Lords Sitting of 13 January 1987

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

AIDS: Cost of Treatment
Lord Campbell of Croy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the average cost to the National Health Service of treating a person suffering from AIDS during the usual course of the effects of the disease.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington): My Lords, the Government are in the process of commissioning research regarding the overall cost to the NHS of a person suffering from AIDS. The costs of hospital treatment have been estimated to be in the range of £10,000 to £20,000, depending on the duration of in-patient stay.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for her reply. In their estimates for the future, do the Government visualise that the treatment of most of these patients will be carried out in a special ward of the kind about to be opened at the Middlesex Hospital?
Baroness Trumpington: My Lords, the way in which care is provided by health authorities for AIDS patients is a matter for them to decide in the context of their planning arrangements. The majority of hospital admissions of AIDS patients result from opportunistic infections which can be dealt with by the appropriate medical specialty. There is also evidence that for much of his illness an AIDS patient can be treated in a community setting.
Lord Ennals: My Lords, I wonder whether the noble Baroness has seen the recent report of the Health Visitors' Association with its very alarming figure of 56 cities and towns in which there are no health advisers at clinics to assist those who may be sufferers from AIDS and who are seeking advice? Is this not a vital aspect of the financial responsibility which unhappily falls upon the Government.
Baroness Trumpington: My Lords, as the noble Lord will know, AIDS patients at the moment are not spread widely around the country: they are somewhat pocketed. It will be a matter for health authorities to decide when they should appoint such people, if they wish to appoint them.
Lord Ennals: My Lords, will there be funds available for health authorities to appoint these important advisers and counsellors?
Baroness Trumpington: My Lords, as the noble Lord knows, we have apportioned extra money for
476
AIDS. It will be up to the health authorities to use their funds in the way in which they think best.
Lord Kilmarnock: My Lords, are the Government aware—I am sure they are—of the work being done by Mr. Malcolm Rees on a sample of 70 patients at various London hospitals, which I understand is likely to work out at a cost in the region of £15,000 to £20,000? Are they also aware of the forecast made by Professor Maynard of the York University Health Economics Centre, which also came to £20,000? If these figures are confirmed in due course, will the Government take them fully into account in providing funds for this terrible disease?
Baroness Trumpington: My Lords, the question of costing is in many ways still in its early stages. From the point of view of expenditure, we expect health authorities to spend some £10 million on tackling the problem of AIDS in the current financial year. In 1987–88 this should increase to £17 million. A further £7.5 million will be spent in this financial year rising to £16.5 million next year on publicity for the public health laboratory service and research funded directly by the Department of Health. Also, the Medical Research Council is allocating £1.5 million to 15 special projects concerning AIDS.
Lord Molloy: My Lords, will the noble Baroness not agree—I am sure she will—that the Government should be complimented on their endeavours with their TV programme? Will it not be possible now for the department to encourage all the various health authorities and, indeed, local government, to take similar action in the local press and in local publications to follow the lead given by the Government?
Baroness Trumpington: My Lords, the noble Lord, Lord Molloy, will no doubt be aware that there is a leaflet drop to 23 million households today and following through this week.
Lord Cledwyn of Penrhos: My Lords, am I right in thinking that the financial aspects of this unfortunate matter are being studied by the committee presided over by the noble Viscount the Leader of the House? Can the noble Baroness confirm that the noble Viscount's committee will be reporting in due course? May we have some indication as to when we can expect such a report?
Baroness Trumpington: My Lords, I can confirm that my noble friend the Leader of the House is chairing a committee. I do not think it would be for me to comment on his reporting. I might add that the Secretary of State at his press conference on 8th January announced that he proposes to convene a conference on the provision of care for AIDS sufferers outside hospital which will bring together a great many bodies and will be able to identify more clearly what our priorities and our response should be in the years ahead.
Lord Cledwyn of Penrhos: My Lords, will the noble Baroness convey to her noble friend the Leader of the House that we should be interested to know when his committee is likely to report?
Lord Elwyn-Jones: My Lords, will she have a word in his ear?
Baroness Trumpington: My Lords, I have never known the box so near. My noble friend will, I believe, report from time to time.
Lord Winstanley: My Lords, as these cases clearly cannot be treated until they have been diagnosed, can the noble Baroness tell us something about the present cost of diagnosis, including screening? More specifically, can she tell the House the precise cost of an individual blood test for the presence of the virus, including the laboratory costs?
Baroness Trumpington: My Lords, with regard to screening, we are carefully considering the many complex and difficult issues that arise both domestically and internationally with regard to the screening of entrants to the UK, or indeed of any group—for instance, of entrants to particular employments like the armed forces. These are far from straightforward. The implications are profound both for individuals identified as carriers and for the general public. Those who have probed the issues will understand.
Lord Kennet: My Lords, is it correct that the cost of one blood test for AIDS is about £10 and likely to come down?
Baroness Trumpington: My Lords, I am unable to gaze into a crystal ball.
Baroness Faithfull: My Lords, may I ask my noble friend the Minister whether Her Majesty's Government have been in touch with the National Association of Counselling which has offices and personnel throughout the country and which could very much assist in this matter?
Baroness Trumpington: My Lords, we welcome help from all voluntary and other bodies and we are in touch with them as much as possible. If they let us know of their efforts, we will gladly be in touch with them.
Lord Campbell of Croy: My Lords, have the Government taken into account the cost of additional staff required in hospitals to treat these cases, and the cost of preparing and equipping the hospitals to ensure complete safety against infection from blood and cut accidents?
Baroness Trumpington: My Lords, with reference to the cost of extra doctors and nurses, over 80 per cent. of AIDS patients are being cared for in three Thames health regions. In the light of this, the Government are considering the level of resources which they should receive in 1987–88. It is for health authorities to decide how any sums should be spent and what training staff should receive. That includes looking out for the dangers to which my noble friend referred.
Lord Mackie of Benshie: My Lords, will the noble Baroness look again at the question put by my noble friend Lord Kilmarnock and at the figures that he gave,
478
which were considerably above those that she stated for the cost of treatment? Will she assure the House that if my noble friend's figures are confirmed, more money will be available for the treatment of this possibly tragic epidemic?
Baroness Trumpington: My Lords, the Government are constantly looking into the cost. They are also making available a great deal of money in the immediate present and looking into future needs to see what costings they will have to make.

Namibia: Judicial Proceedings
2.46 p.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 whether they recognise the judicial system of Namibia as legitimate.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, we do not give specific recognition to judicial systems in other countries.
Lord Hatch of Lusby: My Lords, is the noble Baroness aware that I am referring in this Question specifically to the trial of the eight political detainees which at the moment is suspended until February? Does she recall the letter that her honourable friend the Minister of State wrote in February of last year in which she included the sentence:
"It is not our practice to intervene in Namibia or elsewhere during the course of judicial proceedings".
The point that I should like the noble Baroness to elucidate is whether that constitutes a recognition by her Majesty's Government that the judicial proceedings taking place in Namibia are valid judicial proceedings and should be observed as such or whether they are in defiance of international law.
Baroness Young: My Lords, I make three points to the noble Lord in answer to that question. The question of recognition does not arise. As a matter of fact, a system of courts exists in Namibia as part of South Africa's administration of that territory. We do not recognise that South Africa has any right to continue to administer Namibia. I can confirm the point that my honourable friend Mrs. Chalker made. We do not intervene during the course of judicial proceedings in Namibia or elsewhere and that has been the policy of successive governments.
Lord Paget of Northampton: My Lords, does it matter in the least whether or not we recognise the judicial system of Namibia? Has that the smallest effect?
Baroness Young: My Lords, in answer to the noble Lord, it is a matter of principle.
Lord Cledwyn of Penrhos: My Lords, is there any reason at all in these circumstances, when Her

479
Majesty's Government do not recognise the legal system set up in this territory, why Her Majesty's Government should not make representations to the Government of South Africa on this matter? Secondly, can the noble Baroness say what progress is being made in the implementation of Security Council Resolution 435 and what steps Her Majesty's Government are taking in that direction?
Baroness Young: My Lords, I can assure the noble Lord that we continually make clear our concern about human rights issues in Namibia to the South African authorities both privately and publicly, and we shall continue to follow the situation there closely. On the issue of Security Council Resolution 435, we are of course fully committed to this and we continue to support both the United States and the United Nations negotiations which are aimed at implementing that plan.
Lord Molloy: My Lords, is the noble Baroness aware that her comments in reply to the first supplementary question of my noble friend Lord Hatch of Lusby are indeed to be welcomed? They were forthright and declared unequivocally that we in no way support the South African Government in their behaviour in Namibia and in particular in the judicial proceedings. However, all British Governments, although they may not intervene at the time of judicial proceedings, have never hesitated to condemn an outcome which they know has been rigged and fixed. This is probably an example of such an outcome, and I ask the noble Baroness whether she will consider that matter when these proceedings have been concluded.
Baroness Young: My Lords, when proceedings have been concluded, that will be a separate matter.
Lord Gisborough: My Lords, can my noble friend assure me that the same standards which are used in criticism of human rights and legal legitimacy in South Africa are applied to other countries around the world which have the same problems and which are equally worthy of such criticism?
Baroness Young: My Lords, yes. I can assure my noble friend that that is the case and that we have condemned violations of human rights wherever they may occur.
Lord Brockway: My Lords, may I ask the noble Baroness how long the Government are prepared for the present situation in Namibia to continue? Can they not urge in the Security Council that a strong United Nations peacekeeping force should enter Namibia to take control of the situation.
Baroness Young: My Lords, as I indicated in answering the question of the noble Lord, Lord Cledwyn, we have supported both the United States and the United Nations in working towards the full implementation of Security Council Resolution 435. However, I confirm to the noble Lord that it would be quite wrong to suggest that we have some unique responsibility for achieving Namibian independence.
Lord Hatch of Lusby: My Lords, may I return to the reply of the noble Baroness to my first supplementary question? Does this not leave Her Majesty's Government in a somewhat ambiguous position? She says, as did her honourable friend the Minister of State, that it is not the practice of the British Government to intervene during the course of judicial proceedings. However, if the Government do not recognise those judicial proceedings, surely now is the time to protest about the so-called judicial proceedings that are being used against the eight detainees.
Baroness Young: My Lords, I understood the noble Lord's point the first time he made it. I have given him an answer as a matter of fact concerning what the situation is and has been under successive governments.

Direct Broadcasting by Satellite: Advertising
2.52 p.m.
Lord Airedale: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they can give an assurance that, when television programme contractors show programmes on direct broadcasting by satellite, the present permitted number of minutes of advertising in every hour will not be exceeded.
The Minister of State, Home Office (The Earl of Caithness): My Lords, it is the responsibility of the Independent Broadcasting Authority to direct programme contractors on the length and frequency of advertising breaks and similar matters in accordance with rules set down in Schedule 2 of the Broadcasting Act 1981. It will be for the IBA to decide how these rules should apply to the contractors for direct broadcasting by satellite.
Lord Airedale: My Lords, I am grateful to the Minister for that reply so far as it goes. However, the Question asked for an assurance that the present number of minutes of advertising in every hour should not be exceeded. I did not gather that I had answer from the noble Earl.
The Earl of Caithness: My Lords, the answer was the last sentence of my reply. It will be for the IBA to decide how these rules should apply to the contractors for direct broadcasting by satellite.
Lord Orr-Ewing: My Lords, is my noble friend aware that in Europe and in the United Kingdom cable television and direct broadcasting by satellite are clearly going to come about and that it would be most unwise at this juncture to inhibit the development in the United Kingdom by laying down firm rules and regulations concerning what can and cannot be done? The choice must lie with the viewers. If there is too much advertising, they will not look at it, and the people who are propagating that idea will obtain the answer quickly from that source.
The Earl of Caithness: My Lords, I am glad to hear what my noble friend has to say, which confirms that the IBA has done a good job so far and doubtless will continue to do so.
Lord Mishcon: My Lords, is the noble Earl aware that the matter cannot be left in such a glib fashion? Is it not a fact that other countries will be interested in satellite broadcasting and that it will be essential for the Government to take a view as to the arrangements that can be made with other countries, including France, so that they do not infringe upon advertising time? Will they give guidance to the IBA, if that be necessary, that a certain amount of advertising is tolerable and a certain amount of advertising can go all the way round? There is a limit to both aspects.
The Earl of Caithness: My Lords, I apologise to the noble Lord if he thought my answers were glib. They were not intended to be so. If the IBA seeks our advice, we shall be very happy to give it.
Lord Mishcon: My Lords, perhaps the noble Earl will forgive me if I return to the point about the Government and the other countries involved having a need to obtain some sort of agreement on this matter.
The Earl of Caithness: My Lords, it was as a result of an Act of Parliament in 1981 that Parliament delegated this function to the IBA. If the IBA seeks our help, we shall be happy to give it.
Lord Taylor of Gryfe: My Lords, is it not the case that the number of minutes per hour allowed for commercial advertising over commercial stations at the moment are set by statute or at least incorporated in the licence? Can we be assured that the same allocation of time observed in present commercial licensing will be observed when the new channels come on stream?
The Earl of Caithness: My Lords, the amount of advertising time is a matter of detail for the IBA to consider within the guidelines of the rules set down in Schedule 2 of the 1981 Act.
Lord Paget of Northampton: My Lords, are we to understand that the noble Earl is giving an assurance that satellite broadcasting will not be used for national purposes such as, for instance, enforcing sanctions against South Africa?
The Earl of Caithness: My Lords, no. I do not believe I said that at all.
Lord Williams of Elvel: My Lords, I declare an interest as a director of a company with an interest in the French satellite. Is the noble Earl aware that TVS will be the first direct broadcasting satellite to reach the United Kingdom? Will he therefore bear in mind the question asked by my noble friend Lord Mishcon about arrangements between governments for the allocation of advertising time and the restriction of advertising time so that a standard may be set at the outset?
The Earl of Caithness: My Lords, I shall be happy to bear that in mind.
Lord Mackie of Benshie: My Lords, did the noble Earl say in a previous answer that the Government have no obligation to give advice unless it is asked for?
The Earl of Caithness: My Lords, I understood the question to be whether the Government would give advice and I answered, yes, if asked.
Lord Airedale: My Lords, do Her Majesty's Government accept that it is not for the IBA but rather for the Government to take a sounding to discover how much advertising is acceptable to people and to see that rules are drawn up in accordance with what people find acceptable?
The Earl of Caithness: No, my Lords, that is not the situation. In accordance with the Act passed through Parliament in 1981, it is a matter of detail for the IBA.
Lord Orr-Ewing: My Lords, will my noble friend bear in mind the saying of an earlier Prime Minister in considering whether in this instance it is far better to wait and see?
The Earl of Caithness: My Lords, I am grateful for that good advice from my noble friend.

Motor Cycle Noise Limits
2.58 p.m.
Lord Brougham and Vaux: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what plans they have to reduce the allowable level of motor cycle noise.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, agreement was reached within the European Community last November on lower noise limits for new motor cycles. We intend to amend our regulations so as to make the new limits applicable to new machines registered in Britain from the earliest dates permitted by the agreement.
Lord Brougham and Vaux: My Lords, I thank my noble friend for that encouraging reply. Can he tell me what other measures the Government have in mind for encouraging owners of existing machines to reduce the noise of defective silencers?
Lord Brabazon of Tara: Yes, my Lords. There are regulations governing the fitting and replacement of silencers which will apply progressively to an increasing number of motor cycles in use. In addition, my right honourable friend the Member for Christchurch has introduced a Private Member's Bill in the other place enabling the Secretary of State to make regulations controlling replacement of silencers at the point of sale. The Government very much welcome this initiative.
Lord Winstanley: My Lords, will the enforcement of the new limits be any more effective than the enforcement of the old limits, which seems to me to be non-existent?
Lord Brabazon of Tara: My Lords, the enforcement of the existing limits is by no means non-existent. In the last year for which I have statistics, there were 2,800 prosecutions for noise offences, of which 95 per cent. resulted in a conviction. The new regulations will make it easier to bring prosecutions because replacement silencers will have a mark on them and it will be very much easier for the police to see whether or not they are in order.
Lord Jenkins of Putney: My Lords, did the noble Lord say that there were 28,000 prosecutions?
Noble Lords: No, 2,800.
Lord Jenkins of Putney: My Lords, can the noble Lord be a little more precise about this matter? What proportion of that total relates to motor cycle noise; or is the noble Lord giving us a total? I am not quite sure that I understand him very clearly on that point.
Lord Brabazon of Tara: My Lords, the noble Lord obviously did not understand me very clearly. In the last year for which I have figures, there were 2,800 prosecutions for noise offences by motor cyclists.
Lord Strathcarron: My Lords, does my noble friend not agree that new motor cycle exhausts are already commendably quiet and that the difficulty lies with the replacement? The difficulty is that motor cyclists often cannot afford the very high prices charged by manufacturers for the official exhausts and have therefore to go to other sources. Those are the noisy exhausts. I am very pleased to hear that legislation is being prepared to make it illegal to sell an exhaust system that does not come up to the required standard.
Lord Brabazon of Tara: My Lords, there is no reason why a motor cyclist has to buy an exhaust from the manufacturer of the motor cycle. The replacement exhaust could possibly be cheaper, but it must be as good in quality as the original.
Lord Brougham and Vaux: My Lords, can my noble friend say whether these new measures will cover second-hand machines as well as new machines?
Lord Brabazon of Tara: My Lords, the new European Community directive covers only new motor cycles but-the new regulations and the new Bill that has been introduced will of course cover all replacement silencers.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Skelmersdale will, with the leave of the House, repeat a Statement that is to be made in another place on rate support grant for 1987–88 and rate limitation.

Reverter of Sites Bill [H.L.]
3.3 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Debtors (Scotland) Bill [H.L.]
3.4 p.m.
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, I beg to move that this Bill be now read a second time.
Some two years ago I was glad to be able to move the Second Reading of the measure which is now the Bankruptcy (Scotland) Act 1985. In doing so, I paid well-deserved tribute to the work of the Scottish Law Commission in producing the report on which that Bill was based. The Bill which we are considering today has a similar genesis and results from perhaps the largest and most intensive programme of work undertaken by the commission. This programme began in 1968, led through eight research reports and five consultative memoranda and culminated in the two-volume report published in November 1985. I should like to record here my appreciation of the commission's sterling work in producing the thorough and well-researched report on which the present Bill is based.
In addition, there was further public consultation thereafter on the commission's recommendations, in particular to seek views on those matters, such as the proposed debt arrangement schemes, where the commission had obtained on its own consultation a mixed reaction to its provisional proposals. We received most useful written comments from a wide range of bodies and individuals and my officials have had helpful continuing discussions, in particular with the Law Society of Scotland and the Society of Messengers-at-Arms and Sheriff Officers as well as with the Scottish Consumer Council. I am grateful to all those who have commented, whether to the Scottish Law Commission or more recently to me. The Bill which we are considering today has benefited considerably from these successive consultations.
The issues addressed by the Bill have long been considered of importance by Scottish legislators. For instance, to pick but one example, the Diligence Act 1661 noted that if promises, pactions, obligements and debts were not faithfully performed and satisfied there could be no trust and consequently no society intercourse and commerce at home. In recent years, concern has shifted to the harsh effect on consumer debtors of the diligence of poinding and warrant sale and I think it is widely recognised that reform here is long overdue. The present procedures in poindings and warrant sales are after all based on the Debtors (Scotland) Act 1838.

485
I should perhaps explain that poinding and warrant sale is the procedure by which moveable goods (but not money) possessed by the debtor can be attached by the creditor. The goods are left in the debtor's possession until they are put up for sale by public auction, under a warrant of sale granted by the sheriff. The creditor is entitled to payment of his debt and expenses out of the proceeds of sale. If the goods are unsold because no bids above the values appraised at the poinding are made, the goods are delivered to the creditor in satisfaction of the debt. The diligence is carried out by a sheriff officer and some of the procedures are supervised by the sheriff. The Bill before the House this afternoon is therefore the first comprehensive reform of the law in this area since 1838 and is designed to usher in a new system of debt enforcement more suitable to the needs and expectations of a modern society.
It is perhaps a sobering thought that possibly most adults are in debt, since debt, in the broadest sense, is what one person owes to another. For instance, as the Scottish Law Commission pointed out, a very large number of Scottish households live in rented public sector housing and most owner-occupiers finance the purchase of their homes by a loan from a building society or other institution. The present Bill, however, is concerned with debt in the connotation of a debt which cannot be enforced until there has been obtained a court decree finding the debtor liable to pay a stated amount. The extract, or authenticated copy, of the court decree authorises diligence, diligence being the legal term used to denote primarily the methods of enforcing unpaid debts due under decrees of the Scottish courts.
I should emphasise that the Bill deals with the later formal stages of debt recovery. The earlier informal stage is the one at which the creditor, or an agent acting on his behalf, attempts to obtain payment. The research commissioned by the Scottish Law Commission indicated that the informal recovery procedures resulted in satisfactory arrangements for payment being made in the great majority of default debts. The later formal stages are, first, a court action for payment raised by the creditor; and, secondly, when following the court decree for payment there are further attempts at collection and, if necessary, the enforcement of the decree by diligence. The provisions in the Bill come into operation when the creditor has finally decided that informal arrangements will not secure payment and that there is no alternative to court proceedings.
Some of your Lordships may, I suppose, consider that credit is too readily available and that a restriction on the extension of credit would help to reduce the distress and social hardship resulting from indebtedness and debt recovery. But important as such issues are, they go far beyond the scope of the present Bill.
In its report the Law Commission set out what it sees as the two general objectives of a good system of enforcing debt by diligence. The first is that of effective enforcement: the provision of effective machinery in which creditors can have confidence and by which they can obtain payment of their debts. The second objective is debtor protection: to secure that within the
486
constraints imposed by the need for an effective system of enforcing debts there are available procedures which protect debtors who are subject to diligence from undue economic hardship and personal distress. The Government entirely accept and endorse those two objectives. We share the view of the commission that people who are able to pay their legally binding debts should be required to do so.
It became apparent from the Scottish Law Commission's work that the present system of diligence fulfils the first objective of effective enforcement. The system is generally regarded by creditors as satisfactory. Critics of the system argued that warrant sales of household goods were uneconomic so far as the creditor was concerned. But that does not point to the abolition of warrant sales in the interests of creditors. Warrant sales must be seen as the final stage in what is often a protracted process of debt recovery. The proper measure of the efficiency of the diligence is not its yield in the relatively few sales which are held but the extent to which the potential threat of a warrant sale serves to elicit payment in the vast majority of cases in which settlement is reached without recourse to a sale.
The commission's consultations confirmed that there was widespread dissatisfaction with aspects of the present law and practice of poinding and warrant sales. Some of this dissatisfaction is, however, based on misunderstandings. It is a mistake to assume that the procedure is an anachronistic survival from earlier and harsher times and that debt enforcement procedure against moveable goods is peculiar to Scotland. The commission records that such procedures are permitted in every country of which they are aware and that in England and Wales such procedures are used relatively more than in Scotland. The commission suggests that differences in public attitudes on either side of the Border are probably due to differences in procedures. For example, in England sales are generally held in auction rooms and not, as in Scotand, in the homes of debtors.
The commission concluded that no alternative method of enforcement could be devised which would be both as effective and more socially acceptable than the poinding and warrant sale procedure. Accordingly, the Bill retains the procedure but makes major reforms which remove the most resented aspects of the procedure.
The commission, however, concluded that the present system does not meet the second objective of debtor protection. The evidence obtained suggests that most debtors subjected to diligence are unable, rather than unwilling, to pay the debt outright whether from income or savings and can only pay by instalments. At present debtor protection depends upon exemptions from diligence of certain assets or income; certain restraints on the use of poinding and sale procedures recently evolved by the courts; and statutory powers to grant instalment decrees in certain debt actions. The commission considered, and the Government agree, that these safeguards are inadequate.
The commission's consultations revealed, however, a wide range of different views as to what form safeguards for the debtor should take. In considering what the preferable option was the commission was rightly very conscious that new and reformed

487
procedures must be cost-effective, making the most economical use of financial and manpower resources.
The Bill implements the commission's preferred option. This was for a system which allows the creditor to pursue his debt by court action and diligence, as under the present law, but permits the debtor to apply to the court for an order or orders controlling diligence. These new orders which the court can make to protect the debtor from the rigours of diligence include time to pay directions; time to pay orders and new types of order such as an order for the recall of a poinding in appropriate cases.
The reforms in the Bill relate principally to the two main diligences: first, the enforced sale of the debtor's goods, usually household goods, by the procedure of poinding and warrant sale; and, secondly, the arrestment or attachment of the debtor's money in the hands of a third party so that it can be paid over to the creditor in satisfaction of the debt. The Bill proposes that sales in debtors' houses be prohibited unless the debtor gives his written consent for the sale to be held in his house.
Poinded goods will normally be sent to auction rooms for sale. Arrestment of earnings is reformed and improved with the introduction of three new forms of continuous diligence which I shall describe later. Complementary to these reforms are the provisions in the latter parts of the Bill. These include improvements of the administration of officers of court—that is, Messengers-at-Arms in the Court of Session and sheriff officers in the sheriff court—who are instructed on behalf of creditors to operate the procedures for debt recovery.
Civil imprisonment is abolished for non-payment of tax penalties and rates. The existing different summary warrant procedures for rates and taxes are replaced by a uniform poinding procedure incorporating some of the reforms proposed for ordinary poindings. Debtors will be encouraged to make use of the new and reformed procedures by the provisions which will enable a debtor to be represented in proceedings before the sheriff by someone other than an advocate or a solicitor. Further, no court dues or fees are to be payable in connection with court proceedings under this legislation and an express obligation is laid on sheriff clerks to provide information to debtors about these court procedures.
Part I of the Bill provides the new arrangements with regard to time to pay directions and time to pay orders, extending the time which the debtor has to pay the debt. The Bill's provisions on time to pay directions considerably improve the present system of instalment decrees in sheriff court summary cause actions where the debt is under 1,000. Time to pay directions are to be available in the Court of Session or the sheriff court for debts under £10,000. These directions will allow payment either by instalments or by deferred lump sum. The court will have discretion as to whether or not to grant a direction; while the direction is effective it will be incompetent for the creditor to carry out diligence by way of, for example, a poinding and sale or an earnings arrestment. The court has power to vary or recall direction if it is satisfied that it is reasonable to do so. If the debtor fails to make payment by instalments the time to pay direction will lapse if on
488
the day on which the instalment is due there are unpaid sums due of not less than the total of two instalments.
Time to pay orders are very similar to time to pay directions. Time to pay orders are obtained after decree for payment has been granted and after a charge—the formal demand for payment—has been served, provided that the diligence has not reached an advanced stage. These time to pay orders are only obtainable in the sheriff court and not in the Court of Session. On receiving an application for a time to pay order the sheriff makes an interim order sisting, or halting, diligence against the debtor.
The reforms of the procedure of poinding and warrant sale are contained in Part II of the Bill. As I have already said, the Government accept the commission's conclusion that no alternative method of enforcement can be devised which would be as effective and more socially acceptable than poinding and warrant sale procedure. The Bill therefore retains the procedure but makes a number of major reforms. I should like to highlight some of these reforms. The exemptions from poinding of household goods are to be extended to include, for example, children's toys, medical equipment, curtains and floor coverings. That is found in Clause 16. Officers of court executing poindings are not allowed to enter a house where there is either nobody present or only children under the age of 16 without having given at least four days' prior notice. That is set out in Clause 18.
Debtors are given greater opportunities to redeem goods at their appraised value, that is, the value that they would be likely to fetch if sold on the open market, as provided in Clause 21. Debtors are also given the right to apply to the sheriff to release items from the poinding on the grounds that their inclusion is unduly harsh by the provisions of Clause 23. A number of grounds are provided on which sheriffs can recall a poinding or, at a later stage of the procedure, refuse to grant a warrant for the sale of the poinded goods in terms of Clauses 24 and 35. A poinding is not to last for longer than one year unless extended to allow instalment payments to be made under the provisions of Clause 27. Particularly significant are the innovations with regard to the warrant sale itself which have the effect that sales of poinded household goods will normally take place in auction rooms without publicity which identifies the debtor, as is set out in Clauses 32 and 34.
Finally, poinding of goods owned by the debtor in common with a third party is to become competent, subject to provisions to safeguard the interest of the third party. as set out in Clauses 40 and 41. This provision is essential because of the presumption, which was introduced by the Family Law (Scotland) Act 1985, though not yet brought into operation, that goods in matrimonial homes are in common ownership.
Along with the procedure of poinding and warrant sale, the other most commonly used procedure once a court has granted decree for payment of a debt is that of arrestment against the debtor's earnings. An arrestment of earnings attaches a debtor's earnings due at the next pay day but does not affect the earnings due on later pay days. This results in two major defects in the procedure. The first is that repeated arrestments,

489
for the expenses of which the debtor would be liable, may be needed to clear a debt. The second is that the proportion of an individual's earnings in any pay period which is exempt from arrestment for an ordinary debt—that is to say a debt other than maintenance—is too low and does not leave enough for the debtor's subsistence. If the arrestment is in respect of maintenance or rates, the whole pay is attached leaving the debtor with nothing.
To remedy these defects the Bill provides in Part III for the replacement of the present system by three new forms of continuous diligence against earnings. These are: earnings arrestments for ordinary debts; current maintenance arrestments for aliment and periodical allowance payable, for example, on divorce; and conjoined arrestment orders in cases where two or more creditors wish to arrest the debtor's earnings. I should add that the Bill does not affect the arrestment of funds or property other than earnings.
In the new form of earnings arrestment enforcing ordinary debts, the deduction from earnings is to be fixed by reference to the tables of deductions which are set out in Schedule 2 to the Bill. This procedure of fixed deductions has the advantage that it avoids the trouble and expense of having to apply to the court to fix the amount of deductions or to have a compulsory means inquiry. On every pay day the employer is required to deduct the appropriate sum from the debtor's net earnings. These deductions are much smaller than under the present law. For instance, net wages below £35 per week are totally exempt from arrestment. The Bill requires the employer who makes the deductions to pay them over to the arresting creditor. There is to be no need, as at present, for an action of forthcoming to be raised or a mandate to be obtained from the debtor to secure payment of the sums to the creditor.
Public concern about maintenance payments is focused not so much on the protection of debtors as on the interests of maintenance creditors. These are wives, former wives and children who are generally considered to be in greater need of assistance than other classes of creditors. Maintenance differs from other debts in that it is a continuing obligation to pay periodic amounts. These amounts will already have been fixed by the court at levels reflecting the debtor's ability to pay. Normally, therefore, it is appropriate that the whole of the maintenance instalments should be deducted from the debtor's earnings. The object of maintenance is current support and it is preferable to prevent arrears arising rather than to provide for their recovery when they do arise. The Bill therefore provides that a current maintenance arrestment attaches in each pay period the maintenance due for that period. The employer is obliged to make the deductions and remit them to the maintenance creditor. The maintenance creditor is entitled to apply for a current maintenance arrestment when a sum of not less than the total of three instalments of maintenance is unpaid.
With a Bill as large as the present one, I do not think that your Lordships will expect or indeed want a description of all the provisions of the Bill. I have spoken of three important sets of reforms which the Bill introduces with regard to time to pay arrangements, poinding and warrant sales, and the arrestment of earnings. Part IV of the Bill reforms the arrange-
490
ments for the recovery of rates and taxes and in particular it abolishes civil imprisonment for failure to pay rates or any tax. I should also draw your Lordships' attention to the Bill's provisions with regard to officers of court. These are contained in Part V of the Bill.
Officers of court hold public office as either Messengers-at-Arms in the Court of Session or sheriff officers in the sheriff court. They are also independent contractors who receive instructions to execute diligence on behalf of creditors. An officer of court has a duty to act when instructed and cannot refuse to do so. His fees are laid down by rules of court, and he is subject to disciplinary authority. This independent, fee-paid contractor status is paralleled by the arrangements in the English High Court (the sheriffs officers) and in France. Views were put to the Scottish Law Commission that a system of salaried officers employed within the Scottish court service should be introduced. The commission was, however, of the view that the present system of fee-paid independent contractors should be retained.
But the Bill contains a number of provisions dealing with the regulation, appointment, training, supervision, control and discipline of officers of court. Regulations about these matters are to be made by the Court of Session after consulting a proposed new body—the Advisory Council on Messengers-at-Arms and Sheriff Officers. The sheriffs principal are to have the power, even in the absence of a specific complaint, to order an inspection of the work of sheriff officers.
The Court of Session is to have similar powers in relation to messengers-at-arms. The power to approve persons for appointment as messengers-at-arms and to discipline them is to be transferred from the Lord Lyon King-of-Arms to the Court of Session. It clearly emerged, however, from the consultations carried out by the Scottish Law Commission that the historic connection between the Lord Lyon and messengers-at-arms is highly valued. Accordingly, the Lord Lyon, on receipt of a Court of Session recommendation that a person should be appointed as a messenger, grants the applicant a commission. Similarly, in disciplinary proceedings, it will be the Lord Lyon who will act on the Court of Session's interlocutor suspending a messenger or depriving him from office. Finally, the Lord Lyon will be a member of the advisory council.
The Bill also contains important provisions further regulating debt collection by officers of court. As at present, officers will be prohibited fromenforcing debts due to themselves and this rule is to be extended to enforcement on behalf of members of their family, business associates and firms or companies in which they have a controlling interest. Officers are to be expressly prohibited from using their official designations when collecting debts before decree. They are to be obliged to seek authorisation from the sheriff principal before doing so in a private capacity or through a debt collection agency. However, collection of debts which have been constituted by court decree will be part of the official functions of officers of court.
It has been generally agreed for some while that the procedures by which creditors can enforce unpaid debts in Scotland need to be reformed. This Bill incorporates the necessary reforms based on the painstaking and intensive work of the Scottish Law

491
Commission. An antiquarian may perhaps regret that the Bill repeals a long list of historic Acts, starting with the Diligence Act of 1503. However, all those concerned with achieving in the late twentieth century the twin aims of debtor protection and effective enforcement of debts in Scotland will, I am sure, accord the Bill the support which it justly deserves. I commend this Bill to your Lordships. I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Lord Cameron of Lochbroom.)
3.30 p.m.
Lord Morton of Shuna: My Lords, this Bill, as the noble and learned Lord the Lord Advocate said, is the Government's response to a very comprehensive and thorough review by the Scottish Law Commission of the problems of debt collection. If, as is the case, this is the first serious reform for the past 150 years, it is all the more welcome that it comes at last.
There are many ways in which we would hope to improve the Bill. The provisions regarding the changes in the law on arrestment of earnings are in general very welcome. This level of recovery was wholly ineffective and very expensive under the previous system where one had to arrest for each week's or month's payment as the wages became payable. With adequate safeguards, the recovery of debt by regular payments out of earnings is clearly the fairest and most painless method of achieving both justice for the debtor and justice for the creditor.
There is, however, a possible difficulty in the Bill as it is. If one creditor goes against a debtor by way of arrestment of his earnings at the same time as another creditor goes against the same debtor in the sheriff court or the Court of Session by the ordinary method of decree and gets an instalment decree, it may well happen that the instalment becomes impossible because the wages are being arrested and there appears to be no method of linking that, as the Bill is put forward by the Government.
It is also unfortunate, on the arrestment of earnings that the definition of "employer" is not wide enough to include the many people who are now technically self-employed, but in reality are people receiving regular pay for their work, whether they are labourers on a building site, bricklayers or share fishermen. It would be helpful, I suggest, if the definition could be extended to include the kinds of people who are really in the position of regular wage earners; otherwise they will not have the protection of Schedule 2 and all their earnings will be attachable.
In my view, of far more importance than the change in the arrestment—important and welcome though that is—is the fact that the Government have abandoned and ignored the Law Commission's recommendation regarding debt arrangement schemes. It is a common feature of the past 10 years—I had better not say seven years—or so that people have got into debt regularly and have difficulties, as the Law Commission found out. That is due in the main to their misfortune rather than their dishonesty. There is very useful work being done in the debt counselling schemes and there was recent publicity about Birmingham's debt counselling scheme. The debt arrangement scheme proposed by
492
the Scottish Law Commission has a very great deal of sense, as one would expect from such a body, but, for some reason which the noble and learned Lord did not touch on, it has been ignored.
It is perhaps strange that the noble and learned Lord, having adopted, so to speak, three-quarters of the draft Bill by the Scottish Law Commission, and ignored the other quarter, did not tell the House why that was being omitted. The debt arrangement scheme provides a method for dealing, with the court's supervision, with the common situation where the debtor has more than one outstanding debt. The provisions regarding instalment payments which are to come into force are very welcome, but they only apply to the one debt.
The debt arrangement scheme put forward by the commission would deal with the situation where two or more creditors were chasing the one debtor who, through misfortune or illness or loss of employment, had not been able to pay. It would be able to give the court power to make arrangements that he would pay all the debts at once. That would have a great deal of sense in reducing the cost of diligence, reducing the rather unfortunate race that may occur between creditors to try to force payment out of the debtor, and no reason is put forward as to why that has been ignored.
The other major criticism is on the question of warrant sales. The retention of the warrant sale procedure is thought by the Government, and apparently also by the Law Commission, to be necessary. I suggest that with the changes in the arrestment of earnings, the need for warrant sales to sell household goods will diminish considerably. The warrant sales, as the noble and learned Lord the Lord Advocate pointed out, have caused considerable distress, especially in the case of sales in the house of the debtor. We on this side of the House are very glad to see that that has been dropped.
However, it is unfortunate and very much to be regretted that the Government have not gone the whole way and abolished the warrant sale of household goods. Because arrestment will be used in preference, the sale will now be used to recover the debts of the single parent, the sick, the person who has lost his job, the long-term unemployed and the small trader who cannot get his debts paid, because none of them can have his earnings arrested.
We are dealing, as the Law Commission has said, with the unfortunate and not with the dishonest. Why retain the warrant sale? If one looks at Clause 16 of the Bill, there is a massive list of articles which cannot be sold, and that is wholly good. The list includes clothing reasonably required for the debtor or members of his household; his implements, tools of trade; books or other equipment; medical aids; books required for education; children's toys; articles reasonably required for the care and upbringing of a child; bed or bedding; household linen; chairs or settees; tables; food; lights and light fittings; heating appliances; curtains; floor coverings; furniture; equipment or utensils used for cooking, storing or eating food, including not more than one refrigerator; articles used for cleaning, mending, or pressing clothes; articles for cleaning the house; furniture for storing clothing, bedding or household linen; articles used for safety in the dwellinghouse.

493
There is not much left. It is not entirely clear why there is the special requirement of only one refrigerator, but no doubt at Committee stage we can go into that. It is difficult to see why, if somebody has a fridge-freezer, he is protected, whereas if he has the misfortune to have a freezer and a fridge as two separate units one of them has to go. One cannot imagine that the Government really think that debtors have multiple refrigerators in their houses. The only articles that I can see that are excluded for some reason—and perhaps there is a reason—are cupboards, sideboards or whatever one likes to call them for storing cups, saucers, cutlery and the like. For some reason, they can be attached and sold and no doubt advice can be given by citizens advice bureaux that if any such cupboard is used for storing food as well, then it is safe.
What is left? It appears to be only something of the nature of books, pictures, television, a video recorder or radio. I doubt whether many debtors in Easterhouse or Wester Hailes have expensive first editions or Impressionist paintings on their walls. The television set tends to be on hire purchase. What is the purpose of retaining the warrant sale for household goods for debtors? It would appear highly unlikely that anything very effective in the ordinary debtor's house would be caught by such a sale.
The cost is quite high, as revealed in the report. If there is to be a process of sale of household goods—and I suggest that there should not be—it should be one limited to a case where the debt excluding the expenses of diligence is over a substantial sum such as £500. No doubt the noble and learned Lord, when he comes to answer, will have to say that the Law Commission recommended the retention of the warrant sale, and I am aware of that. He will also say that there is no alternative—a phrase that we have heard from our sources. But there is. For a person who is earning there is the alternative of arrestment of his earnings. For others, there is sequestration. That is a real alternative if people have assets in their houses that are worth selling. The difficulty that has occurred concerns attempts to recover debts such as electricity bills when there is virtually nothing worth selling in the debtor's house.
In general, therefore, subject to the major criticism that there is the retention of the warrant sale and the ignoring of the recommendation of the debt arrangements scheme, we welcome the Bill.
3.43 p.m.
Lord Taylor of Gryfe: My Lords, I should like to apologise first for the absence of Lord Wilson of Langside who, as the noble and learned Lord Advocate will appreciate, has considerable experience in this field. He spoke to me on the telephone and promised—this may not be to the delight of the Lord Advocate—that by the time we reach the Committee stage of the Bill the Campsie Hills will be thawed out and he will be able to make the journey to offer professional and wise comment on these proceedings.
We, on these Benches, welcome the general intention of the Bill. In our society, more and more people are encouraged to incur debt, and the provision of easy credit facilities is advertised daily on our
494
television screens. It is not unusual for many people to incur debt and this causes great social hardship. Therefore, we welcome the terms of the Bill that make the arrangements for recovery of debt more simple and perhaps more humane.
We very much welcome the new arrangements, particularly for the arrestment of earnings and the fact that this has been made a much more simple procedure. While we have some doubt regarding what the noble Lord, Lord Morton of Shuna, said about the abolition of warrant sale, we welcome the arrangements for warrant sales whereby the debtor will have these conducted outside his home.
I have had only one experience in my life of sitting on a jury. It was a case where the sheriff's officer had entered the house to sell off some of the furniture for recovery of a small debt. The item that he chose, which I believe was a sideboard, the debtor claimed belonged to his daughter, who was awaiting occupation of a local authority house. This was the item that the sheriff's officer felt was of greatest value in the home, and he proceeded to sell it. The debtor proceeded to resist, and found himself in court for assault.
Having listened to the case, I must say that the debtor appeared to me to be guilty, although there was great provocation. These warrant sale officers proceeded from one house to another in the course of the day and sold off sideboards, television sets or whatever, in the homes of debtors. totalling perhaps eight of 10 a day. Your Lordships can readily understand the humiliation and the distress caused in many homes as a result of that procedure. I am delighted that under the Bill there will be an improvement in that situation regarding the items that may be sold outside the home of the debtor.
As to the debt arrangement schemes, it is noted that the Bill does not accept the draft Bill provisions of the Law Commission, paragraphs 14 to 42. Like the noble Lord, Lord Morton of Shuna, I should be delighted to hear why that is so. Is it because of the cost, or the administrative burden on the sheriff's officer?
In general, therefore, we, on these Benches, very much welcome this attempt to make more sensible and more humane arrangements for debt collection in Scotland. This is long overdue. I can promise your Lordships that the noble Lord, Lord Wilson of Langside, will be giving detailed attention to the Bill, which I hope will be helpful.

Rate Support Grant 1987–88
3.47 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Skelmersdale): My Lords, with the leave of the House, I shall now repeat a Statement which is being made in another place by my right honourable friend the Secretary of State for the Environment about the rate support grant settlement for 1987–88 and selective rate limitation for local authorities in England. The Statement is as follows:
"With permission, Mr. Speaker, I would like to make a Statement about the rate support grant settlement for 1987–88 and selective rate limitation for local authorities in England.

495
"When I made my announcement about relevant and total expenditure on 16th December, I said that no further rate support grant reports could be made until validating legislation had been approved by Parliament to allow decisions to be taken in line with the practice which had hitherto been adopted. I also said that I would make a further announcement about rate support grant when the House returned in January. I am today announcing my firm intentions for the 1987–88 settlement for England and for the supplementary reports for 1986–87 and 1985–86. These intentions are based on the powers I am taking in the Local Government Finance Bill. Copies of the explanatory material and the rate limits proposed in that Bill are being sent to local authorities today and are available in the Library and Vote Office. Authorities will be able to plan their budgets and rates for 1987–88 with confidence. I shall make the relevant reports, and designated authorities will be notified of their rate and precept limits immediately the Local Government Finance Bill receives Royal Assent.
"The consulation which has preceded the 1987–88 settlement has been much more extensive than in previous years. I have considered very carefully the comments which the local authority associations have made to me and the many representatons received from individual local authorities. I do not intend to make any major changes to my proposals of 3rd December.
"I deal first with the main features of the 1987–88 settlement. Since 3rd December I have received further information on capital allocations for 1987–88 and about some authorities' budgets for 1986–87. This information has been taken into account in the figures I am announcing today. The figures also take into account expected higher spending by some rate and precept limited authorities to reflect the provisions of the Local Government Finance Bill. The consequence of these changes is to increase slightly the grant entitlements of most local authorities.
"The aggregate of Exchequer grant to authorities will be set at the level I announced in July—£ 12,842 million, which is an increase of over £1 billion or 9 per cent. over the level included in the settlement for the current financial year.
"My estimate of aggregate total expenditure in 1987–88 is £24,703 million. Provision for local authority current expenditure will be set at £25,251 million; this is 13 per cent. more than at settlement last year and £40 million higher than previously proposed to take account of the later information. In addition, the Goverment will, as the House knows, make available additional provision and grant when there is a settlement on teachers' pay which meets our requirements on cost, pay structure and duties.
"There are plenty of opportunities for authorities to reduce their expenditure; for example, by putting out services to competitive tendering or by implementing the many savings identified by the Audit Commission. I intend therefore that the aggregate of authorities' grant-related expenditure assessments should not be uplifted by the full
496
increase in expenditure provision but should be held broadly steady in real terms.
"I intend to specify the same principles for GREs as were proposed in the 3rd December consultation paper: the most significant change from 1986–87 is that the police GRE will be distributed on the basis of police establishments.
"I intend that the slope of the grant related poundage schedule will stay the same as this year. This will provide an incentive for authorities to restrain their expenditure.
"As usual there will be arrangements to limit the impact of year on year changes on individual authorities grant entitlements. It is my intention that there should be a limit on block grant losses of 7p at ratepayer level and a limit of 12p on gains.
"In July I announced my intention to introduce legislation which would provide local authorities with greater certainty about their grant entitlement. A Bill will be introduced shortly to abolish the arrangements known as grant recycling whereby grant not claimed is redistributed to all authorities. In future an authority's grant will depend on its own expenditure and not on the expenditure of all other authorities. At the same time, the abolition of grant recycling will mean a tougher regime for high spending authorities which will no longer receive a paradoxical and uncovenanted benefit through recycling.
"Local authorities can claim the full amount of grant if they spend in line with the settlement spending assumption. We have increased the amount of Exchequer grant by over £1 billion for next year, and authorities have a very clear choice about whether to be prudent and claim their entitlement or to spend up and lose grant.
"I shall make the third supplementary report for 1985–86 and the first supplementary report for 1986–87 when I make the main rate support grant report. It is my intention that the supplementary report for 1985–86 will adjust grant to take account of provisional outturn expenditure and certain changes in education pool contributions. Most authorities have brought their spending closer to target, and as a result £385 million of grant so far withheld for 1985–86 will be paid out. The supplementary report for 1986–87 will distribute the block grant underclaim of some £618 million consequent upon the estimates of total expenditure received from authorities on or before 19th December. My predecessor guaranteed that at least £500 million of grant would be recycled in the first supplementary report for 1986–87. This report will therefore honour that guarantee.
"I now turn to the authorities selected for rate limitation in 1987–88. The House will know from my Statement on 16th December and from yesterday's debate on the Second Reading of the Local Government Finance Bill that rate limitation is to be dealt with—for 1987–88 only—in accordance with the terms of the proposed legislation.
"The department is today writing to the 20 high spending authorities selected for rate limitation, informing them individually of the rate limit figure

497
which flows from the Local Government Finance Bill and my intention for rate support grant. Each of these councils will therefore be able to set its rate in good time before 1st April within the figure being notified to it.
"In the case of the 20 joint authorities which are automatically selected for precept limitation under the Local Government Act 1985, departments with responsibility for those authorities will be writing to them with similar information about the precept limits produced by the formulae in the Bill.
"The present system of local government finance is short on accountability and long on complexity. Our Green Paper proposals will replace it. While the present system lasts, I commend this settlement to the House as the best that can be achieved. Prudent and responsible local authorities which contain their expenditure can keep rate increases low. The Government are providing more than an extra £1 billion in grant. How much rates will rise is for local authorities; they have the opportunity to keep the rates low this year. If authorities choose to spend high it will be their fault that the rates go up. In the profligate high spending authorities ratepayers will benefit considerably from the important protections provided by rate limitation."
My Lords, that concludes the Statement.
Baroness David: My Lords, I should like to thank the Minister for repeating the Secretary of State's Statement, the fourth Statement that he has made on rate support grant since the begining of last autumn and now. It is only because of the Government's incompetence and ineptitude that this rate support grant Statement is arriving in January, which is so late, and that the Statement cannot be given effect to until the present Local Government Finance Bill becomes an Act.
Although the Statement says that authorities will be able to plan their budgets and rates with confidence, one wonders a little about that statement. We in this House will have to look carefully at the Local Government Finance Bill when it comes to us because we must hope that no further bad and incompetent legislation gets through.
I understand that the grant that the Government will provide to local authorities will remain at about 46.4 per cent. As there is no further cut, I hope that that means that the Government realise the validity of what we have all been saying about the need for local authority expenditure and services.
Of the extra £1 billion in cash which I think is mentioned about three times, is it not the case that almost half that a aditional £1 billion will go to the Treasury and not to the local authorities because of the abolition of grant recycling? When Mr. Baker was Secretary of State he praised grant recycling and thought it good. It now seems that it is bad. A Bill is to be brought in to abolish it. I should like to ask the Minister when that Bill will appear and whether it will be entirely about grant recycling or whether it will contain anything else.
From paragraph 17 it seems that the Secretary of State accepts that rates will rise. He says that how
498
much rates will rise is a matter for local authorities. That seems to assume that they probably will rise. I hope it means that he at last recognises the needs of the recipients of local authorities services.
There are even more rate-limited authorities than before. One can only feel sympathy for them. At the beginning of the last paragraph the Statement says:
"The present system of local government finance is short on accountability and long on complexity".
We can agree about that, but I must say that it is this Government who have produced the present system. It was the 1980 Act which started the system. There have been Rates Acts since which have made the system even more complex. The Government alone must take the blame for the complexity of the present system which has caused so many troubles. We can only hope that they may be resolved.
4 p.m.
Baroness Stedman: My Lords, from these Benches we also should like to thank the Minister for repeating the Statement. We accept that what he is doing and has done is illegal until the new Act is on the statute book and that he told us in the Statement in December that he would be giving early notification to the authorities for the next financial year. We were told in the summer that we were going to have an earlier RSG settlement; yet this is the third lot of proposals that have come forward and the actual settlement is going to come later than ever.
As the noble Baroness said, the Minister himself admitted in the Statement that the local government finance system is short on accountability and long on complexity; but the frequency and the complexity of these Statements do not allow one to give a thoughtful response off the cuff at such short notice as this.
The Statement says that the consequence of the changes is to increase slightly the grant entitlements to most local authorities. The Minister's colleague in another place has been under pressure from MPs of his own party from the shire counties. Do these proposals now ameliorate the effect on some of those shire counties? If so, is it just that the cake has been cut into rather differently shaped slices? Again, if so, at whose expense is that? Who is paying for any increase that other people may get? Whatever the answers, the uncertainty still means that the shire counties will have to levy higher rates than other authorities simply because they are the first to have to set the rate.
I regret that the Minister is abolishing grant recycling, which means the money being returned to the Treasury instead of being spent on the local government services for which it was originally intended. However, I am pleased to note that the Government are honouring their earlier guarantee that at least £500 million of grant would be recycled for 1986–87 and indeed that that total is now £618 million.
I am sad that the Minister has gone ahead with imposing rate limitation on 20 authorities. Twelve of them are London boroughs with many problems, and others including Gateshead, Newcastle, North Tyneside and Middlesbrough, are all areas of very high unemployment and in special need of help from their local authority services.

499
Finally, can the Minister, hand on heart, say that this new Bill which is just starting its progress through another place really has got the sums right this time and that until local government finance is reorganised properly we shall be able to proceed with some steady progress?
Lord Skelmersdale: My Lords, I am grateful to both noble Baronesses for their rather cool reception of this Statement, which, as both have noted, is the fourth we have had on this subject since the end of October. I think it would be fair to point out that the intentions of my right honourable friend were strictly honourable and the first Statement was indeed considerably earlier than it has been in any previous year. The fact that new information came in made the Statement of 3rd December necessary.
Baroness David: My Lords, may I interrupt the Minister for a moment? Is it not the case that it was not only changes of information that came in but that there was a slight switch to make his friends in the Conservative authorities slightly happier?
Lord Skelmersdale: No, my Lords; I do not think I can accept that. What my right honourable friend did, as the chairman of Hertfordshire County Council made clear in early December, was listen to the views of local authorities and local authority associations, which of course the 1980 Act fully expected him to do. That is why it contained proposals for him so to do. The Local Government Finance Bill had its Second Reading in another place yesterday and we will get on to it in due course. I have no doubt that your Lordships will have a certain amount to say on it then. However, I just make the point that I made in a Statement shortly before we rose for the Christmas Recess. The whole objective of that Bill is to validate the status quo and to put back the law to what everybody, including the local authorities themselves, thought it was.
The noble Baroness, Lady David, made the surprising assertion that most of the £1 billion extra money which the Exchequer has found for local government finance this year will go to the Treasury because of the abolition of grant recycling. There is absolutely no need for that money to go anywhere. If local authorities spend responsibly there will be no need for them to lose any grant.
The noble Baroness also suggested that the Statement made it clear that rates would rise. It is inevitable that in a period of inflation, albeit the very low rate of inflation that we are enjoying at the moment, if local authorities decide to inflate by the standard rate of inflation then rates will rise slightly. But taking a council at random—Cheshire County Council, for example—the settlement spending assumption on which this Statement is based is a rise of 5¼per cent., whereas a possible basis for spending in line with inflation may well be 3¾per cent. for the next financial year.
If Cheshire spends at the level of the settlement spending assumption it would be entitled to block grant at £f 112÷6 million. If, on the other hand, it spent in line with the inflation assumption it would receive block grant off 116÷9 million. The precept increase for
500
Cheshire on those two figures would be 5÷6 per cent. and 1÷5 per cent. respectively. So, as noble friends, right honourable friends and honourable friends have said countless times before me, the amount of rate increase is entirely in the hands of the local authority concerned.
I am grateful to the noble Baroness, Lady Stedman, who recognised that the Statement fulfils the pledges given in the earlier Statement of 3rd December. She is of course quite right. However, she suggested that the capping, for example, of some of the London boroughs and some of the inner-city areas was necessary only because they have particular great problems with the homeless, unemployment and so on. But that is exactly the reason why grant-related expenditure assessments are made, and the grant-related expenditure assessments take account of those particular and peculiar problems. What those local authorities are saying is that in their view the GRE assessments are not adequate for their particular problem. That is an argument they could well have with the department, but it is not a sufficient reason for being high spenders because also very often they are bad financial managers.
Lord Boyd-Carpenter: My Lords, in view of what has been said as to the cool reception, might it not be appropriate to the climate if I added a somewhat warmer note? Is my noble friend aware that some of us are delighted to hear about the end of grant recycling? It has always seemed wholly illogical that some local authorities should benefit simply as a result of the misbehaviour of others, and where money has been forfeited by a particular local authority it is surely common sense that it should not be distributed to others but should, as is now proposed, revert to the Treasury. Is my noble friend aware that some of us regret that even half the previous rate of grant recycling is to be allowed to continue even for one year? The whole thing is a nonsense and the sooner it ends the better.
Has my noble friend any objection to giving the list of the authorities who are being rate capped this year? It is perhaps a little unsatisfactory to leave it with the noble Baroness opposite saying—I am sure rightly—that a number of London boroughs are involved. This is an area where uncertainty would be unfortunate. Perhaps my noble friend could give us the list.
On rate capping, is he aware of the fact that many people realise the reason why some of these authorities which are rate capped are areas of very difficult conditions is simply that they have been raising the rates over the years to a point that has discouraged enterprise and has discouraged people from setting up businesses in these high-rated areas, and thereby have aggravated their problem? Is my noble friend aware that there is a sensible view that only by restraining the level of their rates can an effective attack be made on their very real problems?
Lord Skelmersdale: My Lords, not for the first time I am extremely grateful to my noble friend Lord Boyd-Carpenter for his support of the abolition of grant recycling. Yes, quite clearly it is an absolute nonsense if, on the one hand, a particular local authority can

501
lose grant because of overspending and then receive some of that loss back as a kind of windfall gain later in the year, or indeed the following year.
My noble friend asked me for a list of the rate-capped authorities. They are as follows: Newcastle upon Tyne, Camden, Greenwich, Hackney, Islington, Lambeth, Lewisham, Southwark, Haringey, Basildon, and Thamesdown. The new selected authorities are: Sheffield, Gateshead, North Tyneside, Tower Hamlets, Brent, Hounslow, Newham, Middlesbrough, and Brighton.
Finally, yes, I agree with the last point that my noble friend made—namely, that rate capping will help very hard-pressed ratepayers in these areas and will also help to encourage local authorities to have better financial management of their affairs.
Lord Taylor of Blackburn: My Lords, I appreciate that within the Statement there is provision for additional moneys that will be made available for the teachers' pay settlement when the teachers' remuneration Bill has gone through this House. That is anticipating that it will go through this House in its present form. However, may I ask the Minister regarding the 1986 education Act what additional moneys have been made available to implement the provisions within that Act, which demand quite a lot of additional expenditure by local authorities?
Lord Skelmersdale: My Lords, the Government will make available substantially more provision and grant for a settlement on teachers' pay which meets our requirements on pay structure and duties whenever that may occur. My right honourable friend the Secretary of State for Education's announcement of 30th October said that £183 million grant in respect of £460 million expenditure would be available for 1987–88. For 1986–87 the respective figures were £51 million grant and £101 million provision. The House will therefore see clearly that it is expected that this current settlement will mean a substantial increase in funding.
Lord Taylor of Blackburn: My Lords, may I go on to ask: what about the 1986 Act?
Lord Skelmersdale: My Lords, at a quick glance at the noble Lord's question I am not aware of any additional expenditure due to the passing of that Act. However, I shall have clearly to look into this further and write to the noble Lord.
Lord Taylor of Blackburn: My Lords, thank you.
Lord Dean of Beswick: My Lords, may I raise one brief point with the Minister? It is not a criticism of what he has said so far. Is it not a fact that the present prolonged severely inclement weather that we are suffering can blow sky-high the financial predictions of local authorities' expenditure in the current financial year and in the preparations for their budget next year? While I know that there at present are some statutory provisions for them to raise funds to deal with this problem, bearing in mind that the predictions from the weather people are that this will be a very
502
prolonged spell the sums of money involved could well be astronomical. May I ask the Minister whether he will urge the Secretary of State, when the local authorities have to come to him regarding this matter, to deal with it in as sympathetic a manner as he possibly can?
4.15 p.m.
Lord Skelmersdale: My Lords, as far as I am aware, such severe weather payments, to which I think the noble Lord is referring, are paid for from the centre and not through the grant entitlement. My honourable friend the Minister for Social Security has just announced in another place, that for this week only the payments will be made to all in the qualifying groups—that is, those over 65 years old or families with a child or children under two years. This is not dependent on what happens to the weather this week.
There has been a certain amount of speculation in the press. But of course what should be said is that what used to be a discretionary payment is now a statutory right and the procedures for claiming this have been simplified.
Lord Cledwyn of Penrhos: My Lords, may I briefly draw attention to the second sentence in paragraph 17 of the Statement which needs clarification and probably also qualification? Dealing with the present system of local government finance, the Statement says:
"Our Green Paper proposals will replace it."
However, it is the case, is it not? that a Green Paper is a consultative document whereas a White Paper is a statement of proposed Government policy. It would not normally—unless there is a change—be possible for Green Paper proposals to replace the present system.
Will the noble Lord make plain what is intended? Is it intended that the Green Paper proposals, after due consultation, will replace it? That seems to me to be the right way to put it.
Lord Skelmersdale: My Lords, the House will know that the Green Paper proposes—and I use the noble Lord's word—to make the grant system much simpler. Once the proposed reforms are implemented the new system will ensure that every pound increase in spending means a £1 increase in local domestic taxation. Grant entitlements will no longer depend on spending—whether of that authority or any other. However, I take the point that primary legislation will be needed for this and there will be no doubt an enormous amount of discussion in both Houses, and indeed outside them, before such an Act can reach the statute book.
Lord Cledwyn of Penrhos: My Lords, all the noble Lord needs to do is to confirm that Green Paper proposals have no finality and therefore this sentence is wrong. Will he therefore say that the proposals in the Green Paper, as they are, will not be implemented but that proposals after the Green Paper has been discussed will be implemented?
Lord Skelmersdale: My Lords, all I can do is to confirm that what are in the Green Paper are proposals, and proposals they will remain until they get on to the statute book.
Baroness David: My Lords, may I correct something that the Minister said when he was responding to what I had said? He said that I suggested that more than half of the £1 billion extra would go to the Treasury. I did not say that. I said that almost half might, and I was using a paper which was produced by Brian Tanner, the principal negotiator for English rate support grant for local authorities, in which he said:
"If there were a general 3 per cent. overspend (as has been suggested by the local authority side on Grants Working Group) because of demographic pressures, pay inflation and increases in capital financing costs, an estimated £400 million of grant would be withdrawn".
The figure of £400 million is getting on for half a billion. If there were not any grant moneys to be recycled there would be no need to abolish the grant recycling in a new Bill. Is the Minister not expecting that some amount of that £1 billion will go to the Treasury?
Lord Skelmersdale: My Lords, the point is that if any of that money goes to the Treasury, it will be the local authority's own fault. If local authorities spend at the generous level provided by the Government, they can claim the full amount of grant. This is what I would hope they would find themselves able to do.
Lord Stallard: My Lords, I apologise to the Minister for not hearing the first couple of sentences of his Statement. Can he confirm that local authorities will not get the cash to which they are entitled under the rate support grant proposals until the Bill currently going through the other place has gone through its procedures there and here? If that is so, is it not an arrogant assumption on which to base the rate support grant settlement, when that Bill includes many matters other than the immediate issue about the illegality of the previous rate system which will be contentious when they come here? Can the Minister confirm that that is what he is saying and allow us to draw our own conclusions from that?
Lord Skelmersdale: My Lords, the Statement which I have just read out is not the rate support grant report for 1987–88; it is a statement of my right honourable friend's firm intentions. One of the points in the Bill is that my right honourable friend should not be allowed to take any further considerations into account after, I think, 16th December 1986. It may well be that there will be considerable discussion on this point both in another place and in your Lordships' House. However, the auguries—if I may put it like that—make the intentions in the Statement as positive as they currently can be.
Lord Taylor of Blackburn: My Lords, may I then ask the Minister whether this is not a settlement but a statement of intent?
Lord Skelmersdale: It is, my Lords, in my right honourable friend's own words, his firm intentions, yes.

Debtors (Scotland) Bill [H.L.]
4.22 p.m.
Debate on Second Reading resumed.
Baroness Elliot of Harwood: My Lords, I think the moment has come when we may return to the Debtors (Scotland) Bill which has been postponed for almost an hour for questions. That is not to say the questions are not very important indeed.
I cannot claim to be an authority on the Bill but I have had the opportunity of discussing it with the Lord Advocate. I should like to give it my wholehearted support. No doubt a Bill coming in the year 1986, replacing a Bill brought out 150 years ago, has some very important significance for us all today. I think that this Bill is one which we can claim has that importance.
There are one or two points I should like to mention which I believe to be important in the Bill. Clause 16 gives a comprehensive list of articles which cannot be sold unless a debtor agrees. The noble Lord, Lord Morton of Shuna, detailed those and I think he was right to do so. I am glad that the debtor can retain those items because they are essential to family life.
I also think that it is important that a debtor can ask for time to pay an order if it is more or less than a certain amount because I consider that would also be a safeguard for the family. I think not only of the debtor and creditor but of the effect that these debts could have on family life, which might be very significant and very important. This Bill recognises that.
I also think that Clause 18, which states that an officer of the court cannot enter a house which has children under 16 unless the debtor agrees, is also important. Clause 21 states that a debtor can buy back articles if he pays the value. That is also a good point. I think that Clause 23, which releases the debtor from payment if it is unduly hard on him, is also something to which we can agree.
The sheriff can refuse a warrant to sell and that will also be of help to the debtor. It may sound as though I am in favour of the debtor, but I am thinking only of the family if very severe conditions were put on these cases. It is important too that a warrant sale may take place only if the goods can be removed by an officer and sold at auction. The object in the Bill to enable a creditor to get his own goods back without undue hardship is also an important point.
The Bill is obviously highly technical and one which our law authorities have carefully thought out. It has been dealt with great care by the Lord Advocate. I listened to his speech and thought it extremely interesting. I am sure that the House will accept the Bill, and I hope very much that during our further discussions we may learn more about it and perhaps make alterations if it seems they are valuable and will improve the Bill. I support the Bill very strongly.
4.28 p.m.
Lord Ross of Marnock: My Lords, I think that we should be grateful for the work of the Law Commission in Scotland. It has produced a very comprehensive report. It took a long time, and as a

505
prelude had to consider various inquiries and summaries of the trends in relation to debt in Scotland. I was a little bit staggered when it stated that we all are now debtors. It used to be that in Scotland we took great pride in paying our bills, but when one thinks of it, rates, rents and mortgage are paid in arrears. The same applies to the plastic money which most of your Lordships use in order, when you can, to get from Scotland to this place probably; and so that is perfectly true.
One of the things which worries me is that the most up-to-date statistics we have from the Law Commission are for 1983. Having seen one or two programmes about the ease with which credit can be given, particularly to young people, I wonder whether we should not be rather alarmed at the present-day statistics for debt. A television programme highlighted the case of a fairly young girl getting into debt to the tune of £18,000. I find that incredible. The effectiveness of our new arrangements for diligence adds to this to a certain extent. Firms can say, "We can get it back all right and we can use the courts".
It would have been interesting to have heard the views of the Law Commission about the changes because they took into account the social life, but mainly the historical social life in respect to the law of diligence. It is a pity that they could not have waited a little longer. We may need to consider, although we certainly could not do it in this Bill, making it more difficult for people to be able to get credit.
We are all grateful for the Bill. It is the first comprehensive Bill since the collection of Bills that started in Scotland way back in the 1500s. From my time in another other place, I recall all sorts of Bills being brought forward by all sorts of people to try to ease the situation in respect of arrestment of earnings. I remember the work of Archie Manuel. There was also the work, at a time of no limit to the arrestment of earnings, of George Lawson and Jimmy Dempsey on warrant sales. This was part of social life in Scotland.
I have to thank the Government for bringing forward a Bill at this time of the year that takes me into the Burns area. I remember on one occasion, when people in Scotland were thinking about reciting Tam o' Shanter, we had a Bill that provided a fine and followed that up by something even worse for being drunk in charge of a horse. Without that, we could not have referred to the poem by Burns.
Here we are again with a reminder of Burns.
I've notic'd, on our laird's court-day,
(An' monie a time my heart's been wae),
Poor tenant bodies, scant o' cash,
How they maun thole a factor's snash:
He'll stamp an threaten, curse an' swear
He'll apprehend them, poind their gear;
While they maun staun', wi' aspect humble
An' hear it a', an' fear an' tremble!
That happened within Burns' own family, the poinding of the gear.
I am glad that the Law Commission reminded us of the pronunciation as well as the spelling of poinding. The legal antiquarian would be pleased, I think, that we managed to keep the Lord Lyon in the picture somewhere but in muted regard. We must be grateful, however, for the recognition that simplification was
506
required. This may require speeding up. In considering the drafts we have been given about the approach to debt, let us be clear first that most of this diligence—about 85 per cent.—relates to personal, debt rather than commercial debt. It is the same in relation to the final aspect of the warrant sale. It applies to somebody's personal wellbeing and the sale of their goods.
The length of time between the various stages, the informal approach—by a commercial company, a local authority an electricity board or perhaps by public authority—is a long process. What surprises me —to take rates as an example—is the shrinkage of numbers of people involved. In Scotland, we have figures relating to 1980 from Strathclyde which covers half the population of Scotland. Summary warrants were granted in respect of 38,500 rate defaulters. But, by the time the end of it was reached, only seven warrant sales were executed in respect of seven householders.
One matter that worries me is that we shall have many more people liable for rates if a certain rather preposterous Bill goes through this House. Every youngster who has left school and who is not undergoing full time education will be liable to rates. So far as I can understand the Bill, as it has not come our way, the parent, or in the terms of the Bill "the responsible person" in the household, will be responsible for that. However, I do not think that the whole thing will work at all. In a family of four, the father may have to collect £700 or £800 from his own family to pay the rates. These are people who do not pay them now. Who will be in debt? It will be the responsible person. A young person who is living alone or is a student will be paying himself.
This complementary Bill will be important. I wonder whether the Government have thought how it will play its part in the new system of rate collection and who will be left with the small number of debtors being subjected to warrant sales. It is something we have to think about. I am surprised and disappointed that the Government have not immediately taken power to get rid of warrant sales or at least to get rid of them later. As my noble friend Lord Morton suggested, there are alternatives which, together with the improved debt arrangements that the Government are making, suggested by the Law Commission, could further reduce warrant sales. I shall be told that according to the figures we already have, there were at the second-last stage about 20,000 cases and eventually only 470 actual executions of warrant sales. Starting with a figure of 68,000 there are degrees of debt. By the time the whole process is gone through, which is quite lengthy, there are only 484 warrant sales. That was in 1982–1983. It should be admitted that this was double the number in 1979.
In relation to the 20,000, it is admitted by the Law Commission, and surely by the Government too, that it might be discovered that there was not enough in the house to be realised from the warrant sale to pay the debt and that, taking into account the cost, the whole thing is dropped. We could have taken a further step and said that we wanted to get rid of warrant sales altogether as quickly as possible. It is part of the history of working class life and everyone who has been in another place has come across incidents of

507
peoples' furniture being taken out, put on the street and sold there. All the neighbours knew. I think the word used by the noble Lord, Lord Taylor of Gryfe, was correct. There was humiliation and embarrassment, and not just for the immediate family. As working class people tend to live in the same area their parents suffered the humiliation of this as well. Little was realised or would be realised from sales in the auction halls. Anyone who knows anything about what is sold in auction halls understands that the return from sales is paltry, and the greatest thing is the embarrassment to the people concerned. I should have liked to have seen that aspect removed altogether.
I am worried too about rising rates and rents and the number of owner occupiers who are being pressed and encouraged by the Government, with the rather cheap capital sums to be paid over for local authority houses, who have had to forgo and get rid of their houses. Once again, the Government are lending themselves to people taking over burdens of debt with which they cannot keep up. Unemployment comes—and, my goodness!, it has come in Scotland. It is the poorest of the poor who will be subjected to the eventual warrant sales, and many of them that go forward do not in any way reach the required level.
So the Bill is an improvement. It is comprehensive and the arrestment of wages is equally important in respect of what can be done. But when you come down to it, we have to draw up a Bill to say, "You will not take children's toys out and sell them." Do we really mean that? I wish that the Government would think again about this and would get rid of the warrant sales and the humiliation and despair of that kind of thing. I do not think that the warrant sale is a necessary deterrent for the 20,000 who have reached the stage of being warned through the second stage of diligence. There are other ways and when you consider the people who are involved—the unemployed and the single parent families, as the noble Lord, Lord Morton, suggested—I do not think it is right. So we are grateful for what has been done in respect of the Bill; but I think we could have gone a little more courageously forward.
4.41 p.m.
Lord Cameron of Lochbroom: My Lords, I am grateful to all noble Lords who have taken part in the debate and generally for the welcome that they have given the Bill. Obviously I look forward to the Committee stage. I think the noble Lord, Lord Morton, recognised that some of the matters he raised were ones which could figure in Committee. I was a little amused at one point where the noble Lord made reference to the exemptions in Clause 16, observing that, as he was no doubt well aware, the Bill is based on the draft which the Law Commission itself proposed. I think he will find that that clause is in almost exactly the form in which the Law Commission put it forward. But, as he said, the Law Commission may be wrong, so we may talk about refrigerators, sideboards and cupboards in Committee.
It is clear that both the noble Lord, Lord Morton, and the noble Lord, Lord Taylor, were concerned about the absence of a proposal for debt arrangement, and I accept that there is no provision in the Bill for
508
that. However, it is important to have in mind that the scheme applied in the case, and only in the case, of a debtor with several debts but not enough assets to make bankruptcy procedures worth while. It was a scheme which was to be operated by an administrator, such as as sheriff clerk appointed by the sheriff to arrange for the regular payment of the debtor's debts to his various creditors, normally over a period of three years. I have to say that the Law Commission itself noted that on consultation there was a mixed reaction to that proposal.
The principle reason why the Government decided not to introduce the procedure was that its complexity and likely administrative costs would have far outweighed the benefits to the few debtors who would have been eligible. Furthermore, the scheme would have been a voluntary one and it is likely that a significant number of debtors would default at some point in the life of a debt arrangement scheme, because of the high level of self-discipline required of them. Therefore the Government concluded that in those circumstances there was no substantial advantage to be gained from acceptance of the proposal.
The noble Lord, Lord Morton, raised the question of the proposals so far as concerns arrestment of earnings and in particular the possible conflict between an existing earnings arrestment and a subsequent instalment decree. Obviously this is a matter which we shall probably discuss again at Committee, but I would just say at this stage that an existing arrestment of earnings will not result in a level of deduction which would necessarily make payment of an instalment decree impossible. I think that will be clear by reference to Schedule 2. In any event, I have to say it is likely that the second creditor would seek to arrest the debtor's wages also in terms of the provisions in Clause 60, which allow for the making of a conjoined arrestment order. But I accept that obviously this is a matter which the noble Lord may wish to consider again and perhaps debate further at Committee stage.
Both the noble Lord, Lord Morton, and the noble Lord, Lord Ross, were particularly concerned about the matter of warrant sales. I have to say to the noble Lord, Lord Morton, that, as he rightly guessed, I would stand firm on the fact that the Law Commission went into this matter in very great detail, and I observe that nothing that he said attempted to undermine the reasoning which brought the Law Commission to the conclusion that the warrant sale should be retained.
Perhaps I may say this about it. If one would have abolition of the warrant sale one has to accept—and indeed it has been said by some individuals and other agencies—that it could lead to credit becoming more difficult and expensive to obtain, since the warrant sale is an important spur to payment in the large number of cases which are settled at an earlier stage. Indeed, the noble Lord, Lord Ross, indicated the way in which the system operated and the result that, at the end of the day, very few cases come to the actual stage of a warrant sale.
If one had a restriction of that scale, it would affect everyone not paying for their goods in cash and would bear particularly hard upon those who live in the poorer areas of our towns and cities. There would also be a wholly undesirable temptation for those with

509
money in bank accounts to convert it into luxury goods, collectors' items or other moveable goods, so as to put their money out of the reach of their creditors. It is generally agreed that people who are able to pay their legally binding debts should be required to do so.
As I said in opening, warrant sales could not be abolished unless an alternative mode of enforcement could be devised which would be as effective and more socially acceptable. The Law Commission considered this matter at length and it was well aware of the kind of problems which have been outlined by noble Lords opposite, but its conclusion, which was quite clear, was that such an alternative could not be devised. The result is that there has been a substantial reform proposed in this Bill which will remove most of the resented aspects and, in particular, the kind of aspects to which the noble Lord, Lord Ross, referred—the fact that it was done in the debtor's home and the fact that it was a public announcement of people being in debt. I accept entirely that these are the kinds of distresses which a humane system should avoid. I suggest to your Lordships that this is precisely what is effected by the Law Commission's proposals which are set out in this Bill.
I have to point out that we are not talking only about personal debt; we are also encompassing debt which goes beyond that, as I think the noble Lord, Lord Ross, recognised. I do not believe that we have precise figures with regard to that matter. However, in 1985, of the 80,000 debt decrees that were granted by the Scottish courts only some 700 ultimately reached the warrant sale stage. That is the figure for all sales and includes not merely those in houses but also those in shops, offices and the like.
Lord Ross of Marnock: My Lords, those are figures that have not yet been published. The published figures, most of which I quoted, showed a number nearer 400. Therefore, as I suspected, the amount of debt and the number of actions of diligence have gone up and up.
Lord Cameron of Lochbroom: My Lords, your Lordships will take the inference from the figures. I was merely indicating that these are the most important figures. For that reason I continue to advise your Lordships that the Law Commission's views are the appropriate way to provide in this Bill for the most humane method of securing the interests of both the creditor and the debtor.
I believe I have dealt in general with particular points raised by noble Lords. Although I notice that the noble Lord, Lord Taylor, is not now present, perhaps I may say that I am very glad he was able to speak; and I shall be glad to see the noble and learned Lord, Lord Wilson of Langside, here from the Campsies. In view of what has been said in your Lordships' House this afternoon concerning how long the cold spell is going to last, I can only say that he seems to have an effective way of accurately forecasting the weather in that he is confident that he will be here for the Committee stage.
I am also grateful to my noble friend Lady Elliot for the welcome she has given the Bill. She clearly pinpoints the importance of achieving the procedures
510
which allow a creditor to be confident of obtaining payment of a debt and at the same time do not impose unreasonable hardship on a debtor and his family or produce unreasonable distress in their personal lives. I suggest that this Bill does just that, and for those reasons I commend it to your Lordships.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Northern Ireland (Emergency Provisions) Act 1978 (Continuance) (No. 3) Order 1986
4.55 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell)The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell) rose to move, That the draft order laid before the House on 18th November be approved. [2nd Report from the Joint Committee.]
The noble Lord said: My Lords, I beg to move that the draft Northern Ireland (Emergency Provisions) Act 1978 (Continuance) (No. 3) Order 1986, which was laid before your Lordships on 18th November 1986 be approved.
Perhaps I may begin by briefly reviewing the security situation in Northern Ireland. I believe that your Lordships will agree that it is this situation, coupled with the potential threat which it implies, which leads us to be clearly but regretfully of the view that there continues to be a real need for emergency legislation in Northern Ireland. This view was reinforced by the tragic and reckless bomb attack in Enniskillen last Friday in which Reserve Constable Ivan Crawford was murdered; by the shooting attack on a leading member ofthe DUP, Mr. David Calvert, the previous day, which he was very lucky to survive; and by the fact that there have already been two mortar attacks on the security forces so far this year.
In Northern Ireland in 1986 a total of 62 people died as a result of the security situation. Thirty-eight of those people were civilians; 24 were members of the security forces. Four of the latter were members of the army, eight were members of the Ulster Defence Regiment and 12 were members of the Royal Ulster Constabulary and the Royal Ulster Constabulary Reserve.
Those figures are a little worse than the comparable figures for 1985, but the violence is nowhere near the levels experienced in the 1970s. There is no such thing as an acceptable level of violence and each statistic represents its own human tragedy. That the situation is not worse is due to the unstinting efforts, courage and professional dedication of all sections of the security forces. They worked at an exceptionally high rate during 1986; the bald statistics do not and cannot tell the whole story. But I should record that more than 28,000 rounds of ammunition and nearly 5,000 pounds of explosives were recovered. During last year, 655 people were charged with terrorist-type offences.
The terrorist—any terrorist—has the capacity to kill and maim indiscriminately, and to put in fear those who stand in his way. That is why it is vital that the police and the courts have the necessary powers to bring him to task for his criminal actions. Hence we find the need for a temporary exceptional measure such as the Northern Ireland (Emergency Provisions)

511
Act 1978, which provides for certain departures from normal judicial procedures where terrorist-type offences are concerned, while being consistent with the European Convention on Human Rights and the United Nations Covenant on Civil and Political Rights.
My ministerial colleagues and I have made it plain that we do not wish to keep this legislation on the statute book for a day longer than is absolutely necessary, and it has been kept under constant review. The last major independent review by a judicial figure was completed in 1984 and your Lordships will know that a Bill is presently before another place which would make certain amendments to the 1978 Act. It will confer additional statutory rights on persons held in police detention under the terrorism provisions and establish a certification scheme intended to prevent paramilitary exploitation of the private security industry.
This Bill will be brought before your Lordships in due course. However, I am not able to say exactly when that will be as it depends on the progress which the Bill makes in another place. I should not like to pre-empt what may be said in another place or to spoil what may be said in your Lordships' House when the Bill comes before your Lordships. Until your Lordships' House has an opportunity to consider that Bill, I am sure that your Lordships will agree that the powers contained in the 1978 Act should be retained for a further six months. I commend the order to your Lordships' House.
Moved, That the draft order laid before the House on 18th November be approved. [2nd Report from the Joint Committee.]—(Lord Lyell.)
Lord Prys-Davies: My Lords, I thank the noble Lord, Lord Lyell, for his introduction of the order, for describing the security position in Northern Ireland and for referring to the evidence which justifies the existence of emergency legislation.
In a democracy we are always aware that emergency legislation usually erodes the civil liberties of some citizens. Therefore our approach to the legislation or its continuation must be one of vigilance. The departure from normal standards of justice must be the least that is necessary in an emergency for the maintenance of order. It is for the government of the day to justify the derogation that it seeks. As the noble Lord has said, the derogation must be seen to be temporary. It should not be prolonged after the emergency has ceased.
I believe that there is a case for continuing the 1978 Act. The Minister has reminded your Lordships that the Northern Ireland (Emergency Provisions) Act 1978, which is being continued by this draft order, will shortly be amended or replaced and that its place will be taken by the new Bill which has been introduced in another place. As the 1978 Act is therefore in the process of being amended I do not propose on this occasion to repeat some of our well-known reservations about some of its provisions. However, the noble Lord the Minister should not rush to the conclusion that the Opposition are fully satisfied with the Bill as drawn up.
512
The Minister will know that in another place we have voiced criticism of the Bill, and we believe that that criticism is constructive. We therefore hope that the Government will give serious consideration to the amendments that will be tabled in another place and that when the Bill is introduced in your Lordships' House it will be more acceptable to those who are genuinely concerned about the maintenance of civil liberties.
The Northern Ireland (Emergency Provisions) Act 1978 is, as the Minister has indicated, the product of terror in Northern Ireland between 1969 and 1978. That terror has produced its toll. I, too, should like to take this opportunity to pay our tribute to the men and women who since 1978 have borne the burden and heat of the trouble in the Province. So at the beginning of a new year we pay tribute to those members of the security forces and the civilians who have died as a result of the violence. It is right that we should remember their families.
We also pay tribute to those who have been injured and to those families whose homes have been shattered by bomb explosions. The violence to which the noble Lord, Lord Lyell, has referred and the explosion which damaged 700 homes in Lisburn Road a week before Christmas illustrate once again the scale of the violence, notwithstanding the sacrifices, notwithstanding the vigilance of the security forces and indeed notwithstanding the existence of the Northern Ireland (Emergency Provisions) Act which we are renewing this evening.
The continued violence to which one has referred draws attention once more to the need for progress to be made on the political level in Northern Ireland, and at the threshold of a new year we trust and hope that the Anglo-Irish Agreement will be given an opportunity to bear fruit, though we accept that the fruit will not mature overnight. With those few observations, we are pleased to give our support to the renewal of the order.
Lord Tordoff: My Lords, noble Lords may be surprised to see me rising at this point but I have to offer the apologies of the noble Lord, Lord Hampton, who is unfortunately locked into Worcestershire by the inclement weather. He has spoken to me on the telephone and has indicated that had he been here he should have wished to give general support to the moving of this order today, though, like the noble Lord, Lord Prys-Davies, we have considerable reservations from these Benches about finding ourselves continually having to endorse emergency provisions of this kind.
Clearly we are going to have to live with this in general for a long time to come. One cannot see an end in the immediate future. Therefore we accept these orders with reluctance, hoping always that some better ways may be found to maintain the peace and ensure that that troubled community reaches a point when such orders are no longer necessary and the normal course of justice can be allowed to resume.
In view of the fact that the Bill is going through another place, and without at this stage wishing to commend it or otherwise, it would clearly be foolish to do anything to resist the order or to do anything other than accept it today. As the noble Lord has said, this

513
matter will be dealt with in much greater detail when the Bill comes to this House and, I am sure, much more efficiently and eloquently by my noble friend Lord Hampton than I am able to do today. In the meantime, it has our support.
Viscount Brookeborough: My Lords, I rise to support this order and to thank my noble friend for his introduction. For me, this is a very sad day. Yesterday I took part in our church in the burial ceremony of Ivan Crawford. He was a young man, born and bred on Colebrooke. His father and all his uncles were involved in Colebrooke or Brookeborough. He was an upright, peaceful and dutiful man. He was one of the best citizens that you could possibly imagine.
He was doing his duty in Enniskillen, walking down the street, when a booby-trap bomb, triggered by wireless or remote control, foully murdered him. That bomb was made in the Irish Republic. The man who triggered that bomb was trained in the Irish Republic. Those bombs are not made by farm labourers. They are sophisticated bombs. I can tell your Lordships that the whole of our community is crushed by this tragedy. Our sympathy goes to his family and our admiration to him and his colleagues. I only wish that some of your Lordships had been there yesterday to see the fine standing and the smartness of the Royal Ulster Constabulary, the Women's Reserve and all their supporters. They are a real credit to our community.
Ivan's was one of the 82 murders in County Fermanagh for which only three people have been brought before the courts. The fact is that, being a border county, the refuge of the Irish Republic is there and these people cannot be touched. Immediately after that explosion a commentator said that an innocent passer-by might also have been murdered. Who is innocent? Nobody could be more innocent than Ivan Crawford and all those other people. I find the media's remarks about innocent people most offensive. This happened a few days after that evil prelate, Cardinal O'Fiaich, supported by the SDLP Member for South Armagh, said that Roman Catholics or Nationalists should not join the Royal Ulster Constabulary. Ten per cent. of the Royal Ulster Constabulary are Roman Catholics. Those two people are justifying the murder of those 10 per cent. by the IRA.
Shortly after that the Foreign Minister of the Republic damned the Royal Ulster Constabulary with faint praise. He said that the Royal Ulster Constabulary has behaved all right since the Anglo-Irish Accord. What was it doing before? Worse than all that is the fact that there was not a squeak out of our Northern Ireland Office to defend the Royal Ulster Constabulary and o say that for years and years it has been a fair policing service. What about the deputy Secretary of State who has been in charge of the RUC for many years? I find it intolerable that our Ministers do not defend our institutions. They do not, and I shall deal with that point again later. My heart is filled with sadness at having to raise these matters in this way.
The noble Lord, Lord Prys-Davies, mentioned the Anglo-Irish Accord. I can promise him that that fruit, when it comes, will be sour as far as we are concerned. Parliament will find it extremely hard to understand
514
why a vast number of Ulstermen, sensible people, do not accept what appears to this country to be a sensible arrangement for the governing of Northern Ireland. They see and they hear the strident and unacceptable tones of the Member for Antrim, North. It is unacceptable to us, the majority of the non-Republicans in Ulster, as well. Because this order is against the background of the Anglo-Irish Accord I felt I should try to explain why 100 per cent. of non-Republicans—I am not saying nionists—consider the accord is a betrayal.
First, Scotland and Wales, before they were to have a change in the form of their government, which was to be far less drastic or fundamental than ours, were given a referendum and they threw it out. But in democratic terms Ulster has spoken. In November 1985 200,000—and that is a lot of people—marched to City Hall to disapprove of the accord. At that point Unionists were told to have a good look at the accord and they would see good things in it. In January 1986 540,000 people voted against it, and on 15th November 1986, 300,000 people marched round City Hall. Can one get 100,000 or even 10,000 people to a political meeting? There must be something that those 300,000 people do not like, and they are reasonable, intelligent people. We are not being misled by loud-mouthed politicians. What we have seen we do not like.
In democratic terms it is a complete injustice. The Unionists civil rights have been eroded in a way that so far it has been impossible to get people to understand. Two-thirds of Ulster votes Unionist. One-third elects three non-Unionist Members. Under the Anglo-Irish Accord those non-Unionist Members have the right—and they use it—to go to Dublin and persuade Dublin that what they want is right. The Dublin Government then present the Republican case to our Government. Time and again, when the Member for South Armagh speaks, shortly afterwards the Foreign Minister for the Irish Republic echoes his views.
Our Government are under an obligation to do their utmost to meet the views of the Irish Government—the "three Republicans", or perhaps "two Republicans", because there are two SDLP Members. There is no such willingness expressed by the Government to listen to the views of two-thirds of the people. That is why we feel totally disfranchised. I must make it absolutely clear that I thoroughly disapprove of the boycott of the other place. I have said so and I do what I can to bring them back. Having said that, there must be some understanding that one vote for a Republican is multiplied by five.
There is no aspect now of Ulster life in which the Irish Government are not involved—appointments to health boards, appointments to the police authority and the spawning of legislation between the two Governments. That is why we do not like the accord.
As to the performance of the accord, in the past 12 months we have been subject once more to verbal bombardment by Ministers from the Dublin Government. The Irish Prime Minister bombarded the judiciary. He said that when the Lord Chief Justice quashed a case involving a supergrass it was in accordance with the Anglo-Irish Accord. In fact, he insulted our judiciary when he said that it was subject to political control. The judiciary in the South may

515
well be—I do not know—but the judiciary in Ulster is not subject to political involvement.
That statement was bad enough, but where was our Secretary of State in defending our judiciary? There was not one peep from him. At a later date my right honourable friend the Solicitor-General did come out, in a speech which received no publicity, but I consider this lack of defence to be a disgrace. I give your Lordships a forecast. Although I utterly respect the decision of the judiciary to quash that case, I can inform your Lordships that it is my opinion that violence will increase this year and the Anglo-Irish Accord will have done nothing to stop it.
I repeat, the Foreign Minister attacks the police and no defence is put forward by our Government. The Dublin Government have failed to ratify the European Convention on Terrorism. There is nothing from our Government saying that they should have ratified it, but that was part of the Anglo-Irish Accord. The Dublin Government approved of extradition but it is not to take effect for 12 months. Either it is right to have it or it is wrong.
An order has come before the House twice a year since the Act was passed. Northern Ireland Ministers have said time and again that co-operation with the security forces of the South is first class. But when are we going to have results? Could we not start on the accord? Could we not harmonise some of the laws in dealing with terrorism? The Dublin Government have some very good laws. We have some very good laws. The Dublin Government should accept seven-day detention. They should give their army the same powers as ours. The free state army cannot stop a car without a Garda being present. They cannot talk to anybody or do anything. They are totally and absolutely powerless. Could we not jointly ban Sinn Fein from going on television in the way that they have in Dublin? Let us have some evidence that the accord is not just one-sided.
The Government said that we would get reconciliation. The fact is that intimidation has increased enormously. The housing executive alone had to deal with 1,000 rehouses this year. The Government have said that their preferred route is devolution. If there ever was a route to devolution it has been closed with the Anglo-Irish Accord. There is no route that way and the Government and Parliament must accept that. No Unionist can ever again sit down in a devolved government and be re-elected. He can sit down but he will be shot after that, either physically or metaphorically. There is no route down the route of devolution.
The accord has other intentions. It was supposed to save President Reagan's Senate. It has not done that. It was supposed to bolster Dr. Fitzgerald, but it does not look as if it has done that either. We were to have the European Convention on Extradition and were promised more security. I should honestly like to know who really believes, and made our Government believe, that more security could be produced from the Irish Republic; after all, they have been fighting this for the same number of years as we have.
One of the reasons why we shall not get extra security is that the Garda is politically controlled.
516
Every member of the Garda from superintendent and above is appointed by the Minister of Justice and approved by the Cabinet. With such unstable governments as they have, there is a very long period in every year when no superintendent is going to stick out his neck more than the minimum. People will not take risks.
The truth is, too, that the Garda does not have the equipment. I have not been as rough on this aspect before, although I have known it for years and years—and, goodness knows, with the number of dead people in my area I would want anything which would prevent more deaths—but the fact is that the Garda does not have the equipment or the manpower to do much more. It does not have the leadership to take on hard men. For instance, where is the secure radio? Where is the team of fit, well equipped young men to carry out surveillance? The days of intelligence gathering in a pub are gone; it results from hard work and surveillance. The men and equipment are not there, your Lordships can take it from me. It is a hard grind and there is not the slightest sign that Dublin will produce them at all.
The Government can bluff by saying that they will not answer these questions because it is not in the public interest. I have kept quiet for too long. It is time it was said that the Garda does not have the stuff with which to do the job. Every week there has been a mortar attack around the Border. A mortar attack is a cumbersome operation. One cannot just pick up such a weapon, put it under one's arm and do something with it. It has to be put on a vehicle, and that means a major operation. Yet the Garda cannot stop this weekly mortaring. I cannot believe that it could not be stopped. That is how I see the accord working. The co-operation about which we hear is when British soldiers or a member of the RUC happen to put one foot across the Border and then they are arrested. That is not the kind of co-operation that I like.
I hope that this House has some idea of why we in Ulster will not accept the accord. We are being parcelled and packaged for delivery to a United Ireland. My Lords, I support this order.
Baroness Phillips: My Lords. I do not wish to intervene in the political arguments which the noble Viscount feels so strongly and with which I sympathise, but before he sits down will he agree that "evil" is a rather strong adjective to apply to a Catholic Cardinal?
Viscount Brookeborough: My Lords, "evil" is a subjective concept. I think the word is correct.
5.22 p.m.
Lord Fitt: My Lords, I rise not to support or reject this order—indeed, in the many years that I sat in another place I found that I had to object to the order for many reasons—because, as has already so rightly been pointed out by a previous speaker, since the creation of the Northern Ireland state we have always had to live under emergency legislation. For many years it was the Special Powers Act and since 1972, following the abolition of Stormont, we have had the emergency provisions and the Prevention of Terrorism Act. So under any circumstances I cannot lend my

517
support to this legislation, although I understand the need for many of its provisions.
My reason for rising to speak today is to try in a few minutes to bring to bear the reasoning of your Lordships' House on the realities which exist in Northern Ireland—not on how people would like things to be or how they hope they may turn out in the future but on the realities of life in Northern Ireland and most of all the political realities. I speak with some experience of politics in Northern Ireland. For 10 years I was the Leader of the SDLP, which is one of the major political parties in Northern Ireland. Therefore I understand the reasoning behind the discussions which took place within the confines of that party and within the minority community in Northern ireland.
It is now 14 months since the signing and implementation of the Anglo-Irish Agreement, which was intended to bring about reconciliation in Northern Ireland. It was meant to bring the two communities together, to allay the suspicions and fears which existed among the minority population and to give support to the Unionist position for the constitutional position of Northern Ireland. That is what it was alleged to do. I expressed my reservations at the time and since then I have had no reason to reassess them.
The Anglo-Irish Agreement was intended to draw the Catholic nationalist minority community away from supporting the violence of Sinn Fein and the IRA, on the grounds that there was to be set up an Anglo-Irish inter-governmental conference of which there would he two joint chairmen: one would be the Secretary of State for Northern Ireland and the other, who would represent minority interests at that intergovernmental conference, would be the Minister for Foreign Affairs of the Republic, Peter Barry. Any fears and suspicions held by the minority community would be voiced by the co-chairman of the conference; namely, Peter Barry.
However, one of the most crucial elements, then as now, was the minority's attitude toward the RUC (the Royal Ulster Constabulary), because there can never be any hope of a political solution in Northern Ireland unless the vast majority of the population in Northern Ireland (as indeed would be the case anywhere else) give support to the forces of law and order. What is the present position? Has the SDLP, the party which I formerly led, made any progress over the past 14 months in recognising and accepting the RUC? Until that happens and until that police force is accepted by the overwhelming majority of the population, one cannot hope to bring about an end to terrorism.
Sadly I have to tell the House that there has been absolutely no progress made in that direction. The SDLP has not departed by one single inch or centimetre from the stand which it previously took. That political stand taken by the SDLP totally infuriates the Protestant majority community in Northern Ireland, which sees that concessions have been made to the SDLP but that after having obtained some favours from the Anglo-Irish Agreement, absolutely no reciprocal response has been offered.
I understand why the SDLP has not moved, but sadly that is what I have to tell the House. No Government can govern effectively any community or
518
country if they do not have the support of the population and support for the security forces. Indeed, it was the minority's withdrawal or rejection of support for the RUC which led to the abolition of Stormont by the Conservative Government. The minority community had no faith in the RUC—and perhaps I may say here that at that particular time I did not have a great deal of faith in the RUC, though I am the first to admit that since then there have been dramatic strides made by the RUC and dramatic changes have taken place, so that I now fully accept that the RUC is acting as a police force in the interests of the whole community in Northern Ireland and that it should have the support of that community.
However, the SDLP is an opposition party. It is opposed to the Unionists and opposed to every facet of Unionism. This opposition is based on political, cultural and other grounds. The one ace card that the SDLP has to play is non-acceptance of the RUC. The SDLP says to a succession of governments here, both Labour and Conservative, "We will accept the RUC if you make such and such a concession to us". After that concession has been made it says, "We cannot accept it yet and you must make another concession to us", and so it goes on. Once the SDLP has thrown away that major poitical ace of non-recognition of the RUC it has no further cards to play and that is why it is holding on to it.
One would have hoped that the SDLP would have supported the RUC. The noble Viscount, Lord Brookeborough, has already referred to the fact that 236 RUC policemen and officers have been killed since the onset of the present troubles (the last was killed in County Fermanagh), and one should remember that. However, Peter Barry, who is the joint chairman of the Anglo-Irish Agreement and allegedly the voice of nationalists at this conference, made a television broadcast in which he was asked whether he now thought that the time was opportune for members of the minority to join the RUC. He said yes, he thought the time was now opportune. Within two days, a spokesman for the SDLP was saying, "No, no, no, the time is not opportune for the Catholic minority community to join the RUC." Who is the voice of the minority in the Anglo-Irish Inter-governmental Council?—because Peter Barry's sentiments were totally cast aside. In fact, the deputy leader of the SDLP said, in response to a question, "Peter Barry does not speak for me." So Peter Barry is asking the Catholic population in the North to join the RUC but the political leaders in the North are saying, "Don't join the RUC." Then the deputy leader of the SDLP said, and I quote directly from his remarks:
"We are not going to have, during the rest of this century, a situation in nationalist areas where there will be support for the RUC."
So here we have a prediction by the deputy leader of the minority party that for the rest of this century we are going to have a position where 30 or 40 per cent. of the population in Nothern Ireland is not supporting the forces of law and order.
Let me tell the Minister that I make this prediction, sadly but confident that I am right, that into the next century you are never—and I underline the word "never"—going to have a political spokeman for the

519
minority in Northern Ireland advising the Catholic youth to join the RUC.
The ecclesiastical voice of the Catholics in Northern Ireland, Cardinal O'Fiaich, recently entered into the controversy as well. He said that the time was not right for Catholics to join the RUC, particularly in view of the Stalker affair. Prior to the name "Stalker" ever being heard in Northern Ireland, the Catholics were finding a reason for not joining the RUC. Five years before that, they were finding reasons not to join the RUC and before that they were finding reasons not to join the RUC. The 10 per cent. of Catholics who are in the RUC have joined that force in spite of their political leaders and in defiance of their political leaders.
I have here a quotation which I regard as very sad. The assistant chief constable of the RUC, Mr. Cahal Ramsey, who, in my estimation, is a good Catholic and a damned good Irishman, has spent his lifetime in the RUC. In response to the Cardinal's remarks about not joining in the non-acceptance of the RUC, he wrote a letter to the Press and in one paragraph he said:
"As a long serving member of the police service and as a Catholic, I must, with sadness, protest at these unfair and indeed unjust references. From them it could be inferred that I and other police officers of the minority community, past and present, are somehow less than full members of the Catholic Church and, indeed, less than Irish. Nothing could be further from the realities of the situation."
I would support those sentiments as expressed.
The Earl of Longford: My Lords, I should like to ask the noble Lord a question. He told us that some years ago at the time when he was leader of the SDLP, he himself was against Catholics joining the RUC. But he said that since then there had been dramatic changes. Could he just say one or two words about what those dramatic changes are?
Lord Fill: There have been dramatic changes. I hope the noble Earl is not supporting the plea that has been put forward that Catholics should not give support to the RUC, because if anyone is admitting that suggestion, then they are expressing sentiments which are bound to lead to continuation of our present troubles. I was one of the men who was hit on 5th October 1968 as I led a Civil Rights march in Derry and I was beaten up by the RUC on that occasion. The RUC at that time were acting under the instructions of a Unionist Minister of Home Affairs. There is no doubt that the RUC, as it was then, was totally different from the way it is operating now. There is a police authority now and RUC actions are subject to discussion in this House.
At the time the RUC could not be mentioned in this House or in another place. It was regarded as being a matter for the then Stormont Government. So in this House and in the other place, that is the reason why we are discussing this legislation and why there is a Bill going through another place to get to the Committee stage. The RUC and even its members are now open to very close scrutiny. The very fact that an assistant chief constable who is a Catholic and an Irishman is second in command of the RUC is in effect tantamount to admitting that great changes have taken place in the RUC.
520
However, I come back to the fact that you cannot govern Northern Ireland when 30 or 40 per cent. of the population there do not support the security forces—namely, the RUC. I quote again from the deputy leader of the SDLP, who said that they would not be accepted in nationalist areas. There are very many Catholics who do not live in nationalist areas: they do not live in the Bogside or Ballymurphy but all over Northern Ireland and they have to depend on the RUC for further protection.
So can we ever get to a stage where the population in Northern Ireland would give support to the forces of law and order who are the only forces who can protect them? I have already said that the non-recognition of the security forces is the political ace card which is at present held by the SDLP. I do not think that if the Cardinal were to suffer a nervous breakdown overnight or if the SDLP were to suffer a nervous breakdown and, tomorrow morning, make a statement that they supported the RUC there would be hundreds and thousands of young Catholic men rushing into RUC recruiting stations. I do not believe that that would happen. I do not believe the SDLP would have that authority. But one of the saddest things is that I was speaking recently to someone who supported the SDLP and I voiced my objections as I am doing in your Lordships' House this evening. He said, "You see how difficult it is. If the SDLP asked young Catholic men to joint the RUC and then they went out and were killed by the IRA, how would the SDLP explain that away?" To me it is an awful admission of the impotence and ambivalence of the SDLP as a political party if they are frightened about what the IRA would do to people whom they have asked to join the security forces.
That is the main part, that is what this Bill is about, that is what the next Bill, when it comes from another place, will be about. It is all about the security forces and what action can be taken by the security forces to stop the depredations and the ongoing campaign of violence by the IRA.
I would appeal, as a former leader. I am quite well aware that this appeal will fall on deaf ears, but I would appeal to all those Catholics who live in Northern Ireland and depend on the RUC for their protection—because the IRA cannot give them protection, the UVF and all the other organisations cannot give them protection. I would appeal to all those who have to seek the protection of the RUC, irrespective of what Cardinal O'Fiaich may say. They all know Cardinal O'Fiaich, and no one can take this away from him: he has had many many predecessors in the past who have felt the same way, he is a constitutional nationalist. In other words, he does not want to see the state of Northern Ireland existing. The RUC are upholders of the law in Northern Ireland, they are there to see that the constitutional position exists. So how can the Cardinal, who is a dedicated nationalist, and the SDLP give support to the RUC, which is there to ensure the continuation of the state of Northern Ireland, when they are politically and, indeed, ecclesiastically opposed to it? It is a contradiction in terms. So anyone who expects that as a result of the Anglo-Irish Agreement the SDLP will throw away their ace is not living with reality.

521
There is only one other matter I wish to speak on here, and that is the Diplock Courts, which again have caused a great deal of controversy. The question is, should there be one judge, two judges, three judges? I say again, and I only do this to put a rubber stamp on what I have said in the House before, that it is impossible to bring back the jury system in Northern Ireland at this time. But juries are not the be-all and the end-all of justice, whether in Northern Ireland or in this House. There were three juries here in this country, those which sat in deliberation on the Guildford bombings, the Annie Maguire case and on the Birmingham bombings. Those three juries were totally and absolutely wrong in bringing in "guilty" verdicts. We know that very well. I know it may be hard for British people to accept that, but these cases have attracted public attention in the last few years.
I was on a deputation to the present Home Secretary last week. I understand that within a few days he may make a statement and refer one of the cases, that of the Birmingham bombers, to the Court of Appeal. I have not been much involved in that case, but I have been involved in the Annie Maguire case. The members of this family have already served 10, 12, 14 years' imprisonment. They are now released. They would have no need to continue with this campaign to prove their innocence if they were guilty, but they are innocent. This case will continue to be brought before the House and before the country until those people are totally exonerated of a crime of which they were not guilty.
We shall have an opportuntity to discuss the new Bill when it arrives from another place. I finish by making an appeal to the political leaders in Northern Ireland and, most of all, to the Catholic minority community to give their support to the RUC because it is the only force that can protect them from the machinations, the depredations and the murderous activities of the men of violence from both sides of the community in Northern Ireland.
Lord Kilbracken: My Lords, may I ask my noble friend this question about the RUC? Would he agree that the main change that has happened in regard to the RUC is that they are now strongly opposed by a very great number of the Unionist population? That is a factor that has not been brought out, but it seems to me to be very relevant.
Lord Fitt: My Lords, although I had intended to limit my remarks, let me make this quite clear. Given that the state was set up on the basis of Protestant and Catholic head counts, that is, two tribes, if one pleases one tribe, one does not please the other.
Early in 1985, before the Anglo-Irish Agreement was implemented, the RUC, at the behest of the British Government, were given a dry run in a place called Portadown. The Unionists had been marching in a very provocative way over a number of years, and deliberately set out to provoke the minority population in Portadown. The British Government told the RUC—and I am certain that they were under political instruction then—to do what they could to stop these very provocative parades. What they were in effect doing was to see whether the RUC would use force against the Protestant population and, if they
522
could be sure that the Protestant population would be met with the force of the RUC, then it would be a sign that they could go ahead with the Anglo-Irish Agreement. They therefore did that, and it has happened in many cases since Portadown.
One is dealing with words, and words in Northern Ireland have a different meaning and complexion from what is understood over here. If a political leader in Northern Ireland says that the RUC were acting impartially last week, do your Lordships know what that means? It means that they were knocking hell out of the other side. That is exactly what it means. That is why Peter Barry, the co-chairman of the Anglo-Irish council, said that the RUC acted impartially in Portadown, and elsewhere—because they were beating hell out of the Orangemen.
Lord Kilbracken: My Lords, for the first time.
Lord Fitt: My Lords, yes, for the first time, but that is what impartiality means. Therefore, the RUC are caught: if they are being impartial to one side, they are beating hell out of the other side. That is the way it has ever been because of the circumstances in which the Northern Ireland state came into being.
Viscount Brookeborough: My Lords, before the noble Lord sits down, I must make a correction. The RUC operated against the yobs in the Shankhill many times, including when Constable Arbuckle was murdered, to take one incident. The idea that the RUC never operated except in one way is not true or fair. They are now a brilliantly led, brilliantly equipped and brilliantly trained force operating with total impartiality, and that is what matters, not the past.
5.45 p.m.
Lord Hylton: My Lords, first, I apologise to the noble Lord, Lord Prys-Davies, for not having been able to hear the whole of his speech. I was called out of the Chamber to speak to an unfortunate member of my family stranded by a blizzard.
I welcome the intention of the Government in the near future to introduce a Bill amending the original Act that we are discussing tonight and implementing some at least of Sir George Baker's recommendations. We shall be able to debate the adequacy or otherwise of this in due course.
I should like to mention two or three recent documents that have a bearing on the order. The first is The Times editorial of 8th January. This concerned the three cases already mentioned by the noble Lord, Lord Fitt. I should like to draw that to the attention of the Government. I go on to touch on the question of the transfer of prisoners from English prisons to prisons in Northern Ireland. We have recently had a major statement from the National Association of Probation Officers which I ask the Government to study very carefully. I understand that the Standing Advisory Commission on Human Rights in Northern Ireland will have a chapter on this very subject in its forthcoming annual report, and we look forward to reading and studying that.
I hope that, with the aid of those two documents, the Government will be able to be much more

523
forthcoming on this subject than they have ever been in the past.
I should like to mention next a document entitled Co-existence in some plural European Societies. This is Report No. 72 of the Minority Rights Group. It deals with the situation of the Germans in North Italy, Swedes in Finland and the numerous minorities in Belgium. In all these areas, considerable progress has been made since 1950 in dealing with problems nearly, if not quite, as intractable as those of Northern Ireland. I hope that we shall have an opportunity to debate the report in your Lordships' House on 11th February.
I come now to a recent statement from Amnesty International. This deals with the unfortunate situation that has arisen in recent years over fatal shootings by the security forces in Northern Ireland. Since the autumn of 1982, 34 people, of whom 18 were unarmed, have been killed by the police or the army. This is a serious matter. It has concerned Amnesty, which has been corresponding with the Prime Minister and the Secretary of State for Northern Ireland since October 1985. Amnesty went on to issue a press release in September last year, of which the reference number is EUR 45/01/86.
I suggest that it is quite insufficient to say that the proposed new Police Complaints Commission will be able to put these matters right. We are already faced with an unsatisfactory situation. The Commission will be able to consider complaints only once they are made, and no doubt with a fixed starting point.
We should perhaps look briefly at the other safeguards. Criminal charges against members of the security forces are said to be one, police investigations another and coroner's inquests a third. In my view, none of these safeguards has proved effective or adequate up to now. I do not really see how they can do so in future.
I urge the Government not to brush aside the representations made by Amnesty. The loss to the public service of the County Coroner for Armagh and of a distinguished police officer in the person of Mr. John Stalker should be warning enough.
Amnesty International suggested a judicial inquiry. No doubt that is not the only suggestion that could be made. The Government may find a more suitable and effective procedure, but nevertheless I beg them not to ignore the matter as something unworthy of their consideration. To do so would be to concede a propaganda victory to terrorism and unnecessarily to offend many law-abiding people in Northern Ireland, the Republic of Ireland and elsewhere throughout the world.
I conclude by saying a word about the petition currently being circulated in Northern Ireland against the Anglo-Irish Agreement. One may perhaps be pleased that the Unionist parties have adopted a tried and known constitutional method of making known their point of view. However, the conduct of that petition is an important and delicate subject. I therefore appeal to those persons and organisations in Northern Ireland which are able to monitor and verify the methods used and the procedures involved in this
524
petition to do so extremely carefully. It is obviously not something in which the Government can interfere or be involved. I think that I have probably said enough to show the sensitivity of this matter and our hopes that the petition will be conducted in a highly constitutional and proper manner.
Lord Blease: My Lords, I support the reasoned and relevant remarks in support of the order made by our Front Bench spokesman the noble Lord, Lord Prys-Davies. I warmly welcome the tribute paid by the Minister to the work done by the security forces in their efforts to contain communal strife in Northern Ireland, to deal with the brutal acts of terrorism and paramilitarism, and to carry out the normal policing duties required in a society such as ours.
I express my sympathetic understanding of the strong words used by the noble Viscount, Lord Brookeborough. He has made courageous statements in his area—one which has been dominated by terrorism and brutality for a long time. It takes a man of courage to stand up in that area and denounce terrorism in the way that he has. At the same time, I join with him in his words of sympathy to the families of those who have recently lost their loved ones through savage acts of terrorism. I know that other noble Lords will join me when I say that.
I commend the action of the noble Viscount in presenting his forthright views to the House, whether we agree or disagree with him. He has had the courage to put them on the record in this House. I support fully what he said about the boycotting of another place by the elected representatives of Northern Ireland. They are doing a disservice to all the people of Northern Ireland and to the principles of parliamentary democracy.
The Government should examine urgently every possible way of strengthening the democratic processes and upholding law and order. Some of what we have heard tonight has been a rehearsal of the forthcoming debate in this House on the Bill which is now being debated in another place. I await that occasion with interest. I support the order that is before us.
The Earl of Perth: My Lords, I rise rather unpremeditatedly because of a remark made by the noble Viscount, Lord Brookeborough. He said that the cardinal is an evil man. The noble Baroness, Lady Phillips, queried his use of that adjective. As I understand it, the noble Viscount said that he used the word in a subjective sense. I do not know what that means.
I went to the trouble of looking up the word in the Oxford English Dictionary. I found there that when it is applied to persons it means "morally depraved", "bad", "wicked" or "vicious". I cannot believe that the noble Viscount meant to use the adjective in that sense. It does not help us to achieve what we want, namely, something better in Northern Ireland. I understand his view on many points, but I hope that he will reconsider what he said.
Viscount Brookeborough: My Lords, with the leave of the House, having heard the noble Earl, I shall substitute the word "bad', because it was a very bad thing which was done.
6 p.m.
Lord Lyell: My Lords, your Lordships will agree that we have had a short, useful and interesting debate. As all noble Lords have said, the debate on the order is overshadowed by the Bill which is currently before another place. I have been put on notice that your Lordships will wish to cover a wide range of issues, perhaps even wider than those we have discussed this evening, when the Bill comes before the House. In view of the short and simple order before us, I believe that your Lordships will agree that I should not comment in detail on all the issues which have been raised. I hope that we can profitably and more reasonably discuss some of them when we discuss the Bill.
I should like to deal briefly with some of the general points which have been made by your Lordships. As far as I can, I shall answer the specific points which have been raised, but if I miss any I can assure the House that I shall write as briefly and succinctly as possible to those of your Lordships who raised them.
One general point made by several of your Lordships, especially the noble Lords, Lord Prys-Davies and Lord Fitt, which is central to the Government's approach to the emergency legislation before us is that of securing public confidence in not just the security forces (the main theme of the remarks made by the noble Lord, Lord Fitt) but, above all, in the administration of justice in Northern Ireland. The Government's view is that that is fundamental to the success of security policies in Northern Ireland. We keep under constant review all aspects of the process of criminal justice, especially those procedures which apply to persons suspected or accused of scheduled offences in Northern Ireland. That is the context of the Bill which is in another place and is the background to this order.
I am sure that your Lordships will acknowledge that the Government's current legislative proposals reflect our concern to ensure that any departures from normal procedures are as limited as they can be, always taking into account the background of the continuing terrorist campaign which was spelled out to us this evening by my noble friend Lord Brookeborough. The proposals also reflect our concern that the basic rights of everyone suspected or accused of scheduled offences should be fully protected.
Many points have been raised this evening by your Lordships and perhaps I may begin with those made by the noble Lord, Lord Prys-Davies. He pointed out that the order before us is once again a derogation from the normal procedures. We accept that, and I am sure he accepts that we have derogation from the normal procedures that we should like to see. He knows the background. We renew these orders on a regular basis and are most grateful for what he said and his understanding of why the order is being introduced tonight. We are particularly grateful for the support he expressed—support which I am sure will be shared by your Lordships—for the courage and steadfastness of all the security forces.
The noble Lord, Lord Tordoff, was kind enough to warn us of the weather which has prevented his noble friend Lord Hampton from joining us this evening. We
526
hope that he will be able to join us on a future occasion when the weather will have improved slightly. However, we are very grateful to the noble Lord, Lord Tordoff, for his helpful comments and for the proxy comments of the noble Lord, Lord Hampton, on the reasons why we wish to renew the order again this evening.
I turn now to the trenchant and forthright remarks, as one would expect, from my noble friend Lord Brookeborough. We should all accept, I am sure, the very deep feelings my noble friend expresses when somebody we know well in our community is brutally murdered. He expressed views that I am sure all of us would wish to express in such circumstances. We should have felt such feelings ourselves had we been in the same position. Indeed, my noble friend's remarks stress what I set out in my opening remarks; that terrorism is not just a matter of statistics but of each and every individual tragedy. What has happened shows us what is involved in terrorism, especially in Northern Ireland.
My noble friend went on to make a number of trenchant remarks about the Anglo-Irish Agreement. The main thrust of his speech underlines and reinforces the need the Government feel to develop even closer and more comprehensive cross-Border security co-operation. I believe that he and indeed all your Lordships, including the noble Lords, Lord Blease and Lord Fitt, would accept that this is not a situation we can achieve overnight.
Viscount Brookeborough: My Lords, does my noble friend not think that 16 years is quite a long time for it to start?
Lord Lyell: My Lords, my noble friend made a number of trenchant remarks in referring to the Anglo-Irish Agreement. If he wants to go right back to the elements of 1968 and 1969 I probably can do that, but perhaps not tonight; perhaps on another occasion. We may indeed find one or two interesting things that were said by my noble friend's father—as I recall, my bedside reading in the Cameron Report of 1969. There were some interesting things said there as well as elsewhere. However, I shall not trail herrings of any colour around your Lordships this evening. I hope that my noble friend and indeed all your Lordships will accept that cross-Border security co-operation is not something that can be achieved overnight. However, I stress that we are laying the groundwork and we look forward to securing solid benefits. I reiterate those two words.
I also wish to stress that Mr. Barry, the Foreign Minister of the Republic of Ireland, has expressed the view that the Royal Ulster Constabulary is a force which offers an appropriate career for members of the minority community. I do not think I should go into his expression further, but certainly in normal cases such as this it reflects the varying degrees of Irishness of the young man. I leave it to the noble Lord, Lord Fitt, and to my noble friend as to how they take Mr. Barry's views.
I want to join my noble friend and also the noble Lord, Lord Fitt, in calling on the SDLP to demonstrate equivalent support, whatever form it might take, for

527
the Royal Ulster Constabulary. I have noted many of the comments to which the noble Lord, Lord Fitt referred. I have seen them in the newspapers and heard them through the media, and they strike a rather harsh chord with me and perhaps also with many other Members of your Lordships' House.
I regret that my noble friend Lord Brookeborough feels that my ministerial colleagues and I do not give the support he believes the Royal Ulster Constabulary deserves. I certainly reject that because we really do everything we possibly can to support that body. However, I think that if I were in my noble friend's position, having attended a funeral yesterday in sad circumstances, I should express the same feelings. But I stress to him that we give our utmost, total support to the brave men and women of the Royal Ulster Constabulary.
My noble friend's view of the Anglo-Irish Agreement is well known. I cannot say that I go along with his attitude, which I think is needlessly negative. I hope he will at least accept that the Government remain ready and willing—indeed keen—to listen to and take account of the views of the Unionist community. I think it is a matter of profound regret that with only one or two very brave exceptions (and I include of course my noble friend here) the entire bulk of the political representatives of the Unionist community—I will not delve into the varying strands of Unionism—have completely withdrawn from normal political debate. I shall say fairly mildly that we hope they will return.
My noble friend's comments on the Anglo-Irish Agreement would go further. I stress to him that the Government entered into the agreement because we firmly believe that it is in the long-term best interests of all the people of Northern Ireland. I hope we shall all be spared until the next century to see whether the predictions of the noble Lord, Lord Fitt, come true. He has had notable success with his predictions in other fields and I might take a modest wager with him, but perhaps not tonight. I stress that the agreement does not adversely affect any basic Unionist interest: I stress that once again. Certainly we believe that it will facilitate progress towards devolution on a basis of widespread agreement in Northern Ireland as part of the United Kingdom. I hope that my noble friend will take that as read.
He was also somewhat critical of the abilities and the equipment of the Garda. I would not want to let that pass without stating my confidence in the will of the guards and of the Irish Government to play a full part in the eradication of terrorism. This may well involve changes in the structure and equipment of security forces in the Republic; but certainly my noble friend and your Lordships have the Government's assurance that we shall continue to keep up the pressure on this aspect.
My noble friend suggested that the Anglo-Irish Agreement was something of a monolith, and was at a halt. I stress to him—and I hope he will pass on the message to every one of his friends and every Unionist in Northern Ireland—that the offer of talks made by my right honourable friend the Prime Minister on the 25th February last year still stands. The Government
528
are indeed prepared to operate the agreement sensitively in the context of talks about devolution. I hope that my noble friend will take that on board.
He made one other comment which I noted with interest. I think he was referring to the Anglo-Irish Agreement, and he said, "What we have seen we do not like". I hope that I have quoted him correctly. If I have not, I apologise. However, we can check in the Official Report tomorrow. Those words might be understood slightly differently in Scotland, England and Wales. It is a matter of profound regret I believe to all of us that political expression in Northern Ireland about the Anglo-Irish Agreement has taken the tone that it has and that we are not able to discuss this agreement either in your Lordships' House in reasonable tones or in another place. I stress again, I hope my noble friend will take this on board, that the offer given by my right honourable friend on 25th February of last year still stands.
We cannot be responsible for anything that is said by the Taoiseach or the Republic's Government. I hope that my noble friend will beware of commenting on judicial decisions. I was always taught when I was young to respect the decision of the referee on the sporting field. I believe that it is very valuable advice that we should not cast aspersions, whether or not we agree with judicial decisions, especially if they affect matters in Northern Ireland.
My noble friend also commented on one or two aspects of secure radio. He commented about fit young men carrying out surveillance south of the Border. I shall leave his comments because this Government simply cannot answer for the Government of the Republic.
The noble Lord, Lord Fitt, made a notable contribution to our debate this evening. I enjoyed his remarks about impartiality. Doubtless he reads, as I do, that notable organ, the newspaper in County Fermanagh the Impartial Reporter. My noble friend Lord Brookeborough often appears on the pages there. But I believe that nobody would wish to cast aspersions on that excellent newspaper. It is indeed a paragon of impartiality in Northern Ireland. It is to my mind and to that of many noble Lords a source of interest and no little amusement.
All of us noted the reservations of the noble Lord, Lord Fitt, with regard to the Anglo-Irish Agreement. Indeed, we noted the crucial element of the agreement that he sought; that was acceptance by the minority community of the Royal Ulster Constabulary. However, the most valuable point that the noble Lord made was that the minority community who live away from what he termed nationalist areas depend upon the Royal Ulster Constabulary for their protection, for impartial policing. I go much further than that. Every one of us in Northern Ireland depends upon the Royal Ulster Constabulary. We are immensely grateful for all their tremendous efforts.
The noble Lord also referred to the two cases with which your Lordships will be familiar, one of which was the Maguire case. I hope that he will not expect me to comment on them this evening. He knows the usual procedures with my right honourable friend the Secretary of State for the Home Office, who is

529
considering the points raised by the noble Lord both here and through other channels.
The noble Lord raised one point about what we tend to call the Diplock courts. Perhaps I may try briefly to cover that point for him. The noble Lord and your Lordships will be aware of the subject of scheduled offences in Northern Ireland. The Government are certainly not at present persuaded that the establishment of three-judge courts for the trial of scheduled offences would offer any particular advantages over the present arrangements. There are a number of reasons for this. I could set them out and give the varying numbers of statistics, but I hope your Lordships will accept that we can leave this matter until another day.
We agree with the noble Lord, Lord Fitt. We are disappointed with the attitude of the SDLP to members of the Roman Catholic Church joining the RUC. We would wish to support them very greatly if they wish to join.
The noble Lord, Lord Hylton, raised a number of points. I believe that one dealt with the transfer of prisoners to Northern Ireland. I see that he nods in assent. Whenever someone is convicted and is to serve a sentence the presumption in law is that that prisoner will serve his sentence in the jurisdiction in which the sentence was imposed. The transfer of prisoners from Great Britain to Northern Ireland is by law a matter for my right honourable friend the Home Secretary or for my right honourable friend the Secretary of State for Scotland.
Although it is the practice—and I use that word advisedly—for the authorities in the receiving country (that is the country where the prisoner may have expressed a wish to spend his sentence) to be consulted before any transfer is made, I stress that all applications for transfer are considered on their merits against the background of the policy criteria. If a prisoner, regardless of the nature of his offence, had incicated by his behaviour, and above all by his attitude, while in prison in Great Britain that he could not be relied upon—and I stress that—subsequent to his transfer to co-operate in the normal prison regime, it would be unlikely that his request for transfer would be granted. I think that your Lordships would accept and understand perfectly well why that might or might not be so.
The noble Lord, also referred to the Amnesty International report. He mentioned that a number of letters had been written. I am able to tell him that Amnesty also wrote to me. Arrangements are being made to give an adequate reply to Amnesty and to the organisations that wrote to us. I am able to tell the noble Lord that the Government take such allegations very seriously. We look forward to the resolution of the cases which are currently being investigated by Mr. Sampson of the West Yorkshire Police. My right honourable friend the Secretary of State for Northern Ireland will make a statement on the public interest aspects of this report at the earliest possible moment. However, the mechanics of the petition which is currently being promoted by the different strands of unionism in Northern Ireland is a matter for them, as I am sure the noble Lord will accept.
530
We are very grateful to the noble Lord, Lord Blease, for his comments and for the intervention—I hesitate to say erudite intervention—of the noble Earl, Lord Perth, who took my noble friend to task on one or two of the words which had been used about the Cardinal. Your Lordships will understand that I do not wish to enter the discussion on definitions; I do not have a dictionary with me. But we are grateful for the interest shown by the noble Earl.
I hope that I have covered all the important points raised by noble Lords who have spoken in this evening's debate. If there are any that I have missed I assure your Lordships that we shall write to you as briefly as possible. I look forward to having a full debate on our legislative proposals in due course. Pending consideration by your Lordships of the Bill which is currently before another place, I recommend that we approve the order before us to allow the 1978 Act to continue in force.
On Question, Motion agreed to.

Animals (Scotland) Bill [H.L.]
6.19 p.m.
The Earl of Selkirk: My Lords, I beg to move that the Animals (Scotland) Bill be now read a second time.
The task of the Scottish Law Commission is to keep the law in good repair. That is precisely what they are seeking to do in this Bill. They have come to the conclusion that there are problems of law involving animals which increasingly highlight the defects in the existing system. This is perhaps not altogether surprising because most of the rules and institutional writings go back to the 17th century. Indeed, some of the information on this matter goes back much further. We can see that Gaius, the great Roman jurist, said that if anyone was damaged by an animal he was entitled at least to compensation for loss of employment and for medical attention. Therefore, this is an old problem to which there has not yet been a simple answer.
Accordingly, the Law Commission had very wide consultations in Scotland because this is a matter which affects a great many people in a great many different circumstances. They have consulted some 70 organisations and individuals the length and breadth of the country. After long and very careful examination of the replies which they received, they drew up the present Bill and I think we should express our gratitude for the trouble which they have taken in so doing.
I am particularly glad to be informed that the Bill is welcomed by the National Farmers' Union and is wholeheartedly supported by the Law Society of Scotland which is introducing a new principle which I shall endeavour to explain. First, this is purely a Bill of law and not one of those administrative organisational Bills with which we have been so busily occupied in this House in recent times.
This Bill involves a new principle, but it leaves intact the law of negligence. In other words, action can still be taken where some fault can be proved. I suspect that that action will probably remain a more popular avenue for legal action than others. It also leaves

531
unaffected the current law of nuisance, dealing with such things as noise, smell, etc.
That was not regarded as sufficient by the Law Commission. The particular problem which has arisen is the interpretation of the word "scienter" which simple means "knowledge", so far as I know. The origin of this word is not statutory and I do not know from where it started. It appears to have drifted from the common law of England into the common law of Scotland. However, it has led to a very rich variety of interpretations. Perhaps I may explain it in a few sentences. To use the words of Stair, where an animal, not a species, is considered to be pernicious or outrageous, or at least is known to be pernicious or outrageous, and that in fact is known by the owner or keeper, then an action will lie.
It is not easy to know whether the owner knows how pernicious his animal is. There are many ways of learning that either by hearsay or by some other way, and it has created a good deal of uncertainty. The Law Commission have tried to find a new principle on which to act. I think that it is in the tradition of Scots law that we prefer to have principles from which we deduce that application in detail rather than as in England where often one starts with inducing principles from detailed application. Be that as it may, that is the endeavour of the Scottish Law Commission.
They have sought to establish the principle that if a species of animal is known by its natural physical attributes and its habits to be likely or capable of injuring severely persons or animals, then that is a serious risk and it must be subject to strict liability. I shall refer to those animals in a moment.
The second category, dealing with cattle of all kinds, including deer, is not liable for damaging persons but it is liable for damaging property or the produce of land, crops, grass, etc. It concerns the natural quality of cattle, and it is what they will do if they are allowed to stray. This is largely what theWinter Herding Act of 1680 did, but it puts it rather more strictly.
The animals listed as causing serious risk are shown in the appendix to the Dangerous Wild Animals Act of 1976. Strictly speaking, it mostly concerns animals outside this country, but the Bill adds the word "dogs". Dogs are included among those animals which constitute a serious risk. The reason is that the report which the Law Commission received made it clear that in many cases dogs were the cause of anxiety, and in certain cases the cause of worrying sheep, if not more than that.
Therefore, the two categories which we support are first, the danger to animals and persons which are categorised as serious risk, and secondly, the danger to crops by the straying of animals. The deduction which the Law Commission makes on this is that the significance of the word "scienter" should disappear completely from Scots law. I believe that that is a great advantage.
There are limited defences which can be made to the application of strict liability. First, there is contributory negligence where damage is wholly the fault of the person who sustained damage or injury. That appears in Clause 2. Secondly, there is the case where the risk is voluntarily accepted: the principle of
532
volenti non fit injuria. Thirdly, there is the trespasser or, as it appears in the Bill (because "trespasser" is a rather difficult word) the person not authorised or entitled to be on the land.
I think that that should not be interpreted too sharply because there are many people who are entitled to approach houses, particularly postmen who very often complain of being bitten. However, there are many other people who may be visiting or carrying on business and who are entitled to do so. Those principles are also contained in Clause 2.
That broadly is the new principle introduced by the Bill: strict liability for animals which are not restrained and who are fulfilling what is to them a natural task. That is to say, they are grazing on land or young trees when away from their own enclosures.
There are two further points which I should like to mention. First, the circumstances in which a keeper of a herd, whether of sheep or cattle, would be entitled to shoot the aggressor, particularly a dog. It is made quite clear in the Bill that that action can only be taken when it is the only way in which the sheep can be protected, and it can only be done by the keeper of the sheep. It cannot be punitive: the dog, if he has left the herd, cannot be followed and shot for a punitive purpose. Such action can only be taken when it is an essential and effective way of protecting the sheep. If a dog is killed it will be necessary for the police to be informed within 48 hours, and it cannot be done by anyone engaged in a criminal activity.
The second point deals with animal strays, and that appears in Clause 3. The occupier of the land may retain any straying animal in order to prevent it doing any damage or indeed injuring any thing. He would be liable to look after it. This is also dealt with in the Civic Government (Scotland) Act 1982.
Those are the main purposes of the Bill. It is quite a short one and has only nine clauses in it. The Bill is intended to clarify the responsibility both to the individuals who hold animals and also to enable the courts to understand where responsibility lies. It tightens slightly the liability of animal owners, which is probably correct. It will make it easier for all to understand more clearly what their responsibilities are and what their liabilities may be. I beg to move.
Moved, That the Bill be now read a second time.—(The Earl of Selkirk.)
6.31 p.m.
Lord Houghton of Sowerby: My Lords, perhaps I should ask for the indulgence of your Lordships' House as an Englishman who dares to intrude in a debate on a Scottish Bill. It is something that few English Members of Parliament dared to do in another place. With time limited for debate, it was probably thought that an Englishman should not take Dart when Scottish Members wanted to speak to their constituents. For that reason, we had to keep out of Scottish debates. But, I may add, the Scots always wanted a three-line whip on a Scottish day.They wanted the support of the whole House if they could get it on those occasions.
I have a Scottish connection. I do not think that I need to present myself to your Lordships' House as a newcomer which would require me to state my qualifications for being here. I am president of the St.

533
Andrew's Animal Trust in Edinburgh, chairman of the Committee for the Reform of Animal Experimentation, which is based in Edinburgh, I am also vice-president of the Habitat organisation and I call myself a friend of the Highlands of Scotland. I dealt with teachers' pay in Scotland in 1974, and no Englishman has done that before or since.
For many years, I looked after the interests of the tax gatherers of Scotland in conjunction with those of England and Northern Ireland. The difference was that on 1st January every year taxpayers in Scotland queued up outside the collector's office to pay their dues promptly and get out of debt while many collectors in Northern Ireland, on receiving their duplicates of assessment, copied the charges directly into the schedule of default on the ground that to send out demand notes would be a waste of time. I have studied the psychology of tax gathering both in Scotland and Northern Ireland.
Naturally, anything that talks about animals excites my interest, and I can be forgiven for thinking that an Animals (Scotland) Bill had something to do with the protection of animals in Scotland. I discover that it is a Bill for the protection of human beings in Scotland, their interests and compensation, and that it deals with the relations between human beings and animals. That was also the case in respect of the English Animals Act 1971 which contains quite a number of provisions which are reflected in some of the clauses of this Bill.
I am not a stickler for uniformity by any means. But there is a good deal to be said for keeping many of the laws of England and Wales on the one hand, and Scotland on the other, as much in harmony as possible. When in government, I was always intrigued as to what it was that justified having a Scottish Bill. Was it because something was so separate, so distinctive and in some respects so unique that it required a separate measure, or was it just the sentiment and tradition of nationalism? There was a mixture of both. But the Secretary of State for Scotland wanted a Scottish Bill whenever he felt it could be justified if only to maintain the distinction between the two countries.
As a member of the Royal Commission on the constitution, I was the most ardent Scottish nationalist of all. I was extremely disappointed when the Scots did not turn out in sufficient numbers to gain their own Parliament. Their own legislature would have been a very suitable place to deal with Bills relating to Scotland. But that was not to be, and I do not know when it will happen.
Dealing with the comparatively small points which I wish to raise, I know that this Bill does not slavishly copy what is in the Act of 1971 applicable to England. But there is one matter that I cannot link up between the English Act of 1971 and this Bill. That relates to animals straying on the highway.
I represented a constituency in the West Riding of Yorkshire where problems arose on the use of land for grazing. I am sure such problems are reproduced in Scotland many times over; namely, the damage caused to animals straying off the moors on to the highway and becoming involved in road accidents which may lead to very serious damage and injuries to
534
motorists. Section 8 of the Animals Act 1971 provides in the case of common land, or land which is situated in an area where fencing is not customary, or land which has a town or village green on it that the owner of the animals has the right to place the animals on that land. He is exempt from any claim for compensation for injury by a person who sustains damage on the road by collision with an animal.
I do not see that aspect reproduced in this Bill, nor am I aware of where it may be found in Scottish law. The Roads (Scotland) Act 1984 deals with some part of this problem in Section 98. It does not seem to deal with the question of actions for compensation. The Act provides for what a person who finds an animal straying on the road may do. This could be an important point, and I apologise if it is somewhere that neither I nor my Scottish connections have been able to discover.
Section 9 of the 1971 Act deals with the killing or injuring of dogs which are worrying livestock. This point does not seem to be dealt with in this Bill in the form in which it is covered in the English Bill.
The noble Earl, whom I am glad to follow on any matter, including this one, referred to the slightly different classification of dogs in Scotland compared to their descriptions in England—perhaps because the Scots regard dogs as dogs whereas in England they are very frequently regarded as pets, as the head of the household or something higher than most human beings for loyalty, affection and devotion and coming as near to the angels as anything can. It may be that. I apologise for not having let the Lord Advocate know of those two points, but I hope that he can clear them up for me because I think it is desirable to have these matters dealt with in as much agreement as possible between the two countries.
I never cease to marvel at the philosophy of the ownership of animals. Apparently every animal must have an owner. If it does not have an owner it is in the wild, stirring up emotions in the human breast about wild and dangerous animals. We do not talk about dangerous human beings in any kind of classification. We used to own slaves, we used to own human beings. That has gone long ago, though human beings were treated at one time, if they were the right colour, very much as animals are treated today. When we talk of bad housing conditions we say, "It is not fit for an animal". This human attitude towards animals is a philosophy well worth studying and one day I should like to be able to say much more about it. We have transferred some of the most evil things about human beings into animals, We say that people are as sly as foxes, as evil as snakes, as detestable as toads, and so on. We speak of people as leopards, bulls, cows, and so on. It is most interesting how we have found something in the animal world to which we can relate some of the most detestable aspects of human nature. That I think is one great slander on the animal kingdom. But I digress; I apologise.
I think I have discharged my duty to Scotland, slender though it may be, in those few remarks. I hope that the Lord Advocate will be able to satisfy those who are watching me closely to see whether I have vindicated the confidence placed in me to see whether the law of England and of Scotland in these two important respects is as close together as it ought to be.
6.44 p.m.
Lord Mackie of Benshie: My Lords, I am grateful to the noble Earl for explaining the legal purpose behind the Bill, which I must say I did not quite understand before he spoke. I understand now a few of the implications, particularly for agriculture. In agriculture we care for the animals as well as the pet lovers of England. We like to see the law able to protect animals as well as humans. We do not always speak badly of animals. We talk about being as brave as a lion. The noble Lord must agree that that is a complimentary expression.
I must also, if I may—greatly daring—correct the noble Lord, Lord Houghton, in that Clause 1 deals with animals on the road. Clause 1(5) states:
"Subsection (1) above shall not apply to injury or damage caused by the mere fact that an animal is present on a road or in any other place."
As Scotland has an enormous number of open roads where sheep may stray, that would be a protection to the owners of sheep if they were sued. But I do not see anything enabling them to sue people who kill those sheep in enormous numbers. I wonder whether there is any legal protection.
This is a personal case in that one of my men was killed in a road accident involving a Labrador dog which ran right across the road. In swerving to avoid it, he had an accident and was killed. It appears to me that the liability for keeping that dog under control should have some purpose in that the owner should to a degree perhaps have been held responsible. I know it is difficult, but keeping an animal such as a dog under control in cases involving road accidents is quite different from the problem of open roads in the Highlands. There, sheep do not dash on to the road, but they are there and people know that they are liable to see sheep. In fact, warnings are put up.
I wonder whether there is any protection in the exceptions in the case of dangerous animals. In certain cases one must reckon that a bull can be dangerous. I know the old definition about the ox that was known to push, but if a bull is disturbed by trespassers or innocent ramblers who do not know the form or if it is with a herd of cows it can be annoyed and think that it is defending its territory in cases where people are deliberately trespassing or do not really know what they are about. There are a great number of them.
The other point on which I should like clarification is what happens when somebody leaves gates open and a bull escapes from a field which may be placarded with warnings that people should not go in. It happens frequently. A bull can do damage not only by being aggressive but by being amorous. If a bull gets into a field of pedigree heifers of another breed it can do immense damage. I wonder whether the law makes any provision on that. I am sure the Lord Advocate has this matter at his fingertips and will be able to enlighten me about it.
It is very important that farmers in tourist areas can have some protection against interference in their affairs by other people. It is difficult. I know that a burglar cannot claim any damages if he is attacked by a dog when he is committing a criminal act, but what happens when people come to a door where there is a dog and it does not understand why they are there? I
536
know that with postmen it is different. The poor postman has to put up with a lot. A dog may be highly suspicious of people who come along. Is the owner still liable? I wonder what category tame deer—that is, deer kept like domestic animals—would come into, because a field of domestic stags can be very dangerous indeed. I should be glad if the noble and learned Lord the Lord Advocate could enlighten me on that.
On the question of controlling dogs which do enormous damage, I was very glad to see the definition in Clause 4(4) (b) (ii) about an animal which has been attacking a person or livestock and has not left the vicinity. It is very difficult to define that. I know that many people have been subjected to tremendous loss by dogs which get into a flock of pregnant ewes and harry them, so that they have a tremendous number of abortions. I assume that if a farmer finds a dog on the farm it will be regarded as being in the vicinity.
Up until now, a farmer has been at grave risk if he tried to tackle a dog which he knew would come back to harry or, in many cases, to attack and kill sheep. Perhaps there could be a little more explanation of exactly when he can protect himself if there is a dog which he strongly suspects or knows is responsible for damage. Those are practical points which particularly affect farmers in the Highlands and I should be happy to have an answer to some of the queries that I have raised.
6.51 p.m.
Lord Morton of Shuna: My Lords, I am very happy to leave to the noble and learned Lord the Lord Advocate the questions on law that appear to have been directed at him. This Bill is yet another occasion to pay tribute to the work of the Scottish Law Commission, which as usual has done very careful work and in my opinion has brought forward a Bill which will do a great deal to clarify the law in relation to this part of the activities of animals.
The noble Earl, Lord Selkirk, is to be congratulated on bringing this Bill forward. He referred to the Roman law. He could have gone further back. The Old Testament has certain aspects which have been quoted within the past 20 years in Scottish courts. It is an advantage to get rid of the Winter Herding Act 1686, the language of which is not understood totally by every resident of Scotland. The liability is now relatively clear and the disappearance of the necessity to prove knowledge on the part of the keeper of the animal that the animal was dangerous will make it much easier for the person who goes to a house that has a dangerous dog—whether he be a postman or whatever—to have some hope of recovering if he is bitten.
If I may with some hesitation deal with the points of my noble friend Lord Houghton, it appears to me as a Scottish lawyer that the difference in approach in the highways provision is the classic difference between the approach of the English legal system and the approach of the Scottish legal system. The Scottish legal system does not define with which particular area it is going to deal but prefers to act on principle. I suggest that the comparative provisions in Section 9 of the Animals Act 1971 are to be found in Clause 4 of this Bill. But the difficulties raised by the noble Lord, Lord Mackie of Benshie, will always remain.

537
As regards animals killed on roads, I should have thought the difficulty was not a question of the negligent driver but of the identification of the negligent driver. That applies also to the difficulty of people who leave gates open. It is a question of identification and finding somebody worth suing. In general, I welcome this Bill and wish it an easy passage.
6.55 p.m.
Lord Cameron of Lochbroom: My Lords, I am pleased on behalf of the Government to have an opportunity to declare the Government's support for this Bill. My noble friend has indicated in his very clear introduction to the Bill the purpose of it as simplifying and clarifying the existing law on civil liability in relation to animals in Scotland. Indeed, he has made it clear that the Bill is not intended to make any changes in the existing law of negligence, or indeed of nuisance.
At this point, I say in response to the questions of the noble Lord, Lord Mackie of Benshie—I feel rather like a student before a board of examiners this evening—that, in relation to, for instance, a dog causing a road accident, the case would be judged by the ordinary law of negligence if the owner of the dog could be traced and if it could be shown that in some way he had been in breach of a duty of care which any reasonable dog owner would have carried out. Similarly, with the noble Lord's amorous bull, or it may be an amorous dove, in those circumstances it would be a matter of fixing responsibility according to the rules of the law of negligence. As my noble friend made clear, the main object of the Bill is to replace the present rules of strict liability for injury or damage caused by animals with the new single principle of strict liability.
The noble Lord, Lord Houghton, raised an interesting point about separate legislation for Scotland, and to some extent he was answered by his noble friend Lord Morton of Shuna. In its report about this matter, the Scottish Law Commission deals with this issue in paragraph 1.10 and makes specific reference to the Animals Act 1971. It may be helpful to the House if I read out the last sentence of that paragraph which states:
"In fact as we mentioned, and as subsequent discussion will make clear, our view of this issue is that simply importing the Animals Act 1971 would not be satisfactory",
and the issue was what reform should he adopted in Scotland.
I think I can assure the noble Lord that the example of the Animals Act was indeed before the Law Commission, but it felt that it was dealing with a reform in a Scottish context which should be provided with a distinct Scottish response, based upon the principles of law as they have been understood there and which, I should add, are protected by the Treaty of Union.
Noble Lords have already gauged that the present law is separately dealt with in two separate statutes. The first is the old Winter Herding Act 1686, which, as the noble Lord, Lord Morton, pointed out, is very difficult to understand because of its archaic structure and language. Indeed, some of the language has recently been found to be incomprehensible by courts which have had the problem of trying to construe it.
538
Furthermore, because of that its application is obscure in many instances and it is not clear what defences are available. Secondly, the Dogs Acts of 1906 to 1928 provide for compensation where dogs worry livestock or poultry. Although of more recent origin, this legislation also fails to make clear which defences are available and there are also problems concerning the definition of poultry in those Acts. Finally, there is the matter to which my noble friend referred—the scienter rule which is of very ancient derivation and was probably imported through Roman law into the common law of Scotland. It has been broadened in a way which makes it subject to many exceptions, and it is very complicated and difficult to apply in practice.
The problems are amply set out in the Scottish Law Commission Report. I should not wish to detail them today. However, it was apparent from the detailed and comprehensive study of the Scottish Law Commission regarding these three separate sources of the rules of strict liability that reform of the law was necessary, at least for the purpose of making the law more simple and clear. Consultations which were based upon the commission's provisional proposals for reform showed a consensus in favour of retaining strict liability in relation to certain recognised high-risk animals.
The manner in which the Law Commission dealt with high-risk animals has been expatiated upon by my noble friend in his opening remarks. The Government are satisfied that that manner is entirely appropriate and based upon the fullest consultation. The Bill will of course allow for flexible extension of the rule of strict liability by the courts to other animals. Therefore, to that extent it has an advantage over the present state of the law.
Perhaps at this stage I may deal with certain other points which noble Lords have raised. The noble Lord, Lord Houghton, asked about the question of animals on roads. I confirm entirely what the noble Lord, Lord Mackie, said in response to that. I think that the point is comprehensively dealt with in subsection (5) of Clause 1, bearing in mind that this is a reform of the law in relation to actions of damages. The noble Lord also asked about dogs worrying sheep. Again I would simply confirm the response of the noble Lord, Lord Morton, which is to be found in Clause 4 of this Bill.
The noble Lord, Lord Mackie, asked me questions concerning certain further points apart from those to which I have already responded. He asked about the instance of a dog attacking a visitor to a house and whether the owner was liable for any injury. The answer to that is yes. The Bill deems dogs to be liable to attack persons in terms of Clause 1(3)(a). There was again the question of dogs worrying flocks or herds and causing abortions. The response would be the same in that case. I believe that the noble Lord will understand that the real problem is the one to which the noble Lord. Lord Morton, referred, and that is a question of identification. However, Clause 7 of the Bill provides that the definition of injury should include both abortion and loss of produce. I think that is a clear indication that the ground of damage would be one which could be established by reference to the Bill if the owner was identified.
The question of straying animals and the leaving open of gates was raised by the noble Lord as well. It

539
may well be that the keeper or owner of the animal might have a claim against the third party who left the gate open under the normal rules of the law of negligence. However, I think he will fully understand that the most difficult matter is to identify the person who has been responsible for leaving the gate open.
Lord Mackie of Benshie: My Lords, my question was this: If it could be proved that some person unknown had opened the gate, would the owner still be liable for the damage done?
Lord Cameron of Lochbroom: My Lords, I should not wish to give more than my personal opinion, which is not to be regarded as a legal opinion. My recollection of the ordinary rules of negligence is that if the gate was amply secured and plainly intended to be kept closed, and if the owner could establish that it was not he who had opened the gate, he could not be said to be in breach of a duty of care and therefore could not be liable. However, I hesitate in that I am giving an opinion off the cuff and I am no longer in private practice.
The last point put to me by the noble Lord, Lord Mackie, was the question of a person who suffers injury and who is not a burglar. In response to that, perhaps I may say that the terms of Clause 2(1)(c)(i) may be the answer: If a person is expressly or impliedly authorised to be present, then the defence of trespass cannot be involved to avoid strict liability on the owner's part.
I hope that I have dealt with the questions which your Lordships have raised. The debate serves to illustrate that this is a Bill which will perform a most useful service in clarifying and simplifying an area of law in which there are considerable difficulties and ambiguities. The approach adopted in the Bill is likely to ensure reasonable certainty by imposing strict liability only where consultations have shown that a public consensus exists and where most cases of serious damage or injury caused by animals occur. The Bill leaves it to the courts to decide on extension of strict liability to other species on a case by case basis; and it leaves unaffected the general remedy of proof of negligence for other cases.
The Bill is based upon the draft which was attached to the report of the Scottish Law Commission. I think that the care with which it has been prepared is reflected if one looks at the definition of the word "animal" in Clause 7, which is specifically declared not to include viruses, bacteria, algae, fungi or protozoa. As a townsman, I should have liked to ask my noble friend whether he could help me with a name appearing in Clause 1(3)(b) of the Bill. That relates to animals in the course of foraging and it includes reference to "hinnies".
I therefore commend the report of the Law Commission to your Lordships as providing a very useful introduction to this area of law and also as a clear and persuasive argument for the need for reform; and I also commend this Bill. It will, however, leave the legal problem of the gate crashing, stair climbing, floor bursting, tap turning cow which emerged in Inverness in 1955 to be solved in certain circumstances under the ordinary law. But my own
540
reading of the commission's recommendations, and, indeed, my noble friend's clear advocacy of the Bill, compel me to commend the Bill to your Lordships.
7.10 p.m.
The Earl of Selkirk: My Lords, I should like to thank my noble and learned friend very much for supporting the Bill on behalf of the Scottish Office and for answering so far as I can see practically all the questions of any major consequence that have been raised. I should like just to emphasise a point that has already been made. The law of negligence remains. This is quite clearly what would apply on roads where strict liability does not apply. If one put strict liability on the open roads in Scotland, they would have to be fenced. That is absolutely impossible. It would be wrong to impose strict liability on unfenced ground. If you could identify the person on the road, which is extremely improbable, and if he were drunk, reckless or deliberately trying to kill sheep, he would quite clearly be liable.
The noble Lord, Lord Mackie, raised the question of deer. He appeared to have some very wild stags in a field. This is a new one to me and I must admit that I had not thought about it. Let me say straight away that it obviously falls into Clause 1(1)(b). The animal has physical attributes, apparently, and habits likely to injure people. It need not be in the strict list; it falls into that category automatically. If these animals were open to the public they would clearly make the owner liable.
The noble Lord mentioned the difficult question of bulls, about which I am sure he knows far more than I do. I am given to understand that by and large the anxiety of the public about bulls is probably rather exaggerated. Only a few breeds of bull are likely to be dangerous. I refer to the Ayrshires and Friesians, and these are known by the farmers. It is up to them to take precautions. I do not know that they should be added to the list. The farmers know that these are dangerous. They certainly have the physical attributes though not very often, but sometimes, the habits which make them likely to injure people. They would then quite likely fall under Clause 1(1) (b). I wonder whether it is necessary to make any special provision in the Bill.
Perhaps I may say to my noble friend Lord Houghton that we always welcome Englishmen who take the trouble to talk about Scotland. What we object to is when they completely ignore it. He asked: "Why should Scotland have a separate law?" The answer is that this comes under the terms of the Union. The law, the Church and the banks are what we retain. It is true that we do not have much of the banks now but we still retain something of the Church. That is the simple answer and I think one would find some cases of Scots law rather difficult to try in English courts.
The noble Lord raised the question of the highways. I think we have dealt with that point. It is true that we can, if necessary, add to the list of dangerous animals under Clause 1(1) (b). I would say that the Bill gives help to animals in the sense that their position is clear. The Bill makes their owner or keeper responsible for what happens.
One important and serious matter is sheep worrying. I do not think it is right to say that you can

541
go around shooting dogs whenever you feel inclined to do so. That would be totally wrong. If a dog worries a sheep and the only way to protect the sheep is to shoot that dog, that is fair and proper. But where dogs are liable to come back surely the answer is to go to the owner, which would not be too difficult in most Highland areas, and say, "Look here, you've got to keep this dog properly under control or I will shoot it next time I see it". That is the proper conduct, but to open wider the right to shoot dogs would be quite wrong.
I think I have answered most of the questions. I beg to move that the Bill be read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at sixteen minutes past seven o'clock.