Lords Sitting of 17 December 1987

Preamble
The House met at eleven of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Salisbury.

Sports Sponsorship Policy
Lord Graham of Edmonton: 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 asking the Sports Council whether enough is done to promote private investment in sport, they took account of recent developments concerning the FA Cup and the ownership of football clubs.
The Minister of State, Department of the Environment (Lord Belstead): My Lords, my honourable friend the Minister for Sport wrote an open letter to the Chairman of the Sports Council on 19th November inviting views on the future direction of sports policies, including the scope for increasing private sponsorship of sport, to which the Government are fully committed. Sponsorship of the FA Cup and the ownership of individual clubs are matters for the football authorities and the clubs themselves.
Lord Graham of Edmonton: My Lords, I am grateful to the Minister for that information. Has he reflected on the plea from the Central Council for Physical Recreation, which represents 75 governing bodies of sports, that his plan to encourage the privatisation of sports facilities should not discourage the young and disadvantaged from sports participation? Will the Minister also recognise the fact that when famous football clubs, and even the sponsorship of the FA Cup, arc regularly put up to the highest bidder the Government have a great responsibility to achieve the right balance between private and public funding? Should he not encourage public provision whenever there is a need?
Lord Belstead: My Lords, the letter written by my honourable friend to the Chairman of the Sports Council specifically dealt with the first point asked by the noble Lord in his supplementary question. My honourable friend said that we needed to look at how we can, among other things, alleviate social deprivation. The letter goes on to read:
"Sport can and should be used as a policy tool in areas of high unemployment and deprivation. In particular it can provide a catalyst for channelling the energies of the young into constructive and satisfying activities contributing to their self esteem and discipline".
I do not think that there is anything between what my honourable friend has said in that letter and what the noble Lord is asking.
Lord Gisborough: My Lords, turning to indoor tennis courts, which are often provided entirely by private enterprise, is my noble friend aware that there
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is a high rateable value on those establishments, which increases the price paid by the public? Is it not shortsighted for there to be such high rating on private establishments when the alternative is that they will have to be taken over by the local authorities and run at a much higher cost than the benefit of the high rate that the authorities are receiving at the moment?
Lord Belstead: My Lords, I should like to look at what my noble friend has said and draw it to the attention of my honourable friend the Minister for Sport. This is essentially a matter for local government, but clearly it is an important point.
Lord Mellish: My Lords, in recent weeks there has been a great deal of discussion as regards the activities of two well-known people, Mr. Robert Maxwell and Mr. Elton John. I recognise that the Government have no direct responsibility, but they can approach the Football Association through the Sports Council. Therefore, I should like to ask the Minister what good will be gained by prohibiting people such as Mr. Maxwell and others from investing money in the game. It is already in a parlous state—the noble Lord can take that from me, because I know something about it.
Lord Belstead: My Lords, the noble Lord has put forward a point of view. However, the rules of the Football League prevent a single individual from having any involvement in the management or administration of more than one club. That is a matter for the league to enforce or, if the noble Lord's view prevails, to change as the league thinks best.
Lord Underhill: My Lords, does the Minister recall the development, initiated mainly by my honourable friend Mr. Denis Howell, in the multi-purpose use of sports facilities for schools? In view of the fact that the point raised by my noble friend's Question arises from the financial difficulties of professional football teams, is it not possible for the Government to take the initiative, through local authorities and the Sports Council, to give grant for the development of football grounds for multi-purpose activities? I am not proposing that the pitches should be used, because when a club has an excellent pitch, such as that of my Fourth Division team Leyton Orient, one does not want to see it destroyed. However, there are possibilities of developing other sports activities at football grounds, particularly under the stand, which could help the finances of the club and the local community.
Lord Belstead: My Lords, I understand the point raised by the noble Lord, and that policy has brought many sports facilities to both young and old over the past 15 to 20 years. However, I believe that the answer to the noble Lord's question is sponsorship. In that regard the news is good; the contribution of private sponsorship to sport has been growing rapidly in recent years and it currently totals approximately £160 million.
Lord Dean of Beswick: My Lords, I should like to ask the Minister whether he considers to be desirable

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the fact that seven of the top snooker players—a game which has a tremendous viewing public through television—are under the management of one entrepreneur. Does he think that that is a desirable trend in the interests of sport in general?
Lord Belstead: My Lords, I think that that question goes a little wide of the original Question.
Lord Carter: My Lords, in the light of the Minister's answer that the Government wish to encourage the sponsorship of sport, do the Government support the sponsorship of the FA Cup, and of individual clubs in the First Division of the Football League, by the manufacturers of various brands of alcohol which will then be advertised and thus consumption encouraged among the supporters? This House has recently debated the problems of alcohol abuse.
Lord Belstead: My Lords, I have no definite information as regards the present negotiations for sponsorship of the FA Cup. Sponsorship arrangements are commercial decisions for the sponsorship company, the football authorities and individual clubs. The drink industry is one which has a long and successful history of sports sponsorship and it has made a significant contribution to sport.
Lord Graham of Edmonton: My Lords, the Minister has rested very heavily on the open letter from his ministerial colleague to the chairman of the Sports Council. In view of the fact that the secretary of the CCPC has said that the letter confirmed his worst fears, and was the kiss of death for national sports governing bodies, will the Minister have a word with his parliamentary colleague the Minister for Sport in order to ensure that he goes about building bridges and not blowing them up?
Lord Belstead: My Lords, if I may say so in all friendliness to the noble Lord, I think that is one of the most extraordinary suggestions I have ever heard. A letter which starts off by saying that we have shared objectives in trying to improve the nation's health, to alleviate social deprivation and to help to promote excellence in sport, is surely a letter which all of us can agree is a good letter.

Government Bills: Drafting Scrutiny
11.13 a.m.
Lord Renton: My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will ensure that obscurities or uncertainties in the meaning or legal effect of government Bills are considered and corrected before they are published.
Lord Belstead: My Lords, most Bills go through several drafts before publication, each of which is subjected to critical examination by the legal
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advisers and responsible officials of the sponsoring department, of other interested departments and, in appropriate cases, of outside bodies. In addition, drafts are always shown to the law officers. Account is taken of all comments received. If particular provisions still cause difficulty after publication, the Government are always willing to consider whether they are capable of improvement.
Lord Renton: My Lords, may I thank my noble friend for that quite full reply? Is he aware that in recent years much valuable parliamentary time has had to be spent in curing drafting and other obvious defects in Bills presented to Parliament, and that those defects could have been spotted before publication? Although further prior scrutiny might take up a short while, is my noble friend not aware that Bills would receive the Royal Assent sooner if less time had to be taken up in curing those defects? Have the Government therefore not considered this solution which would be to their advantage and that of Parliament?
Lord Belstead: My Lords, I understand the force of the question which my noble friend asks. The difficulty with much legislation undoubtedly arises from the complexities of the subjects which they cover. However, my noble friend is asking: should there not be prior scrutiny? I think, without breaching the normal conventions about discussing the workings and membership of Cabinet committees, most of your Lordships will know perfectly well that through the committee system of any government my noble and learned friend the Lord Chancellor, my noble and learned friend the Lord Advocate and the English law officers as well have the opportunity to scrutinise and raise points about a Bill in that committee system. In practice my right honourable friends whom I have mentioned will normally always have seen a Bill before it comes to a committee, so that any points of interest to them will already have been settled.
Lord Elwyn-Jones: My Lords, would the Government be willing to consider the proposal in Sir William Dale's admirable book on drafting that a committee should be interposed before a Bill is laid before the House to examine the draft of the Bill and prepare any suggested amendments? This procedure is carried out in a number of democratic parliamentary countries. Would it not be of considerable help both to the House and indeed to Ministers?
Lord Belstead: My Lords, again I recognise the importance of what the noble and learned Lord is saying. I shall certainly draw the attention of my right honourable friends who are concerned in these matters to what the noble and learned Lord has said. Perhaps I may add one more point. In talking about an additional constraint or supervisory process on the parliamentary draftsmen, the noble and learned Lord will forgive me if I remind him of the following point. In 1977 the noble and learned Lord (then speaking as Lord Chancellor) pointed out in an Answer to a parliamentary Question that the drafting recommendations of Lord Renton's report are taken

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into account in the drafting of all government legislation. But, the noble and learned Lord said, the Government considered,
"that it is essential that Parliamentary draftsmen should retain discretion to apply the recommendations"—
of the Renton report—
"in accordance with the requirements of particular legislation." [Official Report, 31/3/77; col. 1095.]
I am only saying gently that I do not think at that time it was in the mind of the noble and learned Lord that there should be an additional committee supervising the drafting of parliamentary draftsmen.
Lord Elwyn-Jones: My Lords, has there not been a flood of legislation since then to remedy that excessive caution in the former Lord Chancellor's observations?
Lord Belstead: My Lords, the legislative burden of your Lordships' House is indeed heavy. I suggest to your Lordships that constraints of time imposed by the parliamentary programme have however been a feature of legislation of all governments.
Lord Grimond: My Lords, is the Minister aware—
Lord Simon of Glaisdale: My Lords, would the noble Lord consider that one of the solutions to this problem would be the restoration to the Cabinet Legislation Committee, to which he has already referred, of the task of scrutinising the drafting of all legislation, with the remit that nothing shall be introduced the provisions of which are not immediately and clearly comprehensible to those affected by it?
Lord Belstead: My Lords, I was endeavouring in my first supplementary reply to suggest this. The particular question which is being raised by the noble and learned Lord, Lord Simon of Glaisdale, is covered at present by the scrutiny which my right honourable friends and my noble and learned friends undoubtedly give to Bills by seeing the Bills before they reach a particular committee. It is also covered by shaking out any points of interest in departmental discussions. To go down the road which the noble and learned Lord is suggesting would consume enormous amounts of time. I reckon that that was the reason why it was relinquished.
Lord Harmar-Nicholls: My Lords, if the recommendations behind this Question were successfully carried out what occupations would the Minister suggest for the then permanently unemployed lawyers?
Lord Belstead: My Lords, if my noble friend is referring to legally trained Members of your Lordships' House who look through the drafting of Bills very carefully all I can say is that I think that whatever happens there will always be a pretty full-time occupation for the revising work of your Lordships' House.
Lord Grimond: My Lords, is the Minister aware that there will be almost unanimous agreement with
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the efforts of the noble Lord, Lord Renton, to improve the legislative process which he has pressed for many years? Does not the Minister also agree that it is not so much the need for another committee that is in question, but the need to have fewer and shorter Bills which do not attempt to cover every conceivable point which may arise? Is it not wholly unfair and unconstitutional to use the great legal talents of your Lordships' House virtually to redraft government Bills when they are unpaid devoted Members of the legislature?
Lord Belstead: My Lords, the desirability of having somewhat shorter and simpler legislation is something that we should all like to see carried out but it is a desirable objective which I am afraid is not always achieved.
Lord Shepherd: My Lords, is the Minister satisfied that the Government can retain and recruit lawyers of sufficient quality and calibre for the needs of parliamentary drafting, particularly in view of the weight of legislation that is now put before Parliament?
Lord Belstead: My Lords, on 16th July in answer to a parliamentary Question I reported to the House that the number of parliamentary draftsmen was being increased from 24 to 30.
Lord Nugent of Guildford: My Lords, does the Minister consider in his function as Deputy Leader of the House that as 16 minutes have now passed by on two Questions it is time that we moved on to the next Question?
Lord Molloy: My Lords, there are no Speakers in this House to order me to sit down. I should like to ask the Minister to take into very serious account the points made by the noble and learned Lord, Lord Simon of Glaisdale, which have been previously made by the noble and learned Lord, Lord Denning. Those points were that, due to the importance of Bills that later become Acts, those Bills should be reasonably understandable by the ordinary public. It might be a very good idea to have people who are not lawyers examining some of the Bills because they could make suggestions which ordinary people would make if they were given that opportunity.
Lord Belstead: My Lords, I shall as always on behalf of the Government consider the exchanges that have taken place on this particular Question.

Statutes: Scrutiny Proposal
11.22 a.m.
Lord Renton: My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.
The Question was follows:
To ask Her Majesty's Government whether the Statute Law Committee or a sub-committee thereof will be given the responsibility of keeping the structure and language of the statutes under

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continuous review and of reporting to Parliament not less often than every three years.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, as my noble and learned friend the Lord Advocate told the House on 11th November, the Government doubt whether any great practical benefits would flow from having the Statute Law Committee, or a sub-committee of it, keep the structure and language of the statutes under review.
Lord Renton: My Lords, I thank my noble and learned friend for that unfortunately rather short reply. Is he aware that his Statute Law Committee which has been operating since 1868 and is responsible, as I understand it, for advising him on legislation is composed of very eminent people who normally meet only once a year? With the help of one of its sub-committees, would it not be of tremendous value if the Statute Law Committee were to consider statutory trends in the drafting and structure of legislation and what further improvements might be made? It should bear in mind that there is widespread anxiety about the quality of our legislation. Would it not he a good idea if its reports were laid before Parliament from time to time?
The Lord Chancellor: My Lords, it is certainly true that the Statute Law Committee consists of very eminent people. At the present it supervises the work of the statutory publications office and the production of statutes in force. It receives reports from the Law Commission which has to a large extent taken on the function of consolidating and revising the statutes which the committee formerly had. The committee's secretariat has set up two specialist groups to consider the technical aspects of printing statutory material and the creation of a database of legislation.
As regards the other matters to which my noble friend Lord Renton has referred, I believe that they depend very much on the detail of the particular statute. I doubt very much whether any general supervisory function has any particular value. On looking at the detail of particular statutes, your Lordships have shown supremely that this House has a very important function and I doubt whether anyone has so far developed an institution which could replace it in that respect.
Lord Henderson of Brompton: My Lords, is the noble and learned Lord the Lord Chancellor aware that there is a joint committee composed of Members of both Houses charged with the function of examining statutory instruments and in particular whether their drafting appears to be effective? If it is considered desirable, which it is, that there should be scrutiny of the drafting of subordinate legislation, is it not equally, if not more, desirable that there should be scrutiny of the drafting of primary legislation?
The Lord Chancellor: My Lords, I believe that the reason for scrutiny of delegated legislation is that the attention of Parliament is not devoted to delegated legislation in quite the way it is to primary legislation.
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The function of the committee to which the noble Lord has referred is to draw the attention of Parliament to any particular matters of importance that its scrutiny of the delegated legislation reveals.
On primary legislation, the assumption is that Parliament in both Houses, and no particular committee of it, will examine the whole of the legislation and consider whether there are any points which require amendment. As your Lordships know, this is a very important and continuously discharged function for both Houses.

Sulphur Dioxide Emissions
11.28 a.m.
Lord Hatch of Lusby: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government why they have refused to join the "30 per cent. club" in reducing sulphur dioxide emissions, the prime contributor to acid rain.
Lord Belstead: My Lords, the formula for reducing sulphur dioxide emissions adopted by the "club" is arbitrary. It takes no account either of the substantial emission reductions in the United Kingdom between 1970 and 1980 nor of our substantial programme to desulphurise three major power stations, the main benefits of which will accrue after the 1993 target date. By the turn of the century, we expect to have seen a greater reduction in our sulphur emissions from their peak than many members of the "30 per cent. club" will be able to show.
Lord Hatch of Lusby: My Lords, is the Minister aware that Britain is generally considered to be the dirty man of Europe as regards sulphur emissions? Is it the case that 21 nations signed the agreement to reduce their sulphur emissions by 30 per cent. by 1993? Is it the case that the West Germans are spending £13 million to reduce their sulphur emissions by 80 per cent. by 1997? If those statements are true, why is it that the British Government are standing out against an international agreement which has very wide repercussions for people all over Europe and particularly those in the Scandinavian countries?
Lord Belstead: My Lords, the answer to that appears in my original Answer. Our record before 1980 was much better than that of most other countries. But the "club" rules do not count that. It is true that the Federal Republic of Germany is spending more than we are, but so far as I know it is the only European country that is. I repeat that few countries will be able to match our sulphur reductions between 1970 and the end of the century if we hit our targets; and we are determined to do so.
Lord McIntosh of Haringey: My Lords, does the Minister recognise that there will be deep disappointment and also resentment not only in this country but also in the Nordic countries and West

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Germany at his reply? In a situation where the Nordic Council has commissioned more than 1,000 pieces of research showing that emissions from this country cause enormous damage in those countries, surely it is not right for the Minister to quibble either about the base date or the concluding date of the 30 per cent. agreement. As regards the improvement in three power stations, I ask him to say whether he has any plans for the improvement of existing power stations as well as new power stations.
Lord Belstead: My Lords, I believe that it will be recognised in the countries which the noble Lord has mentioned that we have a very major programme going on and will be spending about £1 billion on cutting sulphur and nitrogen oxide emissions from existing power stations between now and 1997. With new stations the figure could well rise to £1·5 billion. I am also glad to say that we have agreed with our European colleagues on the vehicle emissions directive which has recently been agreed in the Environment Council of the European Community. That is also important for the damage being done in Europe. I therefore do not agree with the noble Lord when he says that what I have said today will be met with resentment; it will be met with understanding by our European colleagues.
The Earl of Lauderdale: My Lords, will my noble friend bear in mind that there is a good deal of unsubstantiated accusation in the rhetoric surrounding the subject? Will he also bear in mind that the reduction of sulphur emissions may result in higher costs to our electricity boards, which may affect employment as well as our exports?
Lord Belstead: My Lords, I am interested to hear my noble friend put forward that point, which could well be a valid one.
Lord Mackie of Benshie: My Lords, can the Minister say if the Government are doing all that why on earth they should not join the 30 per cent. club? It would appear to be a form of snootiness or superiority.
Lord Belstead: No, my Lords. The reasons are those which I gave in my original Answer. The timing of the rules is such that we cannot quite comply, although we very nearly can. It is actions and not words which count. We are going to reduce our sulphur emissions in this country by some 50 per cent. in the last quarter, roughly speaking, of this century. That will be an objective which very few countries will beat us to.
Lord Ironside: My Lords, once the UK profile on SO2 reduction is heavily dependent on the fitting and retrofitting of flue gas desulphurisation plant, will my noble friend confirm that priority will be given to major investment designed to ensure that that programme is carried through promptly and efficiently?
Lord Belstead: My Lords, we have the programme. The Central Electricity Generating Board is determined to carry it through.
Lord Craigton: My Lords, can my noble friend tell the House whether it is true that in that respect Britain is the worst polluter in Europe?
Lord Belstead: My Lords, taking the per capita emissions as a base, so far as sulphur oxides are concerned, we are tenth in Europe, below Denmark, Spain, Finland, Luxembourg and most of the Eastern bloc countries, as well as the United States and Canada.
Lord Hatch of Lusby: My Lords, do I understand the Minister to have told the House that the British Government intend to spend roughly £1 billion between now and 1997, compared with the £13 billion being spent by West Germany? Is it the case that in the Victoria and Albert Museum marble statues have to be enclosed in glass to protect them from the pollution in the atmosphere of London? Is he aware that the Nordic Council, of which my noble friend has already spoken, estimates that in order simply to preserve existing sensitive areas a reduction of 85 per cent. in sulphur emissions, rather than 30 per cent., is immediately necessary?
Lord Belstead: My Lords, I must say that in choosing the capital city of London the noble Lord has selected about the most unadvantageous example that he conceivably could have chosen. We have an enormous amount to be proud of in cleaning up the atmosphere and the Thames.
Lord Hatch of Lusby: My Lords, will the Minister answer my question? Is it true that marble statues have to be put under glass to protect them from the present level of emissions?
Lord Belstead: My Lords, if the noble Lord cares to take a walk around the capital city he will see plenty of statues that are not under glass.
Lord Hatch of Lusby: They are decaying, my Lords!

Betting, Gaming and Lotteries (Amendment) Bill [H.L.]
Lord Newall: My Lords. I beg to introduce a Bill to amend the Betting, Gaming and Lotteries Act 1963 in relation to charges to bookmakers on licensed tracks. I beg to move that the Bill be now read a first time.
Moved. That the Bill be now read a first time.—(Lord Newall).
On Question, Bill read a first time; and to be printed.

Scottish Development Agency Bill
11.35 a.m.
The Minister of State, Scottish Office (Lord Sanderson of Bowden): My Lords, I beg to move that the Bill be now read a second time.

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The purpose of the Bill is to raise the statutory financial limit of the Scottish Development Agency from £700 million to £1,200 million. The financial limit is defined by Section 13 of the Scottish Development Agency Act 1975 and comprises a number of items: first, the agency's general external borrowing, mainly out of the National Loan Fund but also covering borrowing by subsidiary companies; secondly, agency and Treasury guarantees; thirdly, overseas borrowing, typically from the European Investment Bank and the European Coal and Steel Community; and lastly, the major item, which is payments from my right honourable friend the Secretary of State, consisting of grant-in-aid less administrative expenses plus public dividend capital issues.
The agency's financial limit was last raised in 1981 and at that time it was expected that the new limit would provide adequate statutory cover for the exercise of the agency's functions until 1989. However, because of a revision in the method of calculating grant-in-aid, it is now estimated that the existing limit will be reached by the end of the present financial year. Consequently, in order that the agency can continue to function on an uninterrupted basis, it is necessary to raise the limit now.
It is customary when setting financial limits to provide a statutory basis for around five years. Accordingly, the Bill proposes to raise the limit to £1,200 million. I should perhaps add that the increase in the financial limit does not set the agency's budget. That is done by a separate annual process. It merely sets the statutory framework within which the agency is financed.
It may help your Lordships if I now briefly explain the purposes of the Scottish Development Agency. The agency has the principal purposes of furthering the economic development of Scotland, improving its international competitiveness and improving its environment. To achieve those purposes it undertakes a number of functions including the provision to businesses of premises, finance, advice and counselling; bringing derelict land into use; and the redevelopment of land and property.
Looking to the future, the agency's corporate strategy for the next three years highlights major thrusts proposed in the fields of Scottish enterprise, internationalisation of Scottish business, technology and urban renewal. First, the agency rightly recognises that its client base is the whole of Scottish industry and not simply inward investors. Important though the latter are, their attraction accounts for only 4 per cent. of agency spending. The agency is now increasingly applying to the development of indigenous companies the targeted approach which has brought it success in the attraction of inward investment.
Secondly, the greatest rewards to enterprise are to be found in serving international markets, while the greatest threats to indigenous industry come from international competition and from the international diffusion of technology. By encouraging product and process development the agency will seek to assist Scottish industry to rise to this challenge. The provision of seed-corn and development finance will
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be needed in these activities, as will a major expansion of the agency's technology transfer capabilities.
Thirdly, the agency has developed considerable expertise in encouraging property development to achieve environmental renewal and local economic regeneration. That approach, which has paid dividends in Glasgow's merchant city, can be a blueprint for other major Scottish urban centres. This expertise will increasingly be applied to urban renewal and regeneration of Scotland's built environment. We can expect to see this happening, for example, on the banks of the Clyde in Glasgow and in run-down housing areas. Special attention will be paid to enhancing, mainly through the provision of training, access to jobs for residents of areas undergoing urban renewal in order to improve their long-term income earning prospects.
In undertaking these tasks, the agency does of course take into account the philosophy and policies of the government of the day. It will adopt a commercial approach involving both the expertise and the resources of other participants.
The Government have been able to increase the agency's budget in real terms since 1979, and this, combined with its increasing effectiveness, has meant that the results of its activities have been of even greater value than before. This Bill confirms the Government's continuing support for the agency's role in improving the Scottish economy and environment by setting the framework for continued funding over the next five years. I commend the Bill to this House.
Moved, That the Bill be now read a second time.—(Lord Sanderson of Bowden.)
Lord Carmichael of Kelvingrove: My Lords, I do not think there is anyone in the House, particularly anyone with a Scottish background, who would wish to delay this Bill unduly. Although it is a small Bill, it is an important one. As the Minister has pointed out, the Scottish Development Agency is an important part of Scottish development.
I think the fact that we had a most interesting debate yesterday initiated by the noble Lord, Lord Sefton of Garston, makes it rather less necessary to go into some of the developments with which the Scottish Development Agency has been involved. We had some excellent speeches yesterday, including a very good maiden speech from the noble Lord, Lord Goold. It was suggested by my noble friend Lord Morton of Shuna that it was a little too optimistic, but I find that most of us who cross the Border take a rather rosier view than perhaps we do when we are sitting and talking among ourselves. I think that the speech of the noble Lord had many good points. The speech of my noble friend Lord Morton of Shuna was also very pertinent and something to which we should also pay attention.
The noble Lord, Lord Polwarth, had a good deal to do with the setting up and the preliminary work of the Scottish Development Agency. He also spoke in that debate, but unfortunately I was unable to hear what he said. I read his speech very fully this morning. He is quite correct in saying that it

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was a combination of the Scottish Council for Development and Industry and the local authorities, besides other bodies, which ultimately flowed together towards the creation of the Scottish Development Agency. The important thing to bear in mind is that we had a Secretary of State who in my view had already prepared the blueprint for the Highlands and Islands Development Board, which led him to grasp the nettle of the lowlands and create the Scottish Development Agency. I do not think that this should be overlooked.
By and large, I believe the Bill is most helpful. I should have preferred that the capital allocation be increased. The noble Lord, Lord Sanderson, will be aware of the debate that took place in the other place and which was long and exhaustive. I believe that my colleague in the other place clearly showed that there had not been an increase in the budget since 1979. I do not wish to go into the figures at this stage. I am sure they have been gone over thoroughly in the new St. Andrew's House. I should be very surprised if they had not. However, the noble Lord still holds the view of the Minister of State in the other place that there was an increase.
I feel that the Scottish Development Agency's work in the lowlands in particular, especially in Glasgow, is visible for all to see. It has done a good job on a rather limited budget, with a small but enthusiastic staff. It had the co-operation of the local authorities and also of the private sector. It is one of the good things which is happening in Scotland, and therefore I am only too happy to give the Bill the blessing of noble Lords on this side of the House.
11.45 a.m.
Lord Mackie of Benshie: My Lords, from these Benches I too should like to welcome the Bill. One would not be human if one did not take the opportunity to niggle a little, and I believe that the Government are late converts to approval of the SDA. There is no question about the fact that in Scotland we all appreciate what the HIDB has done, and perhaps even more what has been done by the SDA, particularly in Glasgow. The concept of a public body which takes part in urban renewal and helps tourism, besides promoting private enterprise and laying the seed corn for new industry, is an excellent one.
The Government set up a joint inquiry between the Treasury and the Scottish Office to look into the mechanics of its operation, and they recommended no change either in the objectives or in the methods. I am glad to see that the Government are putting up the borrowing powers, because that will be necessary. I believe that in the effort to save taxpayers' money, which of course is very commendable, the Government should distinguish between seed corn (which this is) and tourist expenditure, for example, which brings back money as opposed to expenditure which does not show a return.
I believe that the record of the SDA and the fact that the budget this year is lower in real terms than in some other years should be looked at by the Minister, who is a very sensible and forward looking person.
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He should be thinking of putting up the ordinary budget, which has not moved much in the life of the SDA. In the House of Commons the Minister said, at col. 534 of Hansard, that the budget was less in some years because less was needed to meet its gross budget.
If one looks at the number of projects of urban and indeed rural renewal awaiting approval in Scotland, the ordinary budget could well have been increased. It will bring back money to the Government. That is the whole point. It will be money extraordinarily well spent and it will improve the income of Scotland and through taxation the income of the Government. I welcome the borrowing and I recommend an increase in the borrowing powers. I urge the Minister to look again at the budget in view of the good it could do both to the taxpayer and to Scotland as a whole.
Lord Polwarth: My Lords, I warmly support this Bill and I thank the noble Lord, Lord Carmichael, for his kind words about the role of the Scottish council. I fully recognise the role of his party in providing, so to speak, the paternity for the Scottish Development Agency in the person of the noble Lord, Lord Ross of Marnock, who was then Secretary of State. We should acknowledge how sorry we are that he is not fit enough to be with us on this occasion.
Lord Sanderson of Bowden: My Lords, perhaps I may say how much I appreciate the wishes of the noble Lords, Lord Carmichael and Lord Mackie of Benshie, and also of my noble friend Lord Polwarth that this Bill will eventually pass. May I say on a personal note that I was sad not to he here yesterday. I was in fact standing up all night for Scottish fishermen in Brussels, as I was the night before, and a reasonable deal was obtained for them. Their industry is doing rather well as a result, and I hope this will continue into 1988.
I wish to say how much I appreciate the words of the noble Lord, Lord Carmichael, about the optimism shown by my noble friend Lord Goold in the speech he made. I share that optimism and I am glad that things are moving in the direction that they are taking in Scotland at the present time. I shall return to that matter.
I wish to re-echo what my noble friend Lord Polwarth has said about the noble Lord, Lord Ross, and his efforts in the early days. His efforts are well and truly recognised by all those who have an interest in industry in Scotland.
Perhaps I may also say that the general tenor of developments by the agency has obviously been welcomed in the remarks of noble Lords. I wish to take up two points about the budget. The noble Lord, Lord Carmichael, said that expenditure was going down. I wish to point out to the House that when we consider the gross expenditure—and that is what anyone who is interested in the development in Scotland is talking about—then we are really talking about a positive direction. In real terms, the 1988–89 budget (that is £146·6 million), an increase of 8·1 per cent. over the 1978–79 level, is a very good story to tell. What people are interested in is reflected in the agency's success in increasing its own income which

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it generates itself from loan repayments, factory rents, sale of property and investment. Therefore, I reject the charge that the Government are not moving in the right direction; in other words, seeing an increase in the overall capability of expenditure in this area.
I was interested in what the noble Lord, Lord Mackie, said about conversion on the road to Damascus. Frankly this Government are very interested in seeing development and when one looks at the increases that there have been in the private sector involvement with the Scottish Development Agency, then one sees a real success story. What we are talking about in industrial investment is that for every £1 of government money, the tax payers' money, we are now seeing £13·40 of private sector money in industrial development. I could go into other figures which also show an increase, but surely it must be the ultimate goal of this House to ensure that we are indeed seeing an increased amount of overall capital and expenditure going into industry in Scotland.
I should like to say at this stage (because the figures have come out this morning) that my right honourable and learned friend has announced the results of the November figures of unemployment in Scotland. I believe this is news for congratulation and is Christmas good cheer to those of us who are very concerned about the level of unemployment in Scotland. We have seen, since the beginning of this calendar year, the largest sustained fall since the early 1970s, and almost 60,000 fewer Scots are out of work. Seasonally-adjusted figures dropped by more than 38,000 since January, and that is the lowest level for four years.
This illustrates what I believe is the fundamental purpose of the Scottish Development Agency and that is to ensure that there is an on-going programme of development in Scotland which can be primed by the state but indeed is now showing that the private sector is taking up the challenge.
Overall, the effect of the change at this time has been to make each pound of government money go very much further and that is something we are all pleased to see. As has been said in the various speeches, there has been a review, which was mentioned by the noble Lord, Lord Mackie of Benshie, and we have come out very well from that review. The Government accept entirely the whole tenor of the report.
I have little more to say other than to thank all your Lordships who have taken part in this short but important debate which is showing the way forward concerning the Scottish Development Agency. As a result of the speeches that have taken place today, I hope that noble Lords will support the Bill so that the SDA may continue to play a full part in the economic life of Scotland. I beg to move.
On Question, Bill read a second time; Committee negatived.
Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution of 3rd December), Bill read a third time, and passed.

Urban Development Corporations (Financial Limits) Bill
11.54 a.m.
Lord Belstead: My Lords, I beg to move that this Bill be now read a second time.
This is a short Bill which comes to the House unamended from another place. I am grateful that your Lordships have agreed to suspend standing orders and to take the various stages of the Bill together.
The Bill concerns aggregate financial limits on urban development corporations. It amends the original Act by removing grant-in-aid from the sums subject to the limit; redefining borrowing so that only nett borrowing is covered; setting a lower limit to reflect these changes in definition. The Bill does not give urban development corporations more money. That will be a matter for Parliament. It simply rationalises their overall financial limits. As such, I commend the Bill.
Moved, That the Bill be now read a second time.—(Lord Belstead.)
Lord McIntosh of Haringey: My Lords, I thank the Minister for his explanation of the Bill; and I hasten to say from the outset that having agreed that it should pass through all its stages today, we shall not oppose the introduction of the Bill. In particular, we recognise that the revised definition of capital which is now to be in terms of the outstanding principle—in other words the nett amount—is a much more sensible definition than the one used in the past. As regards the overall limits, we recognise that the Government, having willed the end, in terms of the establishment of urban development corporations, must revise the means available to the UDCs. However, the issue of urban development corporations is much more controversial than those concerning the Scottish Development Agency which the House has just been considering. The Scottish Development Agency was set up with the enthusiastic support of local authorities in Scotland and has achieved universal support—not least today—on all sides of the House for the work it has done.
Urban development corporations in this country, on the other hand, have been set up against bitter opposition from most of the local authorities in which their territory has been sited, and that bitter opposition, though it may seem to be defensive of the powers of local authorities, has a good deal behind it. Urban development corporations have been set up under a regime in which rate support grant has been reduced by no fewer than £21 billion since 1979, a regime under which the proportion of local authority expenditure covered by rate grant support has decreased from 61 per cent. to 46 per cent., a regime under which the detailed activities of local authorities, their powers, their vires, their capital expenditure, the use of their capital receipts, has been crawled over by Government both in an administrative sense and in continuing restrictive legislation. Under those circumstances, it is not surprising that local authorities should be resentful of the largesse which they see as being spent on the urban development corporations.

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I am aware that as soon as one starts to say things of this sort, Ministers have enormously long briefs which will point to the achievements of the London Docklands Development Corporation and in Merseyside. Perhaps I may save the time of the House by saying that I do not dispute the physical achievements in terms of the amount of building that has taken place in the existing urban development corporations or the number of jobs that have been achieved, though I could dispute the social benefit to the areas concerned of those jobs and of that amount of building. Therefore, we need not be in dispute about the facts of the case.
What we must dispute and what the Opposition feels extremely strongly about is that to have urban development corporations—in effect quangos—taking over from and without the agreement of the local authorities cannot be a long-term solution for the development of our inner cities. It may achieve short-term results, largely because the Government are more willing to pour money into organisations over which they have complete control; but, in the long-term, these areas will have to be run by their own people. When the day comes, as I am sure it will, that urban development corporations are restored to the control of local authorities and any new urban development corporations are set up only with the consent of local authorities, we shall feel that the economic development of our inner cities is going hand in hand with the development of the communities in our inner cities, which are equally important. Until that day arrives, we shall not support uncritically the establishment of more urban development corporations or indeed the continuation on existing terms of the present corporations. In the meantime, as I said at the outset, we do not oppose the measure before us.
12 noon
Lord Belstead: My Lords, I am grateful to the noble Lord for his support of the Bill. I listened carefully to what he said and therefore I certainly will not read out a long brief about what has been achieved by the urban development corporations. Suffice to say that it is the case, as the noble Lord was good enough to recognise, that a great deal has been achieved in the London Docklands and a very great deal is being achieved in Merseyside.
Earlier this year my right honourable friend set up four more UDCs in England: Trafford Park, the Black Country, Tyne and Wear and Teesside. A further UDC has been set up by my right honourable friend the Secretary of State for Wales—the Cardiff Bay Development Corporation. These UDCs have set about their business and are attracting considerable interest in their areas. Finally, very recently, on 7th December, my right honourable friend identified areas of land in Bristol, Leeds and Manchester where he proposes to establish smaller UDCs—called mini-UDCs—which are smaller than those so far described. He intends also to incorporate an area of Wolverhampton in the existing Black Country Development Corporation. That is an important record for the people concerned and the generation of skills in those areas.
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In supporting the Bill the noble Lord was critical of the difference in treatment, as he sees it, between these areas and the other local authorities. He suggested that they were being set up against opposition from local authorities. That is the one point on which I take issue with him. I am advised that the four UDCs which I said were established this year were not opposed by the local authorities concerned. Indeed, each of those UDCs has three local authority members on the board and they are working closely with the local authorities. Therefore, I believe that there are opportunities for co-operation between UDCs and local authorities; indeed, with involvement of the local authorities in the work of the UDCs. Nonetheless, the noble Lord has been good enough to say that the Bill is sensible and in that spirit I once again ask your Lordships to agree to the Second Reading.
On Question, Bill read a second time; Committee negatived.
Then, Standing Order No. 44 having been suspended (pursuant to Resolution of 3rd December), Bill read a third time, and passed.

Civil Evidence (Scotland) Bill [H.L.]
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, I beg to move that the Bill be now read a third time.
The Bill represents an important and far-reaching measure of law reform. The groundwork for it was laid by the work of the Scottish Law Commission, but I should like to pay particular tribute to the noble Lord, Lord Morton of Shuna, for his amendments. They have stimulated the scrutiny of the provisions of the Bill as introduced and have resulted in the further improvement of it during its passage through your Lordships' House.
If I may, I should like also to thank him for the courteous manner in which he has dealt with our exchanges during the various stages of the Bill. That has contributed to the Bill's progress through this House with a degree of smoothness and sweetness which commended itself, I recollect, to the noble and learned Lord, Lord Elwyn-Jones, at an earlier stage. I commend the Bill to your Lordships.
Moved, That the Bill be now read a third time—(Lord Cameron of Lochbroom.)
Lord Morton of Shuna: My Lords, I detain the House for just half a minute in order to express my thanks to the noble and learned Lord for his remarks.
On Question, Bill read a third time, and passed, and sent to the Commons.

Farm Diversification Grant Scheme 1987
12.5 p.m.
Lord Hesketh Lord Hesketh rose to move, That the scheme laid before the House on 18th November be approved [7th Report from the Joint Committee].
The noble Lord said: My Lords, I beg to move. I trust that your Lordships will find it convenient if I also refer to the Farm Businesses Specification Order 1987 and the Agriculture Improvement (Amendment) Regulations 1987 at the same time since together these three instruments make up the capital grants element of the Government's farm diversification grant scheme.
As your Lordships will know, this scheme is the alternative land use package of measures, known as ALURE, which was announced in February by the then Minister of Agriculture, Fisheries and Food, my right honourable friend Michael Jopling. The proposed grant scheme we have before us today provides for grants for capital investments in diversified activities on farms. We also intend to complement the capital grants by assisting farmers through grants for enterprise feasibility studies and marketing costs. We are at present seeking powers to do this in Clause 1 of the Farm Land and Rural Development Bill, which reaches Report stage today.
The debates we have had on that Bill have already shown the extent of your Lordships' interest in encouraging greater diversification of activity on farms. I know that what we are doing here is widely welcomed. The ALURE package was designed to offer new opportunities to farmers by promoting alternative ways of using the land and stimulating additional activity on farms. Under the farm diversification scheme our specific objective is to encourage the farmer to use his undoubted entrepreneurial talents to develop alternative sources of income on his farm and so relieve him from the pressure to continue the upward spiral of surplus production. I do not of course want to imply that diversification will suit every farmer or be appropriate to every location. But the scheme which your Lordships have before you today will provide the pump-priming help needed to encourage some farmers for whom diversification is the right course to invest.
There are many business activities open to the farmer with entrepreneurial talents. The present scheme is targeted on, but not confined to, small to medium businesses and focuses on activities which arise naturally on the farm. These include the provision of tourist accommodation of a good standard, including camping barns which provide basic accommodation for walkers; also leisure, recreation, amenity and sporting facilities for visitors and the catering facilities that go with them. Value-added processing of food and other farm products including timber will also be aided, as will craft workshops together with farm shops to sell the products of the farm business. Another important feature of this scheme is that it will for the first time give assistance to businesses involving horses, in particular those concerned with the provision of livery, and in the uplands, stabling for pony trekking.
The three statutory instruments before us contain the detailed provisions for the capital grants part of the scheme. The principal instrument—the farm diversification grant scheme 1987—embodies the main requirements and conditions. It sets out who is eligible for the scheme, stipulates that applicants will
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be required to obtain a plan of their investments before they undertake them and sets the limits of grant available. The scheme is aimed at farmers and the eligibility conditions reflect that. Grant will be available at a rate of 25 per cent. on capital investments up to £35,000. Young farmers will be eligible for a bonus of 25 per cent. taking their grant rate to 31¼ per cent. The schedule of this statutory instrument sets out the kind of work that will be eligible for grant.
Another instrument—the Farm Businesses Specification Order 1987—specifies the types of alternative businesses we wish to grant aid under the farm diversification grant scheme. A specification order of this kind is required under Section 28 of the 1970 Agriculture Act (as amended by the Agriculture Act 1986).
Finally, the Agriculture Improvement (Amendment) Regulations 1987 give Ministers the powers to terminate the provisions in the current farm capital grant scheme, the agriculture improvement scheme, for grants for tourism and crafts. These grants, as your Lordships will recall, were introduced in 1985. Under the terms of Commission Regulation 797/85 we were obliged to confine them to less favoured areas to ensure that they could be offered only as part of a general farm investment plan and to hold the investment ceiling to £24,000. The new scheme which is being made entirely under national powers offers much more generous coverage. We are therefore anxious to ensure that those with a current AIS plan containing craft and tourism investments will be, if they wish, able to close their plan under the present scheme and transfer to the new scheme. They will need to decide if they want to do so within the next six months. I should also make it clear that the terms of the new scheme have been cleared informally with the EC Commission, which has welcomed it.
The Farm Diversification Grant Scheme is essentially a new scheme. I am sure that it will be a useful one. We are starting in a relatively modest way with initial provision for the capital grants of around £3 million a year and a further £1 million for the feasibility and marketing grants once these are available. We hope for a good level of uptake and will be formally reviewing our progress under the scheme in three years' time. The question of the appropriate level of resources for this scheme is obviously one which we shall keep constantly in mind.
Finally, I should like to say something about a point which I know is of concern to a number of your Lordships. This is the relationship between grant for diversification and planning consent for a diversified facility. The vast majority of facilities which can be grant aided under this scheme will require planning permission. The responsibility for getting that permission rests with the farmer though ADAS now offer a chargeable service designed to assist farmers seeking consent for the redesign and change of use of farm buildings. Whether farmers use that service or not clearly we are concerned to ensure that grant is not paid on facilities where the farmer has failed to observe his statutory obligation to obtain planning permission. We have set in hand detailed arrangements to cover this. First, where a farmer

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submits an application for approval of an investment plan he will be required to sign a declaration that he is aware of the need for planning permission. At the stage where the plan is approved he will receive a formal approval document from the ministry telling him, amongst other things, that it will be a condition of payment of any grant that he has obtained the necessary planning consents and that when he subsequently claims payment he will need to provide a copy of that consent. These arrangements will be introduced under paragraph 8(2) of the main scheme.
I must apologise to your Lordships for going into detail on these arrangements but I was anxious given the extent of concern about this aspect that the position should be quite clear. I commend the Farm Diversification Grants Scheme to your Lordships for approval.
Moved, That the scheme laid before the House on 18th November be approved. [7th Report from the Joint Committee.]—(Lord Hesketh.)
12.15 p.m.
Lord John-Mackie: My Lords, first, we must thank the noble Lord for being quick to give us so many details on this matter. On one occasion I ticked off the noble Baroness for giving us too many details, but on this occasion that is what we have been looking for. We thank the noble Lord again for doing it so well.
I was intrigued about one point the noble Lord made. I do not quite know how he put it, but I think he said that the scheme might take farmers' minds off producing too much cereal and so forth. However, I am not too sure about that point because I think they are all looking to increase and augment what they are getting from cereals. The noble Lord mentioned that they are prepared to give £3 million a year for the first year and £1 million for the feasibility study. It seems a rather curious proportion:£1 million for feasibility studies—which are really only looking at the situation—and only £3 million for actually doing the job.
First and foremost I must declare an interest because I am a farmer and I have a diversification scheme on the board at present. We naturally welcome the scheme. As the noble Lord said, farmers are certainly in need of other sources of income, not only because of two bad harvests—and there is another in the offing certainly in the eastern counties—but also because we are being squeezed. Our costs are continually going up. Although some prices have remained fairly good this year, they can in no way make up for the reduction in yields and the enormous costs we incurred this harvest in respect of drying and so on. That applies not only to cereals but also to potatoes and sugar beet.
However, on looking at this—and it is a very long document—we find that there are two pages of interpretation; a page on deciding who is eligible; half a page on plans; nearly half a page on restrictions; and more than a page on grants themselves. Then there is another page on various items, including half a page on reducing or withholding the grants; two and a half pages of a schedule and, finally, two-thirds of a page explaining it all. There are 10 pages in all.
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The noble Lord said that ADAS was well briefed to help farmers. Well it will certainly have to be well briefed because I do not know how farmers are to be informed of all those details. When I arrived home last night my wife was looking at a programme dealing with excuses for using bad language. If, on the other hand, the son of the soil has to read this in order to understand whether or not he should diversify, I should think that less than half way through his language would be excusable.
My noble friend Lord Carter very humbly assures me that there are agricultural consultants knocking around who would be willing to help. However, with due respect to him I had hoped—but the Minister has knocked my hopes down—that ADAS would be providing a free service for this but he has said that they will have to pay for it.
After those few general kindly remarks I should like the noble Lord to enlighten me on a few points, although he has, indeed, touched on one or two of them.
I start first with the planning scheme. As the noble Lord mentioned, this scheme comes under various sections of various Acts. Planning schemes were mainly for farm buildings and for a period the only restriction was on size. Schemes were free from planning. Will that apply to the current situation?
If one looks at the list of what can be done, a great many of those items are for agricultural purposes. On page 2 one can see what is eligible. I should have thought that quite a lot of those items would come under the old Act and would be free from planning. However, if that is not so, there is yet another burden for the son of the soil, because getting planning permission is no joke these days especially if one happens to farm in the green belt as I do. Therefore, I hope that there will be considerable assistance as regards the question of planning.
On the question of eligible persons there are two points that I should like to make. It would seem a pity to exlude a young man, whose father may have died quite young, and who had to take over at the age of 20 or 21. There is quite a lot of that happening. It would be a pity to exclude him because of his age and likely lack of experience before he could satisfy paragraph 3(1)(a)(iii) on this subject. I should hope that in cases like that one could appeal and help such a young man of that age.
Furthermore, paragraph 3(1)(b)(ii) says:
"the said person representing the said body submits on behalf …"
What does the "said body" cover? Is it any corporate or co-operative body? Many farmers, like myself, run their businesses as a small limited company and therefore there could be complications.
Perhaps I may mention my own position. My son and I own equal shares in a small company that owns the business. He manages the farm and would thereby qualify. I, on the other hand, am the tenant and would need the landlord's permission. I mention that because the eligibility paragraph is very important and could lead to a lot of difficulties. I hope that the noble Lord will look into these difficulties because the question of the landlord's permission is very important as we still have a great many tenants in this country at present.

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There is the question of what is virtually a means test of farmers' earnings relating to half their incomes. None of us likes means tests. However, I suppose that there is no other way of dealing with the matter. I do not like the idea of people having to produce details of their incomes and so on. We have plenty to do to satisfy the income tax authorities without having to satisfy the Ministry of Agriculture, Fisheries and Food.
I have another question about the amount of the grant. It relates to the 31·25 per cent. grant to a young farmer. My son is less than 40 years old. He is virtually the farmer. He will succeed to the farm when I go. He will obviously be excluded. That may apply to far more cases than one would think. I happen to know of another two similar partnerships. That point needs to be looked at.
I think that I have said plenty. It is an important subject. We give the scheme our blessing. We hope that the Minister will take note of the points that I have made.
Lord Carter: My Lords, there are some points of detail which we should like to put to the Minister. However, I shall not detain the House. The first point relates to paragraph 3(3) on page 3 which relates to the required arrangement between the contractor and the occupier if there is application for grant. It provides that the requirement is that there should be an agreement for seven years. That is extraordinary, because as the Minister will know, a large area of land is now farmed on a contract basis. If grant aid is to be allowed to partnerships which can be determined on one day's notice, if the partners agree, it is extraordinary that there should be the requirement that a contractor should have an agreement which runs for seven years. I should be grateful if the Minister would explain that point.
Another point concerns paragraph 9 and the arrangements for young farmers. Under paragraph 9(3) the applicant for grant has to be the sole owner or the sole tenant. That would seem to exclude all the share-farming arrangements which are of course now exceedingly common among young farmers. It is a pity that they are excluded by the requirement for a sole ownership or tenancy. I should be grateful if the Minister would deal with that point.
I wish to reinforce the point made by my noble friend Lord John-Mackie that under paragraph 9(4)(b) there is a requirement that all the partners of a partnership should be less than 40 years old to receive the enhanced rate of grant aid. That would seem to exclude many farming partnerships where the father is over 40 and the son under 40.
The Minister mentioned planning. If the farmer has to apply for planning permission to satisfy the requirement for grant will the planning fees be eligible for grant aid? It is a shame that the scheme does not provide for higher rates of grant in designated areas; for example, in national parks. As the Minister will be aware, farmers in those areas invariably face higher costs, usually for environmental reasons, and yet it is in those areas where the need for farmers to diversify is greatest,
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and where the ability to generate capital for new projects is least. Farmers in those areas would seem to have a special case for extra grant aid.
What criteria will the ministry use for the allocation of grant? As I understand it, the scheme is cash limited. Will the allocation be on a first come, first served basis up to the budget limit or will there be some employment aspect related to the number of jobs created?
My last point is that it would be helpful if, as farmers, we knew the relationship of all the schemes that are now, or soon will be, on the statute book. There are the diversification grants, the woodland grants and these grants. We should like to have some explanation of how they will all fit together so that the farmer can plan ahead.
Lord Stanley of Alderley: My Lords, before my noble friend replies, I am afraid that I have one or two queries. The first is an easy one. It relates to the means test. What happens if the farmer incurs loss and he has £100 in National Savings? Is he means-excluded from the scheme? My second point follows those made by noble Lords opposite on planning. If the process requires planning, is it possible for the Government to look carefully at whether the two departments (planning and the Ministry of Agriculture, Fisheries and Food) could get together so that the schemes could be taken together rather than go forward with the ministry and then have to obtain planning permission afterwards? That seems to be a waste of time.
I wonder whether my noble friend would look into the position with regard to highways. I notice that we are allowed grants for roads, but often the result is that we are not allowed them because the highway authorities stop them. Will he look at that point sympathetically so that we do not make a great deal of bureaucratic work and have double planning?
Lastly, are the Government going to review the scheme and, if so, how and when? It is an interesting scheme, and I feel that it should be reviewed regularly. I welcome the scheme.
Lord Hesketh: My Lords, we have had a useful although sadly short debate about the scheme. It is timely that your Lordships should have the opportunity to consider it on the same day as we are taking the Report stage of the Farm Land and Rural Development Bill. All our cards are now on the table, and I am sure your Lordships will have found the debate a helpful indication of the kind of approach we plan to follow when we come to introduce the scheme for feasibility and marketing grants. Once that is in place we shall have what I am sure your Lordships will agree is an attractive package designed to help the farmer through from the initial stage of planning a new enterprise to the capital investment needed to get it started, and, finally, to the effective marketing of the goods and services of the new business.
I welcome the wide-ranging support expressed today for encouraging the creation of diversified on-farm businesses. Debates in the House just over a year ago were instrumental in encouraging us to

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come forward with Section 22 of the Agriculture Act 1986, under which the scheme is being introduced.
The initiative has borne fruit more quickly than may have been expected at the time. I am sure that we are all delighted that that has been proved possible. Nonetheless, a number of noble Lords have asked questions or expressed doubts on some aspects of the scheme. The noble Lord, Lord John-Mackie, mentioned the structure of the relationship between the £3 million and the £1 million. All schemes must have a structure, and that is how it started out. If there is a need for change in the future it will no doubt possibly be reviewed.
No one claims that the scheme will result in an end to the cereal surpluses but the key lay in the first words that I said. It will remove the pressure to try to create more. That is what, in many different ways, we are trying to work at.
I shall bring the comments made by the noble Lord, Lord John-Mackie, about the encouragement of bad language in a government document to the attention of my noble friend the Minister. I point out to him that not all the items covered require planning permission. Only in cases where there must be statutory planning permission will planning permission be required.
With regard to the ease of planning, which the noble Lord also mentioned, I draw his attention to the revised Department of the Environment Planning Guidance Circular 16/87 to local authorities issued in May this year. It emphasised the need to foster the diversification of the rural economy. It points out that many commercial and other activities can be carried on in rural areas without causing unacceptable disturbance. It states that proposals for reusing buildings whether in the countryside or in the green belt should not be rejected unless there are specific and convincing reasons that cannot be overcome by attaching reasonable conditions to planning permission.
The noble Lord also referred to tenant farmers. Landlords will not be obliged to give consent. That is a matter best left to settlement between the two parties, but I am sure that all Members of your Lordships' House are aware that with the tougher world of the agricultural industry at the moment, most landlords will be trying to help their tenants rather than stand in the way of any progressive thoughts which at the end of the day essentially will protect their own investment.
The noble Lord, Lord John-Mackie, also drew our attention to the case of the 21 year-old farmer. We have to have some form of requirement, but we are trying not to be unreasonable about conditions. Many young men started work with their fathers on farms at the age of 15. They will have five years' experience when they are 21.
The noble Lord, Lord Carter, drew my attention to contractors and share farming. I will have to write to him on those points.
The noble Lord, Lord Stanley, also drew our attention to the situation with regard to the highways. I shall draw the points that he made to the
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attention of my right honourable friend, as he suggested.
With regard to planning fees and the eligibility for grant, professional fees for the preparation of applications for grant will be met, but planning fees will not. The noble Lord, Lord John-Mackie, also raised the point concerning ADAS advice. General ADAS advice on diversification will be free, but only when more detailed projects are required will ADAS start charging fees.
This has been an interesting and useful debate. I am grateful for the opportunity to clarify our thinking on diversification I am happy to commend once again the Farm Diversification Grant Scheme 1987 to your Lordships for approval.
On Question, Motion agreed to.

Farm Land and Rural Development Bill [H.L.]
12.31 p.m.
Report received.
The Earl of Cranbrook The Earl of Cranbrook moved Amendment No. 1:
Before Clause 1, insert the following new clause:
("Grants in respect of lower output farming.
—(1) The appropriate authority may, with the approval of the Treasury, by scheme provide in relation to any one or more parts of Great Britain for the payment by the appropriate Minister to the owners and lessees of land of—

(a) grants towards expenditure which has been or is to be incurred for the purposes of or in connection with the reduction of agricultural production by means of less intensive management of land in agricultural use, which retains that land in production and facilitates the conservation, enhancement or protection of the environment;

(b) grants for abating any financial loss which has been or will be suffered in consequence of such activity.

(2) The provisions of section 1(2) below shall apply to any scheme made under this section.
(3) The power to make such a scheme under this section shall be exercisable by statutory instrument and such a scheme shall not be made unless a draft of it has been laid before, and approved by resolution of, each House of Parliament.
(4) It is hereby declared that any function conferred on the appropriate Minister by or under this section is to be treated as a function connected with agriculture for the purposes of section 17 of the Agriculture Act 1986 (duty to balance interests when exercising functions connected with agriculture).
(5) A grant paid by virtue of a scheme under this section shall be paid out of money provided by Parliament.
(6) In this section—
"agricultural use"

(a) in relation to England and Wales, means agricultural use within the meaning of the Agricultural Act 1947; and

(b) in relation to Scotland, means agricultural use within the meaning of the Agriculture (Scotland) Act 1948.

"the appropriate authority- and "the appropriate Minister" have the same meaning as in section 1 below."
The noble Earl said: My Lords, in Committee, when my noble friend Lady Trumpington explained why she could not accept the new clause that I was then proposing, she emphasised two points in her concluding remarks: first, that the Government were about to issue a consultation document on the implementation of the extensification regulation of the EC; and, secondly, that the clause was legally unnecessary and probably contrary to Community law. I was heartily fortified by the widespread

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support that this amendment received from all quarters of the Chamber during the Committee stage, and indeed from many quarters outside. In withdrawing the amendment, I gave notice that I might come back at the Report stage.
Perhaps I may deal with my noble friend's two points. As we all know, the consultation document was issued by the Ministry on 8th December. With regard to limits on cereal production, it concentrates on set-aside. Perhaps I may refer to the press release of the right honourable gentleman the Minister of Agriculture, Fisheries and Food on 8th December. He stated:
"For cereals the principal means of achieving the reduction will he 'set-aside', by which I mean taking land out of production and putting it either to fallow, forestry or other non-agricultural uses".
But he also reminded us that,
"other methods which reduce output without taking land out of production entirely will not be ruled out".
To be specific, paragraph 15 of the consultation document, under the heading "Cereals, approaches not involving hectarage reduction", emphasises that such other methods can be considered and that the adoption of any such approach by the United Kingdom will require the specific authorisation of the Community. The document outlines some possibilities but does not go into any great detail.
On the second issue, on the legal point, advice taken with the help of the CPRE has confirmed that it would be technically incorrect to duplicate the mandatory provisions of the regulation. To make clear that this is not the case, and that this is not intended, the term "extensification"—which is now defined in EC-speak as a 20 per cent. reduction of output—and all other look-alike terms, including those which were aired in my previous version of the amendment, have been avoided in the present version.
I am also led to understand by legal advice that it is not only possible but common practice to introduce domestic legislation for discretionary elements of EC regulations in order to provide appropriate national powers for achieving the desired purpose. In order to make this clear I can say that the amendment is intended to relate to Article 1b1(a)—the final paragraph of the regulation. I have also been told that other member states of the European Community—notably the Netherlands, Denmark and Germany—are actively considering similar schemes to those proposed by this amendment, schemes that are designed to combine reduction in outputs with environmental benefits.
When I introduced the amendment at Committee stage, I was also quite justly challenged by noble Lords, to explain how such schemes could be implemented and administered. As I hope I then implied, I see it as no more complex than administering the Government's own proposals such as those for set-aside that are in the paper of 8th December or, for instance, schemes within ESAs which I take to be very relevant models.
I draw your Lordships' attention to the following points. First, the current periodic farm returns—which are already a national
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requirement—provide material for a base line. Secondly, thanks to research in which environmental bodies, MAFF, ARFC and others, have been involved, we can already predict the consequences on output of certain husbandry regimes that are known to be environmentally benign. Current work, including that supported by the NCC/NERC Special Topic on Agriculture and the Environment and that being sponsored by the research councils' joint working party on this subject, will add to our knowledge and will moreover emphasise the breadth of benefits to wildlife that can be obtained from such regimes.
In a little more detail I can explain that the procedure envisaged would involve the preparation of farm plans under which farmers would agree to adopt a regime or regimes appropriate to the whole farm—regimes which have been demonstrated to produce output reductions and environmental benefits. Such schemes might include the use of sprays approved by the Game Conservancy, the kind of scheme that is applicable to an ESA, organic farming, upland grazing management plans, and so on. Government support would be in the form of varying hectarage payment based on the regime adopted. This would be calculated on similar bases to payments available in the ESAs.
Income loss from lowered output would he alleviated to some extent by reduced input, but compensatory payments at the right level will certainly be needed to provide an incentive to bring in participating farmers. Given the very different circumstances of farms around the country, it will not be possible to predict the precise percentage reduction in every participating farm. There will be seasonal variations. There will also be variations which reflect the skill of the farmer. Payment levels therefore cannot be particularised but will have to be on a broad basis to reflect average expected loss on profitability. Different regimes will have different management implications and will attract different levels of payment.
In discussion we have come to the conclusion that it would be possible to define five or more regimes for arable land within which farmers would be able to operate. Each of these would be denoted by management practices and appropriate hectarage payments. The regimes of this nature would form the substance of the statutory instruments that will be necessary as a consequence.
If this amendment is accepted it will keep land in production and in good heart. It will therefore safeguard this vital national resource, holding it in readiness against those natural and social events, none of which is difficult to envisage or predict, that will at some stage require restoration of intensive agricultural production.
As I emphasised in Committee, the amendment also encourages farmers to continue to exercise the traditional skills in which they excel. Moreover, unlike straight set-aside, it will tend to support the agricultural infrastructure: the trade suppliers, the engineers, the mechanics, the consultants, the agronomists and others who form an integral part of the countryside community. I beg to move.
Lord Carter: My Lords, from this side of the House I am glad to welcome and support the amendment. We discussed the principle at length at Committee stage. The noble Earl, Lord Cranbrook, has already explained the matter at length so I shall be brief. He has amended the wording of the amendment to take account of the points raised by the Minister at Committee stage. His first amendment in subsection (1)(a) sets out admirably the objectives of United Kingdom agricultural policy, the reduction of agricultural production, the retention of land in production while facilitating conservation and protection of the environment. It is a voluntary scheme and has the advantage of enabling the farmer to farm every acre. That is extremely important in the maintenance of rural employment. It also has the knock-on effect with which we are all familiar on the rural economy generally. I quote just a few of the remarks which I made at Committee stage:
"Anything which keeps a crop on the land, helps us to work it and to keep men employed but reduces the intensity of output and has the difference made up by government grant is to be welcomed. Also it avoids the disadvantage of farmers receiving a grant for doing nothing".—[Official Report. 11/12/87; col. 1012.]
The Minister concentrated at Committee stage on the problems of collecting the base data regarding output and the level of input. I should remind her that we used to have to produce all this information in great detail on the special account forms that we used to support grant aid applications under the farm and horticulture development scheme. All the information contained in those forms will be required under this scheme to show the level of production and the level of input. Even in those days we had a grant for keeping the records.
It is the reduction of inputs which would be the main agent for reducing output—less fertilisers and chemicals on arable crops and grassland—and I expect that less concentrated feed will be given to livestock. This will be the way in the main that output will be reduced.
I am sure that it could be done in practical terms. The noble Earl's amendment provides a good start. It marches with and improves on the ideas outlined in the consultative document on extensification. We hope from this side that the Minister will feel able to accept it.
Lord Hunt: My Lords, I was unable to be present at Committee stage and I am therefore all the more glad to be able to take the opportunity of supporting the amendment put down by the noble Earl. In my speech at Second Reading on 5th November I pointed out that in Clause 1 there was no reference to the environmental aspects of rural and agricultural land and the need to conserve or provide public amenities. I suggested that the words "farm business" in Clause 1 gave no such indication and I also drew attention to the fact that, unlike Clause 2, there was no reference to Section 17 of the Agriculture Act 1973, which places on Ministers the responsibility for striking a balance between the agriculture industry on the one hand and environmental conservation and public amenity, as well as economic interests, on the other. I suggested that that reference should also feature in Clause 1.
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I mention that only because the amendment, which is far more explicit and provides a positive inducement to those aims to which I have referred, is obviously better than trying to play about with the wording in Clause 1. I warmly support it and I hope it is supported generally from these Benches.
12.45 p.m.
Viscount Ridley: My Lords, I too should like to support the amendment. I did so at Committee and I shall not now take up too much time on this. What is new on the scene since we spoke at Committee is the publication, as my noble friend has said, of the consultation document, which I believe is an important start in coping with the massive problems of overproduction in Europe. It is a great start and should be welcomed as such, for it goes a long way towards meeting the amendment of my noble friend Lord Cranbrook, especially where it talks about beef farming. In fact it goes as far as one might expect on that aspect of farming. The acceptance of the amendment, which is only an enabling one, would surely be a sensible further step for the Government to take.
I very much doubt whether the figures quoted in the cereals part of the document—it is said that the farmer will receive between £150 and £200 per hectare for setting aside so much land—will be adequate to tempt many farmers to join the set-aside scheme. I shall not go into further details. Many farmers are saying already—I am not sure of my figures—that it will take at least twice that amount to persuade them to give up arable farming on the scale needed to achieve a 20 per cent. set-aside. I argue that the amendment, which is an alternative way of reducing overproduction, should be welcomed and taken on board. It is another way of reducing arable production and overproduction and makes total sense in the context of what we are discussing. I hope that the Government will accept it as such.
Finally, I cannot help briefly recognising that the document takes account of the need not to have too much nitrogen on set-aside land. I am delighted because I spoke about that last time and the writers of the document appear to have taken note of what I may have said.
Lord Mackie of Benshie: My Lords, I too was unable to be here at the Committee stage because I was on Western European Union business. I welcome the amendment because it appears entirely sensible. This is an enabling Bill, but it enables only two measures. Thus, why not take advantage of it as drafted and offer a further sensible course for the Government to take, if they wish to and have the money to take it?
There is no question about the money being available. From a farming point of view—I must admit that I am more interested in farming than in the wildlife—much of the land on which surpluses are being produced in this country was never meant to be farmed for cereals but for grassland. Much of it was very bad grassland, full of buttercups, which were no doubt very beautiful to the eyes of the city beholder but were not much use to the farmer. There is no reason why it should not be well farmed as grassland

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without the addition of a lot of nitrogen, and why that should not be as profitable to the farmer as a more intensive use and more input to grow cereal crops which are not big enough to make a profit for him.
There is the money available. I have given the figures time and again. Two tonnes saved from the surplus will give at least £200 an acre, not a hectare, to play with. If half of that is saved and half is given, one makes a start on using the land in a way which will enable a farmer to make a profit without a tremendous number of inputs.
I welcome the amendment and I hope that the Government will be sensible and accept it. I hope that we shall not hear from the noble Baroness many reasons why she cannot accept it. I am not very encouraged by the look on her face, but we shall see.
Lord Gibson: My Lords, I apologise for not having been in my place when the noble Earl moved the amendment. I noted what he said and I am in total sympathy with it. I noted the Government's objections too, that the intensification would be difficult to monitor and therefore to apply equitably with reasonable economy, and also their apprehensions in regard to EC legislation. But the noble Baroness declared that the Government's mind was not closed. And since then we have had MAFF's consultation document. This, too, does not exclude the possibilities behind the amendment, but the paragraph on de-intensification—and this is what worries me—is so slight and the emphasis in the document as a whole so strong on reductions in area rather than in yield that I am not surprised that the noble Earl has returned to the subject.
I believe that reductions in both area and yield are options we should pursue. Reductions in area make economic sense and reductions in yield will bring benefits which reductions in area alone cannot confer. The reductions in yield may well be increased in areas not set aside in which case the environmental problems which over-intensification has brought in its wake will be aggravated.
I feel strongly on another point the noble Earl made. Quite apart from conservation, it is important to remember that agricultural land is a vital national resource which at some future date we may want to use to re-intensify production. Extensify, I do not understand, but I do understand de-intensify and re-intensify. At Second Reading the noble Lord, Lord John-Mackie, quoted an authoritative source forecasting a need in only 30 years' time for a two-and-a-half fold increase per unit area of land. If you de-intensify, at least you can re-intensify if you need to; but where you turn it over to other uses, depending on the use, it will take a great deal longer and will be very much more expensive.
In spite of these arguments, I infer from MAFF's consultation document that it prefers set-aside to de-intensification—lower input, lower output—and this must be because of the difficulty of implementation. It has already been shown that the EC regulation permits national discretion in the choice of methods employed to reduce production. I find it hard to see
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how EC law can be a valid reason for rejecting at least the principle behind the amendment. There may be a technicality I do not understand—that is all too likely, I am afraid—but difficulty of implementation is a much more serious one.
However, as has already been said—and I want to support the point—this is an enabling Bill and therefore in a sense an experimental Bill. Why not take power in principle to subsidise de-intensification with a view to trying it on a modest scale and increase it as experience warrants? Without that power, the social, economic and environmental objectives which lower input-lower output can be expected to achieve may not be achievable and we shall have to rely on set-aside for which there is certainly a place but which is not relevant to the purposes at the back of the amendment; and purposes which are supported by so many of your Lordships may not be achievable.
In Committee the noble Earl, Lord De La Warr, complained, most understandably I thought at the time, that the timing of the amendment was wrong. That was not the fault of the mover of the amendment. Presumably he had in mind the developments in the Community. But what other opportunity will we get for giving our objectives, which so many of your Lordships share, a legal basis? For this reason above all, I strongly support the amendment.
The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, as I said when we discussed the previous amendment of my noble friend Lord Cranbrook, we are extremely interested and have most certainly not excluded the ideas which are incorporated in the amendment he has brought before us today. However, with the greatest respect, my noble friend is putting the cart before the horse. He is asking the Government to incorporate his clause into the Bill before the consultation document which we have just issued has drawn any formal reactions from either individuals or bodies except for the Council for the Protection of Rural England which I know has advised my noble friend on the amendment. Furthermore, and I quote from the letter the CPRE so kindly sent me:
"Clearly it would still be necessary to seek EC authorisation for the implementation of a scheme along these lines and acceptance of the principle of this amendment would require the United Kingdom Government to seek such authorisation".
In other words we would be putting into a United Kingdom statute a power which stands in grave danger of reversal when further EC legislation appears in the coming months. Where is the sense in that?
Lord Mackie of Benshie: If it turns out to be against EC regulations, surely the Government do not need to put it into effect. It is an enabling Bill.
Baroness Trumpington: We would have to reverse a provision such as my noble friend is suggesting today. If it were included in the Bill, we would have to reverse that clause.
On the legal point, I explained at Committee stage that powers already existed in Community legislation

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to introduce a scheme to reduce production. Such a scheme could include reduction of production by less intensive farming methods. The taking of such powers in national primary legislation is therefore unnecessary and might, indeed, cause concern about overlapping powers. My noble friend has recast his amendment so that it no longer actually duplicates the powers provided in EC legislation to establish an extensification scheme. The fact still remains that the provision is unnecessary because the EC powers which already exist provide wide scope for schemes along the lines described in the amendment. These can be implemented under the European Communities Act by means of a domestic statutory instrument. This would therefore be nugatory legislation.
As some of your Lordships will be well aware, the Government are at the present time playing a leading part in Europe in respect of a whole series of measures relating to extensification and the various possibilities that could make up a wider set-aside scheme. We have already demonstrated our commitment to the environment by negotiating environmentally sensitive areas under EC legislation. Our readiness in the United Kingdom to press ahead with the implementation of ESAs has given a lead to the Community. On a more detailed point we have recently seen a first draft of the Commission implementing regulation on extensification. Discussions are at an early stage and a great deal of clarification is needed. In that regulation there is an article which specifically lays down conditions for a method of reducing production which applies by lowering output across the whole farm. We need to see the outcome of these negotiations before taking any final decisions.
I turn now to the point about which some noble Lords were concerned. I refer to whether the Government are prepared to do anything positive to encourage lower intensity farming. Of course we have an open mind. This is one of the reasons why we have issued our consultation document to crystallise ideas and undertake the work involved. I say to the noble Lord, Lord Gibson, that no possibilities are ruled out, and that includes reduced yields. What we do know is that, despite what my noble friend has said, his amendment would require a huge bureaucracy. I quote again from the CPRE's letter to me. It has suggested that there should be an investment in "sensible levels of bureaucracy". The mind boggles. If I may take up a point made by the noble Lord, Lord Carter, it is precisely because of the experience we have in implementing other schemes such as AHDS that we know there are difficulties and that it takes an awful lot of people to do it.
My noble friend Lord Ridley said that payments proposed for cereals are too low. I would say in the mildest terms to him that we need to consider the correct level of payments to offer in the light of the views of the consultees. We need to be completely satisfied that any scheme will be workable and cost-effective and offer good value for money. I have doubts whether we could be sure today that the amendment would do so. To take this year as an example, because of the awful harvest we have had,
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which was strictly a natural phenomenon, if we had been operating a scheme of the kind described in my noble friend's amendment we might have been obliged to pay large sums of money to farmers for reducing production when in fact they had taken no steps to do so. The Government could not defend that to the taxpayers.
Lord Carter: My Lords, I am grateful to the noble Baroness for giving way. Surely it will be voluntary and the grants will be available only to farmers who have entered the scheme. Therefore, if yields are reduced as a result of bad weather but one has not entered for the voluntary scheme, one will not receive the grant.
Baroness Trumpington: My Lords, if a farmer has applied for the grant and there is bad weather, he will still be eligible. The EC Commission would expect proof that a reduction in production had been achieved. It would probably not be satisfied to rely on methods of management. To safeguard public funds we too would need proof that output had fallen. However, this area requires further work.
I do not wish to sound negative about the spirit behind this amendment. In a community burdened with surpluses there is clearly a place for farming by less intensive methods. Indeed, we believe that one result of the price restraint policy we have been pursuing for a long time is that in the face of lower prices farmers will closely examine their costs in a way which may well result in reduced inputs and adoption of less intensive methods. As noble Lords know, we are continuing to pursue in the present Brussels negotiations a policy of price reductions complemented by set-aside, on which we are taking the lead. While the Government have by no means set their face against a low intensity policy, we recognise difficulties with it which the consultation exercise will help us to investigate. Therefore we feel it would not be right to legislate now, prematurely, before full consideration has been given to the issues raised and their solutions. But if in the light of consultations we can devise a satisfactory and cost-effective scheme, we have the powers available, which are likely soon to be strengthened by further Community legislation. For these reasons, I ask my noble friend kindly to withdraw his amendment.
The Earl of Cranbrook: My Lords, with the leave of the House, I am forced to say that, speaking for a department which is required by law to take into account conservation, I am extremely disappointed by my noble friend's reply. As the noble Lord, Lord Gibson, said, what other opportunity shall we have? My noble friend has said that the Government retain an open mind. However, an empty mind is not an open mind and there is an extreme vacuity in the consultation document which we have before us. It fails totally to approach the problem which has been aired.
I spoke of the strength of feeling around the House, but there has been a strong response from all nongovernmental environmental bodies. There has been plenty of thought. I have taken a great deal of trouble to keep my noble friend fully informed of all the thinking of which I am aware. I do not believe that

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she will criticise me for failing to keep in touch with her and to keep her informed.
My noble friend says that no possibilities are ruled out as a result of the consultation process, but where is the initiative? What steps has the Ministry of Agriculture, Fisheries and Food taken, with the backing of many noble Lords round the House and the many other non-governmental organisations which have strong feelings, to respond to the initiative that I have tried to bring forward? I take the point that my noble friend has said that the amendment would bring something into the Bill which would be nugatory. Mere nugatory effort is not necessarily effort which is wasted. According to the legal advice that I have received it would not be contrary to EC law to legislate in an area which is already within the discretionary powers of a regulation. It is essential that this should be a weapon in the armoury of our Ministry of Agriculture when it takes its final stance on the implementation of measures to deal with the whole problem of reducing agricultural output.
I have some of the figures available. I have a Written Parliamentary Reply on the common agricultural policy of 9th December 1987 in which the Minister states that the latest forecast outturn for the United Kingdom is that in cereal support we shall be spending £191·1 million and in beef and veal support we shall be spending £243 million. Those are large sums of money and are at present supporting increased output. That money can perfectly well be diverted and some of it can be saved in reducing output, so improving the environmental status of our rural areas.
I have no up-to-date figures on the exact cost per hectare. The only available figures that I have are again from the Parliamentary Written Answer. The right honourable John Selwyn Gummer was replying. The figures available to him in April 1986 gave a cost of £130 per hectare for average expenditure on cereals. That money is supporting excess production and not environmental benefits.
I do not feel that to take a nugatory step is to take a wrong step. It simply means that we are doing something which is unnecessary. I do not take the point that we are doing something which is bound to be against EC regulations. If my noble friend tells me here and now that to press the amendment to a Division would be inviting the House to so something which is illegal in EC law, I would not do so. I do not know whether she wishes to say that. Otherwise, I feel that we must see this amendment incorporated into the Bill. I beg to move.
1.8 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 54; Not-Contents, 67.

DIVISION NO. 1

CONTENTS

Addington, L.

Massereene and Ferrard, V.

Airedale, L.

Monkswell, L.

Ardwick, L.

Monson, L.

Aylestone, L.

Morton of Shuna, L.

Banks, L.

Moyne, L.

Bruce of Donington, L.

Nicol, B.

Carter, L.

Ponsonby of Shulbrede, L.

Craigton, L.

Ridley, V.

Cranbrook, E. [Teller.]

Ritchie of Dundee, L.

Elliot of Harwood, B.

Sainsbury, L.

Elwyn-Jones, L.

Saltoun of Abernethy, Ly.

Ferrier, L.

Seear, B.

Gallacher, L.

Serota, B.

Gibson, L. [Teller.]

Shackleton, L.

Graham of Edmonton, L.

Silkin of Dulwich, L.

Gregson, L.

Stanley of Alderley, L.

Hampton, L.

Stedman, B.

Hayter, L.

Stockton, E.

Hunt, L.

Strabolgi, L.

Jay, L.

Tordoff, L.

Jenkins of Putney, L.

Turner of Camden, B.

John-Mackie, L.

Underhill, L.

Kennet, L.

Wallace of Coslany, L.

Kilbracken, L.

White, B.

Mackie of Benshie, L.

Williams of Elvel, L.

McNair, L.

Winchilsea and Nottingham, E.

Mais, L.

Winterbottom, L.

NOT-CONTENTS

Alexander of Tunis, E.

Kings Norton, L.

Arran, E.

Kinnoull, E.

Beaverbrook, L.

Lane-Fox, B.

Beloff, L.

Lauderdale, E.

Belstead, L.

Lovat, L.

Bessborough, E.

Lyell, L.

Blyth, L.

Mackintosh of Halifax, V.

Boyd-Carpenter, L.

Marley, L.

Brabazon of Tara, L.

Merrivale, L.

Brougham and Vaux, L.

Morris, L.

Cameron of Lochbroom, L.

Mottistone, L.

Campbell of Croy, L.

Mountevans, L.

Colnbrook, L.

Munster, E.

Cork and Orrery, E.

Napier and Ettrick, L.

Crickhowell, L.

Nelson, E.

Cullen of Ashbourne, L.

Newall, L.

Davidson, V. [Teller.]

Nugent of Guildford, L.

De La Warr, E.

Pender, L.

Denham, L. [Teller.]

Plummer of St. Marylebone, L.

Denning, L.

Radnor, E.

Dundee, E.

Renton, L.

Effingham, E.

Romney, E.

Ellenborough, L.

St. Davids, V.

Elton, L.

Selkirk, E.

Faithfull, B.

Sempill, Ly.

Fanshawe of Richmond, L.

Skelmersdale, L.

Ferrers, E.

Slim, V.

Gainford, L.

Strange, B.

Gray of Contin, L.

Swansea, L.

Greenway, L.

Swinton, E.

Hesketh, L.

Thomas of Gwydir, L.

Hives, L.

Trumpington, B.

Home of the Hirsel, L.

Vaux of Harrowden, L.

Ironside, L.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 2 [Grants in respect of farm woodlands]:
1.15 p.m.
Baroness White Baroness White moved Amendment No. 2:
Page 3, line 11, leave out ("land from agricultural use to use for") and insert ("arable land and improved grassland to")
The noble Baroness said: My Lords, I referred to this briefly at Committee stage and felt that it was

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desirable to put down an amendment at this stage in order to have a much more considered reply, I would hope, from the noble Baroness. I might point out that the consultation paper on extensification hardly touches the matter with which we are dealing because it extends only to cereals and beef. I do not know whether the Government are proposing to bring out a consultation paper on the future of sheepmeat, but that would have been of greater interest to those of us concerned with the mainly upland areas to which this amendment refers.
I indicated at Committee stage that the government's proposal that 3,000 hectares of the area for which special grants are to be available for woodland planting should apply to the disadvantaged or specially disadvantaged areas meant that the advantage of the scheme to farmers was minimal. What we are really concerned about in this amendment is to offer those in these areas a more comprehensive and better considered scheme than that now proposed.
It is true, I believe, that if each applicant acceptable to the scheme within the limits laid down planted up to the maximum of 40 hectares, there would be fewer than 100 farmers directly affected which does not make much difference either way. In practical terms, of course, it would be improbable that you would have everyone planting up to the maximum permissible limit.
But what we are concerned about is that if the real objective of the scheme is not to plant a few more trees in these areas, but really to try to sustain some kind of viable farming in the specially disadvantaged—I was thinking of the word "deprived"—areas, one needs something much more comprehensive and on a much more satisfactory scale. Plainly, one wants to keep up activity in these areas.
It is a different situation from the set-aside which was being discussed by the noble Earl, Lord Cranbrook, on the previous amendment. But it has something of the same social consequence in it. We want to keep people in the disadvantaged areas, who are active on the land and not merely going in for the various diversifications, helpful though they may be, that we discussed in the immediately preceding debate. Incidentally, as my noble friend Lord Carter indicated, as we understand it, the extension of the diversification assistance, the more generous coverage referred to by the noble Lord, Lord Hesketh, is of course no doubt extremely welcome in the other areas. But it does have the effect of depriving the areas which we are discussing under this amendment of the differential advantage which they previously enjoyed as less favoured areas. In other words by extending the grants much more widely to other parts of the agricultural scene the differential advantage is thereby removed from those who had previously been so favoured.
As I have said, as regards the main concern in most of the upland areas at any rate (which is the rearing of sheep) we are not sure what is intended. Possibly other noble Lords are interested in that matter. However, I am told that the position as regards sheep
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is nothing like as urgent or as difficult as that of cereals and beef which are dealt with in the consultation document. Nevertheless, some also foresee difficulties in that connection.
What we are really asking for in this amendment is that we should not have a situation in which the Government say: "Oh, well, we have made arrangements for the disadvantaged areas to receive £30 a hectare if they are prepared to grow trees, but we are not really thinking very much of anything else." That does not seem to us to be adequate to maintain the social fabric or the agricultural future of the areas concerned. That is why we are asking the Government to indicate that they have given thought to this matter and thought to the environmental relationships between this proposed grant and the landscape and the wildlife conditions of the areas that we are discussing.
We should hope to receive from the Government an indication that they have thought through what is really the best way of sustaining both the agricultural and the social fabric of these areas. Obviously, one does not wish to suggest direct income supplements in order to maintain population. If one is going to pay grants in order to sustain the agricultural and rural health of these areas, it seems to us that it is very necessary that one should take a much closer view of what is ideally necessary and how one can adopt a more comprehensive approach. Admittedly, when I say "us", I am talking mostly for environmental bodies. I am not sure whether anybody in the Ministry of Agriculture, Fisheries and Food has really been thinking in those terms. I could not give notice to the noble Baroness of this point. Therefore I would not expect her to reply in detail. However, it has been drawn to my notice that in at least two of the national parks very considerable attention has been paid to comprehensive management of moorlands, uplands, grasslands and existing tree plantations.
The Peak District in particular, so I am told, has given a great deal of thought to this, and has great experience in such matters. Exmoor is another example of where farms not directly connected with the mechanism that we are discussing under the Bill have themselves been experimenting in how one can carry out improvements which allow for diversification and which also protect the environment and sustain the social fabric of the area.
I do not know whether the noble Baroness will simply reply, as I think she might, that if the Government are offering grants for planting trees at all they cannot leave out the special areas. I entirely understand her point of view, but we are saying that it is not good enough to suggest simply offering grants—at a very low level, incidentally—for planting trees without taking into account the effect on the environmental and wildlife spheres. That does not seem to us to be satisfactory. I have here a letter from the World Wildlife Fund in which it expresses its concern about:
"allowing planting of 3,000 hectares of unimproved land in the less favoured areas because, unless carefully monitored, planting in these areas could damage valuable wildlife habitat".
A good deal depends on where one plants and what is planted. We are not by any means convinced that if the clause goes through exactly as it now stands,

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without the amendment, that there will be any incentive to anybody to consider the totality of the development or even what type of trees are to be planted. There is no requirement in this particular arrangement as I understand it for any consideration of what type of trees should be planted. If one is planting trees purely commercially then conifers are the obvious answer. What we do not want is a straightforward plantation of conifers planted by those who wish to do that who probably have other income and who do not really mind whether they only receive £30 per hectare. We do not think that that is socially the most desirable thing.
We really want a comprehensive plan for these areas that is based on the philosophy of the environmentally sensitive areas; in other words, with positive incentives, positive encouragement and positive thought rather than the negative compensation for not doing things which is what applies to most of the management agreements in other situations.
The real point of moving this amendment is to draw the attention of the Minister and through her of her department to the need for, among other things, consulting with those particularly in the national park areas because they have the special responsibility in those areas as to how one can have a much wider looking, more socially and more environmentally conscious method of assisting the farming population in those areas who will find it very difficult indeed to continue living there on any kind of viable economic basis. We think that this is much too narrow an approach and we think it does not make provision for the other considerations which should be included in the areas concerned.
I hope very much that the Minister will at least recognise that there is concern, apprehension and dissatisfaction in the organisations which are particularly anxious to maintain viable social life and viable agriculture in the areas which are not dealt with in the consultation document which will lose their preferential advantages under the otherwise no doubt desirable diversification grants that we have been recently discussing. I hope that the Minister's department will take fully into account—even though it is not responsible for them—the experience of the national park authorities which are working very hard in this particular field.
Lord Hunt: My Lords, from these Benches I rise to support the amendment moved by the noble Baroness. I shall do so very briefly. I propose to approach it in a rather narrower context than the noble Baroness did. If I have understood the amendment correctly—the noble Baroness must correct me if I say that I found it rather difficult to understand, not from her expedition so much as from the wording of the amendment—the effect of it, if not the intention, will be not to encourage and indeed to discourage the planting of conifer forests on the uplands in the severely deprived and deprived areas where those types of trees particularly flourish. That is a negative purpose or it would have a negative effect, and from the narrow point of view I support that effect.
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Your Lordships will perhaps forgive me if I speak with particular feeling about the extensive conifer plantations to be seen on nearly all the hill land along the Welsh border, where a great deal has already been done to spoil the natural beauty of the landscape. I am thinking particularly of mid-Wales. However, it is true elsewhere. We have had for a long time the blanket areas of dense, dark, regimented spruce plantations. It is appalling both from an environmental and a landscape point of view. The effect of the Bill and this particular part of it as it stands will certainly not exclude the payment of grants for extending that kind of environmental depredation. I approve of it on those grounds.
Looking at it from the positive point of view, as I read the amendment it should have the effect of encouraging the planting of trees of whatever kind. Farmers will plant for profit on just those areas of land where agricultural production which is in excess—milk, meat and cereals—needs to be reduced. If that is the positive purpose of the amendment, I warmly support it.
Lord Carter: My Lords, from this side of the House we welcome the amendment. My noble friend has explained very clearly the need for comprehensive marginal land improvement schemes taking into account the balance between the broadleaved species, conifers, upland livestock and the environment generally. As she has said, the 3,000 hectares which will be spread over all the SDAs is marginal. That is not really significant if we are to balance all the needs which she has mentioned in the uplands areas. We hope that the Minister will be able to agree that such a comprehensive scheme is required and will be able to satisfy the House on the arguments that my noble friend has advanced.
Lord Kilbracken: My Lords, my noble friend has just said that we on this side of the House support the amendment. However, I am bound to say, speaking as a forester and an environmentalist, that I do not approve of it. As I see it, the purpose of the amendment would be to confine giving of the grants to areas of arable land and improved grassland and therefore exclude lower quality agricultural land. In my opinion, it is only on such land that the planting of trees is a profitable operation. If trees are planted on arable or improved ground, the loss of agricultural income from those areas during the 40 years or more that the trees are growing, plus interest over the whole period, is such that it takes away all profit from the planting of the trees. One has to consider how much wealth is being created by afforestation of that sort. I feel that encouragement should be particularly directed towards the lower quality areas of farmland and not encouraged where very rich land is involved.
Perhaps I may also mention that I feel some doubt about the word "arable" in the amendment. It originally meant capable of being planted. Presumably it still means that. However, sometimes it is used to mean land that has been ploughed, and sometimes it is used loosely to mean any form of agricultural land. I do not know if it has been defined in any statute. However, I feel some doubt about it.

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The noble Lord, Lord Hunt, referred to the environmental unsuitability of the sitka plantations, and so on. I know what he means. But I should point out that that is the profitable way of growing trees. If trouble is taken with the planting in choice of species, one does not have a monocultural expanse. For instance, I very much like to plant European or Japanese larch in blocks through the sitka and put some hardwood trees around the edge, thus avoiding large square blocks. I can assure the noble Lord that I could take him to a softwood planting site put down almost 40 years ago and he would find the trees very beautiful. Some birds may go out but others go in, such as goldcrests and the whole of the tit family. I am now waiting for the first crossbills to arrive. It is not an environmental desert. I hope that I shall be forgiven, therefore, for dissenting from my two noble friends on that matter.
Baroness Trumpington: My Lords, I am sure that the noble Baroness will forgive me if, although I could, I do not take up the matter of sheep. The amendment deals with trees and not sheep. The effect of the amendment, for the benefit of the noble Lord, Lord Hunt, and other noble Lords, would be to exclude all agricultural land other than arable land and improved grassland from the grants we shall be empowered to offer under Clause 2(1)(a)
Perhaps we may look at the issue of principle first. Like the noble Baroness, we are keen to see the scheme focusing primarily on arable and improved land. That is what the retargeting of the scheme which I announced at Second Reading is all about. However, we had to recognise that some farmers in the less favoured areas might not have any improved land or might not be able to release it without jeopardising the viability of their holdings. We therefore decided that we should allow 3,000 hectares of planting on unimproved grazing land in those areas during the three-year experimental period. That is particularly designed to help farmers in Wales and in Scotland. I am therefore surprised that the noble Baroness has not welcomed the provision. Given the overall limit, we do not see a risk of significant loss of upland habitat to trees.
On a point of detail, the £30 rate only applies to rough grazing. On improved land, farmers in the less favoured areas will get £150 a hectare in the disadvantaged area and £100 a hectare in the severely disadvantaged area. I also remind your Lordships that we intend to maintain appropriate safeguards in certain statutorily designated areas such as national parks, sites of special scientific interest and environmentally sensitive areas because those are of special conservation importance. We do not expect the new arrangements to lead to environmentally damaging planting. However, we shall be reviewing that and other aspects in year three of the scheme. I therefore ask the noble Baroness kindly to withdraw the amendment.
Baroness White: My Lords, naturally I am grateful to the Minister for replying to the amendment. However, I am disappointed that she has not dealt at all with the desirability in those areas of having a much more comprehensive approach—concerning
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the environmental aspects specifically—than may be required in the other areas to which the scheme applies. We want something better for the uplands. We want something more generous. There has been no indication of any government thinking on that point.
The amount of £30 per acre for rough grazing, which is what most of us have in those areas, is not going to get us very far, as was said on a previous occasion. So far as concerns environmental desirabilities, I must say, in looking at the consultation document for beef and cereal areas, that I was frankly shocked to see that whereas an applicant whose farm included an area designated as a site of special scientific interest would be required to notify the Nature Conservancy Council of his proposed application to join that particular scheme, it goes on to say that applications in national parks, in the Norfolk and Suffolk Broads or in Scotland and national scenic areas would be invited to notify the appropriate authority. In other words, there is no obligation so far as concerns the areas covered in this document. So far as we can make out there is no obligation under the Bill which is now before us for there to be consultation even in connection with national park areas. I am not quite sure whether sites of scientific interest can be brought in. There is no obligation here. Perhaps the noble Baroness will wish to reply on that point?
Baroness Trumpington: My Lords, may I interrupt the noble Baroness by saying that her amendment does not deal with that point.
Baroness White: My Lords, it deals with the much wider issue of the plantation of trees in the upland areas which can be planted, according to the proposed scheme in the Bill, without necessarily consulting anyone at all. One simply applies for the grant and if it is within the hectarage and within the designated area of disadvantaged land, then, so far as I can make out, one can simply go ahead up to the maximum limit regardless of any other consideration.
It is quite clear that we are not going to get very far with this discussion on the present occasion. We may have further opportunities of raising the matter on a much broader base and of proposing a much more comprehensive scheme for dealing with the structure in these upland areas. These are going to be especially socially and economically disadvantaged. I grant that this may have seemed a rather awkward way of bringing the matter forward, but we had to deal with the Bill as it was. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Denham: My Lords, as the business so far has taken rather longer than expected it has been agreed through the usual channels that we should adjourn consideration of the Bill at this stage and revert to it after the Recess. I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Parliamentary Constituencies (England) (Miscellaneous Changes) (No. 3) Order 1987
1.40 p.m.
The Earl of Arran The Earl of Arran rose to move, That the draft order laid before the House on 5th May be approved [20th Report from the Joint Committee, Session 1986–87].
The noble Earl said: My Lords, the two draft orders before your Lordships' House this afternoon implement the recommendations made by the Boundary Commission for England in two reports. These two reports do however cover the same interim review of constituency boundaries, so that it is entirely appropriate that they should be taken together.
The Boundary Commission announced its second 1986 interim review of 55 constituencies in December 1986. Draft proposals were published in January 1987, and in the case of 53 of the 55 constituencies there was general agreement. The proposals for two constituencies, Ipswich and Suffolk Coastal, were, however, the subject of a petititon opposing them, and the commission ordered that a public inquiry should be held. The commission decided, however, to report immediately on the 53 uncontentious constituencies, and this was the report laid before the House on 6th May.
The local inquiry into the remaining two constituencies was held on 12th May, and the assistant commissioner upheld the commission's proposals. A separate report on Ipswich and Suffolk Coastal was made to my right honourable friend the Home Secretary, and laid before the House on 21st October.
The Boundary Commission's purpose in undertaking these reviews is to ensure that the parliamentary constituency boundaries are realigned with local government boundaries which have been altered by the Local Government Boundary Commission. All the changes proposed are the minimum necessary to realign the boundaries.
In 12 of the 13 counties under consideration this afternoon the changes to the constituencies affect comparatively few electors—between two and 527. The changes in Lancashire are more extensive, with up to 2,375 electors moving between constituencies, although the net effects are less.
The orders implementing these changes are similar in form to the Welsh Constituencies Order recently approved by your Lordships' House. The Joint Committee on Statutory Instruments has considered them. Articles 2 to 13 of the No. 3 Order and Article 2 of the No. 4 Order substitute the constituencies in the schedule for those which exist at present. Article 1(3) of the No. 3 Order, which was laid before the House at a time when a general election was in the air, will come into effect when it is made by Her Majesty in Council. Article 1(2) of the No. 4 Order requires that the order shall come into force 14 days after it is made. Both orders will, however, take effect at the next general election, and will not affect any by-elections held in the meantime.
My Lords, I commend these orders to your Lordships' House.
Moved, That the order laid before the House on 5th May be approved [20th Report from the Joint Committee, Session 1986–87].—(The Earl of Arran.)
1.45 p.m.
Lord Underhill: My Lords, I am grateful to the noble Earl for explaining the two orders. I have read fully both reports of the Boundary Commission and I have noticed, as he has said quite rightly, that very few electors are involved in the constituencies concerned.
It may be argued that we in this unelected House should not be worried about constituencies. As we have no votes we have all the more reason to be interested in certain matters because ultimately the elected Chamber decides upon matters that we may be considering.
There are two important points of principle which I have noted from the report and to which I wish to draw attention. The noble Earl referred to the local inquiry into the Ipswich and Suffolk coastal constituencies. The question was raised by an individual about the marginality of one of the constituencies affected. The deputy commissioner made it absolutely clear that he did not know which way people would vote but in any case he would reject any discussion whatever on the question of marginality of constituencies.
The other point affected my own constituency of Epping Forest where I note that there were no objections to the recommendation. However, the local Conservative Association thought that the time and cost involved in preparing these interim reports were wasted and it accordingly protested. However it did not disagree with the representations.
I agree completely with what the commission has said; namely, that apart from the fact that it has a duty to look at these interim reports, it is also important that we should have identity between local authorities and parliamentary constituencies not merely because of those two bodies, which is very important, but also because of the effect upon the organisation of political parties.
With those two observations which I have drawn from the reports I naturally support the two orders.
The Earl of Arran: My Lords, I am grateful for the general air of satisfaction which the noble Lord, Lord Underhill, has expressed. As regards his other comments I take due note of them.
On Question, Motion agreed to.

Parliamentary Constituencies (England) (Miscellaneous Changes) (No. 4) Order 1987
The Earl of Arran The Earl of Arran rose to move, That the draft order laid before the House on 21st October be approved. [5th Report from the Joint Committee].
The noble Earl said: My Lords, I have already spoken to this order. I beg to move.
Moved, That the draft order laid before the House on 21st October be approved. [5th Report from the Joint Committee]—(The Earl of Arran.)
On Question, Motion agreed to.

Sex Discrimination (Amendment) Order 1987
1.50 p.m.
The Earl of Arran The Earl of Arran rose to move, That the draft order laid before the House on 23rd November be approved [8th Report from the Joint Committee].
The noble Earl said: My Lords, the Joint Committee on Statutory Instruments has considered the order. The draft order is intended to make changes to Section 52 of the Sex Discrimination Act 1975 and Article 53 of the Sex Discrimination (Northern Ireland) Order 1976 which are necessary to implement the requirements of Article 6 of the European Council's Directive 76/206 on equal treatment of men and women as regards access to employment.
This requires all persons to have the right to obtain an effective remedy in a competent court against measures that they consider to be contrary to the principle of equal treatment for men and women.
Section 52 of the 1975 Act and Article 53 of the 1976 order exclude from the scope of the legislation acts done for the purposes of safeguarding national security. The Northern Ireland order goes wider excluding also the protection of public safety and public order. Subsection (2) of Section 52 and paragraph 2 of Article 53 allow the Secretary of State to certify that an act was done for these purposes. A certificate is conclusive evidence on this point.
The consequence of the draft order will be to remove from the certificate of procedure "employment and vocational training". Such issues will remain excluded from the scope of the legislation when national security needs to be safeguarded, but an industrial tribunal will be able to review such a claim in the light of exceptions to the principles of equal treatment laid down in the equal treatment directive.
The background to this is that in 1980 the Chief Constable of the Royal Ulster Constabulary decided that contracts of women members of the RUC's full-time reserve should not be renewed. Such contracts continue to be offered to men as before for service in the RUC full-time reserve. This action was challenged in the industrial tribunal with the applicant seeking an order declaring her rights and the Chief Constable's rights in relation to her employment and compensation. Before the hearing, the Secretary of State issued a certificate as provided for in Article 53(2) of the Sex Discrimination (Northern Ireland) Order 1976 stating that the refusal to offer full-time employment was for the purpose of safeguarding national security and protecting public safety and public order. The effect of the certificate was to preclude any consideration of the merits of the case. Following submissions of the parties to the proceedings, the industrial tribunal decided to refer to the European Court of Justice the question of the compatibility of the certification
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procedure with European Community law. The European Court subsequently found that the issue of a certificate by a national authority which had the effect of excluding the exercise of any review by the courts was contrary to Article 6 of the equal treatment directive and that acts of sex discrimination done for reasons that related to national security or the protection of public safety or public order must be examined in the light of the derogations from the principle of equal treatment laid down in the directive.
The draft order has been prepared to enable us to ensure that United Kingdom law conforms with our obligations under Community law. Because we are concerned to meet this obligation by the most direct course, we are taking action under Section 2(2) of the European Communities Act 1972 which permit amendments that are necessary to fulfil European Community obligations to be made by statutory instrument.
As I have already explained, the European Court was satisfied that an act of discrimination which was done for the purpose of safeguarding national security or protecting public safety or public order is capable of being an Act which is exempted from the provision of the equal treatment directive so that amendments to subsection (1) of Section 52 of the Sex Discrimination Act 1975 and paragraph (1) of Article 53 of the Sex Discrimination (Northern Ireland) Order 1976 is not necessary. I invite your Lordships to approve this draft order to enable the United Kingdom to meet its obligations under Community law.
Moved, That the draft order laid before the House on 23rd November be approved.—(The Earl of Arran.)
1.52 p.m.
Baroness Turner of Camden: My Lords, I thank the noble Earl for his explanation of this somewhat complicated order. On our side, we welcome the order, and I have one or two small points to make. The Equal Opportunities Commission, of which I am a member, itself welcomes the order but hopes that when a suitable opportunity occurs it will be extended to the whole of the Act and not be limited, as it is at the moment, to those parts directly affected by the equal treatment directive.
Secondly, from these Benches we appear—certainly since I have been in your Lordships' House—to be engaging in piecemeal amendments to our legislation on sex discrimination as a result of decisions made by the European Court from time to time and our own obligations under European legislation. I draw your Lordships' attention to the survey of legislation which has recently been conducted by the Equal Opportunities Commission, and to their view that they believe that the present sex discrimination and equal pay Acts should be replaced when the opportunity arises by a new statute covering the same ground but taking account of the requirements of European Community law.
Finally, while I am sure all of us will regret the circumstances in Northern Ireland which gave rise to

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the original case, which is referred to in the explanatory note to the order, the fact remains that equality law is equality law, this is right in principle, and therefore we welcome the order.
Baroness Seear: We also welcome the order, and I should like to underline what the noble Baroness has already said. It seems a pity that we deal with the obligations under the equal treatment directive in a piecemeal way, and there is the impression that we grudgingly introduce into our legislation points put forward in the equal treatment directive. It would be very much better from the point of view of this country if we could give rather more of a welcome to these directives instead of fighting them inch by inch as we seem to do.
I also agree very much with the noble Baroness that it really is time that we consolidated our equal treatment in equal pay legislation. It has been adapted piece by piece over the years and is now a very confusing document to try to deal with. I believe it is high time that we had a consolidated Act bringing together those two Acts and the new measures which have come primarily as a result of the directives but also of initiatives taken in this country.
The Earl of Arran: First, I am very grateful to the general welcome from the Opposition Benches, and in particular I take very careful note—I have understood and listened to it carefully—of the two points of the noble Baronesses which have been made from their Benches.
On Question, Motion agreed to.

Copyright, Designs and Patents Bill [H.L.]
3.5 p.m.
Lord Beaverbrook: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Beaverbrook.)
On Question, Motion agreed to.
House in Committee accordingly.
[The BARONESS SEROTA in the Chair.]
Clauses 163 and 164 agreed to.
Clause 165 [Consent required for recording or live transmission of performance]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 274AA
Page 74, line 15, leave out ("his") and insert ("written")
The noble Lord said: I speak to this amendment in the name of my noble friends Lord Williams and Lady Birk. For the convenience of the Committee, I also speak to Amendments Nos. 274G, 279ZC, 281BCA and 281BDA. These all refer to the phrase of something being done "without his consent". The purpose of the amendment is that the consent should be in writing. This has the obvious advantage that it can then be established whether or not the consent
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has been granted. It would seem a sensible amendment. I beg to move.
Lord Denning: May I say a word on this amendment to this special part of the Bill? It gives performers rights for the first time in our law. I happen to have been very concerned with it in the first case upon the matter ex parte Island Records in 1978. It will apply to many of these amendments which are going through.
I explained the situation with which we are faced. What happened when it came before our court was that performers in a theatre or in a studio had no copyright whatsoever in their performances, however good and skilful they were. What was happening was that an individual in the audience would have a small condenser microphone in his pocket through which he would record that performance on a tape. Having obtained it in that way, without consent, he would make hundreds of copies and sell them cheaply through shops of all kinds. That was called boot-legging. The people who unlawfully recorded those performances were bootleggers—an American phrase arising from people who hid illegal bottles of liquor in their boots.
The other people who come within this part of the Bill are known as pirates. A sound recording is made legitimately in a studio by a performer having an exclusive contract with the record company giving them the rights of those records. However, the pirates take those records and make hundreds and thousands of cheap copies for shops selling recordings cheaply.
That was what came before the courts in 1978. It was clearly, and could be proved a criminal offence for a person in the audience at a performance to make recordings without consent. However, there was no civil remedy. The performers had no copyright or right in the performance, however good and skilful it was. Each of the committees that sat recommended there should be a performers' right equivalent to copyright. Therefore, we have in the Bill, "without his consent". The question then arises as to whether that consent should be in writing. As the Bill stands, written consent is not required. A nod of the head by the performer to the audience could be said to be a consent. Naturally enough, the performers and the record industry say that that is not good enough and that there should be written consent. Therefore, the amendment proposes to leave out "his" and insert "written".
This is supported by the Green Paper which states in paragraph 3 of Chapter 6:
"In addition the Government considers that written consent of performers should not be dispensed with. Bearing in mind the wide variety of circumstances, it affects the view, which has been strongly expressed by performers, that there is a clear need for agreements affecting them to be in writing".
Therefore, I suggest that this amendment which carries out the objectives in the Green Paper should be accepted. I certainly support its inclusion in the Bill.
2 p.m.
Lord Lloyd of Hampstead: I, too, support the amendment. If the word "written" is not included,

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questions can be raised as to whether there was oral consent or, possibly, consent by conduct. That could give rise to lengthy and difficult legal disputes. I entirely agree that the whole situation will be much clearer if there is insistence on written consent. Accordingly, I support the amendment.
Lord Jenkins of Putney: I, too, add a word of support but for an additional reason to those already very validly put forward. If one has written consent one knows that the consent is authoritative. A problem arises when a performer may have authorised an agent to give consent on his behalf. There is another circumstance in which he reserves the right unto himself completely. A performer might give consent, having previously by contract given the right to somebody else to exercise consent on his behalf—or it could be the other way about. Therefore, I believe it is important to have a written consent not only for the sake of the performer but for the sake of those who are utilising the performance. From all points of view, the Government will be well advised, and I hope will be persuaded, to accept this amendment.
Lord Beaverbrook: As explained by the noble Lord, Lord Morton of Shuna, these amendments seek to restore the position under the Performers Protection Acts whereby consent to the use of a performance must be given in writing if an offence is not to be committed. This requirement for consent to be in writing has been dropped from the Bill. The reason for this decision is that we have concluded that on general legal principles such a requirement is unsound. Let us suppose, as may happen, that a performer is asked to consent to a recording being made of a performance and he chooses to consent orally. The agreement might be made quite casually but it would unquestionably amount to the giving of consent. The absence of writing would be total irrelevance because the court would refuse to give judgment in favour of a plaintiff who had consented to what he subsequently complained of, whether or not that consent was in writing. It is scarcely credible that a criminal court should convict in such a case.
We have considerable doubts as to whether the existing requirement in the Performers Protection Acts for consent to be given in writing is well-founded in this respect. Although the 1981 Green Paper entitled Reform of the Law relating to Copyright, Designs and Performers' Protection said that the requirement for written consent would be preserved, we gave no undertaking to do so in the White Paper.
As your Lordships may know, the Whitford Committee was against retention of this requirement. In practice, anyone wanting consent to exploit a performance will be well advised to obtain consent in writing, if only to prove that he had consent if this were questioned. I know that performers have been keen to see the requirement for written consent retained, but we do not believe that its removal will damage their interests and we do not think that its retention will help them.
The second and third limbs of Amendment No. 279ZC, in the name of the noble Lord, Lord Jenkins of Putney, address a slightly different point. They
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would require, first, that consent relate only to a specific usage or usages. This seems to us to be unduly restrictive. Performers are, of course, perfectly free to impose limitations of this kind if they want to. So why limit their freedom in this way? In any case, for the same reasons I have given, a wider consent would inevitably be given effect by the courts.
The same goes for the third provision which would prevent a performer agreeing with, say, an agent or manager to grant consents on his behalf. Again I ask, why fetter the performer in that way? It would surely be impractical, for example, for a broadcaster or recording company to have to seek the individual consent of every member of a choir or orchestra.
Usually consent will be given by the agent or manager on behalf of all the performers, and surely that should be permitted. Clause 181 provides the necessary safeguard against a person who represents falsely that he is authorised to give consent in relation to a performance. I would say to the noble Lords, Lord Lloyd of Hampstead and Lord Jenkins of Putney, that it is true that written consent is more authoritative and may avoid dispute, but in that case the parties can always put their intentions in writing and the matter is therefore always in their hands.
Lord Morton of Shuna: I am very much obliged for the support I have received from the noble and learned Lord, Lord Denning, the noble Lord, Lord Lloyd of Hampstead, and my noble friend Lord Jenkins of Putney.
I think that the Government are being ill advised and rather impractical in turning down this amendment. If they want to do good to lawyers they are doing it by leaving out the requirement of written consent. As my noble friend Lord Jenkins of Putney pointed out, there may well be situations when an artist gives consent orally where he has already given his exclusive licence, so to speak, to his agent, and then one is in a straightforward muddle. If a person gives consent when perhaps his emotional condition is not at its most cool, he may thereafter deny that he gave his oral consent.
These are all situations where one is opening up a sphere of litigation. What we on this side, and especially myself, want is to make the law clear and avoid litigation if possible. That is the purpose behind the requirement for written consent and I cannot see that it is so difficult to put in.
However, this is perhaps not the time of the year to divide the Committee. Therefore I ask leave to withdraw the amendment.
Lord Jenkins of Putney: As I have an amendment in this section may I perhaps add a word at this point? I think that if I were to refer to the case of Rickless and Others v. United Artists Corporation the Committee would not immediately apprehend that it is the rather better known "Pink Panther" case, which is relevant to this problem. In that case the Law Lords decided that the consent which had been given for an original usage of an out-take from one "Pink Panther" film did not give justification for the usage of all the rest of the out-takes which were subsequently taken; in other words, they decided that

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what my noble friend and I are seeking to establish by this amendment should in fact be the case.
If we can take it, and I think that we can, that the noble Lord, Lord Beaverbrook, in replying to this debate is saying in effect that what we are seeking to do is unnecessary because it has already been decided and therefore we need not put it into the Act, I would then be glad to follow my noble friend's example and withdraw my amendment. But, if he is not saying that but is saying that what we are seeking to do is unnecessary and that we are seeking by legislation to overturn what the Law Lords have already decided, that would not be a satisfactory situation. I believe that my interpretation of what he is saying is as I first suggested, and under those circumstances I would be happy to add my withdrawal to my noble friend's.
Lord Beaverbrook: Before the noble Lord sits down, I think I should say to him that the consent in the "Pink Panther" case was in fact in writing. There was no question of oral consent arising; in other words, in this case the writing did not avoid litigation.
Lord Jenkins of Putney: My amendment refers not to writing, as the noble Lord said in his reply, but to specific usage. I was addressing myself to a different point and that is why I ventured to intervene in this matter. I was not addressing myself to the identical point of my noble friend. The point I am seeking to make is that a consent given relates to that usage and consent to a single usage does not embrace further uses which may follow.
What I am seeking to do in my amendment is to put that into legislation. I was saying that if what the noble Lord was saying was that the decision of the Law Lords was in practice accepted, we need not press this point. If the noble Lord is not saying that, we shall have to press the amendment, if not now, at a later stage.
Amendment, by leave, withdrawn.
Lord Tordoff Lord Tordoff moved Amendment No. 274AB:
Page 74, line 15, at end insert ("which shall not be unreasonably withheld").
The noble Lord said: There will doubtless be surprise in the Committee to find that the noble Lord, Lord Lloyd of Kilgerran, has been transmogrified into the shape of me. No one is more surprised than I am. He apologises to the Committee that he cannot be here this afternoon during the long saga of the Committee stage. He has asked me to move the amendment on his behalf and to speak also to Amendments Nos. 274DA, 274GA and 275B. I shall endeavour to do so in my halting way.
As they now stand unamended by the Bill, I understand that the Performers Protection Acts give an absolute power to a performer to refuse to give consent in a way which can prevent television companies selling their programmes in the United Kingdom or overseas. An organisation which seeks to make an agreement that is of great value to it can be frustrated by one performer out of a much larger number. That performer may well have been offered terms which are the same as those of the other
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performers in the show, all of whom have accepted. For some reason, or for no reason, one performer who may merely be playing a walk-on part can refuse consent and the sale cannot then be made. I understand that there is no appeal against that performer's decision.
The only defence under the Acts and under the present draft of the Bill is that the person infringing the performer's rights believed on reasonable grounds that consent had been given. In the eyes of people involved in the profession, the Bill seems to make the position worse. It does not merely re-impose the absolute and arbitrary power of the performer but the performer may also bequeath his consent under the Bill. Those attempting to sell British programmes in this highly competitive world will be faced with the strange prospect of having obtained consent for up to 50 years after the performance was first transmitted—long after the performer has died—but, again, if consent is refused no appeal can be made against the decision.
For those reasons, it is essential that the arbitrary and absolute nature of the performer's right to refuse consent be tempered to allow an organisation seeking to sell programmes to show that it has acted reasonably; that it has, for instance, offered fair remuneration; and that all or most of the other members of the cast have given their consent, or that when consent has been bequeathed that refusal to consent has been unreasonable.
The amendments will enable the broadcasting organisations in this country to make their programmes available to the world using new technology. This is an industry in which technology is changing fast and where Australian and American programmes are readily available. Any one who has the time and lack of taste to watch Australian television programmes in the middle of the afternoon will know that that is already the case. They are not subject to the inhibitions of the Bill. It is proposed that consent shall not unreasonably be withheld. It is a straightforward proposition even to my untutored mind. I beg to move.
Lord Morton of Shuna: I am sure that in his careful preparation for moving this amendment, the noble Lord, Lord Tordoff, has considered the terms of the Rome Convention of 1961, as amended in Geneva in 1982. It appears to us that the amendment runs counter to the terms of Article 7 of that convention, which is why it must be opposed. One must rely on contract to give the consent required.
Lord Denning: I can well see the objections to the amendment but there is a great deal to be said for its merits. Let us take a pop group. Three of its members consent and one stands out and will not consent. Is that to bar any dealings in the matter? Surely the consent should not be unreasonably withheld, whatever the Berne Convention may say. I do not see why we should not have a provision in English law that consent should not be unreasonably withheld.
Lord Campbell of Alloway: This is a dilution of the protection which the Bill affords to consumer rights which is wholly unacceptable, quite apart from the

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convention matter raised by the noble Lord, Lord Morton of Shuna, which is a valid point. The concept of interpreting "reason to believe" in the context of the myriad situations that could arise would be extremely troublesome for the courts. There is no justification for this amendment. I hope that it will not be pressed.
Lord Beaverbrook: Perhaps I can clarify whether the noble Lord, Lord Tordoff, is speaking to Amendments Nos. 274AB, 274GA, 275B and 278AA. He also mentioned Amendment No. 274DA and I was wondering whether he was also speaking to that amendment.
Lord Tordoff: I was under the impression that I was. However, I was also under the impression that I was not yet speaking to Amendment No. 278AA. I had it in mind to subsume that within the discussion on Amendment No. 277ZB which appears—certainly in the mind of my noble friend—to be a more logical place to do so.
Lord Beaverbrook: I am most grateful to the noble Lord. Perhaps at this stage for the convenience of Members of the Committee I can also speak to Amendment No. 274DA as well as Amendment No. 278AA, as I was under the impression that Amendment No. 278AA was listed on the groupings list with the first three amendments. It is of course at the discretion of the noble Lord as to how we deal with this.
I have to say that I think it would be quite wrong to subject performers' rights, and the rights of persons having recording rights, to the degree of compulsory licensing which these amendments would introduce. Even under present law, which provides only criminal remedies for unauthorised exploitation of a performance, a performer does not have to show reasonable grounds in order to refuse consent to such exploitation. Surely if a performer does not want his performance to be recorded or broadcast live, or does not want an illicit recording of his performance to be imported, sold, rented out or distributed, that should be the end of the matter. His right to prevent such exploitation should be an absolute right, just like a copyright owner's right to prevent unauthorised exploitation of his works. He should not have to prove reasonable grounds for refusing consent.
Perhaps I may say to the noble Lord, Lord Tordoff, that we do not believe that there are in practice grave difficulties over obtaining consents where several performers are concerned. The noble Lord, Lord Tordoff, and the noble and learned Lord, Lord Denning, gave the example of a pop group where perhaps one out of four members of the group objected to the recording of a performance. This is a matter that could and should be sorted out by contract prior to any performance. I imagine that this is the sensible way for most groups of multiple performers to proceed. In any event, as the noble Lord, Lord Morton of Shuna, has said, the compulsion of the kind envisaged by his amendment would, I believe, be contrary to the Rome Convention.
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These amendments would undermine the whole basis of performers' protection as it has existed in this country since 1925. I hope that the noble Lord will be willing to withdraw the one that he has moved.
Lord Tordoff: It is quite clear that I shall have a busy Christmas reading through these various conventions. It seems to me that the broadcasting authorities are clearly worried about this problem. I do not think it is quite as simple as the Minister suggests. However, I said that this was intended to be a probing amendment. Quite clearly, this is not the time to press it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 274B:
Page 74, line 16, leave out ("otherwise than for private purposes,").
The noble Lord said: This amendment deletes the words "otherwise than for private purposes". It may be for the convenience of the Committee if I speak also to Amendments Nos. 277A, 281BC and 281BD which deal with exactly the same point.
If the provision were unamended, it would mean that taping a concert or a live musical performance for private purposes would not infringe the performer's right. This is totally inconsistent with the Bill, as we have already provided for in Committee, in respect to composers' and publishers' copyright rights. We have already had various discussions, exemplified perhaps by the illegality of the noble Lord, Lord Donaldson, in taping various works. It seems to be totally illogical—
Lord Tordoff: I wonder whether the noble Lord would perhaps rephrase that comment about my noble friend.
Lord Morton of Shuna: I should rephrase it happily if it was not a phrase used by the noble Lord, Lord Donaldson.
Lord Tordoff: I think my noble friend Lord Donaldson was asking questions about legality. He was not stating that he was acting illegally.
Lord Morton of Shuna: The Minister stated that he was acting in an illegal way. But somebody who is taping privately is in breach of copyright law. To that extent it may be only a civil remedy, but it is illegal taping and remains, as I understand the Government's position, illegal under the Bill. It having been illegal from the copyright point of view, it seems totally illogical to have it suddenly legalised from the performer's point of view. In an attempt—it may be totally inappropriate—to introduce logic into the Bill, I suggest that it would be better to have the same rules both for the performer's right and for the copyright right. I beg to move.
Lord Denning: I am against this amendment. We have had all the discussions about home taping. Although I suggested it was lawful and not an infringement, nevertheless it can be done and there is no remedy and no blanket licence in respect of home

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taping. This would allow a private individual in his own home for his own private purposes to make a copy of a tape. It would not be for public use, so I would keep in the Bill the words "otherwise than for private purposes".
Lord Campbell of Alloway: To avoid running around this track again, there is no doubt that the point made by the noble Lord, Lord Morton, is that there is a glaring inconsistency. I should be interested to know upon what grounds my noble friend the Minister justifies the inconsistency, irrespective of the merits which have been discussed in other connections.
Lord Lloyd of Hampstead: I agree with what has just been said. It is clear that in the realms of copyright one is not entitled, having bought a copy of a book, to take it home and copy it for one's own private uses. There seems no reasons why this exception should be made by what is seemingly a side wind by these words being inserted in a general clause dealing with infringement. I should have thought that the retention of these words would require some kind of express justification of which I do not feel I am aware.
Lord Beaverbrook: It was, in my belief, unclear what the noble Lord, Lord Donaldson, was doing with his tape recorder and what exactly he was recording. For me to have said that he was acting illegally was entirely hypothetical.
The exception which allows recordings or films to be made of performances without the performers' consent if they are for private and domestic use without an offence being committed has always existed under the Performers' Protection Acts. The Bill provides that the exception shall also apply to the new civil remedies which it gives to performers but leaves the principle unchanged.
The purpose of performers' protection legislation has always been to protect performers against unauthorised commercial exploitation of their performance such as the making and marketing of bootleg recordings or unauthorised broadcasting. The making of recordings for private use does not damage their interests in this way and we believe that the exception which allows it is right and should continue. I would say to my noble friend Lord Campbell of Alloway that the the new civil remedies are against breach of statutory duty. They are not proprietary rights like copyright where unauthorised use of a work infringes the right whether or not it is done in private.
I say to the noble Lord, Lord Morton of Shuna, that we do not think that it is logical to regard copyright and performers' protection as the same. A work is permanent. It can last for ever. A performance is essentially ephemeral. Unless otherwise recorded, once made it cannot be further exploited and therefore a private recording of a performance does not injure the performer's interest in quite the same way.
Lord Morton of Shuna: I am very much obliged to the noble Lord. I have great difficulty in understanding his last remarks. Let us take as an example a performance of a play featuring an eminent actor, or a performance of a symphony with a particular conductor and orchestra. I find great difficulty in drawing a distinction between the copyright in the music and saying that cannot be copied and one is breaking the law, civil or criminal, by copying it, but that there is nothing wrong in copying an eminent conductor, orchestra or actor. It seems to me totally illogical to draw the distinction; and here I am obliged to the noble Lord, Lord Campbell of Alloway. I shall study what the noble Lord has said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
2.30 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 274C:
Page 74, line 17, leave out ("substantial").
The noble Lord said: I should perhaps say that I shall also speak to Amendments Nos. 274D and 274H. This amendment reconstitutes a discussion we had in the copyright section over what was substantial and what was insubstantial, whether substantial was the right word and whether a phrase such as "recognisable part" might be better. I do not want to go through all the arguments again but it seems to me that "substantial" is the wrong word. I beg to move.
Lord Beaverbrook: I shall also speak to the same amendments. These amendments are essentially the same as Amendments Nos. 67 and 69 which we debated at some length at an earlier sitting of the Committee. At the risk of repeating myself, I shall gladly accept that the restricted acts should not be confined only to acts done with a complete performance. Nevertheless, as with copyright, the removal of the word "substantial" would go much too far. It would mean that acts done in relation to the smallest fragment of a performance would constitute infringement of a performer's rights; for example, a single word from a performance of Hamlet, to build on the example I used last time. In our view this is clearly wrong. Of course, as I said before, a "substantial part" does not necessarily mean a large part. Even a small part can be substantial depending on the circumstances. We have in the words "substantial part" a well worked and well understood concept which is just as appropriate here as in copyright.
As for alternatives, I said in our earlier debate that the expression "substantial part" has been the subject of much illuminating jurisprudence over the years. To throw this away would only mean that we had to start all over again from scratch because any substitute—I think the noble Lord, Lord Williams of Elvel, suggested "significant" last time—would be just as much open to interpretation as "substantial". And who could say where that would lead us? Substituting a different word would only cause great confusion and uncertainty and I am against the idea.
Lord Morton of Shuna: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 274D and 274DA not moved.]
Lord Jenkins of Putney Lord Jenkins of Putney moved Amendment No. 274E:
Page 74, line 20, leave out subsection (2).
The noble Lord said: Amendment No. 274E seeks to leave out subsection (2). I should also like to speak to Amendment No. 274F, which as an alternative proposes that reasonable inquiries should be made as to whether a performer had given consent.
The object of the amendment will be clear to the Committee. I do not want to waste time by advocating it and I think that it will be best if I sit down and listen to what the Minister has to say. Then, if necessary, I shall reply. I beg to move.
The Deputy Chairman of Committees (Lord Nugent of Guildford): I should explain to the Committee that if Amendment No. 274E is agreed to I shall not be able to put Amendment No. 274F. The noble Lord has sought to remove that difficulty.
Lord Beaverbrook: Will it be agreeable to the noble Lord if I also speak to the other amendments in the grouping? This is a substantial group of amendments and I can go through them carefully. It may be to his convenience if I speak to all the amendments.
Lord Jenkins of Putney: Yes, certainly.
Lord Beaverbrook: I am speaking to Amendments Nos. 274E, 274F, 274HA, 275C, 276ZA, 276D, 277ZA, 277B, 278DA, 278H, 278J, 279C, 280A and 281ZA.
Lord Jenkins of Putney: I should like to point out that my agreement is entirely subject to the consent of other Members of the Committee, because in some cases the other amendments do not go to the same clause. Although I am agreeable, I think that one should not take my consent as being generally applicable without others indicating that they consent.
Lord Beaverbrook: I am grateful to the noble Lord and I hope that other Members of the Committee will be happy to consider the amendments in this way.
This large group of amendments in the name of the noble Lord, Lord Jenkins of Putney, are all directed towards imposing stricter civil liability on those who exploit performances without the appropriate consent. I understand the noble Lord's reasons for wanting to move in this general direction, but, as with copyright, so with the rights of performers and of those whom the Bill defines as "persons having recording rights", a fair balance must be struck between the interests of performers and users. In particular, those who infringe a performer's rights in all innocence should not be penalised out of proportion.
We believe that in the Bill we have the balance broadly right and I have to say that in our view the
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amendments in the name of the noble Lord swing it too far in favour of the performer. Amendments Nos. 274E and 277B seek to provide that damages should be available against someone who commits a primary infringement of a performer's rights or the rights of persons with recording rights by making a recording of a performance without consent or broadcasting it live without consent, even though he had reasonable grounds for believing that consent had been given. We do not accept that this would be right.
I remind the Committee that, although, under the Bill damages would not be available in such a case, an injunction would be available, and innocence is no defence to forfeiture proceedings under Clause 176. In other words, provision is there for termination of the infringement itself. I would also point out that subsection (2) of Clauses 165 and 169 places the onus on the defendant to prove that his grounds for believing consent had been given were reasonable. But genuine innocence should not be penalised by damages.
Amendment No. 274F to Clause 165 is intended as a less drastic alternative to Amendment No. 274E. It is proposed that to avoid imposition of damages an infringer would have to show that he had made reasonable inquiries to establish whether the performer's consent to the particular exploitation of his performance had been given. I believe that that requirement is fully covered by the Bill as drafted. The defendant has to show reasonable grounds for believing that consent had been given and that must surely in appropriate cases mean making the necessary inquiries. This amendment, therefore, merely repeats what is in the Bill.
Amendments Nos. 274H and 275C would have the effect of imposing liability for using or dealing with a recording made without consent regardless of whether the person using or dealing with it knew, or had reason to believe, that there was no consent. This cannot be right. Once a recording has been made, it may pass into the hands of other people with no means of knowing, or even suspecting, that it may not have been made with consent.
A shopkeeper, for example, buying a recording from his regular supplier may find himself with something which looks like an entirely legitimate recording but is in fact bootleg. He is in no position to find this out, and should not incur any liability until he had had the facts brought to his attention. We are out to catch pirates and bootleggers, not innocent users of, and dealers in, recordings acting entirely properly in the ordinary course of their business; and therefore liability should not be imposed on anyone who does not know, and has no reason to believe, that there was no consent to the earlier making of the recording now in his hands.
Amendments Nos. 276ZA, 276D, 277ZA, 278DA, 278H and 278J all relate to the problem of the innocent acquirer of illicit recordings who subsequently commits a secondary infringement. Let us return to the innocent shopkeeper whom I mentioned a moment ago. Up to the point at which he discovers that he has illicit recordings in stock, he commits no infringement. What is to happen when he does discover, presumably by being told by the

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performer or the recording company to which the performer is exclusively contracted? Is he to find himself with unsaleable stock on his hands? We think that the answer is no.
The appropriate result should be that he should be required to pay to the performer and/or the recording company what is in effect an appropriate royalty, but that he should be able to continue to sell the recordings; and this is what Clauses 167(2) and (3) and 171(2) and (3) provide. Moreover, to allow for the possibility that the innocent dealer may be a wholesaler rather than a retailer, and thus that the innocently acquired but illicit recordings will need to be capable of being sold not only by the wholesaler but also by the retailer, we have included a reference to predecessor in title; that is, the wholesaler.
Amendments Nos. 276ZA, 276D, 278DA and 278H would remove from the Bill entirely these provisions about innocent acquisitions; Amendments Nos. 277ZA and 278J would render them worthless. I say "worthless" because a shopkeeper is in no position to make inquiries about whether consent had been given. This would not be right. I readily appreciate that from the point of view of the performer or the legitimate recording company it is not satisfactory that illicit recordings should remain on the market in return for only a reasonable royalty, but it would be even less satisfactory from the shopkeeper's point of view that he should be left with unsaleable stock. It should not be forgotten that we are concerned here with two innocent parties. The guilty party, the bootlegger, has already taken the money and run. We ought to strike a balance between them, rather than load the loss on to the shoulders of only one, and this is what the Bill as drafted does.
Finally, I turn to Amendments Nos. 279C, 280A and 281ZA. These are all amendments to Clause 178, which creates criminal offences. Even if it were right that there should be no test of guilty knowledge for secondary civil liability, it would not be right that there should be no such test for criminal liability. This is not the sort of offence which should be capable of being committed even in ignorance, while acting in good faith, because nothing that a person can do can prevent him from committing the offence if he does not have at least reason to believe that the recordings in question are or would be illicit. Strict liability is imposed in criminal offences only where the person in question is able to avoid ignorant commission of the offence, such as breaking the speed limit. I do not think that I need say anything more about that.
I well understand the concerns of the noble Lord, Lord Jenkins of Putney, but I hope that having heard this rather lengthy explanation he will perhaps be able to review what I have said and see whether it goes some way towards helping him on these matters.
2.45 p.m.
Lord Jenkins of Putney: I should very much like to review what the noble Lord has said because the question of where the line is drawn between a criminal offence and a civil offence seems to me to be rather a difficult one. In those circumstances if the Committee will permit me I should like to withdraw
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the amendment at this stage, study what the noble Lord has said and then consider whether or not it is desirable to come back at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 274F and 274G not moved.]
On Question, Whether Clause 165 shall stand part of the Bill?
Lord Campbell of Alloway: On the question whether Clause 165 shall stand part of the Bill I wish briefly to say that during our discussions on Amendment No. 274B I listened with very great care to everything that was said by the Minister. Like the noble Lord, Lord Morton of Shuna, I find considerable difficulty with the reasoning advanced in justification for the rejection of that amendment. I wonder whether it would be possible for the Minister, without any form of commitment, to have another look at that. My main reason for making that suggestion is the views expressed by the noble Lord, Lord Lloyd of Hampstead, who after all commands considerable authority on this subject.
Lord Beaverbrook: Of course I shall look and see what has been said in Hansard. I always take great note of everything noble Lords say. I can give no commitment on the matter. Again it is something about which the Government have thought long and hard. I must say that we came to our conclusion having given appropriate consideration to the matter. I of course accept the noble Lord's request that without commitment we shall look again at this matter.
Clause 165 agreed to.
Clause 166 [Infringement of performer's rights by use of recording made without consent.]
[Amendments Nos. 274GA, 274H and 274HA not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 275:
Page 74, line 30, leave out ("has reason to believe") and insert ("which it was obvious to a reasonable person in the circumstances").
The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 276, 277, 278, 280 and 281. It is a great pleasure not to have any more letters of the alphabet attached to those amendments.
These amendments all seek to take out the words "has reason to believe" and insert the words:
"which was obvious to a reasonable person in the circumstances".
Those are the words that are used in the Patents Act. We have already had that argument. If I were to receive some kind of indication that the same undertaking to look again at this phraseology would be applied to this part of the Bill as it was to the earlier part I should beg leave to withdraw the amendment. However I see that I am getting no indication at all. In those circumstances I move the amendment because it would seem entirely logical that the same standard should be set throughout and that it should be the standard of the Patents Act which is a much better, more easily understood and

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fairer standard than this rather dubious one of proving the defender's or the defendant's state of mind. I beg to move.
Lord Beaverbrook: I should say a few words about why the wording in the Patents Act 1977 is, we believe, not appropriate here. In the Patents Act the words:
"obvious to a reasonable person in the circumstances".
occur in Section 60. The context there is entirely different. In subsection (1) of Section 60 the question is whether the use of a process without consent would be an infringement of a patent.
In subsection (2) the question is whether something is a means of putting an invention into effect. In both cases the question relates to the nature of the thing done irrespective of whether there is consent. To put the point in copyright terms, the question is whether or not the thing done is a restricted act. The question must be entirely objective and a formula obvious to a reasonable person in the circumstances seems right in that instance. As I said earlier, that test is not adequate in the Bill either in the copyright clauses such as the secondary infringements in Clauses 22, 23 and 24 or in this part of the Bill such as in Clauses 166, 167 and 178. Clause 169 is entirely different.
In copyright the question whether an article is an infringing copy depends partly upon whether the making of the copy was with the licence of the copyright owner and in the case of straightforward piracy that is the only question. In this part of the Bill the question whether a recording is an illicit one or was made without consent is exclusively a matter of whether or not there was consent. It may often be that it is not obvious to a reasonable person that there was no consent but the person in question had reason to believe that there was no consent.
This case must be caught. The pirate or the bootlegger must not be allowed to escape by turning a blind eye to facts known peculiarly to him and saying that they were not obvious to a reasonable person. If he has reason to believe that there was no consent, he must he liable irrespective of what a reasonable person might think.
Lord Morton of Shuna: The Minister has many qualities, but foreseeing what may happen in court I fear is not one of them.
If one has to prove that the person knew, one can be fairly certain that he will deny it. If one has to prove that he had reason to believe, one can also be fairly sure that he will deny that he had any reason to believe and it is difficult to prove that he had. If one has to prove that it was obvious to a reasonable person in the circumstances, one has a more objective test and is not left with the subjective mind of the person on the other side. In all the circumstances of the various clauses in the Bill, I should have thought that that is a much more appropriate standard to apply. I hope that the Minister will take it away and consider it.
Lord Beaverbrook: The noble Lord is a much greater authority than I am on what might happen in a Scottish court. I suspect that he is also much more
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familiar than I am with what might happen in an English court.
I believe that our wording is better. I am concerned that the noble Lord's wording may not catch certain instances. As I said earlier, we shall look carefully at what he says. I am not prepared to say that I shall take it away with a commitment. We carefully observe what the noble Lord says, and I shall look at this carefully.
Lord Morton of Shuna: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Jenkins of Putney Lord Jenkins of Putney moved Amendment No. 275A:
Page 74, line 31, at end insert ("or where such consent was not given for the specific usage in question.").
The noble Lord said: Although I do not intend to press the amendment, I think that it is desirable to move it. It goes to the point that I made at an earlier stage. It seeks to say that consent is not valid unless it was given for the specific usage in question. I gave as an illustration earlier the case of the "Pink Panther" where consent given for an outtake for use in one single case was taken by the user to apply to all cases. The Law Lords decided that that was not the case and that that particular consent did not mean that the consent was given to the usage of the entire outtake from the whole series.
I am seeking in the amendment to make it clear in the legislation that that is the case. I am seeking to put into the legislation what the Law Lords decided. I should therefore like to study what the noble Lord has said in reply to a previous question and what he may say in reply to what I have said at this stage. Having done that, I shall consider whether it is desirable to bring forward further amendments at a later stage in order to establish in the legislation what has been established in law.
Lord Beaverbrook: Perhaps I may briefly speak to the amendment as the noble Lord has moved it. I believe that the amendments would go rather further than perhaps has been outlined so far. Amendments Nos. 275A and 278AC attempt to create a new right to control usage of a recording once it has been made. Under the Performers' Protection Acts and under the Bill as drafted neither the performer nor a person having recording rights has the right to prevent a recording from being shown or played in public, broadcast or included in a cable programme service, once they have consented to the making of the recording in the first place.
We have always taken the view, and continue to do so, that it would be quite impractical if, for example, a broadcaster had to obtain the consent of all the performers involved every time he broadcast a record, or a cinema owner had to obtain the consent of all the actors involved every time a film was shown. Of course performers should have a right to be remunerated when recordings or films of their performances are played, shown or broadcast. However, they can achieve that by appropriate contractual arrangements with record or film

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companies. Phonographic Performance Limited, for example, has an arrangement under which a share of its royalties from the broadcasting or the public performance of records is paid to the performers.
In our view, there is no reason why contractual arrangements should not continue to deal satisfactorily with the problem. I regret that, for the reasons I have given, those amendments are not acceptable. Perhaps I may add as a final point that we do not dispute the right of performers and persons having recording rights to control the re-recording of their recorded performances. However, that right is already contained in the Bill in Clauses 165 and 169.
The case to which the noble Lord, Lord Jenkins, has referred did not establish that consent must be given to specific usage. The point in that case was that consent was given only for the making of the original film and not a further film. There is no reason to prevent a wider consent from being given.
Lord Jenkins of Putney: I am most grateful to the noble Lord for that explanation and I shall study carefully what he has said with a view to coming back to it in the future. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 166 agreed to.
Clause 167 [Infringement of performers' rights by importing, possessing or dealing with illicit recording]:
[Amendments Nos. 275B, 275C, 276 and 276A not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 276A:
Page 74, line 43, leave out ("remedy") and insert ("remedies").
The noble Lord said: In moving this amendment perhaps it will be convenient for me to speak also to Amendments Nos. 276B, 276C, 278E, 278F and 278G. Amendment No. 276A concerns the situation where there is an innocent infringer who has obtained an illicit copy. Subsection (2) restricts to damages only the remedies available to the performer whose rights have been infringed by the illicit recording. A similar problem occurs in the other amendments which allow, in addition to damages, that the performer should be able to retrieve the illicit recording and that the innocent owner of the recording should not be able to go on enjoying it. I beg to move.
3 p.m.
Lord Beaverbrook: The intention of the amendments tabled by the noble Lord is that the importer or dealer in illicit recordings should be liable for a forfeiture order against him, even in cases where he acquired the recordings in good faith.
The amendments are unnecessary because the Bill already achieves that result. The two subsections to be amended by these amendments before us relate to the remedies available in an action for infringement. Proceedings for forfeiture, however, are not infringement actions but distinct proceedings:
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infringement is dealt with in Clause 175; forfeiture in Clause 176. Nothing in Clause 176 prevents forfeiture from being ordered against an innocent acquirer of illicit recordings. Therefore the Bill achieves the desired result already.
I am aware of course that subsection (2) of Clause 176 precludes forfeiture where damages would be adequate, and damages might of course be limited by Clauses 167(2) and 171(2) where the infringement was by an innocent acquirer. We shall consider the merits of that when we reach Amendment No. 279A, but the Committee will recall that we have already considered an identical provision in Clause 88(2) on copyright. I must say, however, that irrespective of whether Clause 176(2) should remain in the Bill, I believe that the amendments now before us would do nothing to deal with its effect.
Lord Morton of Shuna: I shall study what the noble Lord has said and without any commitment that I shall not return to this matter later, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 276B to 277ZA not moved]
Clause 167 agreed to.
Clause 168 [Exclusive recording contracts and persons having recording rights]:
Lord Tordoff Lord Tordoff moved Amendment No. 277ZB:
Page 75, line 5, after ("contract") insert ("in writing").
The noble Lord said: I shall speak also to Amendments Nos. 277ZA, 277ZD and 278AA. That may not be in conformity with the list which is in front of the Committee but I am assured that this is the way that my noble friend would have wished to deal with these matters and I am sure we can cope. All these amendments relate to exclusive recording rights.
I am informed that the intention in the Bill is to introduce a new concept into the law of intellectual property. We oppose the introduction of such provisions on the basis that they are a restraint on trade. An exclusive recording contract is a commercial agreement granting a company the exclusive right to exploit the work of a recording artist. To grant a recording company a veto on all use of the performance of that artist unreasonably restrains his rights to control his work. Further from the point of view of the users it is unworkable in practice.
Without prejudice to the above remarks, if such rights are to be enshrined they need to be more clearly defined, and the right to grant consent should be subject only to equitable remuneration through the jurisdiction of the Copyright Tribunal.
In relation to Amendment No. 277A we prefer the use of the term:
"with a view to commercial exploitation",
in Amendment No. 278ZA in place of:
"otherwise than for private purposes",
in order to provide uniformity throughout the clauses dealing with recording rights.
Further, we have suggested exclusion of the requirement for the performer's consent in these clauses because we consider that its inclusion is inappropriate in clauses dealing with recording rights. That is effectively dealt with in Clauses 164 to 167. With those few words, I beg to move.
Lord Beaverbrook: I shall speak also to Amendments Nos. 277ZB and 277ZD and I agree with the noble Lord that Amendment No. 278AA addresses the same or very similar point. These amendments seek to control the manner in which contracts are arranged between performers and those to whom they give exclusive recording contracts. Apart from the general controls against the making of recordings without the performer's consent this is not a matter with which this Bill is concerned. It is entirely up to the performers and recording companies involved to decide what sort of contractual arrangements they enter into. All the Bill is doing in Clauses 168 to 171 is provide that where someone does have an exclusive recording contract with a performer, that person as well as the performer has certain rights against third parties who may record the contracted artist's performances without consent.
Obviously, persons with recording rights who have occasion to exercise them may need to prove that they indeed do possess those rights. That will in most cases be a sufficient incentive to enter into a written contract with the artist.
Turning now to Amendment No. 277ZD, which is concerned with assignment or licensing of recording rights, I have to point out that so far as rights are conferred by Part II of this Bill, they are not assignable. This is expressly stated in subsection (1) of Clause 173. Admittedly, Clause 173(4) preserves the right of assignment of contracts or licences but that is a matter of general law of contract and personal property, not the Bill. For the reasons I have outlined we cannot accept these amendments.
Lord Tordoff: I am most grateful to the Minister. Clearly my noble friend during the recess will wish to study in Hansard what the noble Lord said, and he may or may not come back to these matters with more understanding than I have at present. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 277ZC and 277ZD not moved.]
Clause 168 agreed to.
Clause 169 [Consent required for recording of performance subject to exclusive contract]:
[Amendments Nos. 277A, 277B, 278 and 278ZA not moved.]
Clause 169 agreed to.
Clause 170 [Infringement of recording rights by use of recording made without consent]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 278A:
Page 75, line 38, leave out ("or that of the performer").
The noble Lord said: With the leave of the Committee, I will speak also to Amendments Nos.
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278B, 278C, 278D and 281A. These amendments all relate to the person whose consent is required to the doing of various things which might otherwise be an infringement of exclusive recording rights. The basic principle ought to be that either the performer or the person with exclusive recording rights may give effective consent to the making of a recording—I must put on one side the argument that the consent of the performer should not be relevant at this stage, since it is not directly material to the amendments—but once the recording is made, only the person with recording rights should be concerned since it is his rights which are affected, not the performer's. Accordingly, the reference to the performer should come out of the opening words of Clauses 170 and 171(1) and that is what Amendments Nos. 278A and 278D achieve.
In Clause 170, however, we have a further reference to consent, at the very end of the clause as printed, and since that consent is not the same as the consent in the opening words—it is consent to the making of the recording, not to the doing of something with the recording—the consent should be the same as in Clause 169 which we have just been debating. Thus, it must be the consent of the performer or the person with recording rights; but because the person with the recording rights at the time of the making of the recording may not be the same as the person whose consent is required under Clause 170, we need to identify him as the person with those rights at the time that consent was given to the making of the recording. Thus, we have the rather complicated concept of "appropriate consent", introduced by Amendments Nos. 278B and 278C.
The same points surface in Clause 178; hence Amendment No. 281A is needed. The Committee will notice that the new subsection (3) to be introduced by this amendment distinguishes between the "making" offence in paragraph (a) and all other offences, which are necessarily committed after the making of a recording, in paragraph (b). In subparagraph (ii) of paragraph (a) the consent of the performer is an alternative to that of the person with recording rights, but in subparagraph (ii) of paragraph (b) the performer drops out of the picture.
Otherwise, the effect of the new subsection (3) in Clause 178 is the same as that in the Bill as printed, subject to one point. The last three lines of the new subsection require two consents in the case of a non-making offence where both the performer and the person with recording rights have rights. This is the only place where two consents are to be required. Two consents are not required in respect of the making offence because it will always be enough to get the consent of the performer.
I am sorry that this is so complicated, but these amendments do no more than reflect the complicated world of musical recording. I beg to move.
The Principal Deputy Chairman of Committees (Baroness Serota): In putting this amendment I should point out to the Committee that if the amendment is agreed to I cannot call Amendment No. 278AB.
Lord Williams of Elvel: I am grateful to the noble Lord for his explanation of what he admits are rather complicated amendments. It is a rather complicated situation.
In Clause 170 we are satisfied that the amendment put forward by the noble Lord is right. It is odd that the provision was not in the original Bill as drafted. Amendment No. 281A,on the other hand, gives us a little trouble. The subparagraph mentioned by the noble Lord gives a person who records a performance under an exclusive recording contract rights over the future recording or re-recording of that contract. As I understand it, the recording could be used as a sound-track for a film. That may well be in contravention of, or there may be some difficulty with, the Rome Convention. Article 7.1(c)(ii) requires that the performer be given protection from the reproduction of fixation—I use the words of the convention itself; that is, the re-recording of a recording. I ask the noble Lord whether he can give his considered view on whether that right enshrined in the convention is sufficiently protected by Amendment No. 281A.
Lord Beaverbrook: I was about to say that I shall study carefully in Hansard what I said, but I am now informed that there is sufficient protection.
Lord Williams of Elvel: I am grateful to the noble Lord but I hope he does not think I was simply speaking off the top of my head. I have been advised that there may not be sufficient protection. When the noble Lord looks at this again, as I am sure he will on many aspects of our debates, I hope he will satisfy himself on this point.
On Question, amendment agreed to.
[Amendment No. 278AA not moved.]
[Amendments Nos. 278AB and 278AC not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 278B:
Page 76, line 2, after ("without") insert ("the appropriate").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 278C:
Page 76, line 2, at end insert—
("(2) The reference in subsection (1) to "the appropriate consent" is to the consent of—

(a) the performer, or

(b) the person who at the time the consent was given had recording rights in relation to the performance (or. if there was more than one such person, of all of them).").

On Question, amendment agreed to. Clause 170, as amended, agreed to.
Clause 171 [Infringement of recording rights by importing, possessing or dealing with illicit recording]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 278D:
Page 76, line 4, leave out ("or that of the performer").
On Question, amendment agreed to.
[Amendments Nos. 278DA, 278E to 278J not moved.]
Clause 171, as amended, agreed to.
Clause 172 [Duration of rights]:
Lord Jenkins of Putney Lord Jenkins of Putney moved Amendment No. 278K:
Page 76, line 22, leave out ("50") and insert ("100").
The noble Lord said: The present situation is that performers' protection legislation makes it a criminal offence to use works where no written consent has been given, but there is no time limit. The Bill seeks to insert a time limit of 50 years; after that the protection ceases to operate. I can see no reason why any time limit should be inserted. But there may be a reason which I should be happy to learn from the noble Lord, Lord Beaverbrook.
However, in order to demonstrate the very reasonable attitude which I bring to the matter I have agreed to go along with him in principle even without knowing the reason for it. I assume that there must be some reason behind what he proposes and I suggest that if he would accept 100 years, or even at worst 70 years, it would seem to me to be more reasonable than a period of 50 years. Perhaps if I were to sit down now the noble Lord might be good enough to tell the Committee why the Government seek to remove the existing permanent position and substitute a limit of 50 years?
Lord Beaverbrook: I am very grateful to the noble Lord for his comments. The protection for performers provided by the existing Performers' Protection Acts is primarily a protection against unauthorised recording filming, broadcasting and cable distribution of live performances and the term is not particularly significant in that context.
The Acts therefore make no provision as to term even though they do give protection, as the Bill does, against the re-recording for purposes not authorised by the performers and against dealing with, as well as making, unauthorised recordings. It is to these last mentioned activities that the term of protection is mainly relevant.
The Committee will recall that although the remedies under the Acts are criminal only, the judgment in the case of Rickless and Others v. United Artists Corporation was that the Acts conferred civil rights of action as well as criminal remedies and that these were subject to no limitation of term. This is not an acceptable position since it means that performers' rights effectively far outlive those of copyright owners. We felt, as did the court, that some limit had to be imposed. Since the term is only relevant to exploitation of performances, which have already been filmed or recorded, it seemed appropriate to us to set the same term for performers' rights as applies to sound recordings and films.
This would mean, for example, that someone wanting to dub an out-of-copyright record on to a film sound-track would not have to trace the performers involved and obtain their consent, as they would have to do if the term of the performers' rights exceeded those in the record itself.
Once copyright in the recording has expired, it is unlikely to be possible to trace the performer through the recording company. I believe that cases where limitation of a term to 50 years will significantly

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damage a performer's interests will be rare, and over a longer term will cause severe practical problems for those who find themselves having to trace a performer to gain appropriate consent more than 50 years after a performance has taken place.
Lord Williams of Elvel: Could the noble Lord give us some idea of what is the practice in other countries which are signatories to the Rome Convention? Do they have such a limit and, if so, what limit is it?
Lord Beaverbrook: I do not have that information with me. I shall find out and write to the noble Lord. I shall send a copy to the noble Lord, Lord Jenkins of Putney, and place one in the Library.
Lord Jenkins of Putney: I am grateful for that undertaking. Before making a decision on this amendment, would it be in order if I were to address a few remarks on Amendment No. 279ZC? I see that it would not. This is the first occasion on which anyone has had any explanation of the Government's reasons for the direction in which they have moved in this clause. In those circumstances, it is reasonable that we should take the opportunity to consider what the noble Lord has said and whether it is necessary to return to the matter at a later stage of the Bill. I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 278L not moved.]
Clause 172 agreed to.
Clause 173 [Transmission of rights]:
[Amendments Nos. 278M to 279BZA not moved.]
Clause 173 agreed to.
Clause 174 [Consent]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 279ZA:
Page 76, line 43, after ("performance") insert ("or").
The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 279ZB. Article 7 of the Rome Convention requires protection to be given against reproduction of a fixed performance for purposes other than those for which consent has been given. It is therefore essential, if adequate protection is to be given, that there should be clear evidence of the intended performances for which consent has been given and the intended uses of fixations. Further, the possibility of retrospectively legitimising an illicit recording would, in our view, present great practical difficulties. I am advised by the Musicians' Union that that is why it would like to see an amendment of the nature I am moving incorporated into the Bill. I beg to move.
Lord Beaverbrook: The purpose of subsection (1) is merely to make it clear that consent may cover any grouping of performances, past or future, which the owner of the relevant rights considers convenient. The provision is permissive, not mandatory, and in no way obliges performers or persons having recording rights to give consent to use of their performances generally.
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It is surely right that performers should be free to make whatever arrangements suit them best in that respect. I am informed that the wording in the clause enables us to conform with the Rome Convention. The clause makes it clear that performers have the freedom that they should have. We do not wish to see it limited in the way that the amendment would suggest.
Lord Williams of Elvel: I am grateful for what the noble Lord has said. As we are getting on in the afternoon, we shall have to look at this matter with our advisers to see whether we agree with his position or whether we have some further position to take at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 279ZB and 279ZC not moved.]
Clauses 174 and 175 agreed to.
Clause 176 [Right to delivery up of illicit recording]:
Lord Tordoff Lord Tordoff moved Amendment No. 279ZD:
Page 77, line 13, after ("performance") insert ("knowing or having reason to believe it is an illicit recording").
The noble Lord said: Again, perhaps I may move this amendment on behalf of my noble friend. We believe that it is inappropriate to extend the wide rights of entry, search and seizure to performers' protection. However, if such rights are to be granted, we believe that such measures should not be enshrined without provisions for a more stringent regime. For example, there should be an obligation for full disclosure on the plaintiff. Entry and seizure should be ordered only in the presence of a police officer. There should be provision for a strict burden of proof prior to the granting of an order.
We believe that as the Bill stands the damage to the defendant under the provisions outweighs the potential damage to the plaintiff. To alleviate this imbalance we suggest that the damage should be awarded only for economic loss. Thus the rights and obligations granted conform with those granted as a result of the introduction of moral rights into the Bill.
As the noble Lord will have observed, I have also spoken to Amendments Nos. 279AA and 279AB, and to Amendment No. 279AC which was not on the original groupings list and refers to being accompanied by a police officer. They seem to fit together. This is a serious matter of individual rights which ought to be taken seriously by the Committee. I beg to move.
Lord Williams of Elvel: The noble Lord, Lord Tordoff, has raised an important question. It is a question that is not free from difficulty. I very much hope that we shall be able to consider this at a later stage or in discussion, perhaps outside this Chamber. I understand that the Government are placed in a certain difficulty here. They have to ensure that there is a possibility of doing what is required under the Bill. Nevertheless, there is the question of liberty that the noble Lord, Lord Tordoff, has raised. Having said that, I look forward to hearing what the Minister has to say. However, I hope very much that the noble

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Lord, Lord Tordoff, will not press the amendment at this time.
Lord Beaverbrook: I am most grateful to the noble Lords, Lord Williams and Lord Tordoff. Clause 176 deals with forfeiture and delivery up, as already explained. In circumstances where a person has illicit recordings in his possession, custody or control, and an order is made against him that they can be forfeited and delivered up, he would at that point become aware that they were illicit, even if he did not know before. For the convenience of the Committee I should say that I am also speaking to the amendments spoken to by the noble Lord, Lord Tordoff. I shall also speak to Amendment No. 279AC.
In any case, not knowing that recordings are illicit could not be a defence against forfeiture and delivery up if the recordings are indeed illicit, because you would always know by the time that the order was made against you. Amendment No. 279ZD is therefore neither necessary nor acceptable.
On Amendment No. 279AA, rights in performances arc solely economic rights in any case. There is therefore no need to restrict damages to economic losses. No other damages will arise. I do not see what would be achieved by Amendment No. 279AB. It is already the case as a matter of general law that the plaintiff will need to establish his case on the balance of probabilities that the recordings are illicit before an order can be made. Indeed, to require only a prima facie case would not be enough, and the amendment would tilt the balance unfairly in the direction of the plaintiff.
In connection with Amendment No. 279AC, I am grateful to the noble Lord, Lord Williams. We debated this issue last Thursday. On that occasion my noble friend Lord Dundee undertook, without commitment, to consider this matter again in the light of the debate. That undertaking also applies here. I hope that the noble Lord will understand that we have not yet had time to give the matter the attention it deserves. It is an issue that we wish to consider carefully and discuss with noble Lords, perhaps outside this Chamber, before the next stage.
It may be helpful to the noble Lord, Lord Tordoff, if I tell him that Clause 176 provides no right of entry or search; neither does Clause 177. Entry is permitted only to premises open to the public, and force may not be used.
3.30 p.m.
Lord Monson: Can the noble Lord, Lord Beaverbrook, explain in connection with Amendment No. 279AC what is the legal position if the person attempting to seize the illicit recording was physically obstructed by the person in possession of that recording?
Lord Beaverbrook: That will be a matter for the courts. What happens in any circumstance is impossible to say. All we can provide for is the possibility of seizure. I suppose ultimately in those circumstances he must desist and take the matter to the courts.
Lord Williams of Elvel: I believe that we have to be very careful in discussing these difficult matters in Committee. I hope that the noble Lord who asked that pertinent question will accept that this is indeed a very difficult area and that the Opposition Benches would not wish to pursue the matter further.
Lord Tordoff: Nor do I wish to pursue it. I am grateful to the noble Lord for his explanation of each of these matters. I welcome the fact that he is considering Amendment No. 279AC in connection with other matters that have already been discussed. I shall merely ask my noble friend to read what he said, because I was interested to hear the suggestion that Amendment No. 279AB tilted the balance in what I think my noble friend would regard as the wrong direction. That clearly was not in his mind when he put down the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 279A:
Page 77, line 17, leave out subsection (2).
The noble Lord said: In moving the amendment, for the convenience of the Committee I shall speak also to Amendment No. 279B, which is substantially on the same subject. The amendment is a purely probing amendment to find out whether the Government have good reason for inserting subsection (2). It seems to us that whatever the result of a civil case, whatever damages may be awarded, nevertheless there is an illicit recording somewhere and that illicit recording should be suppressed in some manner. The fact that in the Bill as drafted,
"No such order shall be made if damages in an action for infringement of the right conferred by this Part would be an adequate remedy",
does not seem to solve the problem of the illicit recording still being in existence. I beg to move.
Lord Beaverbrook: I am grateful to the noble Lord. For the convenience of the Committee, I shall speak also to Amendments Nos. 279A and 279B.
These amendments correspond to Amendments Nos. 210 and 211, which we discussed in connection with Clauses 88 and 89. The point here is the same: should an order for forfeiture be made when damages would be an adequate remedy? I feel that there is not very much I can add to what my noble friend Lord Dundee said at that time on those corresponding copyright clauses.
To allow the delivery up and forfeiture of illicit recordings in every case would be to introduce some of the undesirable features of the remedy of conversion into the new regime of performers' protection. Conversion damages are generally accepted as wholly inappropriate in the field of copyright and there is no reason to introduce them into Part II. If the owner of the performer's rights or recording rights is entitled to the full value of illicit recordings by having them forfeited to him where damages would be adequate, this would introduce the effect of conversion damages.

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No doubt it will be said: should we not aim to have bootleg material withdrawn from the market? The answer will in many cases be yes, and if the court finds that damages are not an adequate remedy it can order delivery up and forfeiture. Damages probably would not suffice in the case of bootleg cassettes being sold in a street market, and in such cases the courts would be able to make an order for delivery up. Forfeiture and delivery up are not precluded. All we are saying is that the court is not required to make an order if, in its judgment, damages are sufficient.
We believe these clauses strike the right balance. The courts will have the flexibility to decide when delivery up and forfeiture are appropriate. We do not want to limit their room for manoeuvre. They should be able to adjust the remedy to the seriousness of the case.
Lord Williams of Elvel: I am most grateful to the noble Lord. We started from the principle from which I think he started—that bootleg recording, if I may use that expression, should in some way be subject to forfeiture. If he seeks to give the courts greater flexibility in this matter I do not think we would challenge that. Nevertheless, I think I will have to take advice on what he has said, and indeed on what his noble friend said on the previous occasion. We may well come back to this matter at a later stage. I am aware that this is a complicated area of the law and it is not one on which I personally would wish to trespass. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 279AA and 279AB not moved.]
Clause 176 agreed to.
Clause 177 [Right to seize illicit recordings]:
[Amendments Nos. 279AC and 279B not moved.]
Clause 177 agreed to.
Clause 178 [Criminal liability for dealing with or using illicit recording]:
Lord Jenkins of Putney Lord Jenkins of Putney moved Amendment No. 279C:
Page 78, line 8, leave out ("and which he knows or has reason to believe is").
The noble Lord said: This amendment seeks to remove from the Bill the words,
"and which he knows or has reason to believe is".
At the moment the Bill provides:
"A person commits an offence who without the appropriate consent".
Then there are a number of provisions, among which paragraph (d) says:
"in the course of a trade or business—

(i) sells or lets for hire, or

(ii) offers or exposes for sale or hire, or

(iii) distributes,

a recording which is. and which he knows or has reason to believe is, an illicit recording".
My amendment seeks to take out the words,
"and which he knows or has reason to believe is",
so that the paragraph would read:
"a recording which is an illicit recording".
I believe that the damage is to the performer and the insertion of the words in brackets provide an "out" in almost every case. One can see no reason why a person cannot say, "I did not know". That is the classical answer of the man found in possession. He can say, "I had no idea that this case contained what you have discovered it contains. I had no idea that this recording was obtained in an illicit fashion".
In other words, the insertion of these words invalidates the clause. In those circumstances I hope that the Minister will agree that the clause becomes ineffective if there is such an easy "out", and that those words ought not to remain part of the Bill.
Lord Beaverbrook: I spoke to this amendment when dealing with a previous grouping. However, it may be helpful to the noble Lord if I repeat what I said in relation to the purpose of this amendment.
Even if it were right that there should be no test of guilty knowledge for secondary civil liability, it would not be right that there should be no such test for criminal liability. This is not the kind of offence which should be capable of being committed, even in ignorance, while acting in good faith because nothing that a person can do can prevent him for committing the offence if he does not have at least reason to believe that the recordings in question are or would be illicit. Strict liability is imposed in criminal offences only where the person in question is able to avoid ignorant commission of the offence, such as breaking the speed limit, as I said earlier.
I do not think that I need say anything more about that kind of offence and I hope that my reply is helpful to the noble Lord.
Lord Jenkins of Putney: As I understand it, the Minister is saying that the civil remedy remains. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 280 to 281ZD not moved.]
The Principal Deputy Chairman of Committees: In calling Amendment No. 281A, I should point out to the Committee that if the amendment is agreed to I cannot call Amendment No. 281AA.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281A:
Page 78, line 16, leave out subsection (3) and insert—
("(3) The references in subsections (1) and (2) to "the appropriate consent" shall be construed as follows—

(a) for the purposes of subsection (1)(a) (making of recording) the appropriate consent is—

(i) in the case of a qualifying performance. that of the performer, and

(ii) in the case of a performer subject to an exclusive recording contract, that of the performer or the person who at the time the consent was given had recording rights in relation to the performance (or, if there was more than one such person. of all of them); and

(b) for the purposes of subsection (1)(b), (c) and (d) and subsection (2) (dealing with or using recording) the appropriate consent is—

(i) in relation to a recording of a qualifying performance. that of the performer, and

897

(ii) in relation to a recording of a performance subject to an exclusive recording contract, that of the person who at the time the consent was given had recording rights in relation to the performance (or, if there was more than one such person, of all of them),

and in relation to a recording of a performance which is both a qualifying performance and subject to an exclusive recording contract, both those consents.").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 178, as amended, agreed to.
Clause 179 [Forfeiture of illicit recordings]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281B:
Page 78, line 41, leave out ("copy or").
The noble Lord said: This amendment corrects a drafting error in Clause 179(2) by removing the words "copy or-which are superfluous. No copies are referred to in subsection (1) nor elsewhere in this part. I beg to move.
On Question, amendment agreed to.
Clause 179, as amended, agreed to.
Clause 180 agreed to.
Clause 181 [False representation of authority to give consent]:
Lord Jenkins of Putney Lord Jenkins of Putney moved Amendment No. 281ABA:
Page 79, line 33, leave out ("unless he believes on reasonable grounds that he is so authorised").
The noble Lord said: To be brief, I believe that this issue should be an absolute offence. Either a party is authorised to make a recording or he is not. The belief of the person making a recording in the matter should not be sufficient to remove the liability, unless the noble Lord is again able to tell me that the civil liability remains. I shall be interested to hear the noble Lord on that matter. I beg to move.
3.45 p.m.
Lord Beaverbrook: This amendment would remove the defence of innocence in a case where someone represented falsely that he was authorised to give consent in relation to a performance for purposes of Part II. It would not be reasonable or just to subject someone to the penalties under this clause, possibly including imprisonment, who had genuine reason to believe that he had authority to consent to, say, the broadcasting or recording of a performance, and gave such a consent mistakenly. We could not accept that proposition, which runs counter to natural justice.
A person falsely giving consent who wished to invoke this defence would have to produce evidence of his claim that he had good reason to give consent. That surely is an adequate safeguard, and should ensure that only the genuine mistake escapes the penalties of this clause.
Lord Jenkins of Putney: In view of that explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 181 agreed to.
Clause 182 agreed to.
Clause 183 [Supplementary provisions with respect to forfeiture orders]:
[Amendments Nos. 281ABB to 281ABD not moved.]
Clause 183 agreed to.
Clause 184 [Qualifying countries, individuals and persons]:
[Amendment No. 281ABE not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 281AB:
Page 81, line 17, at end insert—
(""Convention country" means a state which has ratified or acceded to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention 1961.").
The noble Lord said: My understanding is that this subsection is intended to deal with and to comply with the Rome Convention. It is for that reason that this amendment is put down. I think that I am supposed to be speaking to Amendments Nos. 281BA, 281BAA and 281BAB as well. The purpose is to bring the convention on to the face of the Bill and I should have thought it was an obvious follow-on from the procedure that has been dealt with on copyright, where the copyright convention countries have the same applicability dealt with. I beg to move.
Lord Beaverbrook: I do not think it is wise or necessary to write into the Bill a reference to a particular international convention, unless some provision of the Bill positively depends on or is linked to membership of that convention. The content and membership of international conventions changes over the years and the Rome Convention may not necessarily remain the main convention providing for protection of performers. The Bill allows other countries to be designated as qualifying countries for purposes of Part II on a reciprocal basis. I can assure your Lordships unequivocally that all Rome member states will be so designated if, and to the extent that, they adequately protect British performances, as by definition they almost certainly will do.
Nonetheless, I agree that it might be worth introducing the concept of "convention country" in a more general sense, in the same way as Clause 148 does for copyright. I should like to consider this point and we may well come back to it at a later stage.
Lord Morton of Shuna: With that unexpectedly friendly welcome I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 184 agreed to.
Clause 185 agreed to.
Clause 186 [Countries enjoying reciprocal protection]:
[Amendments Nos. 281BA to 281BAB not moved.]
Clause 186 agreed to.
Clause 187 [Territorial waters and the continental shelf]
[Amendment No. 281BB had been withdrawn from the Marshalled List.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 281BBA:
Page 82, line 10, leave out subsection (2) and insert—
("(2) This part applies to things done—

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

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

The noble Lord said: We have already had a discussion at an earlier stage of the Bill on this matter. Indeed this particular amendment was spoken to, but nevertheless I suspect that the Minister may have rather more to say about the matter than he was able to say at the earlier stage. I beg to move.
Lord Beaverbrook: We had a long debate on 14th December, last Monday, on a similar proposal regarding extension of copyright law. I do not think that I need repeat everything that was said on that occasion by my noble friend Lord Dundee since the arguments are exactly the same. I am aware that we did not appear to convince all of the Members of the Committee who were present on that occasion but we continue to believe that it would not be appropriate to extend these provisions to aircraft concerned with exploration of the seabed or to all British registered ships and aircraft.
As we said on Monday, the concept of an aircraft present in the United Kingdom sector of the Continental Shelf for purposes directly connected with seabed exploration is scarcely an intelligible concept. Structures and vessels sit on the seabed of the Continental Shelf or float on the waters above it for the exploration or exploitation of the shelf. Although they are the high seas we are permitted by international law to exercise jurisdiction over them.
Aircraft in international airspace over the Continental Shelf are scarcely likely to be there for that purpose. Merely carrying goods or passengers to or from an oil rig does not count and thus we cannot exercise jurisdiction. The exception to our inability to exercise jurisdiction is when a ship or aircraft is British. But as we understand the position few countries have such a provision. As a result we should be giving something to overseas owners of copyright which in the main their countries, we believe, do not give to us. In doing so we would put our domestic airlines and shipping companies possibly at a competitive disadvantage.
Since we debated this point in regard to copyright we have taken very careful note of what was said and we are considering the matter further. We are looking
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particularly at the practices of other countries. I should like to come back to the Committee on this point when we hope we shall have more information and shall have completed the necessary research in this respect.
Lord Williams of Elvel: I am most grateful to the noble Lord. I understand that this is a complicated issue which involves very different aspects. I look forward to hearing what he has to say at a later stage in the Bill. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 187 agreed to.
Clause 188 [Meaning of "illicit recording"]:
[Amendment No. 281 BC not moved.]
Lord Jenkins of Putney Lord Jenkins of Putney moved Amendment No. 281BCA:
Page 82, line 22, after ("his") insert ("written").
The noble Lord said: The existing legislation requires the written consent of the performer. My amendment seeks to restore that necessity for written consent into the Bill. I believe that that should remain the case. The present legislation only requires that consent should be given and does not specify that it should be in writing.
I believe that if it is not in writing there would be vast evidential problems apart from anything else. Moreover, the giving of consent is a serious matter and it deserves to be done through the formality of writing. Why should the existing rights of performers be taken away in any degree in the course of giving them additional rights? The existing rights have worked perfectly well for decades without any problems. I hope that the noble Lord will feel able to accept the amendment. I beg to move.
Lord Beaverbrook: I covered this point when dealing with Amendment No. 274AA. I then spoke to various amendments, including Amendments Nos. 281 BCA and 281 BDA. I refer the noble Lord to that reply, which I think he will find covers the point. I shall not go through the case again if that is acceptable to the noble Lord.
Lord Jenkins of Putney: I did not hear the noble Lord speaking to the amendment. Had I done so I should probably not have moved it. In view of what he says, I shall look at the matter again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 281BD to 281BDB not moved.]
Clause 188 agreed to.
Clause 189 [Meaning of "for private purposes"]:
On Question, Whether Clause 189 shall stand part of the Bill?
Lord Morton of Shuna: The question arises whether this clause is necessary. It is a statement of the obvious. It seems blindingly clear that:

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"An act done with a view to a recording of a performance being sold or let for hire, or played or shown in public, or broadcast or included in a cable programme service, shall be treated … as not done for private purposes".
Whoever would have thought that it was being done for private purposes? Can the Minister explain why the clause is necessary?
Lord Beaverbrook: We felt it advisable to provide a general definition in the clause of the meaning of "for private purposes" because there is no general definition in Part I. The only occasion on which that expression is used in Part I is in Clause 63 where it is defined in the same terms as in this clause. By contrast the expression is used in several cases in Part II; namely, Clauses 165, 167, 169, 170 and 178.
Lord Morton of Shuna: I am grateful to the Minister. It is stated that
"An act…shall be treated…as not done for private purposes".
That is not a definition of what "done for private purposes" means. It states only the various things that are not done for private purposes. As a definition I should have thought that it is useless.
Lord Beaverbrook: We think that in some cases it might be useful. That is why we have included it in the Bill.
Clause 189 agreed to.
Clauses 190 and 191 agreed to.
Schedule 2 [Rights in performances: permitted acts]:
4 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281C:
Page 136, line 8, leave out ("this Part") and insert ("Part II").
The noble Lord said: Perhaps it will be for the convenience of the Committee, if, in speaking to Amendment No. 281C, I speak also to Amendments Nos. 281D, 281F, 281G, 281H, 281J, 281K, 281L, 281M, 281N, 281P, 281R, 281S, 281T, 281U and 281V. The purpose of that series of amendments is to avoid any confusion by replacing the expression "this Part" with "Part II" throughout Schedule 2. I beg to move.
Lord Williams of Elvel: I note with great gratitude that this is an amendment moved by the Government which is also supported by a member of my own party. I think that that is a milestone in the Bill!
On Question, amendment agreed to.
Lord Jenkins of Putney Lord Jenkins of Putney had given notice of his intention to move Amendment No. 281CA:
Page 136, line 11, leave out sub-paragraph (1).
The noble Lord said: In speaking to Amendment No. 281ZDA—
Lord Beaverbrook: Perhaps I may help the noble Lord. I believe that this amendment No. 281ZDA is grouped with Amendment No. 281CA.
Lord Jenkins of Putney Lord Jenkins of Putney: I shall seek to move Amendment No. 281ZDA.
[Amendment No. 281CA not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281D:
Page 136, line 11, leave out ("this Part") and insert ("Part II").
The noble Lord said: I have already spoken to this amendment, which stands in my name and the name of the noble Lord, Lord Jenkins of Putney. I beg to move.
On Question, amendment agreed to.
[Amendment No. 281DA not moved.]
Lord Jenkins of Putney Lord Jenkins of Putney moved Amendment No. 281ZDA:
Page 136, line 11, leave out ("incidental") and insert ("unintentional").
The noble Lord said: We now come to the amendment which I sought to move prematurely. The amendment seeks to substitute the word "unintentional" for the word "incidental". It seems to me that the word "incidental" is vague. Precisely what does it mean? Why should actions not be in breach simply because they are incidental? In any event, how can there be such a concept in the recording of a performance? Surely it can only be done deliberately. If what is meant is incidental small usage, why should small usage be permitted? It is not permitted at present and that has not caused any problems. I see no reason why it should be permitted in future. In those circumstances, I hope that the noble Lord will feel able to accept either Amendment No. 281ZDA or the following amendments, Amendments Nos. 281DB and 281DC. Perhaps I may be permitted to include those amendments in what I have said to the Committee. I beg to move.
Lord Beaverbrook: Amendment No. 281ZDA, in the name of the noble Lord, Lord Jenkins of Putney, would substitute the word "unintentional" for the word "incidential" in sub-paragraph (1). That is almost exactly the same point as was made in relation to Clause 31 by Amendment No. 135, which the Committee debated on 8th December, and the same arguments apply. The point is embroidered to some extent by the noble Lord's Amendment No. 281DB. With his agreement, I shall speak also to that amendment and Amendment No. 281BC at this time.
Amendment No. 281DB stresses that the intentional inclusion must be by way of background or incidental to the principal subject matter. Amendment No. 281DC is consequential upon Amendment No. 281ZDA and echoes Amendment No. 137 to Clause 31. The noble Lord may not have been present when that was discussed. However, at that time we had quite a long debate. Basically, in regard to copyright we have deliberately used the word shown in the text to deal with the situation where, for instance, in a news broadcast a band perhaps marched by playing a song that happened to be in copyright. That would be only incidental to the news broadcast although it might not necessarily have been unintentional. Again perhaps where the maker of a documentary film is filming on location and the camera happens to swing through a series of advertising posters, the copyright in those works may well be protected. The inclusion of those posters is merely incidental, although it may not be unintentional.

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That is the thrust of the matter and it is exactly the same as regards the performer's rights. In my example of the advertising posters there may well be no performers' rights. Certainly in the case of the band marching by there may well be performers' rights. That is why we believe that the performance (if I may refer to it as such) would be incidental. It may not be entirely unintentional on the part of the person making the news broadcast—the director, let us say—that the band should go by. It may well be part of the news item and essential to it.
Perhaps the noble Lord would like to read what I have said on this point. I refer him also to the earlier debate on this subject, which may well be helpful to him in coming to a conclusion.
Lord Tordoff: I trust that there is no danger in the use of the word "incidental" in this case in that it may be confused with the use of the word "incidental" in other cases—for instance, "The incidental music to A Midsummer's Night's Dream" in which there will undoubtedly be performing rights. I take it that the Government have made it quite clear that the use of the word does not overlap into that area as well.
Lord Jenkins of Putney: The noble Lord has gone sufficiently far to persuade me that the word "incidental" might be better than "unintentional". In the circumstances I feel that I should withdraw the amendment in order to consider the two words. If necessary I shall come back to the matter. I certainly accept his invitation to read what he said earlier on the subject. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 281DB and 281DC not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281E:
Page 136, line 18, leave out sub-paragraph (3) and insert—
("(3) A performance or recording so far as it consists of music shall not be regarded as incidentally included in a sound recording, broadcast or cable programme if it is deliberately included.").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281F:
Page 136, line 23, leave out ("this Part") and insert ("Part II").
On Question, amendment agreed to.
[Amendment No. 281FA not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281G:
Page 136, line 30, leave out ("this Part") and insert ("Part II").
On Question, amendment agreed to.
[Amendment No. 281GA not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 281H to 281N:
Page 136, line 45, leave out ("this Part") and insert ("Part II").
Page 137, line 8, leave out ("this Part") and insert ("Part II").
Page 137, line 11, leave .out ("this Part") and insert ("Part II").
Page 137, line 16, leave out ("this Part") and insert ("Part II").
Page 137, line 26, leave out ("this Part") and insert ("Part II").
Page 137, line 29, leave out ("this Part") and insert ("Part II").
On Question, amendments agreed to.
[Amendment No, 281NA not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281P:
Page 137, line 36, leave out ("this Part") and insert ("Part II").
The noble Lord said: I beg to move the amendment standing in my name and that of the noble Lord, Lord Jenkins of Putney.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281Q:
Page 138, line 4, at end insert—
("Incidental recording for purposes of broadcast or cable programme.
.—(1) A person who proposes to broadcast a recording of a performance, or include a recording of a performance in a cable programme service, in circumstances not infringing the rights conferred by Part II shall be treated as having consent for the purposes of that Part for the making of a further recording for the purposes of the broadcast or cable programme.
(2) Such a further recording—

(a) shall not be used for any other purpose, and

(b) shall be destroyed within 28 days of being first used for broadcasting the performance or including it in a cable programme service.

(3) A contravention of sub-paragraph (2) is actionable as a breach of statutory duty owed to the person or persons whose consent to the making of the recording would be required apart from this paragraph.
(4) Expressions used in this paragraph have the same meaning as in section 62.").
The noble Lord said: The Committee will recall that Clause 62 in Part I of the Bill contains a special exception which allows broadcasters and cable operators to make recordings of works without infringing copyright provided they are used solely for broadcasting or for inclusion in a cable programme service and are destroyed within 28 days of first use.
In drafting the Bill we omitted to provide a corresponding exception in relation to rights in recorded performances. This amendment rectifies that by providing an exception to Part II of the Bill—rights in the appropriate terms. The exception is limited to re-recording of existing recordings; for example, making a re-recording of a programme which includes gramophone records. I emphasise that this exception in no way impairs the rights of performers to control whether their live performances are recorded, broadcast or included in a cable programme service, and whether their recorded performances are re-recorded for any other purposes. I beg to move.
On Question, amendment agreed to.
[Amendment No. 281QA not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281R:
Page 138, line 8, leave out ("this Part") and insert ("Part II").
On Question, amendment agreed to.
[Amendment No. 281RA not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281S:
Page 138, line 28, leave out ("this Part") and insert ("Part II").
On Question, amendment agreed to.
[Amendment No. 281SA not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 281T and 281U:
Page 138, line 37, leave out ("this Part") and insert ("Part II").
Page 139, line 11, leave out ("this Part") and insert ("Part II").
On Question, amendments agreed to.
[Amendment No. 281UA not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 281V:
Page 139, line 20, leave out ("this Part") and insert ("Part II").
The noble Lord said: I beg to move this amendment standing in my name and that of the noble Lord, Lord Jenkins.
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
The Earl of Dundee: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
Lord Denham: My Lords, I beg to move that the House do now adjourn until 5.30 p.m.
Moved, That the House do now adjourn until 5.30 p.m.—(Lord Denham.)
Lord Howie of Troon: My Lords, is the House permitted to ask why?
Lord Denham: Yes, my Lords. We are expecting a Bill for First Reading, and it will he for the convenience of the greater part of the House if we have that First Reading today. The Bill has to come up in the normal way from another place. I apologise to your Lordships for this but it has happened because—I do not complain about it—of the commendable way your Lordships have processed our ration of amendments this afternoon.
Lord Howie of Troon: My Lords, it is now 4.15 p.m., and 5.30 is quite a while away. Could we not do some business between now and when this important matter comes from another place?
Lord Denham: My Lords, no. This is not a frequent occurrence but it is something that happens from time to time. It has been agreed through the usual channels that we should stop at this point in this Bill. It is perfectly in order for the House to be adjourned during pleasure to await a Bill for First Reading. It has been done many times in the past.
Lord Howie of Troon: My Lords, it may have been done before, but is it a good idea at this moment?
Lord Denham: My Lords, this is the sort of procedure that should be discussed through the usual channels and not across the Floor of the House.
On Question, Motion agreed to.
[The Sitting was suspended from 4.15 to 5.30 p.m.]

Royal Assent
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:
Scottish Development Agency Act,
Urban Development Corporations (Financial Limits) Act,
British Waterways Act,
British Railways Act.

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

Motion for the Adjournment
Lord Denham: My Lords, in moving that this House do now adjourn for the Christmas Recess I should like, as usual, to say a few words from the noble Lords on the government side of the House to noble Lords in all other parts of the House, wishing them a happy and peaceful Recess.
Speaking for the whole House, as I know I do on this, I should like to thank very much indeed all the staff in this end of the Palace of Westminster in every department for the kindness, the forbearance and the good temper with which they look after us through the long and sometimes tiring days. If I may be permitted to say a few words to one small part of the staff, I wish all the Doorkeepers a very happy evening tonight.
Lord Ponsonby of Shulbrede: My Lords, I join with the noble Lord the Government Chief Whip in the expressions of felicity that he has passed to all Members of the House at this festive time and wish all Members a happy Christmas and a prosperous New Year.
More particularly, or perhaps one should say as particularly, I join with him in wishing the staff of the House a happy Recess. We think not only of the staff who are visible to us and with whom we come into daily contact but also those whom we do not see so frequently; those who clean our rooms, look after the corridors, attend the boilers and so on in all parts of the Palace of Westminster.
I should perhaps extend a special tranche of good wishes to the security staff, who will of course not be absent from the Palace of Westminster throughout the Recess. They will continue to ensure that security is maintained here.
Let me also add that I am sure all our thoughts will be with the Leader of the House at this time of the year. We should like to renew our good wishes to him for a speedy recovery.
Lord Tordoff: My Lords, I join entirely in supporting the expressions that have come from both sides of the House to the members of the staff, both internal and external, and also to people who are not quite members of the staff but who are supportive of our efforts—the Official Report writers and even (dare I say?) those members of the media who regularly turn up to report our activities from the galleries and behind the cameras. However, we particularly thank our staff here, in Select Committees and in all the activities of the House that go on from day to day.

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I very much want to join with the noble Lord, Lord Ponsonby, in his wishes to the Leader of the House and I hope that the Chief Whip will pass them on when he sees him.
We look forward to an energetic New Year. There is some of the copyright Bill still to be dealt with, apart from anything else. I am glad that at least the Government have the Local Government Bill here so that we can proceed on the first day back with the Second Reading. We do not want to miss that and the adjournment this afternoon may have been worth while.
It is time to go home and to have a happy Christmas. From these Benches we wish everyone a very happy Christmas and a successful New Year.
Viscount Allenby of Megiddo: My Lords, on behalf of the Cross-Bench Peers I reiterate what has already been said. We are indeed most grateful to all the staff in the Palace of Westminster for what they do for us throughout the year. I am informed that none will be retiring or leaving the Palace during the Recess. Therefore, we can look forward with confidence to their support in the future. I wish them and their families, on behalf of us all, a very happy Christmas and a fruitful New Year.
Lord Denham: My Lords, I thank all noble Lords for their kindness and expressions of sympathy to my noble friend the Leader of the House. I know that it will give him very much pleasure when I pass on those words. I should like to add how much my noble friends and I who are here tonight appreciate those words too. I beg to move that this House do now adjourn.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned for the Christmas Recess at twenty-four minutes before six o'clock until Monday, 11th January next.