier in his reply and his statement at the end that the result might be broadly neutral? Either the United Kingdom will suffer a loss, and therefore the taxpayer will suffer a loss, if the Prime Minister's proposal to the Community is agreed to or it will not. Will he make the situation clear?
On the assumption that the noble Lord is correct in saying that the loss to the United Kingdom taxpayer was £600 million, will he notify his right honourable friend the Prime Minister that her generosity in this respect contrasts very directly with her entirely different attitude towards the National Health Service, towards which she has expressed her detestation?
Lord Hesketh: My Lords, although the noble Lord feels that there is a difference, in fact there is a straightforward explanation. The stocks held in the United Kingdom and our contribution to a Community settlement balance if you work it out. It appears slightly illogical, I would be the first to agree with him, but if you think of what is held in the United Kingdom and set that against what our contribution would be if we contributed to a Community-wide disposal, it results in technical fact in a broadly neutral result.
Lord Bruce of Donington: My Lords, so the noble Lord may be fortified in that regard by EC opinion that his right honourable friend has in fact been offering the Community nothing.
Lord Hesketh: My Lords, I am sure that that is not true.
Lord Peyton of Yeovil: My Lords, will my noble friend bear in mind that he has a great deal of sympathy when he is called upon to answer long, hypothetical questions of this kind, particularly when the supplementaries are salted by the noble Lord, Lord Bruce of Donington, with his dislike of the Prime Minister which I am sure she would not bother to reciprocate?
Lord Hesketh: My Lords, I thank my noble friend for his remarks.
Lord Molloy: My Lords, does the noble Lord agree that ordinary people find it rather confusing that these massive stores have been built up in this country and on the Continent in commodities which are getting dearer and dearer in price? Is it not about time that we looked at the agricultural policy and tried to introduce some sanity into it instead of continuing to pay through the nose as we have been for the last 10 years?
Lord Hesketh: My Lords, one thing I can assure the noble Lord of is that, quite contrary to being dearer and dearer in price, the commodities are going down and down in price.

Business
2.54 p.m.
Viscount Davidson: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Copyright, Designs and Patents Bill will be adjourned at approximately 7 p.m. for approximately one hour, and that during this adjournment the Mink (Keeping) Order 1987, the Coypus (Prohibition on Keeping) Order 1987 and the Medicines (Exemptions from Licences) (Carbadox and Olaquindox) Order 1987 will be taken.

Arms Control and Disarmament (Privileges and Immunities) Bill
Brought from the Commons: read a first time, and to be printed.
British Railways Bill
Read a third time, and passed, and returned to the Commons with amendments.
Corn Exchange Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Merchant Shipping Bill [H.L.]
2.55 p.m.
Report received.
Clause 6 [Refusal of registration]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 1:
Page 6, line 20, at end insert—
("or
(c) having regard to the national interest").
The noble Lord said: My Lords, I beg to move page 6, line 20, at the end to insert the words on the Marshalled List. The Minister will be familiar with the arguments and discussion we had at the Committee stage of this Bill. He will remember that, although he gave a long and detailed reply, I suggested at the end in col. 559 that I would look at his reply and perhaps bring up the matter again. I have looked at the noble Lord's reply and I believe that he has gone some way to explain why there should not be the words added "having regard to the national interest" in this clause, but he has not completely convinced me or my noble friends.
The question of the reflagging of a ship wherever it may be in the world is important, as the Minister pointed out, but it is more than merely a series of conditions as to the state of the ship, the type of crew the ship has, and the seaworthiness of the ship. There
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are other matters involved, and we believe that to add the words "having regard to the national interest" would help to give the Minister that final piece of control over whether a ship should be flagged as a British ship or not.
The point made by the Minister was largely that the conditions were all going to be laid down and that it would be unfair to move the goalposts if, after all the physical conditions had been established, the Secretary of State then said, "Having looked at all this, I still feel that I cannot grant the reflagging".
May I give the Minister an example of where we think it would be important that the Secretary of State should have the final say? We spoke about the Gulf last time we were discussing this matter. We did not put it quite so clearly as we are now able to do. If Iran or Iraq sought to reflag into the United Kingdom register, having met all the requirements presently contained in the Bill, from what the Minister said at an earlier stage how could their application for registration be refused if there was no provision for refusal in the national interest? Yet surely it would he in the national interest at this time not to accept an Iranian or Iraqi ship on to the British register.
Remember that a ship could be reflagged when it was trading abroad in an area well outside the Gulf, and even the safety and welfare provisions would not necessarily apply, and yet those ships could be switched quickly into the Gulf at any time. There is a fairly strong case for giving this overall power to the Minister. I am sure that it would be used sparingly, knowingly and intelligently.
There is no intention to deny registration of investment to reputable operators such as Canadian Pacific and Esso, to which the Minister referred in his reply earlier. With these additional arguments that I have put forward I hope that the Minister will rethink the matter and either agree to take it back or to accept the amendment. I beg to move.
Lord Mottistone: My Lords, I should like to suggest to your Lordships that the addition of this subsection would introduce an element of wide political discretion as to which ships the Secretary of State should allow on the United Kingdom register. I suggest that that is undesirable and that subsection (3), as it stands, goes far enough in giving the Secretary of State a measure of control of the ships that are on the register. I hope that your Lordships will not support the amendment.
Lord Underhill: My Lords, the noble Lord's point is precisely that which was raised in Committee. I recall the comments of my noble friend Lord Mulley who said that it is no bad thing that Ministers should have this wide discretion. He added at col. 558 of the Official Report:
"I happen to believe that Ministers should exercise discretion in the national interest".
The Minister would have to give a sound argument as to why that should not be included. Looking at the wording of the Bill, there appears not to be the slightest reason why this would embarrass the Government or prejudice the Bill in any way.
Lord Brabazon of Tara: My Lords, I spoke at some length to a similar amendment which the noble Lord, Lord Carmichael, proposed in Committee and I shall now summarise the arguments briefly. Subsection (3) of Clause 6 deals with the case where a ship is entitled to be registered—it meets the requirements set out in Clauses 3, 4 and 5—but the Secretary of State nevertheless directs that the ship should not be registered. That power—in effect, a power to override the normal eligibility requirements—is a new power and has no counterpart in the 1894 Act. As the Bill is drafted, it may be used on very clear and specific grounds: the condition of the ship insofar as is relevant to its safety or to any risk of pollution, and the safety, health and welfare of persons employed on board.
To that the noble Lord's amendment would add a new consideration which is both very broad and quite different in character. The proposal is, I admit, a seductive one. None of us would want to deny the supremacy of the national interest, and so argument is made that Ministers must have the discretion to defend the national interest in circumstances which cannot at this moment be foreseen or defined. All this is fine at a general level. The problem lies in dealing with specific cases once that discretionary power exists. It may not be at all obvious where the national interest lies. It may, indeed, be a matter of bitter political controversy, as my noble friend Lord Mottistone pointed out. But the possibility exists of pressing Ministers to use that discretion in this or that circumstance or to favour this or that special interest. So our system of ship registration is no longer one which can be simply and sensibly administered according to the statutory criteria where people know where they stand. It risks becoming one which is clouded with uncertainty because the possibility of a political intervention has been introduced.
The present basis of our registration system—applying and administering clear statutory requirements—has stood the test of time well. Should recent events prompt a sudden change in direction? I believe not. As I said in Committee, I believe that we can now view matters which created much publicity over the summer from a cooler perspective. It is perhaps more widely appreciated than it was some months ago that it is not at all unusual for ships to change their ownership and registration; that there has been a long history of foreign investment in the British merchant fleet; and that we welcome that and the employment which it brings. We know that there has not, in fact, been a flood of tonnage to the UK register. We know that the Armilla Patrol continues to do a very fine job in the Gulf. There is no question of the Royal Navy being required to provide an escort for everyone and anyone who cares to join the British register. The Armilla Patrol provides, very successfully, a carefully defined presence in a limited area.
I do not believe that it would be in the interests of our shipping register to introduce an ill-defined element of discretion which, in practice, represents an element of uncertainty. With those arguments, I hope that the noble Lord will be able to withdraw his amendment.
Lord Carmichael of Kelvingrove: My Lords, the Minister will be aware that I am disappointed. In putting the case again, I thought that the Minister would see some merit in it. I intend to withdraw the amendment. However, I still believe that the political discretion—or, as the Minister described it, "political controversy"—might be required at certain times in the future. He said that the future was not foreseeable.
I should like to ask the Minister whether, at a later stage, he could give me some indication of the way in which other nations decide their registration. Do they have a condition? Or do they make sure that the national interest is served whether the matter is provided for in a statute or not? Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Amendments of Part I of Merchant Shipping Act 1894]:
Lord Brabazon of Tara moved Lord Brabazon of Tara moved Amendment No. 2:
Page 44, line 40, leave out sub-paragraph (a) and insert—
("(a) for subsection (2) substitute—
"(2) If—

(a) the port where the ship is at the time of the event (or. as the case may he. where it first arrives thereafter) is a port in a country outside the British Islands, and

(b) the master of the ship. or some other person having knowledge of the facts of the case, makes a declaration before the appropriate person stating—

(i) the facts of the case, and

(ii) the names and descriptions of the registered owners of the ship to the best of the declarant's knowledge and belief,

the appropriate person may thereupon grant a provisional certificate containing a statement of the circumstances under which it is granted.";").
The noble Lord said: My Lords. in moving Amendment No. 2, I should like, with the leave of the House, to speak also to Amendments Nos. 3, 4, 5, 6, 7 and 10.
These are drafting amendments of a technical nature. They allow for three references to consular officers, nominated High Commission staff and colonial Governors to be replaced by the words "appropriate person" which are separately defined in a new subsection. Colonial Governors are included for the first time so that they, or the officers they appoint, may provide services under these sections for UK ships while visiting their waters. Altogether, the sections as amended will enable these services to be provided worldwide and not just in non-Commonwealth countries as hitherto.
Other minor amendments refer to the surrender of documents and alter a reference to the "United Kingdom" to the "British Islands".
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 3 to 7:
Page 45, leave out lines 17 and 18 and insert—
("(4) In this section "the appropriate person", in relation to a port in a country outside the British Islands, means—

(a) any British consular officer within whose consular district the port lies, or

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(b) where Her Majesty's Government in the United Kingdom is represented in that country by a High Commissioner, any member of the High Commissioner's official staff nominated by him for the purposes of this Part of this Act, or

(c) where that country is a colony, the Governor of the colony or any person appointed by him for those purposes;

and in this subsection "High Commissioner" includes an acting High Commissioner and "Governor" includes an acting Governor."").
Page 45, line 28, leave out sub-paragraph (b) and insert—
("(b) for subsection (2) substitute—
"(2) Except where the ship's certificate of registry is lost or destroyed, the master of the ship shall, as soon as practicable after the event, deliver up the certificate—

(a) to the registrar of the ship's port of registry, or

(b) if the port where the ship is at the time of the event (or, as the case may be, where it first arrives thereafter) is a port in a country outside the British Islands, to the appropriate person (as defined by section 18(4) of this Act);

and any person receiving a certificate in pursuance of paragraph (b) above shall forthwith forward it to the registrar of the ship's port of registry."; and").
Page 45, line 39, leave out ("delivery") and insert ("delivering up").
Page 45, line 43, leave out ("United Kingdom") and insert ("British Islands").
Page 46, line 1, leave out from beginning to end of line 7 and insert ("the appropriate person (as defined by section 18(4) of this Act)").
The noble Lord said: My Lords, with the leave of the House I beg to move Amendments Nos. 3 to 7 en bloc. I have already spoken to those amendments.
On Question. amendments agreed to.
Lord Underhill Lord Underhill moved Amendment No. 8:
Page 46, line 26, leave out ("three months") and insert ("one month")
The noble Lord said: My Lords, in moving Amendment No. 8 I should like to speak also to Amendment No. 9. Amendment No. 8 relates to the provisional registration of a ship overseas. The important issue discussed in Committee was the duration of a provisional registration. The noble Lord, Lord Mottistone, sought to change three months, as provided for in the Bill, to six months. I tabled an amendment providing that provisional registration should be reduced to only one month.
The noble Lord, Lord Mottistone, said that one month would make the time limit even less practical in real terms. I referred to paragraph 34 of the Department of Transport's consultation document issued in 1984. I quoted an important part of the document which I shall not quote again today. It appears at col. 563 of Hansard That document pointed out the fact that abuses of the six-month provisional registration period had been occuring and it was for that reason that the period was being reduced. Further, the department pointed out that most registrations were completed within one month. I think there is general agreement that it is desirable that the provisional registration of a ship, not properly surveyed, should be as short and as practical as possible.
At col. 565 of the Official Report the Minister said that,
"our surveyors travel all round the world to conduct these surveys so it is quite possible for a survey to be done in any port".
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Therefore, we repeat Amendment No. 8 which suggests that the period of provisional registration should have a duration of only one month.
It will he noted that Amendment No. 9 introduces completely new wording which was not discussed in Committee. The amendment proposes the implementation of the department's suggestion in paragraph 34 of its document. I should like to quote from that paragraph of the department's consultative document:
"It is therefore proposed that certificates of registration be made available for a period of one month only."
But then there are the important words:
"Another possibility which could be considered is to refuse provisional registration unless the Master of the ship can provide satisfactory safety certificates under the law of the State of previous registration, except on condition that the ship will immediately proceed to a British port for survey and full registration".
That is in effect what Amendment No. 9 is proposing.
The whole purpose of our amendment is to stop abuse, which the department has said has gone on previously, and to deny provisional registration to sub-standard ships. Unless evidence of survey and full safety certification is produced, the master will undoubtedly be placed in an invidious position under the Government's own requirements in Clauses 29 and 31 of the Bill.
I hope that the Government may find it possible to accept both of the amendments, but even without the amendment to cut the duration of the provisional registration down to one month, there is no reason whatever why the Government should not be prepared to accept Amendment No. 9, which is in full accord with what the Government's own Department of Transport proposed in the consultative document to which I have referred. I beg to move.
Lord Mottistone: My Lords, it will not surprise your Lordships to hear that one month will not be any more suitable now than it was at Committee stage. Indeed, I sought to press for six months, which has been the practice heretofore. However, my noble friend the Minister produced a good argument at Committee stage and he has since written me a letter which spells this out in greater detail, and I have come to agree that in modern times three months would be a suitable interval.
However, one month just would not be good enough and I hope that my noble friend will follow the line that he himself adopted at Committee stage. As I understand it, the proposals in the White Paper, as is so often the case with proposals in a White Paper, are seeing what the reaction is if you think of a particular figure. Quite clearly, the reaction was very sharply against as short a period as one month for this purpose, so the Government came down with the decision that probably three months would be a good working—I emphasise the word "working"— length of time to use in the future. I hope very much therefore that your Lordships will not accept Amendment No. 8. Amendment No. 9 is new to me and I have not really had time to study it.
Lord Geddes: My Lords, it will also not surprise your Lordships that I too would urge my noble friend

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on the Front Bench to resist this amendment. As I said at the Committee stage, this is essentially a practical problem. Perhaps I am in the minority among your Lordships in saying that I have been responsible on many occasions for registering British ships under the British register. It is not the world's easiest and simplest activity. I personally am still afeared at the reduction from six months to three months, but I would certainly resist most strongly the thought of going to one month. It does not make practical sense, speaking as one with experience of 25 years in the industry.
Lord Brabazon of Tara: My Lords, I have sympathy with the thought underlying the amendments. As I said in Committee, the Government have accepted the view of the General Council of British Shipping that one month would be too short a period of validity for provisional certificates, and our view remains that three months' validity would be reasonable. However, the amendments of the noble Lord, Lord Underhill, raise the important question of what evidence as to the condition of a ship and its safety might be required in connection with provisional certificates. I believe that we should ask for some evidence in this area. The noble Lord's amendments suggest one option, which was indeed referred to in my department's 1984 consultative document. There may be others worth looking at. So I have asked my department to consult with the General Council of British Shipping about what evidence it would be sensible to require in the special circumstances of provisional registration.
As a matter of procedure, however, I see no need to deal with these requirements in statute. We had intended to deal with the matter through the administrative guidance issued to consuls. who under the statute have discretion whether or not to grant provisional certificates. While we are on the subject of provisional registration, I should perhaps add that we hope, either here or in another place, to bring forward an amendment which would amend the subsection in the Bill dealing with evidence of an application for full registration, to take account of the points that I made in Committee, in response to my noble friend Lord Mottistone.
The noble Lord, Lord Underhill, raised the question of the master and his role in provisional registration. I would say to him that, as well as consulting with the General Council of British Shipping on the requirements that were reasonable to demand, we will also consult with the maritime unions on this matter. I hope therefore that, with that explanation of our plans to address this very important area, the noble Lord will feel that we are covering this adequately, if not in statute, and will be able to withdraw these amendments.
3.15 p.m.
Lord Underhill: My Lords, I am grateful to the Minister for his detailed reply on the second amendment. I shall not press Amendment No. 8 and will readily withdraw. But it was very noticeable that the two noble Lords who opposed No. 8 said nothing whatever about Amendment No. 9, which has never been before the House.
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I am grateful for what the Minister has said and that there is to be consultation not only with the general council but also with the shipping unions; and we shall look forward to seeing what amendment comes forward. I gather that the Minister hopes that there will be one coming forward at Third Reading. It would be very helpful if we could see that some time ahead, in case we want to move an amendment to that amendment. Meanwhile, I beg leave to withdraw Amendment No. 8 and will not move Amendment No. 9. However, I reserve the right to deal with that matter, maybe in a different form, at Third Reading.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 10:
Page 46, leave out lines 33 and 34.
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 2. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 11:
Page 48, line 42, at end insert:
("Transfer of registry to overseas territory.
53AA.—(1) Subject to subsection (2) of this section, the registration of a ship under this Part of this Act may be transferred from a port in the United Kingdom to a port in a relevant overseas territory; and the provisions of section 53 of this Act (except subsections (4) and (5)) shall apply in relation to a transfer of registration under this section as they apply in relation to a transfer of registration under that section.
(2) Where an application is made under this section for the transfer of a ship's registration to a port in a relevant overseas territory, the registrar of the ship's existing port of registry shall not proceed to deal with the application unless he is satisfied that registration of the ship under this Part of this Act at the intended port of registry is not precluded by—

(a) any Order in Council in force under section IO of the Merchant Shipping Act 1988, or

(b) any provision of the law in force in the territory in question; and any certificate purporting to be signed by the registrar of the intended port of registry and stating that any such registration of the ship is not precluded by any such provision shall be conclusive evidence for the purposes of this subsection of the matters stated in it.

(3) Where the registrar of the intended port of registry grants a fresh certificate of registry in pursuance of any such application as is mentioned in subsection (2) of this section, the ship in question shall thenceforth be considered as registered at the new port of registry, and the name of that port shall be substituted for the name of the former port of registry on the ship's stern.
(4) In this section "relevant overseas territory" means—

(a) the Isle of Man;

(b) any of the Channel Islands; or

(c) any colony.").

The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendment No. 12. Amendment No. 11 provides for the transfer of registry for ships from a port in the United Kingdom to a port in an overseas territory. The 1894 Act provides for such transfers in either direction. As currently drafted, the Bill provides for transfers between UK ports and for transfers from ports in the dependent territories and Crown dependencies to the UK but not for transfers from the UK to ports in the dependent territories and Crown dependencies. The amendment fills that gap in the procedures and repairs the error in the drafting of the original amendment so that such transfers can continue. Such

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transfers of registry will be limited by the conditions of eligibility placed upon an overseas territory by categorisation under Clause 10 and by restrictions in local legislation. A ship's registration may not be transferred to a dependent territory until it meets any such restrictions in force in that territory.
Amendment No. 12 is a technical amendment to the related section on transfers of registry from the Crown and dependent territories to the United Kingdom. It is merely to make it clear that the section refers to those territories and not to foreign countries. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 12:
Page 48, line 44, leave out ("country outside the United Kingdom") and insert ("relevant overseas territory (as defined by section 53AA (4) of this Act,").
The noble Lord said: My Lords, I have just spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 11 [Interpretation of Part 11, etc.]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 13:
Page 9, line 15, at end insert (", and any reference to a survey under the fishing vessel survey rules is a reference to such a survey carried out in the United Kingdom:").
The noble Lord said: My Lords, this amendment is designed to ensure that, should it be necessary for a vessel to be surveyed by surveyors of my department, it is surveyed in this country. It is the norm for such surveys to be carried out in the UK but without this amendment the system might have been abused with a vessel presented in a foreign port with no intention of remaining there until the survey had been completed. In foreign ports, powers to detain the vessel would be inoperable. I beg to move.
On Question, amendment agreed to.
Schedule 2 [Registration of Fishing Vessels: Supplementary Provisions]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 14:
Page 54, line 19. at end insert—
("and with respect to matters consequential on the termination of the registration of fishing vessels under any of the enactments specified in section 12(2) (including vessels which are not transferred to the register).").
The noble Lord said: My Lords, at the same time I shall speak to Amendment No. 15. These are technical amendments to ensure that all circumstances can be catered for during the transition from the old registry system to the new. There will be fishing vessels registered under existing enactments which will not be transferred to the new register, for example, because they are ineligible to register. It may be necessary to make detailed arrangements in respect of those vessels and in particular to preserve any undischarged mortgage details in the old registers so as to protect the interests of mortgagees. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 15:
Page 54, line 29, leave out sub-paragraph (d) and insert—
("( ) for preserving the effect of entries in any register kept under either of the enactments specified in section 12(2)(a) and (c) so far as those entries relate to undischarged mortgages affecting vessels which are not transferred to the register kept under this Part.").
The noble Lord said: My Lords. I beg to move.
On Question, amendment agreed to.
Clause 21 [Offences relating to, and liabilities of, unregistered fishing vessels]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 16:
Page 16, line 42, leave out ("is used for fishing") and insert ("fishes").
The noble Lord said: My Lords, at the same time I shall speak to Amendments Nos. 17 and 18. These are drafting amendments of a technical nature and serve to clarify existing provisions but have no other effect upon the requirements of the clause. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 17 and 18:
Page 17, line 6, leave out ("not") and insert ("neither").
Page 17, line 6, after ("Part") insert ("nor excluded from registration by regulations under section 12").
On Question, amendments agreed to.
Clause 25 [Financial assistance in respect of costs of training merchant navy officers and ratings]:
Lord Underhill Lord Underhill moved Amendment No. 19:
Page 19, line 40, at end insert—
("( ) Except with the consent of the Secretary of State, the financial assistance provided for in subsection (1) above shall he granted only in respect of British citizens whose seagoing training will he undertaken on ships manned by masters and officers holding a United Kingdom Certificate of Competency").
The noble Lord said: My Lords, this amendment deals with the question of training. The whole House welcomed the provision in the Bill for financial assistance towards training. In Committee I moved Amendment No. 43. I shall quote the words of that amendment:
"('( ) The financial assistance provided for in subsection (1) above shall he granted only to British citizens serving on ships manned by masters and officers holding a United Kingdom certificate of competence.')".
The debate was recorded in cols. 585 and 586 of the Official Report. The Minister stated in col. 585:
"our intention at present is to provide financial assistance to those organisations—primarily shipping companies—who sponsor and employ cadets, rather than to the cadets themselves".
The Minister added that the amendment which I had proposed would prevent that, but he kindly undertook to look again at the very first point, which dealt with the training for British citizens; it dealt with the nationality of those to be given training under the financial assistance provision.
I am grateful to the Minister for sending a detailed letter on this matter explaining the Government's intentions. Perhaps at this stage I should say how grateful I am, as are certain other noble Lords, for the number of undertakings which the Minister has carried out in sending letters as a result of statements that he made in Committee.
In his letter the Minister took the view that the matter could be dealt with by a provision in the Bill to give the Secretary of State powers to make the financial assistance dependent on:
"such conditions as he thinks fit".
In expressing my appreciation to the Minister in my reply to him, I argued that those words, without any qualifications, give the Secretary of State considerable powers and that therefore I should be tabling this new amendment.
First the amendment meets one point of criticism, which is the question of the recipient of the financial assistance. Instead of financial aid being granted only to British citizens this new amendment, No. 19, proposes that:
"the financial assistance … shall be granted only in respect of British citizens".
The amendment does not state "to British citizens".
Secondly, the opening words are of some considerable importance. They state:
"Except with the consent of the Secretary of State".
Therefore this amendment meets the criticisms made in Committee and gives power to the Secretary of State, should he so wish, to determine the questions of the nationality of those to be given the training and the ships on which training shall be given. By a link in the possibility of exceptions, with the consent of the Secretary of State, this meets the point regarding Irish certificate holders and the occasional officer holding a recognised equivalent to a UK certificate. I believe that that point was made by the noble Lord, Lord Mottistone. We have done our best in this amendment to meet the criticisms made in Committee. I beg to move.
Lord Mottistone: My Lords, I am sorry to have to say that I do not think that the amendment goes quite far enough, although I appreciate what the noble Lord has done to try to accommodate the points that I made last time. For the benefit of the House perhaps I may be allowed to repeat briefly what the problem is.
Although in practice most of the trainees who will qualify for assistance under this clause will be British, they could also include Irish nationals and certain Commonwealth citizens who are possibly resident in the UK. Likewise the masters and officers in the ships on which they will undertake their training could hold certificates of competency issued by Ireland or by a number of Commonwealth or ex-Commonwealth countries which are accepted by the Department of Trade as being of equivalent standard to UK certificates of competency.
It would be unreasonably inflexible—this is why this amendment really does not do—to have to seek the specific consent of the Secretary of State each time these circumstances arose. That is the problem; it is not flexible enough. For example, the amendment would appear to require the Secretary of State's consent to be sought each time an officer with an acceptable non-UK certificate of competency was transferred to a ship on which a trainee receiving aid under this clause was being trained. I think that that is terribly cumbersome and bureaucratic and I hope
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that your Lordships will agree with me that this amendment will not help matters at all. I hope that my noble friend will have strong reasons for rejecting the amendment.
Lord Brabazon of Tara: My Lords, I can indeed understand the concern that has prompted the noble Lord, Lord Underhill, to table this amendment, but I hope that I shall be able to assure him that his concerns will be met in the way we propose to administer the scheme for providing assistance with training and that this amendment is unnecessary.
I should like to turn first to the proposed requirement that all masters and officers should hold UK certificates. As I explained in Committee, it will be essential, so that training can be properly supervised, that it is carried out on ships manned by senior officers holding United Kingdom certificates of competency. But I should not want to rule out the possibility that some junior officers might hold non-UK certificates whose equivalency we recognise, and I should not want to get into a position where the existence of such a junior officer, perhaps only one, called into question the eligibility for subsidies of the trainees on the ship in question.
My noble friend Lord Mottistone put that point very well when he mentioned the possibility of a junior officer, perhaps holding a certificate, who went on to a ship where there were trainees and then my right honourable friend would have to issue another exemption according to the terms of this amendment. I do not think that such a restriction would be appropriate or necessary to ensure a satisfactory training.
In response to the noble Lord's amendment in Committee we have, however, looked closely at the possibility of incorporating in the Bill a nationality restriction in respect of trainees. In practice I should certainly expect the vast majority of trainees to be British citizens but we should not want to rule out Irish and Commonwealth citizens who are eligible for United Kingdom certificates and who have traditionally served on United Kingdom merchant vessels on an equal basis with United Kingdom nationals.
I recognise that the noble Lord's amendment would enable us to make exceptions for other nationalities but this brings me to my next point of concern. I am not sure that the amendment as drafted would in practice add a great deal to the clause. It allows exceptions to be made to the certification and nationality requirements for officers and trainees with the consent of the Secretary of State. But under subsection (1) assistance is provided by the Secretary of State himself to persons and organisations determined by him and subsection (2) makes it clear that he may impose such conditions as he thinks fit.
The Secretary of State therefore already has wide powers which will enable him to restrict the availability of the assistance. I can assure the noble Lord that we shall be making full use of those powers. The assistance is designed to ensure that there should continue to be sufficient seafarers available to serve on UK vessels in times of emergency. It will therefore be essential to ensure that the assistance is made available in respect of people whose qualifications

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would entitle them to serve on British ships and who might reasonably be expected to be available for such service in time of need. In administering the scheme, we shall want to ensure that that happens. But I see no need for specific restrictions on the certification of supervising officers or the nationality of trainees to be built into the Bill for this purpose. I hope that on the basis of the assurances I have given, the noble Lord will agree to withdraw his amendment
3.30 p.m.
Lord Harmar-Nicolls: My Lords I hope that the noble Lord will withdraw the amendment. However the Minister ought to keep in mind that leaving the matter as it is will, for people who want to abuse that, leave the door slightly ajar. The advantage of pulling the door shut rather more tightly—although one often sees the problems pointed out by my noble friend—is that it will discourage those who wish to push the door open wider. Therefore, there is every reason for having the door closed, if that is possible. It may not be possible for practical reasons. However, we are now seeing many occasions in other fields when people who are not British citizens take advantage of our generosity. By and large, that has cost us a great deal of money, and adding those occasions together they make a difference in terms of the budget.
Lord Underhill: My Lords, I am grateful for the observations of the noble Lord, Lord HarmarNicholls. I think that gives part of the answer to the points made by the noble Lord, Lord Mottistone, concerning whether or not our amendment would be bureaucratic and cumbersome. When one looks carefully at the matter, what is the real difference in procedure between the words contained in the Bill—
"such conditions as he thinks fit"—
and the ones which would be there if our amendment were accepted? Those words would be:
"except with the consent of the Secretary of State".
Our words tie down the question of who shall receive training and by whom it shall be given.
However, I think that the comments of the Minister have been helpful. I am only sorry that the emphasis has always been given to the need for trained seamen in a state of emergency. In light of the figures given at Second Reading, we need a continuous supply of trained seafarers; and in terms of the points which have been made about the lack of cadets in various categories, that is a very important issue in the industry. The points which have been made will be helpful, not only to the shipping companies but also to the unions when they come to discuss the matter further, as they undoubtedly will.
Lord Strathcona and Mount Royal: My Lords, before the noble Lord sits down, perhaps it may help if the amendment, instead of reading:
"masters and officers holding a United Kingdom Certificate of Competency"
stated:
"officers holding a Certificate of Competency accepted by United Kingdom authorities",
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or something of that sort. That would appear to deal with both problems.
Lord Mottistone: My Lords, I do not think that that would get over the question of the trainee, who might well be an Irishman.
Lord Underhill: My Lords, we shall look at the suggestions made by the Minister and by noble Lords. We may well come back to the matter at Third Reading. The suggestions made have been very helpful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 [Owner and master liable in respect of dangerously unsafe ship]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 20:
Page 21, line 44, after ("Kingdom") insert ("and intending to go to sea").
The noble Lord said: My Lords, the House will remember that when we debated this matter earlier, the Minister promised to look at it. In the earlier debate, the noble Viscount, Lord Simon, pointed out that in effect the Bill says that if a ship is in an unseaworthy condition in a port, the master, the captain or the charterer—whoever is in control of the ship—has committed an offence.
As regards how the amendment would actually work, it has been wisely suggested that the offence should be that of taking an unseaworthy ship to sea. The Minister said at the time that that was an interesting proposition, and that he would consider the point carefully. Perhaps the noble Viscount, Lord Simon, will speak on that particular point, and I am sorry if I have pre-empted him. He will have received a letter from the Minister, as did my noble friend, who has shown it to me. Therefore, I apologise to the noble Viscount who will no doubt have his own particular slant when he speaks on the matter.
NUMAST (which has been advising my noble friend, Lord Underhill, and myself) is very concerned about the amendment. It believes that there should be an intention to go to sea before an offence can be committed. It has been pointed out that a ship may be in a United Kingdom port at any one time for a very large number of reasons: and it may not be fit to go to sea for a large number of reasons. It may be loading; it may be discharging; it may be taking on ballast; it may have major repairs; or it may be having a survey carried out. It is possible that navigational equipment may have been sent away for recalibration or that the ship may be undermanned, either because a crew is changing or because it simply requires more crew. All those matters must make a ship unfit to go to sea and it would certainly be committing an offence if it went to sea. However, I and my noble friends fail to see how it can be committing an offence when it is in port.
I think that the Minister has had an opportunity to look at those various matters and to consider how the ban on a ship would work. I hope that he will be able to tell us the details of how a ship would be classed as unseaworthy while it was in port. Would it not be far

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better to say that the ship has to be intending to go to sea before an offence has been committed? I hope that the Minister will look favourably on the suggestion. Perhaps he now has his own words for an amendment. I beg to move.
Viscount Simon: My Lords, I am grateful to the noble Lord, Lord Carmichael of Kelvingrove, for the amendment. I know that the Minister has given considerable thought to the matter. He wrote to me concerning it, and I believe that a copy of the letter was sent to the noble Lords sitting to my left. I accept that there will be difficulties. However, I believe that taking such a ship to sea should be the offence, rather than simply being in port. Ships in port may be under repair, or as the noble Lord, Lord Carmichael, has said doing other business that must be done in a port. I shall listen carefully to what the Minister has to say when he answers.
Lord Mottistone: My Lords, it gives me great pleasure to support the amendment, not having had the opportunity previously to support the noble Lords, Lord Carmichael and Lord Underhill. It seems to me that the amendment will be a useful clarification of the purpose of the clause, while still allowing action to be taken against the master or owner of a ship which was found to be dangerously unseaworthy while in port. The amendment therefore seems wholly desirable.
Lord Geddes: My Lords, I am also glad to say that I support the two amendments under discussion, albeit in principle. 1 think the noble Viscount, Lord Simon, summed it up very well. The point at issue is not a ship in port, which may be totally unsuitable to go to sea for right and proper reasons of refit or previous damage. The point at issue is a ship which is about to go to sea.
Where I have a technical problem in respect of Amendments Nos. 20 and 21, is with the verb "intending". I do not wish to be facetious, but I do not think a ship is an animate object. Therefore I do not think that a ship herself can "intend". Presumably it is either the owner or the master who would "intend" to take that ship to sea.
If the amendment in principle were agreed we should need to look at the drafting, or the verb in the drafting, to make it fulfil the clause in common English.
Lord Brabazon of Tara: My Lords, these two amendments draw the attention of the House to the basic form of this clause and pose the question of why the offence under this clause is cast in terms simply of being the owner or master of an unfit ship that is in port rather than, as proposed in this pair of amendments, of intending to take it to sea. That was a point raised at Committee stage by the noble Viscount, Lord Simon, and, as has been said, I have now written to him about it. I think it will be helpful if, in replying to the noble Lord, Lord Underhill, and other noble Lords, I set out the position for the benefit of the House as a whole.
Clause 29 is identical in the way it is formulated to its predecessor, Section 44 of the Merchant Shipping
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Act 1979 which, of course, has now been in force for some years. Although the actual offence of being the master or owner of an unfit ship is set out in subsection (1), one should not really consider it in isolation from subsection (5) which provides defences that, at the time of the alleged offence, arrangements had been made to ensure that the ship was made fit before it went to sea, or that it was reasonable for such arrangements not to have been made. Subsection (4), of course, is new and extends liability to the manager as well as to the owner and master.
To go back a little further in history, Section 44 of the 1979 Act in turn replaced a much older provision; namely Section 457 of the 1894 Merchant Shipping Act. That provision made it an offence simply for any person to send, or to attempt to send, an unfit ship to sea or for the master knowingly to take an unfit ship to sea. That wording is, on the face of it, simple and attractive. But the difficulty was that it was not tailored to the method of enforcement. An unfit ship is discovered to be so by an inspection in port by the department's marine surveyors. But if, because the ship has not put to sea, the offence is not actually committed, while there is of course the possibility of detention, there is no possibility of punishing the owner or the master in respect of what has been discovered by the surveyors in port, and therefore there is no chance of deterring such irresponsible lack of maintenance in the future.
The purpose of the 1979 Act was in fact to make it sufficient that there was an intention to put to sea unfit—exactly the same, indeed, as the noble Lord's amendment would require. The difficulty, however, as noble Lords will be well aware, is that "intention" is something that is in the mind, and it is notoriously difficult to prove. Such a formulation would be hardly more enforceable than the 1894 wording. Accordingly the 1979 Act includes an objective test, which the Government have retained in the new clause, that arrangements must have been made.
This wording clearly puts a certain burden on the courts to use common sense to ensure that natural justice is achieved, but there is nothing unusual about that. The Government have given considerable thought to whether the clause could be improved. But we have been unable to arrive at any changes that would not undermine the effectiveness of the clause.
I come now to the application of this clause to the master. It might be argued that a master cannot be responsible for the suitability of a ship for its purpose or its state of maintenance, and that therefore subsection (2)(a) should not cover him. But the clause, as I have explained, is intended to catch the mischief of intending to put to sea in an unfit ship, and that is most certainly the master's responsibility, even if he was not personally responsible for the lack of maintenance.
I have given a lengthy explanation of how this clause came to be in a form that 1 hope will be useful to the House. I hope that I have convinced the House as well as my noble friends that this is a continuation of the situation under the 1979 Act and that it is absolutely essential if we are going to stop unfit ships in our ports. It would be as easy as anything if, for instance, a foreign vessel was caught in one of our

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ports and found to be unfit, for the master simply to say "I had no intention of going to sea until these matters were put right." If we are to fulfil our international commitments to remove unfit ships from the seas, we must have the power that we have had since 1979.
Lord Strathcona and Mount Royal: My Lords, may I ask my noble friend a question? What is a new master supposed to do if he is joining a ship? Has he to satisfy himself that the owner would never ask him to join a ship that was unfit or has he, before he goes on to that ship, to make a personal survey of the ship and satisfy himself that it is fit to go to sea? Quite apart from anything else, he is not qualified to do that, is he?
Lord Brabazon of Tara: My Lords, with the leave of the House perhaps I may say that the master should satisfy himself that the ship is fit to go to sea. If the ship has the required certificates issued by the department and if the ship has been well maintained and so on, he should have no difficulty in doing so.
Lord Carmichael of Kelvingrove: My Lords, the noble Lord who has just asked the Minister another question has raised the whole matter again. I should have thought that there would be a sufficiency of log books to he able to assure the master that everything had been tested and stamped up. The Minister introduces a slightly wider aspect when he says that the master would know if the ship had been well maintained. Unless it is his own crew, in many cases the master will not be happy about taking the ship over and assuming that everything is all right. He would give no guarantee unless his own engineers had been responsible for maintenance.
The Minister went a long way in giving explanations. I believe these matters will arise in another place. He will be aware of the general support that has been given to this aspect. It is a disturbing factor. The noble Lord, Lord Mottistone, suggested that. unusually, he supported this side of the House on this particular amendment. I think that the Minister should pay attention to that point. Perhaps he will also pay attention to the fact that we shall probably, fairly soon, reciprocate that support in regard to an amendment which the noble Lord has tabled. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 21 not moved.]
3.45 p.m.
Lord Underhill Lord Underhill moved Amendment No. 22:
Page 22, line 5, leave out ("master and the owner of the ship shall each") and insert ("owner of the ship shall").
The noble Lord said: For the convenience of the House I shall also speak to Amendments Nos. 24 and 25.
Amendment No. 22 leaves out,
"master and the owner of the ship shall each"
and inserts instead,
"owner of the ship shall".
Amendment No. 24 is consequential upon that amendment.
The master has been separated from the owner because, first of all, the master cannot assess the unsuitability of the ship and the equipment and secondly, the penalties are unreasonable for any individual. If, as the Minister stated at cols. 748 and 749 of Committee. stage, the very heavy fine on summary conviction is to catch overseas owners by penalising the master, that could be done by detaining the ship, not by exposing a UK master for the sake of any legal expediency.
With regard to the "unsuitability" of shipping equipment, at col. 749 the Minister referred to pumps of inadequate capacity, life-saving equipment of inadequate design, equipment not up to specification and precise definitions contained in the Merchant Shipping (Passenger Construction and Survey) Regulations.
I think that there will be general appreciation that there is no way in which the master can check the design and specifications of equipment or pretend to be a surveyor qualified to carry out (even if he had the time) a survey in accordance with those regulations. He must, and can only, rely upon the owner to provide him with a ship and equipment suitable for its purpose. In Committee it was stressed that the master is in effect an employee and that he must rely upon the assistance of other crew members, including specialist officers, and of course the owners. Nevertheless, 1 stress what my noble friend Lord Murray of Epping Forest said in Committee. He said:
"It is not the purpose of those who support this amendment to seek in any way to defend or protect a master who is negligent. It is right that a master who is negligent should he answerable for his proper statutory responsibilities and indeed his contractual responsibilities. However, it is equally right that we should recognise that the ultimate responsibility must rest with the owner".—[Official Report, 26/11/87; Col. 747].
Our new subsection (5) provides that a master shall be guilty of an offence into matters now relisted and clearly laid out in subsection (6) of Amendment No. 25. It will be noted that to a great extent these are in line with those set out in subsection (2) of Clause 29. The new subsection (7) sets out the penalties on the master if he is found guilty of an offence. Therefore, we are not in any way trying to avoid responsibilities being placed on the master if he is found guilty.
The new subsection (8) provides for grounds on which there could be a defence. These are additional to those in subsection (6) of the Bill. One of the items in our new subsection (6) refers to undermanning. Noble Lords may have noticed a report in the press only last week that one ferry company is cutting 900 jobs on its services from Dover. The seafarers unions have already reacted angrily to this news and have warned of the possible threat to safety by cutting crew levels. Therefore, even though the master is listed as having some responsibility for undermanning, eventually the responsibility must rest with the owner. That is why we are endeavouring to separate the responsibilities of the owner under Clause 29 and the responsibilities which are clearly those of the master. I beg to move.
The Deputy Speaker (Lord Nugent of Guildford): My Lords, in putting Amendment No. 22 combined with Amendments Nos. 24 and 25, I should explain that Amendment No. 25 pre-empts Amendment No. 26. Therefore, if these three amendments are accepted I cannot call Amendment No. 26.
Lord Mottistone: My Lords, there were amendments not dissimilar to these moved in Committee. The one matter that worries me about them is that I believe they diminish the authority of the master. It is very important that one should be in no doubt—and I am sure that the masters are not in any doubt—that masters always have a duty not to let their ships be in an unsafe condition. It seems to me that, in trying to water this down in the way which has been done with these three amendments, one is in effect diminishing the authority of the master and his sense of responsibility for his task; that is, to take a ship to sea in a seaworthy condition. The degree to which he is personally able to check each and every point is not of tremendous importance because if a case arises the particular qualifications of masters are well known and would be taken into account by a court in relation to these particular items which are currently listed in subsection (2) in greater detail than they are in the new subsection (5). On the whole, it is better that this clause should not be mucked about with.
There is another factor; namely, that the owner and the master are split and the penalties are different. It does not seem to me to be reasonable that the owner should be left with a potential prison sentence and the master should be free from that, because there must be circumstances in which a prison sentence would be suitable for a master. As I argued in Committee, in the navy captains of ships are liable to prison sentences when court-martialled, if appropriate. Therefore, it does not seem to me to be unreasonable that this ultimate method of punishment should be available for all captains who take ships to sea. I suggest to your Lordships that these amendments are not helping the position of the masters but are in fact diminishing their authority and in that sense are making matters worse. I hope your Lordships will not accept these amendments.
Viscount Simon: My Lords, before the noble Lord, Lord Underhill, eventually answers this short debate, I wonder whether he or the Minister will help me on one matter which I raised in Committee but to which I have received no reply. Amendment No. 25 states:
"It shall be a defence in proceedings for an offence under the section to prove that at the time of the alleged offence",
and so on. Does "defence in proceedings" mean that proceedings must be taken; that is, that somebody, owner or master, or whoever, has to be prosecuted and then appears in court and produces a defence? What we require is, if he has taken the necessary steps, proceedings would not then be brought. However, I am not sure. This is purely a question of drafting—whether the drafting says that if he has an answer to proceedings he can only produce the answer if there are proceedings to answer.
Lord Greenway: My Lords, I go back to what the noble Lord, Lord Strathcona, said about a master who has just taken over a ship. I cite an instance 1 read about only last week. A British master who, through no fault of his own, had lost his job with a reputable English shipping company was offered a job as a master of, I think I am right in saying, a Panamanian vessel which he joined somewhere in the West Indies. He arrived on board to find that, in his opinion, the ship was totally unsuited for going to sea. He cabled the owners of the ship to that effect and received a very rude answer. He went on to say that in his opinion the ship should immediately be surveyed. The net result was that, after some argument, he lost his job.
I agree in some ways with what the noble Lord, Lord Mottistone, said. But I believe that under the wording of this amendment it would not be right under such circumstances for that master to be held liable in any way. He had, in my opinion, done everything reasonable to see that the ship should not go to sea, though he was not at all responsible for the state of the ship.
Lord Harmar-Nicholls: My Lords, common sense dictates that this must be a joint responsibility. I do not believe that one can separate ownership and the master. If a juggernaut on the road has no proper brakes or is in a bad condition both the owner and the driver have joint responsibility when they face prosecution in court and are dealt with.
Further to the point made by my noble friend Lord Mottistone, in addition to lowering the status of the master, I believe it would also give him an excuse. The example just given sounds, on the face of it, very sad, but at the end of the day we want the ships to be safe when they are plying the high seas. If the master does his best but does not succeed, and as a consequence of his efforts gets the sack, that is sad for him but we will have achieved what we want; that is, whatever unfairnesses may have been present during the incident an unsafe ship will have been prevented from going to sea if the master refuses to sail and risks being dismissed. Taken as a whole, it seems to me that common sense would show that this has got to remain a joint responsibility where both the master and the owner know that they sink or swim together whether it is by default, by carelessness or through the lack of courage to go right to the end and allow an unfit ship to go to sea.
4 p.m.
Baroness Phillips: My Lords, I am afraid the noble Lord has not chosen a very good example. Originally, as those of us who are magistrates know, the driver had to be brought to court and the owner did not. Therefore we had to introduce special legislation. You can never assume. The noble Lord uses the example of common sense. We all know that the law is not common sense. It all has to be spelt out in black and white. You cannot assume anything. I think that his example shows that he is actually in favour of the amendment.
Lord Harmar-Nicholls: My Lords, I should like to say to the noble Baroness before she sits down that I too am a magistrate. I have discovered that never, when the case is put on the list in court initially, do you have the owners only. Whether or not you take into account special circumstances—and you mitigate what you do with the driver—initially they are jointly responsible and have to justify that separation in court.
Lord Brabazon of Tara: My Lords, as my noble friend Lord Mottistone said, these amendments are indeed very similar in effect to the new clause which the noble Lord, Lord Underhill, moved in Committee. If I recall correctly, that was defeated and the Committee came down overwhelmingly in favour of keeping the responsibilities of the master, as in the Bill.
These amendments would in fact lessen the responsibilities of the master in respect of an unfit ship and decrease the maximum penalties to which he is exposed. The present amendments, if I may say so, are easier to follow than the ones that were considered in Committee. I believe, however, that the clearer presentation serves to bring out certain inconsistencies all the more obviously.
Subsection (6) of Amendment No. 25 excludes certain grounds of unfitness to go to sea from being the responsibility of the master. It is, however, very difficult to see why the amendment accepts that the master should be responsible for the condition of the hull of the ship, machinery or equipment, yet would make him not responsible for conditions of parts of those things or for the unsuitability for its purpose.
The fact is that, first of all, it is quite impossible to draw a rigid line between those matters that the master can reasonably be expected to be able to influence and those that he cannot. There is a full spectrum of possibilities in subsection (2), paragraphs (a) to (d), running from overloading or undermanning, which may be a consequence of a personal decision by the master and, at the other end of the scale, the hidden unserviceability of a small item of equipment that is nevertheless important to the safety of the ship.
This is a judgment that I believe the courts must be left to make in each particular case. Any attempt to do it in the Bill is doomed to failure. There certainly are cases of "unsuitability for its purpose" of which a master could be expected to be aware and for which he should be held responsible.
The noble Viscount, Lord Simon, asked whether if the defence says it shall be a defence proceedings would be taken. My understanding is that proceedings would not be brought because it is not the practice of the prosecuting authorities to bring charges to which there is a good defence.
Secondly, I would remind the House, as I explained in connection with the last pair of amendments, that this clause, like Section 44 of the 1979 Act which came before it, is intended to prevent the master putting to sea with an unsafe ship. It is not necessary for the master to have been personally responsible for installing an unsatisfactory piece of equipment for it to be wrong for him to go to sea with
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it. Thus subsection (2) needs to contain all those matters which make the ship unfit and which the master could conceivably know about.
There is then the question of penalties for the master. The penalty of £50,000 is a maximum and a magistrates' court could be expected to apply it only for the most flagrant abuses. In practice, they are unlikely to apply it to an individual at all except when they know that the master is in effect facing the charge on behalf of his company, which may be beyond our law.
I think I must mention in passing that detention of foreign ships, while it is always possible if a ship is unfit, is not at all as effective as a penalty. If a ship is overloaded, for instance, you can detain it for only so long as it takes to remove the excess load: that is not much of a deterrent.
Nonetheless, for grossly irresponsible violation the Government believe that very large fines and imprisonment are appropriate and that the maximum should stay as it is in the Bill. It is by no means unique in shipping law: there are similar maxima for overcarriage of passengers, for pollution offences and for certain violations of the collision regulations.
The noble Lord, Lord Underhill, referred specifically to the proposed cuts by a ferry company—one of the cross-Channel ferry companies. As I understand it, these cuts do not affect the number of persons making up the crews but the number of crews needed to man each ship continuously. It is the number of men making up the crew that determines safety. I can assure the noble Lord that as always the department will be making sure that those ships are within our statutory minimum manning levels.
My noble friend Lord Mottistone felt that these proposals in the amendment would, if anything, diminish the responsibility of the master. I am hound to say that I tend to agree with my noble friend. In fact I take the point that the noble Lord, Lord Greenway, made about the master taking over a Panamanian registered ship—although I do not think the noble Lord said whether it was within our waters or elsewhere—but I believe that the proposals in the Bill as they stand strengthen the authority of the master in those circumstances. If it had been a UK ship that he had been asked to take over, or indeed a Panamanian ship in our ports, he would have very good justification for doing what he did and a very good defence to the company if' they tried to discipline him for so doing.
In summary, the Government feel that the provisions of the Bill as it stands are fully justified. Therefore I hope that the House will agree with me should the noble Lord decide to press this amendment to a Division once again.
Lord Underhill: My Lords, there is a distinct difference between what is being proposed this time and what was proposed at the Committee stage although the one common factor is an endeavour to separate the responsibilities of the owner—"the owner" covers the charterer, the management company and so on—and those of the master.

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However, if your Lordships will look very carefully at the points under our new subsection (6) of Clause 29, there are reasonable differences for which a master cannot be ultimately responsible. The owner must be responsible for those matters which have been left out. That is why we believe that there ought to be certain responsibilities clearly defined on the owner and certain responsibilities clearly laid upon the master. As I mentioned by quoting from my noble friend Lord Murray of Epping Forest, we have no desire at all to minimise the responsibility of the master if he is guilty of an offence.
I noted what the Minister said about crew numbers being cut by a certain ferry company. I feel that that is not a matter for this Bill—although he mentioned this in connection with the question of undermanning. But if a company finds it appropriate, and it admits that it is on the grounds of economy, to cut 900 staff out of a total of 2,900 officers and ratings, there must either be a terrific improvement taking place in the company—the press report is wrong—or there was gross inefficiency somewhere, because one-third of the officers and ratings are being cut out. Naturally I am glad that the Minister has emphasised the fact that the department will be watching very carefully to ensure that there is no question of lack of safety arising.
The noble Viscount, Lord Simon, referred to proceedings being taken. If he looks carefully at subsection (5) of Clause 29, he will find that I have used exactly the same words in our new subsection (8), save that we now have reference to "subsections (2) or (6)" and not to subsection (2). That is because subsection (5) commences:
"It shall be a defence in proceedings for an offence under this section".
It applies to the first half of the section dealing with the responsibilities of the owner and the second part of the section dealing with the responsibilities of the master. That defence will therefore be common to the owner and to the master. That is the reason for bringing it in.
The noble Lord, Lord Harmar-Nicholls, as a driver, will appreciate that there is the devil of a difference between finding out whether your car brakes are wrong—that can be found out as soon as one goes the first two yards in a car—and the complicated position of a ship. While it may be a good debating point, it is hardly one appropriate to this argument.
I am grateful to the Minister for what he has said. We still believe that the master's position must be made clear. He has responsibilities which he must exercise and liabilities which will fall upon him if he is guilty of an offence. We want the owner's responsibilities to be clearly defined and to be made clear if he is to be guilty of any offences.
As I think is general knowledge, on some of these matters we are advised by NUMAST, the officers' union, which is a most responsible organisation. I can assure the House that it is still concerned about the position and will study carefully what the Minister has said to see whether we need to bring this matter back in some form on Third Reading. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 23:
Page 22, line 12, leave out paragraph (d).
The noble Lord said: My Lords, the amendment is similar to one that I tabled in Committee. My noble friend the Minister said that he did not think the deletion of subsection (2)(d) would have a catastrophic effect on the Bill. He then went on to argue that it should stay in. He said that the subsection caught everything else that might render the ship unfit to go to sea without serious danger to life. He continued:
"That is no more sweeping in its effect than it should be".—[official Report, 26/11/87; col. 757.]
As I said in Committee and will repeat now, I think that the provision is much more sweeping than it should be. The clause contains a type of safety net for the Government, the Minister and the officials of the Department of Transport. If we put this provision into the Bill, what happens in the future does not matter. Something may arise with regard to the safety of a ship that no one can contemplate at the moment, but it will be covered by subsection (2)(d). That is going too far. With the greatest respect to my noble friend, I think that the subsection is sloppy. It is frightfully easy to include "etc," in a sentence. Everyone then assumes that it covers everything, but it is a sloppy way to cover the point.
If one wants to ensure that the safety regulations contained in this clause are dealt with properly, it is beholden upon the Minister and his advisers to think out to the best of their ability (referring no doubt to earlier legislation) the types of situations that it is reasonable to include in the Bill. People will then know where they stand. They are not threatened by some unforseen event. What is more, it makes the Bill much stronger. If everything is contained in it, the owners and the masters about whom we are talking in this clause will have to take the trouble properly to identify the particular areas that are spelt out. If a loose phrase such as "any other matter relevant" is used, how can they know what they are supposed to do? I should have thought that it is bad law, quite apart from being unsuitable for this clause in this Bill.
I hope that my noble friend will come back to what he said before—that he does not think the deletion of this paragraph would have a catastrophic effect on the Bill. That must mean that he reasonably thinks that it could be removed. At a later stage he might like to have another look at the other provisions and tighten them up. I should not object to that. This particular provision offends against all sense of natural justice. I hope that your Lordships will support the amendment. I beg to move.
4.15 p.m.
The Earl of Inchcape: My Lords, I support the amendment moved by my noble friend Lord Mottistone. As he said, this clause will form part of the criminal law, and so it is important that those at risk should know precisely what matters they are liable for. Subsection (2), paragraphs (a), (b) and (c), are already comprehensive in scope. Subsection (2)(d) would merely give a Secretary of State or the Director of Public Prosecutions a catch-all or, as my noble friend said, a safety net, that they could use

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with the benefit of hindsight to cover circumstances that no one now believes should be the subject of criminal prosecution.
Lord Carmichael of Kelvingrove: My Lords, the case put by the noble Lord, Lord Mottistone, is a strong one. We have added our names to the amendment. On a couple of occasions the Minister has said that the deletion of the subsection would not materially affect the Bill. When he sees that there is fairly strong feeling among those who are concerned about the Bill that the provision should be deleted, I hope that he will give it serious consideration. It is always possible to have 20/20 vision after something has happened and realise that something should have been done. This provision plays with an important part of the criminal law.
It strikes me as inconsistent that the Minister should insist on this catch-all phrase when much earlier—I am not harping back—we wanted to give the Secretary of State power to decide whether to impose a condition or make a general refusal in the national interest. There is a similarity in the position. 1 hope that the Minister will see the inconsistency and will therefore take out the subsection.
Viscount Simon: My Lords, I do not want to find myself in a minority of one, but there is a great deal to be said for having some kind of overall figure; after all, the drafting might not be perfect. I shall give an obvious example. Subsection (2)(a) refers to the condition of the ship's hull, its machinery or its equipment. Does that include the absence of equipment that should be there?
As time goes on we might find that there are other matters which give rise to dangers. I do not think that they will arise in the middle of the night. They will be discovered by experience. Over the years we might find that the IMO produces some new theories about what should be done. Do we then have to amend the Bill to make them effective? The provision has been called a catch-all, but I think it is more a safety net, which is just what we want.
Lord Geddes: My Lords, at the grave risk of putting the noble Viscount, Lord Simon, into that minority of one, I should like to support the amendment on the grounds put by my noble friend Lord Mottistone. As he said, subsection (2)(d) is enormously wide and all-embracing. It is not defined anywhere If it stays in the Bill, the matter will be defined by hindsight. That makes it almost impossible for the owner or the master to know what it is that he has done wrong until after the event. The case that the noble Viscount, Lord Simon, produced is, with respect, covered under Clause 30(1). If there was a lack of a piece of equipment—I think that this was the noble Viscount's point—which affected the safety of the ship, that in my opinion would ensure that the ship was not operated in a safe manner. To include a phrase as sweeping as
"or any other matter relevant to the safety of the ship",
is to go too far. I support the amendment.
Lord Brabazon of Tara: My Lords, the noble Viscount, Lord Simon, is not in a minority of one. because 1 too wish paragraph (d) to remain in the Bill.
When the debate took place in Committee I promised to consider the matter further. We have given consideration to it and have looked at the point in great detail. I now confirm that the purpose of the provision is to cover possible reasons for a ship being unfit other than those listed in paragraphs (a) to (c). It is in the Government's view necessary. The object, as I have previously explained, is to cover matters that do not warrant specific mention and to cater for the unforeseen.
In fact, the Government believe that the greatest value of the provision will be to ensure that the courts do not include matters that appear to be related to paragraphs (a) to (c) by giving too narrow an interpretation to those provisions. For example, "improper loading" under subsection (2) might be judged by a court not to include the stowage of dangerous cargoes which need to be segregated, stowed and carried according to strict regulations. A vessel with choked bilges which was therefore unable to keep water pumped out might be considered not to be caught by subsection (2)(a) if a court judged that the condition of the ship referred to was the state of the actual fabric of the ship and its machinery. Another example is that the inability to use safety equipment because of unsatisfactory stowage or cargo on a ro-ro ship might not be caught by "unsafe loading".
Finally, there is the possibility of inadequately qualified crews. In the United Kingdom the qualifications of crews are generally linked to statutory manning levels so that underqualified crew members would not count towards the statutory crew levels, but this is not always the case with foreign flag vessels. Even in the UK different endorsements are required for specialised ships that are in fact outside the statutory manning criteria.
The Government do not deny their responsibility for setting out in statutory instruments, merchant shipping notices, and so on, the specific matters crucial to the safety of a ship to which owners and operators should attend. The Government believe that we need not only specific requirements but general requirements to deal with what cannot be foreseen but which to a court are obviously matters that should have been seen to.
I hope that this goes some way towards meeting the concern of noble Lords who have proposed and supported the amendment that the provision may not be necessary. The Government strongly believe that it is. I also remind the House of the point I made in committee that the effect of the provision is simply to give the words "unfit to go to sea" their full natural meaning. It is surely not unreasonable that if a ship is, in the words of subsection (1),
"not fit to go to sea without serious danger to human life",
that should be an offence. I hope that noble Lords, in view of the consideration that we have given the matter since Committee and my explanation, will agree that this is a useful provision to keep in the Bill.
Lord Strathcona and Mount Royal: My Lords, I had intended to support the amendment, but thought that I should wait to hear what the Minister said. I have to say that I found it disappointing on principle and from a practical point of view.
On principle we are right to be nervous about expressions which mean that the draughtsmen of the Bill and the Government are saying, "Anything that I have not thought of I will do later if I think about it then". That must a be a poor principle of legislation. If one once embarks on having subsection (2) at all, surely one has to make it exhaustive. There may well be a good case for saying that one does not prejudge the issues as regards safety considerations. If the word "relevant" is then introduced, it seems to me that no explanation is given of who is to be the judge of whether it is relevant.
One fully understands the point made by the noble Viscount, Lord Simon, and by the Minister, that situations change. That we accept. One should have thought that most of the points mentioned by the Minister are covered in Clause 30(1). If that is not true, would it not be worth considering an amendment to give the Minister the right to introduce new cases by the positive procedure, subject to the approval of both Houses of Parliament? This means that he does not have to bring in legislation but he can cite new examples when and if they arise without arrogating to himself the right to produce anything out of the air at any time in future when it occurs to him.
I strongly support the amendment unless the Minister tells us that he can think of a more satisfactory legislative way of achieving what he wants.
Lord Brabazon of Tara: My Lords, with the leave of the House, I think that I have responded to that point. We believe that this is the best way of achieving what we want. If my noble friend reads with care the explanation that I have given he may be persuaded that we are right.
Lord Mottistone: My Lords, I thank my noble friend Lord Strathcona and Mount Royal because his solution had occurred to me too; that is, that Clause 29(2)(d) should read to the effect:
"any other matter relevant to the safety of the ship as specified in an order made by the Secretary of State".
That may be the answer. I believe that it is the right way to go about it. I shall withdraw the amendment and bring in an amendment on those lines on Third Reading. I do it that way because it is my understanding that if one takes an amendment of this nature to a Division and loses it, it is unsporting, if not against the rules, to bring it back at a later stage. For that reason, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 and 25 not moved.]
4.30 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 26:
Page 22. line 28, at end insert (; or
(c) in relation to an offence alleged to have been committed by the owner or the demise charterer of the ship, responsibility for its operation had by agreement been placed in the hands of another person and that the defendant was not aware and could not reasonably have been aware that agreement had not been complied with in respect of the matters falling within subsection (2) which are specified in the charge (or. in Scotland, which are libelled in the complaint, petition or indictment).")
The noble Lord said: My Lords, this amendment is linked with Amendments Nos. 27 and 28. I should not have chosen such a grouping, but it has been done. No doubt my noble friend the Minister would wish me to speak to all three amendments. Taking Amendments Nos. 27 and 28 first, I welcome my noble friend's Amendment No. 27. Amendment No. 28 in my name seeks to achieve the same result. However, I think that the Minister's amendment is better so I welcome it and shall not move Amendment No. 28.
Amendment No. 26 provides a defence to an owner or demise charterer who has placed the operation of his ship in the hands of a manager or a sub-charterer and who is not aware and could not reasonably have been aware that that person was not fulfilling the terms of the management agreement or charter by letting the ship fall into a serious substandard condition. Unless a defence of the nature of the amendment can be included, the clause could be very unfair to an owner or a principal demise charterer.
Although subsection (4) extends liability to managers and charterers in addition to owners and masters, it is no consolation to the owner to end up in the dock along with those who are really responsible. The court would have no option but to convict him on the clause as it now stands without my amendment and it would be totally uncertain whether his personal act of responsibility would be recognised by a conditional discharge. The stigma of conviction would remain. It seems therefore that this amendment will not weaken the Bill but will, in the area I have described, make it more fair to the person involved. I hope that my noble friend will be able to give a fair consideration to Amendment No. 26. I beg to move.
The Earl of Inchcape: My Lords, I should like to support this amendment. The shipping industry does not seek to avoid proper responsibility for dangerously unseaworthy ships. But is seems right that liability for the severe penalties provided by the clause should only fall on those who are responsible; that is those who have failed to discharge their obligations and who are aware of it. Shipowners frequently enter into demise charters or management agreements which place the entire operational responsibility on the charterer or ship manager. If the owner knows that those responsibilities have not been properly discharged, he must ensure that the ship is made safe. Often he cannot know because the ship is physically far away. Overloading or undermanning can happen on just one voyage with disastrous consequences.

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In contrast, the master always knows the condition of his ship. Unless a proper defence provision can be included in the clause, not only will it be demonstrably unfair but it will actively discourage United Kingdom registration, the use of British management companies and the use of British banks to finance ship purchases by the demise charter method. I strongly support the amendment of my noble friend Lord Mottistone.
Lord Brabazon of Tara: My Lords, I am grateful to my noble friend for moving the amendment. We recognise that the provisions made in respect of the manager by Government amendment at Committee stage are not yet wholly satisfactory, and we have been trying to develop a solution with the assistance of parliamentary counsel as quickly as possible.
In relation to both clauses there is an omission. Ship owning and operating these days is a complex world, and the extension of these clauses to include ships' managers certainly does not go far enough. When a ship is the subject of a demise charter, otherwise known as a bareboat charter, the charterer will commonly assume all, or nearly all, the responsibilities of the owner. If he manages the ship, he will be caught by Clause 29(4) and Clause 30(4) as they now stand, and all will be well. But if he passes the management to a management company he will not be caught—and he should be. Clearly these subsections need to be expanded to refer, in appropriate terms, to demise charterers.
The other point raised by my noble friend is whether, when there is a management agreement, the parties to that agreement ought to be able to cite that agreement in their own defence. That seems a reasonable proposition and the basic idea is expressed well in my noble friend's Amendment No. 26. However, it may not have escaped your Lordships' attention that while that amendment relieves a defendant of responsibility in particular circumstances, it does not actually transfer the responsibility to anyone else. My noble friend indicated that this was a probing amendment. However, the Government believe that it is desirable that when an offence is created by the fault of the master, somebody in the management chain, be he the owner, manager or anybody else, ought to be vicariously responsible for the master's default. The preparation of an amendment to Clause 29 which meets these concerns is not simple, but we will make every effort to bring forward a satisfactory proposal during the later stages of the passage of the Bill through Parliament.
Clause 30 is much more straightforward. As I explained at Committee stage, the effect of subsection (4) is to make the owner responsible for the steps that it is reasonable for him to take, and the manager responsible for the steps that it is reasonable for him to take, to ensure the safe operation of the ship. I understand that that result is satisfactory to shipowners who are concerned that an owner who carefully appoints a competent manager will not be held liable if that manager unexpectedly fails to perform functions which he has undertaken as manager to perform.
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Government Amendment No. 27 puts it beyond all doubt that that is now the meaning of subsection (4). We shall bring forward later a further amendment to include demise charterers, if we conclude that that is necessary. I hope that my noble friend will be satisfied with what I have said. I promise that we are still looking at this matter.
Lord Mottistone: My Lords, I am indeed grateful to my noble friend for all that he has said both in relation to Amendment No. 26 and to demise charterers in connection with Clause 30. I have no doubt that if it is that difficult, we may not be sure of seeing an amendment at Third Reading, though I very much hope that we do. If not, I hope that the other place will deal with it properly. At this stage I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 [Owner liable for unsafe operation of ship]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 27:
Page 23, line 25, at end insert (", and accordingly the reference in subsection (1) to the taking of all reasonable steps shall, in relation to either the owner or that person, be construed as a reference to the taking of all such steps as it is reasonable for him to take in the circumstances of the case.").
On Question, amendment agreed to.
[Amendment No. 28 not moved.]
Clause 31 [Conduct endangering ships, structures or individuals]:
Lord Underhill Lord Underhill moved Amendment No. 29:
Page 24, leave out lines 3 to 6.
The noble Lord said: My Lords, this amendment relates to Section 27 of the Merchant Shipping Act 1970 dealing with misconduct endangering a ship or persons on board. Clause 31(1), as is made clear by the Notes on Clauses, brings in foreign ships and includes a ship in a UK port or proceeding to such port. But then there are words excluding certain circumstances,
"unless the ship would not be in that port, or (as the case may be) would not be so proceeding, but for weather conditions or any other unavoidable circumstances".
I refer to lines 3 to 6 on page 24. The amendment proposes to delete those four lines. The point of the amendment is that should a ship, in the circumstances set out in the Bill, endanger life, other ships or structures, then it is unreasonable to exclude such ships from the provisions of the clause. It will be recalled that in Committee there was a group consisting of a considerable number of amendments to Clause 31. But no amendment dealt specifically with this matter. Therefore, this is partly in the form of a probing amendment to ascertain the Minister's comments. It seems to us a reasonable amendment and on the Minister's reply will depend whether we come forward with a further amendment at a later stage. I beg to move.
Lord Brabazon of Tara: My Lords, the four lines which it is proposed by this amendment to delete have in fact been a common feature of shipping legislation for many years. The House may be interested to know that the Merchant Shipping Act 1906, which introduced the possibility of detention of of foreign ships that were unfit when in British ports included a specific saving for ships that were coming into our ports under stress of weather, etc. More recently, such a provision is incorporated in the safety of life at sea conventions, such as that one may not enforce the internationally agreed SOLAS standards upon ships that are in one's ports for such reasons.
There is also a body of unwritten international law which limits the extent to which one can require compliance with one's laws in respect of matters that affect only the ship and her crew, and that is the reason for the opening passage of subsection (7). Nonetheless, it would be a mistake to over-generalise. There are important distinctions between Clauses 29, 30 and 31 in this respect. Clause 29 deals particularly with the state of the ship, and it could be considered unreasonable for a foreign ship to fall foul of this provision simply because of the stress of the weather. But there is a defence in subsection (5)(b) which would cover that case, at least to the extent that it ought to be covered. Clause 30 contains a similar provision in subsection (2)(c) and there is a case for its retention because it refers, in effect, to the prior actions of an overseas management. To impose it on ships which had not expected to have to visit this country would have the flavour of a retrospective provision. However, the provision in Clause 31 deals with the way the crew conduct their ship once it has arrived in our waters, and there is no reason why it should be difficult for a crew to comply with our laws once they are here. Accordingly, after giving the matter proper consideration, the Government have decided that we can agree to the amendment.
Lord Underhill: My Lords, the House will understand my hesitancy in rising because I wanted to be certain that I had heard correctly. I am grateful to the Minister for explaining the position and for accepting the amendment.
On Question, amendment agreed to.
Lord Underhill Lord Underhill moved Amendment No. 30:
Page 24, line 40, leave out subsection (4).
The noble Lord said: My Lords, perhaps it would be convenient if, in addition to Amendment No. 30, I deal with Amendments Nos. 31, 33 and 36, which are in effect consequential on Amendment No. 30.
It will be recalled that in Committee a number of amendments to Clause 31 were debated in a group. One sought to delete subsection (4) of Clause 31. I have studied the debate on the amendment and the Minister's observations and have tabled the amendment again. My detailed comments on subsection (4) were set out in col. 762 of the Official Report and I shall not weary the House by repeating them. At col. 765 of the Official Report the Minister, in dealing with the amendment, referred to Section 27 of the Merchant Shipping Act 1970 and said that the
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proposal to leave out this subsection was a fundamental change. I should emphasise that both the National Union of Seamen and the officers' union NUMAST have told me that they have studied the debate and the Minister's comments with great care and both organisations are more than ever convinced that the subsection should be removed from the Bill.
The Minister claimed that the criminal law should apply to merchant seamen in cases where their actions or their failure to act leads to the death of persons, or to persons being seriously injured, or to the loss or destruction of the ships on which they are employed. That, I am advised, is not the real issue. The criminal law already applies, as is confirmed by Section 27 of the 1970 Act. It would seem that the issue is that the law is being refined and extended when there is no need for this to be the case. Section 27(1) of the 1970 Act refers to any act:
"which causes or is likely to cause the loss or destruction of or serious damage to the ship or the death of or serious injury to a person on board the ship".
Will the Minister kindly explain how this section differs in substance from what is proposed in subsection (4)(a) of Clause 31?
We seek to remove subsection (4). This refers to a seaman who,
"discharges any of his duties, or performs any other function in relation to the operation of his ship".
with a consequent loss of life or of the ship and so on. What is the difference between "does any act" in Section 27 of the 1970 Act and the discharge of a duty or function as set out in subsection (4)?
There is the same difficulty when we look at the acts of omission. Section 27(1)(b) of the 1970 Act concerns a seaman who omits to do anything to preserve life or to save a ship. I should point out that that is merely shorthand for what is set out in 18 lines of subsection (1)(b). The subsection we are seeking to remove uses much the same language. There is reference to a seaman who,
"fails to discharge any of his duties, or to perform any such function".
The Bill goes on to explain the disastrous consequences that could arise from that. Once again there seems to be little difference in the two sets of words.
The reason for subsection (4) which we seek to delete appears to be questionable as Section 27(1) of the 1970 Act goes on to say that the act or omission must be deliberate or must amount to a breach or neglect of duty or that the accused seaman must be under the influence of drink or drugs at the time the offence was committed. In other words Section 27(1) of the 1970 Act is a comprehensive and all-embracing piece of legislation. There would appear to be absolutely no need to amend it in the context of subsection (4) of this new clause.
Is it not the case that the contingencies for which cover is now being sought have been covered since the 1970 Act? The question of penalties is not in dispute. These are in line with those of the Health and Safety at Work Act 1974. This point was confirmed by the Minister at Committee stage. Why now is there a necessity for this new subsection (4)? The Government, we believe, having read the debate again, have not made a sound case for its

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introduction. Will the Minister kindly explain the reason? Is the law deficient or unsatisfactory and has this made necessary the refinement and extension of the law by the inclusion of subsection (4)? We seek to delete that. I beg to move.
4.45 p.m.
The Deputy Speaker (Lord Nugent of Guildford): My Lords, before I propose the amendment to the House, I should explain that Amendment No. 31, which is included in this batch, pre-empts Amendment No. 32 and if it is passed I shall not be able to call Amendment No. 32. Furthermore, Amendment No. 33, which is in this group, pre-empts Amendment No. 34, so I should not be able to call that either.
Lord Brabazon of Tara: My Lords, these amendments would, as the noble Lord, Lord Underhill, has explained, delete the new subsection (4) from this clause. In Committee I explained the reason behind this important subsection but I think it is important that I should now do so for the benefit of the House as a whole.
This subsection owes a good deal to the conclusions of the formal investigation into the loss of the "Herald of Free Enterprise". The court investigating that loss expressed the clear view that no statutory offence was committed on that occasion. 1 explained in Committee that, while it would not have been right for me to elaborate at length on that conclusion while the Director of Public Prosecutions was still considering the papers from the coroner's inquest, the Government viewed the present state of the law as unsatisfactory. In short, if members of a ship's crew operate a ship in a way that endangers the ship and its passengers, that should, subject to proper defences, be an offence.
Noble Lords who were present in Committee will recall that Section 27 of the Merchant Shipping Act 1970 as it now stands contains only that offence which in the new clause is set out, now somewhat modified, in subsection (2). The basic limitation on the offence created in that subsection is the conditions imposed by subsection (3), especially subsection (3)(a). The consequence of subsection (3) is that subsection (2) covers acts and omissions that are deliberate or amount to a breach or a neglect of duty. Accordingly, Section 27 has, been regarded by the courts as dealing with offences of a disciplinary character, including malicious acts, that may have nothing to do with a seaman's duty and also allowing prosecutions under primary legislation for acts and omissions that constitute breaches of regulations.
To fill the gap, the Government have prepared the new subsections (4) and (6), which, together with the definition of the duties of the master in subsection (8), form a package. Subsections (4) and (6)(b) taken together introduce a new requirement that crew members exercise due diligence in the carrying out of their duties in so far as they may affect the safety of the ship and its passengers.
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I cannot see that this is an unreasonable requirement. Subsection (6) provides certain other defences of unforeseeability and unavoidability which also apply to the existing disciplinary offences in subsection (2) and have been sought by the seamens' unions for some years. There is one further point to which I would draw the attention of the House in connection with this clause; namely, that there is no possibility of imprisonment on summary conviction and that the maximum penalty is the scale maximum of £2,000, which I think is appropriate.
The noble Lord, Lord Underhill, asked me the difference between subsections (2) and (4). Subsection (2) in covering acts, etc., that are deliberate covers all manner of malicious acts or omissions which may have nothing at all to do with the seaman's duty. Subsection (4), however, deals not merely with whether things are done but how the seaman's duty is done. The Government believe that this subsection is reasonable and that it fills a glaring and extremely unsatisfactory gap in Section 27 as it stands at present, which is essentially disciplinary in nature. The Government consider the state of the law in this area to be far from satisfactory. For these reasons, I am afraid that we cannot agree to this group of amendments.
Lord Underhill: My Lords, 1 am grateful to the Minister for that reply. We are of course dealing with Clause 31, and the Minister referred to the consequences of a person being found guilty of an offence. When I look at page 25 and subsection (5) I see:
"A person guilty of an offence under this section".
That means the whole of the section, including subsection (4). I think my elementary education proves that. It goes on to say:
"on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both".
I believe I heard the Minister say that imprisonment was not a possible sentence under this subsection.
Lord Brabazon of Tara: My Lords, with leave, what I said was "not on summary conviction".
Lord Underhill: My Lords, I shall have to ask my noble and learned friends precisely what the difference is legally. I am glad we have had this debate. We have had it twice, but last time it was included in a big group. This time we have dealt with it on its own, and I am grateful to the Minister. I shall seek further advice on the matter. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 31 not moved.]
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 32:
Page 25, line 24, leave out ("the commission of") and insert ("committing").
The noble Lord said: My Lords, I beg to move Amendment No. 32, and I shall speak also to Amendment No. 34. The first of these amendments is purely a drafting amendment.
The Government bring forward the second amendment to deal, in part, with a point made by the noble Lord, Lord Underhill, at Committee stage. The House will recall that the noble Lord proposed an amendment providing that if a master or seaman had taken reasonable steps to discharge his duty, disciplinary action against him by his employer should be prohibited. In reply, I explained that the fact that a criminal offence had not been committed did not necessarily mean there was no disciplinary offence, and that such matters should be left to industrial tribunals whose very purpose is to resolve disputes between employers and employees. That remains the Government's position.
However, the noble Lord also referred to the fact that seamen were obliged to obey lawful commands, and that if such obedience subsequently led to an accident this could expose the seaman to charges of endangering his ship or the lives of its passengers. This is clearly an unsatisfactory situation, and it is not far-fetched. If, for example, a seaman were to inform the master that in his view a piece of equipment such as a cradle was unsafe and the master nevertheless ordered that repair be delayed, the seaman should clearly not be liable for the consequences.
The Government had thought that the seaman in such a case would have a valid defence under the existing subsection (6), but closer examination shows that he does not. Accordingly, the Government propose a further specific defence whose effect would be that an offence would not be committed if the defendant could only have avoided committing the offence by disobeying a lawful command. The intention of this amendment is to defend officers and seamen against unjust charges, and I hope it will meet with the approval of the House. I beg to move.
On Question, amendment agreed to.
[Amendment No. 33 not moved.]
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 34:
Page 25, line 27, after ("subsections") insert—
("(i) that he could have avoided committing the offence only by disobeying a lawful command, or
(i)").
On Question, amendment agreed to.
Lord Underhill Lord Underhill moved Amendment No. 35:
Page 25, line 32, at end insert—
("(6A) In order that the master can fulfill his duty under subsection 8(b) the owner shall—

(a) ensure that the ship, machinery and equipment is suitable for its purpose and fully serviceable and maintained;

(b) ensure that the master is provided with a crew sufficient in number, experience and qualifications to carry out the safety and commercial functions of the ship;

(c) ensure that ship management and safety policies are clear and fully supportive of the master;

(d) ensure that shore management responsible for the commercial operation of the ship shall include a person of nautical background and qualification able to understand and act upon the advice and requests of the master in respect of all matters relating to onboard management and safety of operation of the ship.

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(6B) A person guilty of an offence under subsection (6B) above shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(6C) Where any such ship is managed by a person other than its owner (whether on behalf of the owner or some other person or on his own behalf), any reference to the owner of the ship in subsection (6A) and (6B) above shall be construed as including a reference to that person.").
The noble Lord said: My Lords, we are still dealing with Clause 31, which is important. In moving Amendment No. 35, we are in effect setting out three new subsections which, in the amendment, are called (6A), (6B) and (6C). Subsection (6A) makes it clear that in order that the master can fulfil his duty under subsection (8)(b) the owner shall ensure four points for which the owner shall be responsible so that the master can properly carry out his duties. Once again, we are setting out clearly the position of the master but also what the owner shall do in order that the master can properly carry out his duties.
We say that it is unreasonable to place a duty on the master for good management and the safety of operation of his ship without ensuring that the owner or the manager, as the case may be, provides the ship, crew, policies, support and knowledge within shore management for the master to carry out his duty. If the master has been joined with the owner under Clause 29—which is the case—then it is only right that the owner should be joined with the master in respect of subsection (8)(b) of this clause.
In reference to the Bill, we show that subsection (8)(b) in this clause refers to,
"'breach or neglect of duty'. except in relation to a master, includes any disobedience to a lawful command".
Then it sets out (a), and then (b):
"in relation to a master, includes his duty with respect to the good management of his ship and his duty with respect to the safety of operation of his ship, its machinery and equipment".
The Minister has said that regulations dealing with operational procedures will be forthcoming. These are held to be insufficient to cover all ships and all aspects of good management. If the master's obligations are set out in primary legislation, the owner must also be included in primary legislation as a follow-on to subsection (8)(b), which I have just read out to the House.
The department has issued various consultative documents following the "Herald of Free Enterprise" inquiry, and the officers' union, NUMAST, has sent me a copy of a detailed response, covering some five pages, which it has sent to Document No. 6, Operational Procedures. Noble Lords will be pleased to hear that I do not propose to read the five pages, but it is important that I should read a few extracts from the reply which NUMAST sent to the department.
Paragraph 2 says:
"Most UK ship operating companies have long established Company's Standing Orders. The real problem is the fact that such Orders are frequently used against masters and officers when such use is convenient to the company, but ignored by the company when it is commercially expedient to do so."
Then, with reference to paragraph 4 of the consulative document, NUMAST says:
"it is not sufficient to refer only to suggestions by masters being 'considered'. Suggestions, requests, and protests made by masters of that company were 'considered', they were refuted."
Paragraph 5 states:
"We are amazed that the Department should be concerned as to whether the proposed requirement might be a "burden" on the companies concerned. If the operators of such ships do not already have operating manuals as part of their long standing practice then they should not be in business".
That is what is said by the officers' union, NUMAST, which is a very responsible body. The report covers five pages, but I do not propose to read them. I have given important quotations from the document.
Amendment No. 35 clearly sets out the responsibilities which must fall upon an owner if the master is properly to carry out his duties. There is then set out what should be the convictions, and subsection (6C) makes quite clear that:
"Where any such ship is managed by a person other than its owner (whether on behalf of the owner or some other person or on his own behalf), any reference to the owner…shall be construed as including a reference to that person."
I think that this amendment is important and I look forward to hearing the Minister's reply. I beg to move.
5 p.m.
Lord Mottistone: My Lords, it is interesting to hear the purpose behind the amendment, parts of which seem reasonable but parts of which are either unnecessary or go a little too far. As a whole, the subsection has the principal effect of placing in positive terms the duties of the owner for which he is penalised if he fails to discharge them. As he is governed by Clauses 29 and 30, I think that the amendment is redundant. However, parts of it may be suitable.
I should like to deal with the parts that I do not like. Subsection (6A)(d) suggests that:
"shore management responsible for the commercial operation of a ship shall include a person of nautical background".
That is not unreasonable, and naturally almost every company has such expertise available. Indeed, it is arguable that to fail to have such expertise would put a ship operator at some peril of commiting an offence under Clauses 29 and 30. Therefore, one could argue that there is no need to include it in the Bill because it is a practical management action which shipping companies have found, from experience over many years, to be necessary. The shipping company of which I was a part, the Royal Navy, has done that all its life. Perhaps some people may say that there are far too many people in shore management. In respect to subsections (6A) and (6B) it is perhaps unreasonable to make failure the subject of severe criminal penalties. There is enough "penalty" within Clauses 29 and 30 to deal with the situation.
Finally, there is what one might call a "practical" objection to part of paragraph (b) which provides for:
"a crew sufficient … to carry out the safety and commercial functions of the ship".
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The success or otherwise of a commercial operation of a ship will be reflected in the financial welfare of the venture. While criminal law is correctly concerned with the safe operation of the ship, the commercial operation should be no concern of it. I think that that part of the amendment is at fault.
I hope that, as matters progress in favour of the amendment in other ways, the noble Lords opposite will feel able to take it away and amend it in substantial detail in order to deal with the points that I have just made.
Lord Brabazon of Tara: My Lords, this is an interesting amendment and contains much with which the Government agree. The Government fully accept that a sloppy and inefficient shipowner or ship's manager can make it very difficult for a master to carry out his duties safely. There are, however, now a range of defences open to the master under subsection (6) and the Government do not believe that failure of the owner would make the master unfairly guilty of an offence. Certainly a bad manager makes a captain's job more demanding, but if he nevertheless makes every effort to carry out his duties safely, he has a valid defence under subsection (6B). And indeed the proposed amendment does not in fact seek to create a new defence.
I come now to the proposed new duties upon the owner in the proposed new subsection (6A). I shall deal with them one by one. Paragraph (a), dealing with the condition of the ship and its machinery, is already dealt with in Clause 29(2)(a) where, incidentally, the penalties are already higher than in this proposed amendment. Paragraph (b) is covered by Clause 29(2)(b) and, in so far as there is doubt about whether crew qualifications are covered there, Clause 29(2)(d) helps to make that certain.
Paragraphs (c) and (d) are not covered by existing legislation. They are dealt with in Merchant Shipping Notice No. M1188, but that is purely advisory. However, in the light of the report of the formal investigation into the loss of the "Herald of Free Enterprise", the Department of Transport has recently issued a consultative document, No. 6, with a number of proposals in this area which it is intended, after consultation, to put in the form of a statutory instrument. A copy of that document was placed in the Library. I should bring two specific proposals in it to the attention of the House.
The first is that shipping companies shall be required to designate, in their shore management, a person with the appropriate experience to have responsibility for matters of operational safety. That is very close to paragraph (d) in the amendment. We shall look carefully at the proposal that such a person should have a specific duty to give proper consideration to advice and requests from masters, though I would imagine that that would inevitably be one of his duties.
The second relevant proposal in CD6 is that shore management should provide an operating manual to cover items and areas that the department will specify. That has something to do with item (c), and certainly I can assure the House that the department, in following through and administering these new

475
proposals, will be watching carefully for a constructive relationship between shore management and ships' crews.
We shall study carefully the comments on the consultative document that have been put to us by NUMAST. We are grateful and it is important that we receive carefully considered comments on these proposals from the representatives of officers. We shall study them most carefully. I agree with the point made by noble friend Lord Mottistone that proposed subsection (6A)(b) imposes commercial duties, and I agree with my noble friend that that should not be the case.
In summary therefore the Government believe that the master is already properly protected in this clause against being convicted of an offence which was management's fault; and that the proposed new duties upon the owner are either already dealt with in the Bill or will shortly be covered in orders. On the basis of those assurances, I hope that the noble Lord will be able to withdraw this amendment.
Lord Underhill: My Lords, I am certain that this short debate has shown quite clearly that all noble Lords are concerned to do the utmost for the safety of shipping and shipping vessels, and to do anything that is practical and necessary arising from the inquiry into the "Herald of Free Enterprise".
I am grateful for the helpful comments of the noble Lord, Lord Mottistone, and also for the conciliatory attitude of the Minister, if I might use that word. This matter has not been before the House previously in Committee and the extracts which I read from the NUMAST comments on the Department's consultative document were dated only 7th December. This is the union's first shot at the matter and I am told that they are its initial comments. The Minister's comments will be helpful to it should it wish to proceed with further points. I believe that the exchange of views and the Minister's assurances to look at the matter with great care, particularly as regards regulations arising from the consultation, will be extremely helpful. We shall consult further with NUMAST; but, meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 36 not moved]
Schedule 4 [Amendments relating to Liability and Compensation for Oil Pollution Damages]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 37:
Page 60, line 19, at end insert (", and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank").
The noble Lord said: I will with the leave of the House speak also to Amendment No. 38. They are minor drafting amendments intended to make it absolutely clear that oil pollution compensation arrangements apply to spillages of bunker oil as well as that of cargo. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 38:
Page 66, line 43, after ("occur") insert (", and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank").
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 39:
After Clause 35, insert the following new clause:
("Licensing of tidal works by harbour authorities.
.—(1) Where—

(a) it appears to the Secretary of State that any harbour authority have, by virtue of any statutory provision, power to license or otherwise regulate operations of any description falling within any of paragraphs (a) to (c) of section 34(1) of the Coast Protection Act 1949 ("the relevant power"), and

(b) he considers it appropriate to do so,
he may make regulations providing for section 34 of that Act not to apply to operations of that description in relation to which the relevant power is exercisable and which are carried out within such area or areas falling within the jurisdiction of that harbour authority as may be specified in the regulations ("the prescribed operations"); and, if he does so, the relevant power shall be exercisable by the harbour authority, in relation to the prescribed operations, subject to and in accordance with the following provisions of this section.

(2) Regulations made by the Secretary of State under this section with respect to any harbour authority may make provision—

(a) in connection with the exercise by the authority of the relevant power in relation to the prescribed operations—

(i) for any matter for which provision is made by sections 34(2) to (4A) and 36 of the Coast Protection Act 1949, and

(ii) for any provision of the regulations made in pursuance of sub-paragraph (i) above or any of paragraphs (b) to (g) below to have effect in addition to or in substitution for any other statutory provision which (apart from the regulations) has effect in that connection:

(b) requiring the authority to advertise in such manner as may be specified in the regulations—

(i) any application made to them for the grant of a licence in the exercise of the relevant power, and

(ii) the grant of any such licence and any conditions subject to which it has been granted,
and to give to the Secretary of State such notice of any of those matters as may be so specified;

(c) enabling representations to be made with respect to any such application in such manner as may be specified in the regulations;

(d) requiring the authority, when determining any such application, to have regard to any representations made in accordance with the regulations so far as touching on any consideration material to the authority's decision on the application;

(e) enabling an appeal to the Secretary of State to be brought, by such persons, on such grounds and in such manner as may be specified in the regulations, against—

(i) the grant or refusal of any such licence, or

(ii) any conditions imposed on the grant of any such licence;

(f) for the operation of any such licence to be suspended during the period during which such an appeal may be brought and, if such an appeal is brought by a person other than the applicant, until such time (if any) as the authority's decision on the application is affirmed by the Secretary of State;

(g) authorising the Secretary of State on such an appeal to do any of the things mentioned in subsection (6)(a) to (c) below;

(h) for any statutory provision having effect in relation to the authority to have effect subject to such modifications as appear to the Secretary of State to be necessary or expedient—

(i) for the purpose of making provision for any matter for which provision may be made by virtue of any of paragraphs (a) to (g) above, or

(ii) in consequence of any provision of the regulations made in pursuance of any of those paragraphs.

(3) Where—

(a) any regulations under this section are in force in relation to a harbour authority, and

(b) the authority have determined an application made to them. for the grant of a licence in the exercise of the relevant power, and

(c) no appeal has been brought under the regulations in respect of their determination of the application, but

477

(d) the Secretary of State considers that it would be appropriate in the interests of safety of navigation for the application to be redetermined by him,

the Secretary of State may, within the period of 30 days beginning with the date of the authority's determination, serve a notice on the authority requiring them to furnish him with written particulars of their determination, and with any documents in their possession relating to the application, in order that he may redetermine the application.
(4) Where the Secretary of State serves a notice under subsection (3) in respect of any application—

(a) the Secretary of State shall serve a copy of that notice on the applicant and shall, in such manner as he thinks fit, advertise the fact that the application is to be redetermined by him; and

(b) the operation of any licence granted by the authority in pursuance of the application shall be suspended until such time (if any) as the authority's decision to grant the licence is affirmed by the Secretary of State under subsection (6).

(5) The Secretary of State shall, when redetermining any application, have regard to any representations made to him by persons appearing to him to be likely to be affected by the operation to which the application relates where those representations have been made to him within the period of 60 days beginning with the date (or, as the case may be, the latest date) of (he publication of any advertisement published in pursuance of subsection (4)(a).
(6) Where the Secretary of State redetermines an application, he may (according to the circumstances of the case)—

(a) direct the harbour authority to grant either—

(i) a licence free from conditions, or

(ii) a licence subject to such conditions as are specified in the direction,
as he thinks fit:

(b) direct the habour authority to cancel any licence granted by them in pursuance of the application; or

(c) affirm the harbour authority's determination of the application.

(7) Any direction given by the Secretary of State under subsection (6)(a) shall he a direction requiring the authority in question to grant such a licence as is mentioned in sub-paragraph (i) or (ii) of that provision either—

(a) in the form in which it was originally applied for by the applicant, or

(b) in that form but subject to such modifications as are specified in the direction.

as the Secretary of State thinks fit; but where the Secretary of State proposes to specify any modifications under paragraph (h) above which appear to him to be capable of resulting in any substantial interference with navigation—

(i) he shall take such steps as appear to him to be reasonably practicable for informing persons likely to be concerned, and

(ii) shall not so specify those modifications unless there has elapsed such period for consideration of, and comment upon, them as he thinks reasonable.

(8) The power of the Secretary of State to make any regulations under this section with respect to any harbour authority shall be exercisable by him either—

(a) on the application of the harbour authority, or

(b) of his own motion after consulting the authority.

(9) On each occasion when a harbour authority grant a licence in the exercise of any such power as is mentioned in subsection (1) (whether they do so in pursuance of the preceding provisions of this section or not) they shall furnish the Hydrographer of the Navy—

(a) with written particulars of the operation to which the licence relates, and

(b) if so requested by him, with such plans and additional information relating to the progress or completion of the operation as he requires for the purpose of determining whether, and if so what, changes should be made to any chart published under his superintendence.

(10) It shall be the duty of any harbour authority to whom the Secretary of State gives a direction under or by virtue of this section to give effect to the direction.
(11) In this section "licence" includes a consent or permission and references to the grant of a licence accordingly include references to the giving of a consent or permission.").
The noble Lord said: My Lords, under Section 34 of the Coast Protection Act 1949 the written consent of the Secretary of State is required for any operation in tidal waters that may adversely affect the safety of navigation. In this context an operation means constructing any works or depositing or extracting any material. The purpose of this new clause is to empower the Secretary of State to make regulations that would disapply this requirement when the operation in question is to be undertaken within the area of responsibility of a harbour authority and so may also be subject to licensing by that authority under its private Act. It is appropriate to deal with the matter by regulations because the provisions of such Acts vary widely and are not susceptible to a single measure.
In many other cases the relevant Act requires the Secretary of State to defer his consideration of an operation under Section 34 of the Coast Protection Act until a licence for it has been issued by the harbour authority. The harbour authority's Act too may require the Secretary of State to consider an appeal against the refusal by that authority to grant a licence for an operation. These provisions lead to duplication of effort and delay. The new clause therefore permits the Secretary of State to promote regulations, after due consultation, that would provide that any power of a harbour authority to license operations should be extended to consideration of the adverse effects that these works, and the use to which they may be put, might have on safety of navigation; to the imposition of such conditions as the authority may think fit; and include the power of enforcement that harbour authorities currently possess under Section 36 of the Coast Protection Act 1949. In addition the regulations would convey a right of appeal to the Secretary of State if the relevant harbour authority's Act does not already do so.
The new clause provides that if an appeal were made to the Secretary of State he would have the right to dismiss it or to accept it or to grant a licence subject to such modifications as he saw fit. But the Secretary of State would be empowered to reserve both the right to review any decision by a harbour authority and the right to retain control over operations within a part of a harbour authority's area.
The new clause lays a duty on the harbour authority to advertise applications for licences; to take into account representations by persons whose interests are affected; to advertise the grant of licences; to defer their implementation for a period which I expect to be set at 30 days so that appeals may be lodged; and to provide information on the operation to the Hydrographer of the Navy.
I regret that owing to an administrative slip the time periods given in subsections (3) and (5) of the new clause have been transposed. We will be correcting this mistake at Third Reading. The intention is that the Secretary of State will have 60 days from the date of an authority's determination in which to serve notice requiring information to be furnished to him with a view to redertermination; and that in making such a redetermination he shall have regard to representations made within 30 days of the

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notice of redetermination having been served on the applicant. The new clause also permits amendments to be made by regulation to the relevant private Act.
Two other minor technical amendments will be needed to this clause. The Secretary of State's powers to review a harbour authority's decision under this clause is excluded when there has already been an appeal to him under the regulations; that appears in subsection (3)(c). The power should also be excluded where an appeal has been made, not under the regulations themselves but under the harbour authority's own private legislation whether it has been adapted by the regulations or allowed to stand.
Conversely, the power to review a decision would also be included where no appeal has been made, first, not under the regulations, and, secondly, not under the harbour authorities own private legislation either because the regulations did not adapt the appeal provisions. I propose to introduce amendments to this effect on the Third Reading.
I hope with that somewhat lengthy and technical explanation to this new clause, your Lordships will approve it. I beg to move.
5.15 p.m.
Lord Underhill: I am grateful to the Minister for that explanation. Needless to say, I do not propose to comment on it at this stage. The question of licensing of tidal works by harbour authorities is a very important matter. As noble Lords will have noticed, it covers three and a third pages of the Marshalled List. I am grateful to the Minister for the Notes on Clauses, four pages long, which were received at lunchtime today. Therefore, I should like to consult those, read what the Minister says, welcome what other amendments he is bringing forward at Third Reading and then decide whether it is necessary for us to bring forward further amendments.
Viscount Simon: My Lords, I wonder whether I might raise a small point on this rather long and complicated clause. When I first read it I was rather defeated over how it is brought in within the Long Title of the Bill. There is a reference to the safety of shipping in the Long Title, but then the Secretary of State's powers under this clause do not seem to be particularly related to the safety of shipping. They may be related to environmental matters or all sorts of things of that kind, I should have thought. There is no reference to safety of shipping in the clause.
Lord Brabazon of Tara: My Lords, subject to advice which I may be able to relay to the noble Viscount in due course, for the moment I shall have to rest on "connected purposes" in the Long Title.
On Question, amendment agreed to.
Clause 36 [Amendment of Part III of Merchant Shipping Act 1974]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 40:
Page 31, line 37, leave out ("the carriage of goods or passengers by sea") and insert ("any shipping services").
The noble Lord said: My Lords, with the leave of the House, I shall speak also to Amendments Nos. 41, 42, 43 and 44 and 62. These amendments fulfil the commitment I gave in Committee to accept in principle amendments tabled by my noble friends Lord Gray of Contain and Lord Mottistone which were designed to strengthen the powers currently available in the Merchant Shipping Acts of 1974 and 1979 for the Government to take action against measures by other countries which may damage British shipping or trading interests. Clause 36 already extends the coverage of the present powers to include the carriage of passengers, as well as goods. But this would still leave a number of important shipping activities uncovered. The amendments would therefore enable the Secretary of State to take action where the measures adopted by a foreign country concern any services provided my means of ship. I beg to move.
Lord Mottistone: My Lords, I should very much like to thank my noble friend for coming forward with these amendments, which he undertook to make on behalf of my noble friend Lord Gray of Contain and myself. It is very nice to see them in the Bill.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 41 to 44:
Page 32, line 5, leave out subsection (3) and insert—
("(3) The following subsection shall be substitued for section 14(3)—
"(3) The Secretary of State may by order provide for—

(a) regulating the provision of any shipping services and the rates, fares or other amounts which may or must be charged for providing those services:

(b) regulating—

(i) the admission and departure of ships to and from United Kingdom ports.

(ii) the nature of the shipping services they may be used to provide (whether by reference to the cargoes or passengers they may carry or otherwise), and

(iii) the loading or unloading of cargoes, the embarkation or disembarkation of passengers, or the doing of other things in connection with the provision of any shipping services;

(c) regulating the making and implementation of agreements (including charter-parites) whose subject matter relates directly or indirectly to the provision of any shipping services, and requiring such agreements to be subject to the Secretary of State's approval in such cases as he may specify;

(d) imposing charges in respect of ships which enter United Kingdom ports in connection with the provision of any shipping services:

(e) imposing, in pursuance of any Community obligation, such tax or duty payable by such persons and in such circumstances as the Secretary of State may specify,

and in this subsection "regulating". except in relation to the rates, fares or other amounts which may or must be charged as mentioned in paragraph (a) above, includes imposing a prohibition." ").
Page 32, line 21, at end insert—
("( ) In section 14(4) (orders under subsection (3)), for "subsection (1)(a)" substitute "subsection (1)(i)".").
Page 32, line 38, after ("Kingdom:") insert—
("( ) "shipping services" means services provided by means of ships, and includes the carriage of goods or passengers by sea, cable laying dredging, and services provided by offshore support vessels;").
Page 33, line 23, after ("description") insert (", or providing any other specified shipping services (within the meaning of the principal section)").
On Question, amendments agreed to.
Schedule 5 [Miscellaneous Amendments Merchant Shipping Acts]:
Lord Mottistone Lord Mottistone moved Amendment No. 45:
Page 73, line 4, at end insert—
"( ) In section 42 (trade disputes involving seamen), omit subsection (2).")
The noble Lord said: My Lords, this is part of a similar amendment moved at Committee stage which I think my noble friend the Minister viewed somewhat favourably. I hope perhaps he will do so again. For the benefit of the House, this amendment would repeal the operative part of Section 42 of the 1970 Merchant Shipping Act. That operative part, which is not at this moment repealed, permits a seaman to give 48 hours notice of intention to go on strike while his ship is in a port. This enables a seafarers' union to call men out on strike without complying with the ballotting provisions of the Trade Union Act 1984. It has frequently been used to hold up ferries, off-shore supply vessels and other ships. Its repeal, therefore, is strongly supported by shipowners because it would put them in the same position as other British employers. They would be no better off but also they would be no worse off. So it seems thoroughly sensible that this repeal should take place in order to bring the 1970 Merchant Shipping Act up to date with later legislation. I beg to move.
Lord Underhill: My Lords, I hope that the Minister will resist the amendment. It is, in effect, the same as Amendment No. 95 which we had at Committee stage. I dislike repeating arguments at Report stage which I used at Committee stage. Therefore perhaps I may just content myself by saying that Section 42 of the 1970 Act was introduced following a very full inquiry presided over by Lord Pearson which reported in 1967. It may be argued that 1967 was 20 years ago, but at that time the report was supported by the General Council of British Shipping and the maritime unions.
I was pleased to note that at Committee stage the Minister said at col. 786 of Hansard for 26th November:
"I am not aware that there have been any serious incidents of the use of Section 42(2) recently".
I have noticed that the Minister has not seen fit to bring forward a government amendment. I hope that means that the Government have no intention of supporting the amendment. I did not sense in the Committee stage any indication that the Government so intended, but I hope that they will resist this amendment.
The Earl of lnchcape: My Lords, I should like to support the amendment of my noble friend Lord Mottistone. At the Committee stage, I explained that the industry sought to repeal this anachronistic provision in order to place it in the same position as
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other employers—as my noble friend said, no better off, but no worse off.
In Committee the Minister seemed to show some sympathy for the proposal, but suggested that the amendment then under discussion went too wide and would be confusing in effect. This amendment is more narrowly drawn. This is no academic matter. Only last week Section 42 was used to call out on strike, without a ballot, seamen serving on six offshore supply vessels. I hope that the Minister will accept the amendment.
Lord Brabazon of Tara: My Lords, during Committee I said that the Government had some sympathy with the case for repealing this provision and undertook to look carefully at the arguments. In the light of further consideration, I am satisfied that there is a good case for repeal. Noble Lords will recall that I sketched out the background to the provisions of Section 42(2) in some detail during Committee.
In the first place Section 42(2) has been largely overtaken by the provisions in the 1974 Merchant Shipping Act which have legitimised industrial action by seafarers while their ship is not at sea. Secondly, Section 42(2) has been abused in the past and might be open to abuse in future. Indeed my noble friend Lord Inchcape has detailed a difficulty very recently, which apparently was connected with this.
Thirdly, I am now satisfied that the repeal of Section 42(2) would not significantly disadvantage seafarers. Even without Section 42(2), seafarers would still be able to give notice of their intention to take industrial action in accordance with their terms of employment in the same way as employees in other industries. The noble Lord, Lord Underhill, pointed out during Committee that without Section 42(2) seafarers taking industrial action would be individually liable to pay compensation to their employers in accordance with Section 39 of the 1970 Act. This is so. But the fact is that an employee in any other industry who breaches his contract of employment to take industrial action also lays himself open to civil proceedings by his employer: and in such proceedings the seafarer is considerably better off than his counterpart elsewhere, as he has the protection of Section 39 of the 1970 Act which enables him to limit his liability to a maximum of £100; employees in other industries are not able to limit their liability in this way.
The noble Lord, Lord Underhill, also mentioned the relationship between Section 42(2) and the committee of inquiry chaired by Lord Pearson which reported in 1967. In fact, the Pearson Committee was firmly opposed to industrial action by seafarers combining to disobey lawful commands on the grounds that such action. might threaten the safety of the ship. The Committee recognised that there would therefore need to be safeguards for the seaman's right to take some form of industrial action although they did not attempt to define what these might be. But Pearson reported 20 years ago and, whatever the noble Lord, Lord Underhill, may say, industrial relations have come a long way since then. Industrial action by a seafarer no longer necessarily lays him open to criminal proceedings. At the same time there is no reason why a seafarer should not continue to be

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open to civil proceedings which could be taken against employees in other industries.
We have therefore concluded that the repeal of Section 42(2) is justified and I am therefore able to accept my noble friend's amendment. I am advised that two further minor consequential amendments will be needed if the repeal is included in the Bill and the Government will bring these forward at a later stage.
Lord Carmichael of Kelvingrove: My Lords, the Minister will be aware that it has come as quite a surprise that he has accepted this amendment after what we were led to believe at Committee stage. I should like to know what consultations he had with the seamen's union on this matter. I should also like to know about the paving and consequential amendments that he is likely to table. We consider that it is extremely serious at this very late hour to accept such an important amendment and we certainly reserve the right to consider the matter when we come to Third Reading.
Lord Brabazon of Tara: My Lords, with the leave of the House I should like to say that I made it pretty clear at Committee stage that we were going to look very carefully at the arguments and if appropriate would bring forward an amendment on Report. We did not have time to bring forward an amendment on Report. However, my noble friend put down the same amendment as he put down at Committee stage and therefore with that amendment there I have to say now that we are going to accept it.
Lord Mottistone: My Lords, I am most grateful to my noble friend for his very careful explanation which, to my mind, gives real strength to the amendment and is a good reason for it.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 46:
Page 73, leave out lines 25 to 27 and insert—
("75A—(1) Where under any enactment a document in the custody of the Registrar General of Shipping and Seamen is open to public inspection—").
The noble Lord said: My Lords, I beg to move Amendment No. 46 and with the leave of the House I shall also speak to Amendments Nos. 47 to 50 at the same time. These amendments will enable the offices of the Registrar-General of Shipping and Seamen to operate more efficiently. He is responsible for the custody of many documents and it is sensible that modern technology should be utilised for better record-keeping. The amendment takes account of the fact that documents are received not just by virtue of certain sections of the 1970 and 1894 Acts, but under other enactments as well. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 47 to 50:
Page 73, line 35, leave out ("and for the purposes of paragraph (a)") and insert—
("(2) For the purposes of subsection (1)(a)").
Page 73, line 36, leave out from ("1894") to ("a") in line 37 and insert ("in its application to any such document,").
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Page 73, line 41, leave out from ("document") to end of line 45 and insert ("sent to him under or by virtue of any enactment if it has been in his custody for a least 10 years,").
Page 74, leave out line 1 and insert—
("(2) Where any such document has been so destroyed—

(a) any enactment providing for the document to be admissible in evidence or open to public inspection; and

(b) section 75A above,

shall apply to the").

On Question, amendments agreed to.
Schedule 6 [Minor and Consequential Amendments]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 51:
Page 75, line 2, at end insert—
("SEA FISHERIES ACT 1868 (c. 45)
For section 26 substitute—
"Registered fishing boats and foreign fishing boats within British waters to hare official papers.
26.—(1) The master of every sea-fishing boat which is registered under Part 11 of the Merchant Shipping Act 1988 shall (whether his boat is within British waters or not) have on board the certificate of registration issued in pursuance of that Part of that Act.
(2) The master of every foreign sea-fishing boat within British waters shall have on hoard official papers evidencing its nationality.
(3) If any person, without reasonable excuse (the proof of which lies on him), contravenes subsection (1) or (2) of this section, he shall be liable on summary conviction to a fine not exceeding the second level on the standard scale; and where a fine is imposed under this subsection on the master of a foreign sea-fishing boat the court may order the boat to be detained for a period not exceeding three months from the date of the conviction or until the fine is paid (whichever period is the shorter).
(4) Section 8(4) of the Sea Fisheries Act 1968 (power of British sea-fishery officer to take fishing boat to nearest port and detain it there) shall apply in relation to a contravention of subsection (1) or (2) of this section as it applies in relation to such a contravention as is mentioned in that provision.
(5) In this section—
"British waters" means waters within the seaward limits of the territorial sea adjacent to the United Kingdom. the Channel Islands and the Isle of Man;
"foreign sea-fishing boat" means a sea-fishing boat which—

(a) is not registered in the United Kingdom, the Channel Islands or the Isle of Man, and

(b) is not excluded from registration by regulations under section 12 of the Merchant Shipping Act 1988, and

(c) is not wholly owned by persons qualified to be owners of British ships for the purposes of Part I of the Merchant Shipping Act 1894;

"master" includes, in relation to any sea-fishing boat, a person for the time being in command or charge of the boat."").
The noble Lord said: My Lords, I beg to move Amendment No. 51 and at the same time I shall speak to Amendments Nos. 60 and 61. These amendments substitute a revised Section 26 of the Sea Fisheries Act 1868. The substance of the original section, which makes it an offence for fishing vessels not to carry certificates of registry or, in the case of foreign vessels, other evidence of nationality, remains the same. The opportunity has also been taken to alter the drafting of our Victorian forbears and to bring its prose into the 20th century. One small change of substance is that the powers of British sea fishery officers to bring into port vessels infringing this section will be exercisable only for offences committed within British fishery limits. This brings the scope of enforcement for this offence into line with that for other sea fishing offences. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 52:
Page 76, line 2, leave out (""section 373"") and insert (""exempted"").
The noble Lord said: My Lords, in moving Amendment No. 52, I should like at the same time to speak to Amendments Nos. 53 to 59 inclusive. These are minor adjustments to certain other enactments principally in fisheries legislation amending references there to fishing vessels registered or exempted from registry under the 1894 Act to refer instead to vessels registered or excluded from registration by regulations made under this Bill. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 53 to 59:
Page 76, line 3, after ("substitute"") insert ("excluded from registration by regulations under").
Page 76, line 8, leave out (—section 373 of the Merchant Shipping Act 1894" substitute"") and insert ("the words from "exempted from" to "1894" (where first occurring) substitute "excluded from registration by regulations under").
Page 76, line 9, at end insert (", and for "so exempted" substitute "so excluded".").
Page 77, leave out lines 6 to 8 and insert (", for paragraphs (b) and (c) substitute—
"(b) excluded from registration by regulations under section 12 of the Merchant Shipping Act 1988; or")
Page 77, line 16, leave out ("after "1894" insert "or") and insert ("for the words from "fishing boat" (where first occuring) to "1894" substitute "fishing vessel").
Page 77, line 35, leave out (""section 373"") and insert (""exempted"")
Page 77, line 35. after ("substitute"") insert ("excluded from registration by regulations under").
On Question, amendments agreed to.
Schedule 7 [Repeals]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 60:
Page 81, line 10, column 3, after ("paragraphs") insert ("23,")
The noble Lord said: My Lords, I spoke to Amendments Nos. 60 and 61 with Amendment No. 51. I beg to move.
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 61:
Page 81. line 42, column 3, at end insert ("In Schedule 2, paragraph 3.")
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 62:
Page 81, line 50, column 3, at end insert ("In section 40, in subsection (1) paragraphs (a), (c) and (d), and subsection (2).")
The noble Lord said: My Lords, I spoke to Amendment No. 62 with Amendment No. 40. I beg to move.
On Question, amendment agreed to.

Copyright, Designs and Patents Bill [H.L.]
5.31 p.m.
Lord Beaverbrook: 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 Beaverbrook.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD MURTON OF LINDISFARNE in the Chair.]
Lord Denham: It may be a convenient moment for me to say a few words about the progress we hope to make today on this Bill. As I informed your Lordships last Thursday, it is our wish to sit until midnight tonight, no later than 6 p.m. on Thursday, and to complete the Bill on Tuesday 12th January. Your Lordships may wish to know that so as not to overburden business on the last day, it would be helpful were we to try to reach Amendment No. 274AZA tonight—that is to say, to complete Part I and Schedule 1 of the Bill.
Clause 105 [Licensing schemes and licensing bodies]:
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 238D:
Page 44, line 12, leave out from ("society") to ("licences") in line 16 and insert ("corporate body or other organisation which negotiates or grants, either as owner or prospective owner of copyright or as agent for him,")
The noble Lord said: This chapter of the Bill, Clauses 105 to 131, sets out the jurisdiction which the Copyright Tribunal will have over the terms of licences offered by licensing bodies on behalf of groups of copyright owners; for example, the Performing Rights Society, Phonographic Performance Limited or the Copyright Licensing Agency.
The CBI which has suggested this amendment, together with others that I shall move later, is concerned primarily in relation to bodies which might offer licences for photocopying material although most of the proposed amendments are worded so as to apply across the whole range of the tribunal's jurisdiction and not simply to photocopying.
These amendments are particularly important as the amendment of my noble friend Lord Mottistone, Amendment No. 127 to Clause 29, was not accepted. Industry will now have to seek licences for photocopying which have hitherto been permitted as fair dealing. Chapter VII of the Bill gives the Copyright Tribunal jurisdiction over the terms of licences and licensing schemes only if they are operated by a "licensing body" as defined in Clause 105(2). That definition as currently worded restricts "licensing body" to organisations which have as one of their main objects the negotiation or granting of licences.
Why should this be? If an existing organisation of publishers decides to set up a licensing scheme for its members that would presumably—in terms of the constitution of that organisation—be a subsidiary rather than a main objective of the organisation. Hence the scheme would escape the jurisdiction of the copyright tribunal. I suggest that it would be far more reasonable that the jurisdiction of the tribunal should depend on the nature of the licences being offered rather than on the constitution of the body which is granting them. I beg to move.
Lord Morton of Shuna: The difficulty that I have with this amendment is that it would appear to give an opening for a publisher or a recording company which buys out copyright or negotiates copyright on behalf of its authors, music writers or performers to have complete control in negotiating schemes. It would therefore be a different type of organisation than the Performing Rights Society and the various other organisations with which we are dealing. This seems to me too wide a definition; it would let too many potential people in.
Lord Denning: In a way I should like to support this amendment. I wish to draw attention to a particular difficulty in the Bill. In my young days in chambers the Performing Rights Society was one of our customers. I got to know a good deal about licensing systems.
This amendment, or something to make the position clear, is very necessary. As I read Clause 105(2) it seems simply a statement of the company law as regards what is within a licensing body's powers and what is without its powers. Everyone knows that the objects clause in a memorandum of association is now drawn exceedingly widely so that the company can do practically anything it likes. A similar case exists in this definition of a "licensing body" which states that it is an organisation;
"which has as its main object, or one of its main objects"
this that and the other. It states what the objects include. That is typical of a wide objects clause in a memorandum of association of a limited company.
That is all very well. In a way one might like to see it pass, but throughout this part of the Bill the contrasting words,
"the operator of the scheme"
appear. Those words are not defined at all. Throughout the whole of the Bill it is the operator of the scheme who has to do this, that and the other. The operator of the scheme is well defined in what my noble friend Lord Cullen of Ashbourne said. He defined it as a,
"corporate body or other organisation which negotiates or grants, either as owner or prospective owner of copyright or as agent for him".
In other words that definition really refers to the operator of the scheme. At all events it is most important in the clauses on licensing to distinguish between the licensing body on the one hand and the operator of the scheme on the other. Either this amendment should be accepted or, better still, a definition included to say what the operator of a scheme is. Then it will be the operator of the scheme who has to deal with the matter. My plea would be to accept the amendment in a sense but really to put it under the definition of the proposer of the scheme.
Lord Beaverbrook: This amendment would widen the definition of a licensing body significantly so that it was no longer a necessary condition that such a body had as its main object, or one of its main objects, the granting of copyright licences. The controls of ChapterVII are primarily intended to deal with the collective licensing of copyright. The effect of this amendment would be to bring within the
488
definition of a licensing body many individual publishers, many of them no doubt small. Although we have not had time to consider the implications of this suggestion fully, it is unlikely to be acceptable since it comes close to bringing the licensing of individual works within tribunal control. For that reason, I feel it necessary to oppose this amendment.
Lord Cullen of Ashbourne: I am very grateful to the noble and learned Lord, Lord Denning, for his support. I beg leave to withdraw the amendment at this stage and I shall possibly come back to it later.
Amendment, by leave, withdrawn.
Clause 105 [Licensing schemes and licensing bodies]:
On Question, Whether Clause 105 shall stand part of the Bill?
Lord Simon of Glaisdale: I have two short drafting points to raise. I am reluctant to question the drafting of what has been generally accepted as a well-drafted Bill. However, I should like to ask the Minister to consider with the draftsmen whether lines 10 and 11 are necessary. I should have thought that they could be taken for granted.
The other matter concerns the words to which the noble Lord, Lord Cullen, referred in the context of Clause 29. The words are:
"its main object, or one of its main objects".
When the Committee discussed Clause 29 at considerable length, I ventured to question whether the Minister was right in reading into that clause the words "primary purpose". If one now finds, as a matter of construction, that the words:
"its main object, or one of its main objects"
are correct, it seems to me that that argument is reinforced. I have written to the Minister concerning that matter. I doubt that he has had time to consider it. But perhaps he can also consider that aspect in view of the drafting of the clause.
Lord Williams of Elvel: I should like to make more or less the same point as that made by the noble and learned Lord, Lord Simon, concerning lines 10 and 11, partly because I do not really understand what they mean. The words are:
"in the nature of a scheme"
and the Bill goes on to say:
"whether described as a scheme or as a tariff or by any other name.
Perhaps the noble Lord can give us some clarification as to exactly what that means.
Lord Beaverbrook: I am grateful to the noble and learned Lord for his comments. I received a letter from him on the point he raised earlier in our Committee debate concerning the phrase "primary purpose". I shall be considering what he has said to me in regard to that matter and responding to it.
The noble and learned Lord, Lord Simon and the noble Lord, Lord Williams, have mentioned to me lines 10 and 11. As regards the words:
"in the nature of a scheme"
what we are alluding to is that a description of a scheme is a difficult matter on which to be definitive.

489
Many schemes will have a different nature, depending on what they arc dealing with and the way in which they are operated. However, I shall look further into the matter and write both to the noble and learned Lord and the noble Lord mentioning the matter. I shall place a copy of my letter in the Library.
Clause 105 agreed to.
5.45 p.m.
Clause 106 [Scope of general control of licensing schemes]:
On Question, whether Clause 106 shall stand part of the Bill?
Lord Williams of Elvel: I am sorry to ask the noble Lord another possibly trivial question. I understand the meaning of Clauses 106(a) and 106(b) except in respect of film sound-tracks when they do not accompany a film. The Bill as drafted specifically refers to licensing schemes operated in relation to copyright for this, that and the other, including film sound-tracks when accompanying a film. However, the Bill does not say anything about sound-tracks not accompanying a film. Perhaps the noble Lord can help me.
Lord Beaverbrook: Clause 106 introduces a group of clauses concerned with the control of licensing schemes. The licensing schemes in respect of the first group of works come under the tribunal only if they are operated by a licensing body, cover the work of more than one author and concern the uses specified in subparagraphs (i) to (iii) of paragraph (a). That restriction is basically because the works concerned all come within the Berne Convention. We would be acting outside our Berne obligations if, for example, the tribunal could adjudicate a licensing scheme operated by an individual author or film maker in regard to his own productions.
Licensing schemes in respect of the second group of works, which is not covered by the Berne Convention, cone under the tribunal whether or not a licensing body is involved and whether or not the work of more than one author is involved. As regards the specific point on film-sound tracks not accompanying a film, those will be dealt with in the same way as any other sound recording.
Clause 106 agreed to.
Clause 107 [Reference of proposed licensing scheme to tribunal]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 238E:
Page 44, line 37, leave out ("with the consent of the person proposing to operate the scheme")
The noble Lord said: Perhaps I may speak to Amendments Nos. 238E and 239L together. Amendment No. 238E suggests leaving out the words:
"with the consent of the person proposing to operate the scheme".
and Amendment No. 239L suggests leaving out the words:
"with the consent of the licensing body".
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In each case it does not appear that there is any particular reason why the consent of one side to the quarrel should be necessary before it should be referred to the tribunal who will resolve it. What happens if consent is withheld? If there is an agreement to differ and refer the matter to the tribunal, that is fine if the scheme proposers agree to go to the tribunal. However, what if they say, "No, we shall not agree to your suggestions" and "No, we shall not refer it to the tribunal"? Will we then have to go to the lengths of having a licensing scheme which is put into operation and then appealed to a tribunal under Clause 108? That seems to be a ridiculous procedure when it could all be dealt with cleanly under Clause 107 before this scheme comes into force. I beg to move.
Lord Denning: I support the amendment. The question which I raised earlier was: who is proposing to operate the scheme? The proposer is not defined. However, why should his consent he necessary? Why should he be able to give a veto? Surely if there is a proposed licensing scheme—it has not yet come into being—the terms should be able to be referred to by an organisation claiming to be representative of such people. The person proposing the scheme or operating, it should not have a veto.
Lord Beaverbrook: The purpose of Clauses 107 and 114 is to allow parties who are discussing prospective schemes or licences but who cannot agree on terms to go jointly to the tribunal before a scheme comes into effect and obtain a decision. That saves time and effort to all concerned. The corresponding provisions in the 1956 Act have proved useful in the past to such bodies as the BBC and the Performing Right Society when negotiating terms. To allow one side on its own to refer a prospective scheme or licence would achieve little. If the other side did not agree to the reference, it could merely withdraw from negotiations altogether. A provision along the lines of the amendment has not proved necessary up to now, and I doubt if it would be workable.
Lord Morton of Shuna: For the life of me I cannot see why not. If there is an intractable quarrel about a proposed scheme, why on earth can it not be referred to the tribunal and what difficulty will it cause? I hope the Minister will take this away and consider it. Clause 114 states:
"The terms on which a licensing body proposes to grant a licence may, with the consent of the licensing body, be referred to the Copyright Tribunal".
Why on earth does the licence have to come into effect before appeal can be made to the tribunal without the consent of the proposed licensing body? I hope that the Minister will take away this amendment and consider it.
Lord Cullen of Ashbourne: I support what the noble Lord has just said. I feel that my noble friend should look again at this matter because it seems to me perfectly clear that it would be good to have this amendment in the Bill.
Lord Beaverbrook: I shall look carefully at what all Members of the Committee have said on this matter

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as I do on any other matter. The tribunal would come into the picture only when a willing buyer and a willing seller have found difficulty in negotiating financial terms for the transaction. Therefore it seems to me that if one side were to go to the tribunal it may well be that the other side (namely, the willing buyer or the seller) would no longer wish to enter into the transaction should the terms not be agreeable to them.
Lord Williams of Elvel: Does this not unduly restrict the scope of the tribunal? Clause 107(1) states:
"an organsiation claiming to be representative of persons claiming that they require licences".
They need licences for all sorts of reasons. If there is not a willing seller of the licence on the other side, then they should properly have the right to go to the tribunal and ask for arbitration on that matter. If the tribunal is to be restricted to a willing buyer and a willing seller, it seems to me it is a much less powerful body than we thought it was.
Lord Beaverbrook: As I understand it, the idea of the tribunal is not to make it compulsory for copyright owners to become members of a licensing scheme in any way at all. If they wish to enter into a scheme as the willing seller, this comes into effect. It is not the idea to make it compulsory.
Lord Morton of Shuna: The difficulty is that there is some body proposing a licensing scheme, which presumably is a group of people who are owners of copyright. It is the users who will want to have the terms agreed by the tribunal. Owners of copyright are proposing a scheme. Why have they a veto on the proposed user (the consumer) going to the tribunal to fix the rate or fix anything else? But as it would be a help to get on with the Bill, I ask leave to withdraw the amendment at this stage in the hope that some rational consideration will be given to it.
Amendment, by leave, withdrawn.
[Amendment No. 238F not moved.]
On Question, Whether Clause 107 shall stand part of the Bill?
Lord Williams of Elvel: I wonder whether the noble Lord can help me with a very small point which I do not seem to be able to resolve from reading the Bill. What is the status of the order made by the tribunal under Clause 107(3)? The tribunal is entitled to make an order. Is it an order to be laid before Parliament by a department? What is the status? I understand it is possible to appeal to the Secretary of State, but how can it be annulled by Parliament?
Lord Beaverbrook: I understand that the order is an order made under the terms of this Bill. If it were made wrongly in the eyes of those involved it would be for them to make application to the courts to have the matter considered. I do not think that there is any provision for Parliament to look at these individual orders.
Lord Williams of Elvel: I am glad that the noble Lord confirms my interpretation of the Bill in that
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this order is not something which will come before Parliament. Presumably he is referring to the possibility of a complainant against the tribunal going for a judicial review of this order. Is that what the noble Lord means?
Lord Beaverbrook: Yes. The answer on the status of the order I believe can be found by referring to Clause 112. It is not a parliamentary matter but is similar to a court judgment.
Clause 107 agreed to.
Clause 108 [Reference of licensing scheme to tribunal]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 238G:
Page 43, line 10, leave out ("claiming to be").
The noble Lord said: I intended to speak to Amendment No. 239A as well but in Clause 109 there is the same phrase; namely "claiming to be". At this stage of the proceedings why is it necessary to define the organisation loosely as,
"an organisation claiming to be representative of such persons"?
Surely it either is or is not. These are unnecessary words in each clause and require deletion. I beg to move.
Lord Denning: I should have thought that this amendment was unnecessary. It is quite clear that a society cannot necessarily be representative of such persons but only claim to be representative. I should have thought that the clause is all right as it stands.
Lord Beaverbrook: Perhaps I may refer the noble Lord, Lord Morton, to Clause 137(3)(a). That provision requires rules to be made prohibiting the copyright tribunal from entertaining a reference under Clauses 107 to 109 which is made by an organisation claiming to be representative of interested persons unless the tribunal is satisfied that it is indeed reasonably representative. Thus the result desired by the noble Lord is already achieved. This wording already exists in the 1956 Act where it causes no problems. In this instance I see no reason to change it. Representativeness is a relative and not an absolute concept. It would seem to be right to leave the tribunal as the judge of it.
Lord Morton of Shuna: I quite agree and I am not disagreeing with that argument. It is a matter of the English language. It seems to me to be unnecessary to have an organisation "claiming to be" representative when, before the organisation can be heard by reference to Clause 137, the tribunal has to be satisfied that it is representative. Those seem to me to be unnecessary words but I shall not press the point. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 239 had been withdrawn from the Marshalled List.]
Clause 108 agreed to.
Clause 109 [Further reference of scheme to tribunal]:
[Amendment No. 239A not moved.]
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 239B:
Page 45, line 38, at end insert ("except that special leave shall not be required in respect of issues which were not argued before the Tribunal on the previous reference.").
The noble Lord said: This clause sets out the circumstances in which a licensing scheme that has already been considered by the tribunal can be the subject of a further reference either by the person who made the original reference or perhaps by a different person entirely. If the person who made the first reference wants to come back for a second bite, it is no doubt entirely reasonable that, as the subsection provides, he cannot come back within 12 months of the previous order without first convincing the tribunal that he has a good reason for doing so.
However, if the person who wants to make the second reference is a different person and if the issues he wishes to raise are ones which were not raised at the time of the first reference, why should he not have an automatic right to do so? The amendment is intended to give him that right. I beg to move.
Lord Denning: It is quite reasonable to have this amendment in the Bill. In the ordinary courts we know that once an issue has been raised and decided it is what we call res judicata and is not to be reopened. If it is a different issue raised by a different party why should it not be reconsidered even within the 12 months if necessary?
6 p.m.
Lord Beaverbrook: Perhaps I could clarify whether the noble Lord, in moving Amendment No. 239B, is also speaking to Amendment No. 239D, as they are grouped on my list.
Lord Cullen of Ashbourne: No, I was not.
Lord Beaverbrook: In that case, I will take Amendment No. 239B separately. This amendment is intended to ensure that where a scheme is already subject to a tribunal order, the rules preventing a further reference until a set period has elapsed shall not operate in respect of new issues which the parties may want to argue. We have not had time to consider fully the implications of this, but it would seem readily open to abuse. There is already power for the tribunal to give special leave for an earlier reference, and that should be sufficient. For that reason, I oppose this amendment.
Lord Cullen of Ashbourne: I am not quite sure that I have taken on board exactly what the noble Lord said but I shall read it in Hansard. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 109 agreed to.
Clause 110 [Application for grant of licence in connection with licensing scheme]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 239C:
Page 46, line 23, leave out from ("exception") to end of line 26.
The noble Lord said: The amendment proposes to leave out subsection (3)(b). The reason for this amendment is that it is very difficult to understand what the subsection is aiming at. In Clause 110(2) we have a definition which reads:
"A person who claims, in a case excepted from a licensing scheme, that the operator of the scheme",
either has refused to give him a licence or proposes charges which are unreasonable. He can then apply to the Copyright Tribunal.
Subsection (3) states:
"A case shall be regarded as excepted from a licensing scheme for the purposes of subsection (2) if … (b) the case is sufficiently similar to those in which licenses are granted under the scheme for it to be reasonable that it should be dealt with in the same way".
It does not seem to read right and perhaps there is a negative missed out. What is intended to he covered is far from clear. I cannot expand on that. To me it does not appear to make sense. For that reason, I beg to move.
Lord Denning: I agree that it does not make sense and is not correct grammar.
Lord Beaverbrook: Perhaps it will help the Committee if I run through the subsections and what they are intended to do. Subsection (1) provides that a person who claims in a case covered by a licensing scheme that the operator of the scheme has refused to grant him a licence in accordance with the scheme or has failed to do so within a reasonable time after being asked may then apply to the Copyright Tribunal. Subsection (2) makes similar provision with respect to cases excepted from a licensing scheme and subsection (3) sets out what cases are to be regarded as excepted from a licensing scheme.
As a hypothetical example, subsections (2) and (3) might deal with a case where a licensing scheme for playing music or records in public covered a range of venues such as village halls, church halls and halls let by hotels or public houses but, for some reason, did not cover tithe barns. A society of some kind wanting to put on a social event in a tithe barn might find itself refused a license because tithe barns were not covered and the licensing body was unwilling to make an exception. An application could then be made that tithe barns were sufficiently similar to village halls to warrant being granted a licence.
Lord Morton of Shuna: That may be the purpose, but is it what the subsection says? It states:
"A case shall he regarded as excepted from a licensing scheme … if … the case is sufficiently similar".
For example, one does not get the refusal of the licence: there is no definition that the licence has been refused. I entirely agree with the noble and learned Lord, Lord Denning, that it does not make sense. I hope the Minister will take away the subsection and think about it.
Lord Beaverbrook: I think we should look at this more carefully as the noble Lord may well have a point. We will check to see that what the clause actually says coincides with what I have described.
Lord Morton of Shuna: In that case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 239D:
Page 46, line 32, at end insert—
("( ) Following a reference falling within subsection (2) the Tribunal may also specify in its order such reasonable extensions to the licensing scheme as it thinks fit for the benefit of persons having similar needs to those put before it by the applicant.").
The noble Lord said: This amendment relates to the jurisdiction of the tribunal set out under subsection (2). I am not sure that I understand it. It looks as though somebody who the operators of the scheme have previously decided should fall outside the scope of their licensing scheme can apply to the tribunal and get the rules changed to his advantage. If so, and if he is able to persuade the tribunal of his case, the order made by the tribunal will say, "We must grant a licence to Mr. X, the applicant, though he would not normally qualify under your rules". In other words, the tribunal is extending the scope of the scheme purely for Mr. X's personal benefit. Why, if the tribunal feels that an extension of the scope of the scheme is justifiable and desirable, should it not be able to make an order extending the scheme generally for the benefit of all other persons in a similar position to Mr. X? The amendment is intended to have that effect. I beg to move.
The Earl of Stockton: The amendment proposed by my noble friend Lord Cullen of Ashbourne goes a long way to being interference in the contractual relationship. It is tantamount to compulsory licensing. Is it up to the tribunal to "think fit"? Surely it is for the parties to the voluntary agreement to "think fit". Does the tribunal need the very wide powers to define the similar needs of the persons who enjoy the extensions mentioned? These matters should be decided in the agreement to the licence and not in the Bill.
Lord Beaverbrook: Amendment No. 239D to Clause 110 provides that where the tribunal has made an order that a person who has been refused a licence in a case excepted from a licensing scheme, or offered one on unreasonable terms, shall be entitled to a licence on terms it shall lay down, the tribunal may extend the benefit of its order to others with similar needs. I am rather doubtful that this will prove acceptable, but we are prepared to have a look at the point if the noble Lord is willing to withdraw the amendment.
Lord Cullen of Ashbourne: I am very grateful to my noble friend and I willingly withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 110 agreed to.
Clause 111 [Application for review of order as to entitlement to licence]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 239E.
Page 46, line 42, leave out ("except with the special leave of the Tribunal") and insert ("unless the applicant satisfies the Tribunal that there has been a material change of circumstance,").
The noble Lord said: This is in connection with a provision in the Bill which, at the moment, provides:
"Such an application shall not, except with the special leave of the Tribunal, he made—

(a) within twelve months from the date of the previous order, or

(b) if the order was made so as to be in force for 15 months or less, until the last three months before the expiry of the order".

There is no definition of the conditions on which special leave would he granted and, in putting forward this amendment, we suggest that it should be something fairly definite. We suggest adding the words:
"unless the applicant satisfies the Tribunal that there has been a material change of circumstance".
I should also be speaking to Amendment No. 239S, which is the same provision for Clause 1 16. I beg to move.
Lord Denning: I support this amendment. There are many similar provisions as to time in regard to tribunals and the like. It seems to me that it helps the tribunal itself if it realises that the applicant must satisfy it that there has been a material change of circumstance. It is more definite for the tribunal to act upon.
Lord Campbell of Alloway: I support the amendment. "Special leave" is virtually meaningless but "material change of circumstance'' is well understood.
Lord Beaverbrook: When the Copyright Tribunal has made an order regarding a scheme or licence Clauses 111 and 1 16 provide that a further reference or application may not normally be made with respect to it within 12 months. If the order is for 15 months or less a further reference may not be made until the last three months before its expiry.
The amendment would limit the type of case in which the tribunal may permit an early further reference or application to cases in which there has been a material change in circumstances. We do not think that that would be right. There may be other cases in which an early return to the tribunal might be appropriate, such as where it turned out that it had been misled inadvertently, or deliberately, about the facts. It would not be right to fetter the discretion of the tribunal in the way proposed in the amendment. The Bill as drafted does not give the tribunal carte blanche in the matter. The tribunal is subject to general principles of law and if it permitted an early further reference, or application, for improper reasons, it could be subject to an application to the courts.
Lord Campbell of Alloway: The very instances that the Minister gives are those which would constitute a material change if the tribunal had been misled or

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erred. With the greatest respect, the argument is not understood.
Lord Morton of Shuna: I am much obliged to the noble Lord, Lord Campbell of Alloway, for putting so strongly and clearly the points that I would have endeavoured to make. The difficulty about the special leave is that over the years one will have to develop a case law as to what the tribunal may consider to be the grounds for granting such leave. The ease about a material change in circumstance is that we have it all over the law. We know exactly what a material change in circumstance may be. It is quite easy to fit or to say quite clearly that an application would not fit. Again, I hope that the noble Lord will take this matter away and consider it.
Lord Beaverbrook: I would say to the noble Lord that I think we are both heading in the same direction. It is simply a matter of trying to establish a means of getting there. In that respect I am always ready to look at what he has put forward.
The discovery of an existing error of fact is not always a change in the circumstances; it is merely recognition of existing circumstances. However, I will of course look at what has been said—but without commitment—to make sure that we are still happy with the wording. We believe that we have achieved this in a better way than the noble Lord has put forward.
Lord Morton of Shuna: In asking leave to withdraw the amendment, I hope it will not be taken that I agree with what has just fallen from the lips of the Minister about change in circumstance. I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Clause 111 agreed to.
Clause 112 [Effect of order of tribunal as to licensing scheme]:
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 239F:
Page 47. line 25, after ("section") insert (" 107,").
The noble Lord said: In moving Amendment No.239F I would also like to speak to Amendments Nos. 239G and 239T. Subsection (3) of Clause 112 very reasonably gives the tribunal power, when it decides to order a reduction in the fees payable for a licence, to backdate the effect of that order to the date on which the reference was made to the tribunal.
However, for reasons which are not clear, this power to backdate at present applies only to the very limited categories of schemes which can be certified under Clause 131. Amendments Nos. 239F and 239G have two effects; firstly, to delete the reference to Clause 131 so that the power to backdate applies in all cases, and, secondly, to ensure that the power also applies to references made under Clause 107 which is in line with the arguments put forward previously for extending the scope of that clause.
Amendment No. 239T proposes a corresponding change to Clause 117. 1 beg to move.
Lord Beaverbrook: May I confirm that my noble friend is in fact speaking to Amendments Nos. 239F, 239G and 239T? On the groupings list we had Amendment No. 239H rather than 239T. However, I shall also speak to Amendments No. 239F, 239G and 239T.
Amendments Nos. 239F and 239G seem to us to be somewhat misdirected along with Amendments Nos. 254ZE and 254ZF which we shall come to later. These amendments are all connected to an attempt to change the certification procedure under Clause 131 to make it apply only where a licensing scheme has already been the subject of a tribunal order. The whole point of the certification procedure under Clause 131 is to provide a means of certifying that a licensing scheme exists, thereby ending any entitlement to free copying under Clauses 35, 66 or 130. The essence of the arrangement is that any reference to the tribunal comes later. For that reason we do not find these two amendments acceptable.
I turn to Amendment No. 239T. This amendment to Clause 117 would backdate tribunal orders under Clauses 114 and 115 so far as they reduced fees to the date of the reference. This would not be acceptable. It follows the pattern of Clause 112(3). That is limited to schemes certified under Clause 131 and is a means of preventing devices to avoid the purposes of the certification system.
Lord Cullen of Ashbourne: I shall study the reply of my noble friend. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn
[Amendment No. 239G not moved.]
6.15 p.m.
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 239H:
Page 47, line 42, at end insert—
("(6) Nothing in this section shall prevent the operator of a scheme which has been confirmed or varied proposing changes in the fees payable for licences under that scheme and giving effect to those changes by agreement; but the proposed changes may be referred to the Tribunal in accordance with section 109 and in respect of such reference subsection (2) of that section shall not apply.")
The noble Lord said: With this amendment I should like to speak to Amendment No. 239U. These are essentially probing amendments to check whether the existence of an order of the tribunal is intended to restrict the power of the licensing body to make reasonable increases in its fees by agreement with the licence holders—for example, in line with inflation—or whether it has, in each case, to go back to the tribunal and seek approval for each increase. I beg to move.
Lord Beaverbrook: I shall also speak to Amendments Nos. 239H and 239U. Amendment No.239H to Clause 112 would provide that where schemes have been confirmed, or varied, operators who want to change the fees payable, or licensees, may refer the scheme to the tribunal without having to await expiry of the time-barred period.
We believe that changes in fees structure, as much as anything else, should be subject to the time limits

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in Clause 109 (2). If special circumstances arise, a user can always apply to the tribunal for special leave to make an earlier reference or application. We therefore also find this amendment to be something we would wish to resist.
With regard to Amendment No. 239U to Clause 117. this would allow a licensee to refer a scheme, which is subject to a tribunal order, back to the tribunal without observing the time delays in Clause 116 where the licensing body has proposed changes in the fees payable. It is not clear why only the licensee should be privileged in this way. Amendment No. 239H to Clause 112 does not limit further references to references by the licensee. We think it would be wrong to do so in Clause 117.
Lord Cullen of Ashbourne: The reply from the Minister needs much further thought on my part. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 112 agreed to.
Clause 113 [Scope of general control of licences granted by licensing bodies]:
Viscount Simon Viscount Simon moved Amendment No. 239J:
Page 48. line 5, leave out ("more than one author") and insert ("one or more authors").
The noble Viscount said: In the very much regretted absence of my noble friend Lord Lloyd of Kilgerran, I rise to move Amendment No. 239J. I should also like, with the permission of the Committee, to speak to Amendments Nos. 239K, 239N, 239Q and 239R.
Amendment No. 239J to Clause 113 restores the position under the 1956 Copyright Act so that the licence in question does not have to cover the works of more than one author. The really important amendment in this grouping is Amendment No. 239K. That is a new clause to follow Clause 113. These amendments relate to broadcasting. My noble friend has been advised on these matters by the ITV and BBC. The Bill contains no counterpart to Section 27(3) of the Copyright Act 1956 which permits applications to be made to the Copyright Tribunal where a licensing body unreasonably refuses or fails to grant a licence in a case not covered by a licence scheme. Section 27(3) of the Copyright Act provides:
"Any person who claims that he requires a licence in a case not covered by a licence scheme, and either—

(a) that a licensing body have refused or failed to grant the licence, or to procure the grant thereof, and that in the circumstances it is unreasonable that the licence should not be granted, or

(b) that any charges, terms or conditions subject to which a licensing body propose that the licence should be granted are unreasonable,

may apply to the tribunal under this section."
The Bill appears only to deal with cases covered by licensing schemes. Licensing bodies could escape the jurisdiction of the tribunal by not creating licensing schemes in selected areas of activity. The BBC's dealings with the licensing bodies representing owners of copyright in music and sound recordings are not usually conducted within the framework of a licensing scheme, but are freely negotiated against the background of the existence of Section 27(3), which
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I have quoted. That is available should negotiations break down.
In the opinion of my noble friend and myself, that position should be preserved. It is preserved by the proposed wording of Amendment No. 239K. All the other amendments in the group are consequential. I beg to move.
Lord Beaverbrook: The main effect of Amendments Nos. 239J and 239K is to widen substantially the scope of the general control of licences granted by licensing bodies provided in Clauses 114 to 117. They would do this by making it possible for licences granted by licensing bodies, and refusals by such bodies to grant licences, to be referred to the tribunal not only when the licences concerned covered the works of more than one author, as in the Bill, but also when they covered the works of a single author. Amendments Nos. 239N, 239Q and 239R are consequential.
This is not an acceptable proposition. The amendments come very near to subjecting all copyright ownership to a compulsory licensing. That is certainly not something we want to see, and it would incontrovertably be in breach of our obligations under the Berne Convention. Admittedly there would still be the requirement that the tribunal must first find a refusal to grant a licence unreasonable, but that is not a very strong safeguard.
The compulsory licensing provisions in the Bill are restricted to carefully defined situations; namely, where there is a monopoly and the copyright owner is willing to see his work exploited. and that is the way they should remain. The only exception to that is in the educational provisions in Clauses 126 to 130, which we shall discuss when we come to them.
Viscount Simon: I know that my noble friend did not intend to press the amendment and I am sure that he will read with interest what the Minister has said. He reserves his position to raise the matter again if necessary. I beg leave to withdraw the amendment.
Amendment. by leave, withdrawn.
Clause 113 agreed to.
[Amendment No. 239K not moved.]
Clause 114 [Reference to tribunal of terms of proposed licence]:
[Amendment 239L not moved.]
Clauses 114 and 115 agreed to.
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 239M:
After Clause 115, insert the following new clause:
("Refusal of licence.
.—(1) A person whose application to a licensing body for a licence is refused may refer his application to the Tribunal.
(2) The Tribunal shall consider the application and, if it considers that in the circumstances it is unreasonable that a licence should not be granted, it shall make an order declaring that in respect of the matters specified in the order the applicant is entitled to a licence on such terms and conditions and subject to the payment of such charges (if any) as the Tribunal may determine to be reasonable in the circumstances.
(3) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.").
The noble Lord said: Clause 114 gives the applicant who is offered a licence an opportunity to object to the tribunal about its terms before accepting it. Clause 115 gives him a further opportunity to complain about its terms at a later date. Curiously, at present there is no provision whereby the person whose application for a licence meets with an outright refusal can complain to the tribunal. The proposed new clause attempts to rectify that. I beg to move.
Lord Beaverbrook: Amendment No. 239M which introduces a new clause to follow Clause 115 is a provision entitling anyone refused a licence by a licensing body to refer the application to the tribunal, which if it considers the refusal unreasonable, must make an order entitling the applicant to a licence. The aim seems to be to introduce parallel provision for refusals of licences in general to the special provisions in Clause 110 covering refusals to grant licences in cases covered by licensing schemes, and schemes excepted from licensing schemes as therein defined. This is, we think, misconceived, and would probably amount to a general compulsory licensing provision in contravention of the Berne Convention. For that reason, we do not feel able to accept the amendment.
Lord Cullen of Ashbourne: In that case, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 116 [Further reference of terms of licence]:
[Amendments Nos. 239N, 239P, 239Q, 239R and 239S not moved.]
Clause 116 agreed to.
Clause 117 [Effect of order of tribunal as to terms of licence]:
[Amendments Nos. 239T and 239U not moved.]
Clause 117 agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 240:
After Clause 117. insert the following new clause:
("Variation of terms of licence.
On a reference or application under this Chapter relating to a licence or a licensing scheme the Copyright Tribunal may only vary the terms of the licence or licensing scheme if the Tribunal considers that there is such a difference between the terms of the licence or licensing scheme as proposed or operated by the licensing body and the terms which the Tribunal would regard as reasonable as to amount to an abuse by the licensing body of its monopoly position.").
The noble Lord said: This is an amendment to put into the Bill a specific reference to the regard that licensing tribunals should have to a monopoly position. That is not covered by the 1956 Act, but it would appear to be appropriate. The history of this aspect of the matter is that in 1948 the Government made a specific reservation under Article 11 of the Berne Convention. They stated:
"The United Kingdom delegation accepts the provision of Article 11 of the Convention on the understanding that Her Majesty's Government remain free to enact such legislation as they may consider necessary in the public interest to prevent or deal with any
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abuse of the monopoly rights conferred upon owners of copyright by the laws of the United Kingdom".
That was said to be partly the purpose of the 1956 Act, but there is no reference to monopoly in the provisions of the 1956 Act or this Bill. I am informed that the tribunal does not prevent a collecting society acting in an arbitrary way. There should be some specific jurisdiction so that the tribunal could be stated expressly to be limited to the purpose of preventing abuse of monopoly. The purpose of the amendment is to state what I understand has been the intended position of governments of the country over the years. This is necessary especially when the licensing schemes may be owned by people whose interests conflict with those of some of the authors with whom they are dealing. There is a possible difficulty that the tribunal should be called on specifically to deal with if necessary. I beg to move.
6.30 p.m.
Lord Denning: I support the amendment. Under the Treaty of Rome, and in Europe now, we know that any abuse of a dominant position can be struck down and people made liable in regard to it. The licensing body should surely not have a monopoly position to such an extent that if it abuses the position, it can get away with it. I support the power of the tribunal to look into it, as the amendment proposes.
Lord Willis: I strongly support the amendment. Some controversies and a great many differences have been presented to the tribunal. To give one example, 60 per cent. of the turnover of music publishing companies are controlled by record companies. They are the major users of copyright. Warner Brothers is negotiating at present to buy Chappell. If it does—and the bid is currently being reviewed by the Monopolies and Mergers Commission—the figure will rise to 80 per cent. Thus one has a conflict where the operator of the licensing scheme, which theoretically should be under the control of the copyright owners, is in practice controlled by the users. That has thrown up a number of problems in the past. The amendment would prevent such copyright users from unduly influencing the operation. It takes no rights away from them but gives to what one might loosely call the minority certain rights and possibilities of appeal that I think are important. The Government have set their face firmly against monopoly in the past. I therefore hope that they will give the amendment serious consideration.
Lord Beaverbrook: It is true that in general terms the system of tribunal control over collective licensing is primarily designed to prevent abuse of monopoly power, but it does not follow from this that the tribunal should be able to vary terms only when clear abuse of a monoploy position enjoyed by licensee is established. This would greatly complicate the tribunal's deliberations. I should say to the noble and learned Lord, Lord Denning and the noble Lord, Lord Willis, that monopoly is a matter for competition legislation which is already administered by the office of Fair Trading and the Monopolies and Mergers Commission.

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A large part of tribunal hearings would be taken up by users trying to prove that a monopoly position had been abused and by licensing bodies striving to refute the charge. The overall criterion of determining what is reasonable in the circumstances, buttressed as it is by the obligation to have regard to all relevant considerations and by special criteria that apply to particular types of cases, is surely quite enough. It is a simple and flexible criterion that allows the tribunal to take a balanced and sensible view of all circumstances pertaining to the case. From time to time there are bound to be instances where some variation of the terms of a scheme or licence is justified even though there is no obvious monopoly abuse. The amendment would prevent that.
Lord Williams of Elvel: The noble Lord in his reply referred to competition policy quite rightly because that is what the amendment is about. Would it not help if some reference were made in the Bill to the possibility of the Office of Fair Trading either at the instigation of the Copyright Tribunal or in its own right being allowed to intervene, and if necessary refer matters to the Monopolies and Mergers Commission where there was monopoly abuse? If we do not have that, I am afraid that the noble and learned Lord, Lord Denning, may well he right that the competition directorate of the Commission in Brussels will take its own action.
Lord Beaverbrook: I am not sure that reference to the Office of Fair Trading in the Bill and references to monopoly legislation would necessarily be helpful. However, I shall look at what the noble Lord said and see whether we can improve matters in any way.
Lord Willis: The noble Lord in an earlier debate said that the amendment was unnecessary because reference could be made to the Monoplies and Mergers Commission. Has he not just denied that and said that it is useless?
Lord Beaverbrook: I do not quite understand what the noble Lord is getting at. Perhaps he can clarify the point.
Lord Willis: I shall clarify it when I read Hansard. I had the feeling that the noble Lord was contradicting himself.
Lord Beaverbrook: I do not think so. I was just trying to be helpful to the Committee. I was not contradicting myself when I said that we would look at it.
Lord Williams of Elvel: I am sorry to come back to the noble Lord on the question, but there is a problem of monopoly. When we are dealing with monopolies, competition policy starts to intervene. Competition policy in this country is dominated by the Fair Trading Act 1973, and competition policy comes under Articles 85 and 86 of the Treaty of Rome. Those two articles, as the noble Lord well knows, stand on their own: they are super-national so the Commission has the right to intervene wherever it feels that one of the articles is being breached.
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The amendment seeks to establish that there should be some arrangement if the tribunal feels that there is an abuse of monopoly. If the tribunal does not feel this or has no recourse to any other body in competition legislation. the whole position will be attacked—probably rightly—by the Commission. The amendment seeks to say that the tribunal has to look at the question and to chime in with competition policy, both domestic and European.
Lord Beaverbrook: The amendment would go further than that. The proposed new clause would provide that the tribunal can vary the terms of a licence or licensing scheme only where the difference between the terms offered and the terms that the tribunal would consider reasonable can be attributed to abuse of a monopoly position.
Lord Williams of Elvel: I suspect that it would be obliged to by intervention from the Commission; and, indeed, possibly by the Office of Fair Trading.
Lord Morton of Shuna: I think it would be appropriate for us to consider what has been said. In the circumstances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 118 [Licensing schemes: general considerations]:
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 240A:
Page 49. line 27, after ("scheme") insert ("or a licence").
The noble Lord said: The principles set out in Clause 118 apply only when the reference relates to a licensing scheme, that is, to the tribunal's jurisdiction under Clauses 106 to 112. Why should they not apply equally when the reference is in respect of a licence under Clauses 113 to 117? I beg to move.
Lord Beaverbrook: The amendment would extend the criteria that the tribunal must apply in relation to licensing schemes to references or applications in regard to licences. I am rather doubful that this would be appropriate, but we shall have a look at the point.
Lord Cullen of Ashbourne: I am grateful to my noble friend. I beg leave to withdraw the amendment.
Lord Williams of Elvel: Before the Committee gives leave to withdraw the amendment, when the Minister says that he will look at the point, can he tell us in what light, in what respect and with what intention he will consider it?
Lord Beaverbrook: With the greatest respect, many of these amendments were put down fairly recently in the name of my noble friend Lord Cullen. We have not had enough time to consider precisely all the amendments, that he has tabled. We should like to consider this further because we feel that there may be a point here, but I have to say that we shall be looking at it without commitment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 241:
Page 49. line 28, after ("shall") insert ("take account of circumstances applicable to that reference or application otherwise than in the United Kingdom and").
The noble Lord said: It may be for the convenience of the Committee if I were also to speak to Amendments Nos. 242 and 243. The purpose of these amendments is to allow the tribunal to consider the position of other licensees both in the United Kingdom and elsewhere in the Community. The tribunal should be entitled to consider all factors relevant to rates and conditions. This would include the fact that under some schemes—as a result of the type of conflict of interest to which my noble friend Lord Willis referred as to ownership of music publishing—the licences may not be offered on arm's length terms or at normal market rates. That might occur when a large publishing company offered free or reduced licensing to a film company by which it was owned, for example. These three amendments are designed to allow such a circumstance to be clearly covered by Clause 118. I beg to move.
Lord Beaverbrook: I am happy to consider all the amendments, Nos. 241, 242 and 243. As to Amendments Nos. 241 and 243, Clause 124 puts the Copyright Tribunal under a general obligation to have regard to all relevant considerations. In our view this will require it to have regard to evidence of what occurs in similar circumstances in other countries if such evidence is pleaded during the course of a reference. Indeed the tribunal has done precisely that in at least one past reference, though its conclusion on that occasion was that the particular evidence offered did not allow valid comparisons to be made.
Similarly it seems to us that the tribunal will have to take account of the circumstances under which comparable licences have been negotiated between persons other than the parties to a reference, if these circumstances are relevant to the case it is considering. Again there are instances where it has done so in the past. Nonetheless, we shall consider these points again and if it appears that they need to be mentioned expressly we shall bring forward appropriate amendments not limited to Clause 118 but generally in the context of Clause 124.
I am also happy to consider Amendment No. 242. There is undoubted inconsistency in Chapter VII. For example, Clauses 105, 110 and 112 speak of "charges, terms and conditions"— although they must all be taken to include "charges". Clause 117 speaks of "charges and other terms". We have some housekeeping to do here and perhaps the noble Lord will leave it with me so that I can come back at a later stage.
Lord Morton of Shuna: I am happy to do that and grateful for the Minister's friendly response to these amendments. Perhaps he will permit me to say in relation to Clause 124 that there is a certain tendency to isolationism sometimes in the courts of this country. Unless it is spelt out clearly that one can look abroad, the courts tend not to want to do that. Therefore there is something to be said for spelling
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out a power to go abroad for comparisons. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 242 not moved.]
6.45 p.m.
Lord Mullen moved Amendment No. 242A:
Page 49, line 32, leave out ("secure") and insert ("ensure").
The noble Lord said: I understand that it would be convenient to discuss with this amendment Amendments Nos. 242B, 243A and 257A. In moving this amendment and some subsequent amendments on behalf of the Association of Independent Radio Contractors, I should perhaps declare a small personal interest in that I am a director of one of the independent local radio stations. While we recognise that the Bill and Clause 118 in particular go a little way to improving circumstances, we do not believe that it is generally known how far prejudice and discrimination have been shown against independent radio stations compared, for example, with the BBC. Even the BBC is paying enormous amounts more than comparable stations in Europe, in Australia or in the United States.
For example, it needs to be said that there was initially a great difficulty in getting permission for the independent stations to go on the air either with live or recorded music. To get started they had to agree what I believe were onerous terms. There is great disappointment among the stations not least because many of them are feeling the strong competition for advertising on which they must depend with the development of cable and other ways in which advertisers can spend their money. Very few such stations are in a healthy financial position and a number have already failed.
It is a great disappointment that the Bill goes very little of the way towards carrying out the Government's own policy as set out in the Green Paper published earlier this year called The Choice and Opportunities for Radio. The facts are that independent local radio on average is paying the Performing Rights Society about 6 per cent. on net advertising revenue, the PPL (Phonographic Performance Limited) a further 6 per cent. and 3 per cent. on the employment of live musicians. That is a total of 15 per cent. I should make it absolutely clear that the stations are willing to pay what they deem are reasonable fees both for copyright and for the employment of musicians. But they think that 15 per cent. is excessive when a comparable operation in the United States would cost between 3 per cent. and 4 per cent. In Australia the figure is a little over 2 per cent. in total. That is the purpose of the first amendment.
We take exception to the idea that there could be reasonable discrimination, because the 19 independent stations covering 65 per cent. of the population are paying about £1.7 million for 63 hours of needle time a week, whereas the BBC pays less than £1.2 million for the right to broadcast 127 hours of needle time a week—a difference in magnitude of about three times more. As the Green Paper said, it is impossible to envisage—whether it is a good idea is another matter—a commercial national network, for

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unless it were able to have sufficient needle time it would be unable to compete effectively with the BBC. The new clause, which is one of the amendments we are discussing, is directed to taking away from the PPL the power to determine the amount of needle time that stations can have.
Paragraph 2.14 of the Green Paper says specifically:
"The Whitford Committee on copyright and design law noted in 1977 that the United Kingdom has no international obligations as regards needle time".
I believe that we are the only nation that imposes on our radio stations—the national network and the privately operated network— a needle time ration. The Green Paper goes on to say:
"More needle time need not result in less live music broadcasts particularly if new radio services are allowed to develop. Given these new services there would be more opportunity for the exercise of consumer choice between live broadcasts and recorded music".
Paragraph 2.12 of the Green Paper says categorically:
"The Government recognise that a collecting society with a monopoly of the most popular repertoire may be able to exploit its position to the disadvantage of potential users".
That is why the Performing Rights' Tribunal was set up. In the White Paper Intellectual Property and Innovation published in April last year the Government put forward proposals to enable the tribunal to function more effectively. The experience of independent radio has been that the tribunal does not function properly. There was lengthy litigation before the tribunal in 1979–80 and an appeal to the High Court.
After a lengthy hearing and consideration of the proceedings Mr. Justice Harman said that although the PRT refused the BBC royalty as comparable in fixing a reasonable royalty, in his judgment:
"this refusal was an error of law on the basis stated".
It was the view of one of Her Majesty's judges that this discrimination against independent radio as compared with the BBC was an error of law. Nevertheless the PRT has refused to accept Mr. Justice Harman's decision. After further proceedings before the tribunal it has not materially altered the rates. Only one of the many stations has had a small reduction in its rates and a number of them are paying a higher percentage than previously—a differential of three times that of the BBC.
It is the Government's White Paper that says that some of the independent radio companies are called upon to pay £30 every time they put on a record. That seems an excessive amount. I admit that the language of the amendment is perhaps not legally satisfactory but we want to know the Government's policy on these matters. Will they give effect to the kind of radio environment that the Green Paper hinted at and which we discussed earlier on? We should like something similar to the policy set out in Amendment No. 257A so that the individual companies or the association would have the right to go to the tribunal and ask for it to determine whether the fees they are asked to pay are reasonable. Certainly, in the light of our experience—and this is the point of the first two amendments—we cannot see the basis for reasonable
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discrimination; we want to have no discrimination at all. I beg to move.
Lord Somers: I should like briefly to say one or two words about the amendment. The Committee should remember that while the composer wishes to retain his rights over his works—and I speak here from a personal point of view—he is nonetheless glad when they are performed because he receives a certain amount from performing rights. Therefore I do not think that broadcasting organisations should be in any way hindered in performing his work if they want to do so.
Lord Willis: I should like strongly to support the amendments of my noble friend Lord Mulley. There seem to be two issues here. The first is the question of needle time which as the Committee will be aware is a restriction on the number of records that can be played over the air. There is absolutely no reason in logic why this should exist. It was introduced on the basis that if the number of records played was restricted more opportunities would be opened up for live musicians to play and therefore musicians would not be put out of work. It has not worked that way. It is the most Luddite of operations. Here we have this great wealth of music but it can be played for only six, seven or eight hours a day. As my noble friend Lord Mulley said, independent radio companies are at a disadvantage in relation to the BBC in terms of the charges that are made.
My second point is that the charges are out of this world. They are exorbitant beyond belief. Indeed, 15 per cent. of the income of a radio company goes on playing music. It has to play the music but why cannot we have a fair assessment? 1 used to have an interest in this matter. I am happy to tell the Committee that I do not have an interest now. But I have always believed that this was a tremendous injustice. It does not exist anywhere else in Europe. Independent radio companies pay something like 15 per cent. In Europe they pay 2. 3 or 4 per cent. I strongly support my noble friend's amendments because I think they would put right a terrible injustice.
Lord Morton of Shuna: As we are supposed to be dealing with Amendments Nos. 242B and 243A I do not propose to make any comment on changing "secure" to "ensure". On Amendment No. 242B, I suggest that it is putting a quite impossible burden on any tribunal or court to try to work out that in no circumstances ever would there be discrimination. With regard to public services such as electricity one tends to see phrases such as, "There shall be no undue discrimination". When making a comparison between a farmer and a small factory there would be different rates of consumption and it would be quite impossible without a qualifying adjective to put a burden on the tribunal of having no discrimination at all.
I can see the difficulty as regards Amendment No. 243A. I should have thought that Amendment No. 242 giving the tribunal power to look at rates and various other things might cover this point. Amendment No. 243A seems to raise issues as to why

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the owner of the copyright in a sound recording should he put in a position totally different from any other author as defined in Clause 16. It is a fairly radical amendment. Perhaps there is another way around the problem, rather than giving one class of copyright owners a right to have their work performed which is not given in respect of any other class of copyright owner. Perhaps the amendment is looking at the problem in the wrong way.
7 p.m.
Lord Harris of Greenwich: It may be that this is a radical amendment, but on the other hand one has to accept, as was said by the noble Lord, Lord Mulley, that what we are talking about here is not individual acts of discrimination but a situation, an environment, which is damaging to the position of the independent local radio companies. As the noble Lord said, originally there was a belief that if this attitude was adopted there would be more live music on independent radio. That was one of the early reasons why there was a restriction on needle time. The noble Lord. Lord Willis, referred to this.
The fact is that for many years one has had a situation where small and rather weak independent radio companies have been outrageously treated. What we are anxious to find out from the Government is not whether the precise language of this amendment is right but whether they are prepared to acknowledge that there is a serious problem here and to look at it between now and Report stage to see whether they are prepared to move to some degree in the direction of the amendment.
We have to accept that there is widespread public support for local radio. There is certainly substantial support for these relatively small (in many cases) independent radio companies which do a useful job in many communities. What we are asking for on this occasion is that this form of discrimination should no longer be applied against them. We hope that the Government will accept our general analysis of the situation.
Lord Beaverbrook: The amendments of the noble Lord, Lord Mulley, are designed to ameliorate what independent radio in the United Kingdom sees as unfair treatment by the record industry with regard to the broadcasting of commercial records. The complaint of independent radio is twofold. First, it alleges that it is restricted by what are known as needle time limits imposed on radio stations by the record industry; that is to say, contractual limits on the number of hours a day it may broacast records.
Secondly, it complains that the industry, through its collecting society, Phonographic Performance Limited, charges too much for the needle time which is at present permitted. I would say to the noble Lord, Lord Mulley, that I do not want tonight to get into detailed discussions on the evidence put forward by both sides in that dispute. I shall only say that the information on such matters as fees paid abroad, and indeed fees paid by the BBC, put to us by the record industry differs considerably from that put forward by independent radio.
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I would say to the noble Lord, Lord Willis, in answer to his point, that I believe there arc some countries where copyright fees are higher than in this country; for example, Germany. The noble Lord referred to radio stations having to pay 15 per cent. of revenue for nine hours a day needle time. I do not intend to pass judgment on these fee levels, but I would point out that for 15 per cent. of their revenue independent radio is getting over 50 per cent. of its programme input.
The dispute between independent radio and the record companies goes hack a long way, and we considered representations from the AI RC on these matters when the Bill was being prepared. I have to say that at that stage we were not convinced that the case for major changes in the law in this area had been made. In the first place the fees for broadcasting records on independent radio have since 1980 been entirely as laid down by the Performing Rights Tribunal following a reference by the AI RC in 1978.
The 12/5/2006 decision was, it is true, appealed to the High Court on points of law and has since been revised. Nonetheless both decisions followed a full consideration of evidence put before the tribunal by both sides. The Government cannot lightly step into an area which is subject to the jurisdiction of what is in effect a court of law.
Secondly as to needle time, we have been assured by Phonographic Performance Limited that it is perfectly willing to grant whatever needle time independent radio requires up to 24 hours a day if necessary provided appropriate payment is made. Further, I would point out that needle time restrictions are also within the tribunal's jurisdiction, and Al RC could apply to the tribunal for a raising of the limits if it was not forthcoming through negotiation.
Further, the Bill as printed contains several provisions that will be helpful to independent radio. First, the fair dealing exception is being extended to cover the broadcasting of sound recordings for purposes of criticism or review; in effect, a measure of free needle time. Secondly, in revising the tribunal rules, as we shall have to do to bring them into line with its new responsibilities, we shall endeavour to ensure that the delays in the legal process which unfortunately occurred during the tribunal hearings between AI RC and PPL cannot happen again in the future.
I must say in this connection that delays of that kind in tribunal proceedings are extremely rare and I am not aware of any current complaint in this respect. Nonetheless independent radio still believes that it is not getting a fair deal and has made representations seeking further changes in the law. Some of these are contained in the amendments moved by the noble Lord, Lord Mulley. These have been countered by equally strong representations from copyright owners that the present arrangements are not unfair and that ILR's demands, if granted in full, would severely damage the music industry.
If the development of radio services envisaged in our Green Paper, Radio: Choices and Opportunities, is to come about, it is important that independent radio has access to the needle time it needs, and at

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reasonable cost. We are therefore looking carefully at the evidence put to us by independent radio and the measures it has proposed to assess whether further action is needed and, if so, of what it should consist.
But this is a difficult issue and any decision must be fair to both sides. We shall therefore need more time to come to a conclusion. I have to say that this might be before the Bill leaves your Lordships' House, but I am not in a position to give a firm promise on that point. But I hope that on the basis of my assurances the noble Lord will feel willing to withdraw his amendment and the others addressed to this issue.
I should just like to refer to the noble Lord, Lord Morton of Shuna, and his point that the tribunal cannot allow any discrimination. We have considerable doubts about Amendment No. 242B even to meet the concerns of independent radio. It would gravely restrict the tribunal's discretion if it had to avoid any discrimination in terms between licensees. There can be helpful discrimination as well as bad discrimination; for example, the concessions under which new radio stations pay specially low rates of net advertising revenue to the PPL in their early years of existence. Surely it is enough that the tribunal should have to ensure that any discrimination in terms is not unreasonable.
Lord Willis: I should like to thank the noble Lord for that reply. May I ask him to bear in mind two or three points when he says that he is going to take the matter away? The first is his point that the PPL is quite prepared to allow independent radio stations to have 24 hours needle time if they want it. Most independent radio stations cannot afford that. At least a third of them are running at a loss and another half are running at a minimal profit which is not returning anything on the investment of people who put in money years ago. It is not entirely due to needle time costs but it is largely due to that.
Further, would the Government bear in mind that they have put forward a policy of community and minor radio stations? If the present needle time restrictions and payments remain as they are, there is no hope and no future for community radio except through piracy, and I am sure that that is not what the Government want.
Lord Mulley: I also should like to thank the Minister for his reply. However, let me just reply to my noble friend Lord Morton. The reason why one seeks to remove the word "unreasonable" discrimination is by virtue of bitter experience. Over a long period the tribunal declined to allow a comparison to be made with the charges and needle time allocated to independent radio as compared with the BBC.
The Minister may say that he has no evidence, and so forth. I should have thought that his Government who, after all, are responsible and have produced Green Papers and White Papers on this would take steps if they are not satisfied about the figures that AI RC put forward to check them. After all, in their Green Paper the Government said that the PPL was in a position of monopoly and could abuse it. The so-called tribunal, which has to determine what is equitable remuneration and what is reasonable charge, has declined to allow evidence of the most
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obvious comparison, which pays approximately one-third per hour less for using records than does independent radio, to be brought before it over a period of several years.
I accept that perhaps we have not couched our requirements in the most suitable language. We are not asking not to pay a proper fee or not to retain an obligation to employ a percentage of live musicians. There is no question of that. However, I should like to say to my noble friend Lord Morton that, so far as I am aware, when one buys music manuscripts, for example, one does not have to sign a document undertaking that one will not play them for more than so many hours a week. So far as I know, if one buys a book one does not have to give an undertaking that one will allow only a certain number of people to read it for a certain number of hours a day.
I do not think that what we are asking for is an anomaly. The anomaly is that the owners (not the individual owners, such as composers or orchestras, but the monopoly that they represent) specify the number of hours. That does not happen in any other country. We have the opinion of a committee which was set up to inquire into this subject stating that there is no UK international obligation in the matter.
I hope that this aspect can be dealt with while the matter is before the Committee and I understand the fact that the Government want time to think about it. Two departments are involved; the Department of Trade and Industry is the sponsor of the Bill but the Home Office is responsible for radio. However, it is over 30 years since the last Copyright Bill received Royal Assent so I hope that we can obtain inprovements while the Bill is before us or another place. On the understanding that the Minister will exercise his best endeavours to that end. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos, 242B, 243 and 243A not moved.]
Clause 118 agreed to.
The Earl of Dundee: The Committee may feel that we have reached a suitable moment to break and not to return to further consideration of the Bill until the expiry of 45 minutes at 7.58 p.m. The noble Lord, Lord Morton of Shuna, puts forward a plea for generosity, which I accept, and I think that we should not resume before 8 o'clock. If that is the wish of the Committee, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Mink (Keeping) Order 1987
7.14 p.m.
The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington)The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington) rose to move, That the order laid before the House on 30th November be approved [8th Report from the Joint Committee).
The noble Baroness said: My Lords, with permission, it would be convenient to discuss this order and the Coypus (Prohibition on Keeping) Order together.
The orders before your Lordships' House are made under the Destructive Imported Animals Act 1932. In both cases they replace existing controls for Great Britain which expire on New Year's Day. Separate legislation covers Northern Ireland.
Your Lordships will know that wild populations of these non-native animals became established as a direct result of escapes from fur farms. The new orders develop the policy which has been adopted by successive governments since 1962 in a positive way. They balance the interests of a small but valuable sector of farming activity with the need to protect other farmers and our wildlife. Together with changes in the operation of the arrangements, they will tighten considerably the restrictions previously applied for coypus which are no longer farmed for their fur (nutria) and, in some respect, for mink.
Both existing orders prohibit commercial keeping except under licence, and thereby apply other measures provided for in the Act including allowing keeping for science or exhibition under a special licence and requiring occupiers of land to report the presence of animals at large to the agricultural departments.
In the case of mink, the new order renews for a further period of five years existing powers to control keeping but prohibits commercial farming entirely on all offshore islands of Great Britain which have neither mink farms nor a wild population and in Caithness and Sutherland in the Scottish Highlands where the situation is the same. It removes the obligation to report the presence of mink at large.
In the case of coypus, the new order prohibits keeping for commercial purposes entirely. This leaves open the possibility of special licences for exhibitions, science or other exceptional purposes. It continues the obligation to tell the agricultural departments if a coypu is seen at large.
The arrangements proposed for these two species differ because we have reached a significant turning point. In the case of the coypus, we are on the edge of success but even in the case of mink all is not lost. I need hardly remind your Lordships that mink are predators of wildfowl, poultry, fisheries and game birds. Despite strenuous and expensive efforts in the past, the species is now present in most areas of Great Britain. We have considered the position again and once more come to the conclusion that there is no prospect of eradicating wild mink. The policy must continue to be one of control by farmers and wildlife interests alike. This does not mean that we must abandon the countryside to this alien species.
Twenty-five years ago, there were about 700 mink farms in the country; now there are about 60. Standards of security are high: escapes occasioned by poor security or lax practice are rare. However, the potential for both short-term and long-term damage by escaping mink is great. The continuation of licensing, with the discipline of official inspection at
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least annually, ensures that standards of physical security are given proper priority.
But physical security cannot guard against every eventuality, as the recent hurricane damage has demonstrated. Many of our offshore islands and areas of the Scottish Highlands support colonies of birds, some of international importance, as well as numerous small native mammals and fish upon which wild mink could prey with devastating effects. These areas are also sufficiently protected by natural features so that it will be many years, if ever, before mink reach them by natural colonisation. It is therefore fitting that they should enjoy the protection which the Act can give them.
The ban is a sign of our determination to promote the policy and objectives of the Act, and do what we reasonably can to control the spread of this destructive, non-indigenous species. And in the areas where keeping is allowed the agricultural departments' discretion in granting or withholding licences will be exercised with care.
Requests for licences will be considered in principle before applicants incur expense in preparing for mink farming. Applications will he considered on their merits, and account will be taken of the intended site and knowledge of the presence of any other mink. Whenever possible any special risk will be met by the introduction of additional licence conditions and/or by reducing the period of validity of licences and increasing the level of official inspection. The Act provides for revocation of licences, and we expect licencees to take their obligations seriously. However, if there is real doubt as to the possibility of reducing the risk at a particular site to acceptable levels then a licence will be refused.
In these circumstances. it may seem odd to remove the obligation to report the presence of mink at large. We have considered whether the information to be gained in this way would help us monitor the spread of mink. It would not. It is much better to conduct specific surveys on the areas which matter.
The position of coypus is quite different from that of mink. Britain's wild population, which has been at large for 45 years, has for some time been contained within East Anglia. In 1981 a campaign was launched to achieve eradication over about 10 years. I am pleased to be able to say that the efforts of the independent coypus control organisation and of our own scientists have already resulted in some 30,000 animals having been trapped or killed in the last six years. No coypus have been found since April last, but to verify eradication the campaign will run at least until 1989.
Coypus have been a costly and troublesome nonnative pest, causing extensive damage to root crops, water-courses and reed beds in Norfolk and Suffolk. Eradication is in sight, and it would be unthinkable to jeopardise this considerable success, achieved at an estimated eventual cost of some £2.5m. by allowing coypus to be kept in this country and thus run the risk of further escapes.
About 70 coypus are kept in six licensed premises comprising zoos, wildlife parks and research establishments. The order will prevent the establishment of commercial keeping. Special licences for

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science or exhibition will continue to be granted to existing licencees only if the establishments concerned can achieve standards of security at least as good as those required of mink farms. In addition, animals remaining in captivity will have to be marked to permit identification should there be an escape.
In these closing stages of the eradication campaign there is a special need for vigilance, and the requirement to report sightings of coypus will remain a legal obligation.
I commend to your Lordships these two orders and the associated policies as positive and cost-effective measures to protect all our interests. I beg to move.
Moved, That the order laid before the House on 30th November be approved. [8th Report from the Joint Committee].—(Baroness Trumpington.)
Lord John-Mackie: My Lords, we are much obliged to the noble Baroness for putting across these two instruments so well. Way back in 1962 when the first orders were produced for this job I ventured to suggest, being in Opposition then. that the people who let coypus loose and the well-off people who wore the expensive coats, etc., should pay for the work to get them caught again or eliminated. I was told then that it was a little difficult to identify each coypu or mink and who they belonged to.
That rather tempts me to tell the story of the Aberdeenshire doctor who, many years ago, persuaded his old mother to come down to London where he had taken up his practice. She lived in a little village in Aberdeenshire. They were driving away from King's Cross Station in a thoroughly bad humour in the dark (and with a lot of parcels, and so on) when a cat ran out across the road in front of the car. The doctor hit the brakes to avoid the cat. His mother turned round and said, "Fast! Catch that!" She knew all the cats in her village in Aberdeenshire, but not in London! So identifying a coypu is evidently not possible in these days!
May I ask the noble Baroness how many wild mink she thinks there are loose? Is it an impossible job to eliminate them? I know that the coypus are in a particular area and they could definitely be contained, while they were being eliminated. The mink are much wider spread. It would be interesting to know if it is possible to eliminate them.
I do not want to say any more. These orders are very necessary, and I am sure that farmers will cooperate. Mink make an awful mess if they get into a hen-run. They do not kill one beast for their own use; they just start to kill the lot. So we definitely support these two orders.
Lord Walston: My Lords, perhaps I should declare a personal interest in this matter. Some years ago my wife introduced on to a pond near our house some decorative ducks which were very beautiful, very attractive and rather expensive. One by one they disappeared. The culprit was diagnosed as a coypu. Officials from the noble Baroness's department were speedily on the scene bringing the appropriate gear which they set in the appropriate places. Unfortunately, they failed to find any coypus. However, since that time there has been no indication
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that there are any coypus in that particular part of the world. They may have been frightened away-or of course it may be because there are no more decorative ducks waiting there to be caught by them. I think I can now therefore look at the matter rather more objectively than at the time when I was a sufferer from coypus.
I would say, without any more ado, that I think both these orders for mink and coypus are the right thing. They have done their job well and they should he retained or renewed as the noble Baroness has asked.
Lord Houghton of Sowerby: My Lords, I regard myself as being a sort of guardian of the supper break. You will not be surprised if I refer to that. If we are to do business during the supper break, why has it to be so depressing? We seem to get all the miserable subjects to deal with while other noble Lords are enjoying their supper. The noble Baroness gets more than her share of this kind of work because it is to do with agricultural orders of one kind or another. The other week we were dealing with the battery hen and the veal calf. Last week we were dealing with a very sensitive matter, a dispute between Church and state where the interests of the Church were involved and a piece of land in the City of Westminster. Many of us had to turn up to stand guard over one of the diminishing open spaces in the City of Westminster. Here we are: animals in cages again.
Although it is gratifying that the control of these destructive animals is continuing unabated, one wonders why we still have these animals in our industrial premises at all. It is 55 years since control of destructive animals imported into this country had to be imposed. Why have they come here? Why did they bring them here?
I believe that mink farming is a detestable industry for a contemptible purpose. For fur and fur coats for women mink were brought in. I do not want to make a sexist speech but the fact is that mink coats are worn by women. All that could be avoided if only the women of Britain would take a stand against the exploitation of animals, cruelty to animals for their own adornment or the indulgence of their taste in luxury and their subservience to the overtures of men who offer them rewards for dubious activities. There is nothing men will not do for profit out of animals unless the law stops them. That has been found to be so over the years.
It is gratifying to know that there has been a substantial reduction in the number of mink farms in Britain in recent years. I did not quite grasp all the figures that the noble Baroness gave us. I do not know whether she gave us any idea of the total mink population. I gathered that the coypu order prohibits the keeping of the coypu and that only a few licences have been granted to keep them for special purposes. So presumably that order merely renews the existing one. It will really make no difference.
However, in the case of the mink order one gets the impression that there is a new prohibition, a total prohibition, on the keeping of mink in the offshore islands to which the noble Baroness referred and which are set out in the order. If so, that is good news.

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I take it that that does make a difference or are they prohibited in these areas already?
I sometimes think that the explanations given for these orders are rather more confusing than the orders themselves, and I am not very clear as to the effect of the mink order in these areas. I assume that it is a new prohibition against the risk of importing mink and increasing their population in these islands. It is to spare them the ravages which other parts of the country have suffered because of this animal.
I think that the licences granted for mink farms should now begin to he phased out. What are we doing keeping on these mink farms? Surely if it is for the purpose, as I suspect it is, of fur for fur coats and similar garments, the social attitude towards the wearing of these garments is now changing and there is a widespread feeling of disapproval. I hope that we can enter into the spirit of this desirable change in attitude towards the rearing and destruction of animals for the purpose of luxury coats.
I am sorry to indulge in this outburst but I believe that the time has come when nothing should be allowed to pass unnoticed which is a continuance of the ill treatment of animals and the keeping of unsuitable animals under unsuitable conditions for an undesirable purpose. I think that is enough for the time being until the next miserable order comes for the noble Baroness to move about something else in cages, something else that is doing a lot of damage unless it is kept under control. Probably we shall now be allowed to go till Christmas without having our attention diverted to these unhappy subjects. and we can have a more contented Christmas if only noble Lords will have some regard for what happens to other animals at Christmas and will make merry on Stilton cheese.
Lord Walston: My Lords, before the noble Lord sits down—and I listened with great interest to his strictures on fur coats—may I ask whether I would be right in assuming that he is an adherent to the old saying that diamonds are a girl's best friend? If so, how does he equate that with his very admirable views on trade with South Africa?
7.35 p.m.
Baroness Trumpington: My Lords, I hate to interrupt this happy little moment, but perhaps I may first thank the noble Lord, Lord John-Mackie, and also the noble Lord, Lord Walston, for their words. I especially thank the noble Lord, Lord John-Mackie, in view of his long-standing concern over this matter. The noble Lord, Lord Walston, told us a fascinating story about coypus killing ducks. I think that mink must have been present, because coypus only eat plants; they do not eat ducks. Or it may have been some other vile creature which was lurking in the rushes. But it would not have been coypus which were guilty in that case.
The noble Lord, Lord Houghton, is a sad and sorry person on this occasion. This is most certainly not depressing for me. This is a good news story that I am bringing. The end of the coypu is in sight and the mink ban is very good for wildlife, which is
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something I presume he cares as much about as wishing to see women stop wearing mink coats. I totally disagree with him. I have seen quite a few men wearing mink coats and a great many men wearing fur hats. So I am sorry to disagree with him, hut I think he should look up to a few men, around their collars and on their heads, and see what they are wearing over this festive season.
I would further remind the noble Lord, Lord Houghton, that mink farms are a small hut valuable part of' our farming industry. Most of their production—95 per cent., I think—is for export. Mink are farmed under a strict welfare code. Anyway I have to say, honestly, that they are the most revolting little animals. As regards the numbers of mink, it is not known how many wild mink there are at large, but certainly there are many thousands. I say that in answer to the noble Lord, Lord John-Mackie. As of this moment, the number of farmed mink in England—one can never be quite sure, just as in the case of rabbits—is 73,880, while in Scotland the figure is 25,948, making a grand total of 99,828.
The noble Lord, Lord Houghton, also asked me whether a total prohibition in the islands, and in the two Scottish counties of which I spoke, would make a difference. The answer is yes. In the past, farms have been established on islands and planning controls have stopped some other island farms. Wildlife is now assured of protection. I think that answers the questions asked of me by noble Lords. I wish the noble Lord, Lord Houghton, a very happy, peaceful and untroubled Christmas.
On Question, Motion agreed to.

Coypus (Prohibition on Keeping) Order 1987
Baroness Trumpington: My Lords, I beg to move.
Moved, That the order laid before the House on 30th November be approved. [8th Report from the Joint Committee].—(Baroness Trumpington.)
On Question, Motion agreed to.

Medicines (Exemptions from Licences) (Carbadox and Olaquindox) Order 1987
7.38 p.m.
Baroness Trumpington Baroness Trumpington rose to move, That the draft order laid before the House on 25th November be approved [8th Report from the Joint Committee].
The noble Baroness said: My Lords, this draft instrument is necessary so that workers in feed mills and on farms are not exposed to risk from products containing carbadox and olaquindox which have not been licensed and, therefore, do not carry appropriate risk warnings. The marketing and use of medicinal products used as growth promoters in animal feedingstuffs are controlled by an EC Directive, 70/524/EEC. It lays down very detailed conditions about such matters as species, dose rates, ages of treated animals, withdrawal periods, etc.
There are two medicinal feed additives used for growth promotion where the United Kingdom feels that there is some element of risk for workers in feed mills and on farms who may handle the product over a period of time. Our anxieties have been the subject of protracted debate at expert level in the Community. Our EC partners feel that our anxieties are not justified in practice.
For a long period member states have had discretion whether or not they should authorise products containing these two additives, carbadox and olaquindox. At the end of last year, the relevant provisions of European legislation lapsed. But, as a result of an action in the European Court of Justice by a pharmaceutical company, the European Commission had to bring these two substances back into the legislative framework and did so in a form which made it mandatory for member states to license products containing them.
Happily, other member states recognised that our concerns on safety must be acknowledged and the European legislation now contains provisions which enable us to take account of worker safety when we license products containing carbadox and olaquindox by requiring appropriate warnings to be put on the products. There were already corresponding provisions for consumer safety in the previous legislation. We are currently carrying through these labelling requirements to licensed products in full consultation with the Department of Health and Social Security and the Health and Safety Executive.
But Section 9 of the Medicines Act allows a veterinary surgeon to manufacture, sell or supply an unlicensed medicinal product provided it is to be administered to an animal under his care. Clearly it would he possible for unlicensed carbadox and olaquindox products to escape the strict licensing controls and hence the requirement to put the appropriate safety warnings on the labels. Clearly, that route must not be left open. 1 beg to move.
Moved, That the draft order laid before the House on 25th November be approved.—[8th Report from the Joint Committee.]—(Baroness Trumpington.)
Lord John-Mackie: My Lords, again I thank the noble Baroness for so clearly putting forward why this order is before us. However the noble Baroness disappointed me slightly. I was hoping that she would read out all the names in paragraph 2. I shall not attempt to do that, but it would have been interesting to have heard the noble Baroness read out those 20 or 30 names.
I consulted the BVA and it was agreeable that no risks could be taken on this. I also consulted a chemical company who agreed that the measure was necessary. However, it did point out that there is always the argument that people will not be able to read the label. I think that nowadays our workers are well enough educated to be able to read the label although there may have been a time when they were not. Anyway it is the duty of the overseer, the manager or the foreman or whoever is carrying out operations to make sure that the label is read properly. Without further ado, I agree with the order.
On Question, Motion agreed to.
Lord Hesketh: My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.43 to 8 p.m.]

Copyright, Designs and Patents Bill [H.L.]
House again in Committee.
Clause 119 [Licences for reprographic copying]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 243B:
Page 49, line 43, after ("copied") insert—
("( ) the nature of the work itself,").
The noble Lord said: Clause 119 refers to licences for reprographic copying. The one thing which it does not tell the tribunal to consider is the nature of the work. There is a distinction between a work which is the length of the Bible and something the length of a one-stanza poem. It would appear that the nature of the work should be considered when licences for copying are being considered. I beg to move.
Lord Beaverbrook: Clause 119 specifies conditions to which the tribunal must have regard on references or applications relating to the licensing of reprographic copying of published literary, dramatic, musical or artistic works or the typographical arrangement of published editions. The clause gives effect to policy announced in paragraph 18.13 of the White Paper regarding reprographic copying. Paragraph 18.12 pointed out that special factors may arise in particular photocopying licence disputes. For example, it may be appropriate that a licence distinguishes between copying for archival purposes as opposed to onward transmission to a customer who could reasonably be expected to pay a copyright royalty.
In the educational field teachers sometimes wish to use extracts selected from a range of publications when purchase of the individual copies cannot be justified. A material factor in most cases would be whether the photocopy was competing with other current means of exploiting work, as it would, for example, in the case of photocopying from a book currently on sale but not if the book were out of print.
The criteria set out in Clause 119 seem to us the most relevant ones in relation to disputes over schemes or licences for reprographic copying. I find it hard to see what the noble Lord's amendment would add to that. If I may say so, it is a rather curious criterion. It does not make at all clear what aspect of the nature of the work is to be considered and how it is supposed to influence the tribunal's decision. Is it intended that the tribunal should increase the fees that may be charged where the literary or musical quality of the works is especially high? Will higher fees be chargeable for copying historical or scientific works than for copying science fiction? I think that the amendment will only complicate and obscure the deliberations of the tribunal.
Lord Morton of Shuna: If I may say so—it is perhaps logical in one sense—the response which the Minister read out did not quite meet the point I was trying to deal with. If one has a copyright work which is fairly short, the question whether there should be licences for reprographic copying may be entirely different from if the work is very long and one is only copying an excerpt from it. We are dealing here with anything at all—literary, dramatic, musical or artistic work—and the amount of variation is almost unending. I should have thought that without a provision which allows the tribunal to consider the nature of the work itself, there is one element which is totally missing from its consideration. I hope that the Minister is prepared to consider the matter.
Lord Beaverbrook: I am grateful to the noble Lord for his explanation as to what he intends by the expression "the nature of the work". The length of the work will be relevant to paragraph (b) of the clause on the proportion of the work to be copied. That is set out in Clause 119(b).
I believe that we have it right. I shall look carefully at what the noble Lord has said to see whether in our response to his amendment we have perhaps misinterpreted the intention. I cannot make any commitment. However, we shall look carefully at what has been said in his explanation of the amendment.
Lord Morton of Shuna: I am grateful to the noble Lord. Perhaps 1 may take an example with a biblical connotation. If copyright was involved in the Song of Solomon, the proportion of the work, if it was one work, would be different from if the Song of Solomon was part of the Bible. Therefore, the proportion would be totally different and that would perhaps he the nature of that work. However, in view of that friendly response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 243C:
Page 49, line 43, after ("copied") insert—
"( ) the amount of loss (if any) which the owner of the copyright would suffer as a result of the copying to be permitted under the scheme,".
The noble Lord said: Industry believes that if it is required to take out licences to cover photocopying, particularly if the licences are required for photocopying that which has hitherto been permissible as fair dealing, the licence fees payable should reflect any loss suffered by a publisher as a result of the copying which is to be carried out. The proposed amendment seeks to clarify the matter.
The Government argued on Tuesday in the debate on Clause 29 that industry should also be making some payment for the use of copyright works. If so, that seems to be a new principle which I should have thought ought to be fully debated in the Committee to ensure that the Bill provides adequate guidance for the tribunal. I am hoping that my noble friend will say that the Government will table an amendment at the next stage of the Bill to achieve that purpose. I beg to move.
Lord Morton of Shuna: Perhaps I may ask a question which I perhaps should have asked at a different stage. There is a type of machine—the fax machine—which sends copies. As I understand it, in order to send a copy, a photocopy must first be taken and then put through the machine. The copy then appears at the other end. Is that the type of copying which is to be struck at by the legislation? That would be of considerable importance to all sorts of professions, trades and industries.
Lord Beaverbrook: I am not sure that I can comment this evening on the technical procedures concerning a fax machine. Obviously, as the Bill is going to have to serve us in law for the next 30 years or so—a similar length of time to the last one -we must look at that matter. As we all know, technical advances are coming very fast.
Clause 119 lists certain criteria which are to guide the tribunal in references or applications related to reprographic copying. I am not certain that adding the criterion in the amendment would serve a useful purpose. If the matter was relevant, I think that the tribunal would have to take account of it in any case. However, we shall look at the point without commitment.
I should say in addition to my earlier point to the noble Lord. Lord Morton of Shuna, that I believe that sending copies via a facsimile machine is a form of reprographic copying with relevance to Clause 161.
Lord Cullen of Ashbourne: I am grateful to my noble friend for that assurance. I beg leave to withdraw the amendment.
Amendment. by leave, withdrawn.
Clause 119 agreed to.
Clause 120 [Licences for educational establishments in respect of works included in broadcasts of cable programmes]:
On Question, Whether Clause 120 shall stand part of the Bill?
Lord Willis: I wish to raise rather an important point on this clause because it seems to me that there is a confusion here which I hope that the Government will consider.
There are several separate and distinct rights in any intellectual property. For example, if I write a play for television I receive an initial fee for that play. I receive additional fees if the play is transmitted and sold to Australia, America, Germany or anywhere else. I earn another fee if the play is then reproduced in some form or another.
I think that this clause smudges the issue. Let me put it at its simplest; I am sure that when the Minister was appointed by the Government they did not say to him, "With regard to your salary we are going to adjust it because we know you have income from other sources." That is what the clause suggests as it stands at the moment.
There is a condition imposed on the tribunal to take account of other income of the copyright owner. That is absolutely wrong. There are separate and

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distinct rights. All that we and the tribunal should be concerned with is what should be paid for each particular right. It should not be said. "You have received so much money from this, therefore we arc going to pay you less for that". That is a matter of bargaining and of contract. It is not a matter to be discussed in that particular way.
Lord Morton of Shuna: I agree with my noble friend. There appears to he a confusion of two ideas. If a fee is paid to a person because his copyright is used on a broadcast, surely that is something totally different from whatever fee, if any, he may be entitled to receive if an educational establishment wishes to make use of that broadcast in another way. It seems to me that there is a complete confusion there. Why should the broadcasting authority in a sense have to pay for the freedom of the educational establishment?
Lord Beaverbrook: I am grateful to the noble Lords, Lord Morton, and Lord Willis. The purpose of this clause is to ensure that the owners of rights in works including broadcasts and cable programmes which are recorded for educational use under a licensing scheme certified under Clause 131, can obtain a reasonable but not excessive return for this further use of their work.
As noted in paragraph 18.14 of the White Paper which announced the intention to introduce this provision, many or most of the television and cable programmes for which educational recording licences will be sought will have been made on the assumption that the only source of revenue available to the owners of rights in works included in the transmission would be the fees for the broadcast or the cable programme itself.
The tribunal will have to judge the extent to which these fees included an element of compensation for the fact that the broadcasts or cable programmes will be recorded for educational use. To the extent that they did it may consider that a reduction of the charges allowable under the scheme would be reasonable. That seems to be a fair condition. I do not believe that copyright owners need to fear that their legitimate interests will be damaged in any way.
Clearly if the original terms contained no element of compensation for likely recording by educational establishments and this can be established then tribunal awards in relation to schemes for this purpose will not be reduced.
Lord Willis: What is objectionable is simply that the creator of intellectual material has to be judged on the basis of what fees he has received for previous broadcasts or productions of his work.
We have a system now in which educational and schools broadcasts, writers and other people take lower fees. We do that deliberately because we realise the importance of the process. It is a matter for our judgment and not the judgment of someone else.
I object very strongly to anybody having the power to say: "Because you have earned so much from this particular play we think you should take this amount." If the noble Lords, on the Front Bench
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below the Bar would lower their voices we might be able to hear a little better.
What I object to is the fact that we have a double standard. It is a voluntary act on our part to reduce fees for educational and schools broadcasts. I object to this clause because it imposes—possibly imposes—or gives somebody the right to impose lower fees. I think that is wrong in natural justice and that is why I oppose the clause.
Clause 120 agreed to.
Clauses 121 and 122 agreed to.
8.15 p.m.
Clause 123 [Licences in respect of works' included in re-transmissions]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 244:
Page 50, line 36. leave out subsection (1) and insert—
("(1) This section applies to references or applications under this Chapter relating to licences to include in a broadcast or cable programme service—

(a) literary, dramatic, musical or artistic works, or

(b) sound recordings or films,

where one broadcast or cable programme ("the first transmission-) is, by reception and immediate re-transmission, to be further broadcast or included in a cable programme service ("the further transmission").")
The noble Lord said: Clause 123, makes provision in respect of tribunal decisions in cases concerning broadcasts or cable programmes which are subject to immediate rebroadcast or retransmission by cable.
In moving my Amendment No. 244 for the convenience of the Committee I shall also speak to Amendments Nos. 245, 246, 247 and 248. I shall also speak to Amendment No. 244A in the name of the noble Lord, Lord Lloyd of Kilgerran.
This is a complex area and I have to say that in the Bill as printed the drafting of Clause 123 is still not quite right. Amendments Nos. 244 to 248 will rectify this.
There is no change of purpose or effect intended. As to Amendment No. 244A in the name of the noble Lord, Lord Lloyd of Kilgerran, I think that if the noble Lord were in the Chamber and he were to look carefully at Clause 123, as we are amending it, he will see that the amendment is not necessary. Certainly one of the cases that we wish to cover is a reference of a licence to include works in a broadcast or cable programme which is retransmitted, but I can assure him that the clause does that. I would also point out that the tribunal will have no jurisdiction over any retransmission outside the United Kingdom, although the clause may require them to take such retransmission into account.
Clause 123 has four main purposes. It is intended, first, to ensure that if copyright owners license inclusion of their material in a foreign broadcast or cable programme service on terms which cover retransmission of that broadcast or service in the United Kingdom, any tribunal award that they may obtain in the UK in respect of royalties due from UK cable operators or broadcasters for retransmitting the foreign broadcast are abated to the extent that this retransmission was allowed for in the terms of the initial licence. The intention is to avert double

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payment to rights owners in respect of what is essentially a single transmission (or chain of transmissions) reaching the same audience. This policy is unchanged from the 1956 Act, where it is implemented by Section 28.
The second objective is to ensure that, when broadcasts or cable programme services are retransmitted within the intended reception area of the broadcast or service (and this applies particularly to "in-area" retransmissions abroad of UK satellite broadcasts), and right owners obtain payment from the cable operator for the retransmission under local law, tribunal decisions on licences in respect of the original broadcast shall take this into account.
The third objective is to ensure that when broadcasts or cable programme services are retransmitted beyond or outside the intended reception area of the broadcast or service, the broadcaster or provider of the cable programme service which is retransmitted cannot he made to pay royalties in respect of the retransmission. It is up to the rights owners concerned to use any rights available in the country or area of the retransmission to reach an agreement with those responsible for it. If such rights do not exist it should not fall to the broadcaster to reimburse copyright owners for that fact.
This provision, however, is subject to subsection (4), which is a consequence of the fourth objective; namely, to ensure that copyright owners are adequately remunerated when a broadcast containing their works is retransmitted by cable beyond the intended reception area of the broadcast in consequence of a "must-carry" obligation which the Cable Authority has placed on a provider of a cable programme service. As amended by Amendments Nos. 244 to 248 standing in my name, I believe Clause 123 will more satisfactorily achieve the objectives I have just outlined. I beg to move.
Baroness Seear: On behalf of my noble friend who is unavoidably absent until about half-past nine, I should be grateful if the Minister would spell out why he considers that his amendment is no longer necessary in view of the amendment moved by the Minister. It is not immediately clear to me.
Lord Williams of Elvel: We accept that Clause 123 was probably not drafted in the way that the Government would have liked and we accept that this is an extremely complicated area.
My only comment on the amendments that the Minister has moved concerns the footprint of a satellite broadcast which is indeterminate and depends on the size of a dish and, to a certain extent, on weather conditions. Is the Minister satisfied that the copyright is respected in respect of that complication? For example, if I may mention the French satellite, I understand that French satellite broadcasting—I think it is TVS—will be able to reach Scotland with a large dish. It will certainly be able to reach London with a small dish—a 90 centimetre dish as I understand it—and it may well go beyond Scotland with an even larger dish.
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In moving these amendments is the Minister saying that the Copyright Tribunal cannot influence this in any way if it is going beyond the established footprint of the satellite, or is he saying that the Copyright Tribunal can do its best but cannot influence what fees are paid in respect of copyright material? It seems to me that the noble Lord, Lord Lloyd of Kilgerran, has a point when he seeks to insert in the Bill
"in any part of the world''.
That establishes very firmly that the satellite footprint does not exactly determine where copyright material is chargeable, if I may use that expression.
Lord Beaverbrook: First, I turn to the point raised by the noble Baroness, Lady Seear. I said in speaking to the amendment in the name of the noble Lord, Lord Lloyd of Kilgerran, that certainly one of the cases we wish to cover is the reference of a licence to include "works" in a broadcast or cable programme which is retransmitted abroad. I assure the noble Lord that the clause does this. I also point out that the tribunal will have no jurisdiction over any retransmission outside the United Kingdom, though the clause may require it to take such retransmission into account. Let me also say to the noble Baroness that under the provision as amended by Amendments Nos. 244 to 248 the tribunal will be required to take account of retransmissions anywhere in the world if within the area of the original transmission. I believe that that renders Amendment No. 244A unnecessary.
Baroness Seear: The Minister will understand that I am only a caretaker speaker on this occasion so I have to be rather fussier than normal. "Abroad" is not the same as "anywhere in the world". It may well be that there is an important difference in saying that the transmission is "abroad" and in covering it more fully by saying that it is "anywhere in the world". If there is doubt, is there any serious objection to including this phrase in the clause?
Lord Beaverbrook: I think that the expression "abroad" includes anywhere else in the world other than the United Kingdom, which, if this Bill becomes law, it will cover. However, I will look to see whether there is any objection. We are not in the business of trying to add words to the Bill but we will of course see whether clarity could be improved by the inclusion of those words.
Turning to the point raised by the noble Lord, Lord Williams of Elvel, the principal point of this clause is to ensure that copyright owners are not paid twice in respect of transmissions that happen to overlap transmissions that are already made or licensed in the United Kingdom.
As regards the French satellite system, I am advised that if a cable operator retransmits a satellite broadcast outside the area of reception of the broadcast—that is, the footprint—the tribunal is not to require the original broadcaster to pay for the extra audience.
Lord Williams of Elvel: I shall read carefully what the noble Lord said because this is an important point. A broadcast can be transmitted and retransmitted by satellite and will or will be in the

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future, be received in either cable form or through a private reception mechanism known as a dish. We must look at what the noble Lord has proposed in his amendment, and what he said in moving it and replying to our comments, to see whether that is adequately covered. At the moment I am not convinced, but I shall read what he said.
On Question, amendment agreed to.
[Amendment No. 244A not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 245:
Page 50, line 46, leave out ("the licences") and insert ("licences for either transmission")
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 246, 247 and 248:
Page 51, line 2, leave out ("first") and insert ("other").
Page 51, line 7, leave out ("the licences") and insert ("licences for the first transmission").
Page 51, line 13, leave out ("the licences") and insert ("licences for the first transmission").
On Question, amendments agreed to.
Clause 123, as amended, agreed to.
Clause 124 [Mention of specific matters not to exclude other relevant considerations]:
On Question, Whether Clause 124 shall stand part of the Bill?
Lord Williams of Elvel: I am sorry to intervene when we are trying to get on with the Bill but would the noble Lord explain exactly what Clause 124 means, because I am quite uncertain as to its purport? It states that,
"Copyright Tribunal is to have regard in certain classes of case does not affect the Tribunal's general obligation in any case to have regard to all relevant considerations".
This seems to me to defeat itself. If the tribunal is to have regard to certain relevant considerations and certain classes of case, it is bound to have regard to all relevant considerations in all classes of case.
Lord Beaverbrook: The clause ensures that whatever specific matters may need special attention in a particular case, the tribunal must always take all considerations into account which are relevant to the case. Although this has always been tribunal practice, the obligation to take all relevant matters into account is not specifically stated in the 1956 Act.
Lord Williams of Elvel: I hear what the Minister says and I am grateful to him, but would it not be better to say that the Copyright Tribunal is to have in all cases regard to all relevant considerations?
Lord Mulley: I support my noble friend Lord Williams because the experience we have had in independent broadcasting is that if the Copyright Tribunal—and I have no wish to prejudge it before it exists—should in any way resemble its predecessor, the Performing Rights Tribunal, it is relevant that it should have a statutory duty to consider all relevant factors—because that is something which the PRT has never done since it was set up. That is what the
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clause is seeking to do, to ensure that the obligation of taking all relevant matters into account is fully stated, as it was not stated in the 1956 Act.
Lord Williams of Elvel: Will the noble Lord have a look at the drafting of this clause to make sure that the difficulties that the Opposition find with it are not reflected in the final Act when it becomes a statute?
Clause 124 agreed to.
Clause 125 [Implied indemnity in certain schemes and licences for reprographic copy]:
8.30 p.m.
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 248A:
Page 51, line 20, leave out ("general").
The noble Lord said: These are purely probing amendments to establish the intention of the Government behind Clause 125. Industry certainly welcomes the proposal that certain types of licensing scheme should carry an implied indemnity of the sort set out in subsection (3). Indeed, if it were not there already industry would argue that it ought to be.
However, the way this clause is currently drafted seems to make it extremely limited in its application. The scheme appears to be only a general scheme or general licence if it does not specify the works covered with sufficient particularity to enable the licensee to know what he is buying. Surely this would be the case if the scheme itself has been appallingly badly drafted? Perhaps my noble friend can explain to the Committee what this really means. I beg to move.
Lord Williams of Elvel: I should like to support the noble Lord, Lord Cullen of Ashbourne, in his amendment and I should also for the convenience of the Committee like to speak to Amendments Nos.248B, 248C, 248D, 248E and 248F, if I have the agreement of the Committee.
On the Opposition side we are always somewhat suspicious when a clause in a Bill starts with, "This Section applies to general schemes". "General" is a word that is frequently used and indeed frequently misused. I think the problem is that using the word "general" in subsection (1), however it is defined in subsection (2)—which does not seem to us to add anything—opens up a whole range of schemes or things that might be called schemes which ought not to be included in this particular clause. I accordingly look forward to the comments of the Minister on what exactly the Government mean by all this. I am afraid our suspicions are aroused by this and that is why I am speaking in support of the amendment. Perhaps the Minister can allay our suspicions when he gives his explanation?
Lord Beaverbrook: Clause 125 provides for an indemnity to be implied in every general licensing scheme for reprographic copying and every general licence granted by a licensing body for such copying.
Lord Williams of Elvel: Will the Minister confirm that he is also speaking to Amendments Nos. 248B, 248C, 248D, 248E and 248F?
Lord Beaverbrook: I apologise to the Committee. I am indeed speaking to the grouping as set out on the list that was issued.
This is to indemnify the licensee in regard to any infringement in respect of copies made in circumstances within the apparent scope of the licence. This clause puts into effect, with slight modifications, the policy set out in paragraph 8.7 of the White Paper with regard to licensing schemes and general licences for reprographic copying.
As the White Paper pointed out, the problem with blanket licensing schemes is that, unless all copyright owners producing material of a given category cooperate in setting up the scheme, there is a risk that the licensee will inadvertently copy material which is outside the scheme. Therefore the Government would like to see general adoption of the form of indemnity against copyright infringement actions by non-members of the scheme which the copyright licensing agency currently includes in its agreement.
The White Paper envisages placing a statutory obligation on collecting societies in the reprographic field to include indemnity provisions in their schemes. But the Bill follows a slightly different approach in providing that an indemnity against inadvertent infringement of copyright, outside a scheme or licence, shall he implied in every general scheme and general licence. The provisions will bite on those schemes and licences which are general in nature, such as those that do not specify that the works are covered in such a way as to make clear by inspection whether a particular work falls within them or not. If inspection makes clear that a particular work is outside the scheme or licence then the implied indemnity does not arise.
I turn now to the specific amendments of the noble Lord. Amendments Nos. 248A, 248B and 248C all concern this clause. They would remove the qualification that the indemnity provisions in the clause would only apply to schemes and licences in so far as they do not specify the works with sufficient particularity to enable a licensee to determine whether a work falls within a scheme or licence—in other words, the provisions would apply even where it can be determined whether or not works fall within the scheme or licence.
Turning now to Amendments Nos. 248D, 248E and 248F, they deal with the issue of commercial research which we debated earlier in these proceedings. The proposal is to bring photocopying for the purposes of commercial research within Clauses 126 to 131. This is an interesting suggestion. However, as I said when we debated this issue on a previous occasion, we are already considering the proposal that photocopying by libraries for the purpose of commercial research should be free to the extent that no licensing scheme covering the works in question has been established and certified under Clause 131. If we were to go down that route then the proposals of the noble Lord with regard to Clauses 126 to 130 would I think become largely unnecessary.
Lord Cullen of Ashbourne: I am grateful to the noble Lord for a very full comment about my
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amendments. However, I seem to see that somebody else wishes to speak on this before I do.
Lord Williams of Elvel: I am sorry to interrupt the noble Lord, but I am still unhappy about this definition of general schemes and general licences. I understand that the Minister when he gave his response read out more or less what was the text of the Bill. Indeed, I read the text of the Bill and so did he; therefore we all understand what it says. However, I am unhappy that he has not given us any further explanations, which I think the noble Lord, Lord Cullen of Ashbourne, was looking for, as to what the Government really mean by general schemes and general licences. This seems to us to give a rather blanket licence to practically anybody. Perhaps the noble Lord could help us further on this matter. If he can, we shall be very happy.
Lord Beaverbrook: The concept of a general licence is where the terms of the licence are to be negotiated between the buyer and the seller, so to speak. For instance, if the Government generally wish to negotiate terms for a general licence with a particular licensing agency, then there would be a discusssion which would lead to establishing the terms for that licence. Where a licensing scheme is in operation the terms of the scheme are usually already in existence. For instance, the price, the length of time and other considerations that would still have to be negotiated for a general licence.
Lord Williams of Elvel: I am sorry that the noble Lord still has not answered my point, which is contained in the question about subsection (2). Subsection (2), as he quite rightly says, states that:
" 'General licences' and 'general schemes' mean licensing schemes and licences which do not specify the works to which they apply with such particularity as to enable licensees to determine whether a work falls within the scheme or licence by inspection of the scheme or licence and the work";
in other words, nobody knows whether a work is included in this particular licence. It is a general licence, and no one has a clue as to what falls within it. If the noble Lord could help us with the criteria, we should be happier.
Lord Beaverbrook: What falls within a general scheme is to he negotiated between the parties.
Lord Williams of Elvel: I am not going to go on about this, but subsection (2) does not specify the works. No one knows what they are. That is the problem.
Lord Howie of Troon: Will the Minister tell us which parties he means when he says that the scheme will be negotiated between the parties?
Lord Beaverbrook: Will the noble Lord repeat what he said, because I could not catch it? I apologise.
Lord Howie of Troon: I thought that the Minister said that the scheme would he negotiated between the parties. I wondered which parties he meant.
Lord Beaverbrook: The licensor and the licensee would be the two parties who would have to agree the terms and other conditions. An example of a general licence would be a reference to all books published by a certain group of publishers. The copyright in some of those works may remain with the authors. In that case, the operators of the scheme must be indemnified against any possible infringement resulting from ignorance of that fact.
Lord Howie of Troon: In that case, would not the parties include the publishers concerned, the people who wish to reproduce work and the licensors?
Lord Beaverbrook: As I understand it, where a licensing scheme or a general scheme is being established, it would be between the operators of the scheme and the people who wish to use the words covered by the scheme.
Lord Cullen of Ashbourne: We have taken a long time over this amendment. My noble friend's last words have helped me a great deal; but I shall have to read through the debate. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 248B and 248C not moved.]
Clause 125 agreed to.
Clause 126 [Power to extend coverage of scheme or licence]:
[Amendments Nos. 248D and 248E not moved.]
Clause 126 agreed to.
Clause 127 agreed to.
Clause 128. [Variation or discharge of order extending scheme or licence]:
[Amendment No. 248F not moved.]
Clause 128 agreed to.
Clause 129 [Inquiry whether new scheme or general licence required]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 249.
Page 54, line 2, leave out ("a new licensing scheme or general licence is required") and insert ("new provision is required (whether by way of a licensing scheme or general licence)").
The noble Lord said: It would be for the convenience of the Committee if I spoke also to Amendments Nos. 250, 251 and 252. The role of the inquiry under the terms of Clause 129 into the need for licensing arrangements for educational establishments is only to decide whether a new provision is required.
We do not consider that it is appropriate for such an inquiry to recommend whether copying in an educational establishment should be licensed under a new licensing scheme or under a general licence. We think that this is a matter best left open so that the copyright owners concerned can decide on the most appropriate course. The purpose of the inquiry is merely to decide whether the situation demands the making of a new provision. The amendment will
532
mean that the matter of how licences are provided is not unnecessarily restricted. I beg to move.
8.45 p.m.
Lord Williams of Elvel: In replying to the noble Lord on Amendment No. 249, I shall speak also to Amendments Nos. 250, 251 and 252. We still have the problem of a general licence and how it is defined. We are not satisfied with the way that "general licence" is defined earlier in the Bill and in the debate that we have just had. Nevertheless, I should have regarded this amendment more as a drafting amendment than one of substance. As such, I do not wish to challenge it. I wish to reiterate my view that a greater definition of "general licence" is required before the Bill can be allowed to become a statute.
On Question, amendment agreed to.
Lord Cullen of Ashbourne Lord Cullen of Ashbourne moved Amendment No. 249A:
Page 54, line 3, after ("making") insert ("for the purposes of commercial research or").
The noble Lord said: I should like to speak also to Amendments Nos. 249B, 253A and 253B. Clause 126 and the amendments to it which have been moved concern powers to extend the coverage of the existing licensing scheme. Clause 129, as drafted, is limited to copying by educational establishments and deals with the power to order new schemes where existing schemes are inadequate or non-existent. As with the previous amendments, these amendments extend the Secretary of State's power to cover schemes referred to for photocopying in industry as well as educational establishments. I beg to move.
Lord Beaverbrook: As I have already said, the amendments moved by my noble friend deal with the issue of commercial research which we debated earlier in our proceedings. As I said then, we are already considering the proposal that photocopying by libraries for purposes of commercial research should be free to the extent that no licensing scheme covering the works in question has been established and certified under Clause 131. If we were to go down that route, my noble friend's proposal with regard to Clauses 126 to 130 would become largely unnecessary.
Lord Cullen of Ashbourne: I thank my noble friend for that reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 249B not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 250:
Page 54, line 23. leave out ("a new licensing scheme or general licence") and insert ("the making of new provision").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 251:
Page 54, line 32, leave out ("a new licensing scheme or general licence") and insert ("the making of new provision").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 252:
Page 54. line 34, leave out ("licences under the new scheme, or the new general licence'') and insert ("authorisation under the new provision").
The noble Lord said: 1 have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 129, as amended, agreed to.
Clause 130 [Statutory licence where recommendation not implemented]:
The Deputy Chairman of Committees (Lord Strabolgi): Before I call Amendment No. 253, I have to inform the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 253A or 253B.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 253:
Page 54, line 42, leave out subsections (I) and (2) and insert—
("(1) The Secretary of State may, within one year of the making of a recommendation under section 129 for the making of new provision, by order provide that if, or to the extent that, provision has not been made in accordance with the recommendation, the making by or on behalf of an educational establishment, for the purposes of instruction. of reprographic copies of the works to which the recommendation relates shall he treated as licensed by the owners of the copyright in the works.
(2) For that purpose provision shall he regarded as having been made if—

(a) a certified licensing scheme has been established under which a licence is available to the establishment in question, or

(b) a general licence has been—

(i) granted to or for the benefit of that establishment, or

(ii) referred by or on behalf of that establishment to the Copyright Tribunal under section 114 (reference of terms of proposed licence), or

(iii) offered to or for the benefit of that establishment and refused without such a reference.")

The noble Lord said: The proposed amendment to Clause 130 to a certain extent reflects the change made in Clause 129. It also expands the section dealing with general licences. Although the theory behind a general licence is that all educational establishments will be treated or will act in the same way, there is no guarantee that that will be the case. The amendment caters for the situation where some establishments are offered a general licence but not others. If they are not offered a licence a statutory licence may be introduced in their favour. On the other hand, educational establishments will not be able to get the benefit of the statutory licence merely by refusing the offer of a general licence without referring to the Copyright Tribunal. I beg to move.
Lord Williams of Elvel: There seems to us to be some confusion between general licence and statutory licence. All that comes from the difficulty of deciding what a general licence is in the first place. Although we shall not oppose the amendment we ask the Government to look again at the question of
534
general licence to make sure once and for all that they have it right.
On Question, amendment agreed to.
[Amendments Nos. 253A, 253B and 254 not moved.]
Clause 130, as amended. agreed to.
Clause 131 [Certification of licensing schemes]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 254ZA:
Page 55, line 37, leave out ("may") and insert ("must")
The noble Lord said: I shall not be moving Amendments Nos. 254ZB, 254ZC and 254ZD. I shall concentrate my remarks on Amendment No. 254ZA. The amendment is a simple one. It attempts to argue that any person operating or proposing to operate a licensing scheme should have not the option but the requirement to apply to the Secretary of State and should not be able to operate such a scheme unless he has done so. This seems to us a reasonable amendment. The Minister may tell the Committee that other passages in the Bill make the amendment unnecessary. However, we believe that it should be a requirement and not optional.
Lord Campbell of Alloway: Even the Law Lords seem to disagree on the distinction between "may" and "must". On the issue of whether it is to be optional, "may" would appear to be optional and "must" mandatory. In principle I agree with the noble Lord, Lord Williams of Elvel, that it should be mandatory. As the Law Lords tend to disagree, why not write it into the statute?
Lord Beaverbrook: I believe that the noble Lord may have overlooked the purpose of the certification procedure under Clause 131. The clause relates to a number of provisions in Part I under which various classes of user of copyright works are permitted freely to copy the works concerned in various ways without infringing copyright unless there is a certified licensing scheme in existence. Clause 131 provides the necessary mechanism for getting such licensing schemes appropriately certified. Although the Secretary of State may certify a scheme initially, without a tribunal decision, on whether the terms are reasonable, the Committee will note that he must amend the certification order if there is a reference to the tribunal and the tribunal rules that the scheme must be varied.
An important feature of certification is that the Secretary of State is interested not in the merits of the scheme but merely in its existence. The purpose of certification is solely to give adequate publicity to the existence of the scheme and the consequent loss of the free statutory licence. It would make no sense to make the certification procedure mandatory. There will be enough incentive for rights owners who are affected to use it as it is. It would make even less sense to apply the procedure to licensing arrangements other than those affected by Clauses 35, 66, and 135. Indeed, I do not see what would happen to a scheme if it were not satisfied and it would appear open to the

535
operator of the scheme to ignore his apparent obligation under the amendments.
Lord Campbell of Alloway: For once, having heard my noble friend's explanation, I am delighted to say that I think he is totally right.
Lord Williams of Elvel: As I indicated when moving the amendment, I thought that the Minister might be able to direct me to certain points in the Bill that render the amendment unnecessary. I accept that he has done so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 254ZB to 254ZF not moved.]
Clause 131 agreed to.
Lord Willis Lord Willis moved Amendment No. 254A:
After Clause 131, insert the following new clause:
("Private recording schemes.

PRIVATE RECORDING SCHEMES
(1) This section shall apply to schemes operated by designated organisations pursuant to section (Scheme for private recording) above.
(2) Where there arises—

(a) any dispute between the organisation and a person as to that person's liability for the payment to the organisation of royalties, or

(b) any dispute between a person claiming to be entitled to participate in the distribution of royalties and the organisation as to the administration of the scheme, or

(c) any dispute between a person claiming to be entitled to a rebate of royalties paid and the organisation,

either party to the dispute may refer the matter to the Copyright Tribunal.
(3) The Tribunal shall consider the matter referred and make such order as the Copyright Tribunal may determine to be reasonable in the circumstances.
(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.
(5) Where the Tribunal has made an order under this section the organisation or other party to the dispute may apply to the Tribunal to review its order but no such application shall, except with the special leave of the Tribunal, be made—

(a) within twelve months from the date of the previous order, or

(b) if the order was made so as to be in force for 15 months or less, until the last three months before expiry of the order.").

The noble Lord said: I have had second thoughts about the amendment. It arose because, like a number of my noble friends, I felt that unlike the remainder of the Bill the provisions in this chapter are very complex and their full implications difficult to establish with certainty.
The obligations on the United Kingdom under the Berne Convention place strict limitation upon the extent to which authors' exclusive rights required by the convention to be protected may be qualified by subjection to the overriding jurisdiction of a tribunal. I therefore ask the Government whether they will look at this chapter again in the light of what I have said and in the light of the Berne Convention. I beg to move.
Lord Beaverbrook: I understand that the new clause was debated earlier in connection with the tape levy point. We are looking carefully at that tape levy point and at the amendment.
Lord Willis: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
Clause 132 [The Copyright Tribunal]:
On Question, Whether Clause 132 shall stand part of the Bill'?
Lord Williams of Elvel: This starts us off on the Copyright Tribunal. I wish to raise what may be a slightly sensitive point of view of the professions that a number of noble Lords pursue. It is concerned with subsection (3), which specifies as follows:
"A person shall not he appointed chairman or deputy chairman unless he is a barrister, advocate or solicitor of not less than seven years' standing or has held judicial office".
I understand that the Government wish to have a chairman and two deputy chairmen who are legally qualified. Nevertheless, a problem arises. If the chairman and deputy chairmen are selected on the basis that they are qualified in this part of the law, they could easily find, if they are barristers, advocates or solicitors, that they are acting in certain cases to do with this part of the law. As members, deputy chairmen or the chairman of the Copyright Tribunal—and I say this with the greatest respect to those noble Lords who practise in the law—they could act in cases in which the Copyright Tribunal itself is involved. There may be cases in which there is or is not a reference to the Copyright Tribunal, but their knowledge of events that have gone on in the tribunal will in some way aid them in the pursuit of their private practice.
I have tried to choose my words extremely carefully because I do not wish to irritate or provoke any noble Lords, or my noble friend Lord Morton of Shuna, who may in the future be appointed the chairman or deputy chairman of the Copyright Tribunal.
In thinking back to my banking and stockbroking days—the noble Lord will know what I am talking about—this matter raises problems of conflict of interest. I wonder whether the Government will agree that any person who is appointed a chairman or deputy chairman, even if he is
"a barrister, advocate or solicitor of not less than seven years' standing",
should agree as a condition of acceptance of his appointment not to practise in the sphere in which he might be in conflict. Recently the chairman of the Takeover Panel has defended somebody who has been accused of and has pleaded guilty to insider dealing. Such a situation in the Copyright Tribunal could lead to many problems. I am not opposing clause stand part, but I am seeking clarification from the Government on how they see the membership of the tribunal.
Lord Beaverbrook: The noble Lord is quite correct. The clause provides for the membership of the tribunal and provision is made for appointment by the Lord Chancellor after consultation with the Lord Advocate of a chairman and two deputy chairmen who must be legally qualified, and for the Secretary of State to appoint between two and eight ordinary members.

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The noble Lord raises a specific point on conflict. Obviously a chairman or deputy chairman or any member of the tribunal might find himself with a conflict of interests, in which case he ought to disqualify himself. We shall consider whether any express provision is required. It would however he quite wrong to exclude experts because of that risk. But in looking at that point further I do not want to cast any aspersions on any member of the legal profession. I am sure that anyone would immediately wish to step aside if there were any possible conflict. We shall consider whether any more is needed in respect of that when such members are appointed.
Lord Morton of Shuna: It is much easier if the rules are made absolutely clear in an Act, in regulations or something of that nature. One of the difficulties under which the Bar in England and Wales and in Scotland operates is the so-called cab rank rule. If one is instructed on something which one is not specifically barred from doing, it is difficult to refuse those instructions. There is a certain difficulty which could be made clear either in the Bill or in regulations.
Lord Williams of Elvel: Perhaps I may add one word to the point that my noble friend has made. The Minister said that he was in no doubt—again I do not wish to cast any aspersions upon any member of the legal profession—that somebody who was involved in a conflict would disqualify himself. The question is: would he disqualify himself from participating in the acts of the Copyright Tribunal or would he disqualify himself from acting for his client? Those are two rather separate points.
Lord Beaverbrook: I think that he would have to disqualify himself from that case because it would be very strange for the chairman of the tribunal to act in a case where the tribunal itself was on the other side. That would be very difficult. On the other hand, if the chairman of the tribunal wished to continue on the tribunal in considering a case where he had been involved with his private practice, I cannot imagine that it would he right for him to continue in that case either.
Lord Morton of Shuna: The difficulty is that it has occurred in practice. My noble friend Lord Williams of Elvel has referred to it in connection with the Takeover Panel. It has also occurred in industrial tribunals in certain cases. If the intention is that once appointed as chairman or deputy chairman one gives no advice whatever on copyright law, that is one thing. But is that what the Government have in mind and if so why not say so?
Lord Beaverbrook: I hear what the noble Lord has to say. From the Government's point of view, disqualification must be from activity on the tribunal, but equally I think it would be very strange if the chairman of the tribunal were acting on the other side.
Clause 132 agreed to.
Clause 133 [Membership of the tribunal]:
On Question, Whether Clause 133 shall stand part of the Bill?
Lord Williams of Elvel: Perhaps the noble Lord can help me on a small point relating to the expression in Clause 133(4) in line 11. "a duly qualified person". My understanding is that we know what a "duly qualified person" is in the case of a chairman or a deputy chairman, hut we do not know what a "duly qualified person" is in relation to a member of the Copyright Tribunal. I may have misread the clause but I do not see a definition of who is duly qualified to become a member. I should be grateful if the noble Lord would tell me that there is a definition somewhere or could expand a little on who the Government feel should be duly qualified to be a member of the tribunal.
Lord Beaverbrook: Under Clause 132 the Secretary of State will appoint between two and eight ordinary members. As I understand it, it would be for the Secretary of State to decide who is qualified and suitable to take up the role of member of the Copyright Tribunal. That would be at his discretion as there are no formal qualifications for ordinary membership. The point should be looked at because there may well be an error or something the draftsman has not covered. I should like to look at it.
Lord Williams of Elvel: I am most grateful to the noble Lord. I simply point out that "duly qualified" means somebody who has a qualification, and he cannot therefore be ordinary.
Lord Beaverbrook: I am not sure that I agree with that.
Clause 133 agreed to.
Clauses 134 and 135 agreed to.
Clause 136 [Jurisdiction of the tribunal]:
[Amendments Nos. 255, 256 and 256A not moved.]
Clause 136 agreed to.
[Amendment No. 257A not moved.]
Clauses 137 and 138 agreed to.
Clause 139 [Request to refer question for opinion of the court]:
Lord Mulley Lord Mulley moved Amendment No. 257B:
Page 59, line 17, after ("law") insert ("or fact").
The noble Lord said: I understand that it will be convenient for the Committee to consider with this amendment Amendments Nos. 257C, 257D and 257E. As I said earlier neither I nor the AIRC wish to prejudge the activities and proceedings of the Copyright Tribunal before it comes into existence. However, as the Minister has underlined, it may be a long time before legislation on this subject comes before the Chamber. Consequently, we cannot wait to see how the Copyright Tribunal behaves. However, if it should be minded to behave as its predecessor the Performing Rights Tribunal behaved, it would be necessary and desirable to take some steps to protect the interests of parties appearing or seeking to appear before it.
There are two points involved. The first is the question of whether there should be appeal against its decisions on points of law or fact. I realise that what we are asking for is a general right of appeal. As the noble Lord indicated in reply to a previous debate, the facts can be in dispute. He said that the Government found difficulty in reconciling the facts put to them by the independent radio contractors and Phonographic Performance Limited. Clearly there is room for considerable dispute as to fact.
We may find difficulty on the question of discrimination as to whether it is a matter of law or a matter of fact or a combination of both. Therefore there is a great deal to be said for permitting an appeal to a court on decisions of the tribunal. Surely such a right would be rarely and prudently exercised if only because of the costs involved. Except for one or two stations that have particularly good franchises, the independent radio contractors are not in a very healthy financial position. Therefore, I think there is a case for extending the right of appeal generally.
The other point—and I have to be blunt about it—arises entirely from the experience of the AIRC before the Performing Rights Tribunal where a decision reached after long deliberation by Mr. Justice Harman was disregarded by the tribunal. It may he that the new tribunal will be a little more open-minded—we hope it will—in approaching these matters. But it may he necessary in some way for the tribunal to be obliged, like everybody else, to obey the decisions and judgments of the court. As the noble Lord the Minister is well aware, this was not the case with the judgment of Mr. Justice Harman fairly recently.
Of course, some extremely difficult decisions are going to arise in the light of the Government's declared intentions as to the future of radio broadcasting. If they are minded, as it seems, to go ahead with community stations, there is the important question as to whether they will also have to have the same copyright fees and payments which apply now to the independent radio contractors under the IBA. If they do, I do not see how the community stations could survive.
If they do not, that would surely he not only extremely unfair competition to the licensed IBA stations. It would probably mean that many of those stations would cease to function and would go out of business because they would lose the advertising revenue which alone permits them to pay the fees. There are going to be some difficult questions. As a matter of fact, the Government ought to think long and hard before they extend the permission of community stations to operate. However, if they do, then the question of what copyright fees they should pay is a delicate one; it could be one of both law and fact.
It would be only right in that complex situation for a right of appeal to the court to be permitted. If a court gives a decision, then the tribunal should give effect to that decision. Whether or not the wording is right, I hope the points I have made will be carefully considered by the Government with a view to implementing them at a future stage of the Bill. I beg to move.
9.15 p.m.
Lord Morton of Shuna: I do not wish to enter at all into the question of whether broadcasting is treated fairly on the question of the copyright of broadcast music. However, on the point of principle, if you have a tribunal the whole purpose of it is that one restricts the grounds of appeal basically to questions of law. If you are going to have an appeal on questions of law or fact, there is no point in having a tribunal. You might as well go straight to the court and have the usual rules of evidence and the usual rules of the court of first instance deciding what facts are established on what evidence.
If you are going to turn the Copyright Tribunal into a court let us call it a court. There is a basic element of principle in suddenly turning a tribunal round, making it a court, and calling it a tribunal. On that ground alone I would oppose this amendment.
Lord Beaverbrook: I also shall speak to Amendments 257B, 257C, 257D and 257E. These amendments have two related aims. The first is to enable appeals to be made from decisions of the Copyright Tribunal. not only on questions of law as under the Bill and the 1956 Act, but also on questions of fact as well. The second aim is to put the tribunal under a strict obligation to "give effect to" decisions of the High Court, or Court of Session. following an appeal, rather than, as under the Bill, simply having to reconsider an earlier ruling "in the light or the court's decision.
I will deal first with the issue of appeals on questions of fact. I have to say that this is not a proposal which is acceptable to the Government. If questions of fact could be appealed to the court as well as questions of law, this would rapidly lead to virtually every decision of the tribunal being heard again in full before the High Court. As the noble Lord, Lord Morton of Shuna, has said, if that were to be so there would be little point in retaining the tribunal at all. Even if this were desirable, and I do not believe it is, it is questionable whether the High Court could accept such an addition to its workload hearing in mind the likely increase in tribunal hearings with the extra responsibilites given it by the Bill.
I am aware that in one or two cases copyright-user groups who have referred a collecting society's terms to the tribunal have complained that the tribunal has assessed questions of fact incorrectly. This is, I believe, a very rare occurrence. It is inevitable that where two parties are in dispute one or other of them may feel less than content with an arbitration body's decision. That can hardly be avoided. But in general I believe that the tribunal's decisions are widely respected. There is in any case the safeguard that where a licensing scheme is subject to a tribunal order it can be referred back to the tribunal for reconsideration after a year has elapsed.
As regards Amendments Nos. 257D and 257E, I venture to suggest that these are misconceived. If appeals on questions of fact were allowed as well as on points of law, the High Court would in effect become a full-blown court of appeal. It would substitute its own decisions and the tribunal would

541
have no further role in the case in question. But so long as appeals may be made only on questions of law it will always be necessary for the tribunal to reconsider the application of the law to the facts in the light of the court's decision on the questions of law.
Of course it must take the court's decision into account, but that will only be the starting point. Having taken the court's decision into account the tribunal will have to decide whether that produces any difference in its conclusions, and it is not invevitable that that will be so. For example, suppose that the court decided that the tribunal ought to ignore a factor of which it had previously taken account. It might be that even if that factor is ignored the tribunal's decision should be the same.
I should like to refer to the point made by the noble Lord, Lord Mulley as regards the decision that Mr. Justice Harman ignored. It is not true that the judgment was "ignored". The tribunal took account of it and this case illustrates the point that, upon the case being returned from the court, the tribunal's task is not a mechanical application of the court's decision but involves reconsideration of all the factors in the case in the light of the decision. That may well result in a relatively minor change to the tribunals' original decision.
Lord Mulley: I understand the objection of my noble friend Lord Morton to the principle of turning the tribunal into a court by giving the general power of appeal. I do not wish to cross swords with him again, but I should like to make clear that I am not speaking on the grounds of theory (of which I am well aware) but from bitter experience of the independent radio industry. It has had the experience of not being properly considered on questions of fact. Even if it is agreed that the appeal will be limited to points of law, I think that the tribunal should at least be obliged to give effect to the decisions of the court.
As regards the decision of Mr. Justice Harman, I could read out the judgment but I shall not. However, he said that in the opinion of the court it was fair to compare the fees charged to independent radio stations with those charged by the BBC "as a matter of law". He used that expression. However, the tribunal refused to give effect to that and refused to take it into account.
Clause 124, which was recently defended by the Minister, provides that the tribunal shall take into account all the relevant considerations. I appreciate that that was not a statutory obligation for the performing rights tribunal. However, if either side in an argument feels that all relevant considerations have not been taken into account by the tribunal, where does it go?
It is difficult to argue that it is a matter of law whether it is prepared to accept this or that evidence. The disputes often relate to questions of fact. There is a statutory obligation that the tribunal should take all relevant considerations into account, but what happens if it does not or if in the opinion of the parties it does not? Where do the parties go? Within the legal system the normal way would be by appeal,
542
but unless it can be shown that the only question is a legal one, there would be no right of appeal. While I am prepared to consider what further steps to take, I hope that the Government will give further consideration to the matter before we have further deliberation on the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 139 agreed to.
Clause 140 agreed to.
Clause 141: [Proceedings in consequence of court decision]:
[Amendments Nos. 257C to 257E not moved.]
Clause 141 agreed to.
Clause 142 [Qualification fir copyright protection]:
The Earl of Dundee The Earl of Dundee moved Amendment No. 258:
Page 61, line 1, after ("Chapter") insert ("or section 151 or 152)").
The noble Earl said: This amendment deals with a slightly technical point. Clause 142 sets out the conditions for qualification for copyright protection. Subsection (3) provides that these qualifications need only be met once so that copyright does not cease because of some subsequent event. For example, if the author of a novel qualified for copyright protection by being resident in a country which subsequently ceased to be a country to which the Bill extended, copyright would not be lost. To take a case in point, a work which qualifies for protection because the author is a resident of Hong Kong will not lose protection when the colony passes to the Chinese.
The principle of subsection (3) is a general one. Subsequent events should not change the status of works which qualify for protection under Clauses 151 and 152. For example, a work made by the legislative assembly of a colony is Crown copyright. What is the status of the work when the colony becomes independent and the Act no longer extends to that territory? In those circumstances Clause 151 would no longer apply and the work created by the pre-independence colonial legislative assembly would no longer be Crown copyright. That would be the wrong result. This amendment can put it right. Similarly works attracting copyright protection under Clause 152 should not lose protection because of some later event.
This change does not, of course, mean that the Crown necessarily retains copyright. In the case of a colony becoming independent, the copyright may be transferred by assignment or by means of the statute providing the independence. Nor does it mean that works by the post-independence legislature would earn Crown copyright—Clause 147(2)(b) sees to that. The amendment does ensure that existing copyright continues to subsist, and that is the main point. I beg to move.
On Question, amendment agreed to.
Clause 142, as amended, agreed to.
Clause 143 [Qualification hr reference to author]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 258ZA:
Page 61, line 6, after first ("citizen") insert ("a Commonwealth citizen")
The noble Lord said: This amendment is to be dealt-with in combination with Amendment No. 259. There is, as noble Lords will have seen, an obvious inconsistency between Clause 143, which refers to a British citizen, a British dependent territories citizen, a British national (overseas), a British overseas citizen, a British subject or a British protected person, and Clause 148 which refers to Commonwealth citizens. There is an obvious inconsistency between the two. The amendment which I am proposing will add to that list "a Commonwealth citizen". Amendment No. 259 in the name of the noble Lord, Lord Beaverbrook, concerns Clause 148 and deletes "Commonwealth" citizen. But one way or another it is necessary that the Commonwealth citizen should not be in at one stage of the Bill and out at another in the same part of the Bill. It is to clear up this inconsistency that I move this amendment.
9.30 p.m.
The Earl of Dundee: I am grateful to the noble Lord. With the Committee's leave, I shall speak to Amendment No. 258ZA in the name of the noble Lord, Lord Morton, and also to Amendment No. 259 in the name of my noble friend Lord Beaverbrook.
The question here is whether Commonwealth citizens should or should not acquire copyright protection in the United Kingdom automatically. If the noble Lord were to feel that they should, as was the case in the draft of the Bill which we sent out for consultations and indeed in the 1956 Act, then that opinion would be consistent with the 1956 Act. But the result of the consultations was that we received a number of representations saying that Commonwealth countries should not be dealt with in this way. In considering this, there have of course been consultations with the Foreign and Commonwealth Office, which is writing to our High Commissions in all the countries concerned telling them what we are now proposing to do.
The reason why we are proposing that Commonwealth citizens should no longer be automatically entitled to copyright protection in the United Kingdom is that all the Commonwealth countries are independent states and should be treated no differently from any other independent country. It is of course open to all Commonwealth countries to join one of the various international conventions, as a number have done. Equally they can establish reciprocal arrangements with the United Kingdom, as Singapore has recently done. In either case their citizens will be entitled to copyright protection in the United Kingdom. But there are a number of Commonwealth countries which have not done either of these things and which do not afford copyright protection to British citizens under their own laws. In these circumstances we do not think that we should give something for nothing, notwithstanding the Commonwealth connection.
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The amendment in the name of my noble friend Lord Beaverbrook is merely a correction. As I have said, when we went out to consultation we referred to Commonwealth citizens in what is now Clause 143. When we decided to make the change to British citizens, the consequential amendment in Clause 148 was overlooked. The amendment seeks to make the necessary correction, and I beg to move.
Lord Morton of Shuna: With great respect, I do not think that the noble Earl should be moving the amendment, because I am moving an amendment to Clause 143 and we have not reached Clause 148. I was not particularly involved in which of the amendments was accepted but the two were inconsistent. That is all I was saying. If it is necessary to leave out the "Commonwealth", fair enough. I can see the reasons for it, in which case I shall withdraw this amendment. All I was trying to say was that Clause 143 had not been drafted in the light of Clause 148 and to draw that to the Government's attention. I have now done so and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 143 agreed to.
Clause 144 [Qualification by reference to country of. first publication]:
Lord Mulley Lord Mulley moved Amendment No. 258A:
Page 62, line I, leave out ("a sound recording").
The noble Lord said: I understand that it will be convenient to the Committee to take with this amendment Amendments Nos. 258B and 259A. This is a rather complex subject and on the face of it it may he asked: why does one ask for a particular form of copyright protection for sound recording? The answer is quite simple. It is that there is an international convention, the Rome Convention of 1961, which is specifically concerned with phonograph copyright and nothing else. Therefore one wants to relate what we do to that convention.
In particular the Government in their Green Paper drew attention to the fact that there were dangers where the only source of music was a virtual monopoly. They stated that they hoped other sources of music for sound broadcasting would emerge. There has been no sign of that happening and it seems unlikely with the existing circumstances of the PPL and the Musicians' Union and the anomalies that exist when they seek to use records from overseas persist. Then there is no alternative whatever to them paying the very high fee which they are charged and which we have already discussed.
The simplest way to counteract this, which I commend to the Government, is that they should fix a statutory maximum copyright fee as has been done in Australia. It is very interesting to compare the 15 per cent. of net advertising revenue that our stations pay with the statutory maximum in Australia which is 1 per cent. Yet the stations, along with the record companies, have negotiated a fee of 0.2 per cent., namely, one-fifth of I per cent., by way of copyright. It is probably unlikely that the Government would be bold enough, despite their oratorical support of competition, to impose a statutory limit of that kind.

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Personally, I should be happy to consider that. But if the Government do not pursue such a course, they could at least do something to protect British interests by making, as other EC countries have done, a declaration of first fixation.
The position under the Rome Convention is that there is no protection by way of copyright unless the first production of a record is made in a country covered by the convention. But the actual publication, the mere playing of the record, is very easily arranged, bringing with it the obligation to pay copyright fees to that country. This is a problem in respect of the United States.
Our broadcasters, the BBC as well as the independent radio stations, pay the 15 per cent. average fee to the copyright bodies and to the United States record companies. But in the United States the broadcasters pay practically nothing to their own record companies for playing American records and nothing at all when they play British records. Therefore, I ask the Government to bring in reciprocity. I ask them to consider the argument that we should not pay fees to other countries if we use their records unless they pay fees to us if they use British records. Of course, many of them do. That measure could be very easily carried out by requiring an actual production of the record. The test should be where the record is made rather than where it was first played.
As always, one should look to France for an example of how to look after national interests and one's own citizens. France has carried out exactly that measure. It has carried out what is technically called a first fixation approach rather than the first production. That measure is entirely in keeping with the Rome Convention. It would lead to proper reciprocity. It would also provide in a very minor way an alternative source of music and needle time to British stations. I do not believe for a moment there is any danger that our radio would be fully occupied with foreign records. That would not command the audience; therefore, it would not command the advertising fees. But at least it would represent some alternative open to the stations unless the Government are prepared to try to ease the quite onerous circumstances in which they currently find themselves. I beg to move.
Lord Morton of Shuna: I had difficulty in following the argument that because America does not have an adequate protection of copyright interests, everybody should follow America. I should have thought that it was in the basic interest of copyright conventions that America should sign them. It seems to me that the amendment is going in the wrong direction. I cannot see a logical reason—I quite see that radio may be feeling hard done by—why sound recording should be removed from protection under the clause.
The Earl of Dundee: We have already discussed in earlier debates the concerns of independent radio
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which underlie the amendments. As my noble friend Lord Beaverbrook said in that context, we are looking carefully at all the proposals put to us by independent radio, along with representations which we have also received from the record industry. We shall come to a conclusion as soon as we can on what, if anything, we should do in response.
The amendments would remove protection against unauthorised broadcasting and public performance from sound recordings which are first recorded in a country which is not a party to the 1961 Rome Convention by a company which is not formed under the laws of a Rome member state. It would substitute what is known as "first fixation", to which the noble Lord, Lord Mulley, has just referred. That criterion would be substituted for protection. That is one of the options which we are considering. It is a possibility. However, 1 hope that the noble Lord will understand that I can give no commitment today as to what our decision will be.
The noble Lord, Lord Mulley, referred to the criterion of statutory maxima or minima. As to the suggestion that the legislation should lay down a statutory maximum remuneration for broadcasting records, that would not be consistent with our obligations under the Rome Convention. Our minimum obligation under the convention is to ensure equitable remuneration, and what is equitable must be judged in the light of all the circumstances and not fixed by law.
Lord Mulley: I am grateful to the noble Earl for undertaking on behalf of the Government that the matter will be looked at again. I appreciate that he cannot give a commitment.
With great respect to my noble friend Lord Morton, it is not quite the simple problem that he sees it as being. It does not seem sensible that we should pay large sums to American record companies if we use their records and get nothing back from them. That is not the way that we should carry on international business. I prefer, being a European, to follow the practice of our French friends. I commend that course to the Government. There must be a genuine production of a record in a country to establish its origin; it is not simply a matter of sending a record over by air, having it played on a private gramophone somewhere and saying that a first performance has been established in order to satisfy the convention obligation. I think that first fixation is something that ought to be brought in. I commend the French legislation to the noble Earl and his colleagues.
Lord Lloyd of Kilgerran: Before the amendment is withdrawn, I should like to apologise for not being in my place to support the noble Lord, Lord Mulley, on this amendment. I am sorry I was late in arriving. However, I support the amendment.
Lord Mulley: I am grateful to the noble Lord. If I had known that he was going to arrive with his

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Powerful support—he understands these things much better than I do— should have spoken longer to permit him to take part. However, should like it to be on the record that I have the support of the noble lord, lord Lloyd of kilgerran. With that additional arrow to my bow, i beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 144 agreed to.
Clause 145 agreed to.
[Amendment No. 258B not moved.]
[Clauses 146 and 147 agreed to.]
9.45 p.m.
Clause 148 [Application of this Part to countries to which it does not extend]:
The Earl of Dundee The Earl of Dundee moved Amendment No. 259:
Page 63, line 29, leave out ("Commonwealth") and insert ("British").
On Question, amendment agreed to.
[Amendment No. 259A not moved.]
Clause 148, as amended, agreed to.
Clause 149 agreed to.
Clause 150 [Territorial waters and the continental shelf]:
Lord Willis Lord Willis moved Amendment No. 260:
Page 64, line 41, leave out subsection (2) and insert—
("(2) This Part applies to things done—

(a) in the United Kingdom sector of the continental shelf on a structure, vessel or aircraft which is present there for purposes directly connected with the exploration of the seabed or subsoil or the exploitation of their natural resources, and

(b) on ships or aircraft registered in the United Kingdom, as it applies to things done in the United Kingdom.").

The noble Lord said: I rise to raise an injustice which has to be put right. Despite repeated representations from various organisations representing copyright owners, the Bill does not yet extend to the use of copyright material on ships and aircraft which are registered in the United Kingdom. It is common knowledge that there is extensive use of music and film on ships and aircraft to provide entertainment and information on a considerable scale for passengers and crew. That is increasing all the time.
Such use within territorial limits would give rise to normal copyright obligations. There is no reason whatsoever why this should not also apply when the use takes place on ships and aircraft that fly the flag of the country when they are outside the territorial limits of the United Kingdom; in other words, on British aircraft and British ships when they are using copyright material, they should pay the copyright fees that are required. I beg to move.
Lord Williams of Elvel: I and other noble Lords from these Benches have also put our names to the amendment moved by the noble Lord, Lord Willis. I support what he has said. Despite representations from various organisations representing copyright owners, the Bill does not extend to the use of copyright material on ships and aircraft which are registered in the United Kingdom.
As my noble friend said, it is common knowledge that there is extensive use of music and film on ships and aircraft to provide entertainment and information for passengers and crew. It occurs on a considerable scale. Such use within territorial limits would give rise to normal copyright obligations. In our view there is no reason whatever why that should not apply to the use which takes place on ships and
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aircraft flying the flag of the country when they are outside the territorial limits of the United Kingdom. Therefore we should like to see this amendment inserted in the Bill.
I recognise that this matter has been the object of many discussions between interested parties and the Government during the compilation of this Bill. Nevertheless, I feel that this is a sensible amendment and from these Benches I should like to support my noble friend Lord Willis.
Lord Lloyd of Kilgerran: I should like to go a little further than the noble Lord, Lord Williams, and say quite categorically that I do not understand why this amendment should not be accepted by the Government. Is it because the offshore industry is very much against it for some particular reason?
It seems to me that it is a practical matter. In the amendment there is reference to:
"the United Kingdom sector of the continental shelf on a structure, vessel or aircraft".
These matters should be attended to in the same way as in other areas. I support this amendment.
The Earl of Dundee: For the convenience of the Committee, I shall speak to Amendments Nos. 260 and 281BBA. These amendments would make two additions to the places in which the Bill would apply. The first would be aircraft which are present in the United Kingdom sector of the Continental shelf for purposes directly connected with seabed exploration.
I am not sure that this is really an intelligible concept. Structures and vessels sit on the seabed of the Continental shelf or float on the waters above it for the exploration or exploitation of the shelf; and although that is the high seas, we are permitted by international law to exercise jurisdiction over them. Aircraft in international airspace over the Continental shelf are scarcely likely to be there for that purpose—merely carrying goods or passengers to or from an oil rig does not count—and thus we cannot exercise jurisdiction.
Lord Williams of Elvel: I am sorry to interrupt the noble Earl. I believe that he understands what we mean by this amendment. We are not parliamentary draftsmen on this side of the Committee. I think he understands what the purport is, though he may find technical problems to the amendment.
The Earl of Dundee: Perhaps I may continue for a moment. The exception to our inability to exercise jurisdiction is of course when the ship or aircraft is British. Turning now to the second addition, I do not think that is desirable. As we understand the position, few countries have this kind of provision. As a result, we would be giving something to overseas owners of copyright which, in the main, their countries do not give to us. In doing so, we would put our domestic airlines and shipping companies at a competitive disadvantage compared to their foreign competitors. For those reasons, I must resist the amendments.
Lord Lloyd of Kilgerran: I have had some difficulty in understanding the Minister. He realises that there have been discussions on the law of the sea, and there have been a large number of difficulties, but a large number of countries have ratified the law of the sea. That relates to an area of 200 miles around a particular land area. I do not see what the problem is. We are not giving to foreign countries some privileges which they do not give to us. I do not understand that at all. I should have thought that this part of the Bill relating to copyright should extend to the area set out in the amendment.
Lord Airedale: Have the Government considered the amount by which it would add to the cost of a passenger's ticket if copyright fees had to be paid for providing entertainment on ships and aircraft which supply copyright entertainment material to their passengers?
Lord Willis: The shipping and aircraft companies already make the passenger pay for entertainment on board. I do not think the noble Lord need be concerned about that. We are asking a very simple question here and I must press the Government on it. British-owned aircraft and ships come, I suppose, within UK law. Why should they be exempt from copyright in this Bill?
The Earl of Dundee: I do not think that they are within UK law. It may be helpful to the Committee if I expand further on the general purpose of Clause 150. Anything done within UK territorial Waters—that is, waters extending 12 miles from the shore or the appropriate baseline—will be treated for the purposes of Part I as if done within the United Kingdom.
Lord Williams of Elvel: Does that, therefore, include subsection (2)(a)?
The Earl of Dundee: The two amendments which we are discussing fall within the context of Clause 150.
Lord Williams of Elvel: I was asking about subsection (2)(a) of Amendment No. 260. As I understood the noble Earl, he said that this did fall within UK jurisdiction. If that is so, then subsection (2)(a) of my noble friend's amendment seems to be approved by the Government. Am I right or wrong?
The Earl of Dundee: There seems to be an element of confusion here and certainly if the noble Lord is not happy—and indeed the noble Lord, Lord Lloyd of Kilgerran, is also unhappy—I am prepared to take the matter away and look at it again. But I think I should do so without commitment because I feel that we possibly have got the balance right here.
I should also say with regard to the law of the sea convention that there is nothing in that law which requires countries to exercise jurisdiction in respect of copyright over the economic zone adjacent to their coasts. Accordingly, foreign ships and aircraft are not generally subject to copyright jurisdiction. It would be unfair to our own ships and aircraft for them to be subject to British copyright jurisdiction.
Lord Williams of Elvel: As I understand it, the noble Earl is refuting subsection (2)(b) of our amendment. However, I am concentrating for the moment on subsection (2)(a). I should like to press the noble Earl a little further as to whether he feels that what he has said is conceding the principle of subsection (2)(a) in our amendment.
Lord Lloyd of Kilgerran: Although the noble Earl was doing so well about this difficult question, there was a time I thought in his speech when he was not sneering but perhaps laughing about having ships on the seabed. But that is the practice at the present time: endeavouring to get ships on the seabed for exploration purposes. And they stay there for quite a time. Of course I may have misunderstood the noble Earl in his initial preface to this decision on this matter, but exploration on the seabed or subsoil happens regularly at the present time and will do so increasingly in the future.
The Earl of Dundee: I am grateful to the noble Lord, Lord Lloyd of Kilgerran, and I share his sentiment that it should happen not only increasingly in the future, but even indefinitely in the future, that ships behave in this way in our interest. Nevertheless, what I actually said was not to refute that ships do this but to refute the suggestion that aircraft were doing so.
Lord Airedale: The noble Lord uses the argument of putting our carriers at a disadvantage with our competitors. If the calculation I am asking for turns out to be that by paying these copyright fees the cost per passenger ticket would be practically nil, then that disposes of the argument about unfairness to us in competition with other foreign carriers, does it not?
Lord Willis: I thank the noble Lord for making that point. However, if you are going to extend that logically and talk about unfairness, you might as well say remove the copyright, or the royalties, from books exported abroad so that they can compete more equally with foreign competitors. The basic point I was trying to make—and I am sorry to flog this live horse so much—is that up to the territorial limit aircraft and ships would be subject to copyright. Why should a great liner or a great aircraft immediately it flies out of our territorial waters—if it is registered in Britain and British owned—then be copyright free? There is no basis in logic for that. I hope that the Government will look seriously at this particular point.
The Earl of Dundee: I have heard what the noble Lord has said; and, indeed, I have listened very carefully to the arguments of other noble Lords on this matter. As I said earlier, I am prepared to take the discussion away and consider it once more. However, at this stage I still feel that perhaps the Government have the balance right; but I certainly have, as I always do, listened very carefully to what has been said and I shall consider these points.
Lord Willis: I thank the noble Earl for that reply. We have heard the record many times before in these debates. At this stage I shall accept what he said, but it may well be that we shall come back to the subject on Report if necessary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 150 agreed to.
Clause 151 [Crown copyright]:
10 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 261:
Page 65, line II, leave out ("in pursuance of a commission or otherwise").
The noble Lord said The noble Lord said: We now move on to Crown copyright. The words that I seek to delete by Amendment No. 261 have in effect been added to the existing provisions giving copyright ownership to the Crown for works made under the direction or control of the Crown. I refer to Section 39(1) of the 1956 Act. The existing provision contained in the 1956 Act deals adequately with Crown servants, but giving a commission is not normally considered the equivalent to exercising direction or control, despite the inclusion of the word "otherwise" in the words that I seek to delete.
The Crown would therefore for the first time be given copyright to the whole class of works; namely, those that it has commissioned but has not hitherto acquired. In the case of all other commissioned works, the author not the commissioner takes the ownership. I direct the Committee's attention to Clause 11. There is no justification for treating the Crown differently. If it desires ownership in any particular instance, it should seek it by negotiation.
I hope that my noble friend will accept that this is a point which is worth considering. I hope that he will agree to my amendment, which I have pleasure in moving.
Lord Howie of Troon: I support the amendment. The Committee will recall that we had a considerable debate sometime earlier on the subject of the commissioner. There are two issue in the Bill, as I understand it, where the commissioner rather than the author holds the copyright. One of them is this clause and the other is in relation to design right. I should have thought that what appears in the Bill twice could reasonably appear in the Bill three times or, alternatively, if it were wrong earlier for the commissioner not to have the copyright, I cannot see why the copyright should be held by the Crown here.
Lord Beaverbrook: Under the 1956 Act, the Crown is entitled to copyright in two groups of works. The first is those made by or under the direction or control of Her Majesty or a government department, and, secondly, works first published by the Crown. Under the Bill, works in the second category will no longer attract Crown copyright.
It is open to argument whether a work commissioned by the Crown under the 1956 Act can he said to be made under the direction or control of
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the Crown and so be a Crown-copyright work. To resolve any doubts, in the White Paper we said that we would make it explicit that the expression:
"works made by or under the direction or control of the Crown,"
included works commissioned by the Crown. It is true that, as a result of our decision not to re-enact the provisions of Section 4(3), the Crown and international organisations referred to in Clause 152 arc in a different position from other commissioners; but then the Crown and international organisations are different from other people or we should not need special provisions in Clauses 151 and 152.
We take the view that where public money is being, spent on the production of a work the Crown should be the first owner of the copyright. There is nothing, to stop the Crown assigning the copyright to the author. That can be agreed when the work is commissioned and will happen when that is appropriate. 1 hope that on that basis my noble friend will feel able to withdraw his amendment.
Lord Mottistone: I find this a difficult matter. I in no sense wish to deprive Her Majesty of anything she requires, but the servants of the Crown are pushing themselves into a position of great superiority which is not accorded to others. I am not sure that that is strictly fair. Why should they not be subject to Clause II just like anyone else? If it is something commissioned at public expense, what about a company that commissions something at its expense or anything that the Minister or I might commission? Why is the Crown different in this area? If there was a security aspect to it I could understand it. If there is a financial aspect I do not see why the servants of the Crown should be in a superior position.
In seeking to tighten up the Act and make sure that people cannot question their rights—because that is what I see them as doing—it would be more appropriate if they had put themselves in the same position as everybody else rather than giving themselves extra priorities and advantages. I hope that the Minister will have a look at this and consider whether the servants of the Crown are not arrogating to themselves a position of superiority that they do not really deserve.
Lord Willis: I support the amendment and the appeal made by the noble Lord, Lord Mottistone. I gave an example earlier of a servant of the Royal Mint who had produced designs for various coins. That was all in the line of duty as far as he was concerned. Let us suppose that the Royal Mint reproduced some of his designs as special coins, which it sold to the public at great profit. What he had designed was coinage for the use of the public in normal financial transactions. However, the Royal Mint went beyond that: it made this issue out of which it had considerable profit. He received nothing. I think that that is morally wrong. I agree with the noble Lord, Lord Mottistone, that the Crown should be treated no differently from any individual manufacturer in such circumstances.
Lord Lloyd of Kilgerran: It is interesting that the noble Lord, Lord Mottistone, is pursuing this matter. The Minister's answer will be quite simple; namely,

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that it involves the question of constitutional law. It is not a question of the Crown being in a superior position; it is a question of the Crown endeavouring to keep its neutrality in relation to commercial transactions. I therefore support the Minister in the line that he has taken on the matter.
During the course of the Bill the noble Lord, Lord Mottistone, and I have co-operated on a number of points to help the Government and in the public interest. I am sorry to have to differ from him on this one point.
Lord Mottistone: Will the noble Lord say how his view applies to the case quoted by the noble Lord, Lord Willis?
Lord Lloyd of Kilgerran: I am not concerned with particular cases. This is a general principle. The noble Lord, Lord Mottistone, said that Her Majesty the Queen—the Crown—was endeavouring to put herself in a superior position. I do not believe that that is right.
Lord Willis: To refer to the instance that I quoted, in the course of his normal duties the servant of the Royal Mint designed the coin. He was happy that it went through the normal coinage. He suddenly discovered that some special issue was being made of the coin. He went to his master and said, "This is all very well, you are making a huge profit, but I have some moral right to this under the copyright law and I have some intellectual property in it". Is the noble Lord telling me that the answer to that servant would be, "Oh, no, the Crown is absolutely neutral"? Neutral towards whom? I think it is scandalous and absolutely wrong.
Lord Howie of Troon: I still support the noble Lord, Lord Mottistone. I do not think there are the wide-ranging constitutional issues which the noble Lord, Lord Lloyd of Kilgerran, drew to our attention.
It is clear that the Crown publishes certain publications which are within the public interest and only within the public interest. But that is not the Crown's only publication ventures. It publishes a fairly wide range of books such as guide books which are in direct competition with those of private publishers. There is no reason why the rules of copyright should be different for the Crown and for the private publisher.
However, looking ahead with some dismay I see a further complication. The Government have a habit of privatising things and removing them from the Crown. It is conceivable that part of the Crown as publisher would cease and become a private publisher. Presumably, if that happened, the copyright of the Crown as commissioner would vanish and the provisions of Clause 11 would apply. I see that the Minister agrees. I think this is a case of the goose and the gander: what is sauce for one ought to be sauce for the other. If it is right here for the commissioner to have the copyright, then it is right under Clause 11. If it is wrong under Clause 11, it is wrong under this clause. That is the simple, non-constitutional case that I am presenting.
Lord Beaverbrook: I am sure that the noble Lord would not expect me to follow him down that road. The example given by the noble Lord, Lord Willis, of the employee in the Royal Mint is not a very good one. Copyright in designs of legal tender is vested in the Crown. I do not believe that the noble Lord would go along with any other possible scenario. There are security and all sorts of other implications.
I say to my noble friend Lord Mottistone that the extension of Crown copyright to commissioned works will make little difference in practice. The first reason is that the reference to commissioned works will be, as I have already indicated, to resolve existing doubts. The other reason is that many commissioned works are already Crown copyright because of the first publication rule. We arc abolishing that rule, but not because of its effect on commissioned works.
It is right that works commissioned by the Crown should remain substantially unchanged. The reason for Crown copyright is neither that of security nor of finance. It is because of the wide-ranging, multifarious activities of the Crown. The ordinary rules are not practical in this case. What the noble Lord, Lord Lloyd of Kilgerran, said about the constitutional position is quite right. We must maintain the present position of the Bill if effective public administration is not to be impeded by copyright law.
The noble Lord, Lord Howie of Troon, said that the Crown is in competition with other publishers. That is recognised in subsection (3)(b) on commercial publication. That, however, has no relevance to the circumstances in which the Crown acquires copyright in the first place.
Lord Lloyd of Kilgerran: I thank the Minister for answering the questions that the noble Lord, Lord Willis, directed to me and part of the questions which the noble Lord, Lord Howie of Troon, directed at me also. 1 apologise to the noble Lord, Lord Howie of Troon, that I did not hear all his questions. I was talking to the Secretary of State at that time.
Lord Howie of Troon: It was rather nice of the Secretary of State to drop in long enough for the noble Lord to talk to him.
Lord Mottistone: I thank the noble Lord, Lord Willis, for his splendid example. It seems to me that the more government-owned affairs that can be privatised the better. That will make for more fairness all round. I am upset by what the noble Lord, Lord Lloyd of Kilgerran, had to say about the Queen. I specifically excluded her from my strictures.
Lord Lloyd of Kilgerran: I am sorry.
Lord Mottistone: Having listened to all of this I still think it is unfair. However, at this stage it is much too late to pursue the argument and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 262:
Page 65, line 16, at end insert (", subject to any agreement to the contrary.")
The noble Lord said The noble Lord said: In the absence of the noble Lord, Lord Lloyd of Hampstead, I believe the amendment is the property of the Committee once it has been tabled. This may be a half-way house. I did not intervene in the discussion on the amendment of the noble Lord, Lord Mottistone, but it seems to me that this amendment might provide a half-way house. There could be protection in that the Crown could have its proper rights and those who have copyright could in certain circumstances and subject to any agreement be protected. I beg to move.
Lord Beaverbrook: I am grateful to the noble Lord, Lord Williams, for moving the amendment of the noble Lord, Lord Lloyd of Hampstead.
Under the present law the Crown is entitled to copyright in certain works but this is subject to agreement to the contrary between the author and Her Majesty or a government department that the copyright should be vested in the author or some other person.
The amendment would make the provisions of subsection (2) subject to agreement to the contrary; and although lie does not say so I assume he means agreement between Her Majesty and the author concerned. The purpose of the amendment is to ensure that, as now, there is the possibility for the author to have the copyright if that is agreeable to the Crown. That possibility still exists save that it must be given effect to by assignment of future copyright under Clause 81. This is easily done in an agreement in writing. The only possibility excluded is oral agreement, which is not a sensible way of dealing in copyright in this context. Given these assurances perhaps the noble Lord will feel able to withdraw the amendment.
Lord Williams of Elvel: I am most grateful to the noble Lord. If the noble Lord, Lord Lloyd of Hampstead, had said in his amendment,
"subject to any written agreement to the contrary",
would the noble Lord have accepted the amendment?
Lord Beaverbrook: I was making a separate point that, regardless of the principle here, I believe that any such agreement should be in writing. But, no, I do not think it would change my view on the principle.
Lord Howie of Troon: Clause 11 uses the locution "subject to any agreement". Is there any reason why this clause should be materially different from Clause 11?
Lord Beaverbrook: I assume that the noble Lord is again talking about why the Crown should be treated differently. Can I assume that I am correct in that? We have already been through that argument on the previous amendment and what I said then stands.
Lord Williams of Elvel: I find the Minister's arguments rather confusing. He seems to accept that the thrust of the amendment of the noble Lord, Lord Lloyd of Hampstead, as amended by me verbally, if I may use that expression, which would make it read,
"subject to any written agreement to the contrary",
is already covered by the Bill. If it is covered by the Bill, why should we not spell it out on the face of the Bill in this clause?
Lord Beaverbrook: It is a matter of degree. We believe that the balance we have struck here is the right one and that the amendment of the noble Lord, Lord Lloyd of Hampstead, would change the degree to one we could not go for.
Lord Williams of Elvel: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 262A:
Page 65, line 19, leave out ("125") and insert ("50").
The noble Lord said The noble Lord said: With the leave of the Committee I should like to speak to Amendments Nos. 262B and 262C.
Lord Willis: Will the noble Lord speak up?
Lord Lloyd of Kilgerran: It is the microphones. I shall do that. The noble Lord, Lord Willis, has had his little joke on the serious matter of these amendments, but I am sure that he and the noble Lord, Lord Howie of Troon, and also the noble Lord, Lord Mottistone, if he were in his place, would agree with me.
This is a question of the extent of Crown copyright. I hope I shall not be accused of lèse majesté. I am merely probing the Minister to find why, when one is dealing with a copyright of which Her Majesty is first owner, by virtue of this section, in a literary, dramatic or musical work, the extent of the Crown monopoly in this copyright has now been extended from 50 years to 125 years. Why has the Crown had this large extension of copyright in this matter? I merely ask for the reason.
So far as the other two amendments are concerned, Amendments Nos. 262B and 262C, they refer to subsection (3)(b) of Clause 151, which deals with dates. But substantially both those amendments lead to an extension of Crown copyright and I merely ask the Government why they have thought it desirable, presumably in the national interest, having regard to the scope of this Bill, to extend Crown copyright to such an extent. I beg to move.
Lord Beaverbrook: These amendments address the question of the duration of Crown copyright. I have to say at the outset that I cannot accept Amendments Nos. 262B and 262C since their effect would be to limit the copyright in Crown publications to the year of publication. That would be disastrous for the viability of Her Majesty's Stationery Office. I do not suppose, however, that the noble Lord intends that.

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Your Lordships' Committee may find it helpful if I explain how we arrived at the provisions in subsection (3). At present the copyright in most official papers lasts indefinitely since, although such papers are made available for public inspection after 30 years, or more, they are not "published" within the meaning of the 1956 Act. It is our intention in this Bill to remove all indefinite copyright protection. The Committee will recall that the normal term of copyright of life plus 50 years is now to apply to works regardless of whether they have been published. Crown copyright is also to have a limited term and will expire 125 years from the end of the year in which the work was created.
At first sight the term of 125 years for Crown copyright may seem unduly long, but it is of course shorter than eternity, which is the present term for unpublished Crown works. The term is equivalent to that for the early works of a long-lived author. It must be remembered that for official documents the first 30 years (at least) of copyright protection is not relevant since the documents are not in the public domain and available for copying. The period is even longer in the case of Royal papers, which I am advised may not be released for 100 years.
The 125-year term ensures that there will be a period of protection once the papers concerned are in the public domain and I do not think the term is disproportionate once one subtracts at least 30 years from the 125-year term. A term of life of author plus 50 years is not practical: it would require a large bureaucracy to keep records of the date of demise of each of the many authors of Crown copyright works.
Although we think such a duration of copyright is justified for unpublished official papers and the like, we recognise that it provides an unduly long period of protection for official publications. We therefore provide that, if the work is published commercially within its first 75 years, the 125-year term is to be curtailed and copyright is to expire 50 years from publication.
The expression "published commercially" is defined in Clause 159 and is distinct from publication. To be published commercially and thus bring the shorter period of Crown copyright into play, copies issued to the public must have been made in advance of the receipt of orders or the work must have been made available to the public on an electronic retrieval system. This rules out publication by issue of photocopies to the public by the Public Record Office, where copies are made on demand, but covers the publishing operations of HMSO. The net effect is that for all publications the period of Crown copyright is, as now, 50 years. For unpublished documents, the indefinite term is curtailed.
The only area where Crown copyright could be said to increase would be a document in the Public Record Office which has been copied several times. That would be regarded as published under the 1956 Act and so copyright would expire after 50 years. This was a nonsense—one could not tell whether publication had technically taken place and the document retained all the appearance of an
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unpublished work. I think that the Committee will agree that the regime we now propose is more practical.
Lord Howie of Troon: I am almost convinced by the Minister's comments, especially in regard to commercial publication. However, he said that the 125 years was in some way analogous to life plus 50 years. He said that it was the life of a very long-lived author publishing a very early work. If one takes 50 years from 125, one is left with 75 years. In those circumstances, one is talking of an author dying at the age of 85, having published his work at the age of 10; of an author dying at the age of 100 having published his work at the age of 25. Surely the Government have overdone things and the analogy with life plus 50 years would be substantially less than 125 years. I know that that is not quite what the noble Lord, Lord Lloyd of Kilgerran, has proposed; but I think that the Minister could consider 100 years, or even less, and still meet the proposition which he reasonably put forward.
Lord Beaverbrook: We have given careful consideration to the matter, and again I believe that the conclusion we have reached is about right. We could argue the matter either way for a long period of time. However, at the end of the day it is a subjective judgment and this is the judgment that we have reached.
Lord Howie of Troon: How can it be just about right in view of what I said about an 85 year-old author publishing his work at the age of 10? It cannot be just about right. Surely, 125 years is a number which seemed reasonable in some ways and gave what the Government thought to be adequate protection. However, in the face of the analogy with life plus 50 years, I think that it begins to look rather frail. For the Government to say that it is just about right—which is a phrase that has been stated approximately once an hour in the course of the Bill—is a wholly inadequate reply.
Lord Beaverbrook: I am sorry that the noble Lord takes that view. We believe that it is about right and therefore I cannot follow the noble Lord down the road that he takes.
Baroness Seear: I am sorry to prolong the debate but I should like to support what the noble Lord, Lord Howie, has said. All the Minister has told the Committee is that he thinks that the conclusion is just about right. We are always hearing the assertion that the Government think that it is just about right. We want answers to arguments put forward and the Minister has not answered the noble Lord, Lord Howie; he has simply said that he thinks it is just about right but has not told us why.
Lord Beaverbrook: I have already set out at considerable length why we believe the conclusion to be right. Throughout the Bill there are a number of matters which, at the end of the day, are a subjective view. I fully accept that the noble Lord, Lord Howie

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of Troon, has his subjective view and the Government have theirs. I have set that out and I have set out the arguments as to why we believe it to be so.
I should like to say to the noble Baroness and the noble Lord that the 125-year term allows 25-year protection for Royal papers which are not released for 100 years. If the term was substantially reduced, there would be no protection for such papers and I think that that is an important consideration.
Lord Howie of Troon: I thank the Minister for that piece of information which is a stronger argument than any he has put forward so far. However, for the record, I should like to say that I think that the Government have got it just about wrong.
10.30 p.m.
Lord Lloyd of Kilgerran: The Minister's last speech supports very strongly the line I take that 125 years is too long. I think his answers to the noble Lord, Lord Howie of Troon, lead to the view that 100 years would be far more reasonable from any subjective view. I fully realise that the noble Lord the Minister might be a little cross.
Lord Beaverbrook: I think I should make it clear that Royal papers which were not released for 100 years would be in copyright for 25 years after release.
Lord Lloyd of Kilgerran: I am very grateful to the noble Lord who again supports my view that 125 years is too long and that it should be 100 years. I do not want to prolong the argument. My noble friend Lady Seear has said, "Tell us the reasons why you think that 125 years is the right subjective decision to come to on this matter." But we get no reasons. It is simply said that the Government think that that is right.
Lord Beaverbrook: I really must protest. I have at considerable length set out the reasons. I would urge the noble Lord perhaps to have a look tomorrow at what I have said and the reasons that I have set out for coming to our views.
Lord Lloyd of Kilgerran: When the Minister at half past ten at night asks me so promptly to read what he has said, I fully realise that I may have misunderstood part of his argument. In those circumstances I shall read what the noble Lord has said. Perhaps the noble Lord would kindly consider the proposition put forward by the noble Lord, Lord Howie of Troon, and myself that 100 years is the reasonable period for increasing the period of copyright of the Crown in this matter. I thank the noble Lord for his long dissertation. I may have misunderstood it. I beg leave to withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 262B and 262C not moved.]
On Question, Whether Clause 151 shall stand part of the Bill?
Lord Williams of Elvel: We have had a long discussion of this clause and 1 do not intend to pursue it further. We shall read very carefully what the noble Lord has said.
I pause only to remind the noble Lord what the Whitford Report said. I quote from page 154, "Summary of Recommendations":
"Any new copyright act should clearly state that the creators of copyright works shall be the owners of copyright in what they create, subject only to any contract divesting them of the copyright, and in the absence of a contract to such statutory exceptions recommended below in paragraph 570."
It goes on to limit the Crown copyright. I do not believe that Clause 151. as drafted in the Bill, represents Whitford. I am sure there are very good arguments the noble Lord has adduced for that. We will just have to read them and see why the Government differ from the conclusions of the Whitford Committee.
Clause 151 agreed to.
Clause 152 [Copyright vesting in certain international organisations]:
On Question. Whether Clause 152 shall stand part of the Bill?
Lord Williams of Elvel: There is a simple point which I should like to ask the Minister about. It concerns Clause 152(2). 1 quote from the Bill as drafted:
"The international organisations to which this section applies are those as to which Tier Majesty has by Order in Council declared that it is expedient that this section should apply."
Will the noble Lord give the sort of international organisations which will benefit from this exemption? There is no indication in the Bill as to which organisations will benefit. Beyond that, could the Minister tell us on what criteria Orders in Council will be made to exempt international organisations from the provisions of the Bill?
Lord Beaverbrook: I should say to your Lordships that Protocol 2 of the Universal Copyright Convention requires us to protect works made or published by the United Nations, its specialised agencies, or by the Organisation of American States. Most of the works in question will qualify for protection under the provisions of Clause 143 or Clause 144, but this clause ensures that protection is given even when the works would not otherwise qualify.
For example, a work commissioned by one of these agencies from an Indonesian author and first published in Saudi Arabia would not qualify for protection under either the authorship or the first publication rules. Only those international organisations— and I shall come back to this point in a moment—which are specified by an Order in Council, as the noble Lord said, will benefit from the provisions of this clause; and the duration of copyright is to be 50 years from the end of the year of creation of the work, unless in order to meet international obligations an Order in Council is made specifying a longer period.
An international organisation to which these provisions apply is deemed to have the legal

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capacities of a body corporate for all copyright purposes. Further examples beyond what I gave earlier would include the United Nations specialist agencies, OECD, the Organisation of American States, the Western European Union and the Council of Europe. I have no doubt that I could come up with many more examples of those organisations that would be specified in the Order in Council.
Lord Lloyd of Kilgerran: May I ask the Minister, before he sits down, whether those international organisations to which he has referred are mentioned in Schedule 1 in any way, because I fail to see whether Schedule 1 covers this clause in regard to certain matters? I may be wrong. I have not had an opportunity of studying the Government's new Schedule 1. But I wonder whether these international organisations are mentioned in Schedule 1 or whether they should be mentioned.
Lord Beaverbrook: I believe that they are not mentioned in Schedule 1. As to whether they should be, that is another matter.
Lord Williams of Elvel: It may be another matter but I am sure the Government will consider that matter before tabling their final version of Schedule 1. Would the noble Lord be good enough—I trespass on his patience—to write to me with a list of those organisations which will benefit from this clause at the moment and those organisations which he feels at the moment, given present conditions, may in future benefit? When we have had that letter, perhaps we can consider what position we will take on Report.
Lord Beaverbrook: I shall certainly undertake to write to the noble Lord and will give him further examples of organisations that would be covered. As to whether it will be an exhaustive list, I cannot give that undertaking. But we will do our best to cover most of the types of organisation.
Clause 152 agreed to.
Clauses 153 and 154 agreed to.
Clause 155 [Rights and privileges under other enactments or the common law]:
Lord Hardinge of Penshurst Lord Hardinge of Penshurst moved Amendment No. 262D:
Page 67. line 14, at end insert (", which shall apply equally to employers and employees.").
The noble Lord said: In moving this amendment I should like to start by making it clear that I agree with the Government that whatever is written by employees in the course of their employment should become the copyright of the employer. I have no disagreement with this as 1 tried to explain in the debate on Clause 1 I In this matter the noble Lord, Lord Willis, and I are not in agreement, but we agree about many things including this amendment.
My speech on Clause 11 was concerned with the question of whether the employers shall have absolute and immediate freedom in their use of such copyright; that is, any form of communication written by an employee in the course of his
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employment. If so, it could obviously lead to situations most discouraging and damaging to the employee, especially perhaps one who had offered in good faith controversial or mistaken opinions in an internal memorandum to his employer. He could be publicly humiliated in that event. In his reply my noble friend the Minister answered that I need not worry since this was unnecessary because it was taken care of in Clause 155(1)(d), which refers to trust and confidentiality. I could not take this further at the time, partly because I needed legal help to understand Clause 155 and partly because my last train left at 10.50 p.m. Since then I have of course read the rest of the debate in Hansard and shall refer later to some of the things that were said.
It turns out that my lawyer does not agree with my noble friend the Minister. He sticks to his guns and says that Clause 155(1)(d) only protects employers. It is to ensure that employees obey the rules of trust and confidentiality which I should have thought were pretty obvious anyway and that any loyal and honourable employee would do so automatically. But it does not protect employees against the hazards I tried to identify as regards Clause 11. I shall not repeat all that as it is all in Hansard but I shall give one instance for the sake of clarification. I shall take a hypothetical example from the industry in which I have worked all my life which is book trade publishing, and in my case mostly fiction.
Here I should add that in retirement I retain one small consultancy, so to that extent I suppose I have an interest to declare. It is a very small one as I am actually a freelance. During my working years great best-sellers and classics were turned down. They were not turned down by me although I did once turn down The L-Shaped Room. There is nothing new about publishers turning down books that later prove successful or even classics. Both Erewhon and Jane Austen were turned down in the last century. It is easy to name two since the war: Animal Farm and The Day of the Jackal. Here we must assume that wrong judgments were made, put on paper and consequently acted on.
The moments those books appeared from a rival imprint and reached the best-seller list the employers, the unfettered owners of the copyright, were free to make good money by selling the words of those editors or readers or editorial directors to the public prints. The point is that employees have no protection under any law of privilege, trust or confidentiality.
I have taken my own trade as an example but there must be tens of thousands of people in the entertainment industry in the same situation. But I believe that it goes far beyond that. To revert to the debate on Clause 11, the noble Lord, Lord Hutchinson of Lullington, said that washing machines were infra dig and nothing to do with it. My noble friend the Minister was surely right in saying that copyright exists in the instructions for working washing machines, so this goes far beyond the entertainment industry.
As it happens due to serendipity I was able to obtain some informal advice from one of the greatest legal brains in the land. I must make it clear that the

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case was put to him without notice so that his response could only be spontaneous and informal. It nevertheless carries great weight with me. He says that my lawyers are right. He says that the application of equity, case law etc. in such cases of copyright are scarce enough to be virtually worthless.
So I hope that the Minister, having had further time to take advice, may be prepared to concede that there is a point here that really does deserve attention. I do not for a moment suggest that the drafting of the amendment is adequate. I am sure it would have to be worded differently by parliamentary draftsmen. I beg to move.
Lord Lloyd of Kilgerran: It is a great privilege for me to follow the noble Lord, Lord Hardinge of Penshurst, in view of his great experience in these matters. When he produces an amendment which provides that whatever is in the clause shall apply to employers and employees I am immediately very interested.
The noble Lord prefaced his remarks by saying that he differed from the noble Lord, Lord Willis, as to the ownership of copyright. I should like to agree with him for the present time at any rate that the employer prima facie has the ownership in the copyright of the employee's copyright.
The noble Lord may recall that I went a bit further than that in one of my amendments to say that the employee should have the right to ask for a share of profits if as a result of the commercial use of his design they had been very substantial and that, if the employer did not agree, he could go to the tribunal. That was the position. It did not give the employee any right to any share in the profits. It merely gave him the right to apply for a share and therefore to use the sanction of going to the employer's tribunal afterwards in the same way that that happened in the Patents Act. Perhaps the noble Lord, Lord Hardinge of Penshurst, will therefore amplify the preface to his remarks by saying that he agrees with me on that principle.
10.45 p.m.
Lord Hardinge of Penshurst: I do not agree with the noble Lord. The point I was trying to make was more a defensive than an aggressive one. I opened my remarks by saying that I thought that the employers should own the copyrights of what was written by their employees in their employment. At an early stage I suggested a method by which some restraint might be placed on usage as a protection for employees.
Lord Lloyd of Kilgerran: The noble Lord is asking for privileges to be granted alike to employers and employees. If he cannot agree with my proposition, I cannot support him on the amendment.
Lord Willis: The noble Lord, Lord Hardinge, whose amendment I support, has admitted that it may not he adequately drafted. However, he has a sound point, which is a point of justice for employer and employee. That is the point which he is trying to put to the Government. He is a man of wit and
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perception; he accepted my first novel and has published my novels ever since, with the help of the noble Earl, Lord Stockton. Therefore, I think that whatever he says to the Committee must be listened to very carefully, particularly by myselfl!
Speaking seriously, the point is sound. Although the amendment may not be right in its drafting, I think that the Government ought to look at the matter and see what they can do to give some rights to employees.
Lord Lloyd of Kilgerran: I am completely out of my depth. I did not realise that the noble Earl, Lord Stockton, and the noble Lord, Lord Hardinge of Penshurst, had been publishing the novels of the noble Lord, Lord Willis. I hope that I may be able to persuade those three noble Lords to support my theme with relation to the position of the employee as against the employer, when the employee makes a good design which is very profitable to the employer.
Lord Hardinge of Penshurst: Perhaps I may say in response to the point made by the noble Lord, Lord Lloyd, that I do not for a moment suggest that the drafting of the amendment is near correct or even necessarily in the right place. It is the principle which is important.
Lord Lloyd of Kilgerran: The noble Lords, Lord Hardinge and Lord Willis, said that the drafting was not properly finalised. Perhaps there is hope for my proposition in relation to the position of the employee as against the employer where the employee's invention or design has brought a great profit to a company and to the employer.
Lord Howie of Troon: I have gone even further than the noble Earl, Lord Stockton, and the noble Lord, Lord Hardinge. I have actually bought one of the novels of the noble Lord, Lord Willis. What is more, I read it right to the end! If any noble Lord wishes to give me a price for it, he may have it. I think that the amendment deserves support. There is to my mind an clement of natural justice in it.
Lord Beaverbrook: I have to say to my noble friend that a copyright Bill is simply not the place to deal with matters such as the rules of equity on breaches of trust or confidence. This Bill does not have any effect on the law of confidentiality. In some cases it will protect employers and in others it will protect employees. It depends on the circumstances in which the obligation of' confidentiality arises.
It is not true that the law on confidentiality benefits only employers. This amendment goes very wide of the Bill and I simply cannot begin to accept it.
Lord Hardinge of Penshurst: I am grateful to my noble friend for his reply. I cannot agree with much of what he says, but it is late and there will be other opportunities for discussing the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 155 agreed to.
Clause 156 [General provisions as to construction]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 263:
Page 67, line 28, leave out subsection (3)
The noble Lord said: I spoke to this amendment at Second Reading and indicated the reasons why subsection (3) should be removed from the Bill.
I have been pressed by a number of firms of solicitors and members of the Bar to say that subsection (3) is nonsense. It says:
"Decisions under the previous law may be referred to for the purpose of establishing whether such a provision of this Part departs from the previous law, or otherwise for establishing the true construction of this Part".
In the earlier part of the clause it says:
"(1) This Part restates and amends the law of copyright".
If it restates the law then the decisions arising under the 1956 Act should apply. As soon as the expression in the Bill changes from the expression in the Act of 1956, it immediately brings into question the meaning of that addition. Therefore, I should have thought that subsection (3) should be deleted. I beg to move.
Lord Morton of Shuna: I strongly support this amendment, although I think it does not go far enough. My intimation that I would oppose Clause 156 standing part of the Bill was right. It totally confuses the law if one has a provision such as the Interpretation Act and then this kind of section is thrown in. What is the purpose of Clause 156(3)—quite apart from what I shall in a moment develop as the meaning of Clause 156(2)? It does not in any sense seem to be useful to any interpretation of the Act.
Lord Lloyd of Kilgerran: I am very grateful to the noble Lord for his support. I am anxious to save as much time as possible and I am intervening before the Minister replies. If he agrees, I shall withdraw my amendment and allow the matter to be raised when we discuss the question whether Clause 156 shall stand part of the Bill. I am entirely in the hands of the Committee on this matter and in order to save time I shall do exactly what the noble Lord advises.
Lord Beaverbrook: As the noble Lord has moved his amendment perhaps I should reply to it. One of the functions of the Bill is to restate large parts of the existing law unchanged but in a much plainer and more easily understood form. The danger of such a restatement of the law in different language is that the courts will assume that the use of different language necessarily means that the law has changed. Of course in many areas we are intending a change in the law and each set of circumstances must be treated on its merits. I agree with the view expressed by my noble friend Lord Brentford at an earlier Committee sitting that the existing jurisprudence has a vital part to play in this.
We do not want to throw away large chunks of helpful jurisprudence where the law is unchanged. Equally, we want to be able to take advantage of that jurisprudence for the purpose of constructing the law and deciding whether it has in fact changed. The
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provisions of this clause have been included in response to a very large number of requests and we do not want to lose them.
Lord Lloyd of Kilgerran: I thank the Minister for his reply but I am tempted to ask where he got the advice from. He said that he had a large number of representations. Who from? I have had a large number of representations from solicitors and other people operating in this sphere. I do not want to embarrass the Minister but he did say that he had had a large number of representations. I shall be delighted to hear from where they came.
Lord Beaverbrook: Many Members of the Committee have had many representations, often of a conflicting nature. For as many representations received taking one view I have received an equal number taking another view. Therefore the fact that these requests have been received should be no surprise. The requests received were in response to the consultation on draft clauses. I would have to consider whether I was able to disclose to the noble Lord exactly where they had come from. I will look at that matter but I cannot give him a definitive answer this evening. We feel that we do not want to lose the helpful jurisprudence that has been established.
Lord Lloyd of Kilgerran: I am grateful to the Minister. Obviously one does not want to throw away the jurisprudence which exists in relation to the words of the 1956 Act. However, when those words are changed one cannot get away from the position that lawyers, and perhaps judges, may take a different view and find themselves embarrassed by this.
I sympathise greatly with the Minister. He said that he has had many representations. We must get together some time to compare the number of representations that have been made to us on this Bill. During the past few weeks I have been inundated in relation to all aspects of the Bill by solicitors and members of the Bar. In these circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 156 shall stand part of the Bill?
Lord Morton of Shuna: I am sorry to continue this argument. The noble Lord, Lord Lloyd of Kilgerran, dealt with subsection (3). 1 wonder whether the Minister will consider the word "merely" in subsection (2). I can see that even a Scots lawyer could manage to have an argument lasting for several weeks on whether "merely" changed one rule of interpretation or another. It is the general rule of law, as I understand the Interpretation Act, that if Parliament changes the wording it means that it changes the meaning.
It is an absolute rule of law that we cannot refer to anything said in this Chamber or in the other place in debate to ascertain the meaning that the Government intended to be applied to any section. Therefore, the court will be left with the terrible discovery, or argument, as to whether the provision which changes

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the words is merely to bring 1956 language up to that of 1987 or 1988 English—as I anticipate the Bill may take that time to pass into an Act—or whether it is trying to bring about a change because the Bill is trying to change in certain circumstances and not in others. The court will not know whether a change is deliberate or merely one of expression. How are they to know? This is really nonsense.
It is very good for any lawyer who practises in court. We can have days, months, weeks and even years discussing what Clause 156 may take us to. But it really is a total nonsense if anyone is trying to understand what the Bill actually means. I therefore suggest that this section should be taken away, disposed of quietly and omitted.
11 p.m.
Lord Lloyd of Kilgerran: I would be reluctant in the presence of the advisers of the Minister to say that anything they have produced is total nonsense. The courage of the noble Lord, Lord Morton of Shuna, is far greater than my own. I am here as a pragmatist endeavouring to save trouble for customers and for persons concerned with copyright matters in industry. I believe that this clause should be in some way diluted—I hope that is the correct term or a helpful phrase—and certainly thrown out if the Minister considers that it should be retained in its present form.
Lord Beaverbrook: The language of the Bill is generally simpler than that of the 1956 Act. The changes in wording are not to be construed as leading to a change of meaning. Examples are the change from cinematograph film simply to film and the wording of the exceptions relating to libraries.
The point of the word "merely" is that a change or wording is by itself not to lead to a change of meaning if the ordinary meaning of the new word is the same as that of the old word. In other words, the court is not to search for a change of meaning just because of a change of words where a change of meaning is not, in fact, apparent. If any Member of this Committee can understand what I have just said without referring to Hansard tomorrow, then he is a better man than I am.
The overall point is that we are using plainer and more easily understood English. But, as I have said, the danger of such a restatement of the law in different languages is that the courts will assume that the use of such different language necessarily means that the law has changed. We do not want to throw away the case history in jurisprudence that has been built up. If this can be stated in a better way, of course we will have a look at it. However, at the moment we believe that this is a necessary provision.
Baroness Seear: If the simpler language leads to so much confusion, would it not be more sensible to leave the more complicated language, which people understood, where it was?
Lord Lloyd of Kilgerran: The Minister gives his case away. The two examples at the preface of his argument were so naive that any court would know that those two words did not change the meaning at
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all. We are talking about phrases that have been changed. We are not talking about whether it is a film or a cinematograph film. His citation of those two examples gives his case away entirely. I hope that the noble Lord can take it back and save us a lot more discussion. I am not going to pursue the matter for weeks and weeks as the noble Lord, Lord Morton of Shuna, threatened to do. I want to get away as soon as I can this evening; in these circumstances I am simply supporting the noble Lord.
Lord Morton of Shuna: I do not wish at this stage in this place to pursue the matter for weeks and weeks I simply foresee that somebody might, in some other circumstance, be instructed for weeks and weeks. If the language is clear, simple and unambiguous, there is no need to refer to the previous case history. However, if the language is ambiguous, then you have to go back. I would have thought the intention of the Government was that the language should not be ambiguous. Therefore to introduce several new ambiguities in Clause 156 adds to the confusion. We do not know where we apply the Interpretation Act and we will not know where we apply Section 156, as it will be.
Lord Howie of Troon: I am strongly in favour of my noble friend Lord Morton of Shuna. Do other Members of the Committee remember our debates some weeks ago on Clauses 2 and 3 when we discussed the definition of dramatic works, artistic works and such matters? It was then argued convincingly by the noble and learned Lord. Lord Hailsham, and others that the courts would take a common sense view of words and meanings. Although I did not go all the way with them, they argued that the court would always come up with the common sense and the correct meaning.
If those arguments were true in relation to Clauses 2 and 3, they must be true now. If the courts were capable of dealing with the earlier parts of the Bill. they must be capable of dealing with this matter. I shall subside under the blandishments of the Chief Whip.
Clauses 156 to 158 agreed to.
Clause 159 [Meaning of publication and commercial publication]:
[Amendments Nos. 263AZA and 263BZA not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 263CZA:
Page 69, line 17, leave out subsection (4)
The noble Lord said: This is a simple point. Subsection (4) defines "commercial publication". I cannot find any reference to commercial publication, as such, in the Bill up to now. We have a definition of "publication". Why do we have a definition of "commercial publication"?
Lord Beaverbrook: Commercial publication is a new concept in the Bill and so some explanation is perhaps desirable. It is mentioned in Notes on Clauses. Under the 1956 Act, the concept of publication has relevance in three areas—
Lord Morton of Shuna: Perhaps the noble Lord will give way. I am not interested at this time of night in what is in the Notes on Clauses. If the words "commercial publication" do not appear in the Bill up to Clause 159, what is the point of defining "commercial publication"? It has no basis. That is the only point in which I am interested. If the noble Lord can point to one clause up to now that provides that "commercial publication" says, does or means such and such, that is fine, and I shall withdraw the amendment.
Lord Beaverbrook: As I was saying, under the 1956 Act the concept of publication has relevance in a number of areas; namely, subsistence, duration of copyright and restricted act of publication. The term "commercial publication" is used in Clauses 69, 72 and 151
Lord Morton of Shuna: In that case, I beg leave to withdraw the amendment?
Amendment, by leave, withdrawn.
Clauses 159 and 160 agreed to.
Clause 161 [Minor definitions]:
[Amendment 263ZA not moved.]
Lord Howie of Troon Lord Howie of Troon had given notice of his intention to move Amendment No. 263A:
Page 70, line 5. at end insert—
(" "composite works" means a work derived from the works of two or more authors commissioned by a publisher for inclusion in the work as a whole and intended to represent the style and views of that publisher;")
The noble Lord said: I do not intend to move the amendment. It has been overtaken by events. Members of the Committee may remember that when it was overtaken by events, I became a little irritated by the Minister. I should like to apologise to him for my stern words on that occasion.
[Amendments Nos. 263A and 263B not moved.]
Lord Brain Lord Brain moved Amendment No. 264:
Page 70, line 28, at end insert—
("( ) for duplicating existing images,")
The noble Lord said: I shall speak also to Amendment No. 265, because both amendments relate to the same matter. 1 come back to my earlier amendment about the definition of photography and a photograph.
There is a risk that "facsimile" does not cover everything. Some duplication of images, which I have suggested as provisional wording, may not be the same in colour. Someone may send some information across the world that starts life in colour but is reproduced in this country in black and white. It is duplicating an existing image by a reprographic process and therefore should be covered. An image may also be transmitted in the form of a still television picture, which is photographed using an instant photography method. That is duplicating an image. It is not facsimile or using a multiple process but, I suspect, reprography.
If computer-stored images have never been printed before the computer prints them out finally, they may
572
have to be transmitted electronically. I therefore suggest that the word "photograph" be inserted.
If the Minister would prefer not to reply now but to write to me, I am happy to accept that. I beg to move.
Lord Beaverbrook: We were not clear as to the thrust of the amendment. I shall consider carefully both what the noble Lord has said and Amendment No. 265, and write to him with our conclusions.
Lord Lloyd of Kilgerran: I should be grateful if the Minister would let me have a copy of his letter as I was proposing to support the noble Lord, Lord Brain, as far as I understood him, on this highly technical matter.
Lord Lucas of Chilworth: I remind the Committee that it is the convention for such letters to be available in the Library. I therefore hope that my noble friend will ensure that that is done. It is some time since the point has been mentioned. I do so now for the convenience of the Committee.
Lord Beaverbrook: At the beginning of Committee stage, I undertook for copies of all letters that I write to be available in the Library.
Lord Brain: I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
[Amendments Nos. 265 and 266 not moved.]
Clause 161 agreed to.
Clause 162 [Index of defined expression]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 267:
Page 71. line 32, at end insert—

("commencement (in Schedule 1)

paragraph 1(2) of that Schedule")

The noble Lord said: In moving Amendment No. 267, I shall speak also to Amendments Nos. 268, 269, 270, 271 and 272.
The amendments insert various expressions into the index of defined expressions for Part I and Schedule I in Clause 162. They are all terms used in more than one clause.
On Question, amendment agreed to.
[Amendment 267A not moved.]
Lord Beaverbrook: I beg to move Amendments Nos. 268 to 272:
Page 71, line 35, at end insert—

("copyright (generally))

section I

copyright (in Schedule I)

paragraph 2(2) of that Schedule")

Page 71, line 49, at end insert—

("existing works (in Schedule 1)

paragraph 1(3) of that Schedule")

Page 71. line 52, at end insert—

("general licence (in sections 129 and 130)

section 129(7)")

Page 72, line 15, at end insert—

("the new copyright provisions (in Schedule 1)

paragraph 1(1) of that Schedule

the 1911 Act (in Schedule 1)

paragraph 1(1) of that Schedule")

the 1956 Act (in Schedule 1)

paragraph 1(1) of that Schedule")

Page 72, line 46, at end insert—

("work (in Schedule 1)

paragraph 2(11) of that Schedule")

On Question, amendments agreed to.
Clause 162, as amended, agreed to.
Schedule 1 [Copyright: transitional provisions and savings]:
[Atnendment No. 273 not moved.]
11.15 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 274:
Leave out Schedule 1 and insert the following new Schedule—

COPYRIGHT: TRANSITIONAL PROVISIONS AND SAVINGS
Introductory
1.—(1) In this Schedule—
"the 1911 Act" means the Copyright Act 1911,
"the 1956 Act" means the Copyright Act 1956, and
"the new copyright provisions" means the provisions of this Act relating to copyright, that is, Part I (including this Schedule) and Schedules 3, 6 and 7 so far as they make amendments or repeals consequential on the provisions of Part I.
(2) References in this Schedule to "commencement", without more. are to the date on which the new copyright provisions come into force.
(3) References in this Schedule to "existing works" arc to works made before commencement; and for this purpose a work of which the making extended over a period shall be taken to have been made when its making was completed.
2.—(1) In relation to the 1956 Act, references in this Schedule to a work include any work or other subject-matter within the meaning of that Act.
(2) In relation to the 1911 Act—

(a) references in this Schedule to copyright include the right conferred by section 24 of that Act in substitution for a right subsisting immediately before the commencement of that Act;

(b) references in this Schedule to copyright in a sound recording are to the copyright under that Act in records embodying the recording, and

(c) references in this Schedule to copyright in a film are to any copyright under that Act in the film (so far as it constituted a dramatic work for the purposes of that Act) or in photographs forming part of the film.

General principles: continuity of the law
3. The new copyright provisions apply in relation to things existing at commencement as they apply in relation to things coming into existence after commencement, subject to any express provision to the contrary.
4.—(1) The provisions of this paragraph have effect for securing the continuity of the law so far as the new copyright provisions re-enact (with or without modification) earlier provisions.
(2) A reference in an enactment, instrument or other document to copyright, or to a work or other subject-matter in which copyright subsists, which apart from this Act would be construed as referring to copyright under the 1956 Act shall he construed, so far as may be required for continuing its effect, as being, or as the case may require, including, a reference to copyright under this Act or to works in which copyright subsists under this Act.
(3) Anything done (including subordinate legislation made), or having effect as done, under or for the purposes of a provision repealed by this Act has effect as if done under or for the purposes of the corresponding provision of the new copyright provisions.
(4) References (expressed or implied) in this Act or any other enactment, instrument or document to any of the new copyright provisions shall, so far as the context permits, be construed as including, in relation to times, circumstances and purposes before commencement, a reference to corresponding earlier provisions.
(5) A reference (express or implied) in an enactment, instrument or other document to a provision repealed by this Act shall be construed, so far as may be required for continuing its effect, as a reference to the corresponding provision of this Act.
(6) The provisions of this paragraph have effect subject to any specific transitional provision or saving and to any express amendment made by this Act.
Subsistence of copyright
5.—(1) Copyright subsists in an existing work after commencement only if copyright subsisted in it immediately before commencement.
(2) Sub-paragraph (1) does not prevent an existing work qualifying for copyright protection after commencement—

(a) and or section 144 (qualification by virtue of first publication), or

(b) by virtue of an Order under section 148 (application of Part I to countries to which it does not extend).

6.—(1) Copyright shall not subsist by virtue of this Act in an artistic work made before 1st June 1957 which at the time when the work was made constituted a design capable of registration under the Registered Designs Act 1949 or under the enactments repealed by that Act, and was used, or intended to be used, as a model or pattern to be multiplied by any industrial process.
(2) For this purpose a design shall be deemed to be used as a model or pattern to be multiplied by any industrial process.

(a) when the design is reproduced or is intended to be reproduced on more than 50 single articles, unless all the articles in which the design is reproduced or is intended to he reproduced together form only a single set of articles as defined in section 44(1) of the Registered Designs Act 1949, or

(b) when the design is to be applied to—

(i) printed paper hangings,

(ii) carpets, floor cloths or oil cloths, manufactured or sold in lengths or pieces,

(iii) textile piece goods, or textile goods manufactured or sold in lengths or pieces, or

(iv) lace, not made by hand.

7.—(1) No copyright subsists in a film, as such, made before 1st June 1957.
(2) Where a film made before that date was an original dramatic work within the meaning of the 1911 Act, the new copyright provisions have effect in relation to the film as if it was an original dramatic work within the meaning of Part I; and the person who was the author for the purposes of the 1911 Act shall be taken to be the author for the purposes of that Part.
(3) The new copyright provisions have effect in relation to photographs forming part of a film made before 1st June 1957 as they have effect in relation to photographs not forming part of a film.
8. No copyright subsists in—

(a) a broadcast made before 1st June 1957. or

(b) a cable programme included in a cable programme service before 1st January 1985;

and any such broadcast or cable programme shall be disregarded for the purposes of section 14(2) (duration of copyright in repeats).
Authorship of work
9. The question who was the author of an existing work shall be determined in accordance with the law in force at the time the work was made.
First ownership of copyright
10.—(1) Section 11 of this Act (first ownership of copyright) has effect subject to the following provisions.
(2) Subsection (3) of that section (works made for purposes of publication in newspaper, magazine or similar periodical) applies to works made before 1st June 1957 notwithstanding that the employer was not the proprietor of a newspaper, magazine or similar periodical.
(3) Where on or after 1st June 1957 and before commencement a person commissioned, and paid or agreed to pay for in money or money's worth—

(a) the taking of a photograph, or

(b) the painting or drawing of a portrait. or

(c) the making of an engraving,

he is the first owner of any copyright in the work made (before or after commencement) in pursuance of the commission, subject to any agreement to the contrary.
(4) Where before 1st June 1957 in the case of an engraving, photograph or portrait, the plate or other original was ordered by some person other than the author and was made for valuable consideration in pursuance of the order, then in the absence of any agreement to the contrary, the person by whom such plate or other original was ordered is the first owner of copyright.
(5) Sub-paragraph (3) does not apply to a work made by an employee in the course of employment by the proprietor of a newspaper, magazine or similar periodical for the purposes of publication in a newspaper, magazine or similar periodical; and sub-paragraph (4) does not apply to a work made by an employee in the course of employment with any person for the purposes of publication in a newspaper, magazine or similar periodical.
(6) Where before commencement a person commissioned the making of a sound recording. and paid or agreed to pay for it in money or money's worth, he is the first owner of any copyright in a recording made (before or after commencement) in pursuance of the commission, subject to any agreement to the contrary.
Duration of copyright in existing works
11.—(1) The following provisions have effect with respect to the duration of copyright in existing works.
The question which provision applies to a work shall be determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.
(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act.

(a) literary, dramatic or musical works in relation to which the period of 50 years mentioned in the proviso to section 2(3) of the 1956 Act (duration of copyright in works made available to the public after the death of the author) has begun to run;

(b) engravings in relation to which the period of 50 years mentioned in the proviso to section 3(4) of the 1956 Act (duration of copyright in works published after the death of the author) has begun to run;

(c) published photographs and photographs taken before 1st June 1957;

(d) published sound recordings and sound recordings made before 1st June 1957;

(e) published films and films falling within section 13(3)(a) of the 1956 Act (films registered under former enactments relating to registration of films).

(3) Copyright in anonymous or pseudonymous literary, dramatic, musical or artistic works (other than photographs) continues to subsist—

(a) if the work is published. until the date on which it would have expired in accordance with the 1956 Act, and

(b) if the work is unpublished, until the date on which it expires in accordance with section 12 of this Act or the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, whichever is the later,

unless, in either case, the identity of the author becomes known before that date, in which case section 12(1) of this Act applies.
However copyright is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when, it is reasonable to assume that the author died 50 years or more before the beginning of the calendar year in which that act is done or the arrangements made.
(4) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) literary, dramatic and musical works of which the author has died and in relation to which none of the acts mentioned in paragraphs (a) to (e) of the proviso to section 2(3) of the 1956 Act has been done;

(b) unpublished engravings of which the author has died;

(c) unpublished photographs taken on or after 1st June 1957.

(5) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) unpublished sound recordings made on or after 1st June 1957;

(b) films not falling within sub-paragraph (2)(e) above,

unless the recording or film is published before the end of that period in which case copyright in it shall continue until the end of the period of 50 years from the end of the calendar year in which the recording or film is published.
(6) Copyright in any other description of existing work continues to subsist until the date on which copyright in that description of work expires in accordance with sections 12 to 15 of this Act.
(7) The above provisions do not apply to works subject to Crown copyright (see paragraph 37 below).
Perpetual copyright under the Copyright Act 1775
12.—(1) The rights conferred on universities and colleges by the Copyright Act 1775 shall continue to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force and shall then expire.
(2) The provisions of the following Chapters of Part I, Chapter III (acts permitted in relation to copyright works), Chapter VI (remedies for infringement), Chapter VII (licensing schemes and licensing bodies), and Chapter VIII (the Copyright Tribunal), apply in relation to those rights as they apply in relation to copyright under this Act.
Acts infringing copyright
13.—(1) The provisions of Chapters II and III of Part I as to the acts constituting an infringement of copyright apply only in relation to acts done after commencement; the provisions of the 1956 Act continue to apply in relation to acts done before commencement.
(2) For the purposes of section 27 (meaning of "infringing copy") the question whether the making of an article constituted an infringement of copyright, or would have done if the article had been made in the United Kingdom, shall be determined—

(a) in relation to an article made on or after 1st June 1957 and before commencement, by reference to the 1956 Act, and

(b) in relation to an article made before 1st June 1957, by reference to the 1911 Act.

(3) For the purposes of the application of sections 31(2), 51(2) and 57(3) (subsequent exploitation of things whose making was, by virtue of an earlier provision of the section, not an infringement of copyright) to things made before commencement, it shall be assumed that the new copyright provisions were in force at all material times.
(4) Section 55 (articles for producing material in a particular typeface) applies where articles have been marketed as mentioned in subsection (1) before commencement with the substitution for the period mentioned in subsection (2) of the period of 25 years from the end of the calendar year in which the new copyright provisions come into force.
(5) In section 59 (reconstruction of buildings) the reference to the owner of the copyright in the drawings or plans is, in relation to buildings constructed before commencement, to the person who at the time of the construction was the owner of the copyright in the drawings or plans under the 1956 Act, the 1911 Act or any enactment repealed by the 1911 Act.
14. The following provisions of section 7 of the 1956 Act continue to apply in relation to existing works—

(a) subsection (6) (copying of unpublished works from manuscript or copy in library, museum or other institution);

(b) subsection (7) (publication or work containing material to which subsection (6) applies), except paragraph (a) (duty to give notice of intended publication);

(c) subsection (8) (subsequent broadcasting, performance, &c. of material published in accordance with subsection (7));

and subsection (9)(d) (illustrations) continues to apply for the purposes of those provisions.
15. Where in the case of a dramatic or musical work made before 1st July 1912, the right conferred by the 1911 Act did not include the sole right to perform the work in public the acts restricted by the copyright shall be treated as not including—

(a) performing the work in public,

(b) broadcasting the work or including it in a cable programme service, or

(c) doing any of the above in relation to an adaptation of the work;

and where the right conferred by the 1911 Act consisted only of the sole right to perform the work in public, the acts restricted by the copyright shall he treated as consisting only of those acts.
16. Where a work made before 1st July 1912 consists of an essay, article or portion forming part of and first published in a review, magazine or other periodical or work of a like nature, the copyright is subject to any right of publishing the essay, article, or portion in a separate form to which the author was entitled at the commencement of the 1911 Act, or would if that Act had not been passed, have become entitled under section 18 of the Copyright Act 1842.
Designs
17.—(1) Section 51 (exclusion of copyright protection in relation to works recorded or embodied in design document or models) does not apply for ten years after commencement in relation to a design recorded or embodied in a design document or model before commencement.
(2) During those ten years the following provisions of Part III (design right) apply to any relevant copyright as in relation to design right—

(a) sections 217 to 219 (availability of licences of right), and

(b) sections 226 and 227 (application to comptroller to settle terms of licence of right).

(3) In section 217 as it applies by virtue of this paragraph. for the reference in subsection (1) to the last five years of the design right term there shall be substituted a reference to the last five years of the period of ten years referred to in sub-paragraph (1) above, or to so much of those last five years during which copyright subsists.
(4) In section 219 as it applies by virtue of this paragraph, for the reference in subsection (1)(b) to section 209 or 210 there shall he substituted a reference to section 88 or 89.
(5) Where a licence of right is available by virtue of this paragraph, a person to whom a licence was granted before commencement may apply to the comptroller for an order adjusting the terms of that licence.
(6) The provisions of sections 228 to 231 (procedure and appeals) apply in relation to proceedings brought under or by virtue of this paragraph as to proceedings under Part III.
(7) A licence granted by virtue of this paragraph shall relate only to acts which would be permitted by section 51 if the design document or model had been made after commencement.
(8) Nothing in this paragraph affects the operation of any rule of law preventing or restricting the enforcement of copyright in relation to a design.
18.—(1) Where section 10 of the 1956 Act (effect of industrial application of design corresponding to artistic work) applied in relation to an artistic work at any time before commencement. section 52(2) of this Act applies with the substitution for the period of 25 years mentioned there of the relevant period of 15 years as defined in section 10(3) of the 1956 Act.
(2) Except as provided in sub-paragraph (1), section 52 applies only where articles are marketed as mentioned in subsection (1)(b) after commencement.
Abolition of statutory recording licence
19. Section 8 of the 1956 Act (statutory licence to copy records sold by retail) continues to apply where notice under subsection (1)(b) of that section was given before the repeal of that section by this Act, but only in respect of the making of records—

(a) within one year of the repeal coming into force, and

(b) up to the number stated in the notice as intended to be sold.

Moral rights
20.—(1) No act done before commencement is actionable by virtue of any provisions of Chapter IV of Part I (moral rights).
(2) Section 43 of the 1956 Act (false attribution of authorship) continues to apply in relation to acts done before commencement.
21.—(1) The following provisions have effect with respect to the rights conferred by—

(a) section 69 (right to be identified as author or director), and

(b) section 72 (right not to suffer modification of work).

(2) The rights do not apply—

(a) in relation to a literary, dramatic, musical and artistic work of which the author died before commencement; or

(b) in relation to a film made before commencement.

(3) The rights in relation to an existing literary, dramatic, musical or artistic work do not apply—

(a) where copyright first vested in the author, to anything which by virtue of an assignment of copyright made or licence granted before commencement may be done without infringing copyright;

(b) where copyright first vested in a person other than the author, to anything done by or with the licence of the copyright owner.

(4) The rights do not apply to anything done in relation to a record made in pursuance of section 8 of the 1956 Act (statutory recording licence).
Assignments and licences
22.—(1) Any document made or event occurring before commencement which had any operation—

(a) affecting the ownership of the copyright in an existing work, or

(b) creating, transferring or terminating an interest, right or licence in respect of the copyright in an existing work,

has the corresponding operation in relation to copyright in the work under this Act.
(2) Expressions used in such a document shall be construed in accordance with their effect immediately before commencement.
23.—(1) Section 81(1) of this Act (assignment of future copyright: statutory vesting of legal interest on copyright coming into existence) does not apply in relation to an agreement made before 1st June 1957.
(2) The repeal by this Act of section 37(2) of the 1956 Act (assignment of future copyright: devolution of right where assignee dies before copyright comes into existence) does not affect the operation of that provision in relation to an agreement made before commencement.
24.—(1) Where the author of a literary, dramatic, musical or artistic work was the first owner of the copyright in it, no assignment of the copyright and no grant of any interest in it. made by him (otherwise than by will) after the passing of the 1911 Act and before 1st June 1957, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of 25 years from the death of the author.
(2) The reversionary interest in the copyright expectant on the termination of that period may after commencement be assigned by the author during his life but in the absence of any assignment shall, on his death, devolve on his legal personal representatives as part of his estate.
(3) Nothing in this paragraph affects—

(a) an assignment of the reversionary interest by a person to whom it has been assigned,

(b) an assignment of the reversionary interest after the death of the author by his personal representatives or any person becoming entitled to it, or

(c) any assignment of the copyright after the reversionary interest has fallen in.

(4) Nothing in this paragraph applies to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.
(5) In sub-paragraph (4) "collective work" means—

(a) any encyclopaedia, dictionary, yearbook. or similar work:

(b) a newspaper, review, magazine, or similar periodical: and

(c) any work written in distinct parts by different authors, or in which works or parts of work of different authors are incorporated.

25.—(1) This paragraph applies where copyright subsists in a literary, dramatic, musical or artistic work made before 1st July 1912 in relation to which the author, before the commencement of the 191 I Act, made such an assignment or grant as was mentioned in paragraph (a) of the proviso to section 24(1) of that Act (assignment or grant of copyright or performing right for full term of the right under the previous law).
(2) If before commencement any event has occurred or notice has been given which by virtue of paragraph 38 of Schedule 7 to the 1956 Act had any operation in relation to copyright in the work under that Act, the event or notice has the corresponding operation in relation to copyright under this Act.
(3) Any right which immediately before commencement would by virtue of paragraph 38(3) of that Schedule have been exercisable in relation to the work, or copyright in it, is exercisable in relation to the work or copyright in it under this Act.
(4) If in accordance with paragraph 38(4) of that Schedule copyright would, on a date after the commencement of the 1956 Act, have reverted to the author or his personal representatives and that date falls after the commencement of the new copyright provisions—

(a) the copyright in the work shall revert to the author or his personal representatives, as the case may be, and

(b) any interest of any other person in the copyright which subsists on that date by virtue of any document made before the commencement of the 1911 Act shall thereupon determine.

26. Section 82(2) of this Act (rights of exclusive licensee against successors in title of person granting licence) does not apply in relation to an exclusive licence granted before commencement.
Bequests
27.—(1) Section 83 of this Act (copyright to pass under will with original document or other material thing embodying unpublished work)—

(a) does not apply where the testator died before 1st June 1957, and

(b) where the testator died on or after that date and before commencement, applies only in relation to an original document embodying a work.

(2) In the case of an author who died before 1st June 1957, the ownership after his death of a manuscript of his, where such ownership has been acquired under a testamentary disposition made by him and the manuscript is of a work which has not been published or performed in public, is prima facie proof of the copyright being with the owner of the manuscript.
Remedies for infringement
28.—(1) Sections 86 and 87 of this Act (remedies for infringement) apply only in relation to an infringement of copyright committed after commencement; section 17 of the 1956 Act continues to apply in relation to infringements committed before commencement.
(2) Sections 88 and 89 of this Act (delivery up or seizure of infringing copies, &c.) apply to infringing copies and other articles made before or after commencement; section 18 of the 1956 Act, and section 7 of the 1911 Act, apply after commencement only for the purposes of proceedings begun before commencement.
(3) Sections 90 to 92 of this Act (rights and remedies of exclusive licensee) apply where sections 86 to 89 of this Act apply; section 19 of the 1956 Act continues to apply where section 17 or 18 of that Act applies.
(4) Sections 94 to 97 of this Act (presumptions) apply only in proceedings brought by virtue of this Act; section 20 of the 1956 Act continues to apply in proceedings brought by virtue of that Act.
29. Sections 90 to 92 of this Act (rights and remedies of exclusive licensee) do not apply to a licence granted before 1st June 1957.
30.—(1) The provisions of section 98 of this Act (criminal liability for making or dealing with infringing articles, & c.) apply only in relation to acts done after commencement; section 21 of the 1956 Act (penalties and summary proceedings in respect of dealings which infringe copyright) continues to apply in relation to acts done before commencement.
(2) Section 100 of this Act (search warrants) applies in relation to offences committed before commencement in relation to which section 21A or 21B of the 1956 Act applied; sections 21A and 21B continue to apply in relation to warrants issued before commencement.
Copyright Tribunal: proceedings pending on commencement
31.—(1) The Lord Chancellor may, after consultation with the Lord Advocate, by rules make such provision as he considers necessary or expedient with respect to proceedings pending under Part IV of the 1956 Act immediately before commencement.
(2) Rules under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Qualification for copyright protection
32. Every work in which copyright subsisted under the 1956 Act immediately before commencement shall be deemed to satisfy the requirements of Part I of this Act as to qualification for copyright protection.
Dependent territories
33.—(1) An Order in Council in force immediately before commencement which extends to any of the Channel Islands, the Isle of Man or any colony any provisions of the 1911 Act or the 1956 Act shall remain in force as part of the law of that country until—

(a) it is revoked, or

(b) an Order is made in respect of that country under section 146 of this Act (power to extend new copyright provisions).

(2) An Order in Council which continues in force under subparagraph (1) may be varied or revoked under the provisions of the 1911 or 1956 Act under which it was made.
(3) A country in respect of which such an Order remains in force shall be treated, in the law of the countries to which Part I extends, as a country to which that Part extends.
(4) If such a country ceases to be a colony of the United Kingdom, section 147 of this Act applies (consequences of country ceasing to be colony), with the substitution for the reference in subsection (3)(b) to the provisions of Part I of this Act of a reference to the provisions of the 1956 Act or the 1911 Act, as the case may be.
34.—(1) A country which immediately before commencement was, or was treated as, a country to which the 1956 Act extended but was no longer a dependent territory of the United Kingdom shall be treated as a country to which Part I extends for the purposes of sections 143 to 145 (qualification for copyright protection) until—

(a) an Order in Council is made in respect of that country under section 148 (application of Part Ito countries to which it does not extend), or

(b) an Order in Council is made declaring that it shall cease to be so treated by reason of the fact that the provisions of the 1956 Act or, as the case may be, the 1911 Act, which extended there as part of the law of that country have been repealed or amended.

(2) A statutory instrument containing an Order in Council under sub-paragraph (1)(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Territorial waters and the continental shelf
35. Section 150 of this Act (application of Part I to things done in territorial waters or the United Kingdom sector of the continental shelf) does not apply in relation to anything done before commencement.
Crown copyright
36.—(1) Section 151 of this Act (Crown copyright) applies to an existing work if, and only if, section 39 of the 1956 Act applied to the work immediately before commencement.
(2) The provisions of section 151 as to first ownership of copyright have effect subject to any agreement entered into before commencement under section 39(6) of the 1956 Act.
37.—(1) The following provisions have effect with respect to the duration of copyright in existing works to which section 151 (Crown copyright) applies.
The question which provisions applies to a work shall he determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.
(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired in accordance with the 1956 Act—

(a) published literary, dramatic or musical works;

(b) published engravings;

(c) published photographs and photographs taken before 1st June 1957;

(d) published sound recordings and sound recordings made before 1st June 1957;

(e) published films and films falling within section 13(3)(a) of the 1956 Act (films registered under former enactments relating to registration of films).

(3) Copyright in unpublished literary, dramatic or musical works continues to subsist until—

(a) the date on which copyright expires in accordance with section 151(3), or

(b) the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force,

whichever is the later.
(4) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) unpublished engravings;

(b) unpublished photographs taken on or after 1st June 1957.

(5) Copyright in a film or sound recording not falling within sub-paragraph (2) above continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, unless the film or recording is published before the end of that period, in which case copyright expires 50 years from the end of the calendar year in which it is published.
(6) Copyright in any description of artistic work not provided for above continues to subsist until it expires in accordance with section 151(4).
Copyright resting in certain international organisations
38.—(1) Any work in which immediately before commencement copyright subsisted by virtue of section 33 of the 1956 Act shall be deemed to satisfy the requirements of section 152(1); but otherwise section 152 does not apply to works made or, as the case may be, published before commencement.
(2) Copyright in any such work which is unpublished continues to subsist until the date on which it would have expired in accordance with the 1956 Act, or the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, whichever is the earlier.
Meaning of "publication"
39. Section 159(3) (construction of building treated as equivalent to publication) applies only where the construction of the building began after commencement.
Meaning of "unauthorised"
40. For the purposes of the application of the definition in section 161 (minor definitions) of the expression "unauthorised" in relation to things done before commencement—

(a) paragraph (a) applies in relation to things done before 1st June 1957 as if the reference to the licence of the copyright owner were a reference to his consent or acquiescence;

(b) paragraph (b) applies with the substitution for the words from "or, in a case" to the end of the words "or any person lawfully claiming under him"; and

(c) paragraph (c) shall be disregarded.")

The noble Lord said: This amendment replaces the whole of Schedule 1. It contains the transitional provisions consequential upon the changes to copyright law effected by Part I. I feel that even at this
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late hour of the evening a word of explanation is needed about why the amendment is being made. The problem with preparing transitional provisions is that they have to be done last, when one can see to what transition is being made.
As the Committee will know, a draft of Part I of the Bill was sent out for public consultation during the summer. Comments were received during September and as a result a revision of Part I, in the form now before the Committee, was prepared during early October. Only when that had been done was it possible to turn to the transitional provisions. Unfortunately there was simply not enough time to get the schedule absolutely right before the introduction of the Bill. Accordingly the schedule as it appears in the Bill and in the amendment should be regarded as successive drafts of the same thing, rather than as a change of mind on our part about what should appear in the schedule.
I do not propose to explain the differences between the two versions or why we wish to make changes. I shall address myself to the new schedule entirely on its own merits.
Lord Lloyd of Kilgerran: Will the Minister go a little slower because it is very difficult to follow him at the speed he is speaking, if we are meant to follow. I should like to follow, but if I am in a minority of one I do not mind very much.
Lord Beaverbrook: Of course I shall go more slowly for the noble Lord.
Lord Williams of Elvel: For the Committee.
Lord Beaverbrook: For the noble Lord, for the Committee and for all concerned I shall go more slowly. Long and complex transitional provisions are more necessary in copyright than in almost any other field of law except perhaps land law. Copyright lasts for a very long time. The transitional provisions must be capable of dealing with works created and transactions in respect of those works carried out more than 100 years ago. Many works written before the date when the 1911 Act came into force, at 1st July 1912, are still in copyright—for example much of the output of George Bernard Shaw, Pablo Picasso, and Richard Strauss. Thus the schedule must be capable of dealing with differences between the provisions of Part I and three earlier regimes; namely, before 1st July 1912; between 1st July 1912 and 1st June 1957, which is when the 1956 Act came into force; and between 1st June 1957 and the coming into force of this Bill.
The general principles underlying the schedule are that existing copyright should not be lost; that existing works not in copyright should not suddenly acquire it; that existing copyright owners should not suddenly find themselves with a right substantially less valuable than they enjoy at present and that others already exploiting or dealing with existing works should not suddenly find themselves unable to continue. With those remarks, I beg to move.
Lord Lloyd of Kilgerran: There is considerable difficulty about dealing with this. I endeavoured to study Schedule 1 as it appeared in the Bill. I am sorry to complain. I understand that during Second Reading there was a potential renewal of the whole schedule, but I see that there has been introduced into paragraph 1 a definition of "the new copyright provisions" That phrase, as far as I can understand it, was not in the previous schedule so what does "new provisions" mean?
A little further one sees that the new schedule talks about
"General principles: continuity of the law"
and the "provisions of this paragraph". Which provisions are they? Are they the new provisions?
Paragraph 4 contains an obvious misprint in the first line. The word "provision" should surely be "provisions". I should imagine that the wording should be:
"The provisions of this paragraph have the effect of securing the continuity of the law so far as the new copyright provisions re-enact (with or without modification) earlier provisions."
Again we are in a difficulty. The same thing arose during our discussions of the scope of Clause 165. Perhaps I may pause there, in case I have made a fundamental mistake to ask the noble Lord how he justifies those amendments to the original schedule.
Lord Beaverbrook: The schedule as now printed on the Marshalled List was put down as an amendment very early on. I regret that perhaps our intention was not pointed out at Second Reading.
Lord Williams of Elvel: The noble Lord says that the schedule as now printed on the Marshalled List was put down early on. But we received a copy of the Bill which contained a schedule. That was Schedule 1. It presumably took a good deal of trouble to draft that schedule. To say that new Schedule 1 replacing Schedule 1 of the Bill was put down early on as a government amendment seems to be quite ridiculous.
Lord Beaverbrook: I would not agree with the noble Lord. The new Schedule 1 as printed on the Marshalled List was not a complete change but a development of what was effectively the previous draft. There was very little time to get this provision absolutely right. If it had been absolutely right there would have been no need to put down this amendment today.
I have listened carefully to the points made by the noble Lord, Lord Lloyd of Kilgerran. I wonder whether under the circumstances he will allow me to write to him on these matters. I am grateful to him for pointing out a misprint in the clause and I shall take up the points he raises.
Lord Lucas of Chilworth: I would not wish to embarrass my noble friend but I find it a little odd, particularly at this time of the day, that we should be faced with discussing a schedule without a full explanation. That worries me. My noble friend will recall that I sat only shortly where he sits and was always somewhat embarrassed to make the kind of explanation that he has made. It was my
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understanding that we were not going to go so far tonight. However, the arrangements of the business managers are not my business.
I find it a little disappointing that at this time of night my noble friend the Minister cannot give a fuller explanation of why we should have a new schedule and what the fundamental differences are. What is the reason for making these changes? I hope he will forgive me if I say that I find his remarks just a little dismissive. Although we will accept the new schedule with a scarcity of explanation I hope we shall have a somewhat better explanation when we come to this part of the Bill at a later stage.
Lord Lloyd of Kilgerran: I am grateful to the noble Lord, Lord Lucas of Chilworth, who as usual endeavours to help the Committee. In view of the legal representations I have had I must revert to the text of Clause 156, which says:
"A provision of this Part which corresponds to a provision of the previous law shall not be construed as departing from the previous law merely because of a change of expression".
Now we have this Schedule 1 descending on us. There are many changes of expression. There are changes of paragraphs. I am not dealing with a misprint and whether it is "provision" or "provisions". That is a simple matter. We do not want an amendment about that. But where is this change of expression? If the noble Lord were to say that subsection (2) of Clause 156 should not stand part of the Bill, I can understand it. Then we can go on to accept this Schedule 1 so far as possible when we have had an opportunity of studying it and understand what is meant by "change of expression".
I have been studying the 1956 Act and looking at Schedule 8, part of which has been incorporated in this Schedule 1 in Amendment 274. Then when I go further it does not take in paragraph 43 of Schedule 8. I do not understand therefore the provisions of Schedule 1 when one has in mind the scope of Clause 156.
Lord Williams of Elvel: I must support the noble Lord, Lord Lloyd of Kilgerran, in his comments. Let me finish on one point. He has mentioned the point that I picked up, being a non-lawyer, in paragraph 1(1) of this new schedule, "new copyright provisions". May we have an explanation from the Government exactly what they mean by these "new copyright provisions"?
The rest of the schedule contains a great deal of material. It is almost a Bill in itself. Since we are already dealing with a Bill which is about five Bills in themselves it is odd that the Government should, after 14 years of drafting, produce a schedule as an amendment to a schedule they produced in the first place. Having said all that, perhaps the noble Lord the Minister could concentrate on the point the noble Lord, Lord Lloyd, made about the expression "new copyright provisions".
Lord Beaverbrook: The provisions to which the noble Lord, Lord Lloyd of Kilgerran, and the noble Lord, Lord Williams of Elvel, refer are necessary to simplify the drafting of the schedule. Their meaning is explained in the revised schedule and cannot really

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be explained in isolation. I shall write to the noble Lord and send a copy to the noble Lord, Lord Williams, and place a copy in the Library to clarify these points.
Lord Williams of Elvel: Would the noble Lord be kind enough—because we are late at night and patience is running somewhat short—to explain in a letter, however long it is, to the noble Lord, Lord Lloyd, and myself exactly why the new schedule has had to be tabled to replace the old schedule, and in what respect the new schedule is different from the old schedule, the reasons for that, and then we can probably get on with the Report stage?
Lord Beaverbrook: I have already endeavoured to explain why this schedule was tabled as an amendment in itself. We had a lot of adjustments to make. We did not want to put down long streams of amendments to Schedule 1 as printed in the Bill, and we took a decision to table a new schedule. I shall write to the noble Lords and place a copy in the Library of the letter setting out what they request. It will not be a short letter. I do not think there are any matters of great note in it. Really this schedule as it appears in the Bill, and as it appears in the amendment, should be regarded as successive drafts of the same thing.
Lord Lloyd of Kilgerran: I sympathise with the noble Lord the Minister on the difficult task which I feel it is his duty to undertake and he has kindly agreed to do; but does not that mean that this Bill should be recommitted? The noble Lord is now saying that the new Schedule 1 differs in many respects from the schedule in the Bill. We have not had enough time to consider the matter, and he himself said that they had not had enough time to consider the exact scope of Schedule 1 by Second Reading, and I would entirely agree with him on that. Therefore, having not had time to deal with the schedule properly, they have put in something which they now wish to repeal. Surely it means that the Bill should be recommitted in order to deal with approximately 40 clauses. It means that this part of the Bill has not been adequately dealt with for proper and understandable reasons. I am not complaining about that because it is a large and complicated Bill and the Minister is in a difficult situation. However, the Bill should he recommitted as regards this schedule. I do not know whether any Member of the Committee wishes to comment on that.
11.30 p.m.
Lord Williams of Elvel: I think that the noble Lord, Lord Lloyd of Kilgerran, has a serious point. I do not wish to commit myself on whether we shall move for recommitment. I think that we must see whether in consideration of the schedule there are amendments we wish to move at Report or whether there are amendments which the Government wish to move at that stage. This situation has arisen before in connection with other Acts with which the noble Lord, Lord Lucas, and I have dealt in the past.
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If amendments to the schedule come forward from the Government, the Opposition or other Benches, it may be that we shall reach the point when we must say that the whole Bill must be recommitted. However, I am not taking a stand on that matter at this moment.
Lord Lucas of Chilworth: As 1 started this argument, I should like to say that I do not ask my noble friend for a recommitment. I find desperately disappointing the fact that we have a new schedule which most Members of the Committee have compared with the old. It is almost tomorrow and after a fairly long day the Government have merely said, "Rather than table a series of amendments, we decided to rewrite the schedule and here it is". I am sure that the explanations are perfectly reasonable and acceptable but the Government have not given all the little differences and reasons which perhaps some of us have not taken on board. The Government have said, "Here is a new schedule. It is much simpler than writing a number of amendments. There is no fundamental difference and we are sure that you will find it all right on the night".
We are now in the fifth day of Committee on the Bill and I do not find that a totally acceptable way for the Government to present their case. I am sure that at the end of the day it is the right case and I expect that I shall be happy, but I do not like the way in which we are dealing with the matter.
Lord Lloyd of Kilgerran: The noble Lord has been helpful on this matter. However, with regard to time, I was told that I should be required to be here until after midnight, and I have been prepared to be here until then. I was instructed that that was the position and therefore I am tonight anxious to clarify the scope of new Schedule 1, comparing it with Schedule 1 in the Bill.
I do not want to put the Minister in the dreadful position of having to spend a great deal of time writing to the noble Lord, Lord Williams, who has approached the matter more cautiously than I, and also writing to me. I suspect that we shall receive the letter on Boxing Day, or in a similar period, when many of us will have other matters to deal with. There will be a terrible rush before Report. I do not know when the Report stage will take place, but I know that we on these Benches receive less information than does the Opposition Chief Whip. That is only natural and I make no complaint about it. It is a great nuisance for a person like myself who has quite a lot of other things to do.
Lord Beaverbrook: I think I can reassure the Committee that the differences between Schedule 1 as printed in the original Bill and Schedule 1 as printed in the Marshalled List are changes that we have had to make to correct technically defective drafting. I do not think that there are any matters, or many matters, of any great import.
Lord Lloyd of Kilgerran: The Minister says that there are certain matters of technical drafting which this new schedule corrects. Will he tell me now what some of those technical draftings are? I am not

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concerned with the merely technical draftings or misprints which I pointed out; I am talking about changes of expression in relation to the 1956 Act.
Lord Williams of Elvel: If it was a question simply of technical drafting, why did not the Government introduce certain amendments of technical drafting? Why did they have to rewrite the whole schedule?
Lord Lloyd of Kilgerran: The method adopted by the Minister or the Government confuses us all. If now he has certain instances of technical drafting, perhaps he would be good enough to give us examples.
Lord Beaverbrook: I was going to carry on to say that we decided, perhaps wrongly, that the best way of dealing with this was to put down as an amendment a new schedule in its entirety rather than coming through with a great number of amendments of very little consequence. This may or may not have been the right way of dealing with it. If your Lordships' Committee feels that that has only added to the difficulties, I can only apologise.
I will write to the noble Lords concerned with an explanation of all points of substance on the differences between the schedule as originally drafted in the Bill and as printed in the Marshalled List. I think that that will be the best way of proceeding, and I hope that the Committee will accept my assurance that there is no intention here whatsoever to get something through that has not been debated or looked at in time by your Lordships, no intention whatsoever. We simply felt that this was the best way to proceed rather than tabling a very large number of small amendments.
Lord Lloyd of Kilgerran: I am very grateful for the step forward that the noble Lord has made, but it is not far enough. What I would like to see are the changes of expression as referred to in subsection (2) of Clause 156 that have taken place in relation to this new schedule. It is not only a question of technical drafting; changes of expression have taken place. There are probably two sets of changes of expression. There may be changes of expression arising in the schedule which is in the Bill and there may be further changes of expression arising in the new schedule.
As the noble Lord, Lord Williams, said, we are entirely confused about the position. If persons like myself are confused—and I realise it is very late at night—other people in industry will be very much confused about the whole position. This is increasing the costs of litigation, the costs to industry; and it is not in the national interest to avoid a proper clarification of the differences between these two schedules in the light of Clause 156.
Lord Beaverbrook: The very point we are concerned about in getting this schedule right is that which he mentioned: the costs of litigation and the cost to industry. We have endeavoured to do this in the schedule as printed in the Marshalled List.
I will indeed provide the noble Lord with a list of where terminology has been changed, as he asked. I
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fear that it may be a very long list, but no doubt he will be able to go through it and see whether the assurances that I have given are correct.
Lord Lloyd of Kilgerran: I am very grateful to the noble Lord. But then we come to another matter, the timing of Report stage. When are we going to have the result? When are we going to have the result of this monumental task on the part of the noble Lord and his advisers? When are we going to have this long letter? Are we going to have it in time for the Report stage? At this rate, I should have thought that the Report stage of this Bill should not be brought forward until the beginning of March.
Lord Beaverbrook: I should say to the noble Lord that the timing of Report stage is for the usual channels. Yes, it is a very great undertaking. The noble Lord is asking for something. I am seeking to oblige him and oblige him I will. Changes between the 1956 Act and the Bill are not, I believe, anything to do with this matter. Both versions of the schedule achieve a transition from the 1956 Act to the Bill, and it makes no difference to the question of the change of expression which version of the schedule is used. I would point that out to the noble Lord, and I think that, having said that, it will perhaps define the task that we are undertaking in writing to him with the changes between the schedule as printed in the original Bill and as presented in the Marshalled List.
Lord Lloyd of Kilgerran: I am not going to pursue this very much further. The Minister has been very fair and tolerant, but he has said that he or his advisers—the Government—did not have enough time to get Schedule 1 in its right form. He must now give us—I refer to the noble Lords, Lord Williams and Lord Morton, and myself—time to get at our advisers in order to see how the new Schedule 1 corresponds to the rest of the Bill and also how far it relates to the previous law of the 1956 Act. We must have time—and that is an essential element in what I am pursuing today—to have advice. The noble Lord has been very fair. He has said that he did not have time—by "he" I mean he and his advisers—to get the schedule right. He must persuade the usual channels that we want more time before Report stage.
Lord Beaverbrook: I should just make it clear again to the noble Lord, Lord Lloyd, that I will be writing to him and the noble Lord, Lord Williams, pointing out the differences between the schedule as drafted in the original Bill and as printed in the Marshalled List. I do not know whether he is asking me for the changes compared to the 1956 Act. That would be an almost insurmountable task and is perhaps not what he had in mind.
Lord Lloyd of Kilgerran: The Minister must take his own course in this matter. I have made my observations and I stand there. I am asking now for the sympathy of the Minister to extend the time for Report stage longer than it is scheduled at the present time by the usual channels, because this is a monumental task that we have to deal with in getting our advisers to understand what the Government require.
Lord Beaverbrook: I think that when the noble Lord has received our submission to him as to the changes in Schedule 1 between the original Bill and that printed in the Marshalled List he will find that any changes of substance are very small indeed. I am well aware that one part of the usual channels is listening to this debate this evening and no doubt he is well able to take account of the noble Lord's remarks.
Lord Williams of Elvel: Perhaps I can finish this debate by asking the noble Lord for an assurance that we will not have any more Government amendments to Schedule 1 which are not provoked by the opposition parties. Have they got it right in their own minds at last?
Lord Beaverbrook: We try to get everything right first time round. I have to admit that we did not get Schedule 1 right first time round. I hope there will be no further amendments, but I cannot give that undertaking because something may come to light or be brought to our attention by your Lordships that would require an amendment to be brought forward.
Lord Lloyd of Kilgerran:I know that the Minister cannot give that undertaking, and I apologise for extending this debate. But this is an important matter from the point of view of advisers on this important Bill. This Bill will stand the test of time for 30 years. We are told that by the Government. Surely we must try better than we have done so far in getting Schedule 1 right.
Lord Brain: I happen to know that the Government have to produce further amendments to Schedule 1 which are a consequence of something that has already been discussed in this Committee stage. Therefore I do not think that one can ask them for that assurance.
Lord Beaverbrook: The noble Lord can certainly ask for it but the noble Lord, Lord Brain, may have noticed that I was unable to give it.
On Question, amendment agreed to.
Amendments Nos. 274A and 274AZA not moved.
New Schedule I agreed to.
The Earl of Dundee: It may be to the convenience of all the Members of the Committee that we have a break. In view of that I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Viscount Whitelaw: Messages of Sympathy
Lord Brougham and Vaux: My Lords, before my noble friend moves that the House do now adjourn, perhaps I may take it on behalf of the whole House that we send our best wishes to our Leader for a speedy recovery.
Lord Lloyd of Kilgerran: My Lords, I too presume to support that. I heard only this evening of the position of the noble Viscount the Leader of the House, and I associate myself so warmly with what the noble Lord has said.
Lord Ponsonby of Shulbrede: My Lords, from these Benches, I also very much associate myself with what the noble Lord has said. We hope that we shall have good news in the morning.
Lord Beaverbrook: I wish to couple myself and my colleagues with those good wishes. I shall undertake to pass on all the comments and good wishes from noble Lords this evening.
House adjourned at thirteen minutes before twelve o'clock.