Lords Sitting of 15 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 St. Albans.
The Earl of Chichester The Earl of Chichester—Took the Oath.

Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, before the commencement of business, I take the opportunity to inform the House that I have accepted an invitation from the Prime Minister to attend a lunch in honour of the President of Israel on 16th December. Accordingly, I trust that the House will agree to grant me leave of absence tomorrow.

Viscount Whitelaw: Message of Sympathy
Lord Cledwyn of Penrhos: My Lords, I feel sure that the House will allow me to say how deeply concerned and distressed we were to learn last night that the noble Viscount the Leader of the House had been taken ill. We are much relieved to learn that he is now recovering well and we hope that he will continue to make good progress. We look forward to seeing him back in his place as Leader of the House in the new year. The noble Viscount stands high in our regard and affection and we wish him and Lady Whitelaw the warmest compliments of the season.
The Minister of State, Department of the Environment (Lord Belstead): My Lords, I know that my noble friend the Leader of the House will be very appreciative of the words of the noble Lord, Lord Cledwyn of Penrhos, which I take as coming on behalf of all your Lordships, and I will convey the good wishes of the noble Lord and of the whole House to my noble friend.

Breast Cancer: Screening
2.38 p.m.
Baroness Sharples: 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 progress has been made in the introduction of the national breast cancer screening programme.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale): My Lords, the Government are very pleased that each regional health authority in England now has arrangements well under way to have at least one breast cancer screening centre serving a population of about half a million in
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operation by next spring. The total service in England, involving about 100 centres, is planned to be in operation by the spring of 1990. Arrangements in Scotland, Northern Ireland and Wales are also well advanced.
Baroness Sharples: My Lords, I thank my noble friend for that reply, which is extremely encouraging and shows that the Government do care about the National Health Service. Can he say that, should tests prove positive and an operation be necessary, women will always be offered an alternative to total mastectomy?
Lord Skelmersdale: My Lords, I am grateful to my noble friend for her introductory comments. Breast cancers that are detected early are likely to have the best chance of a successful cure and to require less radical forms of treatment. It is best clinical practice for any woman needing treatment to be informed of the possible options, but I note that even when less radical treatment is offered research has shown that about half the women choose a mastectomy.
Baroness Ewart-Biggs: My Lords, I welcome the news the Minister has given about the setting up of the cancer screening programme. Will he say whether guidelines were set down to help local health authorities to carry out the programme and to carry out quality control? Will he also say whether he feels that there are sufficient back-up services to sort out the abnormalities and bring women back on a recall system in this large and ambitious programme?
Lord Skelmersdale: My Lords, I shall have to think about the question of the noble Baroness on guidelines. As regards back-up, each regional health authority has been allocated one-third of a million pounds to set up its first screening centre for a population of about half a million. This was intended to meet the costs not only of screening but also of assessment, diagnosis and treatment. Four of these centres have also been funded to provide training for staff for the whole programme.
Lord Kilmarnock: My Lords, many of us have supported the noble Baroness in her idea of checkups at the workplace and possibly in mobile units. The noble Lord said that one-third of a million pounds had been allocated to each regional health authority. Can he say whether that is in addition to the general health budget?
Lord Skelmersdale: My Lords, it is an identifiable part of the general health budget for this year. Workplace screening can be very effective, but it will need to be set up in conjunction with the National Health Service system to ensure that if abnormalities are found the necessary follow-up is available and to avoid confusion with the call and recall system.
Baroness Masham of Ilton: My Lords, is the Minister aware that many people throughout the country will be encouraged by the fact that the Government are promoting important preventive health measures? Will he ensure that there are enough radiologists and radiographers who can read the

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X-rays of any abnormalities that may show up, because it is expert work?
Lord Skelmersdale: Yes, my Lords, most certainly. This is why I said that we had also funded four centres to provide training for staff for the whole programme. I certainly agree with the noble Baroness.
Lord Ennals: My Lords, is it the case that the health authorities have to spend their first year's funding by the end of March 1988, which is really very near? May I ask the noble Lord how many staff would be involved and whether he is satisfied that they will all have had adequate training at the centres to which he referred through the Royal College of Radiologists?
Lord Skelmersdale: My Lords, the Government's plans, as I think I made clear earlier, include provision to meet the full, continuing estimated costs of the remaining centres to be set up in 1988–89 and 1989–1990. Judging by the reported state of the health service at the moment, I do not think that regional health authorities will have any difficulty in spending this year's money.

Health Service: Birmingham
2.44 p.m.
The Countess of Mar: 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 is their reaction to the letter dated 12th November 1987 from over 200 Birmingham consultants in all specialities to the chairman of the West Midlands Regional Health Authority expressing their "deep concern at the parlous state of the health service in the city".
Lord Skelmersdale: My Lords, the letter from the Birmingham consultants to the chairman of the regional health authority is clearly an expression of concern for the difficulties facing the district health authorities which have become apparent over recent months. However, health services in Birmingham have continued to expand despite the acknowledged pressures upon them.
The Countess of Mar: My Lords, I thank the noble Lord for his reply to my Question. Would he not agree that it really is unprecedented that 200 consultants and, in recent days, the heads of the three colleges; midwives, nurses, community health councils, and even the regional and district health authorities themselves have brought to the Government's attention their concern about the situation? If the noble Lord believes that Her Majesty's Government are paying enough for the National Health Service, would he not consider having an inquiry, or even a Royal Commission, into the management of that money?
Lord Skelmersdale: No, my Lords, I certainly do not think that a Royal Commission or an inquiry—should I say, another inquiry—into the management of the health service is appropriate. I would make the point that this year the West Midlands region is getting a cash increase of 9.3 per cent., taking its total resource allocation to over £1·1 billion, and a 24·7 per cent. real terms increase from 1978–79. As I have said on numerous occasions, health authorities have the legal obligation to live within their means which involves, on occasions, making very difficult choices. This is what is happening at the moment in Birmingham.
Lord Molloy: My Lords, is the noble Lord aware that there is deep concern at the parlous state of the National Health Service not only in Birmingham but throughout the entire country? if he wants confirmation, would he be prepared to ask for the views of the British Medical Association, the surgeons, the midwives, the nurses and all those who are the fundamental contributors to creating our National Health Service? They are all of one opinion—that our NHS is in a parlous state throughout the entire nation. What are the Government going to do to stop this dismay among all the people who work in our NHS?
Lord Skelmersdale: My Lords, if the health service was in as parlous a state as the noble Lord suggests from the evidence, which I agree has been coming from the heads of the three Royal colleges, from the BMA, and all sorts of sources within the health service, I would find it extremely difficult to reconcile that with the fact that so many more patient treatments continue to be made year after year.
Lord Molloy: My Lords, is the Minister really saying that the nurses' representatives, the Royal College of Nursing, the health visitors, the surgeons and the doctors are giving false information? Is the noble Lord saying that he does not believe the BMA, that he does not believe CoHSE, and that he does not believe the Royal College of Nursing? Is he saying that they are all misleading the country, that he alone is right, and that all these organisations are out of step with the Government?
Lord Skelmersdale: No, my Lords. Of course, that is not what I am saying. That is not at all what I said. I said that while recognising the concerns that have been expressed from all these organisations, one must realise also that continuing to spend extra money, which is in an unallocated form, cannot be the sole answer to the very intractable problems which we all know exist in the health service.
Lord Pitt of Hampstead: My Lords, cannot the Minister understand that while spending an additional amount of money may not be the sole requirement, it is obvious that additional resources are needed? Why cannot the Government merely accept that fact? Cannot the Minister see that? If you are spending a certain amount of money to achieve a certain objective and the objective is not being achieved and you have said that people must save in

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order to help achieve that objective and they are still not achieving it, cannot the noble Lord take it that you need to spend a little more money?
Lord Skelmersdale: My Lords, the Government are spending a little more money, to use the noble Lord's phrase. An extra £700 million is being made available for hospital services next year out of a total of £1·1 billion extra money for health.
Lord Pitt of Hampstead: My Lords, when you are asked for £925 million and you have given £700 million are you not presenting an insufficient amount?
Lord Skelmersdale: My Lords, the noble Lord, Lord Ennals, who, I know, is wanting to ask a supplementary question, faced exactly the same difficulties when he was Secretary of State for Social Services. The fact that money continues to be made available for the health service, and will continue to be made available in increasing amounts for the health service, does not mean that the intractable problems of the health service will disappear just because of that extra money.
Lord Ennals: My Lords, will the Minister accept the fact that, to the best of my knowledge, there was never a time—and certainly not when I was Secretary of State—when all those concerned with the interests of patients and all the organisations involved in the National Health Service were so united in their pleas to the Government for additional funds? In the light of opinion polls, does the Minister not accept that no government have ever had a greater mandate than do his Government now to produce more funding which is quite clearly needed and demanded, in place of the repeating of tired statistics that do not fit with the experience of those who work in the health service or those who depend upon it?
Lord Skelmersdale: My Lords, I disagree with the last point. First, statistics are not tired, as the noble Lord suggests; secondly, most certainly they show that extra treatments are continually being provided often in excess of the amount of money that is provided. I accept that difficult decisions must be made. That means not only the Government seeing whether extra money can be made available in whatever amount at whatever time. It also means that for that money, we must see that we have proper control of the health service by the health service.
Lord Gisborough: My Lords, does my noble friend not find anomalous criticism from a party that reduced spending on hospitals by 3 per cent. in 1977 and spending on nurses' pay by 10 per cent. in real terms when in office?
Lord Skelmersdale: My Lords, I find equally anomalous the fact that Labour Ministers managed to have disputes with the nurses in 1974; with junior doctors in 1975; and with doctors and the Royal Colleges in 1975–76.
Lord Ennals: My Lords, is that not a repetition of what I called "tired statistics" and statements. We are dealing with the situaton which exists today. Does the Minister not accept that the public would prefer see much more money being spent on the health service rather than have some potential reduction of a penny or two on income tax? They know where their priorities lie.
Lord Skelmersdale: My Lords, if the noble Lord wishes to judge government policy on polls, that is entirely up to him, However, I observe that when asked specifically, "Are you prepared for a reduction in your take-home pay in order to find extra money for the health service?", only 10 per cent. of the respondents in a recent poll said, yes.
Lord Hailsham of Saint Marylebone: My Lords, at the risk of being accused of statistical fatigue, I should like to ask my noble friend whether it is a fact that the expectation of life in this country has steadily improved throughout my lifetime?
Lord Skelmersdale: My Lords, yes, it has, and, returning to the Question. I should like to add even in Birmingham.
Baroness Fisher of Rednal: My Lords, is the Minister aware that at a public meeting in Birmingham last Friday, attended by the chairman of the West Midlands Regional Health Authority and his officers, including the manager and the chief medical officer, and a cross-section of people, the same kind of questions that are being asked today were put to the chairman of that authority? He was obviously not speaking of increases in cash that would be available; but he was saying that the struggle would get worse. He told the meeting, "It is up to you to make sure that the Government know how you feel." That is a different point of view to the one expressed by the Minister this afternoon.
Lord Skelmersdale: My Lords, if "up to you" means reporting to the Government via myself, then the message has most certainly gone home. The extra allocation for regional health authorities will be made shortly, but, as I have said repeatedly, I do not think that that will solve the particular problems.
Lord Mackie of Benshie: My Lords, I should like to congratulate the Minister on the way he has answered the Question and for the courtesy that he has shown. I am sure that the Minister has the figures available. Will he therefore say how the extra money paid to the West Midlands Regional Health Authority has been spent? For example, has it been spent on more geriatric beds, or is there an improvement in the number of operations carried out? Can the Minister tell the House where the increase has been spent.
Lord Skelmersdale: My Lords, speaking from memory, approximately 24 per cent. extra funding has been made available in real terms since 1978–79. I told the House recently that that resulted in an increase of 25 per cent. in hospitalised boarding treatments; a 78 per cent. increase in day patient cases; and a 17 per cent. increase in other ways.
Lord Somers: My Lords, I am inclined to agree with the statement that money alone will not solve the problem. However, does the Minister not agree that the problem cannot be solved without money?
Lord Skelmersdale: My Lords, this year the Government spent approximately £24 billion on the health service as a whole and that amount will be increased next year and the year following. I do not call that going "without money". However, I take the point that should a sensible arrangement be made for spending extra money, we must obtain value for that money.
Earl Ferrers: My Lords, does the Minister not agree that it is one of the easiest things in the world to say that something is in a "parlous" state? Is it not a fact that, despite the requirements for the future, more money is now being spent on the health service than ever before? There are more doctors and more dentists and more operations are being carried out. Is it not a fact that one problem is that modern machines and equipment are progressively becoming geometrically more expensive? Is that not one of the difficulties in financing the health service?
Lord Skelmersdale: My Lords, yes, my noble friend is right; expensive machinery which now goes into health care is a factor in the equation. So also is the fact that, for example, there are more nurses in this country per 10,000 of the population than there are, for example, in the United States of America or Germany.
The Countess of Mar: My Lords, the Minister has spoken of the additional operations which have been carried out and the number of people who have been cared for in hopsital. I should like to say that those people working in the National Health Service should be congratulated for that. Is it not the very consultants and nurses who are worried about the situation today who have made possible the extra operations? Are they not suffering from the effects of the cutbacks along with patients who have accepted being sent home early after operations and who have been treated as day cases whereas a few years ago they might have been treated as in-patients on a slightly longer term?
Lord Skelmersdale: My Lords, clincial practice always changes over time. I am not able to accept the fact that because today patients stay for a shorter time in hospital than five or 10 years ago, one can draw conclusions from that as regards the state of the health service.
Baroness Seear: My Lords—
Noble Lords: Next Question!
Baroness Seear: My Lords, nobody has spoken from these Benches for a long time. While not in the least wishing to let the Government off the hook, is not a great deal of the problem attributable to the fact that many of us, including myself, are living beyond our allotted three score years and ten?
Lord Skelmersdale: My Lords, I think I had better refer the noble Baroness to the answer I gave to my noble and learned friend.

EC: Academic Qualifications
3 p.m.
Lord Allen of Abbeydale: 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 progress is being made with the adoption within the EC of a system for the mutual recognition of the higher education diplomas.
Lord Beaverbrook: My Lords, the Commission's proposal for a general directive was identified by Community Heads of Government in June 1987 as a priority for decision by the end of 1988. Work has been pursued energetically during the present Danish Presidency with a view to ensuring that the Council of Ministers meets that target.
Lord Allen of Abbeydale: My Lords I should like to thank the noble Lord for that Answer. But may I ask him whether he recalls that when a report from the European Select Committee was being debated on 10th October last year the Government at that stage felt able to say very little about the criticisms and suggestions which the committee had made about that draft general directive? May I ask him whether the Government have now formulated their views and, if so, whether they have conveyed them to the Commission if not to this House?
Lord Beaverbrook: Yes, my Lords. The Government have studied with great care the very helpful and well researched report of the Select Committee. In particular, the proposal has been amended to reflect the report's observations on the distinction between professions and activities.
Lord Mulley: My Lords, I do not dissent from the desirability of recognising diplomas, but will the Minister give an assurance that the Government will not permit education, which is not covered presently by the Treaty of Rome, to be so covered? In my time I had some difficulty in killing the proposal for a directive whereby immigrant children within the Community would all be educated in their own language. Apart from the educational difficulties and costs in this country, it would have been a political explosion, because they would all have thought that the purpose of such education was to return them to their own countries. I hope that education will not be covered by the Treaty of Rome, as it is not at the moment.
Lord Beaverbrook: My Lords, I hear what the noble Lord has said. I should point out that we are talking here about professional qualifications and not about education from a young age.
Baroness Serota: My Lords, can the noble Lord say whether in their consideration of these matters the Government have given special attention to the particular problem pointed out to the Select Committee; namely, that in the UK it would be essential that the benefit of any directive should extend to those whose professional qualifications, as opposed to their academic qualifications, are recognised by charter or by other self-regulating bodies as opposed to state authorities?
Lord Beaverbrook: My Lords, the noble Baroness raises a very interesting point. The directive would apply only to fully qualified professionals practising in their home state who have a university level qualification. In addition, most member states and the Commission now accept that where qualifications differ there should be provision for an adaptation exam.
Baroness David: My Lords, I am not sure that the Minister has followed what the Select Committee proposed. But, when finally the Government decide to take a line about this, may I ask him to make sure that people who have some but not all of the necessary qualifications—perhaps people who may want to move from one state to another in the course of getting their qualifications, and also people who are doing part-time study to get them—have their condition properly taken into account? This is very important for them and indeed for the country as well.
Lord Beaverbrook: My Lords, I agree with the noble Baroness. I would say to her that the precise form of the adaptation mechanism is still under discussion and it is clearly very important to get it right.

Security Service Allegations
3.4 p.m.
Lord Jenkins of Putney: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether in view of recent statements made on security and intelligence matters they will amplify Lord Glenarthur's Answer of 29th October 1987 (H.L. Deb. col. 773).
The Minister of State for Defence Procurement (Lord Trefgarne): No, my Lords, I am afraid not.
Lord Jenkins of Putney: My Lords, is the noble Lord capable, as I am sure he is, of entertaining the possibility that the Government may be mistaken in this matter? Is it not the case that they are bringing themselves into world-wide derision by their attempts to shove the cat back into the sack in various parts of the world? Would it not be much better if they were to take a new line on this and decide that where matters are not of vital national interest they may be discussed? Is it not the case that the Government's
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line on this matter is now so rigid that it is impossible to ask reasonable and ordinary questions which ought to be asked, and answered?
Lord Trefgarne: No, my Lords, I am afraid that public discussion of these matters is not conducive to national security.
Lord Cledwyn of Penrhos: My Lords, I accept the general principle enunciated by the noble Lord, Lord Glenarthur, but does the noble Lord, the Minister not agree that if four, or any number of, employees of Cable and Wireless or GCHQ were killed by terrorists that should be a matter for the public domain?
Lord Trefgarne: My Lords, I am afraid that I cannot add to the answers I have already given.
Lord Cledwyn of Penrhos: My Lords, I must press the noble Lord on this. Are there occasions then if employees of Her Majesty's Government, or indeed of companies like Cable and Wireless, are killed when these are matters which must not be made public? Is that what the noble Lord is saying? If so, it is an extremely serious admission.
Lord Trefgarne: No, my Lords, that is not what I said. What I said, and what my noble friend said on an earlier occasion, is that matters relating to national security are not for the public domain.
Lord Cledwyn of Penrhos: My Lords, I really must ask the noble Lord this question. Is he and is the House aware that I accept the principle which he has enunciated? I understand it completely. But where British citizens are killed abroad is that not a matter which should he made public?
Lord Trefgarne: My Lords, the noble Lord accepted the principle that these matters are not in general for public discussion and then sought to ask me a question which related to those matters. I regret that I cannot help him further.
Lord Jenkins of Putney: My Lords, will the noble Lord take on board the point that this matter was first stated publicly by a supporter of the Government in another place? In these circumstances would it not be right for the Government to take account of the fact that it is already in the public domain in the sense that it has been placed there by a supporter of the Government in another place? Therefore it would surely render it possible, and even desirable, that the Government should tackle the matter and answer it.
Lord Trefgarne: My Lords, the book to which the noble Lord refers was indeed written by a Member of another place but was not an official publication of any sort.

Business of the House
Lord Belstead: My Lords, on behalf of the noble Viscount the Lord President of the Council, I beg to move the Motion standing in his name on the Order Paper.
Moved, That the debates on the Motions in the names of the Lord Morton of Shuna and the Baroness Nicol set down for 13th January shall each he limited to 21 hours and that Standing Order 35 and paragraphs 10 to 13 of the Rules for the Conduct of Short Debates shall apply to each debate.—(Lord Belstead.)
On Question, Motion agreed to.

Income and Corporation Taxes Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Legal Aid Bill [H.L.]
3.8 p.m.
The Lord Chancellor: My Lords, I beg to move that the Bill be now read a second time.
Legal aid in England and Wales has a long history and it is with legal aid in England and Wales that we are principally concerned today. It is almost 500 years since the passing of what could be described as the first legal aid Act. In 1495 an Act of Henry VII was entitled,
"An Act to admit such persons as are poor to sue in forma pauperis".
Times have changed: the 1495 Act consisted of one clause which could be printed on one side of paper; today we have before us a Bill of 43 clauses and seven schedules. But the aim remains essentially the same. My noble and learned friend Lord Hailsham of Saint Marylebone began his legal aid White Paper earlier this year with the words:
"The purpose of legal aid is to ensure that people of small or moderate means receive access to proper legal advice, and to justice".
Henry VII and his 1495 Parliament would have understood that sentiment. We are, therefore, today putting our mark on a 500-year long tradition. The Bill that is before your Lordships will set the framework for the legal aid scheme through into the next century. That is the measure of its importance, and the context in which our deliberations must be seen.
The legal aid scheme as we know it today had its origins in the report of the Rushcliffe Committee. That report was published in May 1945, and provided the basis for the 1949 Legal Aid and Advice Act, which is in effect the grandfather of the Bill we have before us now. The 1949 Act established the civil legal aid scheme, and appointed the Law Society to run it. Criminal legal aid developed rather differently from civil legal aid. It was closely associated with the courts and it remains largely a court-administered system today. In 1972, the legal advice and assistance scheme was introduced. It represented the biggest single development in the legal aid scheme since 1949.
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In 1974, the legal aid legislation was consolidated, and it is the 1974 Legal Aid Act which the present Bill seeks to replace. Since 1974, there have been two further legislative milestones in legal aid's history. The 1979 Legal Aid Act established the extension of advice and assistance to cover representation (the system known as ABWOR)—assistance by way of representation —and the 1982 Legal Aid Act made some important changes in the criminal legal aid system, including the establishment of statutory magistrates court duty solicitor schemes.
That is the legislative background to the Bill. A good deal of its content represents a straightforward consolidation of existing provisions, though in some cases the content has been modified to streamline the Bill and to give it a more co-ordinated and coherent approach. There is, however, much more to this Bill than simple consolidation of earlier statutes.
The overriding objective of this Bill is to improve the arrangements for making legal aid, and legal advice and assistance, available. Efficiency, effectiveness and value for money are the key concepts which underlie the reforms that the Bill introduces. The Legal Aid White Paper, to which I have already referred, outlined the scale of the operation. During 1986, some 200,000 individuals received legal aid to pursue or defend a civil case; about 500,000 received legal aid in connection with a criminal charge; and about 1,200,000 received advice and assistance from a solicitor. The total legal aid bill in England and Wales will be in excess of £400 million during the 1987–88 financial year, having risen from £100 million in 1979–80. Few, if any, areas of government expenditure have experienced such rapid and sustained growth. Legal aid is a big and growing business.
It is against that background that the Government have had to consider the future of the legal aid scheme. It is a mark, surely, of any prudent administration that it is constantly seeking ways of improving value for taxpayers' money, and of generating a better, more efficient service using that money. This Bill is designed to ensure that the administrative framework for the legal aid scheme is fully capable of responding to the challenge of providing the best possible value for money and the best possible service.
The centrepiece of the Bill is the establishment of the Legal Aid Board. As was made very clear in the White Paper, the decision to establish the new board does not derive from any sense of dissatisfaction with the way in which the legal aid scheme has been administered hitherto. In particular, I wish to pay tribute to the invaluable and crucial role played over the past 37 years by the Law Society. The close involvement of the legal profession has been one of the strengths of the legal aid scheme, and I am sure that the new board will do its utmost to ensure that it continues in the future.
The Government's reason for establishing the board is simple. We believe that the legal aid scheme has outgrown the structure that was appropriate for it in the early 1950s. A new, more comprehensive arrangement is needed in order to ensure that all aspects of the legal aid system can be properly co-

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ordinated and integrated under one responsible body.
One criticism that can be levied at the present system with some force is that its administration is all too complicated and confused, with too many different organisations involved in ways which have little more than history for their justification. Something new is needed to give order and strategic direction to legal aid. One answer would be for the Government to administer the legal aid scheme directly; but in our view that would be wrong. The scheme needs to be run free from government interference in its day-to-day decisions in individual cases. It would be equally wrong to expect the profession to continue to administer a scheme when the parameters of that administration seem likely to extend to areas—for example, means assessment and the involvement of advice agencies—in which the legal profession cannot be expected to have the necessary expertise. A new board is the obvious answer; and that is what this Bill seeks to establish.
The board will initially do no more than take over those functions currently performed by the Law Society's legal aid administration. Here, I should like to say a word about the staff in the Law Society's legal aid administration. They bring to their work a skill and experience which is respected by all who have dealings with the legal aid system, and which underlie the smooth running of the scheme. My department has already given a clear undertaking to the Law Society that all staff in the area office, and all headquarters staff below area director level, will be made offers of employment by the board. I am happy to repeat that undertaking now. The terms and conditions of service for those who transfer will, when taken as a whole, be no less favourable than those available to them at present.
By transferring only the Law Society's functions to the board, the Government would not be giving it the full powers it will need if it is to achieve a central strategic role for legal aid. For other functions, we are proposing to adopt a cautious and gradualist approach so as to keep to a minimum any disruption that might be caused to the profession and to the client. It is our long-term aim that the board should have overall responsibility for the administration of all aspects of legal aid, unless there are good arguments to the contrary.
That means that the board will be asked to consider taking on directly such functions as considering applications for criminal legal aid, assessing the means of those applying for civil legal aid, and determining all legal aid bills. I know only too well the problems which some of these could cause. It is precisely for that reason that no final decision has been taken on any of them. And I would stress that point: the Bill enables functions to be transferred to the board, but it does not compel such a transfer beyond those presently exercised by the Law Society. We retain a fully open mind. Only if it appears, both to the board and to the Government, that transfer of responsibility for a particular function would be in the best interests of legal aid as a whole will it be allowed to take place.
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The Government will expect the board to put forward proposals for the assumption of new functions, in the light of its own view of them, and of the best way forward. If the board concludes that there are insuperable difficulties with certain tasks the Government will be sympathetic to the argument that things are best left as they are. The reverse is also true. If the Government are not happy with the board's proposals they will retain the right to maintain the status quo rather than move to a situation which they consider to be less satisfactory.
The Government's overall aim remains that, in due course, the board should have a pivotal role in respect of all aspects of the administration of legal aid. Inevitably, before that becomes a reality there is a very great deal of preparatory work to be done. The Government are anxious to move ahead with that at the earliest possible opportunity. It is therefore my intention to set up what is known as a shadow board as early as possible in 1988. I expect to be able to announce the names of the proposed chairman of the board and its members in the early part of next year
The shadow board will begin work immediately, preparing itself to take over the functions that currently fall to the Law Society and planning for the future. In that way it will be able to move swiftly towards taking on any new functions once it has formally taken over responsibility. My present hope is that the board will be able to take over from the Law Society on 1st January 1989, though inevitably, with so much preparatory work to do, that can be no more than a hope at this stage. It is also subject to your Lordships' views on the Bill.
It is the Government's intention that the board will continue to work through the present network of area offices. The present system of area committees will also remain in being, though of course they will in future be appointed by the board. Neither the Government nor the board itself will be able to interfere in the decisions on the grant of legal aid in individual cases. Such decisions will, as now, be taken in the first instance by officials in the area offices, and an appeal against refusal will lie, as now, to the area committee. There will be no appeal from the area committee to the board. It is the Government's intention that the area committees should continue to be composed of practising solicitors and barristers, thus preserving the involvement of the profession in the administration of the legal aid, which has become such a valuable feature of it.
Much concern has been expressed that the Legal Aid Board will not be independent of the Government. The concept of independence here must be put in context. The Legal Aid Board is not going to be free to do what it likes, when it likes and how it likes with the legal aid scheme, any more than the present legal aid administration has that kind of freedom. The Government will continue to set the broad framework of the legal aid arrangements and will retain their present role over such matters as financial eligibility limits. This is an inevitable consequence of the fact that the Government are providing the money to fund legal aid.
The Government have a responsibility to the taxpayer and to Parliament to ensure that money is

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spent wisely, and for the purposes for which it is voted. No government can abdicate that responsibility, and the Legal Aid Board will inevitably have to function within that general constraint. To suggest that that somehow restrains the board's independence is to expect for the board a greater freedom than any wholly government-funded organisation has a right to expect. Within the overall constraints set by Parliament, the board will have considerable freedom to manage its affairs in the way it considers best. It is not our intention to interfere in the day-to-day management of legal aid any more than it is to interfere in decisions on individual cases.
The Bill provides that the board will act under the guidance of the Lord Chancellor. Some may read into that a hint of greater government control. But the Government must have a central role to play in any service which distributes public money. I should like to stress that there is nothing new in that. In administering legal aid, the Law Society already acts under the guidance of the Lord Chancellor, and administration has not, in my view, suffered in any way from that.
There has been criticism that the fact that the board is to be appointed by the Lord Chancellor will compromise its independence. Here I have to say again that my overall responsibility for the legal aid scheme makes it essential that I am the authority who appoints the members of the board. But to suppose that that somehow affects independence flies in the face of experience. To take but one example close to home, the fact that the Lord Chancellor appoints the Legal Aid Advisory Committee does not seem to have had an appreciable effect on the independence of that committee. I think that all noble. Lords who know of its activities would have to agree.
Furthermore, the type of person that I shall be looking for to sit on the Legal Aid Board is not the type of person who would allow his personal independence to be compromised. The board is going to be much more active and involved in everyday administration than it is possible for the present Legal Aid Committee to be. To start with, I envisage board members spending two days a week on the board's business, though that is not a hard and fast requirement, and some other commitment may be more appropriate in some cases. I intend to keep an open mind on that matter in order to find what views your Lordships may have on it, and also what arrangements may be most appropriate having regard to the members who will be appointed.
Board members will not be executive directors, but they will probably wish to concentrate on particular matters and my intention is that I shall appoint experts in personnel management, finance and other disciplines to sit alongside lawyers on the board, thus ensuring that the board is able to play a full and active part in the work of the organisation. It is important to bear that in mind, because there seems to have been some misunderstanding of the role of the board members. I shall not be appointing people as representatives of this or that interested group, but because of the individual's particular skills and experience. Nor will members be expected to act as though they were delegates of a particular constituency; that applies to the two solicitors whom
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I must appoint after consultation with the Law Society, as well as to the other members. What will be required are people who are prepared and able to dedicate themselves to improving the management and operation of the legal aid administration as a whole.
That is of course the rationale behind setting up the board in the first place—to strengthen the management and operation of legal aid. The change to the board will provide an opportunity for some rigorous and adventurous thinking about the organisation and administration of the scheme. Nowhere will that be more important than in the field of advice and assistance, and it is that to which I should like to turn.
Advice and assistance is a rapidly growing area of the legal aid scheme, and it looks set to continue its growth. Such growth is in part a sign of the success of the green form scheme over the years, but at the same time there can be little doubt that the green form scheme today bears little resemblance, in either its size or in the range of problems with which it deals, to the scheme envisaged by its founders. So it is inevitable that some thought has had to be given to the question of whether the green form scheme is the most cost-effective way of providing the service. The report of the efficiency scrutiny of legal aid, which preceded the legal aid White Paper, concluded that there was a better alternative. It argued that, in many areas of work, lay advice agencies were better equipped to provide advice and assistance.
The Government were conscious of the radical nature of that proposal, and were anxious to obtain the widest possible range of views. Comments were therefore invited on the scrutiny report. The balance of responses to that consultation was hostile to the specific recommendations of the scrutiny team in that area. The Government accepted that there was force in many of the criticisms, and the White Paper made it clear that the Government rejected the scrutiny team's proposals as they stood. However, the White Paper envisaged the possibility of substantial change in the advice and assistance scheme. As the White Paper put it:
"The Government, therefore, intends to take powers to enable the new Board to make alternative arrangements for the provision of advice and assistance for particular categories of work where this would be a more efficient way of providing the service".
Those powers are contained in Part II of the Bill.
In legislative terms, the provisions are relatively simple. The Bill provides that the board shall have the power to make arrangements for the provision of advice and assistance by means of contracts with, or grants or loans to, individuals, organisations or groups. Those are wide powers, but such width is necessary to give flexibility to the board when it comes to consider precisely how those powers can best be used. That is something to which the board will be asked to address its mind at an early stage. The Government are certainly attracted by the idea of making greater use of non-lawyer advice agencies in those areas where they have particular expertise. Welfare benefits are but one example. Some solicitors are expert in welfare benefit law, but others have simply bought computer packages prepared by the advice agencies. Traditionally, this is an area of

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expertise in which the advice agencies have specialised, and it must be in the interests of the client that he or she can get advice from those who are best able to provide it.
The thinking behind the Bill is that the provision of advice and assistance in certain areas of work will be organised by means of contracts. These will specify what is to be provided, by whom and for how much. It will of course be open to the profession to submit tenders to do the work, as it will to advice agencies and others. The Bill makes it clear that it will be open to the board to make different arrangements in different parts of the country. It follows that once new arrangements have been made for handling particular categories of case, these will be excluded from the existing green form scheme. Otherwise there would be duplication.
It will be essential to ensure that the level of service to the client remains fully satisfactory. This is something to which the Government will expect the board to pay particular attention when putting forward its proposals. The board will, in any event, only be able to exercise its powers to provide advice and assistance by means of contracts if the Lord Chancellor so directs, and only in accordance with his directions. This will enable the Government to keep a close eye on standards of service.
I know that some have already said that this part of the Bill is an attack on the green form scheme. It is nothing of the sort. It is an opportunity to produce new and imaginative ways of getting good quality advice from those best equipped to give it to those who need it. I shall expect the board when appointed to discuss with the advice agencies and all who have an interest in the area how this can best be achieved. The board will be able to build on much that has been achieved already, and especially the partnership and working relationship that exist between the Citizens' Advice Bureaux, and other advice agencies and very many solicitors.
The Bill does not lay down a blueprint. As I have said, it will be for the board, in consultation with all who have an interest, to look at all the possibilities and to come up with workable, worthwhile proposals. I am confident that all concerned will respond to this challenge. It may be that we shall all conclude that the present system is the very best that can be devised within the resources available. All I say now is that so far as one can judge at present I should need some persuasion of that.
In addition to the power to award contracts, the board is also given a power to make grants. This brings me to the position of law centres. The Government's view of law centres remains as it has been since 1979. Law centres may well provide a valuable service to their local communities. But they are essentially a local service, and as such it is more appropriate that they should receive local rather than central funding. There is an exception to this. My noble and learned friend Lord Hailsham of Saint Marylebone continued to provide funds to seven law centres which is an arrangement I think that he inherited from his predecessor. I now propose to invite the new Legal Aid Board to take over
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responsibilty for the grants to the seven centres currently funded. The board will need to be satisfied that the services provided by those seven centres fit into the general pattern of its plans for advice and assistance. Provided, however, that they are so satisfied, and subject to my agreement, it will be open to them to continue to pay the grants under powers in Part II of the Bill. It will of course also be open to other law centres to submit proposals for contracts or grants in the general context of the board's plans for advice and assistance.
There is one aspect of this Part upon which I have not yet touched. That is the board's powers to make contracts and grants extend to representation. There are two reasons for these powers. The first is that it will allow those law centres funded by the board to undertake representation and to meet the cost from the grants that they receive from the board. Second, if at some stage in the future (and I must emphasise that we have no current plans for this) publicly-funded representation were to be extended to more tribunals, it might well be more convenient for the same agency that has provided advice also to provide representation.
The Bill is not designed to allow legal aid, either civil or criminal, to be provided under contract to the board. There is no equivalent provision in Parts IV and V—allowing the civil and criminal legal aid schemes to be withdrawn for areas of work covered by contractual arrangements—to that in Part III in respect of advice and assistance. This is because it is not the purpose of the Bill as it stands to allow legal aid to be contracted out beyond the limited ways that I have described.
I have dealt at some length with the Legal Aid Board and the proposals for advice and assistance because they are the two areas where the Bill differs most from the present arrangements. It may however also be helpful if I now go through the Bill and outline some of its main provisions.
Part I of the Bill deals with the basic definitions used in it. The basic definitions are of "advice", "assistance" and "representation". Some of this, particularly the reference to "representation" may seem strange to those more accustomed to the present expressions "civil legal aid" and "criminal legal aid"; but I hope that the result of careful drafting will be the same. The purpose of using the expression "representation" is simply to preserve a certain uniformity throughout the Bill. I can confirm that "representation" as it is defined covers everything at present covered by civil and criminal legal aid.
Part II is almost wholly new, and it is here that are found the provisions relating to the establishment of the board and the power to award contracts and make grants. It is in Part II that the board is given its general power to do such as it considers necessary to provide or secure the provision of services under the Bill. The House will wish to note that the board is given a specific power to give the Lord Chancellor advice on the provision of services under the Bill. I regard this as of extreme importance. The board will rapidly acquire a good deal of expertise in the legal aid field, and I shall want it to use that expertise in putting forward proposals for improvements.

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Part III sets out the provisions for advice and assistance provided by solicitors. This is intended as a restatement of the existing provisions regarding the green form and assistance by way of representation. The terms of the legislation differ from the 1974 Act in a number of respects but the overall effect is the same.
Your Lordships will notice that here, as in those parts of the Bill dealing with civil and criminal legal aid, there are general regulation-making powers enabling the Lord Chancellor to set financial eligibility conditions. In the present system, upper and lower qualifying limits are set on the face of the statute though they may be, and regularly are, uprated by regulations. I feel that the specific setting of limits in statute is unduly restrictive and I have opted for leaving definitions of financial eligibility wholly to regulations subject to parliamentary approval. I wish to assure your Lordships that there is no hidden motive behind this. It is my clear intention to retain the present system in being at least for the foreseeable future.
Part IV of the Bill deals with civil legal aid. The proceedings for which this is and is not available are listed in Schedule 2. This reproduces the current position and I have no plans at present to change it.
Part V of the Bill deals with criminal legal aid. Once again, the scope of criminal legal aid and the financial conditions will remain as they are. Part V, however, contains powers which mirror those in Part II to transfer functions currently performed by the courts to the new board. I shall of course have to be fully satisfied that this is wise before I agree that it should take place.
Part VI makes special arrangements for legal aid in care proceedings and contempt proceedings. There has long been criticism that care proceedings were entangled with criminal proceedings in the 1974 Act. This Bill puts that right.
Part VII deals with a number of miscellaneous points, and sets out the regulation-making power. The only one of those to which I would specifically draw your Lordships' attention at this time is that relating to the remuneration of the legal profession. The White Paper said that the Bill would contain powers to enable the Lord Chancellor to set, by way of regulations, the rates payable for all legal aid work. As the White Paper made clear, the Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done. It is however necessary for the Government also to have regard to the taxpayer as well as to the provider. The aim is to produce a result that is fair overall. But fairness is inevitably a vague and subjective concept. Clause 32(6) helps to clarify the approach which will be adopted by setting out the factors to which the Lord Chancellor may have regard when setting rates. The aim of that list, which is not exhaustive, is to ensure that all relevant factors are taken into account. As your Lordships may know, agreement has now been reached with the profession on a permanent scheme of payments on account, and the present 10 per cent. deduction in High Court cases (shortly to be reduced on 1st January to 5 per cent.) will be abolished on Royal
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Assent to the Bill. I think nobody can regard that as a cost-cutting exercise. Part VII also deals with the future of the Legal Aid Advisory Committee. As the legal aid White Paper made clear, once the Legal Aid Board has been established, the role and function of the Legal Aid Advisory Committee will inevitably change. However, I believe that the committee will continue to have a useful role to play, at least during the period of transition to the Legal Aid Board and in the early days of the board's existence. The Bill therefore contains power to retain the advisory committee. As circumstances may well alter once the board has settled into its new role, the Bill also includes a power to allow the committee to be disbanded by regulations if this should seem appropriate. I intend to review the committee's continuing role some 12 months after the board has taken over its responsibilities.
Finally, I should just mention briefly that, although as I said at the outset the vast majority of the Bill relates only to England and Wales, Schedule 4 contains some minor amendments to Scottish legal aid legislation produced by experience since the Legal Aid Board was set up there.
Those are the main provisions of the Bill. The legal aid system in this country is one of the best in the world. The provisions in the Bill not only preserve all that is best in our legal aid system; they enhance it. I hope that that aim will be endorsed by the whole House. This Bill will do much to establish a framework within which the legal aid scheme can advance towards the 21st century in an efficient and healthy state. I accordingly commend the Bill to the House.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
3.41 p.m.
Lord Elwyn-Jones: My Lords, as the noble and learned Lord the Lord Chancellor said, legal aid in England and Wales has a long history. I fear that the chapter contained in this Bill is not going to he its most glorious moment. Indeed, the Bill has been widely attacked not only by the Bar and the Law Society but also by a number of the advice agencies which are now doing their best, with inadequate resources, to deal with the continuing need for legal aid.
The importance of legal aid probably does not need emphasising. It is clearly not a matter for concern only in the legal professions. It is a fundamental part of the administration of justice, providing access to law and justice to about 2 million people each year. Access to legal services in this country has long been regarded as a civil right and not just a charitable provision.
The importance of legal aid was indicated, as indeed the noble and learned Lord said, in the report of the Rushcliffe Committee and is also spelt out admirably in the 34th annual report of the Lord Chancellor's Legal Aid Advisory Committee, which stated:
"law is not merely an instrument of social control…it is also a positive instrument for defending individual liberties and giving reality to civil

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rights. Law, in this sense as well as in its restrictive sense, is a necessary precondition for order. If individuals cannot secure their legitimate rights and defend their interests through a system of justice, they will resort to other means in an endeavour to do so…If the rule of law and equality before the law lie at the heart of the social system, then equally legal aid lies at the heart of the legal system".
Since the days of the Rushcliffe Committee, which made its major contribution in this sphere in 1945, social, economic and political changes have resulted in increasing demands for legal help both in civil and criminal matters. The law has become more complex and affects more people. For example, matters concerning housing, welfare benefits, the consumer, the environment and employment problems have become increasingly governed by legislation or regulations. Crime has, alas, increased alarmingly and continues to increase.
One asks to what extent the provisions of this Bill deal with and meet the needs of this situation. Is it essentially a means to cut expenditure on legal aid? Is that one of its primary purposes? To what extent the Bill can achieve what it should be doing to deal with the situation I have mentioned we cannot tell as yet because it is largely an enabling Bill with few substantive provisions. It leaves the future shape and content of the legal aid scheme largely in the hands of the Lord Chancellor under the baleful eye of the Treasury.
Indeed, the Law Society has calculated that in addition to the powers given to the Lord Chancellor which can be exercised directly, the Bill creates at least 56 powers exercisable by secondary legislation. We shall be faced with a mass of statutory instruments which will have to make their way through the House. Some of the powers delegated to statutory instrument raise matters of principle and not merely matters of administrative detail. For example, Clause 1(5) on the scope of advice or assistance to be provided says that this is to be dealt with by regulations; Clause 2(4) empowers the Lord Chancellor by order to determine the functions of the Legal Aid Board; Clause 13(2) provides for variation by regulation of the categories if civil proceedings for which legal aid is to be available; and Clause 19(9) provides that restrictions may be placed by order on the competence of the courts to grant legal aid.
The wide sweep of powers to make regulations which are given to the Lord Chancellor in the Bill is in particular identified in Clause 32, which begins:
"The Lord Chancellor may make such regulations as appear to him necessary or desirable for giving effect to this Act or for preventing abuses of it".
Never has a more wide or sweeping power been given to any Minister. In Clause 32(2) there follows a list of matters of major importance which can be dealt with by regulations.
The importance of this mass of subordinate legislation which is contemplated in the Bill is made all the greater when one reads Clause 32(9), which provides for regulations under the Act to be subject only to amendment by negative resolution of the House. We know what a limited power that gives us.
On this side of the House we submit that the Bill should require approval by positive resolution of the regulations, which may have far-reaching effects on
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the quality, the effectiveness and indeed the availability of legal aid. I hope that the noble and learned Lord will give serious attention to that vitally important change which we shall press upon the House in due course.
I must ask whether when the noble and learned Lord comes to reply to the debate he will give an assurance to the House that adequate time will be given for consultation and representation in connection with this forest of orders and regulations which will in due course appear. Consultation is not markedly spelt out in the Bill. It would be highly desirable that consultation and representation in connection with the subsidiary legislation should take place as soon as possible. Indeed, I hope that before we start the Committee stage of the Bill a good deal of information as to the nature of the instruments will be given to the House. Otherwise, I fear that we shall be working in the dark during the Committee stage.
The noble and learned Lord said that the centrepiece, the heart, of the Bill is the transfer of the Law Society's power and present responsibilities for the administration of legal aid to a Legal Aid Board. The membership is of course not yet identified, but we should like more information as to what qualifications will be looked for in those who are to constitute this important quango. "Quango" became a term of abuse against the Labour Government, but it is now a most honoured feature of continuing legislation emanating from the Government.
The Legal Aid Board is to consist, apparently, of 11 to 17 members, at least two of whom will be solicitors. There is not one word in the Bill about barristers, but we have it—I will not say from the horse's mouth—from the noble and learned Lord himself that the intention is to have barristers. Perhaps we will be told how many. So far as I can see, the provision for legal membership of the board is intended to be minimal. Who are the kind of persons the noble and learned Lord the Lord Chancellor has in mind to carry out these requirements? How independent will be the board? It will have restricted powers and will operate without the valuable assistance it could receive from regional committees on the lines of the North-West Legal Services Committee or the South Wales Legal Services Group, if they were allowed to continue and, indeed, were extended. They are not mentioned in the Bill. Will there be voices on the board which can speak for the services provided by law centres and advice centres?
I was delighted and relieved to hear from the noble and learned Lord that the famous seven law centres which I rescued and which my successor so generously and gallantly maintained are to continue in existence, but, apparently, in the shadowy hands of the Legal Aid Board. To describe the board which is to come into being as a shadow board was, I thought, a disturbing but perhaps significant description of it. The value of the law centres is, I am grateful to hear from the noble and learned Lord the Lord Chancellor, at any rate acknowledged. What the advice centres are concerned about is the nature of the funding and the inadequacy of the funding which they receive. As I shall indicate in a moment, it is

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intended that more responsibility should be placed upon the advice agencies than at present exists.
The nature and composition of the Legal Aid Board is obviously of very great importance. Will there be voices on the board which can speak for the services provided by the law centres and advice centres and who can speak for the Welsh and English regions' standpoint and needs? That particularly applies for those who can reflect the views of local government, because local government is currently financing most of the provision for advice and law centres. The noble and learned Lord has indicated that the intention is that the burden should continue to remain with local authorites.
As I have already submitted, there is no clue as to the qualifications required of the members of the board. I wonder whether what is provided for in Scotland is a pointer to what we can expect. The Legal Aid (Scotland) Board has three solicitors, balanced by three chartered accountants. The chairman of the board is a chartered accountant. Is that a pointer to what we can expect to happen here? If so, that would not be reassuring. We are happy to hear from the noble and learned Lord that, as the Bill provides, solicitors and members of the Bar will be involved. If I may say so, I expect him, as a former Dean of the Faculty of Advocates, to maintain their importance.
In my submission, the majority of the members of the board should essentially be persons with experience of the machinery of justice and its workings. After all, the major function of the board will be to grant legal aid where it is satisfied that the person, as Clause 14(2) states:
"has reasonable grounds for taking, defending or being a party to the proceedings".
That function can hardly be discharged unless there is a majority on the board with legal experience. It is also important that there should be some provision for consumer representation.
Clause 4(5) provides for the Lord Chancellor to give guidance to the board; and one expects that. However, will that be published? Will it be subject to parliamentary approval in the same way, for example, as are codes of conduct under the Police and Criminal Evidence Act?
Taking a general look at the Bill, there is one provision to which the noble and learned Lord referred, but not very reassuringly. Clause 33(5) provides that,
"The Lord Chancellor may, by order dissolve the advisory committee on such day as is specified in the order".
I ask, why? On what criteria may that power be exercised? The Legal Aid Advisory Committee, set up under Section 21B of the Legal Aid Act 1974, has an unimpeachable reputation as a powerful and impartial voice for the public interest on legal aid affairs. It was appointed to advise and to make recommendations to the Lord Chancellor on matters referred to it which are the subject of public report. I am bound to say that I found its advice of great help.
Members were appointed with specific reference to their knowledge of the work of the courts and social conditions. My fear is that abolition of the
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committee, if that takes place, will mean the loss of the only official body linked to the new scheme of legal aid in the Bill which is capable of monitoring the effect of the board's work and putting forward suggestions for change which reflect the interests of consumers and users. In my submission, the threat to dissolve the advisory committees puts a question mark on a great deal of the Bill.
As regards the availability of criminal legal aid, six factors determining in what circumstances criminal aid should be granted are set out in the Bill. But what this Bill does not do is set out the Widgery criteria on the basis of which courts now decide to grant legal aid. The principle adopted is that what is important is that the interests of justice should be applied. But, whereas in the Scottish Act the Widgery criteria are set out in Section 24(3), the present Bill does not do so. I should find it far more reassuring if it did. Perhaps the noble and learned Lord will give thought to that before we go into the Committee stage of the Bill.
The Bill envisages certain areas of additional legal work which are to go to the advice sector, particularly in the green form field. I repeat what I have already indicated. If the Government wish to build on the abilities and energies of the advice sector, they should first of all ensure that there is enough provision of such agencies and, above all, that they are adequately funded. It is about that particular point that they have expressed very great concern.
It is regrettable that the Bill has not been used to expand rather than contract legal aid, for instance, through the extension of legal aid to statutory tribunals. The individual citizen is often at great disadvantage when employers and government departments, represented by solicitors and counsel, face him. He may well be unable to get any legal help himself. In other fields, too, there should have been extension rather than contraction of legal aid. They include class actions, proceedings in coroners' courts and, possibly, even proceedings before the European Court of Human Rights.
Many problems arise on the Bill. I was delighted to note that in one part of his speech, the noble and learned Lord indicated that he had an open mind on a particular problem. Knowing him as I do—and as we do—I feel very hopeful that that mind will remain open. If it becomes closed, it will do nothing but harm to the litigants of this country.
4.2 p.m.
Lord Meston: My Lords, I feel that I should begin by declaring an interest as a lawyer who receives income from the Legal Aid Fund as it is presently constituted. The immediate problem with the Bill is that it contains no clear statements of principle or of purpose. The Explanatory Memorandum and the Long Title contain bland statements to the effect that the Bill revises arrangements for legal aid. Clause 1 launches straight into definitions and much of the Bill simply provides enabling powers for, as yet unseen, subordinate legislation. One has only to look at Clause 1 to see expressions such as "Regulations may specify", "Regulations may provide", "Regulations may prescribe", and "the Lord Chancellor may

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direct". Indeed, that is the entire pattern of the Bill. As the noble and learned Lord, Lord Elwyn-Jones, told us, there are some 56 powers to regulate contained within this relatively short Bill. It is, frankly, very unattractive, mere framework legislation.
Of course, it is right that the Government and the Legal Aid Board should retain flexibility with the power to regulate; but surely it is also right that the primary legislation should give clear guidelines for the secondary legislation which it enables to be brought into existence.
Clause 32(2)(f) caught my eye. It provides that the Lord Chancellor may, by regulations,
"modify this Act for its application to prescribed descriptions of persons or in prescribed circumstances".
That seems to me to be a very wide power. For example, if a later government should decide that one shall not be paid for legal aid work done on a Tuesday afternoon; then that would seem to enable it to happen. It is simply too wide. It is because of the width of the powers given by this Bill that it is hard to discern how much of the White Paper proposals are carried into effect.
At Second Reading it is permissible to consider first principles. The noble and learned Lord said that the White Paper began by describing the purpose of legal aid as being to ensure that people of small, or moderate means, receive access to proper legal aid advice. The Bill does not reproduce that statement of principle. However, it is of basic importance that in a civilised society, justice should be open to all and not just to those whoare able to pay. If people are denied rights of access to the courts they become oppressed, particularly in the fields of employment and housing. Of course, in less developed countries that leads to corruption.
However many laws we pass in this House it becomes a futile excercise if they cannot be operated in practice. It is also right that we should remind ourselves that legal aid is not free. The litigant has to make his contributions in many cases. And there is the statutory charge, reproduced in this Bill, enabling the clawback of the legal fees from whatever is recovered or preserved as a result of the litigation.
I would have hoped that there would be some mechanism within the Bill to provide for careful, continuous monitoring of the scope of legal aid, eligibility for legal aid and also for ensuring its availability at a level consistent with the cost of living. It is proposed, I understand, that the method of payment of contributions should become open-ended until the end of any given piece of litigation, rather than being limited as at present to a term of one year. That proposal must lead to the risk of the legally aided litigant being exposed to pressures by his privately funded opponent in litigation. Therefore, I question the wisdom of that alteration.
I would also have liked to see—it may be something one can expect from future regulations—some further rationalisation of the statutory charge; in particular, in matrimonial cases. For too long there have been a great many anomalies.
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These were highlighted by the Judicial Committee of your Lordships' House in the recent case of Simpson v. The Law Society.
It is an oversimplification to say that legal aid is a public service. It is a private service which is publicly funded. As such it needs the goodwill of the professions and the confidence of the public. If the Government wish to see efficiency maintained, then they must also see the importance of retaining the numbers, the standards and the calibre of the practitioners prepared to do legal aid work.
All of us in legal practice know of colleagues at the Bar who will not take legal aid work. All of us know cases where the client runs out of funds and is told by his solicitor that he, the solicitor, does not do legal aid work and that he must therefore go elsewhere, thus causing duplication of effort and delay to both parties in the litigation. The legal aid system is always going to be denied the services of the best and highest earners who prefer to do other work unless they are prepared to let private work subsidise legal aid work. It is essential that the good, competent, middle range of practitioners is retained by the legal aid system. Solicitors and the Bar are used to working long hours and working hard. We of course are motivated by money, but we are also motivated by the wish to give good service. If the profitability of legal aid work becomes more and more marginal, people will feel that it is not worth spending time on legal aid cases. They will concentrate on private work or on that rare commodity, leisure. Fee earners will feel that they can devote their efforts elsewhere. Work will be delegated to unqualified clerks. It will not be prepared properly or it will not be prepared until the last moment, because obviously the less one is paid, the faster the turnover has to be. It then becomes too fast for the work to be properly done.
In short, the message must be that if the system is to be efficiently run, the pump must be properly primed. The fear is that the cliché about a second-class service will become a reality. I say second class, but we understand that in a sense there will be a third class of service in that, as the noble and learned Lord the Lord Chancellor told us, he will ask the board for workable and worthwhile proposals effectively to subcontract the work. The fear is that financial constraints will lead to subcontracting to organisations such as the Citizens' Advice Bureau which will not have the resources or the expertise. I know that that is the fear of the Citizens' Advice Bureau, which would have been expressed by my noble friend Lord McGregor had he not been indisposed.
The service to the consumer must not be put at risk in that way. The analogy has been drawn of it being rather like asking the doctor's receptionist to decide whether one is ill enough to see the doctor. As to the board. Part II of the Bill tells us what the board can and cannot do. It gives little clear idea as to what it will do in practice. We know that under Clause 4(5) the board will have guidance from the Lord Chancellor. We know from Schedule 1 that it may delegate matters to a committee, but questions have been asked about the board's independence.

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If my mathematics are right, Part II and Schedule 1 contain no fewer than 43 references to the Lord Chancellor and nine references to the consent, concurrence or approval of the Treasury. In the light of that, one questions the likely independence of the board. At the very least the board's membership should include representation from the Bar and advice agencies. I understood the noble and learned Lord the Lord Chancellor to say that that would be his intention. I hope that he can legislate to that effect rather than merely legislate for solicitor members. Why should solicitors have all the fun? There should be representation from the advice agencies and regional representation, not merely as delegates but as a cross-section of interested bodies able to give the benefit of their expertise.
I shall turn briefly to the subject of remuneration. Under the existing law the remuneration of legal aid practitioners is determined by statute on the principle of fair remuneration. The Bill repeals that statutory requirement. It has caused anger in the professions. Paragraph 48 of the White Paper stated:
"The Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done".
What we have is Clause 32(6), which does not go that far. It merely says:
"The Lord Chancellor … shall be entitled to have regard, among the matters he considers appropriate, to",
and there is then a list of factors, some of which are less easy to understand than others. Those factors have no priority as among themselves. There is no obligation upon the Lord Chancellor to have regard to those factors. Within his powers he can disregard the lot and have regard to completely extraneous factors, from the price of cornflakes upwards. It is not good enough for the legal professions to be left without the reassurance they require in that respect.
The legal professions feel that those provisions leave them with no control and the Lord Chancellor's Department with no visible target. It is not a case of the legal professions expecting to be paid on a par with privately paid work. The professions have long ceased to have any expectation of payment comparable to fees dictated solely by market forces. But they expect to be paid fairly. The noble and learned Lord said that fair remuneration is an abstract concept and must involve fairness to the taxpayer. However, the taxpayer is a potential consumer of legal services. It is in his interests to have the system efficiently administered.
Clause 32 appears weak. It offers no confidence for the future. Surely the noble and learned Lord will not say that his factors provide unfair remuneration, rather that they provide fair remuneration. If that is the position, he could surely restore the principle of fair remuneration to the face of the statute. If not, at the very least the hope is that there will be an advisory committee on fees to give some authoritative information.
I echo what the noble and learned Lord, Lord Elwyn-Jones, said about having the positive resolution procedure rather than the negative, and preferably positive resolutions which can be amended by Parliament.
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The worry is not just in respect of fees, although the indication is that in that respect the Government have departed from the White Paper. The remainder of the Bill is an unknown quantity because of the unknown subordinate legislation.
How many other departures will there be from the White Paper, some of which was good and some of which was bad? If there are to be cuts in the scope of and entitlement to legal aid, that should be spelt out. The Government assure us that there will not be any in the foreseeable future. If that is so, as I say, it should be spelt out, preferably on the face of the Act. The 1974 Act gave starting points for eligibility. I see no reason why there should not be starting points on the face of the statute.
The White Paper recommended briefly and abruptly that leave would be required to use counsel in the county courts. Will that happen? We do not know. One cannot gather that from the face of the Bill. It is obviously of great importance to the Bar to know whether leave will be required for counsel in the county courts. Without repeating the arguments in favour of having counsel in the county courts, it is of great importance to the consumer.
Many detailed comments can be made about the Bill. We need to be informed of what underlies it before we can be convinced by it.
4.20 p.m.
Lord Denning: My Lords, for myself I welcome this Bill. The present structure of legal aid has become rickety. It lets in the wind and the water. It needs restructuring in order to make the system waterproof. This Bill provides the builder to do so: a new Legal Aid Board under a new Lord Chancellor. This restructuring is essential. However, my noble and learned friend the Lord Chancellor has referred back to Henry VIII.
Lord Elwyn-Jones: Henry VII!
Lord Denning: I go back to the first 25 years when I was at the Bar. I know the old system when there was no legal aid for anybody in criminal or civil cases. In my first case before the High Court, a lady had gone to a dentist and while she was having treatment under gas a tooth had broken and gone down into her windpipe. The solicitor and I did the case for nothing, and we won. It helped the young man and the young lawyer on his way. That was civil legal aid.
We also knew all about criminal legal aid. At the Winchester Quarter Sessions or Assizes the man in the dock would ask, "Can I have legal aid?". The judge would ask him, "Have you any money? Have you £1.3s.6d.?", and some friend of his would say, "I have the money here". The judge would then say, "You can have any of those gentlemen sitting there in that row". He could see only the backs of our wigs, and sometimes he would pick me out. For £1.3s.6d., paid by the prisoner or his friends, I would go below into the cells to see him and to take instructions. I would plead in mitigation, or whatever it was, before the judge for £1.3s.6d. Sometimes I was at the London Sessions for two or three days for £1.3s.6d. On the whole it was not a bad system. It did not cost

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the state anything. However, I agree it was a day when there was one law for the rich and another for the poor.
That was altered by the legal aid system. I remember how the Rushcliffe Committee pondered the issue in 1945. I remember the 1949 Act. That was the greatest revolution in our legal procedure for centuries. I was on the Bench for many years after legal aid was introduced. Those in the profession know that the amount of work in the courts has increased tenfold owing to legal aid. People who could never have had them before now have solicitors and counsel respresenting them. The numbers of judges, barristers and solicitors have increased. A great deal of their income is paid for by taxpayers; by the state on their behalf. Whether it is the biggest rogue or the poorest individual, the state pays. We pay. The taxpayer pays. The legal aid system is not a bad thing; it is good, but expensive. But in the course of time—and I have seen this—abuses have grown up. The system has been misused and abused. With this new structure I hope that the abuses can be overcome.
Perhaps I may give two or three instances of abuses. First, there is the example of the drunken Irishman. Mr. Kelly was a plausible Irishman, described by the judge as a chronic alcoholic. He had a little knock on the head while with the London Transport Executive. He went back to work in a day or two. However, six months later he went to his solicitor saying, "I have suffered from an awful depression ever since that time. I have not got over it. It was all due to that knock on the head with the London Transport Executive". The solicitor took his word for it. Furthermore, he called the doctor, who said, "Oh yes, this depression is all due to that knock on the head".
The London Transport Executive fought that case. Mr. Kelly claimed £100,000 damages and it was proved beyond doubt—the judge accepted it—that it was a bogus claim. The case was dismissed; it ought never to have been brought. The London Transport Executive came to our courts and said, "The Legal Aid Fund supported this man. We should not have heard of this case but for legal aid. We should not have had to pay a penny. It has cost us £8,000 to defend it. Can we not ask for those costs from the legal aid fund? That is the body which brought this upon us". I am afraid the court in which I sat had to refuse what one may think was a most legitimate demand.
My second example is a case involving a forceps delivery which came before this House. A lady was getting on a little in years. She was going to have a rather difficult delivery of her baby. The surgeon was doing his best for her. He said that he would try a forceps delivery. Unfortunately something went wrong and the baby's brain was hit a little when he was trying to pull the baby out. That lady obtained legal aid. She said that the surgeon had pulled too hard and too long and that was the cause of the brain damage. Legal aid was obtained, great medical experts gave evidence on both sides and the court sat for 11 days before the judge. The case came to the
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Court of Appeal and then to the House of Lords. I am glad to say that the skilful surgeon's reputation was upheld. He had done nothing wrong. It was no fault of his. But goodness knows how much money that case cost, with legal aid on the one side and the medical defence union, or whatever it was, on the other. Is it right that legal aid should apply to this extent?
My last example is a case of attempted suicide. The man was in hospital for nervous depression. In the course of this depression, one night when everyone else was in bed he pulled up the window and jumped down intending to commit suicide. But he did not succeed. He fell only half-way down and was severely injured. He obtained legal aid. He sued the hospital because of his attempted suicide. Of course that case did not succeed.
I give those illustrations only to show how important the system is. Paragraph 37 states:
"At present, only the applicant has any involvement in the process by which legal aid is granted or denied. Yet the grant of legal aid may have a major impact on his opponent. The Government therefore intends that the opposing party should have the right to make representation against the grant of legal aid before the application is determined".
That is a good scheme under this new administration. Those administering criminal legal aid have spoken about this often before. Legal aid is granted in almost every case that goes to the Crown Court. Counsel says to the man who is charged with some trivial matter, "Not guilty. Go for trial before a jury". The matter could perfectly well be dealt with by the magistrates. However, legal aid is available after months. The profession gets its money. The result is the same as it would have been had the man gone before the magistrates.
Under this legal aid scheme the solicitors in the magistrates' court waiting for their cases to come on have an item which was new to me: waiting time. They received so much an hour every time they are waiting before the case comes up. Paragraph 33 states:
"The Government has decided that, in criminal legal aid court staff should be able to refuse as well as grant applications. This will bring the practice in criminal legal aid more closely into line with civil legal aid and will enable speedier decisions to ge given".
That is why I welcome this restructuring of the Bill: to put things right when they are wrong and to prevent abuses when there are abuses. That is why I support everything in the Bill.
However, I have one word of caution. I repeat what my noble and learned friend Lord Elwyn-Jones and the noble Lord, Lord Meston, have said. These regulations are very wide. They are not set out in any detail. The Legal Aid Board has something to do with it, but the Lord Chancellor has the awesome responsibility to make regulations to cover these wide fields of legal aid. It is a complaint that those regulations are not spelt out to this House or in the Bill so that we can see them. But I would not wish them to be. Look at the book containing the present regulations. We do not want to have to consider all those word by word in this House. In a way, therefore, it is good that there should be a general power to make regulations. I think and hope that we can trust the noble and learned Lord the Lord

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Chancellor to deal with these issues very fairly for the sake of the profession. I support the Bill.
4.33 p.m.
Lord Renton: My Lords, like my noble and learned friend Lord Denning, I too, support the Bill on the broad ground that any good scheme is capable of improvement and should be looked at from time to time by Parliament, which established the scheme in the first place. However, I must confess that when I first read the Bill there was much more that I needed to know about it. Having heard the full and helpful speech of my noble and learned friend the Lord Chancellor, many of the doubts that I had have been removed. Some of the doubts held by members of the Bar will be removed when they read his speech.
I should like to refer to the two that perhaps have gained the most prominence. First, the representation of the Bar on the new Legal Aid Board seems to me to be essential. There should be an amendment to the Bill on the lines of the provision that requires two solicitors to be appointed. After all, the Bar under the present scheme has played a very important part. The Law Society's administering committee has always had two leading counsel on it. They have been distinguished barristers, busy men. The area legal aid committees have always had two barristers, generally Queen's Counsel. I served on one many years ago myself and found it a valuable experience. The local committees nearly always have one and sometimes two junior barristers. I was much relieved to hear from my noble and learned friend that the work of the area and local committees will continue much the same as at present under the new scheme.
One matter has puzzled me. It is a very general point. My noble and learned friend described the Bill as an enabling Bill. Then he said in effect that the new Legal Aid Board was to be on trial and that the Government retained the right to maintain the status quo. I hope that I have not misunderstood my noble and learned friend. If I have, he will correct me.
I looked at the Bill to see as best I could what my noble and learned friend was getting at. Under Clause 2,
"There shall be established a body to be known as the Legal Aid Board".
That is obligatory; it is not enabling. Looking at the commencement provisions of the Bill in the last clause, we find that that clause will come into force automatically on Royal Assent. Looking at Clause 32(1), which has been referred to, not always with approbation, in the course of earlier speeches, we find that,
"The Lord Chancellor may make such regulations as appear to him necessary or desirable for giving effect to this Act or for preventing abuses of it".
That does not give the impression that he could do without the board after all. But perhaps I have completely misunderstood the position. I am possibly the only person who has done so, but I think that it might be as well for my noble and learned friend to clear up that point.
We welcome any scheme that will save taxpayers' money if it is justified in so doing. My noble and
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learned friend said that one of the purposes of the Bill was to enable us to get value for money from the scheme. He told us that the scheme is costing £400 million. From the financial memorandum in the Bill it looks as though only £10 million will be saved. This was clear from the White Paper also. My noble and learned friend the Lord Chancellor did not say very much about how we were going to get more value for money. It looks as though the administration of the board, including the salaries of the members, will be an extra cost compared with what the Law Society does at present. However, I was pleased to hear that my noble and learned friend intends that the staff employed by the Law Society at the centre and in the area committees will be able to assist the new board. That would be a very good thing.
As to the character and composition of the new board, the members will of coure be laymen except for the solicitor and, we hope, the barrister representative. A fear has been expressed in some circles that the members will consist to a considerable extent of retired civil servants. They will, I am sure, be people who are broadly described as "the great and good." Some will come from other professions, some from industry. However, we must bear in mind that the majority will be laymen without experience of the law and of its administration. They will have a tremendous amount to learn and they will have to learn it from the professional lawyers on the board.
I am sure that we were all relieved to hear from my noble and learned friend the Lord Chancellor that it is his intention that the principle of "fair remuneration" shall be applied. Clause 32(6), to which the noble Lord, Lord Meston, referred with some dissatisfaction, goes part of the way towards establishing fair remuneration. However, perhaps I may invite the attention of my noble and learned friend the Lord Chancellor to a document which was issued in one of his predecessors' time, to be precise, on 8th April 1986. It is headed Matters to which the Lord Chancellor proposes to have regard in making the criminal legal aid regulation. I should have thought that what is written there could apply equally well to legal aid and civil cases.
The first paragraph reads:
"The Lord Chancellor's statutory duty is to have regard to the principle of allowing fair remuneration according to the work actually and reasonably done".
It then sets out eight factors. Some of them are included in Clause 32(6) but not all of them are there in quite the way the Bar would hope. If in applying the principle of "fair remuneration" my noble and learned friend applies what was laid down by the department at that time, he will not be going in any way wrong.
Like the noble and learned Lord, Lord Denning, and others in the Chamber, I remember practising at the Bar a good many years before the legal aid scheme came into operation. It meant that many members of the Bar, especially those starting in practice, had a tremendous struggle and did a good deal of work for practically nothing. It also meant that justice was not made available to a very large section of the community—one could really say to the majority of the community. It is a great thing to

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know that this scheme has worked so well and that Parliament on this occasion is being given the opportunity to make it work even better.
4.43 p.m.
Lord Irvine of Lairg: My Lords, every system of social provision can only be as good as its structure and resources. Resources must be efficiently deployed, as the noble and learned Lord the Lord Chancellor emphasised, but the prior issue is the resources made available. So both sound structure and adequate resources are needed. Both are necessary and neither is sufficient in itself.
On the structure and composition of the new board, two out of the maximum number of 17 members must be solicitors. Those two apart, its composition is exclusively down to the noble and learned Lord the Lord Chancellor. No other persons, apart from those two solicitors, with professional or practical experience must be appointed. The remaining 15 are appointments of the noble and learned Lord and are at his sole discretion.
Under Clause 14(2) the board has to decide whether reasonable grounds exist,
"for taking, defending or being a party to the proceedings'".
Surely practising lawyers are best able to decide that. Is it not obvious that a very substantial number, even if not a majority, of the board should have a deep knowledge, based on practical experience, of our machinery of justice? This is particularly so if as the noble and learned Lord the Lord Chancellor told us a little time ago, the board is to make its own proposals for taking on new classes of work. I simply cannot understand how it could ever have been thought right not to stipulate that some members of the Bar must be members of the board. If the board is to be seen to be independent and to enjoy public confidence, it must include in its membership not just experts in finance and management but people whose knowledge of the machinery of justice allows them to know and to say whether what the board is doing is any good.
I gather that the reason for excluding representatives of the Bar is that members of the board will have to make available two days a week. It is said that barristers cannot do that. If two days are really necessary, then I am sure the Bar will make the right people available. Why are the Government starting off with this two-day job description? Surely the ground objective should be that the board must be independent and must be representative—I shall say a word about what I mean by representative in a moment—of all those engaged in the provision of legal services. The job description of board members should be designed to promote that objective.
Is the board to be basically non-executive as distinct from executive? I understand that the answer is yes. The White Paper told us, and the noble and learned Lord the Lord Chancellor has confirmed, that the board will continue to administer the scheme through the existing network of area offices and that existing staff will transfer to the board. If the executive back-up is there, why are two days a week from board members necessary?
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I hope that we can be told in reply to the debate what precisely is to be required of board members and why representation from every major professional area with knowledge and experience of the machinery of justice in practice is not mandatory. I do not say that they should be delegates or representatives of a particular interest group—the professional area from which they may come—but because of their background they bring with them a pool of professional experience from which it is essential the board should benefit if it is to function in the public interest.
I have referred to the Bar, of which I am a member, but by the same standard I ask: just as there is an obligation to have two solicitor board members, why is there not an obligation to have two board members drawn from the CABs, the advice centres and the law centres? These are the people who have detailed practical knowledge of the legal needs of ordinary people and how they can best be met.
I ask about the new board because I am concerned for the independence of the new system and public confidence in it. So I should like next to ask about the Legal Aid Advisory Committee. From 1949 Lord Chancellors have had the benefit of advice from the committee. It consists of lawyers and non-lawyers, eight legal and five non-legal. It has powers only to advise and recommend. It has an eminent membership. In 1985 the chairman complained of a,
"lack of a concerted strategy".
He added:
"Law centres remain in limbo; the need for tribunal assistance is accepted in theory, but must await the release of new resources".
The year before the committee itself had declared:
"There is a need to set up a full system of tribunal assistance now … The failure to act in response to our earlier Reports has had its price: people's rights have gone unenforced, their cases unheard".
Do the Government intend to allow this critical watchdog to survive? We now know that the answer is, "Yes, but only for the time being". That is encouraging, but not if it is to be dissolved after the new board's so-called transitional period. It is also encouraging, so far as it goes, that the Bill requires the noble and learned Lord the Lord Chancellor when making new appointments to the legal Aid Advisory Committee, so long as it survives, to ensure that his advisory committee,
"is constituted of persons having knowledge of the work of the courts and social conditions".
I quote from Clause 33(2). That is fine while this particular committee lasts. But why, I ask, is the Lord Chancellor not required to ensure that his new, permanent Legal Aid Board at least includes a substantial number of persons who likewise have,
"knowledge of the work of the courts and social conditions"?
How can two solicitors possibly be sufficient?
But, most important, I am deeply troubled that the noble and learned Lord the Lord Chancellor has power by order to dissolve the advisory committee whenever he chooses. This is the committee which in 1985 complained that,
"lack of clear ministerial responsibility and direction for legal services is a chronic problem".
I hope that the survival of this committee will not prove to be dependent on its quiescence.

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It has been said from many quarters that the best earnest of the Government's commitment to openness in the legal aid system will be a clear commitment to the permanent retention of the advisory committee. Is the truth that the Government are taking power to rid themselves of what they regard as a meddlesome advisory committee, but which the rest of us see as a guardian of the public interest? Are we to take it that the advisory committee is likely to be dissolved after the transitional period to which the noble and learned Lord referred?
Will the new board be adequately resourced? In recent years the Government have done nothing about what is undisputed—that the administration of the legal aid system by the Law Society has become dangerously stretched because of inadequate government funding. Therefore, I ask: is there to be any underaking that the new board will be adequately resourced?
Next, and crucial, is the question of resources for the advice agencies and the law centres. The 900 citizens advice bureaux have local authority funding of about £14 million a year, while the National Association of CABs has a grant of £7 million from the Department of Trade. About £1·8 million of that goes to the CABs. The CABs have 2,000 paid staff and 12,500 voluntary workers. The independent advice centres—about 250—have a total funding of about £10 million a year, with the bulk coming from the local authorities. There are also about 55 law centres, mostly in the large conurbations.
Initially, much of their funding came from the Lord Chancellor's Department and the urban programme, but that is coming to an end. Here too it is now basically down to local authority funding. About £5 million comes from local government, £1 million from central government, and about £700,000 is earned through legal aid. There are also the other specialist centres—the housing advice centres, the money advice centres and the immigration advice centres.
Everyone with knowledge of this area is aware that the story of the generalist advice centres is of serious, geographically based inequalities. The story of the specialist centres is that in very many parts of the country they simply do not exist. Therefore, I ask: do the Government have a policy for a geographically fair network of CABs, advice centres and law centres? If so, what is it? Do they have a policy for their secure funding, and if so, what is it?
The truth is that they have neither. The great bulk of the funding of the CABs, the advice centres and the law centres comes from local government. Most people in the country, I think, would be astonished that there is so little central government funding, that provision is so haphazard across the country, and that local government is not even under any duty to provide any funding for these bodies. Having no other power, they fall back on a residual power to expend very limited sums in the interests of their area or their inhabitants. That is the 2p rate.
Nor are central government under any duty to fund these bodies. The truth is that these bodies, whose work is vital, have no secure funding at all.
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They are essentially dependent today on discretionary local authority handouts. They are today under continuous threat of closure. In some cases, local authorities are unable to give a commitment to fund for more than a few months at a time. There is simply no coherent strategy, national or local, for the provision of these services, and this Bill does nothing whatever about that. This would seem to be because the noble and learned Lord is content for central government to have no responsibility and leave it to the local authorities who are not even under any duty to provide funds.
Therefore, what it comes down to is that the Government are bringing into being a new board. It will not be seen to be independent. There is no guarantee that the new board will know enough about the machinery of justice even to begin to ensure equal access to it. The watchdog of the advisory committee is likely soon to be under sentence of death. There are no coherent proposals for funding —only a promise of £10 million savings—and emphatically no extension of legal aid to meet the most obvious needs—basically, before the statutory tribunals.
Legal aid is not available for representation before industrial, immigration or social security tribunals. There is no greater denial of justice. I speak with a little experience of the massively complex system of employment and labour law. The legal aid efficiency scrutiny report recommended co-ordinated provision for representation at tribunals. The White Paper said no to that in the feeblest paragraph that can ever have appeared in a state paper. It is so feeble that I quote it. It said:
"It is not clear that publicly funded representation is necessary for all tribunal proceedings. Another approach might be to simplify tribunal procedure where possible in order to render legal representation unnecessary. The Lord Chancellor's Department has recently commissioned research into the effectiveness of representation at tribunals".
I interpose to say that I hope we can hear about this research in reply to the debate. The White Paper continued:
"Against this background the Government does not intend that there should be any general extension of publicly funded legal representation".
I have never in practice witnessed greater unfairness than the legally unrepresented applicant against the legally represented employer in industrial tribunals. This year and last year applicants were unrepresented in over 4,000 contested cases—about 35 per cent. to 36 per cent. of the total of contested cases. These are cases about unfair dismissal, redundancy, sex discrimination, equal pay.
It is a pure myth that tribunal proceedings are informal, or that they could be so that legal representation really does not matter. Procedures are the same as in the High Court, and they always have been. There is examination and cross-examination of witnesses, and a vast amount of legal argument, rightly and unavoidably, because of the complexity of the statutory system which Parliament has laid down, and of case law. There is much more legal argument in the industrial tribunals than in the county court where legal aid is available, and very much more money is often at stake than in the county court. The maximum compensation in ordinary

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unfair dismissal cases is £8,500, plus a maximum basic award of £4,740. In some very special cases compensation can approach £38,000. I shall be interested to hear in the reply to the debate how it is to be argued that publicly-funded representation is not necessary in the industrial tribunals for equal justice to be done.
We on this side will not be impressed by any proposition that research is needed in order to prove the obvious—that legal representation is necessary. The sentence that I read from the White Paper about simplifying the tribunal procedure to make legal representation unnecessary is either ingenuous or disingenuous. I would be the first to recognise that lawyers are not the most popular breed and that some might welcome their demise; but a complex legal system without lawyers is as convincing as the Cheshire cat without the grin.
We are ready to congratulate ourselves that our legal system of justice is the best in the world. It should therefore cause no surprise that ordinary people have a deep desire for effective access to this superior system. They feel acute frustration from the denial of legal representation, when the other side is legally represented, before tribunals adjudicating on basic rights in a complex system that their Parliament has laid down.
The Bill does not begin to succeed in concealing the fingerprints of the Treasury—they are all over it. It is only hard undertakings about resources that could persuade otherwise. We ask this question: do the Government see the enjoyment of basic legal rights as a major social goal, with citizens having effective access to their rights by knowing them, by being encouraged to claim them and by being legally represented when they claim them?
In opening the debate, the noble and learned Lord the Lord Chancellor asserted the fact that the Government must have a central role in any service that distributes public money. We respectfully agree with that assertion. We want central direction and strategy. Can the House be told why there is no national strategy for a fair distribution and secure funding of the CAB's, advice centres and law centres? Until undertakings about strategy and resources are made, the fear on his side of the House will remain that this Bill will do nothing to prevent the reduction of yet another social service to a third-class ambulance for picking up the poor.
5.3 p.m.
Lord Ackner: My Lords, if my noble and learned friend the Lord Chancellor had the gift of immortality and permanence in the office which he adorns, I would express none of the anxieties which I now express. If, contrary to reality, I could have made those two happy assumptions, my personal knowledge of his outstanding fairness and independence would have totally convinced me of his ability to withstand and not to be overborne by what my noble and learned friend Lord Rawlinson of Ewell referred to as the "juggernaut of the Treasury".
That phrase was used in a speech made in a debate some 18 months ago and I believe that my noble and
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learned friend the Lord Chancellor attended. It was initiated by the noble and learned Lord, Lord Benson, the distinguished chairman of the Royal Commission on Legal Services which sat from 1976 to 1979. The purpose of that debate was to call attention to the concern about the provisions for criminal legal aid; and, secondly, to the need to consider ways of improving machinery for negotiating levels of remuneration in the future. The debate took place against the background of what my noble and learned friend Lord Templeman, a member of that Royal Commission, accurately referred to as:
"the recent unhappy and successful litigation by the profession against the noble and learned Lord, the then Lord Chancellor [which] demonstrated that the complaints of the profession were well-founded".
Your Lordships will recall that the profession—that is both the Bar and the solicitors—brought proceedings for judicial review against the then Lord Chancellor, alleging that he had failed to comply with his statutory obligation. That statutory obligation is to be found in the Legal Aid Act 1973, Section 39(3) which this Bill proposes to rescind. The material words are as follows:
"The Lord Chancellor in making regulations … as to the amount payable to counsel or solicitor … shall have regard to the principle"
and I stress these words:
"of allowing fair remuneration according to work actually and reasonably done."
The words are not limited to "fair remuneration", but they are:
"fair remuneration according to work actually and reasonably done".
In his final observations at the conclusion of the debate, the noble Lord, Lord Benson, said that it had been a curious one because usually conflicting views are expressed. However, he said that in the debate
"the whole House was looking one way";
namely, to the fulfilment of the recommendation of the Royal Commission that an independent review body should be set up to advise—and I emphasise the word "advise"—the Lord Chancellor on all forms of legal remuneration. In agreeing with that recommendation, my noble and learned friend Lord Elwyn-Jones said:
"A state of near crisis has arisen in the criminal legal aid field, and sadly in the problems of determining what should be fees for criminal legal aid."
He added:
"Present arrangements are no longer sustainable".
In that debate my noble and learned friend Lord Hailsham (the then Lord Chancellor) said in terms that he was:
"wholly wedded to an independent and vigorous profession, fairly remunerated."
He further said that he:
"wholeheartedly accepted the principle of fair remuneration according to the work reasonably and actually performed."
Those are the very words embedded in the statute.
The unanimity of your Lordships at that debate has been totally ignored. There is to be no independent review board to advise the noble and learned Lord the Lord Chancellor. My noble and learned friend Lord Hailsham's encouraging observation at that debate that he "was not

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unfriendly" to the suggestion of such a body to advise his department, has a hollow if not a mocking ring in the context of this Bill. All this, despite the fact that such bodies exist to provide independent advice to the Government in relation to many other activities and professions; the senior Civil Service, the Armed Forces, the senior judiciary, doctors, dentists, nurses, policemen, etc.
However, I emphasise that far, far worse is the fact that the statutory obligation of my noble and learned friend the Lord Chancellor (which I have quoted) is to be removed. In future, the profession is to be left totally unprotected by the courts because the courts cannot compel the proper compliance by the Lord Chancellor with a statutory duty which no longer exists. By removing that vital statutory obligation, one cuts off such access to the courts and that is the reason why it has been done.
To those who would ask why that protection is necessary, I would answer quite simply this: because the whole quality of justice in this country is at serious risk. I am quite satisfied that I speak for the entire judiciary when I say how much we depend for the proper despatch of our business upon the competence, industry and integrity of the profession; and if those standards are reduced, the efficiency and the very quality of justice which the courts administer is bound to decline. Cost-cutting can be counter-productive. This is what has impelled me to make these timid and deferential comments.
The unanimous support of your Lordships at the debate to which I have referred for an independent advisory board was based upon the generally accepted view that the noble and learned Lord Chancellor of the day, however firm his belief that a strong and independent profession was vital to the efficient administration of justice, would be unable to withstand the power and the parsimony of the Treasury.
Your Lordships' House had the great benefit of hearing in that debate the views of the noble Lord, Lord Bancroft, a former Permanent Secretary to the Treasury, who, in relation to the current arrangement, which I remind your Lordships contains the statutory obligation upon the Lord Chancellor to pay a fair remuneration for work actually and reasonably done, said:
"To call it a system would strain both language and credulity. It places the responsible Minister and his officials in a totally impossible position, by interposing the say-so of the Treasury jack-in-office between them and the professions … It allows of no rational process of argument, let alone negotiation. It imposes a government incomes policy, the existence of which is then promptly denied." [Official Report, 4/6/86; col. 991]
He added that we should,
"end up with the provision of a second-class service to those of our fellow citizens whose circumstances require them to depend on publicly funded legal services."
In saying that that would be "a truly dreadful legacy" he repeated that he spoke "as a consumer".
The noble Lord, Lord Benson, said that the Lord Chancellor's officials responsible for the pay negotiations, were,
"puppets dancing to the strings of the Treasury behind the curtains." [Col. 982.]
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My noble and learned friend Lord Griffiths, who I am delighted to see is present in this debate, put the position in a sentence when he said:
"The Lord Chancellor's department was working under the shackle of the Treasury." [Col. 1001.]
I have been at pains to rely upon the views not only of distinguished lawyers but of laymen whose long experience enables them accurately to assess the reality of the relationship of the Lord Chancellor's department with the Treasury. I have not ventured my own views. Maybe I shall have an opportunity on another occasion. It is a relationship which has been the subject of a recent and very important lecture, prominently reported by the press, given by Sir Nicholas Browne-Wilkinson, the Vice-Chancellor—that is, the head—of the Chancery Division of the High Court. Having commented that,
"justice is not capable of being measured out by an accountant's computer",
he then went on to say this:
"The old machinery regulating the administration of justice no longer ensures the independence of that system from executive control. Judges are sitting in an environment wholly determined by executive decision in the Lord Chancellor's department, which in turn is operating under the financial constraints and pressures imposed by the Treasury. The yard stick for decision taking is financial value for money, not the interests of justice. What constitutes value for money is being determined by the executive, not judicial decision. The Lord Chancellor's own position, representing as he does simultaneously both the independent judiciary and the interests of Government, is becoming more and more difficult since the price to be paid for obtaining funds for the administration of justice is dependent on satisfying the Treasury that any particular course represents, in their terms, value for money"
The existence, strength and vitality of an independent legal profession, and public confidence in it, are fundamental to our freedom under the law. I claim—although I should like to—no authorship of those words. They are to be found in Cmnd. Paper 9077 of November 1983. They must have been carefully thought out, because they are the first response by the Government, after four years of thought, to the Benson Commission's report. Clearly there can be no confidence in a legal profession which provides for those who lack means a second-class or a second-rate service.
I earnestly hope that the statutory obligation imposed by Parliament some 13 years ago upon the Lord Chancellor the material terms of which I have quoted will be re-enacted on the initiative of the Government. Its omission in the teeth of paragraph 48 of the White Paper, which stated,
"In setting rates the Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done",
will earn for this Bill the short title of the unfair remuneration Act.
As I have sought to emphasise at the opening of my observations, nothing that I have said reflects, or is intended to reflect, any criticism upon the present holder of the great office of Lord Chancellor. His recent appointment has made the winter shorter for all of us. The concern which I voice is concern motivated by an anxiety lest my noble and learned friend the Lord Chancellor should put upon himself a Treasury straitjacket which will prevent his exercising his very considerable talents. That would be to the great detriment of the public interest in the administration of justice.
5.17 p.m.
Lord Sudeley: My Lords, this Legal Aid Bill is likely to dictate the character of legal aid for the next 15 years, in the same way as its predecessor of 15 years ago did, and I should like to concentrate on just one aspect of legal aid. The White Paper states that the success of legal aid has largely been due to the efforts of the Law Society. But now I see in the literature of the Law Society on the Legal Aid Bill that anxiety is expressed that for the sake of the good administration of legal aid there will be not enough solicitors who are willing to concentrate on this area; rather that they may neglect it for the sake of privately paid work.
So I hope that it may not be out of place for me to give a quick outline of some of the difficulties experienced over legal aid by solicitors at the grass roots level. On the whole, my observations will be of a general character, though in one or two places I refer to a particular solicitor who has practised in the East End and to whom, for purposes of convenience, I will refer as Solicitor X.
First, there are the problems of tracing the location of clients held in custody rather than in prisons. This applies particularly where a solicitor applies to a judge in Chambers from a magistrates' court for bail and then has to state the present place of custody of the client. While much help is given by the police, it may still be very difficult to do this when clients can be moved on the hour from one place to another. While solicitors can use agents, they may themselves often have to travel long distances and then they are obliged to report in great detail to the Law Society as to why they have done so.
Then there are the various kinds of assistance available under legal aid. A client can consult a solicitor for up to half an hour for £5, which must, on any account, surely be absurd, and thereafter a solicitor can hardly begin to advise a client or to write letters before the £50 limit under the green form scheme has been reached; and so for an extension he has to send back a requisition form. For the filling in of these forms with the figures involved a good deal of time which is unremunerated is required. Under the Bill it is proposed that much of this work should be done by citizens' advice bureaux; but can they cope with this kind of work when over the years they have already referred many cases back to solicitors?
Then there are the magistrates' court cases. Here in particular, owing to the delay caused by unrepresented defendants, magistrates are very much in debt to solicitors. Forgetting solicitors, the Police and Criminal Evidence Act introduced the 24-hour duty solicitor scheme where solicitors so selected speak to clients through the wickets of the gates of their cells in the case of clients who are aggressive or frightened or who may have no idea why they are there.
Since under the duty solicitor scheme no scheme may be worked out for a particular solicitor to act at a selected time, a solicitor may find himself on constant call. For that kind of work he is paid £2950 an hour, and for remuneration he has to fill in a complex form for the Law Society, for the filling in of which he is unremunerated.
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Then there is matrimonial work. Full legal aid is available for ancillary proceedings but at the end of the day a full bill has to be sent to the Law Society after it has been drawn up by a court's draftsman and submitted to the court and taxed. So it may be some while before the solicitor is paid. While there is a scheme here for payment on account, when solicitor X's firm was paid in that way on one occasion recently only £7,000 out of £30,000 was paid. Then there are the High Court and county court cases. Here again, there may be months of delay before solicitors receive payment. Elaborate bills are submitted for taxation, and after solicitors have agreed to the reasonableness of the taxation an allocator has to be obtained.
Finally, in the Crown Court there is no system of payment on account and elaborate bills have to be prepared for taxation. Solicitor X found in one court that taxation was done by civil servants rather than by associates who have some form of legal knowledge, and in another court solicitor X found that no bill over £1,000 has been or is being taxed for a period of four months. Naturally, to remove all or some of the difficulties that I have outlined would cost more money, but it is important to remember when considering whether the funds allocated for legal aid are sufficient the great increase in the amount of work that has had to be done on account of legal aid owing to the increase in divorce and also the increase in criminal activity.
5.22 p.m.
Lord Parry: My Lords, it used to be a maxim that in Parliament one never apologised nor explained. I reject the maxim and apologise to the House that I missed the speech of the noble and learned Lord the Lord Chancellor and that of my noble and learned friend Lord Elwyn-Jones. That was unavoidable, but I apologise.
I shall explain too why I rise to speak as a layman and with trepidation in a House that is obviously particularly crowded this afternoon with lawyers. I rise because I have been asked to do so to reinforce some of the points already made in this debate from all sides of the House and notably in the speech of my noble friend Lord Irvine of Lairg, who made such a forceful contribution a few minutes ago.
I also had the opportunity of seeing the speech made by my noble and learned friend Lord Elwyn-Jones, who helped me by pointing out the passages in his speech that might otherwise have arisen in mine. He reassured me that what I had to say was not redundant, because I am as anxious as the members of the legal profession in this House have shown themselves to be that those who are not of that profession are not frightened away from it nor priced away from it. Those of us who have from time to time access to the law know that even for the articulate and even for those who are used to going into offices in high places it is nevertheless a frightening experience to be faced with the law. Lawyers themselves, although they do not recognise it, are frightening individuals too.
I was asked to contribute to the debate by the South Wales Legal Services Steering Committee,

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which is anxious, although it need not have been, that certain points already made in the debate should he reinforced. That committee is in favour of the reform of legal aid, directed towards public and equal access to justice regardless of means. Obviously I support that as much as anyone else speaking in this debate. We are all in favour, as are the members of the committee, of properly developed legal services. No lawyer would claim that all lawyers are equally good. There are bad lawyers; there are inefficient lawyers; there are lax lawyers, as there are very good and very caring lawyers and as there are such people in all professions.
I also wish to say that I support an approach which recognises the consumers' interest and involvement. The noble and learned Lord, Lord Denning, pointed out both sides of this argument—both the use and the abuse of the system. He very properly drew our attention to that matter.
When people seek legal aid they are most likely to benefit from advice given to them in advance, even from the opportunity of seeing the lawyer, who is a busy professional man, heavily occupied. It is therefore hound to be a good thing that the regional boards are given every opportunity to present themselves to people in need of such advice as they have to offer. It is absolutely essential that they should be properly supported, that they should have secretariats and that they should be able efficiently to represent the law to those people who are going to get advice on it from the proper sources—from lawyers and from advocates themselves.
I shall not detain the House by going over things that have already been said but I wish to quote from the Royal Commission on Legal Services in Scotland, which stated in 1980:
"To recognise a potential legal solution to a problem the citizen must have some knowledge of the legal rights and responsibilities involved … Many people are reluctant to enter a solicitor's office unless they are sure that they have a real and important legal problem, but they are less reluctant to approach more informal advice agencies".
I believe that despite the instances quoted of abuse of the system there are infinitely more people in this country of ours who are frightened off seeking the proper advice and getting the proper advice, and who are priced away from that advice, than there are those who are ever likely to abuse the system.
I make my own plea as a layman, as one whose mother would be astonished if she had known that her son was going to stand up here and talk about the law in the presence of four former Lord Chancellors and innumerable judges. I add my plea that in dealing with this Bill we ensure that the interests of the consumer come at least as high as those of the lawyer and that those who need legal advice get it through to the end of their complaint in this system of ours.
5.28 p.m.
Lord Griffiths: My Lords, I am sure that all in the House would wish for an efficient legal aid system. On the civil side, it brings great benefit to the less fortunate members of society, and, on the criminal side, it is only right that where the state chooses to accuse, the state should take the responsibility of seeing that there are adequate facilities for a defence.
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That can only work if the system has the support of competent members of both branches of the legal profession.
I venture to speak in this debate because I am anxious that the form of any future legal aid scheme should be such as to avoid the lamentable crisis of confidence that occurred between the members of the legal profession, especially the Bar and the Lord Chancellor's department, over negotiation of fees of which my noble and learned friend Lord Ackner has already spoken. I do not wish to go over old ground.
I am happy to say that that unhappy experience is behind us. I know that under the aegis of my noble and learned friend the Lord Chancellor negotiations are now proceeding in a very different atmosphere. I understand the dismay of the Bar when it read of the shape of the present Legal Aid Bill. There are three particular matters upon which I wish to dwell very shortly. I hope that my noble and learned friend the Lord Chancellor will think that he can accommodate and reassure the Bar upon these matters.
The first and most obvious matter is that no provision is made for members of the Bar to be on the Legal Aid Board. That seems a most extraordinary omission. After all, the Bar knows how the legal aid system works better than most. To turn our backs on that experience is a most extraordinary omission. I accept, as I have heard from my noble and learned friend Lord Elwyn-Jones, that the Lord Chancellor proposes to nominate members of the Bar to serve on the hoard. However, it is a statutory obligation in Scotland. I do not see why it should not be a statutory obligation in this country; and I am sure that it should be.
The second matter is the question of remuneration. In a nutshell, the crisis concerning negotiations on that matter was that the Bar, as it perceived the situation, was negotiating with people who had no power to negotiate because the Lord Chancellor's officials were not under the dead hand but in the live grip of the Treasury. They said, "We hear what you say. We have no money to pay you any more". That was a wholly fruitless exercise. It was because of the fair remuneration clause that the Bar was able to take that matter to judicial review. There is a natural suspicion that the fair remuneration clause has been deliberately removed from the Bill to prevent the profession having access to the courts. I do not labour that point. My noble and learned friend Lord Ackner has explained it better than I could.
I was very reassured to hear the Lord Chancellor's explanation and I am sympathetic to that. After all, "fair" is a very difficult word to define. It depends very much on context. I think that it is much better to spell out what we mean by fair so that everybody can understand what is being talked about. As I understand it, the Lord Chancellor has told us that he has now spelled out in the clause those considerations which should be taken into account when considering the concept of fair remuneration.
The difficulty lies in the drafting. It is not surprising that the Bar is worried. As the clause is drafted, those considerations, which I take it are intended to be the alternative to fair remuneration, are not matters which must be taken into account but matters which

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the Lord Chancellor is entitled to take into account. I am bound to tell the House that I would rather negotiate with someone who has to be fair than with someone who is entitled to be fair.
I suggest to the Lord Chancellor that the clause would be very much improved if he deleted the words "be entitled to" so that it then read:
"The Lord Chancellor, in making regulations… shall have regard among the matters he considers appropriate to".
There then follow the matters which should properly be considered when dealing with fair remuneration. That would give the Bar the safeguard which it feels has been removed.
Lord Renton: Perhaps the noble Lord will allow me to interrupt. I fully agree with him. However, I wonder if he will go a step further and say that the words "fair remuneration" might well come into the clause.
Lord Griffiths: I should have no objection to that. However, I should have to think more about the drafting. The drafting I have just proposed is a simple deletion. If fair remuneration were re-introduced in a phrase such as,
"fair remuneration which shall be taken to mean"
or some such phrase, I should be more than content.
The other matter which concerns me is that the legislation is absolutely peppered with Treasury constrictions on expenditure. I consider it to be absolutely outrageous that the Lord Chancellor of England is not entitled to approve the expenses of a board member without first getting Treasury consent. However, that is spelled out in Schedule 2 and also in terms in Clause 13. It is only one example. A more important feature appears at the end of Clause 32(11). The Lord Chancellor is not entitled to make any regulations either which affect remuneration or the availability of advice or assistance without Treasury consent.
I accept that we are looking at the available cake and that various departments will be competing for their slice. Naturally, what is spent on legal aid will have to be balanced against what is spent on the National Health Service. We have had only too lively a reminder of that earlier this afternoon and it must be taken into account. However, I think that the day will come when the Lord Chancellor in the interests of the administration of justice, will be fighting his corner in the Cabinet for expenditure, and he should not have to get Treasury approval before he puts forward any regulations. Surely the Lord Chancellor is to be trusted not to put forward regulations which wreck government policy. I should have thought that those matters were bound to be discussed in Cabinet.
What we see in the legislation time and time again—from the ridiculous on expenses to the far more important on the nature of representation to be allowed—is the grip of the Treasury. It reinforces the fears of the Bar that future negotiations may prove abortive because those negotiating—it will not be the Lord Chancellor who negotiates but rather his
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officials—will be hamstrung by Treasury constraints and therefore not able to listen to reasonable argument.
5.38 p.m.
Lord Gifford: My Lords. I begin by declaring an interest as a barrister who gets a high proportion of his income from the Legal Aid Fund. I also apologise, particularly to the noble and learned Lord the Lord Chancellor, in that because of that very occupation I was not able to hear his introduction of the debate.
This is a very important Bill for the quality of justice in our society because it will set the tone for the provision of legal aid for the rest of the century. It is put forward against a background of rising legal aid costs. It needs to be said that legal aid costs are not rising because lawyers are becoming more grasping or citizens are becoming more litigious. They are rising because of the need of people for justice, particularly in terms of the trends of our present society.
For instance, the more there is a squeeze on the expenditure of local authorities and the more that people suffer unemployment, the more there will be social stress. The more homes we have, the more there will be housing below the statutory minimum conditions. With more redundancies, there will be more juvenile crime and more problems over social security benefits. Therefore, in every case there will be more need for good advice and for access to justice in order to deal with the effects of those conditions. Therefore, I believe that we must take stock of the present state of legal aid to see where it needs to be improved, and then see if the Bill achieves that object.
I believe that the original Legal Aid and Advice Act of 1949 was a great pioneering measure of the post-war Labour Government. It was based upon two very important principles, the first being that no one should be denied access to justice through lack of means. By and large, in the way in which the scheme developed it was able to secure those goals. However, there are serious gaps and I wish to draw attention to three of them which are not remedied in the present Bill.
First of all, there is no provision for legal aid for the representation of the next-of-kin at a coroner's inquest. When someone dies in violent or unexplained conditions and the family is devastated the coroner's inquest provides a valuable means of inquiring as to the cause and investigating whether similar fatalities can be prevented. Time and again the distraught family is not able to retain a lawyer to ask the questions that need to be asked at the inquest in order for a fair inquiry to be made. That is the first omission that ought to be rectified.
Secondly, there is an exception under the present law and in the new Bill for defamation proceedings. I have never understood why it should be considered that the reputation of a poor person should be less in need of defence than the reputation of someone who has the resources to tackle the press when it defames someone's reputation. Thirdly, as my noble friend Lord Irvine mentioned, there is the lack of legal aid for tribunals. Industrial tribunals, immigration tribunals and certain other tribunals deal with

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matters as complex, and difficult to understand and as much in need of legal interpretation—matters which are vital for the interests of the individual and just as important—as do many county courts, for which legal aid is available.
It is unnecessary to grant legal aid for every case because clearly there must be some kind of screening system so that legal aid is available when a lawyer's help is needed. For instance, that situation may arise in the determination of complicated questions before the social security commissioners. But that omission has not been rectified.
The second important principle that was enshrined in the original scheme was that the representation and the advice given under the scheme was to he representation by the lawyer of the client's choice. It is that principle which differentiates the British scheme from those schemes which are operated in many other Western countries in which there is a first-class and a second-class service. In many countries of Europe those who cannot afford to retain a private lawyer have to depend upon some kind of assigned lawyer appointed by the court. There is a stigma and a feeling of substandard and second-class service attached to it.
One looks at the provisions of this Bill to see whether that fundamental principle is to be enshrined. There are powers in Clause 3 of the Bill which give grounds for serious concern. The powers of the board are described in the widest possible terms. Under Clause 3(1),
"the Board may do anything—
… which it considers necessary or desirable to provide or secure the provision of advice, assistance and representation".
In the next subsection,
"the Board shall have power—
… to enter into any contract".
It is clear that what is intended is contracts with other agencies for the provision of advice or representation.
There is no indication at all in the Bill as to how this provision is intended to work. There are some areas where one can see that it is important for the board to be able to make arrangements with citizens' advice bureaux and similar bodies. Are these arrangements to be additional to the existing right to obtain legal aid from a solicitor, or are they to be alternative?
I should deprecate any contract made by the board which provided for some exclusive arrangement so that a citizen had to go to the local advice bureau or the local public defenders scheme, or whatever it may be. That would lead to a differentiation between a first-class and a second-class service. I hope that the noble and learned Lord, if he has not already done so, will indicate with what bodies and under what kind of terms it is intended that these contracts should be formed.
More generally, the Bill fails to respond to the great advances that have been made in recent years in the provision of legal services to the public. In the 20 years that I have been in practice there has been an upsurge of idealism among lawyers. There are hundreds of lawyers both in public agencies and in
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private practice who are dedicated to serving the needs of those who are most in need of justice. Several new forms of agencies have grown up in that period and I am most anxious to know what their future is to he under the new dispensation in this Bill.
As my noble friend Lord Irvine mentioned, there are law centres. The first law centre was started in North Kensington in 1970 and there are now over 50 of them. Their work has been acclaimed by all political parties and by the Lord Chancellor's Advisory Committee. They have pioneered new ways of defending the rights of groups of people who would not easily have access to the solicitors' normal private practice arrangements. Yet their future remains in doubt and their funding in a mess. They are largely dependent upon local authorities who arc themselves squeezed for funds. Year after year the advisory committee has appealed to the Lord Chancellor to take responsibility for ensuring that law centres are centrally funded. Like my noble friend, I ask: what is the policy?
Secondly, at the next tier, which is the regional tier there have been the kind of regional legal services committees about which the noble Lord, Lord Parry was speaking. There is one in particular in the North-West which started in Manchester. It extends through the the North-West and brings together lawyers of every variety, judges, solicitors, advice workers and a number of other lay agencies.
Other schemes have been put forward for South Wales and the North-East, but they have no funds. They are capable of throwing up stimulating ideas, which would be very valuable for the work of the new board, about how legal services could be better co-ordinated and arranged. Again, I ask the noble and learned Lord to say whether there is a policy for the funding and continuation of the work of those regional legal services committees. If there is, what is it?
Thirdly and finally, there has been growing up around the country in deprived urban areas a number of private legal aid practices comprising local nieghbourhood solicitors who are finding it desperately difficult to make ends meet under the system of legal aid. The noble Lord, Lord Sudeley, mentioned examples. Much has been said about the need for fair remuneration for barristers. Barristers manage to remain in business, but solicitors in legal aid practices around the country are being driven out of business because with all the paper work which has to be done and the case by case claims, they cannot make a proper living. I ask the noble and learned Lord to pledge that it will be possible for a neighbourhood solicitor's firm, without being charitably subsidised for its work by private clients, to be able to remain in business to serve its neighbourhood area.
Those are some of the questions to which this Bill should address itself and which it does not answer. I hope that in Committee we can improve it so that in the difficult years that lie ahead it can stand as a measure which will ensure justice for those who are denied it.
5.49 p.m.
Lord Mishcon: My Lords, in a debate about a subject which possibly can be summed up by the Law Society maxim: "There is no justice without legal aid", I hope, in a short winding up speech, to be able to imitate the temerity and the deference of the noble and learned Lord, Lord Ackner, in what I thought was a most notable speech.
I believe that there has been a predominant note in this very interesting and informative debate, in which so many experts from the legal profession have spoken but to which there has also been a most valuable contribution from those who are knowledgeable in matters of legal aid but who are not members of the legal profession. There is a fear of this growth of subordinate legislation. Some primary legislation seems to omit more than it contains. I believe that the House, in a matter as vital as is legal aid to the social structure of our country, will be especially sensitive about the emphasis on subordinate legislation.
In the course of this debate it has been said that there are 56 powers granted to the noble and learned Lord the Lord Chancellor under this Bill, all of which will be exercised by regulations. The noble and learned Lord, Lord Denning, may be frightened of regulations which appear to be voluminous. I am much more frightened of regulations upon vital matters of principle which go through on negative resolutions. In my humble submission, volume is not as important as is the principle that Parliament legislates and legislates when it knows what it is doing. That is exactly what happend in the previous legislation. In the 1974 Act one can read the directions in regard to legal aid, word for word: where legal aid is to he given and all the principles are laid out. In this Bill, which takes the place of the 1974 Act, we are met with powers of which we know nothing. They are to be regulations placed before the House, in the main for acceptance under the negative resolution procedure.
The noble and learned Lord in his very clear and lucid introduction to this Bill made a reference to the first Act of 1495. If I may be allowed to correct the noble and learned Lord, Lord Denning—which I could never do on the law but can do on history—that was during the reign of Henry VII. If Henry VIII had had the benefit of legal aid, he would have exhausted the fund in no time at all.
The benefit of the 1495 legislation as the noble and learned Lord might have noted, was that although it contained only one clause, at least the nation capable of reading that one clause knew what it was providing. I hope that the noble and learned Lord can steer a Bill through this House which has exactly the same effect; namely, that there are clauses which we know about and clauses which we can pass.
Is this just a theoretical exercise in what Parliament ought to be doing in legislation? In the course of this debate, I think something a little more insidious arose to the reaction that Parliament ought to have to legislation of this sort. Time and again the fist, not exactly mailed but rather exhaustive and deleterious,
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of the Treasury was seen as being the inspirer of future regulations that come before the House in this way.
I ask the noble and learned Lord—and he knows that I do it with the utmost respect—on behalf of Parliament and in particular on behalf of these Benches to be wary of regulatory powers by means of which Parliament would make him very much more powerful in matters relating to this vital issue of legal aid. He is the one who should have the discretion and not the Treasury working behind him in his department. That is not to be disrespectful of the Treasury. The Treasury has its job to do and its job is to manage the budget of this country a little more favourably than that of the United States of America at the moment and to see that there is not a huge deficit and that the country can afford to pay for services. That is all very right and proper. However, it is Parliament that decides on priorities. It is the nation that, through Parliament, seeks to deal with priorities in social work. It is not the Treasury's job.
My noble and learned friend Lord Elwyn-Jones made this very eloquent plea in his speech, that we must know, and we ask the noble and learned Lord the Lord Chancellor to tell the House, what sort of regulations are coming out of this Bill. May we please know that before the Committee stage—by letter if it cannot be by any other means—so that at Committee stage we know what we are dealing with and whether in fact the principles that I believe all sides of the House stand for are or are not being met.
I could continue to deal with a great number of questions which I put down on a piece of paper to ask the noble and learned Lord the Lord Chancellor. I ask him only a few of them because the time is late and I believe that the House wishes to hear the reply of the noble and learned Lord to this very interesting debate. He will know that his immediate predecessor, the noble and learned Lord, Lord Havers, of whose company we had the privilege earlier in this debate—we well understand why he has had to leave debates early on several occasions—said in the Law Society when we are dealing with the membership of the Legal Aid Board as suggested by the White Paper (and nobody objects to the setting up of that board providing its composition and powers are all right) that the members would include those with particular experience as providers of advice and consumers of legal services, those from the regions and those with knowledge of the disadvantaged sections of society.
That is exactly what was pleaded for from many parts of your Lordships' House in the course of this debate. I ask the noble and learned Lord whether he agrees with that definition of those who ought to constitute this new board.
On contracting out, I ask the noble and learned Lord to assure the House, and certainly the people of this country, that there is not to be any question of invitations to tender so that the people who put forward the lowest prices for the contracts for carrying out these services are the ones who are selected by the Treasury, in its advice to the noble and learned Lord's department, as the sort of people who ought to be given the contract because they have agreed to do the work very cheaply.

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On the question of the Legal Aid Advisory Committee, many speeches were directed towards its eventual survival and, as I understand the noble and learned Lord, he said in his introductory speech that the matter would be under review about one year after the new board had begun to operate. Can he tell the House what would influence him in deciding that the Legal Aid Advisory Committee should no longer exist? What would influence the exercise of his power? What would be the criteria in his exercising that power to do away with the Legal Aid Advisory Committee?
I thought that the speeches made on remuneration fell more properly from those who were not directly to benefit from any question of remuneration. That is why I found the speech of the noble and learned Lord, Lord Ackner, with all his experience, to be so forceful. I do not intend to participate in any plea. I say this only in regard to the Bar and the profession of which I have the honour to he a member. Competition now exists for those with intellectual abilities in the fields of commerce and industry. If those brains are not to be taken away, in their majority, from a very fine profession—and no lack of popularity will ever make me think it is anything other than a very fine profession—and if we are not to lose those young men, they have to be encouraged by knowing that the remuneration they receive for carrying out this vital work in support of justice in this country will be a fair and decent reward for their labours.
I have made speeches in this House about the Crown Prosecution Service, and others have done so, too. We have pleaded for decent remuneration so that the quality of the service in this vital part of what the state provides shall be kept up to its appropriate standard. Some of us know that there are areas in the country where that standard is at present lamentably low; and I speak with a full sense of responsibility. It is lamentably low because we are not encouraging the right people. It is upon that aspect that I wish to dwell and not on any other aspect when I deal with this question of remuneration for the profession on legal aid. I do not intend to keep the House any longer.
6.3 p.m.
The Lord Chancellor: My Lords, we have certainly had a very interesting and full debate on what I regard as an extremely important Bill. I am grateful to all noble and noble and learned Lords who have taken part and who have expressed their views. I assure the House that those views will be very much taken into consideration.
In seeking to sum up the debate, I cannot hope to deal with every point raised, but I should like to cover the main ones. First, I clarify a little the matter raised by my noble friend Lord Renton. It is definitely intended by this Bill to set up a new Legal Aid Board. It will be no shadow but a reality, with statutory powers and duties as set out in the legislation. However, to begin with, it will have only the responsibilities for legal aid administration which the Law Society presently carries; that is, basically, the administration of civil legal aid, and certain rather small ancillary matters attached to that, as well as the administration associated with it.
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At the moment it has no responsibility for criminal legal aid. Nor has it responsibility, for example, for assessing the means of those who apply. It is contemplated by this Bill that the Legal Aid Board set up with those responsibilities at the outset may have the responsibilities extended to cover criminal legal aid and other fields so that, in that sense, it is an enabling Bill.
That brings me to the second point. As has been said by several noble Lords, in this Bill there are provisions for a good number of regulation-making powers. That is nothing new in legal aid and the noble and learned Lord, Lord Denning, has held up the present arrangements. The situation is that the present arrangements carry a great number of matters in delegated legislation which are important but not immutable. One hopes that the basic framework is set by the statute and that adaptability and development can take place by the use of regulations. That is the purpose of having these regulation-making powers.
I think I am right in saying that, generally, legal aid regulations laid in the past have often been uncontroversial. There is no reason why the time of this House and the other place should be taken up by my explaining what your Lordships already know on matters about which your Lordships have no questions or concern. Therefore, it seems a rather inappropriate step to make all regulations under this Bill subject to the affirmative procedure. Accordingly, up to now we have believed that the correct line to take is to make the regulation-making power subject to negative resolution so that if there is any matter of concern either here or in another place about a particular proposal it can be raised and debated. One of my earliest recollections of being in this House is of the noble Lord, Lord Mishcon, raising a matter of that kind in relation to the procedure and forms available in the High Court of Justice.
Using the negative resolution procedure is economical of parliamentary time while at the same time giving the opportunity to raise any matter of real moment which your Lordships or Members of another place think appropriate. That is the principle upon which the Bill has been drafted. I shall be entirely open to suggestions put forward in Committee that a regulation-making power is of particular significance and, exceptionally, requires the affirmative resolution procedure. These are matters for the Committee stage and I shall be happy to consider them at that time.
Perhaps I should add, on that subject, that I do not expect to have the regulations in draft before the Committee stage. In a sense, that would be putting the cart before the horse. The regulations will exercise powers given under the legislation. Until one knows with reasonable confidence what the powers are to be it is a useless waste of the scarce resources of my department to try to formulate regulations in advance. I may be able to give some idea of what I have in mind for some of the regulations, many of which will be continued from the present system.
The suggestion was made during the debate that the Bill has been drafted with the objective of cost-

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cutting. Obviously, as the noble Lord, Lord Gifford, said, the cost of legal aid to the taxpayer is rising in rapid steps. I accept, as he said, that that is in part due to circumstances that are unfortunate; for example the rise in crime. Nevertheless, it is a substantial public responsibility to fund this service. Legal aid competes with other public responsibilities, as my noble and learned friend Lord Griffiths said. We were forcibly reminded of that earlier this afternoon in Questions. There is competition for public funds and the Government have to take account of that.
I come next to remuneration and the speeches of my noble and learned friend Lord Ackner, and others, on this matter. In a previous statute there was a provision, with regard to fair remuneration, for work actually and reasonably done. Whenever you quote the full phrase it is apparent that it comes from legislation dealing with the taxation of a particular case, because you have to have work actually and reasonably done before you can apply it and make it subject to this particular test. These regulations are intended to set levels of fees for work to he done but not yet done.
I was very concerned about the appropriate form of this clause, as I think your Lordships may appreciate, when coming to the present office in the circumstances that have been narrated. I think, if I may say so, that my noble and learned friend Lord Ackner, with his customary skill, has put his finger on at least one of the problems of the previous system. Quoting from the noble Lord. Lord Bancroft he said that it was not one capable even of rational argument—never mind a process of negotiation. This is precisely what I seek to alter and make susceptible of rational argument and proper negotiation. I wish to try, with the aid of your Lordships, to isolate the factors that have to he taken into account in order to reach what would be regarded as suitable remuneration. What are those factors?
I should like to take up the point raised by the noble Lord, Lord Gifford, about legal aid practices, sometimes in rather remote and deprived areas. When considering the cost of providing the services, the Lord Chancellor is entitled to take account of variations in circumstances. My noble and learned friend Lord Griffiths understood this approach and, I think it would be fair to say, commended it as at least worthy of consideration. However, he took the view that the words "shall be entitled to" should be omitted, so that it would become a statutory duty to have regard to these matters.
One problem is that there are a great many circumstances to be covered by regulation. The regulations would be expected to reflect changes in circumstances from year to year—although not necessarily annually. Certainly, however, fairly frequent review is required.
Another problem is that of scope and complexity. Considering a particular area in depth is a long and complicated operation. For example, if this year one has gone into great detail in considering the costs of a criminal legal aid practice and has negotiated a suitable set of figures for the regulations dealing with that year, it would seem perhaps not necessary next
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year to go into it all again. Next year it might be right, on that part of the remuneration regulation, to go for some across-the-board uprating if that was appropriate. Or, if inflation had disappeared and we were in a happy area where there was no inflation, then that particular part of the legislation might be left as it was.
It is therefore necessary, I think, to have some flexibility in applying criteria of this nature. Furthermore, I believe that the criteria set out in the legislation would be a guide to the courts in deciding whether or not a decision of the Lord Chancellor under this clause was subject to review: whether he had properly taken account in the circumstances of the factors which had been set out. Therefore, while I am happy to consider in Committee precisely what form this important clause should take. I should like to explain at least one possible difficulty in using quite the form that my noble and learned friend suggested.
In this connection some reference has been made to a fees advisory body. I can understand that when the only criterion was a vague concept of fairness, it was thought that the only way that that could he put into practice was by reference to some advisory body. In my view there is a great deal to be said for having reasonable statutory criteria and then proper negotiation between the profession—both branches of it—and the Lord Chancellor, together with his officials, to settle these matters.
I was very glad to hear my noble and learned friend Lord Ackner mention the atmosphere in which matters presently proceed. Much depends on the atmosphere in which these negotiations are conducted and I certainly hope that they will continue to be conducted in an atmosphere of co-operation. I feel certain that if, by negotiation, a fee structure can be reached, then that is preferable to any other form of settling it.
The Bill contains power for the new board to contract certain aspects of what is presently the green form system to advice agencies. The Bill is not concerned with advice agencies generally, That is not the function of the Bill. But it is, I think, worth considering whether advice agencies could usefully be used to deal with the people who are frightened of going to lawyers, referred to by the noble Lord. Lord Parry.
Those of your Lordships who belong to the profession may have difficulty in understanding just why people are frightened of going to lawyers. Sometimes, going to a solicitor's office, you can perhaps sympathise with them. Nevertheless, there are people who no doubt need advice as to whether they should see a solicitor. There are areas upon which some people might think that they require legal advice when, in reality, it is a question of receiving information about a detailed statutory code such as, for example, social security legislation and its rates.
I would guess—although I may be wrong—that many of your Lordships who belong to the legal profession would have some difficulty if suddenly faced with a detailed inquiry about the applicable rates of social security to particular circumstances. Generally speaking, the advice agencies have that

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expertise. It is only right that people should be directed to that expertise.
That is, I believe, important in another way. This matter would be dealt with by contract, as the Bill shows and of course a contract requires agreement on both sides. Therefore there would be a provision for payment to the advice agency in respect of the obligation it was undertaking. In this way there is at least the possibility of a reasonably secure source of income for the agencies. I hope that that will be of some reassurance. I see that the noble Lord, Lord McGregor of Durris, is here now. I understand that he wished to raise a matter of this nature and I therefore hope that those for whom he is concerned might also feel reassured.
Lord Mishcon: I wonder if the noble and learned Lord would with his usual kindness, indicate whether or not it was the intention to go out for tender in such matters.
The Lord Chancellor: At the moment I am not quite clear about how the matter might otherwise be arranged. One would need to know, to some extent, how people were prepared to react to the possibility of taking on this work by some form of tender. I do not think that the matter is the subject of expressed provision and if the noble and learned Lord has some other method in mind, I would certainly be very interested to hear about it as we get into Committee.
I come now to a question which has been raised a good deal and upon which I wish to say a little. This is the question of the constitution of the board and its independence. It was the original intention of my predecessors that membership of the Bar should be included in the statutory requirement. However, it was also generally thought that something like two days of attendance—at least to begin with—was required if this board was to perform its supervisory and initiating function. I do not wish to go further than to say that it was thought that there might be difficulties in securing suitable membership which would be willing to devote that amount of time to the work. If there is a statutory provision and it proves impossible to secure a person answering the necessary description, there is severe difficulty. I wish it to be possible for one or more members of the Bar to be members of the board. That provision has not been put in because, as I have said, although it was originally intended, it was thought that there might be a difficulty in making adequate and satisfactory arrangements.
I should like to have the best possible board. In a way, the more freedom one has to look around for people of experience and quality, the better. I appreciate the concerns of those who would like to restrict the Lord Chancellor's power to ensure that certain types of members were on the board. I am sure that we shall consider this matter further in Committee, but I thought it right to explain the difficulty.
That brings me to the second point. I should hope that the Lord Chancellor would be able to obtain people of quality and independence for the board. The Legal Aid Advisory Committee is appointed by the Lord Chancellor, and many of your Lordships
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have spoken of its independence. Noble Lords have gone so far as to suggest that I might be motivated by the terrible desire to get rid of independent comment. That is not so. The Legal Aid Advisory Committee has given valuable advice. It will continue to do so during the transitional period, but the Legal Aid Board is charged with giving advice. If we can obtain people of the same quality on the Legal Aid Board, it may be unnecessary duplication to have the Legal Aid Advisory Committee and the Legal Aid Board giving advice. None of those advisory bodies is completely without the need of a little money to keep it going. On the whole, one would prefer not to have unnecessary wheels on the coach. Therefore, power has been taken in the Bill to dispense with the services of the Legal Aid Advisory Committee after a time, if that should seem right.
It is important that the Bill should be seen as a Bill to deal with the management and strategic direction of the whole of the legal aid system. Your Lordships are asked to settle those principles. Many details will have to be fitted in. Many of those details will develop as the system develops. No one can sec the best solutions for all problems now. We want to have a board that can make use of flexible powers to obtain the best possible results.
I commend the Bill to the House and invite your Lordships to give it a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the whole House.

Swanage Yacht Haven Bill [H.L.]
6.24 p.m.
Lord Campbell of Croy: My Lords, I beg to move, That the Bill be now read a third time.
The House has the benefit of the special report on the Bill from its Select Committee. The whole House is indebted to the members of that committee who carried out a full examination of the matters to be inquired into. They gave their time and careful attention and afforded opportunities for those concerned, in particular the petitioners, to present their views. My noble friend Lord Alport is to speak in the debate. As chairman of the Select Committee he will no doubt have more to say when presenting its report. In that report, the committee has recommended by a majority that the Bill should proceed, subject to three provisos.
The second proviso is that the undertakings in the appendix to the report be incorporated in a signed document. I can tell the House categorically that the Bill's promoters accept entirely the provisos and are ready to give the undertakings contained in the appendix, in writing, as proposed.
The Select Committee was able to inspect the genuine particulars of the scheme proposed in the Bill. That is important because in situations such as this, wild and exaggerated theories and rumours circulate. I am sure that noble Lords will have experienced elsewhere, as I have, that incorrect and alarming versions of a proposed scheme circulate.

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The Select Committee was able to address itself to the facts. I can assist the House at this stage by providing the latest information on the principal points raised on Second Reading, and on developments since the Select Committee carried out its tasks. First, the lifeboat was mentioned by several of your Lordships on Second Reading. A formal agreement with the Royal National Lifeboat Institution has been completed and signed. It meets all the RNLI's requirements and helps to improve its facilities.
The subject of fishermen was raised in the debate. Their interest and requirements have been provided for in the undertakings. Originally, there was provision for nine berths for the nine known full-time fishermen. Three more have now been offered to guarantee places in the haven to help to meet the point made in the Select Committee's report about young fishermen being able to come into the business full-time and to have those places. There is also to he a fishermen's quay, a facility which does not now exist.
Sewerage was another important subject that was raised. Agreement has been reached with the Wessex Water Authority for new equipment (macerators) and for improvements to the system, to he paid for by the promoters. Those improvements were in the water authority's future plans, but it has sensibly taken the opportunity to achieve them sooner at the expense of the promoters. Those improvements would not be carried out in the immediate future, and at someone else's expense, if the haven scheme were not to proceed. Those three subjects—the lifeboat, fishermen and sewerage—were matters of concern at the time of Second Reading in May. Other points were raised, all of which I believe have been satisfactorily settled.
An event which occurred after the Select Committee had carried our its enquiries was the town poll. It was initiated in October by opponents of the Bill and held in mid-November. The question put in the poll was:
"Do you wish to see a private yacht haven in Swanage in the form set out in the Swanage Yacht Haven Bill as proposed?"
That wording should be noted, because some of those opposed to the Bill are not against the concept of a yacht haven but in favour of a much larger one. That however cannot now be regarded as a realistic alternative as the promoters have reduced their area of jurisdiction for the present scheme on request and with the commendation of the Select Committee.
The poll was for residents within the boundaries of the town of Swanage, numbering 7,293. It did not extend to other local people living in areas nearby who are involved in business in the town or employed there. The result was that 54 per cent. of the electorate voted: 16 per cent. voted yes; 36 per cent. voted no; 2 per cent, had spoilt papers. The result is not surprising when one considers the alarming versions of the scheme which were put out and which doubtless influenced many of those who voted to vote no.
I have here a leaflet, which was published during the days before the poll, asking electors to vote no.
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The leaflet contains several incorrect and misleading statements. For example, it states:
"The developer's own experts have calculated that 25,000 to 30,000 tons of sand will he lost from our main beach each year".
That is a misrepresentation of colossal proportions. The developers were asked how much sand might move if there were no groins on the beach. It was to that hypothetical question that the estimated figures were given. In fact, there are plenty of groins on the beach at Swanage which prevent such a movement of sand and there is no proposal to remove them. The figures have no relevance whatever to what has been proposed. The statement has been taken out of context and is therefore thoroughly misleading, unintentional though that may have been.
Another fallacy in this leaflet is an illustration purporting to be of the proposed breakwater, making it much higher than it would be. The caption with it states:
"The magnificent view of Swanage Bay and the Hills GONE!!".
The height shown, and the real height of the proposed breakwater, can easily be assessed if one knows the height of the adjoining Wellington Tower, which is in the illustration. The leaflet shows the breakwater's height at a point much higher on the tower than the level proposed in the promoters' scheme. That illustration would undoubtedly have worried many people, causing quite unnecessary anxiety and distress. Indeed, I am sure that many of those qualified to vote, horrified by that picture, would have decided to vote no. It is not difficult to see why people voted that way in these circumstances.
Another misleading error in this leaflet is this:
"The Parliamentary Bill includes clauses which could affect the future security of the Pier".
The paragraph continues by casting doubt on the arrangements to keep the pier in repair. There is no excuse whatever for that travesty. The pier has been rescued by the promoters after falling into disrepair some years ago and becoming unsafe, and it is an integral part of the scheme. The pier is an important and traditional part of the Swanage sea front. Here again, electors would have been influenced by that passage, totally misleading as it was.
It is clear that much of the voting in the poll was on a yacht haven quite different from the one in the Bill. It was an imaginary horror-story haven as depicted in that leaflet, and no doubt by word of mouth also.
I come now to an intriguing and most interesting observation about those events. Some of those who instigated the town poll, who led the opposition to the Bill and set up the organisation called the Swanage Coastal Protection Association were themselves associated with a scheme for a yacht haven very similar to the promoters' haven and had discussed it with the planning department of the district council shortly before the promoters produced their scheme. I have here a copy of the outline plan of that scheme dated November 1984–only three years ago. The main differences from the present scheme are that there is provision there for 296 moorings instead of 250–that is nearly 50 more—and a denser development of buildings and dwellings. I have here the architect's drawing of the

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plan, entitled the Grosvenor project, prepared in the office of Messrs. Clark Bristow, 169 High Street, Swanage.
The prospective developers were apparently negotiating purchase of the old Grosvenor Hotel and land immediately before the promoters of this Bill entered into negotiations and were successful. The plan includes a breakwater similar to that in the scheme in the Bill. Therefore the principle of a breakwater had been accepted, although this was one of the matters on which the opposition has concentrated. That scheme apparently did not get any further for lack of adequate resources, and the scheme in this Bill later received the preliminary approvals of which the House is aware.
I suggest that this throws a new light on the situation. Many of the voters were being encouraged to vote against a yacht haven as a possible threat to the environment or to the character of Swanage by people who had themselves been planning a similar haven—not one of those mentioned in the report of the Select Committee. These were earlier proposals. One perceives an element of rivalry and sour grapes. The attitude is. "If we cannot have ours, we shall make sure that they do not get theirs".
There is a great deal more to be said about the town poll and its timing. It is certainly a pity that it was proposed after the work of the Select Committee and not before. Because it has happened at this stage, the circumstances—including the misleading information, some of which I have described—could appropriately be looked into and taken into account by a Select Committee of another place in the normal later stages through which this Bill is due to pass. The occurrence of the poll only last month makes it more necessary that the Bill should proceed to another stage where all the relevant facts can be examined closely.
Many of your Lordships who have taken an interest in this Bill are clearly concerned about possible adverse effects of any haven of the kind proposed on the local environment. This came out again at Second Reading. I ask noble Lords to bear in mind that some of those leading the "no" campaign were planning a very similar private scheme only three years ago and only a short time before the promoters put forward the scheme in the Bill. Since that town poll the two local authorities concerned have not changed their support for the project in the Bill. Swanage Town Council held a meeting and decided to continue to support the project. Purbeck District Council has not met and has not changed its policy.
One apprehension about the Bill which is natural and to be expected is that it may change the character of Swanage for the worse. Whether this be a concern felt by residents or by visitors over the years, it should be given full consideration and care should be taken to explain what is being proposed. The wild horror stories will not have helped. The promoters have done their best to show how an area where the life of a hotel has been coming to an end and the pier could no longer be used because it was unsafe can be renewed with thought and imagination and the minimum of disturbance to traditional activities. I am satisfied that the project will not damage the
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environment. I should not be supporting it if I were not completely satisfied on that matter.
As some of your Lordships know, I am chairman of the advisory committee on pollution of the sea, ACOPS, an international organisation. In that capacity I chaired a conference in Italy convened by ACOPS only six weeks ago to make progress in protecting the marine environment. That conference was attended by delegates from about 40 countries. I mention these credentials with modesty, I hope, because I would not wish anyone to assume that I was a novice in this field. Because of that background, I am well aware that seashore projects can give rise to a wide difference of views which I am sure we shall witness in the debate this evening. I commend this Bill to the House.
Moved, That the Bill be now read a third time. — (Lard Campbell of Croy.)
6.40 p.m.
Lord Raglan Lord Raglan rose to move, as an amendment to the Motion that the Bill be now read a third time, to leave out ("now") and at end to insert ("this day six months").
The noble Lord said: My Lords, I have been criticised for putting down the amendment as it is not considered right to oppose the findings of a Select Committee on a Private Bill. I have been attending your Lordships' House regularly for 22 years. I am very familiar with the workings of the House. I can fairly say that I am steeped in them and accord them deep respect, developed in a practical way as they have been over centuries. I learnt long ago that, before doing anything involving procedure, if one has any doubt one must consult the appropriate quarter and be quite clear what is involved. Therefore, I did not put down the amendment without most carefully taking official advice.
I am informed that there are indeed many precedents in voting against a Private Bill on Third Reading. By the nature of things that I need not go into, it does not happen very often. The last time was in 1976. That was yet another Bill to do with Felixstowe docks. It had already passed through the other place. It was then passed by your Lordships' appointed committee, although with reservation from certain members. On Third Reading it was voted out by a majority of over two to one, the opposition including the noble Lord, Lord Carrington, and the late Lord Byers, who were then leaders of their respective parties. The noble Earl, Lord Listowel, who had been chairman of the committee, was in what he aptly called a predicament because at the time he was also Chairman of Committees. Rightly, however, he stood by his committee, which is what the noble Lord, Lord Aberdare, has courteously told me that he will do this evening. I say to him that, if I were in his place, I think that I should find myself doing the same, I cannot say what he would do in my position, but I know that he understands it.
The Bill was severely criticised from all sides on Second Reading, but the procedure was followed that a Private Bill is not voted against at that stage to enable it to go to committee. The House, however,

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accepted my instruction that the committee should have special regard to certain matters that are printed in the special report. In the event, the committee allowed the Bill through by a majority of three to two. Naturally, I was disappointed; and I became even more concerned when I read the special report and the transcripts of the seven days of evidence. I hope that I may say without offence to the noble Lord, Lord Alport, that I believe the committee dealt less than fully with the terms of the instruction, and on one point in particular, as I shall explain.
What finally prompted me to oppose the Bill is that on 12th November in a statutory poll held under the provisions of Section 12 of the Local Government Act 1972 the townspeople of Swanage voted against the yacht haven scheme by 2,657 to 1.184. The noble Lord, Lord Campbell of Croy, has given the percentages. That is a majority of about five to two against on a turnout of 54 per cent. and an electoral roll that was about a year out of date.
The noble Lord, Lord Campbell, does not have a very great estimation of the intelligence of the ordinary voter if he thinks that he has been misled by the leaflet which the noble Lord produced and which I know very well. As publicity, I think that it was rather well done. The strength of the turnout is even more remarkable considering that, as laid down in the procedure, the polling booths were open from four o'clock in the afternoon to nine o'clock in the evening only and that throughout that period there was a high wind and much cold, driving rain. If as a consequence of that poll I had not put down the amendment I should have felt very deeply that I had let those people down.
I should say again how I became involved in this matter. I was written to by a friend who has a house in Swanage. I replied to him that the scheme did not sound too bad and that people tended to protest against such proposals. Eventually, however, I was persuaded to go and see for myself. It soon became clear to me what a disastrous proposal it was.
For those of your Lordships who have not had the advantage of seeing Swanage Bay, I can best describe it as being about two miles across and shaped like an elongated letter C which curves gently out at the top and curls quite sharply up at the bottom. At the apex of the lower curl lies Swanage town by a little natural haven. This is the only part of the bay, and it is a very small part, where there is shelter for the mooring of boats. Fishermen operate from there, yachts and pleasure boats ply from there, the lifeboat stands there, trippers trip over the ropes and wander along the shore, and so on. It is an agreeable scene and much in demand by visitors.
The scheme in the Bill would appropriate a large part of that frequented area and about half the sea that is available for mooring. The marina would go right into the middle of it all and enclose it for private use. There is no other area of sea that is well sheltered and reasonably close to the town boat park and no other place where the town boat park and slipways could be located. The 70 or so moorings that the marina will displace have nowhere else to go. It is to the aspect of enclosure that, with respect, the noble
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Lord, Lord Alport, and his committee appear not to have attached much weight. This busy part of the bay and all those moorings, to which the public now has free access, will be forfeited under the Bill to make way for the development. Yes, the Committee says, the breakwater would be an eyesore; and yes, the yacht haven would affect the town's character and environment. However, while the committee has sympathy for all the disruption that would be caused, it says that things will soon settle down. It thinks that a modus vivendi will be found and that Swanage should accept the scheme for its own benefit.
I find that very optimistic. I have sat on many Private Bill committees. One took 15 days, which was a record at the time. I know, therefore, how much time noble Lords have to set aside to perform this interesting but otherwise somewhat thankless task.
I have read the transcript, from which it appears that the committee took no evidence on the alleged economic decline of Swanage or the number of jobs the scheme would create. The number is supposedly 40, which in all conscience is not very large in a town of 7,500 people. I have a breakdown of those 40 jobs. Four, five or six—I cannot make out which—refer to employment on the pier, which is, however, unaffected by the scheme. Another 25 attach to the complex of 100 houses, with club, shops, and so on, for which outline planning permission has already been given, although I learn that now the town council can see what the first houses look like it has objected to the second stage of the development proceeding. That leaves 10 jobs for the marina itself, which seems an overestimate because, so I am informed, normal staffing for a marina is one to 100 boats and this marina is for 250 boats. Whichever figure is correct, it is a tiny benefit to set against such a massive intrusion into the town's foreshore and bay.
No figures are available for what yachtsmen may spend in the town, but whatever the sum is the developer is evidently expecting that they will spend it in his own new shops. I believe—and it is one of the considerations that prompted my putting down the instruction—that by far the greater part of the economic benefits of the scheme will go straight to the developer. While that is usual and acceptable in the right location, in this area it is to my mind unacceptable in principle because his benefit accrues at the expense of depriving the public of their benefit. It is this equation which the Committee has not addressed and it has perhaps allowed itself to be diverted by other hypothetical considerations.
There are also the fishermen to consider; they were mentioned by the noble Lord, Lord Campbell of Croy. They have enjoyed a right to mooring here since time immemorial. They are against the scheme.
The Earl of Onslow: My Lords, they have not enjoyed a right. There is no right. This point came up in committee. There is not a right; there is just a licence. They can be booted off by the Crown Commissioners just like that.
Lord Raglan: My Lords, I read the noble Earl's questioning on this very point. It would be difficult not to translate that into a right of access. They have

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had access to this place since time immemorial. Nothing I read in the evidence will make me change my mind. I might with other evidence, but as the evidence was transcribed in my version it seemed to me that they had acquired a right, although the Crown owns the foreshore.
The fishermen are against the scheme, as are the statutory and national bodies which control and protect them. The Southern Fisheries Committee has supported the petition with a substantial sum and has given expert evidence. The Sea Fish Industry Authority opposes Swanage's declassification as a fishery harbour, which the Bill would bring about. In the authority's opinion this will deprive fishermen of necessary benefits. The scheme will be enormously disruptive to the fishing and will inhibit the expansion of what has been a rapidly growing industry.
What I am trying to convey to your Lordships is that there is no room in that part of the bay for both the marina and the present users and that however much one may be in favour of more marinas—and they are quite in fashion now—that desire must not override propriety as to where they are put. Surely they should not go just anywhere that may appear to be convenient for yachtsmen.
Another worry is the effect of the breakwater on the currents in the bay and the damage these currents may do to the beach. I have read the evidence from the experts on both sides and I came to the conclusion that nobody really knows what damage the currents may cause. The promoters say, as a kind of educated gamble, that building the breakwater is safe. The petitioners, with whom I side, say that it is reckless to build it and hope for the best. It is evident that no one can say with any certainty in what circumstances the promoters could be held responsible for making good any damage.
There are many other unsatisfactory aspects to the scheme, but as there is a long list of speakers I must allow noble Lords to bring in the many points which concern them. I hope I have said enough to show what a sorry impact the scheme will have on this very popular traditional seaside town and how wholly inappropriate it is that a marina should be put there.
I shall conclude by pointing out to your Lordships the difficulty encountered by the petitioners in a case such as this. Promoters of such schemes have the initiative and the resources and they make it their business to know the ropes. In Swanage there is as yet no civic amenities society so there was no immediate focus upon which the objectors could gather. Therefore, they have taken a long time to organise themselves and to find the money and the time to contest the Bill in Parliament. They have had to contend with a skilled and professional presentation, and not least with a quite formidable authority in which any Bill once deposited in Parliament is cloaked. Starting off with not knowing what to do or whom to contact. I think they have done marvellously well. If the Bill goes to the other place they will have to go through the process again. If they just fail to convince the committee, their own opinion of the scheme has been backed by a convincing majority. I hope your Lordships will support them and not allow the Bill to proceed. I beg to move.
Moved, as an amendment to the Motion that the Bill be now read a third time, to leave out ("now") and at end to insert ("this day six months").—(Lord Raglan.)
The Deputy Speaker (Baroness Serota): My Lords, the original Question was that this Bill be now read a third time, since when an amendment has been moved to leave out "now" and insert "this day six months". The Question I now have to put is that this amendment be agreed to.
6.57 p.m.
Lord Alport: My Lords, after reading the Second Reading debate on the Bill and the papers submitted by the petitioners and promoters, my first impression was that if there was doubt when the evidence to your Lordships' Committee had been heard, on the whole the benefit of that doubt could properly be given to the petitioners. Your Lordships' Committee, of which I was chairman, sat for two weeks and visited Swanage where it saw at first hand the areas and amenities of the town which would be affected by the construction of the proposed marina. It was particularly concerned to satisfy itself on a number of matters.
The first was whether the promoters had the financial resources to carry out the building of the development successfully, because nothing could have been worse than if the project had failed on account of lack of sufficient resources. Secondly, how far the building of the breakwater would affect the beaches which hitherto had been the principal attraction of the resort for young families coming for a "bucket and spade holiday". Thirdly, whether the construction of the breakwater would result in the pollution of the sea around the beaches by sewage.
Fourthly, how far the construction of the marina would interfere with the existing mooring rights of boat owners and damage the facilities now available to the professional fishermen who make their living by fishing in the Swanage area. Fifthly, whether the construction of a stone breakwater would create an unacceptable eyesore in what is rightly regarded as a beautiful stretch of the English coastline; and lastly, how far any of the disadvantages to local interests which the construction of a yacht haven might create would be offset by the advantages this development might bring to the town of Swanage as a whole.
I hope that both the promoters and petitioners felt that your Lordships' committee gave them a full and fair opportunity of presenting their arguments. If anything, I think the committee tried to ensure that the petitioners' case, deployed by an able counsel and supported by admirable witnesses, was given special consideration. This was I think proper, both in view of your Lordships' instruction and because those who seek to petition this House against something to which they object, and who do not necessarily have great resources or perhaps much experience of parliamentary matters, should be given particular sympathy and understanding.
Your Lordships will have read the special report of your committee. It sets out very fully the arguments that were presented by both sides, particularly in

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relation to matters mentioned in the Instruction. It includes in an appendix certain undertakings that the committee considered it right to impose on the promoters in the interests of certain long-established pleasure boat owners and in those of the professional fishermen operating out of Swanage.
I must tell the House that when the committee came to a vote my four colleagues were equally divided, and I therefore found myself in a situation, which all sensible chairmen of Select Committees seek to avoid, of giving a casting vote. I think I owe it to your Lordships to explain why I voted that "the Bill do proceed".
I was greatly influenced by three things. First, the evidence presented to the committee, much of which, as is always the case in these committees, was conflicting. It seemed to me that the damage to what I may call the "bucket and spade beaches" was likely to be minimal. I have since seen reports from south coast resorts as far away as Cornwall that hoteliers and tourist agents now regard that sort of holiday as largely a thing of the past.
I did not think that the creation of a breakwater, the height of which was specified, would affect the view of residents of the bay or damage the general amenities of the area. I considered that any danger of sewage contamination could be avoided, and that the legitimate interests of the professional fishermen would be protected by the undertaking set out in the appendix. I thought that changes in the mooring facilities and the location of the lifeboat were not of sufficient weight to decide that the Bill should not proceed, particularly since the Lifeboat Institution had agreed to the latter's new location.
But, my Lords, I was greatly influenced secondly by my visit to Swanage. I seemed to see a town with some charm and character but which had missed the bus. It was dominated by a great white elephant, the derelict Grosvenor Hotel, which the promoters propose to demolish and replace with houses. Its pier was rotten and unusable until the developers started to repair it. I found a class of what I think was the sailing club with young people listening to a lecture in a dark, damp hut which the developers proposed to rehouse in a rather delightful building. I found myself doubtful of the real value of some of the amenities which the petitioners sought to preserve.
I was influenced by two other matters. First, that the Swanage Council had voted in favour of the proposal (and did so again, I understand, recently), that the Purbeck District Council had withdrawn its petition against it, and that a marina at Swanage was included as part of the county plan. Secondly, that there had been two or three earlier proposals to build a breakwater at Swanage not apparently dissimilar from the present one and without any apparent opposition, but which had foundered because the necessary finance—public or otherwise—had not been forthcoming. My noble friend Lord Campbell of Croy has told us that there had been some later project which had not got off the ground.
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I suppose that Francis Hutcheson's adage, plagiarised by Jeremy Bentham,
"That action is best which procures the greatest happiness of the greatest number"
was somewhere in the back of my mind. A small number of people in Swanage would be inconvenienced, but as the yacht haven attracted new visitors to the town, the shops and restaurants, the hotels and the specialist firms providing gear would benefit. There would be additional employment for the younger people, and above all there would be an impetus for renewal in the future in contrast to what seemed to me the evidence of stagnation and decline which at present seems to pervade Swanage.
But, my Lords, having started with a bias in favour of the petitioners and a wish to give the benefit of any doubt to local private interests against the intrusion of a development to which they were opposed, I relied in the end on such experience of this sort of problem as has come my way over the past many years. A developer built a large estate five or six years ago in my village of Layer de la Haye against a great deal of local opposition. It has done nothing but good. It has given new life and vitality to the village, and yet the village has kept its special happy village character.
I have been intimately involved in the problems of the development of Colchester, a town of great antiquity and character. There has been much opposition from its older citizens to the changes which have taken place. Today Colchester is a boom town. Its ancient characteristics remain alongside so much that is new, and its future prosperity is assured. Colchester certainly has caught the bus.
But most especially I was influenced by the example of Harwich. Some years ago, when its MP retired, I was asked to look after the constituency for a few months. I was told that I would find Harwich itself a very depresed town. Some years previously it had killed a plan to develop it as the Continental terminal, which was subsequently built at Parkestone Quay.
When this decision was made a local councillor who had supported the development project prophesied that grass would grow in the Harwich streets. My Lords, the sinister thing is that on my first visit to Harwich I noted that grass was actually growing in the Harwich streets. Harwich had missed the bus on that occasion and it became subsequently a sad, introverted town rather like Swanage, mourning a missed opportunity.
Luckily that is not the end of the story. For now it has a second chance for the future. Another bus has arrived. The planning authorities are considering, and there is likely to be overwhelming support for, a new piece of development—the building of a yacht marina costing some £15 million with an adjacent housing development, just like Swanage.
My Lords, it was for all these reasons—adequate or inadequate as they may be—that I gave my casting vote in favour of the decision that "the Bill do proceed". I have thought a great deal about it since we rose for the Summer Recess. Your Lordships may of course decide to kill the Bill stone dead by a vote against its Third Reading. Or you may think it better to leave a decision to another place where the elected

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Members for that part of England sit, and which can consider the significance, if any, of the parish referendum.
I can only explain to your Lordships why I gave my casting vote the way I did and why I think it would not be in the interests of Swanage and its inhabitants, particularly the next generation, that it should follow the fate of Harwich and have to wait another 30 to 40 years of gradual decline until another bus comes along.
7.8 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I am happy to follow the noble Lord, Lord Alport, as it gives me a chance to thank him for having chaired the Select Committee, which he did with great ability. It was not an easy committee to chair as will be gathered from his description. But he has done so extremely successfully. The House is much in his debt whatever one's thoughts might be about the Bill in question. It is not any part of my responsibility to take part in a discussion of the merits of the Bill. However, as there is a Motion moved by the noble Lord, Lord Raglan, to reject the Bill, it might be as well if I say just a few words on the procedural implications.
Those who wish to oppose Private Bills are, I accept, in somewhat of a dilemma. When it comes to Second Reading, they are told that it is better to leave the matter to go to a Select Committee where it will he investigated fully, but when it comes back at Third Reading they are told that they should not oppose the Bill because it has been approved by the Select Committee. I sympathise with those who find themselves in that dilemma. I can only say that it follows inevitably from the long-established procedure by which Parliament considers Private Bills. In effect, the House is normally expected to accept the view of its Select Committee which has had the advantage of hearing the evidence together with the arguments for and against, of counsel, whereas the House has not.
There are precedents, and the noble Lord, Lord Raglan, mentioned them. However, in recent years there have been very few. So far as I am aware, the only Bill to be thrown out at Third Reading was the legislation on Felixstowe dock and railway, mentioned by the noble Lord. Special factors affected that legislation, particularly as it was largely a matter of politics rather than the merits of the Bill that decided the issue.
Turning to the Bill before your Lordships, I recognise that in this case the circumstances are, to some extent, unusual. Not only were two members of the Select Committee opposed to the majority recommendation that the Bill should proceed but, as the House has heard, there has been a parish poll which suggests that the people of Swanage are largely opposed to the provisions of the Bill. Nevertheless, that does not change my advice to your Lordships that the established procedure should be followed and that the House should rely on its committee's recommendation as to whether the Bill should proceed. The factors to which I have referred, particularly the parish poll, are matters which
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another place will be able to take into account if your Lordships give the Bill a Third Reading this afternoon.
The Select Committee sat for seven days and spent another day visiting the site of the proposed yacht haven. The House will also appreciate that the committee gave careful consideration to the Instruction moved by the noble Lord, Lord Raglan, referring to it in a special report, if the House were to agree to the Motion that the noble Lord has moved, it would be making two assumptions which are contrary to the accepted practice of this House when dealing with Private Bills: first, that after hearing numerous witnesses and visiting the site, the committee came to the wrong decision; and, secondly, that the House is more likely to make the right decision after one afternoon's debate having heard none of the witnesses and not having visited the site. I recognise, however, that many of your Lordships know Swanage well.
Those are the procedural considerations in relation to the accepted practices of the House. I am sure that your Lordships will wish to bear them in mind when considering the Motion to oppose the Third Reading of a Private Bill.
7.13 p.m.
Lord Orr-Ewing: My Lords, I shall not keep the House for long because I know that some noble Lords have commitments tonight, as do I.
I am completely in favour of the Bill. For a long time, I have believed that our generation has an obligation to the young to provide sporting and recreational facilities whenever we have the chance to do so. Young people are full of energy and they should be given the opportunity to work off some of that energy in a wholly healthy manner. We are still a maritime nation and I support anything which encourages boats and a maritime outlook. Sporting facilities used to be provided by our schools but, sadly, that is now falling away and provision depends on local clubs and attendance on the attractiveness of the facilities being offered.
Secondly, I support the Bill because it provides facilities which can usefully be used for recreational purposes for six months of the year. Even the declining numbers who visit Swanage confine their holidays to within six weeks. The boats there will be attended to, varnished and sailed from Easter until the end of September. I am told that "bucket and spade" holidays last from the end of July until early September. There will be the on-going creation of activity.
It is sad, but someone rightly said that the "bucket and spade" activity in which our children engaged and in which our grandchildren try to engage is dying. Young people want activity and something more than a bucket and spade for the seven or 14-days holiday. We also want something that is not dependent entirely on sunshine. Although we love our nation very much, some of us tend to fly to other parts of the world where the sun is more reliable during the summer months. Noble Lords will know that millions of people fly to Majorca, Greece, the Costa Brava and other parts of the world. As a result,

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Swanage is a declining town, almost dying. I believe that this provision will be a useful and valuable injection.
The marina is to house 250 yachts. It will provide recreational facilities and part and full-time jobs. My figures are different from those of my noble friend Lord Raglan. The construction of the 100 houses which, in some ways, are the infrastructure and which finance the creation of the breakwater, the repairs to the pier and the other good facilities now provided, currently means employment for 83 people of whom 50 are local. I hope that it will not be said that no work is being provided for local people. If there are 250 yachts—I am sure that there will be and that there will also be dinghies and similar craft—there is an enormous amount of spin-off in jobs and part-time work for local people.
There is opposition but I hope that not too much will be made of it. One knows that "antis" can be heavily and adroitly organised. Perhaps CND taught us that, if nothing else. However, it may not be entirely representative of the view of the town's people. I should like to list some of the bodies which support the proposal and which were elected by well-disciplined voting. First and foremost there is Swanage Town Council. Other bodies that support the proposal are Purbeck District Council, Dorset County Council (as a highway, strategic planning and tourist authority). Dorset Tourism Association, Swanage Chamber of Trade, Swanage Hoteliers Association. Swanage Development Action Group representing local businesses, Wessex Water Authority, the Royal National Lifeboat Institution, Swanage Sailing Club and Royal Yachting Association, Swanage Sailing School, Swanage Diving School and the Swanage Pier Trust.
I ask the House to consider seriously the fact that the town is fading out. Ten years ago there were 12 or more hotels in the town. Now there are two. The rest have been closed down and the last one to have been closed, the Corrie Hotel, is being converted into old people's homes. That is symptomatic of what is happening to the town and we need a magnet to attract young parents and their children.
I should like to quote from a paragraph in the report. It is an admirable report and the House owes a debt of gratitude to those noble Lords who worked so hard. However, I wish that the committee had included a map. One must look at a map to see that there are two miles of beach to the north of the project and therefore masses of space for those who wish to exercise themselves on the beach. The report reads:
"the Committee feel that unless Swanage seizes this chance for the development of its coastal facilities, the opportunity will not occur again. If that were so, the people of Swanage could now and in the future be the losers".
With that message, I hope that the House will pass the Bill tonight and send it to the other place where local MPs can take part in a detailed examination, making sure that all the points which arise are being dealt with by the developers. I hope that the House will give the Bill a Third Reading.
7.20 p.m.
Lord Stewart of Fulham: My Lords. I should first like to refer to the argument put forward by the noble Lord, Lord Aberdare, suggesting that the House ought not to oppose the Third Reading of a Private Bill. The noble Lord stated clearly the dilemma in which a noble Lord is placed when he is told at Second Reading. "You must not vote against Second Reading, so as to give a Committee the opportunity to examine the Bill". At Third Reading he is then told, "The Committee has examined the Bill so you must not disagree with them". If noble Lords accept that argument, there is no stage at which the House as a whole can express a view.
Both in this House and in another place we make great use of the device of handing over part of our work to the committees. We always do so on the assumption that the last word rests with the House as a whole. I do not think that we can accept therefore as a general rule the idea that if a Select Committee has voted a particular way, we are obliged to follow that recommendation. We do not disregard it without thought, but we are certainly entitled to disregard it if after consideration we believe it right. I hope that the House will accept therefore that while we may be doing something unusual, we are not doing something that is either improper or against the rules of the House. Indeed, if you accept the alternative proposition that we ought never to reject a committee's report, you are throwing away part of the constitutional authority of the House as a whole, which ought to be preserved.
I think that we should take note of the special nature of this Bill. It rather resembles the enclosure Acts which were passed in the early years of the last century, in which the lord of the manor would take over what were believed to be common rights and convert them to his own use with the result that a large number of villagers were deprived of their livelihood.
There was some argument between the noble Earl, Lord Onslow, and my noble friend Lord Raglan as to whether the fishermen and others in Swanage had rights. I think it is probably true to say that legally they had not. However, by long understanding and belief it was supposed that they had those rights. That was the position of the commoners at the time of the enclosure Acts; they were told that rights which everyone had assumed were theirs did not in fact belong to them. They found that they could no longer collect firing or turf from the common or pasture their animals on it. They were pushed into a position of complete poverty and subjection.
The Earl of Onslow: With respect, this is not what the Bill will do. For the first time it will actually give those fishermen something which they can buy or sell. Their rights are being increased by this Bill. It is not akin to the common law enclosure Act in any way whatsoever.
Lord Stewart of Fulham: My Lords, in the first place, those concessions were made during the course of discussion and as a result of criticism. Secondly, they do not apply to all fishermen. There will still be fishermen in Swanage who as a result of this Bill will

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find themselves deprived of their livelihood. In addition, the fishery industry in Swanage has also been the subject of educational visits by parties of children to study marine life, and indeed also to study the working of the lifeboat. Both of these opportunities will be removed as a result of this Bill. I know that the lifeboat itself remains, but I do not think that it w ill be possible for parties of children to visit the lifeboat in future.
I think that you will also find that on every issue that has been raised—the lifeboat, the fisheries, the beaches,—you could not get a definite answer. If you study what the report says about the beaches it comes down eventually on a hopeful sign, hopeful from the promoter's point of view. However, they were obviously in doubt as to the result of the breakwater and its effect on the tide and the beaches. There is a very unusual and peculiar motion of the tides round Swanage which would he interfered with one way or another by the creation of this breakwater. We do not know for certain whether, in the end, a massive job of trying to replace sand would be necessary.
We are being asked to consider a Bill which may inflict very serious damage on the people of Swanage when nobody has been able to establish with any certainty that it would not. I am inclined to begin, as the noble Lord, Lord Alport, began, by giving the benefit of the doubt to the petitioners. I am sorry that he did not stick to that view because we are left with the fact that the petitioners and the townsfolk run the risk of loss in respect of the fisheries, the beaches, the opportunities for children and the general amenity of the town.
Against that the benefits to be conferred are again a matter of dispute. Various estimates have been put forward, but none of them with convincing evidence as to the amount of employment that will be created by a marina of this size. The marina itself cannot create very much employment. I think, too, that it may be difficult for the promoters in the event to run a marina merely of the size proposed. I think it is now accepted that they have the resources to do what they say in the Bill that they will do; but whether the erection of a marina of this size will prove in the end to be a worthwhile and viable proposition is a very different matter. It would be unfortunate if Swanage has to come to this House again in a few years' time to try to enlarge or duplicate the marina.
The final point that I should like to make relates to the continued assertion that Swanage is rundown and dying. It is true that there are fewer people staying in hotels. However, when the noble Lord, Lord Orr-Ewing, says there are only two hotels, I think that he means only two are mentioned in the Automobile Association's guide book. If you walk along the streets of Swanage you will find there are a great many more than that, a very great many indeed. What has happened is that people are now taking holidays in flatlets or in caravans rather than in hotels. This of course means that there are people spending money in the town; there has merely been a change in habit in the way people take their holidays. I think that it cannot be maintained that Swanage is running down or that we should be denying opportunities of recreation to young people. The
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fisheries and the boats of Swanage will provide a great deal of healthy activity for young people, to say nothing of the facilities for walking and cycling round Swanage itself.
It is important to remember that Swanage is not merely a town, it is the central town of the Isle of Purbeck, one of the most beautiful parts of this country. It is that which attracts a number of people to take their holidays in Swanage and provides healthy activity in walking and cycling for young people. I think therefore that those who say that Swanage is dying on its feet have not considered the many ways in which the people of Swanage make use of their town. This was what they expressed in the poll.
You can argue until you are black in the face but you cannot argue away the fact that at the end of five hours of voting, which was all that was allowed, when it was pouring with rain and bitterly cold, 54 per cent. of those entitled to vote went out and did so. On a local issue, as most noble Lords will know, this is a considerable figure. Of those who voted, 70 per cent. voted against the marina. The most deplorable suggestion has been made as to why they did so. The promoters have suggested some of them were physically intimidated, although no serious evidence of that is advanced. The noble Lord, Lord Campbell of Croy, suggested that the opposition was motivated by people who had their own scheme and were moved by feelings of sour grapes. There may be some. However I know Swanage fairly well, I have been on holiday there many times, and I have never encountered any. What I did encounter was a large number of Swanage citizens, ordinary decent Swanage citizens, who disliked this project because it appeared to damage the beauty and the prosperity of their town. At the end of the day —
Lord Campbell of Croy: My Lords, I am most grateful to the noble Lord for giving way to me. My point was that they were voting on what had been presented to them as a sort of horror story haven, and I just read out three of the points from the main leaflets which were circulated, which were completely false and very frightening.
Lord Stewart of Fulham: My Lords, I will accept that on one or two points the noble Lord, is able to show that there were exaggerations. On the other hand, those who were urging for a no-vote were not like those on the other side who were going round presenting pens and pencils to people who would vote in the required way. If we are going to argue as to how the poll was conducted, and as to the arguments that were advanced, there is quite a lot that could be said but I doubt whether there is very much profit in doing that.
When you finish with it, the actual vote remains an impressive demonstration of the wishes of the people of Swanage and in a case where every issue is in doubt and uncertain, and where the wrong decision may destroy the character of this beautiful and lovely place, the wishes of those who took the trouble to go to vote should be given great weight.
7.31 p.m.
Lord Greenway: My Lords, I am sure that the noble Lord, Lord Stewart, will not be surprised if I take an opposite view to him, because I followed him on Second Reading. I think I am happy to follow the noble Lord, Lord Campbell, in all that he has said. If I may say so, he put forward a very fair and factual account of what is at stake here and I see no reason to alter in any way my support for this Bill.
If I may start, as the noble Lord, Lord Campbell, has already said, by getting rid of the lifeboat question, there was a lot of talk about how unsatisfactory would be the new arrangements for the lifeboat. Indeed the RNLI was lobbied to get it to take part in opposing this marina scheme. As a member of the public relations committee of the lifeboat, I have to say that the lifeboat is not in the business of being involved in saying whether a scheme is good or a scheme is bad. The lifeboat is there to do a job of saving lives at sea and to see that proper provision is made to enable the lifeboat to carry out that task.
As the noble Lord, Lord Campbell of Croy, has said, the RNLI has signed an agreement with the promoters and is totally satisfied with the arrangements made. There is an advantage to this, in that an afloat berth in a marina allows the use of a larger and faster lifeboat, so that the facilities for the lifeboat will perhaps be better than they are at present. In addition, it has been suggested that the existing slip might silt up as a result of a marina being built. I understand that there is no evidence to support that and the present lifeboat house and slip will remain available for the use of the RNLI.
The noble Lord, Lord Raglan, said that those who have orchestrated the local opposition to this Bill are to be congratulated, and I think I might go along with him on that. They have produced what I can only describe as a cleverly orchestrated scheme based on deliberate misinformation. The noble Lord talked about a massive instrusion into the bay of Swanage and he went on to describe the delights of Swanage Bay, which I know well, having spent many of my childhood holidays in the Grosvenor Hotel, which is at the centre of this whole scheme. The marina as such, even including the area of jurisdiction outside it, will only take up 2.5 per cent. of Swanage Bay, which really is a very small proportion; and I think that if you see an aerial photograph showing the area taken up it cannot in any way be argued that it is a monstrous intrusion upon the bay.
The noble Lord went on to say that the area where the marina is to be built is a much-frequented one. That is not my understanding, having talked to several of the residents of Swanage. In fact, I believe that before our Select Committee went down to view the area a whole load of schoolchildren had to be bussed in with fishing nets and all the rest of it to show that it was, in fact, used. That is just another instance of the deliberate misinformation that has been brought forward.
I will not go too deeply into the fishing question, except to say that I think the local full-time resident fishermen have been extremely well treated under the Bill. I think that the promoters have met all their
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objections. On the question of how the scheme might affect fishing, often constructions of this sort, in some strange way—and I do not intend to go into the issue in any detail—enhance fishing.
Swanage is a half-moon bay, as the noble Lord, Lord Raglan, described it. As a result of that, the currents that go around it are not particularly strong. The main current comes down from Poole and whistles past outside Peveril Point down towards Anvil Point, so I do not think there will be any violent movement of sand; besides which the whole hydrodynamic question has been gone into in great detail by acknowledged experts in the field. Their work was vetted by a gentleman from Southampton University who was hired by Purbeck District Council to keep an eye on things, and, at the end, he expressed himself satisfied with what had taken place. He said that the results were what one would expect and finished by saying that the portents remained favourable.
We have heard much about the past delights of Swanage—the splendid sands, the bucket-and-spade brigade and all the rest of it. I will not dwell on that, except to say that I think those days are definitely gone. Swanage has indeed lost 40 per cent. of its hotel beds in the last five years and I believe that there are two more hotels to be added to that.
I now come to the question of precedent which was raised by the noble Lord, Lord Raglan. I was a very new Member of your Lordships' House when the Felixstowe Bill was considered. That, as the noble Lord, the Chairman of Committees intimated, was quite a different issue. It was very much a political issue, which involved nationalisation and was a matter that would better have been dealt with by a major government Bill and not by a private Bill. I think that the noble Lord, Lord Raglan, scored an own goal by saying that that Bill came to this House last; it was the last attempt that anyone had to alter the Bill. In this case, as we have heard, the Bill has still an opportunity of going to another place, where all the relevant new detail can be discussed, so it is not, in my opinion, a similar situation.
However much one may object to progress—and I respect those who feel that way—it cannot be stopped in the long term. It is interesting to recall that when the railway first came to that part of Dorset the local residents bitterly opposed any extension of the line from Wareham to Swanage. It took Swanage 20 years to get a railway line. Are we now to see Swanage, which has waited so long for a breakwater or a harbour of some kind, miss out once again? I support the Bill.
7.40 p.m.
Lord Foot: My Lords, as has already been made clear to the House, the Select Committee was divided upon this issue. It was divided in the proportions of three to two. I was one of the minority of two and I hope that it is permissible and possibly even helpful if I follow the lead of the noble Lord, Lord Alport, and explain briefly to the House why I came to the conclusion I did.
However, before I do that I shall make three preliminary observations. First, I do not think it

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possible in the time that we have available in the House tonight to review again all the manifold issues which arose during the course of the Select Committee. It is very easy to select particular parts of the discussion which happen to suit one's case but I shall try to refrain from doing that because there is a quite different consideration which I wish to put before the House.
Secondly, I do not in any way in anything that I say criticise the decision which was arrived at by my three colleagues who formed the majority. Indeed I am very happy to acknowledge the very great benefit that we gained from the chairmanship of the noble Lord, Lord Alport. I am sure that all my colleagues will be at one on that but perhaps I may say that I do not think—I address these remarks to the noble Lord, Lord Greenway—that anything is gained by an exchange of accusations of deliberate misrepresentation by one side in the argument about the other.
The noble Lord, Lord Greenway, committed a complete misrepresentation when he spoke about the lifeboat. Nobody contends that if this breakwater is built it will be possible to maintain the launching base for the lifeboat. Nobody contends that at all. Everybody agrees that the chute down which the lifeboat comes is going to be next door to the breakwater and that that part of the beach in any case will silt up as a result of the building of the breakwater. It is very simple for people to accuse the other side of deliberate misrepresentation. Of course I do not accuse the noble Lord, Lord Greenway, of doing anything of the kind, but I think it would be better if we tried to refrain from exchanges of that kind.
Thirdly—this may appear to be a concession to the argument on the other side—although there are clearly precedents for throwing a Bill out on Third Reading, as has been made perfectly clear, I nevertheless accept what the noble Lord, Lord Aberdare, has told us: that this would be unusual. I also accept that the House should be—I think rightly—reluctant to throw out a private Bill of this kind which has gone through the process of a Select Committee that sat for seven days and made its own inspection. I think that the House should be reluctant to throw the Bill out at this stage. But, having said that, I considered at the time when the Select Committee sat and when it came to its conclusion and I consider now that there is one particular feature of this private Bill which makes it a private Bill of a most unusual character. That is a feature which justified the minority in voting against the Bill then and which would in my view justify the House rejecting this Bill tonight.
I must explain that this is not a legal point. It is a point which is basic to the consideration of the argument about this Bill. As any of your Lordships who have sat upon a Select Committee considering a proposal for a development of this kind will know, we are always told—and rightly told—that the burden of proving that what is proposed by the promoters is in the public interest rests upon the promoters. It is not the business of the petitioners to try to prove the contrary.
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That principle is one which in my view has a special importance in this case. I say that for the following reason. Often proposals of this kind which come in the form of a private Bill are made by statutory undertakers who are trying to seek powers to carry out their statutory obligations. That is one form of private Bill of this kind. Another kind of private Bill is one promoted by a local authority which again is seeking powers to carry out the obligations that it feels it owes to its district and to its electors.
The third form of such a private Bill is instigated by a property owner living in a locality who wants to get permission to develop the property in one way or another and who for sonic reason cannot get it through the ordinary planning procedures. He comes and presents a private Bill in order to enable him to carry out that development.
This Bill is quite different from all those three usual cases. It is different in the sense that it is promoted by a private entrepreneur, not by a statutory undertaking, not by a local authority and not by someone who lives and has property in a place and who wants to develop it. It is a proposal coming from a private entrepreneur who is seeking authority first to take over an existing pier and to undertake the responsibilities and acquire the rights of the company which has hitherto managed the pier and secondly to assume jurisdiction over about 20 acres of the open sea. Thirdly, he seeks permission to build in the open sea a pier or breakwater which will create an artificial harbour. Having done that, the entrepreneur or his company on his behalf seeks to have the powers of the harbour authority over the development.
It seems to me that there are two special features about the promoter's proposal which are not really in dispute. I do not really think that one of them will be questioned by any side in the controversy. That is that for better or for worse this proposed development will have a profound impact upon Swanage and upon Swanage Bay. The second feature which I suggest cannot be disputed is that this is a straightforward, plain commercial venture. It is not the case of a promoter who is seeking this permission because he is under any duty or obligation to carry out this development. So far as I know, nobody in Swanage ever asked him to provide them with a marina. He is admittedly promoting the Bill because there is a prospect of a large-scale commercial enterprise. There is nothing wrong in that; there is no reason why a person should not put forward a proposal of that kind. However, I consider that there are two features of the problem which serve to emphasise that the burden to satisfy us that their scheme is indeed in the public interest rests heavily on the promoters. They must show that what they are proposing to do is in the public interest.
Perhaps I may put forward three propositions. The first is that the public interest in this case is synonymous and coincidental with the interests of Swanage and the people who live and work there. That is the public interest with which we are concerned. Secondly, the private interests of the developers in putting forward this commercial exercise are immaterial when we are considering the public interest in the matter.

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My third proposition, which I urge on the House, is that the people who know best what is in their own interests and in the interests of Swanage are the people who live there. That notion may be very old-fashioned. However, I suggest that it is not for any outside body or authority to tell the people of Swanage what is good for them. Indeed, I do not think that it is the business of a Select Committee I do not suggest that it was done—to tell the people of Swanage what it thinks is good for them.
What do the people of Swanage want? We shall never get unanimity on that matter; that would be beyond all expectation. However, there are two things which are abundantly clear as the result of the hearing before the Select Committee. I believe that the majority of three who were in favour of the promoter's case will agree with me that there were many real and grave apprehensions among some sections of the population of Swanage about what the proposal means for the future of the harbour.
The second matter which I do not think will be in dispute is that there were very strong objections by people who have a lifelong and long-standing interest in the welfare of Swanage and its people. I estimate, having sat through the whole of the inquiry, that at the end of it those apprehensions were not allayed and the strong objections which were presented to the committee were maintained.
The committee was at a disadvantage, in that there was no way in which it could, at that stage, make more than a guess as to what the people of Swanage felt. However, as a result of the poll, we now know. There can no longer be any reasonable doubt as to the prevailing view of the people of Swanage. Therefore, if we say that the Bill should go on and if we do not stop it now, we shall be making our own views on the matter prevail over what is clearly the desire and wish of the great majority of people in Swanage.
The noble Lord, Lord Campbell of Croy, quoted some of the objections he had to the leaflet which was sent. I wonder when an election was ever held in which, after the result was declared, the losers were perfectly happy about the propaganda which had been issued by the winning side. No doubt there have been misrepresentations in the matter on both sides. But, when one considers the effect of that particular leaflet, one must ask who was in a better position than the people themselves to understand and realise the truth or otherwise of what was being asserted. They could easily judge—they live there—whether the little picture on the front was a proper representation of the height of the breakwater. They have been considering and discussing the matter over the last two years. Does the noble Lord really suggest that the result of that poll was achieved by a single leaflet which he contends was misleading on three points?
Lord Campbell of Croy: My Lords, perhaps the noble Lord will very kindly give way so that I may answer. He compared the poll to an election. However, my point was that the only information which the electorate had about the candidate was wrong. It was as though they were being given a
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different candidate and were voting for Mr. Smith instead of for Mr. Jones. The choice of haven was not the haven in the Bill; it was quite different.
Lord Foot: My Lords, the leaflet to which the noble Lord has referred sets out, if I am correct, 20 or 24 different matters. The noble Lord finds himself able to criticise it in three limited particulars.
Lord Campbell of Croy: Many more, my Lords.
Lord Foot: My Lords, I do not see that that is a false manifesto or a misrepresentation of the situation. However, I do not want to get involved in controversy with anyone, least of all the noble Lord. I urge on the House that we should hesitate a long time before we deliberately reject what are now transparently and openly the wishes of the people of Swanage in the matter.
7.55 p.m.
Lord Greenhill of Harrow: My Lords, I have known Swanage all my life and I consider that the Dorset coast in that area is one of the most beautiful parts of this country. I have a great affection for it. My affection does not equal that of the noble Lord, Lord Stewart of Fulham, which he has demonstrated tonight and to which he refers in his very agreeable autobiography.
I approached the work of the committee with an anxiety to protect the environment of the area and a strong interest in the wellbeing of the townsfolk. At the same time, I was aware that the fortunes of the town had declined in recent times. Whatever else has been said, I do not think that anyone can reasonably maintain that its fortunes have risen. It is clear that they have declined.
At the time that I started work with the committee, I was not aware that two similar projects had been considered since the war. I did not know of the third project to which the noble Lord, Lord Campbell of Croy, referred. Therefore, the idea of a harbour and marina within Swanage Bay has been in the minds of the people of Swanage for nearly 40 years. It is not a new idea. Having listened to the evidence which was given to the committee, I nevertheless reluctantly came to the conclusion that the Bill should be supported. It was not a conclusion that I wanted to reach. But in the event, I was convinced that it was logically and socially correct.
I should like to explain the reasons why I voted to support the Bill. Those reasons very closely resemble the reasons that the noble Lord, Lord Alport, has already given to the House. The first is that the economic future of the town is uncertain. I do not believe that can be contested. The town has been declining and the probability is that it will further do so. It is the victim of the change in holiday fashions and the rise in the standard of living of most of the people. The fall in the cost of European air fares which we were promised last week in the House will no doubt accelerate further the development of the package holiday while the number of bucket and spade visitors, so dear to the heart of Swanage, may well decline further.

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As the noble Lord, Lord Orr-Ewing, has stated, Swanage has a very short holiday season of six weeks and at the best of times its holiday earnings are limited. The marina will extend the season by many weeks and I suggest that the takings in the town for the extended holiday season will be very greatly superior to what has happened previously.
The fishing industry and the fishermen of Swanage have done well. They have marketed their catch in France very successfully. I do not believe that there is anything in the Bill which will prevent the expansion of the local fishing industry and I do not consider that it is threatened.
The second point that influenced me was the realisation by the townspeople that a change must be made. That was clearly shown by the planning approval given for 100 flats proposed to be built by Durrant Developments. These flats are of a kind hitherto new to the town. The architecture may not he to everyone's taste, but there can be no argument that these flats will bring to the town a different type of person who will substantially contribute to trade and to employment. All this has been accepted already by the people of Swanage.
The third point that influenced me was that a yacht haven is a natural complement to this type of housing development. As I pointed out, the new housing and the plan are no novelty to the people of Swanage.
The question was whether the yacht haven could be built without irreparable damage to the interests of those who live in the town. Doubt centred on the following points. The scheme involves the building of a substantial mole encroaching on available space hitherto used by the public and by professional and amateur fishermen. A substantial rearrangement of long-established moorings would become necessary. That is not impossible. Indeed, special arrangements have been made to accommodate the fishermen, who are already enjoying the moderate prosperity of their industry.
The mole obstructs the beautiful view enjoyed by a number of residents. I sympathise with them, but I must point out that the number of residents is strictly limited and, as was pointed out when we visited the town, it is only the view from their ground floor rooms which is blocked across the harbour. The view from the upstairs rooms is in no way affected.
I believe the mooring problem can be solved satisfactorily locally. Expert opinion on the effect of the mole upon the fishing and the seabed is that it will be negligible, although it is claimed that this opinion is based upon insufficient evidence and the opinion cannot be certain, as the noble Lord, Lord Stewart, pointed out. It is suggested that the evidence is not precise and definite. In any case, the developers have undertaken to make good any unexpected and unacceptable developments. My conclusion therefore is that the marina and the flats will contribute to a more sure economic future for the town at an acceptable cost to the environment and at no financial cost to the residents of Swanage.
It is natural for some people to like things to remain as they now are. I was very recently in the Falkland Islands, and that was exactly the view taken
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by the Falkland Islanders. That attitude is to be found everywhere, and from time to time I share it. But it can be selfish and unwarranted if it prejudices the prospects of a later generation.
The town council has already approved the development plan and its approval was repeated after the referendum or the vote to which the noble Lord, Lord Foot, attaches so much importance. The elected representatives of the people of Swanage, having seen the result of the vote, nevertheless repeated their approval of the plan. So I do not believe that we can be accused of overriding the wishes of the people if their representatives have supported the plan. Therefore, I feel that the plan should go forward.
8.7 p.m.
Lord Wynford: My Lords, like the noble Lord, Lord Greenhill of Harrow, who has just spoken, have known Swanage for a very long time. It was in fact 60 years ago that I first went there as a boy of 10 camping with the Scouts. I have continued to visit Swanage—at irregular intervals, I admit because of my way of life—but the fact is that I have kept in touch.
One of the main reasons is that my home is some 25 miles away to the west along the Dorset coast behind the Chesil beach. That beach is stony and very dangerous to bathe from. For that reason we sometimes, as a family, would visit Swanage. We have continued to go there since, as well as visiting other places. Some of my grandchildren are at school there now and I find myself going there to watch athletics, football matches and the like.
I claim therefore to know something of Swanage, and I have paid particular attention to the town in the past six months. I was there on 1st May this year just before the Second Reading of this Bill. I spent a day there—and a very fine day it was—talking to people. Having said that, I feel that it would not be right to do what I first intended. That was to re-emphasise the statutory poll. It has I think been thoroughly covered.
If your Lordships will bear with me, I have it in mind to say something about the development of the approach road from Wareham to Swanage. During the holiday season this road has great significance for the numerous population, as I shall explain. It goes back into the hinterland behind Swanage. I have carried out an examination. The area in question starts at the sea with the Isle of Purbeck and then Swanage along the coast. One step further inland there is Wareham, a fairly large town and increasing steadily in size—the centre of the area I am talking about. Further back, there is Bere Regis, forming the top of my move inland, so to speak.
It is in fact 18 miles by road from Swanage to Bere Regis. Therefore, I am dealing with an area 18 miles deep. I have taken 10 miles as an average for its breadth, which gives 180 square miles. As it is irregular on its eastward side where it touches Poole harbour—the Arne peninsula and all those pieces—I have cut down to 150 square miles the area which I call, for simplicity, the catchment area of Swanage.
In that catchment area, as I have found in travelling all over it and noting the changes every

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year, there is a huge variety of accommodation. There are of course a few private houses in which people live all the year round. But there are fewer hotels and boarding houses. I am told by local people that by far the most popular holiday residences are flats let for a week or a fortnight. There are bed and breakfast establishments. There are camping sites, by which I mean sites under canvas. There arc caravan parks, some very extensive ones towards Lulworth. One has 600 caravans. There are holiday cottages which are nearly always surplus to agricultural requirements let on weekly or fortnightly terms. There are also the second homes of those who live in the big conurbations of London and the Midlands. I know that because there is one on my farm. It is occupied by people from the Midlands. These second homes may sometimes be sub-let and so come into the general supply of holiday accommodation.
For all the people living in this area, Swanage is an easy day round trip for the family. I do not think I am exaggerating—I have asked people about this—when I say that in spring, summer and early autumn there may be peak periods when the normal population of the area is quadrupled. On that basis of calculation, taking 15,000 as the normal winter population, the peak population becomes 60,000. Therefore, we are talking about 60,000 people. They do not all want to go to Swanage. Some may go to Bournemouth and Weymouth. But these are the people who can reach Swanage in a day trip. It is, in fact, their closest seaside place.
There is a change taking place. The road from Wareham down to Swanage, is being immensely improved. It used to be a terrible road for falling rocks causing traffic congestion. There are large scale works going on now which will not be finished until next summer. But, already, journeys are starting to be a much quicker and less fraught operation for a family.
That is the potential of what I call the landward-side people. I do not see why they cannot be given some consideration. Everybody speaks about Swanage itself as just a town. But one needs to consider the people along the route through the Isle of Purbeck to the sea who probably come back year after year. They are looking for the sort of pleasures that Swanage happens to be very well provided with. Apart from fishing, dinghy sailing and wind surfing there are the pleasure steamers and facilities for family sea bathing and children's sea sports, as I call them—shrimping and collecting crabs in jam pots. There is the country park, a new development within walking distance of Swanage and a good one I am told, though I have not seen it. There are the downs walks around Swanage in the beautiful green hills which surround it like an ampitheatre. Lastly, there is the heritage coastal footpath which, passing through Swanage, continues through the rest of Dorset, Devon and Cornwall, and up the other side of Cornwall and Devon, ending I know not where. It is a footpath that one would take three, four or five days to cover. That is the sort of variety that these people are looking for. It is what they look forward to and what they book up to do.
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I ask myself: can it be right to superimpose a marina on this charming scheme. It would be all very well if there was room as, for example, at Brighton where there is a straight coast. There is lots more room there for people who want to enjoy the sea. However, this is a different matter. We have here what I call a question mark. It is a hook with a long tail coming out under it. The hook is where all these interesting things happen and that is exactly where they intend to build a marina.
Many of your Lordships have referred to Swanage Bay as large. It looks quite large even on a road map. On a chart it looks even larger. However, the whole thing is reduced down to this crook, and that is where everything happens. It cannot go further down the coast just because someone says it should. It is not like that. The cliffs become rather dangerous further down.
A feature of Swanage is that it is very safe for children. I maintain that there is not enough space to add a large and separate enterprise to what is already there. There are the disadvantages—what I call the unkown factors. No one really knows the answer to the shifting sands and the sewage. The sewage is to be cut up, but it only sinks to the bottom. The water looks clear, so you assume clear water until you possibly feel what is under your feet.
We should consider the interests of the far greater numbers in the landward catchment area which I have been talking about rather than the yachtsmen. The interests of the landward catchment area must prevail because of the numbers. Which of these two interests—the landward interests or the sailing man—is, in the instructions to the Select Committee, "in the public interest?" What has happened to "the character of Swanage and its bay?"
Surely, new yacht havens should be sited at places where commercial, maritime or even Royal Navy functions have faded away, for reasons which we all know. The situations in those places are quite different. To my mind those are the places for marinas. For example, at Portland there is a harbour with over four square miles of sheltered water within existing sea walls. The whole Home Fleet used to go in there until the outbreak of the Second World War. That is somewhere to start. Personally, I fully support the noble Lord, Lord Raglan, and I will act with him in whatever way he sees fit.
8.23 p.m.
Lord Campbell of Alloway: My Lords, I declare an interest having tendered professional advice in the Temple to the promoters of the Bill in the context of the conduct of the poll on 12th November. That is the extent of the interest that I declare. Although there was no breach of the parish and community meetings polls rules—Statutory Instrument No. 1 of 1987—on the information that I have seen, I am greatly troubled about the conduct of this poll and I wish to share with your Lordships some of my concern, much of which has already been most ably put before your Lordships by my noble friend Lord Campbell of Croy.

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It comes to this. On any objective analysis, this poll that is relied upon as the mainstay to challenge the findings of the Select Committee of your Lordships' House—in effect, that is what it is, no more no less—is wholly unreliable as a fair reflection of local opinion. Moreover, I question whether this is an appropriate stage of the Bill to reopen and re-argue the merits of the principle of the Bill or, with respect to my noble friend Lord Wynford and his most interesting speech given with the advantage of much local knowledge, whether questions such as the approach road or the catchment area of Swanage and whether there is room or the need for the proposals in the Bill, are appropriate matters for consideration on Third Reading, having particular regard to the fact that they have all been answered, "Yes, we approve of these proposals", by the Dorset County Council.
What is our function? It is interesting to listen to objections but this House is now procedurally at the Third Reading stage of the Bill. The Select Committee, by a majority, approved the Bill on 23rd July. It issued its report on 29th October. The town poll was held on 23rd November. On the very same day the Swanage town council took note and, by a majority of seven to five, maintained its support for the vote of approval for the Bill passed in June 1987. On 4th December the Purbeck Council confirmed its support for the Bill.
One talks of sewerage. The Wessex Water Authority is continuing its support for the Bill, as it always has done along with the Dorset County Council—and small wonder, because the present sewage disposal system is hazardous in the extreme, with a short pipe running into the sea and raw sewage being visible at times. The new maceration plant, or whatever it is called, which my clients, the promoters of the Bill, have now undertaken to pay for, would cost some £2 million to £3 million, on my information, and that would be a saving to the Wessex Water Authority.
I have looked into the matter and, so far as I am aware, there is no precedent for the holding of a town poll such as occurred after the special report of the Select Committee. Even if the poll were a reliable reflection of local opinion—which it is not—to accept the amendment would not only make a nonsense of the due processes of local government but, as was expounded by my noble friend the Chairman of Committees, it would be contrary to accepted practice. Further, it would, in that sense, be contrary to our procedures, unless of course there were cogent reasons which moved your Lordships to, in effect, reject this Bill.
The noble Lord, Lord Raglan, as I understand it, put forward two reasons. One was that the Select Committee failed to deal with the instruction. That is a matter for your Lordships, but has that charge been made out? From what I have heard in this debate I suggest that it has not been made out.
The second reason, as I understand the noble Lord, is his main one and is this town poll—the reflection of the will of local opinion. The campaign against this Bill in the run-up to the town poll was not only
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designed to mislead but was designed to confuse: consider the pamphlet Why the Vote Must Be No, material published in the Purbeck Mail and the trick vote cards with "Vote No" with the poll number and name. The promoters sought, in answer, to draw attention to this measure of deception in their own pamphlet—which I have seen—upon the issue which divides Swansea, and quotations were made from the Select Committee report.
The result of any poll conducted in an atmosphere of deception—be it wilful or innocent—is always suspect. This poll was conducted—as my noble friend Lord Campbell of Croy has mentioned— in such an atmosphere of deception. Indeed, as part of this campaign a petition was offered for signature, which stated:
"If this Bill is passed this whole area could he closed to the public and the fishermen would he pushed out and our beach lost for five or six years".
There are six reasons why I think—and I do not deal with the question of instructions, because other noble Lords have dealt with that—this poll is of no assistance to your Lordships tonight. It is also of no assistance, I would respectfully suggest, to the noble Lord, Lord Raglan, who relies so strongly upon it as his main reason to throw the Bill out.
First, there is the campaign literature which preceded this poll and which stated two grounds of opposition—Category A, a bigger sea wall was needed and Category B, no sea wall at all. But the form of the question put by the organisers, against the background of the "yes—no" campaign, was related solely to the proposal in the Bill which the Category A opponents might well have accepted. This is a serious defect in the electoral mechanism, and it flaws any reliance upon that poll.
Secondly, there was the question of the sea wall, as depicted not only in the material for the campaign but also in the Purbeck Mail, which suggested that it would totally obscure the magnificent views of Swanage and the hills. It was a trick, fake, false presentation, and no doubt intended as such. That is a serious matter of deception which renders unreliable a poll conducted in such a way.
It was then wrongly stated that 25,000 tons of sand would be lost. That again was a misleading and totally wrong suggestion. Also it was mentioned—I think it was in answer to a hypothetical question—that there would be no groynes. There is no question about it; there are groynes and there will be groynes. This statement was seriously misleading. With this kind of poll many people who have business interests in the town are disfranchised if they live outside.
As regards to the question of pushing the fishermen out, there is no question of pushing them out. Indeed, the position in relation to the fishermen is fairly straightforward. There are about 30 to 40 boats, with about 12 full-time fishermen who have moorings inside the harbour, and the rest are part-time or seasonal. The part-time and seasonal are outside the harbour but, nonetheless, they use the town boat park. Those moorings are to be replaced free of

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charge and under the proposals of the Bill a fishermen's quay—which does not exist at the moment—is to be constructed. How, apart from wishing to mislead, can it be said in all sincerity that the fishermen will he put out?
Of course there has been no objective consideration of the merits. For example, consider such matters as sewerage, roadworks and the lifeboat to which noble Lords have referred. The lifeboat would be the latest model, I understand, and would be berthed at the end of the most westerly pier extension.
Another important aspect is employment. For this purpose I am not entering into the area of discussion as to whether Swanage is run down or not. I should just like to deal with the stark fact that it has about the highest unemployment statistics in Dorset. Unemployment is a matter of particular concern—and always has been—to me and, I know,
to all your Lordships. In its construction this scheme will provide, as I understand it—although I am open to correction—of the order of 300 jobs, and, when it has been constructed, there will be a permanent staff.
There is yet another aspect which has not been mentioned and that is that under this scheme there will be safe anchorage, free access to the marina and safe anchorage in storms. That is not a mere trifle because noble Lords who live in that part of the world will know that never a year passes without a boat being lost in a storm. This is a matter of importance and a matter, if your Lordships are so minded, which should weigh with this House.
As I have said, this is not the occasion to argue the merits but, on the grounds that I have sought to suggest, I hope your Lordships will not accept this amendment, which would wreck this Bill, make a mockery of local government and not be wholly in accordance with the accepted practice of the House.
Viscount Caldecote: My Lords, I should just like to ask, before the noble Lord sits down, whether he does not think he is being a little unkind, perhaps a little unfair, to a group of local honest people who are merely doing their best for what they regard as the good of their locality. He poured a lot of cold water on the local poll, which was conducted I understand, according to the law, and then accused the local people who had conducted it of deception. I think that is really going rather too far in the circumstances.
Secondly, may I ask the noble Lord how many permanent jobs a marina for 250 boats is going to produce? About six is the answer. Finally, I should like to ask the noble Lord whether he has ever—
Lord Denham: My Lords, if my noble friend will forgive me, I think the noble Viscount is going a little bit too far in coming in before my noble friend sits down. It is a matter of procedure. We have already had a very long debate and I hope that we can now get on with it as quickly as possible.
Lord Campbell of Alloway: My Lords, if I may briefly answer, I do not withdraw anything I said. I took great care to check my facts before I said what I said. I was relieved to hear that my noble friend Lord Campbell of Croy took virtually the same points that I took, and if the noble Viscount was present he will have heard him use the word "deception". I do not withdraw it.
Lord Campbell of Croy: My Lords, I did not.
Lord Campbell of Alloway: My Lords, my noble friend did not; well, I did. With facts such as these, I am in the habit of calling a spade a spade. I cannot assist on the subject of employment, because I do not have the figures.
8.40 p.m.
Lord Wallace of Coslany: My Lords, unlike the noble Lord who has just sat down, I have no interest to declare except, perhaps, the preservation of some of the most beautiful spots around our coastline.
First, with the greatest of respect, I shall refer to what the Chairman of Committees said about the proceedings on Third Reading when he doubted the wisdom of voting against a Bill on Third Reading. He will recall that on some distant occasion a similar situation arose. I pointed out from the Front Bench that the Marquess of Salisbury advised the House on the Kent Water Bill of 1925 that the House was bound to support noble Lords in whose trust they placed the committee. Unless new evidence were produced, the House had a moral duty to support the Select Committee. Here is a clear case of new evidence being produced. It is of course rather unusual to have two dissenters publicly acknowledged. Secondly, there has been this debatable poll. That is another issue. I therefore suggest with great respect that there is every reason for the House to reconsider the whole position.
I do not want to take up much time, first, because my fellow dissenters covered the matters extensively. It has been said that there is a danger of some emotional appeal. I can assure noble Lords that there is no question of emotional reaction. Long hours spent listening to conflicting evidence and speeches tend to drain emotion. If any noble Lord has sat on a Select Committee, he will know what I mean.
After visiting Swanage, it is my considered opinion—if I had not visited Swanage it might have made a difference—that the development as outlined in the Bill constitutes a serious threat to the environment and character of Swanage. The magnificent and picturesque sweep of the bay would be eroded by the breakwater at the centre, even at high water. That would completely alter the whole scene. As I said, if I had not visited Swanage, I might have taken a contrary view. One or two other things arose during that visit. One was the attractive and popular little beach at Buckshaw, which will become a car park with added land reclaimed from the sea. In addition, a delightful footpath which we trudged would be diverted. By such diversion, it would lose its

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attractive character. As I understand it, one would have to walk through the car park on the new footpath.
The housing side of the project was not a matter for the committee, although paragraph 21 of the report notes that it constitutes some change in the character of Swanage. It appears that the local authority is now concerned about stage 2 of the housing development affecting the town's character. I must agree that during the committee's visit to Swanage, the only blot on the landscape was the empty Grosvenor Hotel, which was in the process of being demolished and which we viewed from the garden of the hotel at which we had lunch. Otherwise, in not very pleasant weather, the view was serene and beautiful. I think that all my noble colleagues will agree about that even if they dissented in the committee.
Paragraph 23 of the report says that the economic arguments in favour of the development outweigh the damage to the environment. We had masses of evidence to consider but little by way of economic argument. It was said that the scheme would provide about 40 jobs, but there were no facts to justify that. The estimate is pure guesswork. The number could be six or seven, but who knows? We had no evidence on that point.
The small but thriving fishing industry would be threatened by the construction and development of' the breakwater. At the moment there is a healthy export of lobsters to the Continent. That has been referred to by other noble Lords. The construction of the breakwater, the necessary blasting and the eventual extent of the breakwater, is bound to have an effect upon the fish and alter the tidal flow. It has been argued that when the breakwater is in and is seasoned, it is possible that the lobsters will find it nice accommodation. So far, the lobsters have not been consulted.
We heard conflicting evidence. A great deal of' scientific evidence was given to the committee. I place some stress on the fact that the evidence given by the fishermen came from generations of experience. They know the sea. They know their job. They know how to treat the sea at its worst and at its best. The maceration of sewage completely foxed me. I can only imagine that the digestive organs of the fish will benefit from that maceration. I must confess it put me off fish for about a week.
I come to the debatable point of the poll. I understand that the local authority—it has been confirmed—eventually gave its approval to the proposal by a small majority. Someone said 7:5. Since the Committee report issued on 29th October, we have had this debatable poll. It is a statutory poll. We were told that it was conducted between 4 p.m. and 9 p.m. in very wet and windy weather. Anyone who has had any experience of local government elections will know that it is a miracle that 54 per cent. of the people turned out on that occasion. It is evidence of the feeling about the Bill that we saw. My noble colleagues on the committee must agree that there was a great deal of feeling when we went down there. We were treated almost as VIPs.
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The noble Lord, Lord Campbell of Alloway, has referred to all sorts of discreditable things that might have happened. It is possible that there was some exaggeration on the leaflet that was put out. Of course the development company had the backing of an influential, professional PR organisation. I must confess that I know nothing about a free distribution of pens and pencils and so on. If that happened during a local government election, an objection would soon be made to the returning officer, hut that is by the by. I do not know what evidence of that can be produced. It has been said in the House, and therefore must he accepted with some degree of concern.
There has been great public concern. Feelings are and have been running high. That is only natural. Swanage is a small community. In a large urban sprawl, people could not care less about anyone else. In a small community, everyone matters and everything that goes on matters. That is why, whatever its shortcomings, I regard the poll as of great significance. After all, we are a democracy. The view of the majority must be taken into account, protecting as it does the preservation of the character of Swanage. That is what those people voted for and they should be respected. Therefore, I sincerely and strongly support the amendment.
8.50 p.m.
The Earl of Cork and Orrery: My Lords, perhaps noble Lords will be obliged to me because I intend to be exceedingly brief. I intend to repeat hardly anything that anyone else has said previously and I have something to say which is very nearly original in connection with this debate.
If I were making a sermon which I am not—I would take as my text a sentence at the end of the report which says:
"In the committee's opinion any fears about sewage have been set at rest".
I am afraid that is all too likely to be true. It was evidently so in the case of' the committee, but not for me. I think it is a great danger that anybody should be lulled into a sense of security over this matter, not only in Swanage but elsewhere around our coast, where anyone may be thinking of embarking on a project of a similar kind. I am thinking in particular of sewage pollution within the yacht haven.
Plenty has been said, written and agreed about what comes out of the main sewage outfall from the town. This comes out into the sea. In what must in fairness be said to be considerable generosity, the promoters have undertaken to put this right and to maintain it at their own expense. That is to the benefit of the town council and to the whole of Swanage. However, it is a mistake to think—as some appear to do—that sewage is something which is generated entirely on land. It also comes out of boats. I have no doubt that anybody who has ever seen a large number of boats on moorings together will be quite aware of this fact.
Hardly anything has been said so far, even in the evidence given to the Select Committee, about sewage

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generated within the harbour. Something is certainly said in the Bill that we are discussing. Clause 38(1) states:
"A person who within the yacht haven knowingly discharges or causes or permits to be discharged into the waters thereof any toxic, noxious or offensive matter…shall he liable on summary conviction to a fine not exceeding level 5 on the standard scale".
Your Lordships know what not to do if you find yourselves on a mooring in this marina—you are not allowed to do it. How will anybody stop you doing it? There are likely to he 250 boats. I do not know how many people there will be at any one time. But if this law is to be enforced there will be the most marvellous outbreak of constipation in Swanage.
The Bill goes on to say:
"Nothing in subsection (1)"—
that is the one which I have read out—
"shall affect the operation of Part II of the Control of Pollution Act 1974".
The previous subsection was an almost exact quotation from that, except that the Act refers to poisonous, noxious or polluting matter.
I should be quite wrong to give the impression that the promoters are not aware of all this. In evidence to the Select Committee the promoter himself, Mr. Durrant, said:
"The opening of the toilets into the harbour is strictly forbidden and if people are caught they can lose their mooring".
That was on day two, as reported at paragraph 3 on page 29. How will this be enforced? This law has been in force since 1974—for 13 years. Has it been enforced anywhere? Has it been observed anywhere? Can it be enforced anywhere? Is there the slightest likelihood that it will be enforced? I suggest that the answer to those questions is an emphatic no, it cannot be. Therefore, there will be pollution in the yacht haven.
What will the promoters do about that? The answer is in a way rather curious. They have referred to it in a rather oblique manner. Mr. Drinkwater, QC, counsel for the promoters, said:
"If…as a consequence of the construction of the works, any discharge material accumulated in the yacht haven or on the beaches in, or in the sea off, Swanage in such a manner as to be visible to the public",
and so on, they will be responsible for getting rid of it. The technical words used are "discharge material". Discharge material is what comes out of the sewerage pipe into the sea below what we hope is high water. It does not apparently refer to the yacht haven.
Later Mr. Drinkwater referred to discharge material continuing to accumulate,
"in consequence of the construction of the works in the yacht haven or on the beaches in or in the sea off Swanage in such a manner as to be visible to the public in the yacht haven or on the beaches".
The reference is to discharge material visible in the yacht haven.
It is difficult to refer to this issue without being disagreeable. He was still not talking about sewage generated within the yacht haven itself, within the boats. The noble Lord, Lord Greenhill of Harrow,
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saw the fallacy or ambiguity of this. The noble Lord said this:
"If I understand you right, there are two sources of pollution: one is from the sea outfall of the sewage of Swanage town, and then there is pollution within the yacht haven which comes from the yachts?
Mr. Drinkwater: Yes.
Lord Greenhill of Harrow: All this covers both?
Mr. Drinkwater: It does indeed and to the satisfaction, as drafted, of the water authority".
What are they undertaking to do? The undertaking that they have given and that I read out a moment ago applies, according to that last statement, also to the sewage within the harbour. They have undertaken to chop it up small so that it cannot be seen, and that is all. Instead of having visible filth floating about in the harbour one will have invisible filth going down to the bottom. No power on earth will prevent this from being generated in the first place. Nobody is proposing to take it away in the second place. This is what is facing the people of Swanage with regard to the yacht haven. When the sewage goes down into the water I suspect that it will take with it that treasured blue flag awarded by the EC to the people of Swanage in appreciation of the purity of their water.
This point applies not only to Swanage, but everywhere. This is what occurs wherever one has a marina, if one has 1,000 boats or 250 boats. It is only a difference of scale. Although at Swanage the scale may be small it is also important. It is a small, round harbour with only one opening. The tidal currents cannot flow through: they flow in and out. The only ones who will enjoy this situation are the lobsters.
8.59 p.m.
The Earl of Onslow: My Lords, I should like to take up the subject that my noble friend Lord Cork and Orrery has so delicately entered upon in this discussion: the question of sewage. The promoters demonstrated to us in committee that, far from the breakwater bringing sewage on to the shore, it was going to be pushed further out into the bay. We had many pretty graphs and many demonstrations showing that the sewage situation was going to be improved. One of the people rather delicately said that the only matter that worried them was cotton waste and chopped up rubber from the macerators. I shall leave it to your Lordships' consideration what that refers to.
When I was asked to sit on the committee, my first instinct was not to like the idea of the development at all. I thought it was unnecessary. I had not made up my mind. I had read the Second Reading debate but I did not feel sympathetic to the developers. When the committee sat, I had at the forefront of my mind the Instruction moved on Second Reading by the noble Lord, Lord Raglan.
However, I have o been convinced that the development will do good to the people of Swanage. As has been pointed out already by the noble Lord, Lord Campbell of Croy, Swanage has a higher percentage of unemployed than most of the rest of Dorset and Hampshire. Mr. Bruce, the Member of Parliament for the area in another place, has just told

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me of a letter that he has received. It is from a lady who says this:
"I have four children. Three have had to leave because there arc no jobs for them in Swanage. Please help the Bill through and they will get jobs."
To pretend that a large development of this nature will not reduce jobs flies in the face of economic logic. It will produce ship's chandlers, a boat repairing facility and a need for people to work in restaurants and shops selling goods, clothing, and so on. To say that it will drive out what is called the "bucket and spade brigade" strikes me as being a fallacy. One has only to go to other marinas on the south coast or to Cowes to see the numbers of ordinary tourists gawking at yachts. It is a fun thing on holiday to go gawking at yachts.
The objectors struck me as being intensely conservative people, intensely worried people and utterly genuine people. But when I listened to the evidence in the case I was convinced in the end that they were misguided.
The leaflet Why You Must Vote No is unrecognisable as against the matter in regard to which I served on a committee for two weeks. Attached to it is a letter that most of your Lordships have received. It contains seven paragraphs. The first refers to loss of a fine sandy beach. This is nonsense. Then there is reference to the destruction of an historic beauty spot by the breakwater. As to the picture on the front, it looks like that if you stick yourself right under the breakwater at low tide and look up and become an aircraft spotter. It is said that the lifeboat will be displaced. The RNLI has not objected to it. It has accepted it. The institution knows its business. If it had been unhappy, I do not believe that we would have failed to listen to it with a great deal of sympathy. The fact that the RNLI did not object destroyed any evidence to the contrary. As I pointed out to the noble Lord, Lord Stewart of Fulham, 11 fishing boats—it was nine—now have sailable rights that they would not have had hitherto. Their rights have not been taken away.
Then there is reference to pollution of the bay by sewage and fuel. I think that we have heard enough of sewage. Several boats are fuelled by cans rather than by bowser or bunkering. Everybody knows that tipping petrol or diesel through a funnel in a rocking boat with even the slightest of swell is liable to end in spillage much more so than if one is tucked up in a safe bunkerage. Reference is made to a self-contained marina village, including shops and restaurants, posing a threat to local traders. Surely what we are learning very painfully is that competition creates jobs and protection does not.
That brings me right back to the Felixstowe Docks and Harbour Bill. The purpose of the Bill was to impose the dock labour scheme on Felixstowe, an old-fashioned protection racket. That was the price demanded by the then Government for the support of a prices and incomes policy that collapsed. I suggest that in your Lordships' House we are dealing with something quite different.
I respect the sincerity of my two colleagues who voted against the Bill. I think that it was the most enjoyable committee, in which we heard a great deal
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of well-presented, professional evidence. I would not change my mind; on reflection, I have had my view reinforced. I therefore urge noble Lords to vote to allow the Bill to go to another place so that, if Members of that place do not like it, they can kill it rather than that Members of this House should stop the creation of a few jobs in a place where they are desperately needed.
9.6 p.m.
Baroness Nicol: My Lords, first I make clear that although I speak from the Opposition Front Bench, I speak in a personal capacity, since this is a private Bill, and not on behalf of my noble friends.
The undertakings given to the Select Committee have gone some way to meeting the objections raised in the House on Second Reading. I am glad at this point to acknowledge the efforts of the Select Committee. I have read all seven volumes of the evidence. Although I did not attend the committee, I believe that I have read just about every word that was said, and pretty hard going it was at times. I take my hat off to the efforts of the committee.
Some substantial objections remain. The noble Lord, Lord Greenway, was correct when he said that the lifeboat arrangements were now satisfactory. I think that they are so far as concerns the RNLI. Whatever misgivings we may have about the lifeboat as a children's attraction, the fact that the institution is happy with it should be enough for us. I accept that.
I come to the fishermen. There is still a little to be said here. There seems some doubt about whether the original nine berths have been increased to 12, as the noble Lord, Lord Campbell of Croy, said; or to 11, as the noble Earl said. Whatever the figure may be, we know that a minimum of nine, and possibly 12, berths are available. However, it is limiting because it does not accommodate success among those existing fishermen. If a fisherman wishes to expand in the size of his boat or in the number of his boats he is unable to do so. He will then forfeit his right to the moorings.
Mr. Drinkwater said in evidence that he can talk to Mr. Durrant. Perhaps I may quote from Day 7 of the hearings. At page 83, Mr. Drinkwater said:
"My Lords, what about Mr. Durrant? I put him forward to your Lordships as a tough man but a fair man and he has indicated he is a fair man, a straight dealing man, by repairing the pier".
He goes on to say that Mr. Durrant will be sympathetic to any young man who puts forward to him the need for expansion. Clause 51 of the Bill specifically allows Durrant Developments to sell on the development as soon as it is completed. On past experience this is quite likely to happen. What will then happen to the undertaking that was given on behalf of Mr. Durrant? Will the new owners take it on? It does not say so in the Bill. To those fishermen the assurance has little value.
The committee was invited to rely heavily on the good intentions of Mr. Durrant in this and other matters but in the event of his disappearance there is nothing in the Bill that will help our upwardly mobile young fishermen. I wonder whether when he comes to reply the noble Lord, Lord Campbell of Croy, will clear up that matter for me.

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I come back briefly to the issue of sewage. Until the noble Earl, Lord Cork and Orrery, decided to speak about it, I wondered whether anyone other than me had misgivings about what will happen to it. The agreement seems to be that provided the sewage is not actually visible, all will be well. The seas will be polluted by finely chopped sewage which will get into the crevices of the breakwater. The beach and the haven itself will be polluted. This seems to be acceptable to those who support the development. I do not find it acceptable and I am surprised that others do, especially as the quantity of sewage to be dealt with will be greatly increased by the housing development as well as by the yacht haven itself.
Even if all the practical problems have been overcome, there remains the fact that the people of Swanage are to lose amenities which they have enjoyed for generations. The noble Lord, Lord Stewart of Fulham, was eloquent on this point, and I support everything that he said. They are to lose them without prior consultation and without compensation. They are to see the character of their town changed and their outlook obstructed, even if it is not all the residents, as the noble Earl. Lord Onslow, pointed out. That is no consolation. It certainly would be no consolation for me to go upstairs and see that view from my bedroom if I could not see it from the ground floor.
The developers make much of the fact that the local people have no rights in law. That point has been repeated in the House tonight. That may be so but there is a standing conferred in this country by usage and tradition which is respected by us all. We in this House should be especially sensitive to this convention. We heard from the noble Lord, Lord Aberdare, about respecting conventions as opposed to laws. We cannot have it both ways.
In return for the loss of amenity which the residents are to suffer it is suggested that there will be economic benefits for the town. I have already said that I read all seven volumes of the evidence, and so I did, but I could find very little to uphold the argument in favour of the economic awards. Yes, there certainly will be jobs, but will these outweigh the losses that will inevitably occur as a result of the development?
Many visitors come to Swanage for what it is now. It has a healthy tourist economy. In spite of the remarks that have been made about the bucket and spade brigade, I believe it is still alive and well and flourishing in most of the young families that I know. They still go to Swanage to enjoy that age-old pastime. As the noble Lord, Lord Wynford, said, there is a trend now towards self-catering which explains the downfall of the large hotels. I do not think anyone regrets the passing of the derelict hotel to make way for housing. The residents of Swanage have said on many occasions that they welcome the new housing that has gone up.
In any case the noble Lord, Lord Raglan, has told us that, as regards shopping in the town, the developer is installing his own shops by the yacht haven and he will cream off a good deal of the profits which would normally have gone to the existing shops in the town. But I agree that there will be a
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spin-off from other things connected with the yacht haven.
I share the concern of the residents as expressed in the poll of 12th November. I know that there has been a quite strong attempt to discredit this poll, but I have been involved in local government and in polls of this kind often enough to know what a stout effort it was to get out so many people on such a day over such a very short period of time.
We are told that since only 36 per cent. of the total electorate voted in the poll perhaps we should not take it too seriously; but the vote was two-to-one against of those taking part, and I believe that few of them would have been hoodwinked by the leaflet that went out. It was a true representation of a particular view, and few of them would have read the entire text. Some governments, and many local authorities, have come to office on lower votes than that.
In the interests of time, I am trying not to repeat what has already been said. There still seems some way to go before a development such as this is acceptable to a majority of the people of Swanage. The noble Lord. Lord Campbell, indicated that more public relations work needed to be done. That may well be so; but perhaps it ought to have been done before this exercise was started. It is rather late in the day to do it now.
Lord Campbell of Croy: My Lords would the noble Baroness say to which Lord Campbell she was referring'?
Baroness Nicol: I am sorry, Lord Campbell of Croy.
Lord Campbell of Croy: I did not say that.
Baroness Nicol: I am sorry. When both Campbells are coming it is a hit hard to distinguish.
The noble Lord, Lord Alport, felt that Swanage had missed the bus. But they have had two buses along already; and I believe that, given the opportunity, a third may yet come. If the arguments in favour of such a development are so overwhelming, I do not think that they will miss another bus. Until the remaining objections are overcome, if the noble Lord, Lord Raglan, chooses to go to a Division, I shall support him.
9.16 p.m.
Lord Hesketh: My Lords, it may be helpful if at this point I briefly intervene to state the Government's view on the Bill. The Government have considered the content of the Bill and have no objection in principle to the proposals in the Bill. It is for the promoters to persuade Parliament that the powers they are seeking are necessary and justified.
The Government appreciate that there are strong feelings held about the proposed yacht haven at Swanage on the one hand by the promoters, and on the other by those, petitioners and others, who are opposed to it. The Select Committee, however, considered all the issues very carefully and allowed

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the Bill to proceed. It is not for us to comment on the provisions of the Bill as amended in committee. We do not wish to take sides. If any organisation, or individual, remains dissatisfied with any aspect of the Bill, it will of course be free to petition against the Bill in another place.
The Select Committee had before it the question of whether or not the Bill should proceed and has reported in favour. In my opinion there would have to be very good reasons for the House to take a different view. I should prefer to take the advice of the Select Committee of your Lordships' House (subject to the amendments it has made and the undertakings given) and accordingly I believe that the Bill should be given a Third Reading.
Lord Campbell of Croy: My Lords, I shall try to reply briefly to the points that have been raised hoping that this will help the House after a very good natured debate. First, the noble Lord, Lord Raglan, mentioned the Felixstowe precedent, which is the only one where a private Bill has been killed in recent years. As others have pointed out, that was in a different category. It engaged the national policies of the political parties as a whole and it was not a local issue.
I am sorry that the noble Lord seemed to be critical of the Select Committee in thinking that it had not fully carried out the instruction. He raised the question of the fishermen, as did the noble Lord, Lord Stewart of Fulham. The fishermen are of course continuing discussions, but the full-time fishermen are satisfied with what has been arranged for them. They would lose all the benefits which do not exist now and which they would gain under the undertakings, and which would not exist if the Bill were to fall.
The noble Lord, Lord Raglan, raised an important point about Clause 41, which removes the status of Swanage as a fishery harbour. The promoters were perfectly prepared to delete that clause. It is the Ministry of Agriculture, Fisheries and Food which has recommended that it remain. I quote from its letter to the parliamentary agents. It says:
"The loss of fishery harbour status merely means that by-laws or harbour orders would have to be confirmed by the Secretary of State for Transport rather than the Minister of Agriculture, Fisheries and Food. It would have no effect on the fishermen's activities".
I can confirm from my own knowledge that this is dealing with harbour management, but in future the Department of Transport would be doing it. Vessel management would be unaffected. There is no change of substance as regards that matter.
The noble Lord, Lord Foot, referred to the lifeboat. The RNLI have signed the agreement and are completely satisfied with it; and I suggest that the noble Lord deals directly with them.
In a thoughtful speech the noble Lord, Lord Foot, accepted the general advice of the Chairman of Committees. However, he said that this was a different case in that a private entrepreneur was promoting the Bill and the scheme. A private entrepreneur must use that procedure; so it is a criticism of the procedure. I can assure the noble Lord that the promoters sympathise with the
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situation because—briefly, at this time of night—as the foreshore is involved it is necessary for a promoter to go through the private Bill procedure, even though planning permission has already been granted. It must be a private scheme because the previous schemes depended upon public money, which was not forthcoming. Therefore only a private scheme now has any chance of success.
Much has been said about the town poll, which has been compared with an election. It is not like an election, local or general. I was not complaining about propaganda; it was the supposed facts that were being put forward by the "NO!" campaign which were seriously wrong. To many it presented facts about the yacht marina which were incorrect and alarming. In my opening speech I mentioned only three glaring examples in the interests of brevity but there were also others. In an election there is a choice between candidates—shall we say Smith or Jones. If supposed facts are produced that Smith is Chinese and four foot two inches in height, that can easily be corrected. If it is claimed that Jones has a first class honours degree from Cambridge, that can also be checked and corrected if it is wrong. However, if a completely wrong and alarming picture of the project is produced by one campaign in a poll where the electors are expected to vote simply yes or no, it is not easy to put the matter right in time, as can be done with qualifications or the description of a candidate in an election.
My noble friend Lord Cork rightly raised an exceedingly good separate point. It was the question of sewage from boats. I said that the sewage from the town has been well looked after. First, I understand that most of the boats, if not all, now moored in the bay at present discharge sewage straight into the bay. It is intended to have a pump-out system of facilities for boats in the new yacht haven and to encourage tanks and chemical closets in all of them. With that discipline there will be a great improvement upon the system.
The Earl of Cork and Orrery: My Lords, I hope that my noble friend will forgive me for interrupting. He says that they will be encouraged to do that, but what form of encouragement is likely to be effective with people coming in from the sea?
Lord Campbell of Croy: My Lords, this facility is being introduced in various ports around the coast. The promoters of the Bill are intending that the practice rightly raised by the noble Lord, and which is being carried on at the moment, should be stopped. This is a case where the law is also being changed and if the promoters have powers they will certainly use them.
As the Select Committee has reported, there have been other proposals in the past for a yacht haven. They failed largely because they were dependent upon an element of finance from the public purse, which proved not to be forthcoming. This scheme is not dependent upon public finance and the promoters have undertaken to pay for improvements which might not otherwise have been embarked upon for years; for example, the sewage arrangements.

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The noble Baroness, Lady Nicol, asked me to reply to a particular point as regards the fishermen. I confirmed that 11 berths were mentioned; but that number has now been increased to 12. At the moment there are nine full-time fishermen. I understand that no newcomers are visible but three places are now available. As far as I know, that immediately carries out the proposal of the Select Committee. As regards the fishermen in general, in my opinion they will be as well off, if not better, under the proposed arrangements as they are now. As I think many noble Lords know, I have been active on behalf of sea fishermen for more than 40 years, including my time in another place representing a fishing constituency. I can recognise a good deal for fishermen when I see it and I would not commend a regime which put them at a disadvantage or damaged their interests. I ask the noble Lord, Lord Raglan, to think very hard before he takes action this evening which would put at risk the further consideration of this Bill.
Much has been made of the poll. Was it on this scheme or was it on a horror haven conjured up and described in alarming terms? If the poll is a matter to he taken into account now—it took place only a month ago, after the Select Committee's work—then it ought to be considered properly by a Select Committee in another place. I hope the noble Lord will also heed the advice of the Chairman of Committees the noble Lord, Lord Aberdare.
Whatever the result this evening—and I am sorry that many peers have to be at engagements elsewhere and cannot be with us—I have every expectation myself of being here in 10 years' time and, if I am spared, 20 years' time. I will ensure, with the help of the Whips of the day, that the Swanage situation is raised in 10 years' time, by an Unstarred Question or in some other way. If this scheme has been frustrated and the town and its area have clearly been what the Select Committee term the losers, then I hope that the noble Lord, Lord Raglan, will be in his place and will accept his share of the responsibility for what has happened.
Lord Raglan: My Lords, I will, if it happens. As the debate has proceeded so noble Lords have answered most other noble Lords' points. There are just one or two to which I think I should refer. The noble Lord. Lord Orr-Ewing, who is not in his place, was in favour of a marina, any marina, every marina. He did not get my point that this is not any marina. Of course marinas can be a good thing, but not here.
The noble Lord, Lord Greenway, made quite a number of accusations about misleading statements and was corrected on one. Yet he made one which is starkly misleading. It shows that one cannot be too careful. He described the part of the bay taken by this marina as being only 2.5 per cent. of Swanage Bay. Of course, Swanage Bay is two miles across. I was very careful to try to describe to your Lordships that the part of the bay that is involved is in fact only a tiny part, and the only bit which is sheltered. So we are not talking about 2.5 per cent. of Swanage Bay. We are talking about half the parking area for boats. As far as I can judge, the marina itself, with its area of
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jurisdiction, is about 20 acres, and there are about another 20 acres on either side of it. It will go in the middle. So you are talking about its taking half of the usable area of Swanage haven.
Lord Greenway: My Lords, will the noble Lord allow me to intervene? In the generally accepted sense the limits of Swanage Bay stretch from just off Peveril Point to the Old Harry Rocks. I can appreciate that that might cause a little concern to the noble Lord. Some people might think that the limit should perhaps be taken from what I think is called Ballard Point. But even so, this would still amount to no more than about 5 per cent. of the bay.
Lord Raglan: My Lords, the noble Lord's point was to try to minimise things. He accused me of trying to maximise them. The fact is that it is not a fair percentage. We are talking about roughly half the usable area of the bay. The noble Lord, Lord Greenway, also said that it would enhance the fishing. That is something I did not understand. The noble Earl, Lord Onslow, gave us to understand that there would be a boat-repairing facility there —something that I have never heard before. I should like to say to him that yes, indeed the lifeboat has accepted the position. But it has had to put itself right with the developer as the only sensible thing to do—
The Earl of Onslow: My Lords, may I interrupt very briefly and say this to the noble Lord? If the RNLI had in any way objected to any of the proposals given to it, I would bet my last shilling that it would have lodged a petition. It certainly has the money, the expertise and the experience. If the RNLI had not been completely happy, it would have lodged a petition. It was not a question of no choice at all.
Lord Raglan: My Lords, the lifeboat would rather stay where it is; but if it is put into the marina it shall accept that it is put into the marina. The noble Lord, Lord Campbell of Croy, talked about the designation as a fishery harbour and said that the Ministry of Agriculture was against it. I pointed out that the Sea Fish Industry Authority was advising the fishermen against it, so this is another uncertainty. This Bill is surrounded by uncertainty and this is yet another one which has not been resolved.
Many noble Lords tried to cast doubt upon the significance of the poll. That only shows how important, how significant, they think this Bill is. It is a significant matter. That is something that led me to put down this Motion. There are two points of principle which have very much concerned me and many noble Lords who have spoken against this Bill, but which do not seem to have struck noble Lords who have spoken in favour of it in the same way.
The first is the point of the noble Lord, Lord Foot, that the onus of proof is upon the developer to show that the Bill is for the public benefit, or is necessary and justified, as the noble Lord, Lord Hesketh, said. It has not been demonstrated that the Bill has that quality.

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Much has been alleged today about the decline of Swanage; but not one bit of evidence was produced to the committee or was contained in the report, or has been produced this afternoon to support the view that the town is in decline. The committee received three expressions of opinion from people who were strongly in favour of the scheme that they thought the marina would benefit the town. But they produced no figures, and no research has been undertaken in the matter.
Yet I am told that there are only three commercial premises unlet out of 192; that in the season the place is choked with cars; that the caravan parks surrounding the town are expanding; and, as the noble Earl, Lord Cork, said, the beach has the rare accolade of an EC blue riband. No evidence has been produced that the marina will much benefit the town or that the town requires the benefit that a marina might bring.
Secondly, there is the principle which exercised my noble friend Lord Stewart; that of enclosing what is now a noted public amenity for a private benefit. I specifically underlined this matter in my speech and addressed myself to the noble Lord, Lord Alport, but he did not respond and I believe that he had not considered the point. It just shows how differently two people can view things. It is a matter of very deep concern and I cannot better express the essence of the matter than by quoting a boatman who gave evidence to the committee. Speaking of the part of the bay which would be taken by the yachting, he said:
"It is the most precious and used part of Swanage. Everyone uses that part and that is going to be taken away".
Some places have to be protected. Some developments have to be refused. There is no doubt whatever in my mind that this is one of them. I ask your Lordships to join me in voting for my amendment.
The Deputy Speaker (Lord Renton): My Lords, the original Question was, That this Bill be now read a third time; since when an amendment has been moved to leave out ("now") and at end to insert ("this day six months"). The Question is, That this amendment be agreed to.
9.35 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 55; Not-Contents, 45.

DIVISION NO. 1

CONTENTS

Ailesbury, M.

Milford, L.

Blease, L.

Monson, L.

Brooks of Tremorfa, L.

Morton of Shuna, L.

Buckmaster, V.

Nicol, B.

Caldecote, V.

Oram, L.

Carmichael of Kelvingrove, L.

Parry, L.

Cork and Orrery, E. [Teller.]

Peston, L.

David, B.

Phillips, B.

Dormand of Easington, L.

Pitt of Hampstead, L.

Elwyn-Jones, L.

Prys-Davies, L.

Ewart-Biggs, B.

Raglan, L. [Teller.]

Faithfull, B.

Russell, E.

Foot, L.

Seear, B.

Galpern, L.

Shannon, E.

Gladwyn, L.

Simon, V.

Graham of Edmonton, L.

Stedman, B.

Hampton, L.

Stewart of Fulham, L.

Hatch of Lusby, L.

Stoddart of Swindon, L.

Jay, L.

Taylor of Blackburn, L.

Jeger, B.

Tordoff, L.

John-Mackie, L.

Underhill. L.

Kennet, L.

Wallace of Coslany, L.

Kilmarnock, L.

Walston, L.

Lockwood, B.

White, B.

McIntosh of Haringey, L.

Winchilsea and Nottingham E.

Mackie of Benshie, L.

McNair, L.

Wynford, L.

Mayhew, L.

Ypres, E.

NOT-CONTENTS

Allenby of Megiddo, V.

Forte, L.

Alport, L.

Gray of Contin, L.

Ampthill, L.

Greenhill of Harrow. L.

Arran. E.

Greenway, L. [Teller.]

Beaverbrook, L.

Hesketh, L.

Belstead, L.

Howie of Troon, L.

Boardman, L.

Kimball, L.

Brabazon of Tara. L.

Lindsay, E.

Brain. L.

Lucas of Chilworth, L.

Brougham and Vaux. L.

Montgomery of Alamein, V.

Butterworth, L.

Mountevans, L.

Campbell of Alloway, L.

Munster, E.

Campbell of Croy, L.

Murton of Lindisfarne, L.

Carnegy of Lour, B.

Onslow, E. [Teller.]

Craigavon, V.

Saltoun of Abernethy, Ly.

Craigmyle, L.

Selborne, E.

Crickhowell, L.

Selkirk, E.

Cullen of Ashbourne, L.

Sharples, B.

Davidson, V.

Stodart of Leaston, L.

Denham, L.

Terrington, L.

Dundee, E.

Thorneycroft, L.

Elliott of Morpeth, L.

Trefgarne, L.

Resolved in the affirmative, and amendment agreed to accordingly.

Draft Air Navigation Order 1987
9.44 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara)The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara)
rose to move, That the draft order laid before the House on 23rd November be approved [9th Report from the Joint Committee].
The noble Lord said: My Lords, this order, which is made under the provisions of the Civil Aviation Act 1982, is the fifth of its kind and is intended to replace the Air Navigation (Noise Certification) Order 1986. As on earlier occasions, we thought it preferable to revoke the existing order rather than introduce an amendment order. The reason for this is to simplify what otherwise might be a complex document. Having studied the draft order, it will be apparent to your Lordships how well we have succeeded in that aim.
I should perhaps explain that the seeming complexity of this short order is due to the numerous categories of aircraft and related standards, which for the most part vary with the type and weight of the aircraft, and the date when the certificate of airworthiness for either the prototype or derived version was applied for. Furthermore, when dealing with newer designs of jet aeroplanes the type and number of engines is also relevant.
The draft order is intended to give effect in the United Kingdom to the recommendations and noise standards agreed by the International Civil Aviation Organisation's Committee on Aviation Environmental Protection at its first meeting held in June last year. We regard the work of the committee as important, and my department plays an active part in it. These standards will be promulgated by the ICAO early next year. The UK will be one of the first to introduce them.
The main change from the 1986 order is the introduction of new noise certification standards for light propeller-driven aeroplanes. This involves an increase in the weight limit from 5,700 kg to 9,000 kg in the definition of this class of aeroplane. The new test, entailing a change from measurements made during level fly-over to recording the noise levels following take-off, is designed to be representative of that phase of the flight which causes the greatest disturbance.
We are also introducing a requirement that foreign registered microlight aircraft should be capable of meeting the UK's most stringent microlight noise standards when operated in this country. These are our own standards. In this field we are ahead of ICAO.
A number of other minor changes have been made to bring the order into line with existing ICAO recommendations.
Perhaps I should make the point that the standards which ICAO develops are set at levels which have been shown to be technically feasible and economically reasonable for the particular category of aircraft to which they apply. They try to ensure that all types of aircraft have equally stringent standards applied to them and that the latest technological advances in making aircraft quieter are
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quickly reflected in a tightening of the standards. This, of course, is why there are so many of them.
Like the order it replaces, the new order is structured to bring within its scope whole categories of aircraft, while provision is made for exemptions to be granted by the Civil Aviation Authority after consultation with the Secretary of State. Thus to appreciate the full effect of the order it is necessary to refer to the Civil Aviation Authority's Official Record Series 4, which gives details of exempted aircraft. Copies of this and of the British Civil Airworthiness Requirements, Section N—Noise, dated 1st January 1988, which is, if you like, the technical manual that fleshes out the standards contained in the order, have been placed in your Lordships' Library. Broadly speaking exemptions are given to those categories of aircraft for which no ICAO standards exist.
At this point I should like to assure the House that our manufacturing industry and my noble friend the Secretary of State for Trade and Industry have known of these impending new standards for some time and are satisfied that they can meet the challenge they offer.
Although it is coincidental, the date when this order would come into effect (1st January 1988) is important for another reason. From that date all subsonic jet aircraft which do not satisfy the requirements of this order will be banned from operating in the United Kingdom. Such aeroplanes on the UK register were banned on 1st January 1986, which ensured that early jet aircraft such as the Trident—a good but noisy aeroplane—could no longer operate. I know that this measure gave welcome relief to many people living around our major airports. The 1st January 1988 ban completes the phasing out of these older aircraft. On this, as in other noise matters, the UK has taken the lead. We have been firmer than our European colleagues, often in the face of strong pleas from foreign airlines which find the ban inconvenient, or even costly.
I believe that it might be helpful to refer to two potential forms of aircraft disturbance which are not covered by the order. The first, airships, is one which a number of people have already experienced, while the other, prop fans, is at the development stage.
It will perhaps come as no surprise to this House to learn that I have received a number of complaints from members of another place about the operation of Airship Industry's Skyship 600 last summer. The company, aware of the annoyance its airship caused some people, agreed to limit its speed—and therefore peak noise levels over built-up areas. It varied its routes as much as possible and put a lot of work into reducing the noise at source. Regrettably its efforts were not as successful as one might have wished. I understand however that it has since developed a new silencer which it is confident will make a significant difference to the noise levels.
Last summer we asked the Civil Aviation Authority to undertake a number of noise measurements for us, and if the airship returns next year we shall ask them to continue to do so. The disturbance caused by aircraft noise is very real, and I do not believe that people should be exposed to it

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if it can be reasonably avoided. It is for this reason that we shall be monitoring closely the activities of this airship and any others that may be operating. It will not surprise your Lordships if I point out that there are few operational airships and that the international organisations have not contemplated the introduction of noise standards for them.
I turn now to the question of prop fans, or unducted fans, or ultra high bypass ratio engines—they have been given a number of names. This new form of propulsion has aroused a great deal of interest among airlines in view of its claimed low fuel consumption. While manufacturers have not as yet released noise data, they have indicated that aeroplanes equipped with these new engines will comply with the most stringent international standards for jet aircraft, which relate to noise on take-off and landing. They should not, therefore, add to the noise problem around airports.
On the other hand, there have been reports expressing concern about possible levels of noise while such aeroplanes are climbing at high altitudes and during cruise. Before allowing this new type of aeroplane to operate I propose to seek international agreement to standards that will ensure that these aeroplanes will not add to the disturbance experienced by people living under flightpaths. To this end we are involved in the studies being undertaken by the International Civil Aviation Organisation, the recognised body for aircraft noise regulation, into the problems of setting new noise standards, including standards for noise made by aircraft en route, for this class of aircraft.
There are no easy solutions to the problems of aircraft noise. Our noise certification policies have made a significant contribution to alleviating the problem over the years and the purpose of this order is to further that process. I commend the draft order to your Lordships and beg to move.
Moved, That the draft order laid before the House on 23rd November be approved [9th Report from the Joint Committee].—(Lord Brabazon of Tara.)
Lord Underhill: My Lords, I have just a few observations. I agree with the premise of the Minister when he said that anything that can be done to lessen the difficulties of people living in the vicinity of airports should be done. I believe he has explained that satisfactorily.
When the 1986 order was brought before the House I believe I said that but for the explanation of the then Minister, it would have been a very complicated document. Despite the assurance by the Minister, I still find it a very complicated and technical document. However, his explanation has been satisfactory.
I looked at three particular points; namely, the scope of the order and the fact that, generally speaking, it applies to all aircraft landing and taking off anywhere in the UK; secondly, certification which is quite clear in the order; and thirdly, enforcement. Those three points are thoroughly satisfied. With the explanation given by the Minister to make this a little
698
more understandable, I welcome the approach made to reduce noise pollution.
On Question, Motion agreed to.

National Metrological Co-ordinating Unit (Transfer of Functions and Abolition Order) 1987
9.55 p.m.
Lord Beaverbrook Lord Beaverbrook rose to move, That the draft order laid before the House on 16th November be approved [8th Report from the Joint Committee].
The noble Lord said: My Lords, the National Metrological Co-ordinating Unit is a non-departmental public body established by the Weights and Measures Act 1979 to co-ordinate local authority administration of the then new Community-wide "average" system of weights and measures control.
Just before the NMCU came into existence, the local authorities had set up their own co-ordinating body on trading standards, known as LACOTS, which co-ordinates local authority administration of most other consumer protection law on a non-statutory basis. LACOTS would have been the obvious choice for co-ordinating average system administration too, but it was felt then that a statutory body would be more appropriate to oversee the introduction of this radically new system of control by local authorities. That is why the NMCU was set up as a separate statutory body. However, it was agreed during the passage of the 1979 Act that the day-to-day running of the NMCU should be firmly in the hands of the local authorities. In practice, the NMCU shares membership, accommodation and staff with LACOTS.
The Department of Trade and Industry recently conducted a policy review of the NMCU which concluded that the unit should now be abolished. The reason for this is that after eight years the average system is now so well established that there is no longer any need for separate statutory co-ordination of administration. Instead, LACOTS has agreed to include the average system with its other work on behalf of the local authorities on a non-statutory basis.
The order which is now before your Lordships will abolish the unit and transfer its functions to the Secretary of State. However, this is only an interim measure. Apart from some minor registration required by EC law, the Government certainly have no wish to assume permanent responsibility for what is essentially a local authority function. Therefore, as soon as time can be found, we will introduce primary legislation to repeal virtually all the present statutory duties.
My department has had constructive discussions with the NMCU and the local authority associations during the review and on the implementation of its recommendations. During these discussions we confirmed that funding for LACOTS from the rate support grant should reflect its new responsibilities in co-ordinating average system administration.
Finally, I know that business has a high regard for the way in which the unit has overseen the co-ordination of average system administration since its introduction in 1979. I certainly endorse that view. On the evidence of its other co-ordination activities, I have no doubt that LACOTS will be able to maintain these high standards. From 1st January, I am confident that it will be "business as usual" in average system co-ordination.
The Joint Committee on Statutory Instruments considered the draft order at its meetings on 24th November and 1st December. It drew attention to two points. Your Lordships will wish to note that my department has submitted a memorandum to the committee commenting on both points as follows.
First, the joint committee felt that while the overall effect of the draft order is within the powers conferred, by putting abolition before transfer its form does not follow the sequence in which those powers are listed in the Act. However, the form of the draft order is intended to reflect its primary purpose of abolishing the NMCU, with transfer of functions to the Secretary of State as a secondary effect. In practice, the stages of abolition and transfer are to take place simultaneously.
The joint committee's other point concerned the removal of the criminal sanction against disclosure of commercially sensitive information. It was concerned that this would appear to allow disclosure in future of trade secrets and other confidential information by former members and employees of the unit. However, having reconsidered the position and reconsulted the unit, I am satisfied that there is no realistic possibility of any improper disclosure. With that, I beg to move the draft order.
Moved, That the draft order laid before the House on 16th November be approved [8th Report from the Joint Committee].—(Lord Beaverbrook.)
Baroness Ewart-Biggs: My Lords, I am most grateful to the Minister for his very clear explanation of this order. I should like to say from this side of the House that we accept that the intention of the order seems a very reasonable and practical one. I note that the Minister has said that he may come back to the House with primary legislation a little later, so if there are to be any discussions or debates perhaps we can reserve them for that time.
I am also grateful to the Minister for having clarified what the Joint Committee on Statutory Instruments said regarding the two minor defects in the order. He has given a full explanation which is very acceptable.
On Question, Motion agreed to.

Arms Reductions and Defence
10.1 p.m.
Lord Kennet Lord Kennet rose to ask Her Majesty's Government whether they will clarify their understanding of the relationship between strategic arms reductions and anti-ballistic missile defence.
The noble Lord said: My Lords, I have a very limited and precise Question to put to the Government tonight. I gave the noble Lord, Lord Glenarthur, precise advance notice of it some two or three weeks ago. However, before I put the Question and describe exactly what is meant by it, I should like to mention two general points about the present political situation.
Immediately after the summit last week, Mr. Gorbachev went back to Russia and said that despite President Reagan's belief that it was not, SDI is still an obstacle to further measures of nuclear disarmament. This is certainly the third and perhaps even the fourth time that this has happened. Time and again we in the West are informed that the Soviet objections to SDI have been withdrawn, but time and again we find that that was false information.
It is not a very difficult problem to see what ought to be done. It is a question of interpretation of treaties—for example, the ABM Treaty. The way you interpret treaties is laid down in international law. The first thing that happens is that the two parties who differ sit down together to see if they can agree what it means, what the text means. If they cannot, they look at the preamble together and see if they can agree what that means. If they cannot, they look at the negotiating record together to see what that means. All this is to be done together.
There exists a joint Soviet-American body for the very purpose of looking at the ABM Treaty together, if there is a disagreement about interpretation. The United States is unwilling to use this body. Of course, if the two signatories of a treaty cannot agree on these things together they are free to go to the World Court for an opinion on the meaning of the treaty. None of these things is being done and I think the world is the sufferer for that. The point I wish to make in going into that is that SDI is still alive and that the proper channels for getting over the obstacle are still not being used. Therefore, we have to take it a little further in countries like ours.
A second background point which will be less familiar to everybody concerns ATBM—anti-tactical ballistic missile defence as opposed to strategic anti-ballistic missile defence. Tactical is the shorter-range, middle-range stuff.
The Government have a great contract with the United States, arranged under the memorandum of agreement, which is a bilateral treaty, to study something called European architecture. This is a curious code phrase which means to study how one could have anti-ballistic missile defence against short-range ballistic missiles and even medium-range ballistic missiles (INFs) in Europe; how that could best be arranged and how it could best be done politically between the different countries. They are studying this.
There has been a recent development. Noble Lords may not have noticed that within the past week Israel has been accorded alliance status with the United States on a par with that of NATO. All rights and privileges, as it were, that NATO partners now have in Washington are equally shared by Israel. This reminds us—or should remind us—that it is about

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now that West European ATBM research is being married up, by the United States army bureau concerned, with other allied ATBM research. That principally means Israel, which is researching hard in the same way as ourselves.
I had a courteous and helpful answer from the noble Lord, Lord Trefgarne, to a Written Question that I asked last week. My question was about the future of "European architecture" studies now that there was to be no more INF deployment in Europe. The noble Lord said that that would continue for shorter range nuclear weapons. He introduced the, to me, new phrase "theatre architecture studies".
We are now engaged in investigating theatre architecture in the abstract. Western Europe can be a theatre of war. That is familiar. Israel can be a theatre of war. Israel is a nuclear power. That is less familiar. Our research and Israeli research are being mixed up. Will what we come up with be shared with Israel? Is that a fact? If it is not, will the Government state it? If it is a fact, does this House welcome it? I submit not. It is dangerous and should be discontinued.
I shall deal with the Question of which I have given notice. It concerns an apparent contradiction in various passages of the speech of the noble Lord, Lord Glenarthur, on the last Unstarred Question on this subject on 18th November. He said (at col. 276 of Hansard):
"The United Kingdom deterrent is the minimum we judge necessary to deter an aggressor. It is based on a small number of submarines carrying the minimum number of warheads necessary to penetrate the defences of a potential aggressor."
He further said (at col. 277):
"We have said we would consider associating the United Kingdom deterrent with arms control only if there were very substantial reductions in the strategic arsenals of the super powers and no change in the defensive capabilities of the Soviet Union."
That is something we can understand. It is sensible. It makes good sense. We back the Government in that attitude. If the defences must be taken into account in settling the level of a country's offensive nuclear weapons which are held for deterrent purposes, let them be taken into account. That is common sense. They must be.
I shall now quote some other passages of the speech of the noble Lord, Lord Glenarthur. He said (at col. 275):
"It is widely known that the major obstacle to achieving a START agreement"
(that is, strategic arms reduction between America and Russia)—
"is Soviet insistence on linking progress to constraints on SDI. We consider it unacceptable that progress towards those reductions is being held up because of Soviet opposition to research into defensive technologies."
He continued:
"The Russians have argued that such US research will nullify their strategic arsenal, and that no cuts can therefore be contemplated: That seems fanciful".
Again:
"But START reductions should not be held hostage to arguments about an ABM treaty".
My question is: why is what is true for Britain untrue for the Soviet Union? If we cannot start to change the level of our offensive weapons until we
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know what the level of Soviet defensive systems is, how can the Soviet Union start changing the levels of its offensive weapons without knowing what the level of United States defensive systems will be? It is as simple as that. What is sauce for the goose, is sauce for the gander. Will the Government please look bifocally at this matter?
I look forward very much to hearing whether there is any justification for using a different standard in our calculations from that which we expect the Soviet Union to use in its.
10.9 p.m.
Lord Hatch of Lusby: My Lords, in last week's communiqué on the INF treaty, the Geneva negotiators were instructed to work out an agreement:
"that would commit the sides to observe the ABM treaty, as signed in 1972, while conducting their research, development and testing as required, which are permitted by the ABM treaty, and not to withdraw from the ABM treaty, for a specified period of time".
As the noble Lord, Lord Rennet, has said, that has been interpreted in the Soviet Union as a halt to SDI research and deployment. It has been interpreted in the United States as a carte blanche for continuing SDI. We need to know where Her Majesty's Government stand.
Perhaps I may first say that 15 years ago my noble friend Lord Brockway wrote a book called The Merchants of Death. I wish to warn noble Lords that the European defence industries, facing a slump in their export markets to the impoverished third world, are already pushing for an increase in high technology projects in Western Europe. This is predicated on the continuing division of Europe. I submit that the INF agreement gives an opportunity to end this division. But military disarmament depends on political disarmament. The objective has to be genuine disarmament and genuine understanding on both sides. As the noble Lord, Lord Kennet, has said, at the moment there is one law for the East and another for the West. I submit that the British Government must not be allowed to block progress towards genuine political and military disarmament between East and West by a subjective attitude to the ABM Treaty.
There is a link in the chances of cutting strategic weapons in half with the ABM Treaty. Her Majesty's Government and in particular the Prime Minister, quickly jumped in to condemn Reykjavik over 12 months ago. They have stated that they are opposed to a nuclear-free Europe. I wonder when they will be prepared to put that to the test of public opinion.
I wish to concentrate on one specific item in the Government's attitude to the ABM treaty. It is an item that I have raised in this House before: the position of the Fylingdales radar system. According to the 1972 ABM treaty, no long-range strategic early warning radar is allowed. Secondly, it is not allowed to be deployed. Thirdly, if it has been built since 1972 it breaks the treaty. Fourthly, if it is built outside the United States it breaks the treaty. The British Government have taken the line that the new developments in Fylingdales constitute modernisation, replacement and upgrading. That is

703
quite irrelevant. The new developments at Fylingdales break the ABM treaty because they will be deployed simultaneously with the existing radar arrangements.
Article VII of the ABM treaty explicitly permits the modernisation only of ABM radars. It does not extend this licence to early-warning radars. Article VI(b) commits each party,
"not to deploy in the future radars for early warning of strategic ballistic missile attack except at locations along the periphery of its national territory and oriented outward".
Fylingdales lies far outside the national territory of the United States. The early warning radars in question are obviously coming into being at the two sites, Thule and Fylingdales, "in the future" with respect to 1972. When it is explicitly stated that the new installation at Fylingdales—what the Government call the modernised installation—will operate simultaneously with the existing installation, can this by any stretch of the English language be interpreted as modernisation?
The new LPARs at Fylingdales will be complete replacements for the existing non-phased-array radars at the existing site. The simple fact that at Fylingdales the old and the new radars will be operational concurrently for a considerable time—perhaps as long as a year—must lead to the conclusion that the United States will in future deploy radars for early warning of strategic ballistic missile attacks at Fylingdales and, by so doing, will be in material breach of the ABM treaty.
This is not my argument only. The case is supported by, among others, Lieutenant-General K. H. Burke, United States Air Force Deputy Chief of Staff for Research, and by John Rhinelander and Ray Gartoff, respectively the United States legal adviser to and deputy head of the United States SALT I delegation. All three have testified that the LPAR will breach the ABM treaty.
I ask the Minister to accept this as a rational argument—even though he may disagree with it—supported by United States experts in the field and by many other people who have examined the treaty at diplomatic and scientific level. If the Minister disagrees with it, I ask him to state the Government's case to meet the assertion that the Fylingdales development breaches the ABM treaty. By breaching that treaty, it is undermining the possible development from last week's INF treaty towards bridging the political and military division of Europe.
If the Minister disagrees with the argument, I ask him to put the Government's case against it to show where the weakness lies instead of offering the usual evasions based on dogmatic and unproven assertions. I ask him to treat the argument seriously, put forward as it is by serious analysts of the situation, and to let us know where Her Majesty's Government stand. I ask the Minister to give us the Government's answer to the clear analysis, deduction and conclusion that what is proposed to be done at Fylingdales is in direct breach of the specific clauses of the ABM treaty. Unless the Government can do that, they stand accused of deliberate sabotage of the
704
opportunity that now lies before Europe to put aside the Cold War, to put aside military competition and to usher in a new era of understanding and friendship among European peoples.
10.20 p.m.
Lord Mayhew: My Lords, the noble Lord, Lord Rennet, has introduced a subject which deserves an earlier hour and a fuller House and he has put forward a clear and interesting inconsistency in the attitude of the Government on SDL When the Russians improve their anti-ballistic missile defences the Government use this as an argument to increase the strategic capacity of the British deterrent, first, by Chevaline and now by Trident; and that is logical. When the Americans propose to construct an anti-ballistic missile system the Government reject the right of the Russians to raise their capacity for offensive weapons to match. This is a clear inconsistency and I am bound to say that I see the logic of the Soviet position.
If an American SDI system can intercept and destroy a proportion—and no one puts it higher—of incoming missiles, surely one quite simple and not very expensive way of countering that is to increase the number of offensive missiles that one launches at the United States. That is absolutely logical. Of course one can do other things. One can increase anti-satellite capacity. One can start on SDI. But the obvious logical consequence for the Russians is to increase their strategic weapons. Therefore if it is true that the Americans are still hard about proceeding with research and development on SDI, that is bound to be a serious obstacle to progress next year towards an agreement and treaty on the reduction of strategic arms.
My question to the Government is similar to that of the noble Lord, Lord Kennet. What is the position between the Americans and Russians now on SDI? As the noble Lord said, we have had contradictory reports. We are told from the United States that a formula has been reached and that both sides are prepared, so to speak, to fudge the issue. We also read Mr. Gorbachev's statement that SDI remains an important obstacle to a treaty on strategic weapons. First, we want to be told whether Her Majesty's Government know what the position is between the Russians and the Americans on this issue. They should have been informed. All the NATO allies should have been informed. May we be reassured that the Government know it? Secondly, may we have the Government's view on this subject?
Noble Lords will remember that at the beginning of the debate about SDI a most admirable and sceptical speech was made by the Foreign Secretary. We want to know whether that is still the position of the Government or whether the Government agree with the Americans that SDI must go ahead even at the risk of sabotaging a strategic arms agreement next year. We are entitled even at this late hour to a clear answer to those two questions. Do the Government support the narrow interpretation of the treaty, as the Russians evidently do, or do they support the broad interpretation of the treaty which is the position, as I understand it, of the United States?

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I should like to make another point in my brief intervention. This debate gives the Minister another opportunity to explain the policy of the British Government on the question of circumventing the new INF treaty. We now know—the matter is not contested—that consultations with France are at an advanced stage on a new nuclear weapons system, the joint production of cruise missiles with a range of 300 miles to be carried by Tornados. I think this is not denied by the Government, and I read in the newspapers statements by Mr. Younger and the Foreign Secretary confirming what I have just said.
Is this just modernising? That is what we are told. We are told that it is the modernisation of what we have now, which is the free fall bomb, the W177. The Government's position is that they are modernising the 177s. Well, it is obviously ridiculous. It is escalation. Of course the new weapon system will be far more effective. It will be longer range, with the Tornado range added to the 300 miles. It will be longer range than the 177. It will be more powerful. It will have greater penetration. It is in fact escalation.
I draw the Minister's attention to the reply I received in the debate on 9th December from his noble friend Lord Glenarthur. At col. 274 he said, referring to my speech:
"I cannot, however, agree with his declaration that modernisation is escalation. We are not escalating nor circumventing the INF agreement".
Of course it is escalation. Everybody knows it is escalation.
When the Russians said they were modernising the SS.4s and the SS.5s by producing and deploying the SS.20s the Government mocked them, and quite rightly. They are open to the same derision when they go in with France on a new weapon system of airborne cruise missiles having a range of 300 miles and call it modernisation of the free fall W177. They will open themselves to derision in the same way.
When the Government say that they are not circumventing the treaty, I note that Mr. Younger said yesterday:
"We are talking about weapons"—
the weapons system I have discussed—
"which are entirely permitted within the INF treaty".
Of course, when you say that we are circumventing the treaty, that means being obedient to the letter of the treaty but, in effect, taking action which nullifies it. This is what the Government are apparently planning to do with the new weapons system.
After all, INF deals with the cruise missiles based at Greenham and elsewhere. But the new weapons system that the Government are now considering with the French has just as large a range as the Greenham Common banned cruise missiles. It is just as important and has a similar missile. It is a similar warhead with a similar range. It is in fact replacing the capacity which is banned by the INF Treaty.
I do not dispute that it is compatible with the lettering of the treaty. But it is plainly contrary to its spirit. Therefore, I ask the Government: is this new weapons system not escalation, and is it not
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circumventing the INF treaty? I hope that we can have a clear and precise answer to these questions from the Government.
10.29 p.m.
Lord Gladwyn: My Lords, I hope your Lordships will forgive me if I profit from this occasion—of not longer than five minutes, I assure your Lordships—by recalling that my own opposition to star wars dates from its actual inception in March 1983. Although the President may, as we know, be among those very few who sincerely believe in his dream that it will result in the total abolition of all nuclear weapons, I assure your Lordships—and I have assured you before—that in my view the real object of the promoters of this unfortunate project was, and still is, in the first place to make immense sums of money for the armaments industry and all those institutions and persons associated with it. Then next to spread abroad the impression that the Republican Party is in favour of what is called peace. Finally, to block any limitation of nuclear arms on the legitimate assumption that the Russians will never willingly agree to any effective violation of the 1972 ABM treaty.
I believe that the so-called broad interpretation of the treaty by the United States is, in effect, a violation of it; and many lawyers agree with that belief. However, we must recognise that the Americans accuse the Russians of violating it, too. None of those alleged violations, distributed by the Pentagon, are confirmed; they are only suspected. The exception is the installation of the phased array system at Krasnoyarsk. There the Russians have accepted inspection by American experts who have visited Krasnoyarsk and looked over the whole show. At Fylingdales, where the Americans are strongly suspected of violating the treaty, the Americans have made no such concessions and no Russian experts have been invited there. I agree with the point made by the noble Lord, Lord Hatch, regarding that matter.
Some people now say that Mr. Gorbachev's admission that Russia is indulging in some form of special ABM research justifies the proposal of a vast scheme of research and development, and the eventual deployment of SDI; but that is quite irrelevant. There is no doubt that the Russians are experimenting with lasers and directed energy; no one denies that, and Mr. Gorbachev has confirmed it. However, given the obvious necessity on the part of Russia to spend less on existing armaments to rehabilitate its ailing economy, it would be prepared, if necessary, to spend countless billions of rubles on the equivalent of star wars. That makes no sense whatever.
As my noble friend Lord Mayhew pointed out, and as the noble Lord, Lord Zuckerman, has constantly said, if the Americans press ahead with SDI, the Russians will not reduce—as is now hoped—but conceivably double the number of strategic missiles. In that case, any hope of general nuclear arms restrictions would disappear.
The whole possibility of what is known as nuclearisation of space seems now to be at issue, irrespective of the President's dream of one day

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establishing a totally leak-proof dome over each super power, if not over Europe. There is always the possibility of the destruction by one side or the other of the other's satellites, and research on SDI may well contribute to that end. Surely, in the present improved climate (I think that it has been improved) the super powers should agree at least to a truce in the fatal rivalry of preparing to destroy each other's satellites. Should it not be the duty of all Europeans, including our own Government, to encourage them to do so? We in this country always allow people to give advice. The Prime Minister is always giving advice to President Reagan; why should she not give advice to this effect? I cannot see why she should not.
As regards star wars, with luck Congress may now substantially reduce funds earmarked for the project and eventually liquidate it after the next election. That must be our hope and it is a reasonable prospect presumably before the ratification by both sides of any agreement on strategic weapons that may be signed next year. That is on the assumption that Mr. Gorbachev is not removed from power by the Nomenkleture or the KGB, and that the so-called hard-line Republicans do not provide a President of the United States. No one can be sure that one disaster or the other will not occur.
In Western Europe, all we can do is to ensure that reason and not emotion prevails in the crucial years that lie ahead. If we simply plunge ahead with the nuclear arms race (for that is what it will be if there is no agreement) there is no guarantee whatever that we shall be able to avoid what may well be the destruction of the world.
10.35 p.m.
Lord Graham of Edmonton: My Lords, I am certain the Minister is anxious to answer the question which is contained in the submission by the noble Lord, Lord Kennet, and it is not my business to stand in his way. I certainly would not subscribe to the view of my noble friend Lord Hatch, who asked if we are to be met by his usual evasiveness.
I expect clear answers to clear questions. From all sides of the House for the past 35 minutes colleagues have deployed their arguments, as many did in the very important debate last week. We are grateful to the noble Lord, Lord Kennet, who has persisted in trying to get answers to the queries he raised in the Unstarred Question on strategic arms reduction on 18th November. The Minister can do the House, and many people outside the House, a service by giving us something more positive than we have had so far.
The major debate last week cleared up a number of things. The summit in Washington clarified a number of others. However, it left some uncertainty on the future of SDI, and the joint statement issued by President Reagan and Secretary-General Gorbachev was ambiguous on that point.
Commentators argue that the Soviet Union has temporarily shelved its opposition to SDI on a number of grounds. First, Congress is placing restrictions on it; as part of the recent budget negotiations, the US administration agreed to adhere to the "narrow" interpretation of the ABM treaty until September 1988; secondly, budget cutbacks will further hamper the project, and Defense Secretary
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Frank Carlucci is planning to cut 33 billion dollars from next year's defence budget; and, thirdly, given President Reagan's personal commitment to SDI, it may be easier for his successor to strike a deal with the USSR on it. Defence Secretary Carlucci has also said:
"Mikhail Gorbachev still ties confirmation of a strategic arms deal to the strengthening as well as adherence to the anti-Ballistic Missile treaty".
What the House would like the Minister to tell it is not our interpretation of what happens between America and Russia but what is the view of the British Government in this matter. The Minister will recall that the Prime Minister wrote to President Reagan prior to the summit stating that,
"a mutually agreed timetable for star wars research, and a long-term commitment to the ABM treaty are the two essential preconditions for reaching a strategic arms limitation deal."
Can the Minister confirm that this is indeed HMG's position? And can he tell us what Mr. Gorbachev's response to it was when he met the Prime Minister last week?
In our debate on strategic arms reduction of 18th November, the noble Lord, Lord Glenarthur, stated that the Government,
"consider it unacceptable that progress towards those reductions is being held up because of Soviet opposition to research into defensive technologies."—[Official Report; col. 275.]
However, by 9th December the noble Lord was not only recognising that such opposition existed, but was suggesting a means of defusing it, when he said that,
"the way to resolve differences would be a commitment both by the United States and by the USSR not to withdraw from the ABM Treaty for a number of years, together with exchanges of information over both sides' research programmes." [Col. 271.]
We on these Benches support this more constructive statement. If there were added to it the need to reach agreement on interpretation of the ABM treaty, and provision for negotiation prior to deployment, we should have a very solid basis for agreement between the super powers.
I just want to reinforce the very persistent and proper way in which my noble friend Lord Hatch asked extremely searching questions about the illegality of what is going on at Fylingdales, because Peter Pringle, who writes from Washington for the Independent, said:
"American lawyers who helped to draft the ABM treaty, among them Gerard Smith, the treaty's chief negotiator, and John Rhinelander, legal adviser to the US negotiating team, say that all three radar deals violate the treaty. A still-secret internal US government analysis of the treaty made at the time also indicates that the three radars are illegal…Those who say it is illegal do so on the basis of Articles Six and Nine of the treaty".
I know that the noble Lord is far more familiar with that and other matters than I am. But I am genuinely seeking a reconciliation with my understanding of what that treaty says, because, in respect of large phased-array radar, LPAR, the treaty quite clearly states that it bans LPARs with certain exceptions. They are permitted only within agreed ABM missile deployment areas, at agreed ABM test ranges, for the purpose of arms control verification, for tracking objects in space and for early warning only if sited at the periphery of the national territory of either the USA or the USSR.

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Those are my questions. My claim to fame tonight is that I have made the shortest speech in the debate.
10.43 p.m.
Lord Trefgarne: My Lords, in rising to reply to the Question of the noble Lord, Lord Kennet, I am bound to observe that this subject was extensively covered in considerable detail during a five-hour debate in your Lordships' House as recently as last Wednesday, not to mention in the Starred Question on 18th November to which the noble Lord referred. But I make no complaint about that. The noble Lord is entitled to ask whatever questions he likes, whenever he likes, and I shall do my best to answer. But it will come as no surprise to noble Lords who recall that five-hour debate if I say that the Question tabled by the noble Lord, Lord Kennet, does not permit of a simple answer.
Let me first set out the Government's position on Alliance strategy, strategic arms reductions, the conditions relating to inclusion of the United Kingdom deterrent in arms control negotiations, and the Government's position on ABM defence. Against that background I shall then attempt to answer the noble Lord's Question.
Our starting point is that the Alliance strategy of deterrence has served us well for 40 years, and will continue to do so for the foreseeable future. To be credible it must continue to be based upon an appropriate mix of nuclear weapons and strong conventional forces. That is not to say that we oppose strategic arms, reductions. On the contrary, we fully support the Reykjavik goal of 50 per cent. reductions in the Soviet and US strategic offensive forces. It is agreed that the United Kingdom deterrent has no part to play in the present negotiations. Our position is that we would consider associating the United Kingdom deterrent with arms control only if there were very substantial reductions in the strategic arsenals of the super powers and no change in the defensive capabilities of the Soviet Union. As the Prime Minister made clear after her meeting with Mr. Gorbachev at Brize Norton on 7th December, our nuclear deterrent is an irreducible minimum and until the negotiations on nuclear weapons have gone a lot further than a 50 per cent. reduction, there is no question of even thinking of bringing ours in.
It is a fundamental principle that arms control measures must at the very least maintain current levels of security and preferably enhance them. However when Trident is deployed it will still represent a smaller proportion of Soviet strategic warheads after a START agreement than did Polaris when it was first fully deployed in 1970.
To include the United Kingdom deterrent in arms control negotiations until substantially greater cuts had been made in superpower arsenals would not therefore meet that basic criteria. The essential difference is that we maintain as my noble friend Lord Glenarthur-said a minimum deterrent while as both parties to the START negotiations acknowledge their strategic arsenals would still be capable of maintaining deterrents after 50 per cent. cuts. If they did not believe that, they would not be at the negotiating table.
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The Government's position on SDI which so exercises the noble Lord, Lord Gladwyn, is based on the four points agreed between my right honourable friend the Prime Minister and President Reagan at Camp David in 1984. I shall recite them again if I may for the benefit of the noble Lord, Lord Gladwyn, because I sometimes think that the view he advances on this matter suggests that he has not fully studied those four points, and I hope that he will take the time to do so.
They are these: first that the United States and Western aim is not to achieve superiority, but to maintain balance taking account of Soviet developments. I might say incidentally that General Secretary Gorbachev has recently confirmed that the Soviet Union is working in that area. Secondly, that SDI deployment would, in view of Treaty obligations, have to be a matter for negotiation; thirdly, that the overall aim is to enhance deterrence and not to undermine it; and fourthly that East/West negotiations should aim to achieve security with reduced levels of offensive systems on both sides.
Let me underline that the SDI programme is a research programme to determine the feasibility of a system based upon the principles that have been enunciated. It is not a programme to deploy a system of that kind. That could only take place following negotiation under the Treaty as drafted.
Lord Gladwyn: My Lords, will the noble Lord say whether or not the Prime Minister agrees with the broad interpretation of the 1972 Treaty?
Lord Trefgarne: My Lords, it is not for the United Kingdom to interpret the ABM Treaty. We are not parties to that Treaty any more than is the noble Lord, if I may say so. The fact of the matter is that, as I say, we are not parties to the Treaty; but we have indicated that we should support the narrower interpretation and hope that the United States will do so as well.
Against this background, the most obvious and topical connection between strategic arms reductions and anti-ballistic missile defence lies In the linkage placed up to now by the Russians on parallel progress in both areas. The Russians' argument that their deterrent could be undermined by SDI is without merit, since it postulates that all cuts in strategic arsenals must hang on the Russian perception of a research programme which falls within US/Soviet Treaty obligations and the deployment of any product of which will be a matter for negotiation.
Even optimistic estimates do not foresee initial deployment of a US anti-ballistic missile system before the mid-1990s. Moreover, professed Soviet concerns appear more than a little hypocritical. Mr. Gorbachev has recently acknowledged that the Soviet Union is itself conducting a considerable research programme into those areas covered by the strategic defence initiative. This confirms a fact which this Government have long known and repeatedly stated. Indeed, the Soviet programme is of long standing. And of course the Soviet Union has the world's only existing ballistic missile defence system. That in itself is sufficient justification for the SDI programme—the West cannot afford to lag behind in

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this field of research. I hope that the noble Lord, Lord Gladwyn, studies what I have said on the matter. I believe that if he does so, he will see the disadvantage of the arguments which I have put forward to the House tonight.
Lord Gladwyn: My position remains exactly as it was.
Lord Trefgarne: My Lords, if I may say so, the noble Lord has advanced his position on the matter repeatedly over the past two or three years—ever since I have had the responsibility for answering on occasions from the Dispatch Box. I confess that the noble Lord's position has changed not a jot during that time. However, I believe that if he studies the arguments which I have put forward, he will realise that the position is worthy of further consideration. I shall give way to the noble Lord, Lord Kennet.
Lord Kennet: My Lords, the Minister has recited the alphabet with great proficiency. When we come to this point in it, the Government always repeat that the Soviet Union has the only operational ABM deployment in the world. That is of course true. It is specifically and expressly provided for in the ABM Treaty, and the Americans had one as well until they decided to cancel it unilaterally. Am I right or wrong?
Lord Trefgarne: My Lords, the noble Lord is quite right. There is no difficulty—at least so far as I am aware—as regards the ABM Treaty and the Soviet system, which is land-based and located in the Soviet Union. However, the fact that the United States does not have such a system makes it all the more important that it should proceed with research on a more modern system as it is now doing.
In that context, I remind your Lordships of the third of the four points which emphasised that the purpose of the strategic defence initiative is to enhance deterrence and not to undermine it. It is not realistic for the Russians to argue that progress on ridding the world of very substantial numbers of nuclear weapons cannot proceed until there is agreement on limiting a defence research programme whose feasibility has not yet been proved and which, in any case, is only a long term prospect and subject to negotiation before it could deploy. It is a research programme, incidentally, upon which the Soviets themselves now admit that they are embarked.
Of course we favour measures which allow both sides to reassure themselves that they will not one day wake up to find their deterrence outdated by a new defence system. That is only prudent and must contribute to strategic ability. We advocate confidence-building measures which would allow greater predictability in research into new areas. The Prime Minister has proposed to Mr. Gorbachev that such predictability could be achieved by a combination of an agreed period of non-withdrawal from the ABM Treaty and mutual information on research plans.
Indeed, the outcome of the summit meeting between President Reagan and Mr. Gorbachev gives us some cause for optimism that a solution along those lines may be possible. The superpower
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delegations at Geneva have been instructed to work out an agreement which would commit the two sides to observe the ABM Treaty for a fixed term of years. Not later than three years before the end of that period, the two sides will enter into intensive discussions on strategic stability. If, after those discussions, no agreement has been reached, both sides will be free to decide their course of action. That instruction leaves open a number of important questions. However, the optimism of the United States and the Soviet Union for the prospects of a START agreement next year suggests that the difficulties over the linkage between strategic arms reductions and anti-ballistic missile defence can be overcome.
As the technical feasibility of the SDI is clearer, we will need to consider its strategic implications very carefully indeed. But it is not a position on which I could take a categorical position today.
Perhaps I may turn briefly at this late hour to the points raised by other noble Lords. I fear that I shall not have time to deal with them all. Perhaps I may touch on the matter raised by the noble Lord, Lord Hatch, concerning the radar at Fylingdales. The ABM Treaty actually says:
"not to deploy in the future radars for early warning".
I underline the words "in the future". Fylingdales predates the treaty and is being modernised. But we are satisfied that such modernisation is not in contravention of the treaty, which is, as I have already mentioned, a bilateral treaty between the United States and the Soviet Union.
It was, I think, the noble Lord, Lord Hatch, who asked me a question at Question Time the other day on that very point and I hoped that I had made that point clear on that occasion. I am sorry that I failed to do so. I hope that the explanation given tonight has reassured the noble Lord.
Your Lordships will understand from what I have said that the relationship between offensive and defensive strategic forces is not one which can be made subject to a simple formula. The Government firmly believe that we must strive to achieve 50 per cent. cuts in strategic weapons and that these cuts will in no way jeopardise the strategy of deterrence which is the bedrock of our security. Concerns about hypothetical defences must not stand in the way of concrete cuts which we can make in strategic missiles.
Lord Kennet: My Lords, before the noble Lord leaves the question of Fylingdales, is he aware that the Soviet Government have offered to pull down Krasnoyarsk if the United States will pull down Fylingdales? If so, has he any comment to make on that offer?
Lord Trefgarne: My Lords, that is not a proposition in which we would be involved. That would be something for the United States and the Soviet Union. It does not sound to me like an arrangement which would enhance our security.
Lord Hatch of Lusby: My Lords, the noble Lord has said again that Fylingdales is being modernised. How does he equate the word "modernisation" with

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two installations working simultaneously side by side? How can that be modernisation rather than the addition of a new installation?
Lord Trefgarne: My Lords, that is easy. It is a very thorough modernisation.

British Waterways Bill
Returned from the Commons with the amendments agreed to.
House adjourned at three minutes before eleven o'clock.