Lords Sitting of 1 February 1988

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

NHS: Hip Replacement Operations
Viscount Hanworth: 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 are taking action to reduce the delays for hip replacement operations on the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale): My Lords, increasing the number of hip replacement operations is one of the National Health Service's priorities. The waiting list fund for 1987–88 is allowing several thousand more of these operations to be done.
Viscount Hanworth: My Lords, I thank the Minister for his Answer. Is he aware that, for example, in Guildford there is a two-and-a-half year waiting list for hip operations, and that many people suffer acute pain night and day and are taking increasing amounts of drugs? Will the Minister consider whether it is possible to make it easier for people to transfer to a waiting list in another area where there is less delay?
Lord Skelmersdale: My Lords, the noble Viscount was good enough to inform me earlier about the length of delay for this specialty in the Guildford area, which is considerably worse than the last year for which I have figures regarding the time between people being seen and diagnosed as needing a hip replacement and their admission for treatment. The average in 1985 was 21 weeks in England. I regret that I do not have more up-to-date figures.
Where individual patients go for various operations is entirely in the hands of the general practitioner who refers them to the consultant. My right honourable friend's objective is that general practitioners should have better information as to the lengths of waiting lists in local hospitals for various specialties.
Lord Mellish: My Lords, I speak as one who was chairman of a hospital management committee for 14 years. In the 1950s, I had never heard of this operation. Will the Minister tell us, as a matter of interest, when this operation started? It is a truly remarkable operation and shows the advance of medical technology.
Lord Skelmersdale: My Lords, I do not have the facts in front of me. But, judging from memory, my father considered having the operation in the early 1960s and was told that he would have to wait at least until the late 1960s before he would be able to have it.
Lord Campbell of Croy: My Lords, is my noble friend aware that I tabled a Question on that very point within the last year or two? The Answer indicated that there were very few, if any, such operations 30 years ago. Is my noble friend also aware that we all owe a debt to Professor Sir John Charnley, who started those operations in Wigan?
Lord Skelmersdale: My Lords, I agree with my noble friend. I seem to remember that the professor also operated at Haslemere Hospital.
Lord Hunter of Newington: My Lords, are the Government prepared to make funds available so that people who, except for financial reasons could go to another area, would be able to have their operation there?
Lord Skelmersdale: My Lords, that is certainly one of the points at which we shall need to look. But, returning to hip operations, the objective is that by 1990 there will be 1,050 such operations carried out per million of the population. We intend that some 48,000 will take place each year by that time. It looks as though we are on stream towards achieving that aim.
Lord Nugent of Guildford: My Lords, I also take an interest in the position at the Guildford hospitals. A patient in whom I was interested was operated on for a hip replacement within six weeks of my making an inquiry on her behalf. Is the Minister aware that as a result of my inquiry she was transferred from one consultant to another whose waiting list was years shorter than that of the first one? Does the Minister know that there is a great deal of variation in this picture? We too often hear of bad cases; there are also good cases.
Lord Skelmersdale: My Lords, I was not aware of the case just referred to by my noble friend. As I said, the figure of 21 weeks in England in 1985 was an average figure. It is vital that general practitioners have the information so that we can have an average waiting list for the various specialties across the country.
Lord Bottomley: My Lords, is the Minister aware that the problem is not confined to Guildford? It is pretty general. Can the noble Lord give some assurance that something will be done to ease the situation? The number of hip operations which need to be performed is getting greater and greater, not less.
Lord Skelmersdale: My Lords, yes. That is why, first of all, hip operations are one of the series of operations which are countenanced for extra funds under the waiting list initiative. Secondly, that is why

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I said that by 1990 we intended that 1,050 operations per 1 million of the population would be carried out.
Lord Ennals: My Lords, would the Minister agree that it should not depend upon the generous intervention of a noble Lord to ensure that someone gets his operation instead of having to wait for three years? Is it not the case that in very many areas and districts right now the length of the waiting list for this operation is increasing? Does he not agree with Dr. John Havard, Secretary of the BMA, yesterday, that the National Health Service is being systematically starved of the resources it needs? Is the noble Lord aware that there was a similar statement this morning by Mr. Trevor Clay, the General Secretary of the Royal College of Nursing? Is this not mainly an issue of finance and staff?
Lord Skelmersdale: My Lords, not so far as concerns orthopaedics. An additional nine posts will be implemented by the end of the current financial year; a further six by the end of 1988–89; one post the following year; and one by 1991–92. That gives an additional 17 posts.
Baroness Seear: My Lords, did I understand the Minister to say in reply to the noble Viscount, Lord Hanworth, that where the patient was treated was a matter for a general practitioner? Did he mean that that was regardless of the patient's health authority? Is it possible to move people from one authority to another at the wish of the general practitioner? That is what I understood from the Minister's reply.
Lord Skelmersdale: My Lords, I was talking about the district within which the general practitioner operates. There is certainly discussion going on through the offices of the district health authorities concerning the point that there should he an opportunity for referring to different districts. However, that has not yet come to fruition.

Whisky Exports: Japanese Tax
2.43 p.m.
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 whether they are satisfied that action is being taken expeditiously to comply with the GATT ruling on the ending of tax discrimination against imports into Japan of whisky from Scotland.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, I welcome the recent forthright decision by the GATT Council calling on Japan to remove tax discrimination on imported alcoholic drinks. The Japanese authorities have announced their intention to introduce reforms in response to the GATT recommendations. Together with the European Commission, we shall continue to press for the full
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implementation of these recommendations at the earliest possible date.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that satisfactory reply. While the Japanese announcement was welcome, does my noble friend agree that the proposal or the method which the Japanese authorities indicated they will follow is likely to cause unnecessary delay? Does he agree that the Japanese people, having acquired a taste for Scotch whisky, should be allowed the benefit of enjoying this delectable beverage, of course taken in moderation.
Lord Brabazon of Tara: My Lords, I quite agree with my noble friend's remarks. As regards the Japanese, it might be even better if they took it in excess! We are encouraged by the assurances given by Japan, but we are not complacent; that is why we are pressing to ensure that action is as full and as early as possible.
Lord Bruce of Donington: My Lords, are we to understand that the European Commission is being entrusted with the task of monitoring the progress made by Japan in this connection? Or is it still the case that Her Majesty's Government, who are associated with GATT, retain the right to monitor progress in this matter and if necessary to make completely independent representations to Japan? This might he as distinct from the more general case presented by the EC.
Lord Brabazon of Tara: My Lords, we shall both monitor the results of this case, but it was the EC who mounted the successful GATT case against Japan. That is not to say that the Government do not take the matter extremely seriously as well. My right honourable and learned friend the Foreign Secretary, who visited Japan recently, received an assurance from the Japanese Foreign Minister that details of the proposed reforms would he available later this year.

Fawley: Proposed Power Station
2.46 p.m.
Lord Rodney: 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 are aware of public concern about a possible coal-fired power station at Fawley on Southampton Water; and what alternative sites are under consideration.
The Earl of Dundee: My Lords, the CEGB has informed my right honourable friend the Secretary of State for Energy that it expects to be in a position to submit an application for consent to construct Fawley B shortly. Anyone wishing to object to my right honourable friend regarding this application will be given an opportunity to do so. A number of other potential coal-fired power station sites are presently under consideration by the CEGB.
Lord Rodney: My Lords, I should like to thank my noble friend for that not very reassuring answer. Does he not agree that to maintain the amenities of the Solent area is extremely important? Can he also confirm that the building of a coal-fired power station at Fawley will involve an area of approximately 50 acres for a coal dump, with all the consequent coal dust all over the area?
The Earl of Dundee: My Lords, I am grateful to my noble friend. The points which he raises are very important, but my right honourable friend the Secretary of State has received a number of representations. Some of them draw to his attention the concerns mentioned by my noble friend about Fawley B, from the point of view of local interests. In reply to these representations, he has explained that he will only be able to take into account the objections which he receives within a specified timetable after an application has been made. No such application has yet been made.
Lord Ironside: My Lords, can my noble friend say what type of flue gas-desulphurisation plant will be fitted at Fawley by the CEGB? Will it be a limestone gypsum plant or a limestone sulphuric acid plant?
The Earl of Dundee: My Lords, I cannot give my noble friend the information he seeks. However, I can tell him that the latest boiler design proposed would ensure a reduction in nitrogen oxide emissions of about 40 per cent. In addition, the new station would he fitted with flue gas-desulphurisation equipment to the requirements of Her Majesty's Inspectorate of Pollution. This would reduce the emissions of sulphur oxides by 90 per cent.
Viscount Hood: My Lords, is the Minister aware that if the country's power requirements are to be met, at least eight new power stations, nuclear or coal, are required by the end of the century? Planning permission for only one has been obtained so far—Sizewell B.
The Earl of Dundee: My Lords, it is certainly the case that there will be under-capacity by the end of the century. That is why the CEGB is at present putting forward the plans which it has in mind.
Lord Stoddart of Swindon: My Lords, is the noble Earl aware that, while accepting the need for some new power stations in the South of England for load-balancing reasons, we do not necessarily need one 2,000 megawatt power station at Fawley? Would it not be in the interests of energy conservation if we had three or four smaller power stations on inland sites with combined heat and power, thus getting an overall thermal efficiency of between 60 per cent. and 70 per cent. rather than the 38 per cent. from the electricity generating stations only?
The Earl of Dundee: My Lords, I am grateful to the noble Lord and I am interested in the points that he makes. They will undoubtedly be taken on board by my right honourable friend the Secretary of State when he comes to consider the application.
The Earl of Lauderdale: My Lords, does not my noble friend agree that the building of power stations on coastal sites would enable the generators of electricity in future to buy imported coal, whereas those inland would be prisoners of British Coal?
The Earl of Dundee: My Lords, my noble friend is of course correct. He will be aware that one of the reasons the CEGB is considering an application in regard to Fawley is the facilities for importing coal there.
Lord Diamond: My Lords, will the Minister tell me whether the details relating to the type of flue of one of these power stations is a matter for government policy; or is it a matter within the management discretion of the CEGB?
The Earl of Dundee: My Lords, it is the latter.
Lord Lloyd of Kilgerran: My Lords, having regard to the Minister's reply to the noble Lord, Lord Ironside, on the matter of dealing with effluents from the power stations—on which the Minister went into some detail—can the Minister say now or later whether the catalytic process which is so successful in some of the stations in America will be used to prevent effluents from getting out into the air?
The Earl of Dundee: My Lords, I am afraid that I cannot reply to that question without notice.
The Earl of Halsbury: My Lords, will Her Majesty's Government bear in mind that that conveniently remote date, the end of the century, is drawing closer and closer and that the time for taking decisions is running out?
The Earl of Dundee: My Lords, the noble Earl is quite right and I am very grateful to him for reminding us of that fact.
Lord Stoddart of Swindon: My Lords, is the noble Earl aware that the point made by the noble Earl, Lord Lauderdale, is not necessarily correct? Does not the Minister agree that it would still be possible to import coal, if that were the policy of the Government, even if the power stations were built inland?
The Earl of Dundee: My Lords, the noble Lord is correct. It would still be possible to import coal even if the power stations were built inland. But whether it would be more desirable to do so there or at Fawley will come to light after the consideration by my right honourable friend the Secretary of State has taken place.
Lord Ferrier: My Lords, is it fair to assume that the present muddle in our coal industry is a contributory factor to the importance of power stations within reach of imported coal?
The Earl of Dundee: My Lords, in answer to my noble friend I should certainly say that, in planning where future sites of coal power stations should be,

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we want to take account of all the different factors, and not least the economic ones to which he draws our attention
Lord Rodney: My Lords, will my noble friend confirm that the existing oil-fed power station at Fawley is used to only about 12 per cent. of its capacity? Would it not be cheaper to run that station at full capacity rather than build a new coal-fired power station at a cost of many millions of pounds?
The Earl of Dundee: My Lords, that is of course a technical question. However, it is clearly not the type of detailed matter which would be overlooked during the process of my right honourable friend's general considerations.

Education: Capital Expenditure
2.54 p.m.
Lord Gridley: 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 allocation by the Secretary of State to local education authorities for 1988–89 for capital spending on buildings and equipment for schools and colleges.
The Earl of Arran: My Lords, my right honourable friend the Secretary of State for Education and Science has allocated £369 million to English local education authorities for capital spending on schools and further education in 1988–89. This represents an increase of 24 per cent. on the corresponding figure for 1987–88.
Lord Gridley: My Lords, I thank my noble friend for that Answer. Will he confirm that with an allocation to schools and colleges of £279 million for the period 1987 to 1988, and £369 million for the period 1988 to 1989, that represents an increase in allocation this year of £72 million? What are the criteria for considering what an allocation should be, and what kind of deliberations are involved in that consideration? I should be grateful if my noble friend would answer me briefly.
The Earl of Arran: My Lords, my right honourable friend the Secretary of State has available expenditure plans drawn up by local education authorities which set out their requirements in various categories. In the light of those, he discusses with his colleagues in the course of the public expenditure survey what resources can be made available. The level of resources provided must take account not only of authorities' plans but also of the Government's overall objectives of restraining public expenditure.
Lord Molloy: My Lords, we should congratulate the Minister on his patience in anticipating the supplementary question of his noble friend.
The Earl of Arran: My Lords, I always think that it is helpful to your Lordships' House if I can give as much information as possible on the subject on the Order Paper.
Baroness Phillips: My Lords, has the right honourable friend of the Minister considered the effect of this provision on the colleges which he is proposing as distinct from the work of the local authorities, which may in some ways have a conflicting interest?
The Earl of Arran: My Lords, we are monitoring the situation carefully, and we shall take any action that we can to ensure that the education of students is not placed in jeopardy. However, our present evidence indicates that the overwhelming majority of LEAs are behaving responsibly towards their higher education institutions.
Lord Lloyd of Kilgerran: My Lords, will the Minister (either now or later) indicate what proportion of the capital spending to which he has referred will be used for the better and improved teaching of science and technology in schools and colleges?
The Earl of Arran: My Lords, I shall be glad to have the opportunity of replying at a later date to the noble Lord's question.
Baroness David: My Lords, is the Minister aware that the survey of school buildings, which is a report published by the DES—there was a press notice about it on 3rd November last year—stated that the sum of about £2 billion was necessary to bring school buildings up to an acceptable standard for the 1999 to 2001 pupil numbers? Is the Minister further aware that the £750 million offered over the next three years for capital spending on buildings is less than half of what that survey asked for? Is that a satisfactory state of affairs?
The Earl of Arran: My Lords, needs have built up over the past three decades. The figure of £55 million is on top of substantial other resources so that over the next three years more than £750 million should be spent on projects to improve school buildings. Gross provision for capital spending by local authorities on schools and colleges has been increased by £100 million a year. That is 22 per cent. over the PES period.
Lord Lloyd of Kilgerran: My Lords, does not the Minister find it a little surprising that he is unable to give me an answer to my simple question regarding the breakdown of the capital spending, and how much of it is allocated to scientific and technological matters?
The Earl of Arran: My Lords, I think that that enters into quite considerable detail, and I should prefer further notice of the question.
Baroness David: My Lords, is the Minister aware that that £750 million for the next three years is less than half of what the DES's own survey asked for?
The Earl of Arran: My Lords, I am aware of the figure that the noble Baroness gives; but I would remind her that there has been an increase of 22 per cent. on the previous year.

Business
2.58 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Local Government Bill will be adjourned at approximately 7 p.m. for approximately one hour, and that during this adjournment the Committee stage (on Re-Commitment) of the Norfolk and Suffolk Broads Bill will be taken.

Business of the House: Debate, 19th February
The Lord Privy Seal (Lord Belstead): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Young of Graffham set down for 19th February shall be limited to 5 hours and that Standing Order 35 and paragraphs 10 to 13 of the Rules for the Conduct of Short Debates shall apply to the debate with the substitution of "5 hours" for "2½ hours" and "25 minutes" for "20 minutes".—(Lord Belstead.)
On Question, Motion agreed to.

Local Government Bill
3.00 p.m.
The Minister of State, Department of the Environment (The Earl of Caithness): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. —(The Earl of Caithness.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 19 [Provisions supplementary to or consequential on section 17]:
Lord Thomas of Gwydir Lord Thomas of Gwydir moved Amendment No. 99A:
Page 18, line 28, after ("1972") insert ("or in relation to Scotland section 56 of the Local Government (Scotland) Act 1973").
The noble Lord said: I move the amendment on behalf of my noble friend Lord Balfour, who is unable to be present. The Local Government Act 1972, which is referred to in Clause 19(6) of the Bill, only applies to England and Wales. It is quite clear that Clauses 17 and 19 of the Bill are intended to apply to Scotland as well. Section 56 of the Local Government (Scotland) Act 1973 is the Scottish equivalent of Section 101 of the 1972 Act. Therefore, the amendment suggests that that section should be added.
The Earl of Caithness: I am grateful to my noble friend Lord Thomas for moving the amendment on behalf of my noble friend Lord Balfour and for having brought to light what would appear to be an omission. I am happy to accept the amendment.
On Question, amendment agreed to.
Lord Broxbourne Lord Broxbourne moved Amendment No. 99B:
Page 18, line 46, leave out from ("be") to end of line 47 and insert ("damages to the injured tenderer for the costs of unnecessary studies, foregone profits or lost opportunities").
The noble Lord said: I am encouraged by my noble friend's affirmative and constructive response to the last amendment. The Committee will be sorry to hear that my amendment is a little more complex and will take longer to expound. Nevertheless, as I think the Committee will see, it has merit and deserves a similar affirmative response.
The object of the amendment is to find a solution to the difficult problem of ascertaining the proper quantum of damages which arise under Clauses 17 and 19 of the Bill. There is no certainty that the amendment provides a satisfactory solution. It would be presumptuous on my part to suggest that it does, and I am sure that the suggestion would meet with incredulity and scepticism on the part of the Committee.
The problem is that Clause 19(7)(b) provides a right of action to persons suffering loss or damage by reason of non-compliance with the statutory duty imposed by Clause 17 to disregard non-commercial considerations in the award of contracts. That is clear enough. However, what the Bill does not do is to specify how that loss or damage should be assessed. If there were no statutory definition, the injured tenderer would be entitled to general damages; that is to say, damages based on the principle of putting the contractor back into the position in which he would have been but for the breach.
The difficulty is to ascertain what that position would be. There is no certainty that, but for the breach, the tenderer would have been awarded the contract, let alone that he would have made a profit from it. Therefore, under the general principle his damages might even be de minimis. The draftsman has rather unkindly heaped Pelion on Ossa. A statutory limitation has been imposed by Clause 19(8), which is the provision which I propose to amend. As a result, an injured tenderer might be in the position of recovering at best a few thousand pounds when his real loss might amount to £½ million or so.
Faced with that position, there is not unnaturally a widespread sentiment that that provision is inappropriate and inequitable and that a formula should be found to provide a proper quantum of damages. That is the difficulty. It is not simple to identify an appropriate formula. There are various runners. For example, there are exemplary damages. That solution has quite a number of backers, including the CBI which quite properly recognises the inadequacy and inequity of the proposed limitation. It suggests that the courts should be given power to award exemplary damages. I have not been in contact with the CBI on the matter. Therefore, I do not know on what legal advice its suggestion is based.
For myself, I have found it impossible to table an amendment suggesting the award of exemplary damages. That may be of minimal comfort to my noble friend on the Front Bench. I doubt that exemplary damages are appropriate in that they do not seem to satisfy convincingly the requirements so clearly and authoritatively specified by Lord Devlin in his classic exposition in the case of Rookes v. Barnard which, as the Committee will recall, was decided in the Appellate Committee of your Lordships' House.
Indeed, exemplary damages had a run in another place. However, that run was scarcely encouraging. After what I felt was a somewhat perfunctory discussion in another place at the Committee stage, the amendment was withdrawn without being pressed to a Division. At Report stage in the other place, the amendment was not even moved.
There is the possibility of aggravated damages. Once again, it does not seem to me that that is an appropriate criterion. I have therefore not drafted my amendment in that form. The history of aggravated damages is even less encouraging than that of exemplary damages in that an amendment based on that possibility was not even moved in the other place.
Having rejected the possibilities of exemplary damages and aggravated damages, I was faced with finding another solution. That difficulty was not wholly unexpected because a tenderer is a non-person in English law. Until and/or unless his tender is accepted, he has no position in law. When and if the tender is accepted, he becomes a contractor. Under the law, he then has specified rights as set out in the standard forms of building contracts. In the unlikely event that the Committee wants to know more about that matter, I recommend Walker-Smith on the Standard Forms of Building Contracts.
In that quandary, therefore, and faced with that difficulty, I called to mind the Sherlock Holmes principle: when you have eliminated the impossible, that which remains is the solution. Applying that principle I hit upon this amendment, and I shall tell the Committee why that is less improbable than it may sound. Perhaps it is improbable when taken solely in the context of English law, but it has a respectable parentage in the law of the EC.
That parentage is to be found in the recent proposed directive entitled Community Rules on Procedures for the Award of Public Supply and Public Works Contracts, from Article 1(3) of which the words of the amendment that I am now commending to the Committee are derived. In due course this directive will become binding in English law under the terms of the Treaty of Rome. It will not alter English contract law across the board; only in cases of public service contracts. I should have thought that there was sufficient similarity to apply the principle of sauce for the goose and sauce for the gander, and to incorporate those words—which for their own purposes will in any event become binding in English law—into the Bill which the Committee is now considering.
After all, Ministers are fond of urging us to see things with a broader vision and in the perspective of the European Community, its law and its taxes. Here is a chance for my noble friend—I see he is absorbed in his notes. There is a chance for Ministers to practise what they preach by incorporating those words into the Bill.
Not only is the amendment of impeccable parentage and derivation, as I have sought to indicate, but it is justified on an objective analysis of its merits. The three heads of damage specified in the amendment are clearly capable of being suffered by a frustrated and injured tenderer as a result of a breach of Clause 17(1). Clearly they also constitute in principle damage which should be compensated. Compensation which might be recoverable under "general damage" is excluded by the words of limitation in Clause 19(8). This amendment is designed to remove that anomaly by flaking the required express statutory provision. If accepted, it will do just that.
I hope therefore that my noble friend will be able to indicate the Government's acceptance of the amendment. On the other hand, if he wants more time to consider the matter I shall fully understand. If he can say that he will give sympathetic and constructive consideration to it between now and Report stage, I shall certainly rely on that assurance and withdraw the amendment. I beg to move.
3.15 p.m.
The Earl of Caithness: I have considerable sympathy with the sentiments behind my noble friend's amendment, but fail to see why a potential contractor who has had a contract denied on noncommercial grounds should not receive damages in respect of the costs that he has reasonably incurred in submitting a tender as provided in Clause 19(8). I imagine that those costs would include what my noble friend describes as expenditure on unnecessary studies, provided that that expenditure was reasonable, of course.
I acknowledge that, in cases where the tort is one of interference with business relations, damages for loss of business profits may be claimed. It may also be possible, depending on the circumstances of the particular case, to claim damages for loss of chance. However, in the case of claims under Clause 19(7) the idea of compensating a disappointed tenderer for forgone profits or lost opportunities is fraught with difficulty. My noble friend's amendment would mean in effect that we would be asking the court to decide that if a contractor's tender had been accepted and he had been awarded the contract and successfully completed it—quite possible over a period of years—his profits would have amounted to X pounds and his lost opportunities to Y pounds.
I must tell the Committee that we think that this chain of hypotheses is too long and that it would be asking the courts to make almost impossible judgments. We do not want to encourage aggrieved contractors to go down this road by including provisions such as those proposed by my noble friend when the outcome would be so uncertain.

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So what is to be done? While seeking a solution my noble friend has overlooked an important deterrent that already exists; namely the threat of damages for pre-tender costs and legal costs which might lead to auditor action against the offending councillors. That is a deterrent which I think we should not ignore.
My noble friend has urged me to look at the EC directive. Indeed, we have done so, for it is in the positive words of the directive that I have marshalled the arguments to counteract my noble friend's amendment.
Lord Broxbourne: Not unnaturally I am bound to confess some disappointment with my noble friend's response. He says that this provision would create complications and raise difficult matters for the courts to decide. In addition to being a distinguished Minister, my noble friend is, I believe, a chartered surveyor. He has the edge on me. Although I also am a chartered surveyor, I am only an honorary one and I understand that he is a practising one. Surely he knows that in arbitrations in the Official Referee's Court matters of this kind are being canvassed and decided every day. His argument is not a valid one. I see noble and learned Lords on the Cross-Benches who know far more about these matters than either my noble friend or I will ever do. They would recognise the truth of that proposition.
I am hound to say that I do not regard my noble friend's argument as a sufficient reason for denying the patent justice of this case. I shall therefore consider the position between now and Report stage and I trust that my noble friend will do the same. I hope that when we come hack to this matter it will be in a more constructive and positive way. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Seear Baroness Seear moved Amendment No. 100:
Page 19, line 10, leave out ("section 18") and insert ("sections 18 and (Sex equality matters)").
The noble Baroness said: A very similar amendment was discussed earlier in Committee stage. I wish to speak to it again this afternoon.
As will be plain to the Committee, the use of contract compliance for race relations issues is allowed under Clause 18 of the Bill, in conformity with the requirement of Section 71 of the Local Government Act. Those who support this amendment believe that it is highly desirable that the same provisions should be available for people wishing to promote equality between the sexes. In our view, contract compliance is an extremely useful weapon for so doing. I know that it is the view of the Government that the essential difference between the two is this. The Race Relations Act 1976 requires the local authorities to promote equal opportunities for members of ethnic minorities, but there is no such provision in the Sex Discrimination Act. It is the wish of many of us that such a provision should at some date be incorporated into the Sex Discrimination Act.
Is it not somewhat unnecessary for the Government to argue on this point? Surely the crucial matter is whether it is desirable that positive action
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should be taken by local authorities in connection with the promotion of equal opportunities on grounds of sex, similar to that taken on the ground of ethnic origin. If this is so, this is the substantial argument. It is not whether in the Sex Discrimination Act there is a positive requirement laid on the local authority. It is of course true that there is not.
We contend that there are two very important reasons why action should be taken by local authorities in giving out their contracts, in using their resources, to increase the utilisation of women in jobs for which contracts are being given. It is now very well known that women figure insufficiently in many of the grades and types of work, and perhaps most importantly, in the types of work for which local authority contracts are given. There is also this very substantial point. With the need for increasing numbers of skilled persons and the fact that school-leaving numbers are falling and therefore the availability of skilled people will decrease at a time when the demand for them will increase, it is of very great economic importance as well as being important in terms of equal opportunity that positive action should be taken to increase the number of women available for these jobs. We shall find ourselves increasingly without the people we require unless such action is taken.
It is for these two reasons that I very strongly urge that the Government accept these amendments.
Lord McIntosh of Haringey: One can well anticipate that the Government's response will be that this amendment was spoken to last week and that it refers to a new clause which was voted down. I am sure therefore that it would not be proper for us to proceed with a discussion of the amendment today. However, before that procedural point is made from the Government Front Bench, perhaps I may say this.
Baroness Seear: It was not voted down. It was withdrawn.
Lord McIntosh of Haringey: I beg the noble Baroness's pardon. However, the matter was disposed of in Committee earlier. Before the Government give that procedural answer. I merely wish to take the opportunity to say how strongly I support the views of the noble Baroness. We shall take every opportunity to give expression to that support at Report stage.
The Earl of Caithness: I am sure I speak on behalf of all Members of the Committee when I say how nice it is to see the noble Lord, Lord McIntosh, back. His place has been well filled by the noble Lords, Lord Dean and Lord Graham. I realise that the Opposition needed a change of bowling, but we shall continue stoutly to defend the Bill, which is an excellent piece of work.
The noble Baroness surprised me by moving this amendment, which was spoken to with Amendment No. 95 on Thursday last week. I would not dispute with her that it is quite right for a local authority to look after its own house with regard to sex equality. We are saying that it is not part of a local authority's

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duty to do it on contract compliance with regard to other people's houses. That is a matter for the law as the law stands, to be enforced as the law should he enforced. It is not for a local authority to take on an extra statutory duty.
Perhaps that answer is a little brief, but I know that the noble Baroness heard me at length on Thursday. I do not wish to bore the Committee by repeating everything that I said, because I fear that I shall have to repeat much of it at Report stage.
Baroness Phillips: Before the noble Baroness withdraws the amendment—if she is going to do so—I deplore the fact that it is left to the noble Baroness to put this point. Will the Minister use the same argument a little later in this debate in connection with another famous clause? It seems to me that there is no objection to underwriting a principle that is accepted and is now endemic in law.
Lord Donaldson of Kingsbridge: As a male supporter of this amendment—whether my noble friend withdraws it or not; and it may be tactically better to do that so that the amendment comes clean at Report stage—I, and I think most of my friends, will support her when that time comes.
Baroness Seear: In all the circumstances, it would be much more sensible to bring this forward at Report. Therefore, for the time being, I wish to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 101 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey: moved Amendment No. 102:
Page 19, line 24, at end insert—
("( ) Nothing in section 17 above shall preclude a local authority from taking all reasonable steps to ensure that a contractor carries out or is competent to carry out the contract with due regard to the appropriate health and safety at work legislation.").
The noble Lord said: I rise to move this amendment with a certain amount of trepidation. My experience is that when one reminds the Government of statutory responsibilities of local authorities with regard to decent conditions at work, instead of reinforcing those obligations and the rights of people to decent working conditions, the Government tend to find further ways to reduce those rights. I recognise that there is nothing in Clause 17 as it stands which prohibits local authorities from paying due regard to the appropriate health and safety at work legislation. Indeed, I hope that nothing the Minister says in reply will do anything to eliminate those powers and responsibilities. However, I think it is worth moving this amendment in order to ask the Minister specifically about training in health and safety.
In the Government's view, does the Bill as now drafted provide adequate incentives and power for local authorities to ensure that contractors who are putting themselves forward to do work on behalf of a local authority have sufficient training in health and safety?
The Earl of Caithness: I agree entirely with the sentiment of the noble Lord, Lord McIntosh, in moving this amendment. Of course authorities should take all reasonable steps to ensure that the contractors they employ are competent to carry out the work involved in accordance with the health and safety legislation. However, we believe that to include such a provision on the face of the Bill would suggest that provisions in Clause 17 somehow prevent authorities from taking such steps. No provision exists, and we believe that to amend the Bill in the way suggested would therefore be entirely superfluous.
On the training for health and safety, we discussed training at some length earlier in the Committee proceedings. It would be quite all right for the local authority to take all reasonable steps to ensure that the contractors are competent to carry out the work, but to look specifically at the training over and above that matter would be taking contractual compliance to a stage which should not be necessary when there is already existing legislation to deal with that matter.
However, the noble Lord has raised the matter. Will he permit me to consider it between now and another stage?
Lord McIntosh of Haringey: I am grateful to the Minister. I am satisfied that it is proper that he should look at it between now and a later stage. On the basis of what he has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19, as amended, agreed to.
Clause 20 [Duty of public authorities to give reasons for certain decisions within section 17]:
[Amendment No. 103 not moved.)
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 104:
Page 20, line 8, leave out ("15") and insert ("28").
The noble Lord said: The purpose of Amendment No. 104 is to bring this legislation into line with quite a substantial volume of previous legislation that provides more flexible and more realistic timescales in which local authorities can prepare a statement of reasons for a decision which has been taken, in this case under the terms of Clause 17 of the Bill.
The Committee will observe that in Clause 20(1) a person who has been notified of a decision may, in writing within a period of 15 days, request the authority to furnish him with a written statement giving the reasons for the decision. That may be reasonable, but it seems to be going too far not to provide in cases of urgency and in exceptional cases further possibilities of time for consideration. The period of 15 days is extremely short. It includes public holidays and weekends. At certain times of the year —notably Christmas and the Easter period—the 15 days could be down to nine or even fewer working days. The problem with this kind of notification is that they tend to come in a bunch. A person has been notified of the decision of a local authority, in common with a large number of other persons, and

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the local authority has the responsibility, after perhaps consulting a number of different departments in the authority, for notifying a large number of people within the period.
To extend it to 28 days is a very modest extension. It ought not to affect significantly the rights of the persons concerned, and it is far more modest than the provisions which exist in other legislation— notably the housing benefit regulations—which provide a time that is reasonably practicable or as soon as possible thereafter. The Town and Country Planning (Scotland) Act allows the Secretary of State a 28-day period, but allows him until the end of the 28-day period to give notice that he requires further time. I could go on further, but the Secretary of State generally is more generous to himself than he is now being to local authorities. I hope that this modest increase will not prove unacceptable to the Government. I beg to move.
3.30 p.m.
The Earl of Caithness: The amendment seeks to extend the period in which a public authority responds to a request for reasons for any of the decisions listed in Clause 20(2). We do not consider the 28 days' period suggested by the noble Lord, Lord McIntosh, to be a reasonable one in this instance. The public authority will be aware of its reasons for making its decision at the moment that decision is taken. If it is reasonable for a person affected by a decision to request reasons within a 15-day period of the decision notice, as specified in Clause 20(1), it is not unreasonable to expect an authority to respond within an identical timescale.
The arguments are the very ones that the noble Lord used—such as difficulties that local authorities have over Christmas and public holidays. They apply with equal force to the tenderer. It is right to point out to the Committee that we have not simply plucked this 15-day period out of the air. It conforms with the figure put forward by the European Commission in its proposals for amendments to the existing EC works directive.
If after the Bill has been enacted however, there are demonstrably good reasons why the 15-day response period should be changed, my right honourable friend the Secretary of State may by order under Clause 20(4) amend the period. I hope that gives some satisfaction to the noble Lord, Lord McIntosh, that—although we do not believe we should change from 15 days at the moment—should evidence prove to the contrary, there is the ability to change the timescale.
Lord McIntosh of Haringey: I find that reply disappointing and illogical because there is clearly a great difference between the time which is required by a contractor to request reasons for a decision and that required by a local authority. After all, there is not a great deal of research required by the contractor: it is almost certainly the only obligation he has to himself. He is not trying to deal at the same time with a whole number of appeals, as the local authority will be; and he does not have to do a great deal of work to prepare his submission. I do not think that the argument that there is a natural equality
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between the time required by a contractor and the time required by local authorities holds water at all. I listened with care to the words of the noble Earl with regard to the European Communities. I should like to think about them before the next stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 agreed to.
Clause 21 [Transitional duty of public authorities as regards existing lists]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 105:
Page 20, line 24, leave out ("compile the list afresh") and insert ("extend the list").
The noble Lord said: This amendment is tabled in order to seek clarity. Whether the tender list should be compiled afresh or extended may be looked upon as a matter of semantics; but important cost factors might be concerned. We know that, by and large, the lists in the possession of local authorities are fairly extensive. We also understand that, once the Bill begins to operate, others will be added to tender lists, not least those who come on to it as a result of the non-commercial consideration. Can the Minister tell us why a list should be wholly compiled afresh as opposed simply to adding to an existing tender list those additional firms who may be added as a result of the Bill? I beg to move.
The Earl of Caithness: The noble Lord, Lord Graham of Edmonton, has argued that compiling fresh approved lists to accommodate what it is claimed will be the small number of firms who have possibly been excluded by non-commercial considerations could be a time-consuming, expensive and wasteful exercise by the local authority.
The whole purpose of the provisions in Clause 21 is to place a duty on authorities who have included or excluded firms from approved lists on noncommercial grounds to compile fresh lists in accordance with the Bill's Part II provisions. Approved lists should not become rigid, self-perpetuating lists of firms who have been there for years and years, but should in any event be reviewed at regular intervals so that the entry of new and rising firms should be encouraged. The advisory model standing orders issued by my department recommend reviews of approved lists at intervals of not less than one year and not more than two years. It is even more important that such lists should be compiled afresh when there is the possibility that firms have been included or excluded in the past on non-commercial gounds.
I believe that the burden that Clause 21 will impose on authorities has been much exaggerated. First, only the minority of authorities which have compiled lists taking account of non-commercial matters will be affected. The majority of authorities will not be affected. Secondly for those authorities which are affected, if lists have been compiled recently there is obviously no need for authorities to carry out detailed checks on the firms already on them when they apply to go on the new lists. Nor will they need

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to carry out more checks on firms which they have recently rejected, provided that they have rejected them on legitimate grounds. So in many cases all authorities will have to do is check new applicants, and look again at applications from firms which they previously rejected on non-commercial grounds.
The fear about making the change that these amendments propose is that a few authorities— and I acknowledge that it will probably only be a few—might not make great efforts to advertise if they were simply considering extending lists to include firms that they had previously excluded on noncommercial grounds. We believe that they will make greater efforts if the whole list depends on responses to the advertisement.
Lord Graham of Edmonton: It is quite clear that the Minister is intransigent. As an example, Strathclyde regional authority has lists containing the names of 4,000 firms. All of them will in future have to rely upon seeing the advertisement, according to the Minister. I fail to see why the Minister cannot accept that in the overwhelming majority of authorities—the Minister would have to specify even if there were only one authority—if one company is excluded on what I consider to be the spurious grounds of noncommercial interests, they have to go to that trouble.
Strathclyde is not the only one. The Minister says that if there are already 4,000 companies on the list, one need simply force them to respond to an advert and one can accept them.
For the Government to examine what noncommercial means is a subjective judgment. If an authority is to carry out the true intent of the Bill—and it must do so to avoid being caught by the Bill—it must apply all of the government yardsticks to every body that wishes to tender. The illustration I have given is Strathclyde. I have with me references to discussions which have taken place between CoSLA and Ministers in an effort to resolve the matter, but it was not resolved. We shall be forcing the overwhelming number of authorities, whose tender list is what I would call "clean" in the eyes of the Minister, to go through this process.
The Minister blandly says that all they have to do is to respond to the advert. Mistakes and errors do happen. One can well imagine that there will be some authority within whose area there is a company of good repute, of long-standing and with a reputation for good service, and one must rely upon a person in that company to watch for the particular advert and respond. The Minister has said there are a handful of companies that have been excluded, but he will not specify the few. There are 460 authorities and there must be tens of thousands of companies already on tender lists. I say that the overwhelming majority of them are "clean" even by the tests that the Government wish to set, yet they must go through this process. I think the Minister has taken on a very heavy responsibility. If by an administrative error some of those companies fail to respond to the advert and they are out, the Minister will have a great deal of explaining to do.
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It is not a satisfactory answer. It is not a political point; it is a needlessly bureaucratic point. We shall read what the Minister has to say and we shall take advice from outside the Committee. We may very well decide to come back again at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 106 to 109 not moved.]
The Chairman of Committees (Lord Aberdare): I have to point out that if Amendment No. 110 is agreed to, I cannot call Amendment No. 111.
[Amendment No. 110 not moved.]
[Amendment No. 111 not moved.]
Clause 21 agreed to.
Clause 22 [Exclusion of charges for inclusion in approved list]:
[Amendment No. 112 not moved.]
Clause 22 agreed to.
Clause 23 [Commencement]:
[Amendment No. 113 not moved.]
Clause 23 agreed to.
Clause 24 agreed to.
Clause 25 [Consent required for provision of financial assistance etc.]:
On Question, Whether Clause 25 shall stand part of the Bill?
Lord McIntosh of Haringey: I indicated at Second Reading our dissatisfaction with the inclusion of Part III as a whole in the scope of the Bill. There is a comprehensive Housing Bill going through another place in which this part would much more readily have found a suitable position. However, we have it here with us and the question is whether we should go through it with a fine toothcomb and consider in detail the amendments which might be necessary. We have taken the view that although we have a large number of amendments prepared, it would not be appropriate to introduce them at this stage.
In speaking to Clause 25 of the Bill, I should like to make some general points about the three clauses which form this part of the Bill. The Government have been insistent when speaking about Clause 24 that these are new powers for local authorities in relation to private rented housing. That sounds all very well until we come to Clause 25 which provides that these new powers shall not be exercised except with the consent of the Secretary of State. Our contention is that many of these so-called new powers have been exercised by local authorities for a considerable period of time. Without going too deeply into technicalities, the noble Earl will be familiar with the Richmond provisions and with the fact that it has been the department's practice on a number of occasions, when dealing with inner urban areas, to allow local authorities to exercise very comparable powers in relation to private rented property to those now proposed in the Bill.

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Therefore, the effect of Clauses 24 and 25 together is that powers which have been exercised without challenge by local authorities, and indeed with the encouragement of the Government and the European Communities, will now be subject to the restrictions of Clause 25 on the necessary consent of the Secretary of State. I suggest to the Government that the net effect of these two clauses taken together is not that there are significant new powers for local authorities hut, on the contrary, that the powers which have already been exercised will now be subject to the consent of the Secretary of State.
We have here, very cleverly disguised, another piece of centralisation and another piece of legislation taking away from local authorities their right to do what their electorate want. It places that power, instead, in the hands of the Secretary of State who is notoriously unfitted to exercise such detailed powers.
The Earl of Caithness: I am grateful for the canter round the course of housing that the noble Lord, Lord McIntosh, has given us on these clauses. There has been some concern about the provision of assistance to special needs groups, particularly where grants to voluntary organisations are involved. We have reassured them that we do not want to stop or impede a great deal of worthwhile activity which comes within the scope of these new consent requirements in Clause 25.
I can understand why your Lordships may ask: why not exempt these activities altogether from control rather than including them in general consents? The noble Lord, Lord McIntosh, alluded to the fact that some of them had been practised responsibly by local authorities for some time.
The course upon which I have hypothesised has attractions. But we must not forget that some authorities have gone so far down the road of legalism and hair-splitting in their attempts to circumvent expenditure controls that we cannot assume they will not try to do so again. I am sure that most local authorities will not do so. Here one returns to other provisions in the Bill and the reasons for them. We do not underestimate the few, nor the ability of their legal advisers, to turn an apparently innocuous power into a loophole.
I am sure the noble Lord, Lord McIntosh, and the Committee are aware that there are already six general consents issued. We are about to issue another covering the limited housing association grant scheme for the homeless. We are considering further general consents because we wish to be as flexible as possible.
The noble Lord has said much about the negative control side of the new provisions of Clause 25. However I hope that the Committee will not overlook the very positive side of the powers in Clause 24, which extend to all private landlords, not just to those who are registered housing associations, and the increased public and private sector cooperation in housing that we hope to encourage within the framework of the consent provisions.
We believe that on balance these clauses taken together are a positive step forward for the local
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authorities. We shall continue to look at general consents where we believe that they are flexible and can be issued without detriment.
Lord Dean of Beswick: My colleague, who is now leading on this side in the Committee stage, indicated that we consider that the power sought in this clause would have been better included in the Housing Bill now in another place. I think that all the reasons put forward by the Minister indicate that my colleague is correct. When there is a Housing Bill going through another place, I think it odd that this section is hived off to be dealt with in a Local Government Bill. Occasionally consolidation Bills go through the House and it is strange that the Government should now deviate by putting this clause in a Local Government Bill. I think that the Minister has given reasons as to why this matter should he included in a Housing Bill and not in this Bill.
Lord McIntosh of Haringey: I agree with everything that my noble friend has said. I fear that in his response to my remarks the Minister has given himself a great deal more work at Report stage. I am not satisfied with his analysis of Part III of the Bill. His claims regarding local authorities exploiting loopholes in existing legislation were made without any evidence. They were not even assertions; they were mere asseverations. They do not deserve the respect of this Committee without further evidence.
The fact is that local authorities have faced the additional challenge of the interface between private rented accommodation and traditional local authority responsibilities with a great deal of responsibility and imagination, and in extraordinarily difficult circumstances. I think that that fact has been recognised. The Minister's reply simply makes it necessary to table amendments at a later stage in order to protect the responsibilities of local authorities, particularly in relation to the homeless. The general consents which have already been issued, and those which are about to be issued, do not sufficiently cover the task which local authorities have before them. However, that matter is for another stage of the Bill.
The Earl of Caithness: Before the noble Lord sits down, I should like to say that I know he would not have expected me to make any complaint about local authorities without justification. I should like to draw his attention to the case at Sheffield, where it was clear that the local authority tried to circumnavigate the financial controls that had been placed upon it. That is one extremely good reason for having this clause.
Lord McIntosh of Haringey: I am grateful to the noble Earl, and I shall certainly look into the case that he has raised. In the meantime, I do not think that it is appropriate to pursue opposition to the Motion that this clause stand part of the Bill.
Clause 25 agreed to.
Clause 26 agreed to.
Clause 27 [Local authority publicity]:
The Chairman of Committees: If Amendment No. 113ZA is agreed to I cannot call Amendments Nos. 113ZB, 113A or 113B.
Lord Hayter Lord Hayter moved Amendment No. 113ZA:
Page 27, line 36, leave out subsection (1).
The noble Lord said: This is a matter of some importance as it affects local authorities in general and many voluntary organisations. The numbering in the Bill and in the 1986 Act is somewhat confusing. I should like to point out two parts which remain in this Bill, and which were contained in the original Act. The first is the famous sentence which states that a local authority shall not publish any material which in whole or in part appears to be designed to affect public support for a political party. We are agreed on that matter. The second part of the 1986 Act which remains states that a local authority shall not give financial or other assistance to a person for the publication of material which the authority are prohibited by this action from publishing themselves.
In this amendment we are arguing about the determination of the material within the prohibition and the regard which must be paid to it to ascertain whether the material is legal or illegal.
At this point Members of the Committee may have the curious feeling of having been here before. That is quite right; we were here nearly two years ago when we argued about the "likely effect", which was a phrase used in the 1985 Local Government Bill. At the time the Government were unhappy with the amendent but there was insufficient time for them to come back to this Chamber. They therefore gave a commitment in the other place that they would bring forward new proposals at the earliest opportunity to restore the effects of the original Bill. Clause 27(1), which we are now discussing, is one of the results of that commitment.
It is interesting to note that the subsection does not simply reverse the Committee's amendment two years ago. At Second Reading the noble Lord, Lord Belstead, had the good grace to say that the Government recognised that the concern of Members of the Committee was a real one. In the opinion of the Government, the subsection therefore tries to clarify the matter and not extend it. I would argue, and so I believe would others, that far from clarifying the issue the subsection confuses it greatly. The real motive behind the subsection is not to clarify the Act but simply to honour the commitment given in another place and to overturn the Committee's considered judgment of two years ago. I do not feel that in itself that is a reason for amending an Act which is generally considered to have already achieved its desired objective.
I should like to remind the Committee of the concerns expressed in the debate on the 1985 Bill. We were agreed that political propaganda should not be funded by the ratepayer or the taxpayer. We were concerned about the prohibition of political publicity as drafted in the Bill. We thought that it went far beyond its original intention. One of the particular concerns expressed was that voluntary organisations
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funded by local authorities would have been prohibited from issuing publicity material about matters of local concern, simply because the material might unintentionally have affected support for a political party.
It seemed to me, and to a majority of the Committee, to be quite wrong that the legitimate work of voluntary organisations, in publicising the concerns of their members or clients, could he prohibited in this way. Yet the legal advice given to the National Council of Voluntary Organisations at the time was that the prohibition on local authority publicity applied equally to material published by voluntary organisations which were receiving financial or other assistance from local authorities. Furthermore, the inclusion of the test of those ugly words "likely effect" in the drafting of the Bill made that a distinct possibility. That is why we chucked it out.
Now we come to today's debate, and I am not at all convinced that the amendments proposed by the Government to the 1986 Act will clarify the definition. Indeed, all the evidence seems to be that they are confusing the situation just at a time when the local authorities and voluntary organisations are becoming clearer about the implication of the 1986 Act as it stands. The Government's amendment tries to list some of the factors which should be taken into account when determining whether or not publicity material is prohibited. Some of the factors are so obvious as to be not worth including. For example, Members of the Committee will notice the statement:
"regard shall he had to the content and style of the material".
It is hard to imagine how anyone can decide whether material appears to be designed to affect public support for a political party without having regard to the content and style of the material.
However, some of the other factors included are much more sinister. For example, our particular point relates to the provisions that regard should be had as to whether the material:
"promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another".
A great deal of the publicity material produced by local voluntary organisations is concerned with elderly people, tenants' groups, physically disabled people and many others who will, by their very nature, promote or oppose a point of view which may well be on a question of political controversy and which may well be identifiable by the reader as the view of one party or another. Indeed, it is hard to think of any issue in spheres such as social services, education, housing or welfare rights which will not fall into this category, especially with the amount of legislation currently being debated in these subject areas.
Let me illustrate my concern with the help of an example. Many local tenants' groups receive small grants from local authorities to pay for a newsletter, and from time to time these newsletters will cover questions of political controversy. For example, a tenants' group may well decide to describe and comment on proposals in the current Housing Bill. It may decide to support or criticise some of those

849
proposals. I should have thought that was fair enough. Those proposals are undoubtedly questions of political controversy at the present time.
However, it is quite clearly legitimate for a local tenants' group to discuss this since it will be directly affected one way or the other if the proposals are enacted. Clearly, such a newsletter might be party political in a number of ways. For example, it might refer to the Tories' housing proposals in critical terms, or it may even criticise the Socialist record on housing. It might include a picture of the Prime Minister with a party political caption underneath. We all recognise that material of this kind is party political, and the 1986 Act quite clearly prohibits that.
In the example that I have given it is not the fact that the material is about the Housing Bill which makes it illegal. Rather, it is the fact that it is or is not written in a party political way. Therefore, what is worrying about the sentence that we are now seeking to delete is that in itself it does not provide a legitimate reason for prohibiting material. The fact that it opposes or promotes a point of view on a question of political controversy does not, in my opinion or anybody else's, make it party political. However, what would make it party political is if it referred to political parties or politicians and was written in emotional and political terms. However, those matters are already covered in the 1986 Act.
Let me say straight away that I accept the proposition that publicity material must not be party political, that it clearly prohibits this and already makes it clear that reference to political parties or political persons must be treated with great caution. Indeed, such organisations as the National Council for Voluntary Organisations issued advice to voluntary groups soon after the 1986 Act saying that they should not mention or allude to a political party, or mention or picture a leading politician in any publicity material which is funded by the local authority.
What is the purpose of the Government's amendment? Party political publicity is already prohibited by the 1986 Act. What further publicity material is the new subsection trying to cover? Certainly neither the noble Lord, Lord Belstead, nor any other member of the Government have been willing to give examples of material which escapes the 1986 Act and will be caught by this new subsection. It will be very interesting to see whether the Minister can give us any examples of such an incident.
I and many other voluntary organisations are concerned that a lot of other publicity material which is not party political might get caught, albeit unintentionally, by this subsection; and cautious local authority solicitors will advise against giving grants for any potentially controversial material; and cautious voluntary organisations will be reluctant to express views on issues of political controversy. That may be what the Government intend, but I submit that cannot be in the best interests of local democracy and cannot be in the best interests of those people for whom and with whom local authority organisations work.
I know that recently there has been a great growth in voluntary organisations. I also know that there are many Peers in all parts of the House who are involved with voluntary organisations. I point out that the 1986 Act already prohibits political publicity. The prohibition stands in its own right and does not need amending in any way whatsoever. The subsection in this new Bill confuses and does not clarify. It should therefore be rejected in line with your Lordships' decision two years ago. I beg to move.
Lord Campbell of Alloway: I oppose this amendment. The case for intervention by central government is accepted by the noble Lord, Lord Hayter, to prohibit abuse of rates on political publicity. This amendment is designed to clarify only, and on any objective analysis the fears of the voluntary organisations (which I assume are nonpolitical) are wholly misconceived.
There are two ways in which this subsection has been criticised. The first is the content and style of material. I can find nothing to which to take exception in that. It seems to me to be reasonable to offer a guide, and indeed a safeguard. As to the other criticism that it promotes or opposes, the word "promotes"—if one looks at any dictionary—means in this context active support or active opposition. It is implicit in active support or active opposition that there should be an intention to support and an intention to oppose, and that which is implicit is expressly recognised by the Government in their amendment to Clause 28 which follows. In those circumstances, if one construes the words "promotes or opposes", I respectfully suggest that it is not open to the interpretation which the noble Lord, Lord Hayter, gave it and, for the reasons I have given, that the fears of the voluntary organisations—although I welcome that they have been expressed—are nonetheless misconceived.
Lord Houghton of Sowerby: I hope that when the Minister replies he will tell the Committee whether anything has happened since 1986 which suggests that this second attempt to deal with the matter is necessary. Why cannot the Government leave it alone? Why must we continue with this nitpicking against local government which for the most part acts responsibly. However, there is certainly a minority of local authorities who have behaved rather badly. However, to have to consider legislation in such comprehensive terms and to pursue such matters as are likely to affect someone in this connection, is quite absurd. It is reminiscent of the wording of the obscenity laws. However, if one wants another cross-reference in this connection, there are the trade union Acts. We have been defining the political object since 1913 and it has recently been revised and put into recent legislation affecting trade unions. Why must we think of another and mote elusive definition of political purpose in local authority?
I notice in passing that this part of the Bill is called "Miscellaneous and General", and the heading above the clause under discussion is "Miscellaneous". In other words, bits and pieces, a nondescript clause, incidentals, sweepings-up. It is not even declared as part of the purpose of the Bill.

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However, under this part of the Bill we have the two most contentious clauses, which are likely to take up more time than the rest of the Bill put together. The clause concerning the promotion of homosexuality is to follow, with dogs the next day, and political propaganda of certain local authorities this afternoon. I believe we are getting matters entirely out of proportion.
Surely when a court or any arbitrary body is considering whether something is wrong, if it looks at the style and content it will at the same time look at the possible effects. I cannot believe that such bodies have to be told to do that. However, this Chamber having rejected terms in the 1986 Bill which have a similar ring about them, I believe we ought to reject this clause too. We should leave the position alone. I strongly hope that this Committee is not going to fall for the renewal—I was going to call it persecution but will use the word "pursuit"—of the detail and extension of the definition of the behaviour of local authorities in order to overcome the excesses of minorities.
In conclusion, I mention one other point. In all these debates about the powers and use of them by local authorities, how little reference there has been to the capability of the local electorates to reject them. It is as though what councils do can be done with impunity and without consequences when they come to account to their electors. If there are grave excesses in the use of local ratepayers' money and public money on items of political propaganda, is it not in the hands of the electorate to deal with such people? If the electorates disapprove, why is it that they do not turn them out?
We are reflecting, therefore, on the effectiveness of local democracy in legislating so zealously and almost ruthlessly. We are pursuing the local authorities as though they were not accountable to the local electorate and not open to local criticism. Criticism can be made week by week in the daily press by people who have voices to express it. I cannot understand why we have to do all this nanny work in Parliament to deal with local government. We should leave matters alone and let them take their course. Has the Minister a single item of evidence to produce this afternoon which justifies dealing with this matter again, in this way?
Lord Boyd-Carpenter: I cannot rival the conservatism of the noble Lord, Lord Houghton of Sowerby, whose theme was that he wanted to leave matters alone. He is against change. Nonetheless, he indulged in a real fallacy. He said, "Why not leave the local electorate to deal with a local authority that uses its money for party political propaganda?" There is a simple answer to that. It may well be that there is a strong element among the local electorate which thoroughly agrees with the use of its money for party political propaganda—
Lord Houghton of Sowerby: Will the noble Lord permit me?
Lord Boyd-Carpenter: In a moment, but not in mid-sentence—but, and this may help the noble
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Lord, what he does not face is that whether the majority of a local electorate like it or not, in the view of Parliament and of the country that is not a proper function and proper use of local authority money. I give way to the noble Lord.
Lord Houghton of Sowerby: I remind the noble Lord that we are not beginning afresh on this matter. There is the 1986 Act. There is adequate protection in that Act for citizens and public money. I am complaining at this attempt at embroidery without justification. When I say that we must leave matters alone, I do not do so because there is nothing there. I mean that we must leave the 1986 Act alone. That Act surely is enough, unless there is evidence that it needs reinforcing.
4.15 p.m.
Lord Boyd-Carpenter: I am well aware of the 1986 Act. I believe I inflicted a speech or so on this Chamber when we dealt with that Act, and I am certain that the noble Lord, Lord Houghton of Sowerby, did so too. However, even that distinguished parentage of the measure does not necessarily prove that it is perfect.
This is a difficult matter on which to draft. It is no use pretending that there is an easy solution when one must try to draw a line between the abuse of ratepayers' money by perhaps a temporary majority in charge of a local authority using that money for political propaganda on behalf of one party or another—which I hope all Members of the Committee regard as wrong—and inhibiting the genuinely intentioned expression of views by voluntary bodies in that area. That is not an easy matter on which to draft.
It does seem clear—no doubt my noble friend the Minister will enlarge on this—that, as was suggested during its passage, the provisions of the 1986 Bill are not quite perfect. If the Committee accept the necessity of preventing this abuse of ratepayers' money for party political purposes, surely it is important to get it right. If we have not got it completely right, and if in all honesty and frankness in a difficult matter we have not done so, it is not good enough merely to say, "Well, why not leave the 1986 Act alone?" I do not believe that the 1986 Act has worked perfectly, but I believe that it has done a certain amount of good.
If we want to get this right then it is worth taking a little trouble to do that. Looking at this clause as it stands, it seems to me to make a good deal of sense. It appears to take the essentials of what should be stopped—party political propaganda, support for a political party, promotion of a political party out of the ratepayers' money—and provide for stopping it.
It may be that we are wrong and that this clause will not be watertight, in which case there will have to he further amendments in future years. No doubt then, again, the noble Lord, Lord Houghton of Sowerby, will say, "Why not leave it alone?" This clause is an attempt to get the legislation right. Such an attempt does not damage the legislation, as criticisms have suggested, and I think it should be given a trial.
The Earl of Caithness: I do not need to repeat in my remarks on these amendments the full explanation of and background to Clause 27 given on Second Reading by my noble friend Lord Belstead. It will, however, serve a useful purpose to remind the Committee of the purpose and nature of the Government's proposals. They are fundamental to the Government's opposition to this amendment and, indeed, the other amendments to this part of the Bill and which I take it, with the leave of the Committee, we can speak to generally as they are all related.
The purpose of Clause 27(1) is to provide a comprehensive statement of the range of matters to which regard must be given by the local authority, its auditors or, in the case of challenge the courts, in determining whether publicity appears to be designed to affect public support for a political party. The provision in the 1986 Act as presently drafted is arguably unclear about whether all the circumstances of publication arc relevant to the nature of the publicity or whether the court should look only at the two aspects identified on the face of the legislation as being relevant. The Government believe this to be an unsatisfactory consequence of the amendments made in this Chamber during the passage of that Act.
I am grateful for the support of my noble friend Lord Boyd-Carpenter because I believe, as he does, that we should get it right. We wish to make it clear that factors will be relevant to the decision whether material appears to be designed to affect public support for a political party. Now there seems to be no difference between us about the relevance to apparent design of most of the factors specified in Clause (26)(1). The sole point at issue, as I understand it, is whether the likely effect of material on those to whom it is directed is a relevant factor in the same way as the content, style, timing and other circumstances of publication.
The Government believe that the factors listed in Clause 27(1) should be taken into account in assessing the apparent design of publicity. The likely effect of material may well, in some circumstances, be highly relevant in the decision as to its apparent design. Sometimes it may be the decisive factor. It is important to emphasise that none of these specific factors constitutes a separate test of the nature of publicity. All of them may point to a publication being party political, but equally each may be decisively outweighed and negated by other factors which indicate the contrary.
I turn to Amendment No. 113B, which is also relevant to the argument we are having. This proposes the deletion of one of the factors to which particular regard must be had in determining whether material appears to be designed to affect public support for a political party. This is the reference to whether material,
"promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another".
It has been argued that this new element will stop local authorities issuing publicity on any matter which is politically controversial between the parties at national or local level.
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This argument, like the argument about the likely effect tests, we believe demonstrates a misunderstanding of the Government's proposals. The reference in question does not impose any new or additional test of what publicity does; it simply identifies the question whether a piece of publicity promotes ideas linked to a political party as one of the factors particularly relevant to a decision whether it appears to be designed to affect public support for a political party. This seems to the Government to be a highly apposite element of the content and material.
There seem to be three ways in which publicity may be linked with a political party. It can explicitly mention a political party; it can refer to people who are the embodiment of a political party, and it can refer to the ideas for which a political party stands. In summary, therefore, there is no reason why a piece of publicity which promotes or opposes a point of view on a question of political controversy should be prohibited on that ground alone. New subsection (2)(2A) provides that if a piece of material promotes or opposes a controversial point of view and that view is identifiable as being the view of one political party and not another, the question must be asked whether the material appears to be designed to affect public support for a political party. In some cases it may well do so.
It is not difficult to conceive of a piece of material which deals with a question known to be highly controversial between the parties. For example, it may be a question of the level of the rates set by an authority but which deals with the matter in a way which is balanced, to the point, and does not stray into the political arena. There is nothing in Clause (27)(1) that would inhibit the legitimate publicity activities of local authorities. Having listened carefully to the noble Lord, Lord Hayter, who made a very clear exposition of his argument, I believe he has misunderstood what we are trying to do and I hope I have been able to clarify the position for him.
Baroness Fisher of Rednal: Can the noble Lord say whether it would be illegal or otherwise in the case, for example, of housing benefits changes which are to take place and also of the 20 per cent. increase in rates which people will have to pay? A local authority may be faced with many of its electors who come to neighbourhood offices, housing offices or the rates offices, asking "What are you doing'?" They become very irate and complain, "You are asking us to pay this extra money". They are making a challenge to the clerks behind the desks. It all becomes very angry.
Would it he in order for the local authority to use the press, perhaps by a public announcement, or to put on the wall in the office a notice to the effect that the changes in the housing benefit are devised by government and that it as a local authority merely acts as agents and administers the grant? Would such a course be illegal? I believe it is going to be very difficult for a local authority. It has to be recognised that the personnel behind the counters are the ones who are challenged. The same situation will arise in the rates offices where there will be queues of people. I understand that at the present moment there is a barrage of inquiries regarding the rates. The people at the counters are asking, "What are we going to do?

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We can't pay it". The local authority is in a very difficult position because it has to say, "You must pay it."
I believe that the staff have the right to say that it is government policy. If they say it is government policy, would it be all right if that were done without using anything other than a declaration which states, "This is government policy and we are carrying it out"? Would that be in order or would it be against the clause as we have it now?
Lord Harmar-Nicholls: The noble Baroness is experienced in local government and we come almost from the same parish. She knows the answer to her question without having to ask it. If anybody says yes—
Baroness Fisher of Rednal: Will the noble Lord give way? I do not know the answer. I have asked the Minister to reply because it is a completely new question which a local authority will have to face. This involves paying 20 per cent, of the rates for the local electors. It is altogether a new question and I do not know the answer. I ask the noble Lord to withdraw.
Lord Harmar-Nicholls: I know the noble Baroness well, and I admire her very much. I know of the work she has done. She ought to know the answer to her question; perhaps I may put it that way. I am surprised that she does not know the answer, because she ought to know it perfectly well. She ought to know that if anybody administering government decisions says, "We are administering government decisions as laid down" they cannot be doing wrong at any point or charged with doing wrong.
On the other hand, if they go on to say, "The Opposition would do it in a different way and we indicate that they would be right"—in other words, if the answer goes beyond the clear answer that they are merely carrying out government intentions—they would be doing wrong. It is because there is a possibility that that can happen—and indeed some of us know that it happens to a greater or lesser extent—that I agree with my noble friend that there is a need to go this extra step beyond the 1986 Act. There is no doubt about that.
As the noble Lord, Lord Houghton, said, if this merely repeats what is already in the Act, what is he grumbling about? If it is going to make no difference and if it is simply saying again what has already been said, I agree with the noble Lord that it is a pity we should waste the ink and the time. If people have doubts that it is necessary to go that extra step in order to deal with the uncertainty arising from the way the question put by the noble Baroness is answered, then I believe the Government are doing their duty in spelling it out.
Another matter which surprises me is the fact that both the noble Lords, Lord Hayter and Lord Houghton, asked, "Give us some evidence to justify this". Nobody said in clearer terms than the noble Lord, Lord Houghton, that there is a minority who do things that he would not approve of. He went on
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to say, "Why should everybody have to be the victims of these extra words because it is the work of a minority?" The only reason we have a police force is because there is a minority of people in the country who are criminals. If there were not that minority, there would not be the need for anything like the amount of legislation that is passed through Parliament from time to time. The very fact that the noble Lord admits that there is a minority and that even with the 1986 Act that minority could do things which he believes are wrong and go beyond the pale is the evidence that I believe he was asking for. It is not going very much further than the 1986 Act, but it is going far enough to justify the extra words that we are being asked to approve today. It is only if it can be seen that positive efforts are being made with ratepayers' money to do things which are partisan that these words will come into play. I believe the point put by my noble friend Lord Boyd-Carpenter justifies these extra words and I hope that we shall find it in our hearts to approve of them with a good majority.
4.30 p.m.
Lord Campbell of Alloway: Does the noble Baroness accept the principle of prohibition for political purposes, as does the noble Lord. Lord Hayter? In the answer to that question lies the whole attitude to intervention by central government in this and other spheres.
Lord Bellwin: I should have thought that the fact that the noble Baroness, Lady Fisher, asked for further information confirms the need for the clarity which the Government are trying to give in the Bill. If there are doubts, then by all means let us have more clarity. I should have thought that that would cover the point.
We could talk about this issue for a long time. I am sure the Committee does not want that, but I shall take up the point made by the noble Lord, Lord Houghton. He said that if local ratepayers do not like the provision there is a local remedy. But there is no local remedy. In the authorities where this sort of conduct takes place, the percentage of people who pay rates is so small that they cannot do a great deal about the situation. That is why we have accountability, with which we shall deal in a later Bill, when we shall debate this matter at greater length. I see no harm whatsoever in having this extra clarification. It can do no harm. We all know what we are talking about. We all know the kind of damage that this provision seeks, as did the 1986 Act, to repair. It is a good thing. Let us get on with it.
Lord Somers: It should be easy to protest to local government that it should not take some step which one considers to be out of order. But how on earth is one to do that? It is all very well theoretically, but just how does one do it? Will local government listen to any protest, vocal or written, from any of its electors? Such authorities have been democratically elected and therefore they consider that that gives them the right to ride over the rights of all those who elected them. I cannot see how anyone can consider that such authorities might be influenced by any of their electors' opinions.
Baroness Carnegy of Lour: I shall give one example to illustrate why this clause should be in the Bill and why it would help. In 1985, the City of Edinburgh District Council mounted a publicity campaign—
A noble Lord: Before the 1986 Act?
Baroness Carnegy of Lour: Yes, that is right. It mounted a publicity campaign with the slogan, "Improving services—creating jobs". That slogan alone was written all the way down Princes Street in Edinburgh during the Edinburgh Festival on banners, and posters, and on lapel badges and car stickers. The campaign was similar to other campaigns of which the Committee is aware which occurred in other places. I think that there was one in Manchester where the slogan was, "Defending jobs—improving services".
The Edinburgh campaign publicising the slogan in that way was widely regarded as a waste by the council, of ratepayers' money. The council's auditors were asked to report on the matter. They reported that expenditure on the slogan had been £113,281·77, and that in their view at that time it was contrary to the law. In August 1986, the Comptroller of Audit said that in his view the campaign was unlawful. He did not claim that the slogan was party political; he merely said that when used in isolation on banners, posters and the like it did not convey any information and therefore it was not something which in law should have ratepayers' money spent on it. Other books and leaflets containing information which the council published at that time had the slogan upon them, but he did not comment on that fact; he did not regard it as wrong. The literature was unlawful where the slogan appeared without any accompanying information.
In February 1987, the Account Commission decided to state a case on the matter to the Court of Session. That case has still not been heard. Whatever the outcome of that stated case, at the time when the slogan was published no one in Edinburgh had any doubt that it was intended as propaganda for the ruling Labour group's policy of creating jobs through local government. There was a great deal of controversy between the Edinburgh District Council and central government. The intended effect of the campaign was clear even though it did not mention any party or people in a party. Such a campaign could not occur if the Bill were left as it now is. If the clause were removed such a campaign would not be caught and could happen again, for the reasons I have just given. In my view, that illustrates precisely what my noble friend on the Front Bench said.
Lord Morton of Shuna: Before the noble Baroness sits down, will she explain why, if the Account Commission can take action under the existing law or, as I understand her to say, under the pre-1986 law, the Bill will make any difference?
Baroness Carnegy of Lour: I hesitate to take issue with a distinguished Scottish lawyer, but the stated case is not about party-political content or the meaning of the campaign; it is about the lack of information accompanying the slogan. To produce a
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slogan alone, without any information, is illegal under existing law. That is the reason.
Lord McIntosh of Haringey: First, 1 should like to confirm that it is our intention that all the amendments with the number 113 and various combinations of letters of the alphabet should be dealt with together. It is a happy tradition of this place that, whether we design it that way or not, debates on such matters are collapsed into single debates, and we cover a wide range of amendments at the same time. There are significant differences in the amendments, but it is as well to deal with them at the same time, especially as the debate was so well introduced by the noble Lord, Lord Hayter.
This is a matter of great importance, as this place recognised in 1986, not just for local authority publicity, but for the whole relationship of central and local government and the people they are elected to serve. A feature of our society is that we do not live in a Greek city state in which all the citizens can assemble in the market place to discuss matters of public concern. With a larger population, we must find alternative ways to deal with matters of public concern and to communicate the community's decisions to those who are affected by them.
One of the ways in which we do it is by voting. Another way in which we increasingly have to do it, talking particularly about the communication of ideas and decisions and communication of the effects of political decisions, is by paid-for publicity. I say that because it is above all central government who have increased their expenditure on paid-for publicity. The budget of government departments for publicity through the Central Office of Information enormously exceeds any expenditure by local authorities on publicity. Indeed, why not? It is the responsibility of government to communicate to the governed; to communicate with the governed.
One of the ways of doing that is by paid-for publicity, whether it be in the form of advertising or promotional material or explanatory material or whatever. But if that is the case for central government—and it is the case—surely it is equally the case for local government. It is equally the responsibility of local government, to communicate. It ought to he a two-way process as far as possible, with the electors to whom local authorities are responsible. How are they to do it except by the same means as those used by central government—by advertising, by printed material, by use of the medium of broadcasting and by any other methods available to them.
This was recognised by the Government when they asked the Widdicombe Committee, which they originally charged with looking into the conduct of local authority business, to present an interim report on publicity by local authorities.
Lord Somers: If the noble Lord will permit me to intervene, he said quite rightly that the local authorities can communicate with us in various ways; but how do we communicate with them?
Lord McIntosh of Haringey: I agree with the noble Lord, Lord Somers, that it has to be a two-way

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process. Indeed, I said so. One part of the answer to him is that the ballot box is the people's way of communicating with all the governors, except this Chamber. I do not think that is an adequate answer. There ought to be more detailed methods of accountability. However, I think that the Committee would find that a detailed exposition of this would fall outside the scope of even this wide range of amendments.
The Widdicombe Committee was asked to report on publicity. What it said seems to have been forgotten in the debate so far. Widdicombe said that there should be a prohibition on publicity for party political purposes, but the test of that prohibition should purely be the material test as to the content of the material. Widdicombe made no reference, or at least made no favourable reference to the two alternative tests which are now being put forward by the Government. One is of the intention of the material; the second is the effect of the material.
When this matter came before the House in 1986, the Government tried to bring both those tests into the legislation. They said that the tests should be about the intention of the material and about the effect. Noble Lords, in my view rightly, said that it was impossible as well as undesirable to have the test of effect applied to publicity by local authorities. This was largely because the effect of any given publicity is vastly different according to the person who is receiving that publicity or hearing it. It is simply unworkable to have a test of effect.
What are the Government now doing? They are seeking, by putting back in subsection (1) the words,
"likely effect on those to whom it is directed",
to bring back specifically the particular phrase which was twice taken out of the 1986 Bill by noble Lords. Any claim that this is simply a clarification will not stand up. It is a clear attempt to reverse a decision of noble Lords which the Government did not like.
That may be justifiable in certain circumstances. It could be that in the two years following the passage of the 1986 Act there had been sufficient evidence that the Act was not working effectively. If that were so, I think the Committee should consider that evidence clearly and dispassionately and should reach a conclusion as to whether further amendment of the Act is now required. However, that is not the case. The fact of the matter is that under repeated questioning in Committee and at the Report stage in another place, Government Minnisters not only failed to produce evidence of any misuse of the 1986 Act but they denied that it was necessary or appropriate. They said that they were not going to do it.
In those circumstances, it is not a particularly conservative thing to do what my noble friend Lord Houghton of Sowerby did, which was to say, "Leave it alone". It is not conservative; it is realistic and in line with the best traditions of this Chamber that we should not be needlessly and mindlessly seeking to fiddle with the existing law. Without evidence of abuse—and there is none—there is no need for us to do what the noble Lord, Lord Boyd-Carpenter, suggested was necessary—to prove that it is perfect.
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On the contrary, the onus is on those who seek to make a change even to start to make a case for it.
There are other objections to Clause 27 which I could go into at some length, but I only want to refer to something not covered by this amendment but by a later amendment which is grouped with it. That is the question of draft codes. The history of draft codes of conduct for local authority publicity is not a very happy one. The Government have been producing these draft codes for at least two-and-a-half years. In November 1987 they produced the most recent, the fifth code, which in the view of the local authority associations is a substantial improvement on the preceding codes.
The difficulty with the draft codes as we have them, and the difficulty with their status in this Bill, is that they are drawn up by the Secretary of State. They can be amended at will by him and they have the status of law so that in the terms of this clause the local authority must have regard to them. It might be acceptable in certain circumstances for a local authority to have regard to something which has been produced by consultation between local authorities and the Secretary of State. That is a defensible position.
What is not acceptable is that the local authority should he bound to the extent of having regard to a code which is drawn up entirely by the Secretary of State and which can be amended at will by him. That means that any parliamentary responsibility for the conduct of local authority publicity, the control of local authority publicity, is in the hands of the Secretary of State and can be changed at any time at his whim.
I suggest to the Committee that there is something profoundly unsatisfactory about that position which is not overcome by this amendment. Indeed, if the amendment is passed we may have to pursue it without further debate. There is something profoundly unsatisfactory about what is proposed in that part of Clause 27.
There has been a great deal of talk about the party political aspect of this clause. I would remind the Committee that the four major local authority associations—the Association of Metropolitan Authorities, which is Labour-controlled; the Association of County Councils, which has no overall political control; the Association of District Councils, which is not Labour-controlled either; and the Convention of Scottish Local Authorities—are all unanimous in their opposition to this clause. They arc unanimous in their support of the amendment proposed by the noble Lord, Lord Hayter, to which I am proud to add my name.
If that is the case, if it is the unanimous view of the four local authority associations and therefore of substantial numbers of leaders of local government of all political parties that this amendment is wrong; if the argument for its necessity has not been put adequately, or at all; and if the tendency of the amendment to increase centralisation and to decrease local responsibility is as I have suggested it is, this amendment deserves the support of the Committee. The clause before the Committee does not.
The Earl of Caithness: I do not think that the noble Baroness, Lady Fisher of Rednal, expected quite such a long debate after posing me what appears a relatively simple but is in fact a difficult question. I am grateful that her question has provoked such a useful debate. Of course the answer must be that it very much depends on the way that the local authority produces the documentation. In the example of the noble Baroness, it could be done legally. But it is not difficult to imagine some local authorities doing it in a way designed to affect party political support. That would be illegal. Therefore, without being able to comment further, one would have to see the precise wording that the local authority used in the example that the noble Baroness gave. The question of the noble Baroness prompted a good reaction and very useful support for which I am grateful from my noble friends Lord HarmarNicholls, Lord Bellwin and Lady Carnegy of Lour who answered the points better than I have been able to do.
The noble Lord, Lord McIntosh of Haringey, raised two points in essence. The first referred to his Amendment No. 113D which concerns the draft code. The responsibility for the draft code was given to the Secretary of State two years ago. That had to be done with the approval of both Houses of Parliament who accepted the basic justification of his involvement. The reasons no code has yet been put to Parliament are, first, that we have endeavoured as far as possible to take local government with us on the drafting. The history of the drafting demonstrates that we have been prepared to listen to local government's point of view and to make amendments designed to allay concerns. However, it will be for Parliament to decide whether to approve the final product of that consultative process. I am grateful that the noble Lord, Lord McIntosh of Haringey, accepted the fact that the Government had moved quite considerably and had taken into account some of the things that local authorities had said.
The second reason is that we did not think it would he right to ask Parliament to approve the code, the status of which would not be clarified until the Committee had considered Clause 27(2). A copy of the draft code is in the Library of the House and will of course be subject to the Committee's consideration. The code is not subject solely to the whim of the Secretary of State as the noble Lord, Lord McIntosh, seemed to imply.
The second point the noble Lord mentioned returned to the amendment of the noble Lord, Lord Hayter. He said that the Government were putting forward alternative test—intention and effect. Any Member of the Committee who has studied the amendment will realise that that is wrong. The Government have accepted that there is only one test—the apparent design of publicity. The Government's proposal is not an attempt to slip a second test in by the back door. It is impossible to assess what something appears to be designed to do without looking at what its likely effects are. All that Clause 27 is doing is to state that plain fact. I ask for the Committee's support on that.
Lord McIntosh of Haringey: The Minister says that the Government are only putting forward a single test—the intention of the material. But subsection (2) of the 1986 Act which is repeated on the face of the Bill refers to the likely effect on those to whom it is directed. It refers also, unexceptionally, to the content and style of the material. The reference to the intention of the material is indeed highlighted by the words "in particular", but surely the Minister would not deny that there is reference to the other tests in the clause he is supporting?
The Earl of Caithness: I wish to make it clear that I was speaking of the amendment of the noble Lord, Lord Hayter, which deals with the first part of the proposal. That, as I understood it, was what the noble Lord, Lord McIntosh, was criticising because it brought in a second test. However, it certainly does not do that. It merely explains what the auditor or the courts in due course have to take into account.
Lord Hayter: I had the wicked thought as we were debating this amendment that we would save an awful lot of time in this place if nobody could make a speech—I paraphrase the words of Clause 27(2)(a)—promoting or opposing a point of view on a question of political controversy which is identifiable with the view of either one party or the other. That is my tactful way of pointing out how careful we must be to see that we do not injure free speech here, in local authorities or, even more importantly from my angle, in voluntary organisations.
However, on this amendment, we are perfectly happy with the 1986 Act to which we keep referring where it is stated that a local authority should not publish any material which appears to be designed to affect public support for a political party. As no one has put forward any argument to show that something has happened since 1986 which makes necessary a new attempt in this Bill I feel that I must seek a Division.
4.56 p.m.
On Question, Whether the said amendment (No. 113ZA) shall be agreed to?
Their Lordships divided: Contents, 111; Not-Contents, 162.

DIVISION NO. 1

CONTENTS

Airedale, L.

Buckmaster, V.

Allen of Abbeydale, L.

Callaghan of Cardiff, L.

Amherst, E.

Carmichael of Kelvingrove, L.

Ampthill, L.

Carter, L.

Annan, L.

Cledwyn of Penrhos, L.

Ardwick, L.

Cocks of Hartcliffe, L.

Attlee, E.

Cornwallis, L.

Aylestone, L.

David, B.

Banks, L.

Davies of Penrhys, L.

Basnett, L.

Dean of Beswick, L.

Blackstone, B.

Diamond, L.

Bonham-Carter, L.

Donaldson of Kingsbridge, L.

Boston of Faversham, L.

Dormand of Easington, L.

Bottomley, L.

Elwyn-Jones, L.

Broadbridge, L.

Ennals, L.

Bruce of Donington, L.

Ewart-Biggs, B.

863

Falkender, B.

McNair, L.

Falkland, V.

Mason of Barnsley, L.

Fisher of Rednal, B.

Mayhew, L.

Foot, L.

Milford, L.

Gainsborough, E.

Molloy, L.

Gallacher, L.

Monkswell, L.

Galpern, L.

Morton of Shuna, L.

Graham of Edmonton, L.

Mountevans, L.

Greenhill of Harrow, L.

Mulley, L.

Gregson, L.

Nicol, B.

Grey, E.

O'Neill of the Maine, L.

Hampton, L.

Oram, L.

Harris of Greenwich, L.

Paget of Northampton, L.

Hatch of Lusby, L.

Peston, L.

Hayter, L. [Teller.]

Phillips, B.

Hirshfield, L.

Pitt of Hampstead, L.

Houghton of Sowerby, L.

Ponsonby of Shulbrede, L. [Teller.]

Hughes, L.

Hunter of Newington, L.

Prys-Davies, L.

Hutchinson of Lullington, L.

Ritchie of Dundee, L.

Hylton-Foster, B.

Seear, B.

Irvine of Lairg, L.

Seebohm, L.

Irving of Dartford, L.

Serota, B.

Jeger, B.

Somers, L.

Jenkins of Hillhead, L.

Soper, L.

Jenkins of Putney, L.

Stallard, L.

John-Mackie, L.

Stedman, B.

Kennet, L.

Stewart of Fulham, L.

Kilbracken, L.

Stoddart of Swindon, L.

Kilmarnock, L.

Strabolgi, L.

Kinloss, Ly.

Taylor of Mansfield, L.

Kissin, L.

Tordoff, L.

Leatherland, L.

Turner of Camden, B.

Listowel, E.

Underhill, L.

Llewelyn-Davies of Hastoe, B.

Wallace of Coslany, L.

Lloyd of Kilgerran, L.

Wedderburn of Charlton, L.

Longford, E.

Wigoder, L.

Lovell-Davis, L.

Willis, L.

McCarthy, L.

Winchilsea and Nottingham, E.

McGregor of Durris, L.

Mclntosh of Haringey, L.

NOT-CONTENTS

Ailesbury, M.

Cross, V.

Aldington, L.

Cullen of Ashbourne, L.

Alexander of Tunis, E.

Davidson, V. [Teller.]

Allerton, L.

De Freyne, L.

Arran, E.

Deedes, L,

Ashbourne, L.

Denham, L. [Teller.]

Atholl, D.

Dilhorne, V.

Auckland, L.

Dundee, E.

Barber, L.

Elibank, L.

Bauer, L.

Ellenborough, L.

Beaverbrook, L.

Elles, B.

Belhaven and Stenton, L.

Elliot of Harwood, B.

Bellwin, L.

Elliott of Morpeth, L.

Beloff, L.

Erroll of Hale, L.

Belstead, L.

Faithfull, B.

Bessborough, E.

Fanshawe of Richmond, L.

Blatch, B.

Ferrers, E.

Borthwick, L.

Ferrier, L.

Boyd-Carpenter, L.

Foley, L.

Brabazon of Tara, L.

Fortescue, E.

Brougham and Vaux, L.

Fraser of Kilmorack, L.

Broxbourne, L.

Gainford, L.

Butterworth, L.

Gibson-Watt, L.

Caithness, E.

Glenarthur, L.

Campbell of Alloway, L.

Goold, L.

Campbell of Croy, L.

Grantchester, L.

Carnegy of Lour, B.

Gray of Contin, L.

Carnock, L.

Gridley, L.

Charteris of Amisfield, L.

Grimthorpe, L.

Chelmer, L.

Hailsham of Saint Marylebone, L.

Chelwood, L.

Coleraine, L.

Halsbury, E.

Constantine of Stanmore, L.

Harmar-Nicholls, L.

Cork and Orrery, E.

Harvington, L.

Cottesloe, L.

Havers, L.

Cowley, E.

Henley, L.

Cox, B.

Hertford, M.

Croft, L.

Hesketh, L.

864

Hives, L.

Portland, D.

Hood, V.

Portsmouth, E.

Hooper, B.

Prior, L.

Jenkin of Roding, L.

Quinton, L.

Johnston of Rockport, L.

Reay, L.

Kaberry of Adel, L.

Renton, L.

Kearton, L.

Rodney, L.

Killearn, L.

Romney, E.

Kimball, L.

St. John of Fawsley, L.

Kinnaird, L.

Saltoun of Abernethy, Ly.

Kitchener, E.

Sanderson of Bowden, L.

Lane-Fox, B.

Sandford, L.

Lauderdale, E.

Savile, L.

Lindsey and Abingdon, E.

Selkirk, E.

Long, V.

Shannon, E.

Lucas of Chilworth, L.

Shaughnessy, L.

Lurgan, L.

Sherfield, L.

Lyell, L.

Skelmersdale, L.

Mackay of Clashfern, L.

Slim, V.

Manton, L.

Southborough, L.

Margadale, L.

Stockton, E.

Marley, L.

Strange, B.

Marshall of Leeds, L.

Strathcona and Mount Royal, L.

Merrivale, L.

Mersey, V.

Strathspey, L.

Milne, L.

Sudeley, L.

Milverton, L.

Suffield, L.

Morris, L.

Swansea, L.

Mountgarret, V.

Terrington, L.

Mowbray and Slourton, L.

Teviot, L.

Munster, E.

Teynham, L.

Murton of Lindisfarne, L.

Thomas of Gwydir, L.

Nelson, E.

Thorneycroft, L.

Nelson of Stafford, L.

Torphichen, L.

Norfolk, D.

Trafford, L.

Norrie, L.

Trefgarne, L.

Nugent of Guildford, L.

Trumpington, B.

Onslow, E.

Vaux of Harrowden, L.

Orr-Ewing, L.

Waldegrave, E.

Oxfuird, V.

Ward of Witley, V.

Pender, L.

Westbury, L.

Peyton of Yeovil, L.

Wise, L.

Plummer of St Marylebone, L.

Wolfson, L.

Porritt, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.4 p.m.
[Amendments Nos. 113ZB, 113A, 113B, 113BA, 113C, 113D, 113DA, 113E and 113F not moved.]
Clause 28 [Prohibition on promoting homosexuality by teaching or by publishing material]:
[Amendment No. 113G had been withdrawn from the Marshalled List.]
The Viscount of Falkland The Viscount of Falkland moved Amendment No. 114:
Page 28, leave out lines 17 to 29 and insert:
("Publication and leaching of material representing homosexual relationships.
(1) A local authority shall not publish any material which, in whole or in part, appears to have as its primary purpose either of the following, namely

(a) the representation of homosexual relationships or homosexual acts as being more acceptable then heterosexual relationships or acts;

(b) the representation of a homosexual relationship as a pretended family relationship.

(2) A local authority shall not cause to be taught in any maintained school any material which falls within subsection (1).
(3) A local authority shall not give financial or other assistance to any person for the publication or teaching of such material as falls within subsection (1).
(4) Nothing in subsection (1) shall apply to any material which is published in the bona fide belief that such material

(a) serves, or may serve, a literary, artistic, scientific or educational purpose; or

(b) serves, or may serve, the purpose of treating or preventing the spread of disease.")

The noble Viscount said: Clause 28 and the arguments behind it are well known to the Committee. Indeed, they are better known to the Committee than they are to the country at large. That is why those of us who have been involved in public debate on the issue have been somewhat dismayed. I recently took part in a television discussion on the matter. I was personally dismayed and bewildered by the lack of understanding and the ignorance as regards the delicate subject which we are addressing today. That subject is sexuality. The Committee is here today to talk about homosexuality because that is the precise subject which we are addressing. However, I think that confusion has been the hallmark of Clause 28 from the word go.
I suggest that the thinking and the philosophy behind Clause 28 are confused; I suggest that mild confusion followed its publication in that the clause was known as Clause 27 in the publicity concerning the matter. Dangerous confusion has resulted from discussion and even from amendment of the clause. We must address ourselves here, as I shall attempt to do in moving the amendment, to discussing some of the background to the clause.
First, we have in this country an attitude towards sexuality which is, by the standards of any civilised country, confused. As a result of the publicity abroad concerning the clause, I have discovered that many of our European partners are watching the results of this debate with absolute amazement. I have talked to two foreign journalists who say they cannot believe that we should have such a debate in this day and age. A significant minority of our citizens—some 6 million people or perhaps more—are homosexuals. By trying to put the clause on the statute book, we are saying that we wish to make 6 million people second-class citizens.
Noble Lords: No!
The Viscount of Falkland: I shall expand on my argument. That will be the effect of the clause. There is a movement in this country which is prompted by the spread of the terrifying disease of AIDS. That must be taken together with a misconceived view of sexual behaviour which worries not only the homosexual community, who are immediately at risk from the backlash of ignorance, but also heterosexuals. I ought not to have to say that I am a heterosexual. I should say that 50 per cent, of my post bag, which is enormous—I believe that many Members of the Committee will have been inundated with letters in the same way—comes from people who live what are generally described as normal or orthodox sexual lives. I prefer the word "orthodox"; I think that the word "normal" is deprecating and even insulting. To a homosexual, his relationship is normal. The Committee must bear that in mind in considering the clause.
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Apart from the fear and ignorance concerning homosexuality or unorthodox sexual relationships, there is the confusion between sexual relationships and sexual acts. Many people in this country—and indeed a section of the popular press—have been moved not by a concern about relationships as such but by an idea (which I can understand) of the widespread promotion of the extraordinary nature of the sexual act. I submit that the fear that people have of unorthodox sexual acts is quite reasonable. I should not want my children to be taught, or have described or unnecessarily underlined to them, information concerning homosexual acts. Nor should 1 want them to be exposed unnecessarily to the details of heterosexual acts. It seems to me that there is an enormous confusion which goes through much of our sex education. What matters in our lives and our sexuality is that we develop loving relationships.
There is a suggestion in the clause that in no way can a homosexual have a loving, caring or responsible relationship. That is an opinion which has caused deep feeling among homosexuals because they are extremely vulnerable to the implications of this clause, and it seems to me to be an offensive and arrogant suggestion. It is one of the reasons, probably the main one, why I have stood up in this debate as an individual. On this occasion I do not pretend to identify myself with my party grouping. I rise as an individual and hope that I shall be supported by members of my party. It offends me that in this country we should seek by statute to create an illiberal and prejudiced view of one section of our community.
That is the background to the kind of thinking that arises from these confusions plus the spread of this terrifying disease. I quite understand and share the concern of many Members of the Committee, particularly on the other side of the Chamber, that there could be unnecessary expenditure by local authorities on matters relating to homosexuality—for example, special teaching facilities. I agree that it is unsatisfactory to set the homosexual community apart as a special class of citizen by creating for it special expenditures unless they are very carefully considered and unless they have the express purpose, for example, of protecting people from violence and so on.
The background is quite clear. It is understandable that in this day and age there is a fear of promiscuity. Here again there is another misunderstanding. In many people's mind promiscuity is connected—wrongly, I suggest—with homosexuality whereas promiscuity itself, whether it be heterosexual or homosexual, is a problem. Indeed, as a result of AIDS and responsible and careful action by homosexuals and others on behalf of the homosexual community, that community has become remarkably unpromiscuous, if that is the correct word. There has been a dramatic change which has been prompted by fear of disease and so on. I suggest that homosexual people are less promiscuous than heterosexuals. Promiscuity is neurotic in its origins and does not contribute to a happy and productive life. In every possible way we should oppose promiscuity which is such an obsessive feature of our lives.

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The Government have introduced a clause which deals with homosexuality and attempts to make it unacceptable—another word which occurs in the clause that I do not find easy to accept. They wish to say that homosexuality is unacceptable. Homosexuality is legal in this country. I suggest that we are putting back the clock to the days before it was legalised and are creating an enormous fear among the homosexual community, particularly the young. We are encouraging a backlash within the rest of the community which puts at risk all classes of homosexual and particularly young people.
We are encouraging discrimination and violence which is out of step with the very responsible attitude that the Government have taken as regards AIDS. I consider that attitude to be more responsible and more effective than that which has been taken in the United States of America. Responsible homosexual groups have been consulted. The country is becoming fully aware of a meeting of minds and the productive movement between the homosexual community and the Government in creating a proper list of measures and precautions against AIDS. By promoting alarm among the homosexual and the heterosexual communities, the clause will create confusion in people's minds to to where they stand.
The clause remains with us and 1 suggest quite honestly that one of the main arguments against it is that it uses a very large hammer—a pile-driver—to smash a pane of glass. The splinters will go wide and far with the possibility of damaging and wounding a number of people. That will be regrettable. I think that those people who now view this clause with favour will agree with me later on that it is regrettable that we should have sought to put on to statute a clause which, through its loose wording and vague ideas, creates confusion in the minds not only of homosexuals and the general public but even of lawyers.
The authors of my amendment—and I make no bones about the fact that it was drawn up by a distinguished lawyer who was consulted by the Arts Council, which I also have consulted at some length—have said to me today that from the way that this clause is drafted it is just not possible (and I dare say we shall argue the point) to understand what it meant by the word "promote". If I may say so, to make matters worse the amendment which has been put down in the name of the noble Earl, Lord Caithness, seeks to amplify the Government's intention by putting in the word "intentionally". How can one promote unintentionally? Perhaps Members of the Committee will tell me how that can be done. It seems to me that "promotion" is always intentional unless the promoter is incredibly inept.
I am told that this will be a long debate; I hope not. However, perhaps Members of the Committee will have had experience themselves, not I hope of promoting but of having had promoted to them some form of sexuality. I went through what is called the public school system which, in the eyes of some foreigners, quite incorrectly is supposed to be a hotbed of homosexuality. I must say that I did not see a great deal of it. I never had promoted to me any idea
868
of sexual behaviour. Nobody has ever promoted to me, or sold to me, the idea that I should be a homosexual or a heterosexual. I seem to remember that when I was about seven years old I had vague stirrings of attraction to the opposite sex that have not left me in the 45-odd years that have ensued. But nobody promoted these ideas to me. It is an absurd idea that one can go into a classroom, to a meeting, or on a holiday course, or whatever, and that someone can make attractive the idea that one can change the drift of one's own sexuality.
The arguments against the clause are basically these. It is vague; it is dangerously misleading; it is badly drafted; it uses words in their wrong sense; it creates alarm and despondency among all classes of people. It makes us as a nation appear somewhat absurd to many of the other civilised countries who look to us—quite rightly—for leadership in so many areas. It worries me that we should appear so muddle headed on a social area of such importance in particular to the young.
The implications are far reaching. The arts are one of the most effective ways in which we disseminate knowledge and concepts of civilised behaviour. If this clause goes through, those arts that are funded by local authorities will be inhibited from performing plays, showing films, or having books in libraries, that are now readily acceptable. Nobody would quarrel with the idea that the novels of Oscar Wilde, the sonnets of Shakespeare, or many other books, should be on bookshelves.
But there is a risk—and I do not think that one is being alarmist—that if a clause like this goes onto the statute book then local authorities who have already been under some pressure, or to use a popular word have been "hammered" even, will ask, "dare we go ahead? Dare we fund that production which seemed innocuous enough before this clause?" They will go to their lawyers who will say, "It is better not to risk it. Go somewhere else." If that happens we shall be the poorer for it.
A civilised community depends on its arts; and the arts community has shown universal alarm at this clause. Even today I have received a letter from the entire cast of "Les Miserables" saying that this was a totally misplaced idea and a very damaging concept which would result in an extremely dangerous piece of legislation.
I summarise in this way. Our objections to this clause are that it is too loose and dangerous to make good law. On a sensitive subject this Chamber was not the place to decide on the future lives of 6 million people. There are too many people involved to risk making a bad provision. I do not think any Member of the Committee is entirely out of sympathy with some of the sentiments which lie behind the provisions of this clause. There is no doubt that there is alarm. There are extremists. There are people who exaggerate in every field, who tend to over-egg the pudding, or to overstate the case. I am perhaps even doing so myself now.
However, in this country we wish to create a proper, happy, productive community where everyone works together. That is one of the reasons why I undertake this painful, voluntary task of

869
standing on my feet and terrifying myself by talking to Members of the Committee. It is because I wish to see a better community where all classes of citizens—whether they are minorities such as homosexuals, or immigrants, or whatever—have the best possible life and the best possible opportunity of working with everyone else. I do not think that this clause helps in that cause.
I want to see stable relationships among homosexuals. I want to see their way of life understood. I want to see them walking on the streets, not flaunting themselves or behaving in a way which is provocative to other people—which is neurotic behaviour like promiscuity, as I have described—but to see people having stable, happy relationships, such as I am sure most Members of the Committee have. That will reduce the violence in our society. It will increase the understanding in our society of the differences between people. In that way we can be an example to others who are not as well educated or as privileged as ourselves. We can also show the rest of the world that we are the civilised community that they already perceive. I should not like to see us slipping from such a path. I beg to move.
The Deputy Chairman of Committees (Lord Nugent of Guildford): Before I put the amendment to the Committee, I should explain that I undertand it to be for the convenience of the Committee that Amendments Nos. 114,115, 116, 116ZA, Manuscript Amendment No. 116ZB, Amendments Nos. 116A 117A and 118 will all be debated together.
Lord Marshall of Leeds: Perhaps I may—
Noble Lords: Lord Henderson!
5.30 p.m.
Lord Henderson of Brompton: As I have my name down for this amendment I think that it is only customary to allow those who have their name down to speak to the amendment. I ask for the indulgence of the Committee in that respect.
I have attached my name to this amendment—the so-called "Arts Council" amendment—in the hope that Clause 28 can be improved although I do not believe that the clause is either necessary or desirable, and indeed I believe it to be harmful.
Before I give my reaons for disliking the clause, I should make it plain that, like the noble Baroness, Lady Cox—who has done so much to bring this matter before the attention of Parliament and the country—I deplore the excesses committed by homosexual people of either sex, or for that matter by heterosexual people. The minority ought to have respect for the feelings of the heterosexual majority. In this connection, I should like to recall the words of the late Lord Arran—the father of the noble Earl who now sits on the Government Front Bench—on the Third Reading of the Sexual Offences Bill 1967. He played a very great and honourable part in bringing that Bill about. He then asked the homosexual people in the future to comport themselves quietly and with dignity and to eschew any form of ostentatious behaviour or public flouting.
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Homosexual people would do well to heed those words, especially now, in case the present backlash turns into something really nasty like, for example, the Popish plot of the 17th century. That recalls at once that 1988 is the tercentenary of the glorious revolution which led to the Bill of Rights 1689 and the beginning of toleration. It would be a poor start indeed to the tercentenary to pass an intolerant measure such as this clause with its potentially repressive consequences.
I owe it to the Committee to say why I support the amendment. It is entirely because I do not just object to the principle, but I object to the drafting. The noble Viscount who introduced the amendment said why he objected to the word "promote" Quite frankly, I do not object to the word "promote". I recognise that it was used in the previous clause, Clause 27, in relation to publication and it is also used in the Education Reform Bill in Clause 1. I accept that word, though I recognise that others do not.
But in Clause 27 of the Bill and Clause 1 of the Education Reform Bill the word "promote" is used in conjunction with concrete objects or objectives. The use in the clause of this Bill is, I believe, the first occasion, so far as I am aware, that the word "promote" has been used in a statute in relation to an abstract concept; that is, homosexuality. Can you (I ask: should you?) legislate against an undefined abstract concept? I say certainly not. One might legislate against homsexual acts or relationships, if that is what is meant. As the Committee will see the amendment does not contain this abstract concept of homsexuality.
I ask the Minister to go to Mr. Baker's education Bill and to look at Clause 1 where in subsection (2)(a) the curriculum,
"promotes the spiritual … cultural, mental and physical development of pupils".
It does not promote the pupils' spirituality, culture, mind and physique. How absurd if it had done so, and how absurd for the clause to seek to proscribe the promotion of the abstract concept of homosexuality. Amendment No. 114, to which I am speaking, at least corrects that absurdity.
Then there is the word "pretended". We are all told by those of our friends who are learned in the law what this means; it is supposed to mean "claimed" as the pretender to the throne claims the throne. But what does it mean to the man in the street? It means something other than "claimed". It is certainly offensive to the homosexual community and especially to those homosexual couples—I know of some—who have a real family relationship with each other and with their children, whether adopted or not. I regret that the word is in the amendment which I support, but no doubt it could be improved on at a later stage. Then there is the word "acceptability". That is another horrible abstract concept which is nowhere defined in the clause and which our amendment manages to eliminate.
So much for the drafting, except to commend the drafting of our amendment in subsection (4) which I regard as quite essential (despite anything that the Minister may say) to ensure that the potential damage covered by the clause is effectively limited.

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How did this bad drafting come about? I have no doubt that it came about through the unseemly haste with which this legislation has been introduced, and introduced into the wrong Bill. If it is necessary (which I doubt) surely it should be part of the Education Reform Bill.
The Halsbury Bill—if I may so term it—was a product of haste. It was slipped in on the very last day just before Christmas, 18th December 1986, when it was read a second time as the last business on that day, just before the Christmas Recess. Then it received its Committee stage on 3rd February and the noble Earl deprecated any amendments, even those that he accepted in principle. He then proceeded to put in substantial amendments at Third Reading on 11th February. That is not the way to legislate on important, socially sensitive matters. The Bill failed in the Commons and was only resurrected at the last possible moment in Standing Committee in another place on the last afternoon of the last day in Standing Committee when a private Member introduced a new clause, a starred amendment, to which the Government tabled a starred amendment, so no adequate notice of the clause could be properly considered was given in another place either by the private Member or by Her Majesty's Government. Does this not remind one of the infamous amendment of 100 years ago known as the Labouchere amendment,
I have no wish to keep the Committee longer. I should otherwise dilate on what I regard as the totally insufficient evidence on which the Bill has been brought before the Committee. I believe that the noble Baroness, Lady Cox, is entirely sincere in her motives; but I believe that she is perhaps a trifle gullible. She mentioned an action of the Lambeth Borough Council. I found out that the incident she mentioned she took from a newspaper. The newspaper was written to by Lambeth Borough Council totally denying the incident. But, as so often happens in these cases, the borough council was not granted the right of reply. To confirm what I had heard I asked my daughter and my son-in-law, who live in Lambeth, to go to the public library to make detailed investigation as to whether or not books of the nature described by the noble Baroness were available on the shelves. There was none.
In conclusion I ask: why have the Government made this astonishing U-turn? When the Halsbury Bill was before noble Lords, the noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Hooper, both said that though they were in sympathy with the noble Earl's Bill they could not recommend it. They could not recommend it to go forward for two, very adequate reasons. The first was that in the Local Government Bill now before the Committee there is a perfectly good code of conduct. It would be quite useful, productive and sensible to introduce into that code of conduct directions as to what or what might not be taught in the schools under local authorities. That was one means of controlling the situation which we all believe must be considered carefully in view of the disquiet by some parents in the very few boroughs which have promoted homosexuality, or as I prefer to say, homosexual practices.
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Secondly, the two Ministers referred to the Department of Education circular which has been extensively quoted both in this Chamber and in another place. I believe two actions on the departmental circular and the introduction into the code of practice would be quite sufficient to contain this problem without going to the extent of legislation.
If that was what the Government thought last Session (as proclaimed quite separately by two Ministers in this House) why on earth is it not still their policy in this Session? What has made the Government make this dramatic new turn? I believe this clause to be totally unnecessary but, if it is to be in the Bill, it must be amended in the kind of way which I am suggesting.
Lord Marshall of Leeds: For the avoidance of doubt, I should like to ask the noble Lord whether he subscribes to the view expressed by the noble Viscount who when moving the amendment described homosexuality as legal. In my view the legislature of this country has never legalised homosexuality, not even between consenting adults; it has merely protected from criminal prosecutions adults who committed homosexual acts together by consent.
Lord Campbell of Alloway: While opposing the amendment, I should like to say that if the thinking and philosophy is confused, as was suggested by the noble Viscount, the responsibility is wholly mine. I drafted the clause. I propose to defend it and the intention behind it. I do so with a totally open mind.
I take the point made by the noble Lord, Lord Henderson of Brompton, that this amendment was carried in to Lord Halsbury's Bill at Third Reading by a very thinly attended House. It is a matter of considerable public concern. For my part, I welcome this opportunity for objective discussion, full examination and detailed debate.
In that spirit, let me assure the Committee that there is no question of making homosexuals second-class citizens. The Committee may also wish me to admit that I drafted Lord Halsbury's Bill. At Second Reading, when I supported the noble Earl, I made it perfectly plain that the Bill was not designed—and I quote my own words from memory—"to harrass or humiliate homosexuals". There is no question of the Bill taking an illiberal or prejudiced view of a section of society. That charge, though sincerely made, is wide of the truth. I agree that in drafting the Bill, I failed to consult foreign journalists or any of the 6 million people in the minority sections.
It is very wide of the mark to suggest that the Committee is considering anything to do with AIDS, whether rightly or wrongly associated with homosexuals or with promiscuity. The clause has nothing whatever to do with that. There is no question of putting the clock back as regards discrimination. Every subject, whatever his sexual proclivity, is entitled to respect and entitled to live subject to the law of the land. All these charges are quite beside the mark.

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I have studied the amendment moved by the noble Viscount. Much of what was said was said against the principle, as it appears, of his own amendment.
Clause 28(1)(1) stands in the Bill verbatim as drafted by me and carried into Lord Halsbury's Bill on Third Reading on an amendment tabled by my noble friend the Duke of Norfolk; the noble Earl, Lord Halsbury; the noble Lady, Lady Saltoun of Abernethy, and myself. None of us, with the possible exception of myself, is noted for illiberality. I accept that the amendment was carried by a thin House. I accept also, being the draftsman, that it would be far from perfect. I do not have the expertise to draft a Bill. Certain reservations were entertained by the noble Lord, Lord Kilbracken, which were very sound, reasonable reservations. Certain reservations were entertained across the House by my noble friend Lady Cox. They were very reasonable reservations. They have been embodied in Amendment No. 116ZB, the manuscript amendment, and meet two-thirds of the objections raised by the noble Lord, Lord Henderson of Brompton.
However, it is important that the Committee should accept and acknowledge that Lord Halsbury's Bill was accepted in principle by all noble Lords with the exception of the noble Lord, Lord Graham of Edmonton, with whom I am in amicable but assuredly irresoluble disagreement.
The amendment, which is now Clause 28, widened the original scope and intendment of Lord Halsbury's Bill, which was designed solely to prohibit the promotion by local authorities of the homosexual set-up as an acceptable family relationship. This specific and limited prohibition of abuse of rates was considered to be far too narrow by all noble Lords at the Second Reading of Lord Halsbury's Bill. I accepted that and in deference to the views of your Lordships' Committee drafted this amendment, which is now Clause 28. That was accepted by the House. It was indeed welcomed by the noble Baroness, Lady Nicol, on behalf of her noble friend Lady David who was unable to attend.
There has been much misguided criticism of this Clause. There is absolutely no doubt that any local authority seeking simply to provide access to a full range of artistic and literary material, would not be constrained from doing so by this provision. The highest that it is put against the drafting or the principle—probably both—is this; that the local authority might be at risk. That is hardly the basis of a sound objection. By the use of the word "promote" I understood it to be active support or encouragement. I take the noble Viscount's point, but it was intended by me to include intention, and that intention was implicit in active support or encouragement. I welcomed the Government's amendment by making express what I understood to be implicit. How the Government's amendment which does that can be said to make Clause 28 worse is not understood, simply as a matter of logic.
If the principle of Clause 28 is acceptable, the machinery of implementation proposed by the noble Viscount's amendment is not appropriate. In principle, Clause 28(1)(a) was accepted by the Committee in Lord Halsbury's Bill. The clarification
874
was expressly welcomed by the noble Baroness, Lady Nicol. In principle, subsection (l)(b), dealing with teaching in schools, was also accepted by the Committee. Its acceptance has since been endorsed by the public in an 85.9 per cent, opinion poll published on 25th January.
Why is the noble Viscount's amendment to be preferred as a means of implementing the question? There are three basic objections to it. First, it is limited to the material published, thus permitting what may be said or done under paragraph (a), or taught in schools under paragraph (b), directly or indirectly by financial or other assistance under paragraph (c). Allowing that to be done is an obvious escape route for abuse. Secondly, it is limited to primary purpose. In this context it is an all but impossible task for the courts to distinguish between primary and secondary dominant subsidiary purpose. The test of intent as proposed by the Government's amendment is workable; the approach to the amendment to qualify such intent by primary purpose is not workable. Thirdly and lastly, the wholly subjective test of bona fide belief that some literary, artistic or scientific purposes may be so is imported to serve as a defence. I underline the words "some", "may" and "bona fide belief that". It drives the proverbial carriage and four right through the principle of any effective enforceable prohibition.
Far from implementing the principle of prohibition, the effect of this amendment in the name of the noble Viscount affords the means for a massive evasion and abuse. It is wholly unworkable. It could turn the courtroom only into a platform for the deployment of forensic weaponry such as, "What is the material published?"; "What is primary purpose?"; "Is there bona fide belief?" No doubt an attempt at enforcement would always be made by a legally-aided litigant, and no doubt and assuredly the costs to the local authority would be met from the rates. Members of the Committee may well think that it is hardly appropriate to seek to inhibit one type of abuse of the rates at the expense of creating another.
I welcome this discussion. I support the principle of Clause 28 but do so with an open mind. I shall listen to everything that is said in respect of any of these amendments. However, we who set our names to the Third Reading amendment in the Bill of the noble Earl, Lord Halsbury, also set our names to Amendment No. 113G, which was a probing amendment. I owe it to the Committee to explain why it was not moved. It was simply because the amendment recasts the Bill in its original form to afford a basis and an opportunity for discussion. There has been a full opportunity for discussion. I hope that Members of the Committee will support the principle of Clause 28, find the government amendment acceptable and not accept Amendment No. 114.
The Earl of Halsbury: I shall not make a long speech. On Second Reading I acknowledged the draftsmanship of my Bill. I acknowledge the draftsmanship of the noble Lord, Lord Campbell of Alloway; it was a team effort from beginning to end. Naturally, if one has counsel learned in the law as a member of the team one looks to him to do the

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drafting. What he said is true and we owe a great deal to him. It is for that reason that I advised the Committee to abide by the considered and considerable wisdom of the noble Lord, Lord Campbell of Alloway, who has lived with the situation with me and my friends for over a year.
Naturally I have been deluged with many letters about homosexuality, most of them written by homosexuals. The one that I like best read:
"I want to say how fed up I am with my fellow homosexuals. They have brought it upon themselves, their unpopularity. They are too promiscuous, too aggressive and exhibitionist. I cannot stand the sight of them. I wish they would keep themselves to themselves.".
He added the rider:
"I cannot help what 1 am but 1 can help what 1 do. Yours faithfully,".
I thought that that was a pretty good letter.
Subsection (4) of the amendment is the basis of fudge after fudge. We have lived through it for years, and everytime one tries to include the issue in a statute it ends as a fudge.
Lord Soper: I oppose the clause—
Lord Somers: I support almost everything that was said by the noble Viscount, Lord Falkland—
Noble Lords: Soper!
Lord Somers: I say "almost" because I believe he said the promiscuity is no worse when indulged in by homosexuals than when indulged in by heterosexuals. With that I heartily agree. Promiscuity is a bad thing and one should not encourage it in any form. The noble Viscount said that homosexuals regard themselves as normal. One has only to look through the entire animal world to realise that it is abnormal. In any case, the clause as it stands does not prohibit homosexuality in any form; it merely discourages the teaching of it. When one is young at school one is very impressionable and may just as easily pick up bad habits as good habits. I suggest that that is a sound piece of legislation and I sincerely hope that the Government will keep it and not accept any argument to the contrary.
Lord Soper: I oppose this clause for reasons which I shall define briefly. At the outset I shall confess the difficulties which confront anyone endeavouring to approach the matter from a Christian point of view. In the absence of my ministerial and other friends—except for one, I am glad to see—we are in great difficulty from the Christian standpoint, and we had better confess that.
Jesus said nothing about homosexuality. The early Church took the precaution of a totalitarian view from the Old Testament in order to define homosexuality as an abomination. Of course, it is not; it is a condition. The Church did not respond to the discoveries that were made in the scientific field by which the whole concept of sex as relationships between male and female has now been decided by mechanical and other devices which have left no doubt as to the position. Therefore, it would be impudent for me to pretend that I could speak for the
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Church in saying that is it is right and proper to reject this clause. I have to make up my mind as to what are the reasons for which any amendments are more suitable than the clause itself. I am drawn to this particular amendment. I am gratified that the noble Lord, Lord Henderson, in his admirable speech, reminded the Committee that there are difficulties here which have yet to be resolved. I present two of them. I find it a little impudent, if I may say so, where it states:
"any material which is published in the bona fide belief that such material serves, or may serve, a literary, artistic, scientific or educational"
there is no reference to religion. It is a curious age—is it not?—in which the absence of the religious element seems to be almost automatic in dealing with these moral problems? It is essentially a moral problem, and it is a moral problem which, in my judgment, can only be approached if we can find some parameters of judgment.
I begin with the concentration in this field of sex on one aspect of sexuality. May I remind the Committee that when I was a child the vocabulary on sexual matters was strictly limited. Nowadays it is widespread. Unfortunately, there is no dictionary available at the same time as that vocabulary becomes more prolific. The Committee may be interested to know that these questions of homosexuality in particular are current in discussions indoors and outdoors. The imperative need is, as I see it, that if we are to educate people further than the vocabulary-cognisance that they may have of various words, we must avoid the emotive consequence of leaving them uncriticised that they may attain, as they do, and acquire all kinds of emotive and thoroughly disagreeable elements which seem (at least to other people and particularly the youngsters themselves) a correct definition of the word which comes so easily upon their tongues.
There is an added problem. I take it that part of the acceptable diet of the normal human being is a sexual ingredient, but I deplore the fact that there has come into being in my lifetime such a preponderance of emphasis upon sexual matters motivated not least by the press and expressed in many of the less reputable productions in other forms of the media. The trouble is that one suffers from indigestion if one takes too much sex into the content of one's spiritual stomach, and most people today are not equipped and not fit enough to absorb the amount of sexual stimulation to which they are constantly exposed.
These may sound rather pompous, moral judgments; but they lead me to the conclusion that in the rejection of this particular clause we do not avoid the responsibility of a far better educative process in this strange, emotive, tumultuous, sexual issue and to isolate one of the aspects of it is, in my judgment, impudent. Do I not sense a smell of fascism about this emphasis on homosexuality? I do. And I am old enough to remember what it was like when that was rampant not so very long ago. Do I notice a kind of attitude in which there is confusion between homosexuality as a condition and homosexual acts—good and some bad? Of course I do, and that confusion is written into this clause.

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What I find so desperately important is the kind of compassion which I thought irradiated the initial speech of the noble Viscount in talking about matters which are intimate. I can speak of them in my old age as retrospective, and what nostalgia I have is hard to command. But at the same time I have no doubt whatever in my own mind that we are in a perilous strait of circumstance if we isolate problems like homosexuality as if they belonged to the category of evil just as heterosexuality may be regarded as the category of good.
I have some very good homosexual friends and I intend to maintain that friendship. I have no witch hunt in my make-up to pursue them as if they are the archetypal kind of evil from which we have to flee, as from the devil. I agree that many homosexuals are arrogant as a kind of counter-productive effect to the way in which they have been mistreated. I want for them compassion and understanding. I do not believe that this clause will give them either. I believe that if we cannot so emasculate this clause from the evil conditions in which I believe it is conceived, we have no right to go further with it and it is for that reason that whatever I may say in general support of the intentions of this particular amendment, increasingly as I ponder on this matter I think I shall vote that it do not stand part of this Bill becaues I think it has no constructive part to play and I hope it will be rejected.
6 p.m.
Baroness Cox: In speaking to Amendment No. 114, may I also speak to Amendment No. 116ZA in the name of my noble friend Lord Caithness and to my own manuscript Amendment No. 116ZB?
Lord Elton: On a point of order, would my noble friend read out her manuscript amendment?
Baroness Cox: It has been made available but it is very short and reads as follows:
"Page 28. leave out lines 20 to 23 and insert—("(b) Permit the teaching or use of any material which promotes homosexuality in any maintained school;").
I will explain the rationale behind it through my brief remarks.
Perhaps I may say at the outset that I support the broad intention behind the other two amendments to which I am speaking; but I am concerned about semantic vulnerabilities. First, if I may address the amendment in the name of the noble Viscount, Lord Falkland, I seek categoric reassurance that the words in Clause 4 which include the word "educational" do not open the floodgates for the kind of policies espoused by some local education authorities to promote the so-called positive images of homosexuality in schools and playgroups. Those policies have caused very grave concern to parents and the public. I shall not repeat many of the points made at Second Reading; but I emphasise once again (to meet the point raised by the noble Lord, Lord Soper) that I am not and never have been against teaching which increases understanding about people who have different sexual orientations, which reduces victimisation of homosexuality and particularly that such teaching should be offered in an especially
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sensitive way to children or young people at an age when some of them, as senior pupils, may themselves be realising that they are homosexual. Therefore, I have never been against that kind of appropriate, sensitive teaching and discussion in schools.
However, I am strongly opposed to teaching and dissemination of materials which may influence young people at an age and at a stage when their sexual identity is still emergent and when that teaching may have deep psychological effects. I am also strongly opposed to teaching which offends parents and which thereby leads schools into violating their role and responsibility to act in loco parentis. Therefore, if the words in subsection 4(a) of the amendment in the name of the noble Viscount, Lord Falkland were to result in the effective dilution of protection of schools, then I should have to oppose it very strongly. I should like also to point out that that is an argument put forward in an article in The Times a little way back when The Times itself said that on these matters parents would actually require the protection of central government.
One argument that has been put forward by noble Lords opposite is that the kind of words in the amendment in the name of my noble friend Lord Caithness might have the effect of censoring as teaching material works of literary value. I do not believe that that follows logically at all. No one will use those words to censor out the reading of works by authors such as Oscar Wilde or Virginia Woolf. Those are judged on literary merit or substantive content. They are not judged according to the sexual orientation of the authors. I suggest to the Committee that that argument is a distraction and a red herring.
My second concern relates to the words "pretended family relationship". I suggest that those words are invidious, for reasons already suggested by other noble Lords. Moreover, they are inadequate in dealing with the range of material recommended for teaching in the resource lists produced, for example, by the Inner London Education Authority in its resource list on positive images, or in books such as School's Out written by gay teachers. For example, those words "pretended family relationship" might cover books such as Jenny Lives With Eric and Martin which the Committee will remember shows photographs of a little girt in bed with her father and his male adult lover.
I suggest that those words will not cover other recommended books such as The Milkman's On His Way. That book is strongly recommended in the book School's Out. It deals in explicit—some would say pornographic—detail with the sexual intercourse between a teenager and his male adult lover. I will not read out the most sensitive and the most explicit parts. It is recommended for children still at school. For Members of the Committee who have not had a chance to realise what we are talking about—we are not talking about Oscar Wilde or Virginia Woolf—I quote:
"Kisses, gentle hands touching skin. Drifting towards sleep. 'I don't have to wonder if you enjoyed it, he said, later. I smiled. No answer was needed. 'Or if we were the right way round." I opened my eyes. "I just want it again. For ever and ever like that. Till I'm ninety-six and dying.'".

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If Members of the Committee read that in conjunction—
Lord Hutchinson of Lullington: The noble Baroness is quoting from one book out of 200 items in a resource list for ILEA found in a library. She has taken one sentence from one book. Has the noble Baroness any evidence that that book has ever been shown to a child in a classroom?
Baroness Cox: I should like to make two points in that respect. I said that it was not taken only from the resource list produced by ILEA, though that in itself is quite serious. Although it is pointed out that it is voyeuristic, nevertheless, it is there. It was originally recommended for 15-plus and now recommended for 16-plus. It is also given a most glowing recommendation in the book called School's Out, which is written by gay teachers, in which it is recommended very strongly for use in schools. I stand by what I have said. I will show the noble Lord the reference if he wishes to see it.
May I also take issue with the noble Lord, Lord Henderson of Brompton, who accused me of gullibility? The book The Milkman's On his Way was available to and taken out from a public library by a 15-year-old girl. I have the evidence to support that.
Lord Henderson of Brompton: Will the noble Baroness confirm what she said, or withdraw it, about the Borough of Lambeth? My investigations prove that what she said was founded on wrong information. I believe that my informaton is rather better than hers.
Baroness Cox: I should be happy to debate the Borough of Lambeth with the noble Lord and with teachers of the borough after this debate. I am giving my proven evidence relating to Haringey, because that is where I have seen that book. However, I shall certainly find some correspondence vis-à-vis Lambeth for the noble Lord.
I come back to the point regarding the wording "pretended family relationship" and why I am unhappy about that wording. I believe it is too narrow and too limiting. As 1 said, it would perhaps allow some of the other material which is recommended with regard to the positive image of homosexuality to pass through a loophole.
Therefore, in an effort to be helpful I have tabled my own manuscript amendment without the words "pretended family relationship". I believe that my amendment is more simple and straightforward but that it preserves the protection of young people which I believe must be the overriding concern of all Members of the Committee.
6.15 p.m.
Lord Kennet: I rise to make a point which I have not heard much, if at all, in the debate on this Bill both in Parliament and in the country. Clause 28 states that a local authority shall not do certain things. I agree with the criticisms which have been made from all parts of the Committee, and in the
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country, about the way those things are drafted as defined in Clause 28.
Let us for the moment leave that aside. I wish to draw the Committee's attention to the fact that it is only upon local authorities that the prohibition will lie. The Government's attention was obviously caught by Jenny Lives With Eric and Martin and perhaps one other book. There was only a little evidence that anything really undesirable was going on. However, if the Government had wished to make it perfectly clear that such teaching and such material being laid with commendation before children must not be allowed, then I submit that the logical action would have been to introduce a general prohibition upon all persons, whether individual or collective.
This is a local government Bill. It is not a homosexuality Bill and it is not an education Bill. It imposes a disability upon one class of persons, and one only, to the exclusion of all others. If the governors of a private school wish homosexuality to be promoted in their school they will not be impeded by this clause. If a theatre company in receipt of central government grant—mark this, in receipt of central government grant as opposed to local government grant—wishes to put on a play appealing to children which will "promote homosexuality" it will not be impeded by this clause. If a library or library association, or a museum or association of museums, not in receipt of a local government grant wishes to do the same, it will not be impeded; and so on throughout the whole range of persons, individual or legal, who could do so.
That, I believe, is reason enough to invite the Government to think again and to acquiesce that the clause does not stand part and to bring forward their reasons at a later stage for singling out the local authorities for this disability.
The noble Lord, Lord Henderson, raised the question: whence the U-turn and, in any case, why not put it in a code of conduct? I am in no position to answer either of those questions, but I wonder whether the Government would have made such a meal of it if the original offence concerning Jenny Lives With Eric and Martin had been committed not by Labour local authorities but by some other category of persons. If it were true, and I hesitate to descend from a lofty level to a party one, and if it were thinkable that the Government were encouraged to have another go at the loony Left authorities by means of this high moral Bill, perhaps that would be another reason for the Government acquiescing in what I hope will be the situation; namely, that the clause does not stand part of the Bill.
Lord Marshall of Leeds: Before the noble Lord sits down will he please consider that local authorities are creatures of statute and derive their powers statutorily. They do not get them from anywhere else. Is that not a proper answer to the question posed by the noble Lord?
Lord Beloff: There is another answer to the extraordinary argument just advanced by the noble Lord. After all, we are talking about schools, which are fundamentally at the root of this clause as I shall endeavour in a moment to demonstrate.

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Those people who send their children to a private school have the possibility, if they are offended by the nature of some of the instruction, of withdrawing their child. Those people who are within the educational ambit of a local authority which promotes matter which is repugnant to them on moral or religious grounds may protest but, as we have been told previously in this Chamber, when they try protesting to the local authority they may be subjected to verbal and even physical abuse. We are concerned with protecting parents, and the parents at risk are only those who have no alternative school. We are now clear that what most noble Lords opposite—it probably does not apply to the noble Lord, Lord Henderson—are doing is not to seek to amend any infelicities in this clause but to have it rejected altogether.
Why? We have been told by the noble Viscount that there is a great deal of confusion in the public mind. I believe that the confusion is attributed by him to a public which, according to most public opinion polls, and as one's correspondence shows, is not confused at all. His two foreign journalists may well have been confused for a perfectly valid reason. I agree it is very improbable that a debate of this kind would take place in the legislature of any of our Continental neighbours. I do not know where his two journalists came from. The simple fact is that the curriculum and what may be taught is settled centrally; there are no local authorities or teachers' groups who could introduce, let us say, into the French educational system the propaganda or promotion of homosexuality. Therefore they may have been perplexed that Parliament was required to intervene.
They may have been even more perplexed—as many of us have been—by the kind of propaganda we have received against this clause from the alleged representatives of the intelligentsia. There is perhaps confusion in the sense that the public, the ordinary citizen has a fairly clear view of what he wants and does not want. On the other hand, those who speak for the Arts Council or the PEN Club, with their superior minds, can adduce arguments. I have read the legal opinion submitted to the Arts Council; it seems to me to be extremely specious. As the noble Baroness, Lady Cox, has said, it argues that this could lead to the banning from libraries the works of Oscar Wilde, the banning of concerts of the music of Mahler and stuff which is such obvious nonsense that it is difficult to believe that noble Lords who put it before us even believe it themselves.
It is as though one were to say that because being an accessory to murder is a serous criminal offence somebody is going to remove the works of Agatha Christie from the public library in case they should put the idea of murdering someone into a person's head. I am afraid that one comes to the conclusion that although they know these arguments are specious, although they know perfectly well there is no threat to artistic freedom—if there were such a threat I would be the first to oppose it—they are putting this amendment forward as another bulwark in order to persuade people to vote on the only substantive issue, which is: "Are the Government right to try to protect even a minority of children and
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their parents for whom this kind of teaching is a worry as to the possible impact upon impressionable minds?"
As I have said and despite what the noble Lord, Lord Soper has said, the great religions professed in this country—namely, Christianity, Judaism ( my own religion) and Islam—do not regard homosexuality as the equivalent of the normal human affections which scripture describes and to which this country has hitherto also subscribed.
Lord Willis: Some of the statements made in the debate so far are typical of the fog of emotive issues that surround this subject. For example, the noble Earl, Lord Halsbury, mentioned that he received a letter from a homosexual saying that homosexuals have brought this upon themselves because they have been too flashy; they have flaunted themselves, and so forth. It is curious that we do not hear too much about the heterosexuals and the way they flaunt themselves. I was recently at a film festival, and you should have seen the heterosexuals flaunting themselves on the beach and along the promenades. Why do we have to distinguish in this particular way?
We have been talking about these two booklets which have been issued. They are not booklets that I particularly condone. It is possible to cross from the school gates into a newsagent's shop and buy the most abominable horror comics and the most abominable sexual horror comics. Children are buying these but we pay no attention to that. It is this kind of imbalance that I worry about because of the emotive nature of this word "homosexual".
I support this amendment but I do so with a sinking heart. We seem to be more and more having a clause not stand part debate. Although this amendment is an improvement, like the noble Lord, Lord Beloff, I have never really been too frightened about the clause even as it stands being a threat to artistic freedom. I believe that to make too much fuss about it would create a diversion from the main problem that I see in this clause. I am glad that the amendment removes any possible doubt on that score.
Nothing I have heard so far has convinced me not to oppose the clause in its entirety when the time comes. I do so because it is based on misapprehension and misinformation. To a great extent it is based on what I believe to be mistaken and unconscious fear and prejudice. For example, there is misapprehension about the role of local authorities. They have a social role as well as an administrative one. They have a duty to provide certain welfare services for the community which elects them.
Lord Campbell of Alloway: Would the noble Lord give way? I am obliged to the noble Lord. This clause is not based upon any misapprehension of the functions of local authorities. The view was taken—certainly by me—that the whole ethos and the traditions of local authorities were being sorely traduced and that a new balance ought to be set between central government and devolved government. This is part of it. There was no misapprehension because it was totally and wilfully done to prevent one aspect of abuse of the rates.
6.30 p.m.
Lord Willis: The noble Lord made a very long speech in his own defence, and he will forgive me if I continue with mine. I maintain, and I believe it has been proven, that local authorities have a social role. Thus it is considered right and reasonable for local authorities to provide funds and to support the setting up of counselling services, meals on wheels, advice centres for battered wives, the victims of rape and assault, and so on. In a wider sense they are responsible for the funding of libraries and civic theatres, which may be considered to be a social service. This clause, which has been hurriedly drafted and pushed through in another place with undue if not indecent haste, could lead to one small section of the community being deprived of access to those social services.
Homosexuals, who pay rates and taxes like everyone else, are singled out, and they are the only group to be so. They are singled out for special mention in this clause. In a certain sense this at once places them outside the community. Perhaps I may take as one example the area of counselling. I have had dozens of letters from anxious and distressed parents. They are concerned because at one time or another they have learnt that one or other of their children is homosexual. Nobody is responsible for that; it is a matter of pure nature. Heterosexual parents living an ordinary family life suddenly face the situation of having their son or daughter confess that he or she is homosexual. I dare say that many of the Members of the Committee must know of parents who have had to face such a situation.
They fear that if Clause 28 is implemented they will be cut off from help.
Do those people not have the right to seek advice and help for themselves and for their sons and daughters? It is a tremendous shock—perhaps it should not be—for a heterosexual father or mother suddenly to hear their grown-up son or daughter confess to being homosexual. They need help to adjust. But under Clause 28 it would be dangerous for the local authority to give them any guidance or counselling. The children may need help more than the parents, because if the children discover that they are homosexual they have to come to terms with that sexuality in a hostile world. There are many children who cannot stand it and who go mad or commit suicide.
If a local authority gave funds to a counselling service, would it be accused of promoting homosexuality? I know that it will be said that that is not the intention of the clause; but it is naive to think that it could not happen. That is where fear and prejudice come into the picture. In the past year or so, partly due to the fear of AIDS as the noble Viscount, Lord Falkland said, and partly due to the excesses of some extreme gay groups, there has been a distressing revival of what was known as "queer bashing". The noble Lord, Lord Soper, mentioned fascism. He was not exaggerating. If anyone thinks he was, let me remind the Committee of the statement made by the leader of the Staffordshire District Council in December, 1986. He called upon the British Government to "gas queers". Had such a statement
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been made about blacks or Jews, the person concerned would have been hauled up before the courts. But it seems that homosexuals are fair game for the bigots, and that we are now to declare an open season.
It has been suggested that all homosexual AIDS sufferers should be put into remote camps. That is not far from fascism, is it? "Gas queers", "put them into camps"—the noble Lord, Lord Soper, was not far wrong. It is also instructive to note that the media paid little attention to that gentleman from the Staffordshire council, while printing story after story about the so-called activities of homosexual groups and certain local authorities. It is not true that most homosexual groups or people spend their time and local authority funds in the promotion of homosexuality, any more than it is true that heterosexual groups spend their time in the promotion of heterosexual activities.
I appeal to the Committee. Is there anyone in this place with no homosexual friends—as I have many—who lead ordinary, straightforward, decent and taxpaying lives? Most of us have such friends. What are we saying in this context? Are we saying what the Germans said, "Oh well, we know one good Jew"? That again is the smell of fascism.
The National Council of Voluntary Organisations confirmed what I have just said when it made a report on the activities of those financed groups. It said:
"The report finds that in counselling and advice services, housing provision and AIDS-related work, the voluntary organisations do not encourage people to become homosexual, or claim that homosexuality is superior to heterosexuality. Instead they aim to offer non-judgmental help and support to people."
Let us look again at the facts with regard to expenditure by local authorities. If one listens to some people one would think that some boroughs were spending fortunes on the promotion and setting up of counselling groups. Two of the most criticised groups were those in Camden and Haringey. Camden's 1987–88 budget figure is £138 million; that is its total budget. The lesbian and gay budget for the year is £133,000 which is 0·096 per cent. of the total budget. Haringey's total budget for 1987–88 is £204 million. The lesbian and gay budget is £127,000; that is, 0·06 per cent. Is that wild and extravagant, considering the number of homosexuals in the community? If we accept that there are people who should have access to council services, advice and help, is that extravagant?
We do not need this clause. I am saddened that we need even to discuss it. To some people it may seem limited in scope, but like the noble Lord, Lord Soper, and the noble Viscount, Lord Falkland, I see it as the first breath of a chilling wind of intolerance, the first page of a charter for bigots. In the first place, the clause stresses only the negative aspects. It is a monument to ignorance, about which I shall not speak now, concerning the very nature of homosexuality. We do not need legislation of this character.
If a local authority steps over the line, as the noble Lord, Lord Houghton said, let us leave it to local citizens to deal with the situation, because that is what democracy and local elections are all about. This subject has been blown up beyond its

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importance, as I indicated, in relation to the amount of money spent on these projects. The clause sets our feet on a dangerous path. Pass it, and the Committee will have taken the first step towards embittering, isolating and frightening the homosexual community. Thus the Committee will create the very situation that it wishes to avoid: a siege mentality among a minority.
I believe that tolerance may be defined as the positive, generous and open-minded effort to understand one another's beliefs, practices and habits without necessarily sharing them. This place has a notable record for tolerance which I hope it will show again in relation to the clause.
The Earl of Bessborough: As president of the British Theatre Association, I have been much concerned about the amendments. I agree fully that there must be a clause relating to this issue. Therefore, I cannot agree with those noble Lords, like the noble Lord who has just spoken, who say that the clause should be deleted.
I am concerned, as were the noble Viscount and the noble Lord, Lord Henderson, that nothing in the clause should apply to material which serves, or might serve, a literary, artistic, scientific, educational or religious purpose. When I read the booklet called Gay Lessons by Rachel Tingle, it became clear to me that some action must be taken. I agree that the amendment tabled by my noble friend Lord Caithness inserting the words "intentionally" and "intended", goes a considerable way towards meeting those who fear that the word "promotion" might be abused. However, on the whole, I should have preferred to see a clause more on the lines of the Arts Council draft, as supported by the noble Viscount, on the issue of artistic and scientific works.
As president of the British Theatre Association, I have been lobbied more intensely on this clause than on any other Bill or debate in the 32 years that I have been a Member of this place. Like other noble Lords, I have received hundreds of letters, many of them multi-signed, from scores of theatre groups, professional and amateur, representing, as I understand it, some 150,000 people. I cannot ignore what they say, nor can I ignore what the chairman of Faber & Faber said in his letter to The Times on Saturday, nor the letter in The Times today from the president of English PEN and others.
It would clearly be grotesque if the clause as it stands prevented the production of plays of classic importance, if they were supported by local authorities or if some local authorities interpreted the clause as meaning that public libraries should no longer stock, say, Proust's "Remembrance of Things Past", or many other works of fiction. There is a very long list of works of considerable literary merit which refer in some way, maybe only incidentally, to homosexuals.
I understand those who consider that the clause as it stands might be the thin end of the wedge. Surely, as was written in the Spectator this week, there are other abuses such as bestiality which local authorities should be forbidden to promote. I must admit that up to a point I quite like the Arts Council draft
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amendment as moved by the noble Viscount, Lord Falkland, and the noble Lord, Lord Henderson. I therefore hope that my noble friend Lord Caithness will be able to add a reference to artistic and scientific publications perhaps when we come to the Report stage.
Finally, I shall certainly support the present amendment of my noble friend Lord Caithness which goes some way to meet my point, especially if he can assure me that anything serving a truly artistic, scientific or educational purpose will not be affected by this clause. I cannot ignore the hundreds of letters from people who have written to me. Nonetheless, I agree very much with my noble friend Lady Cox that there must clearly be a clause in the Bill taking into account the blatant promotion of homosexuality which has been going on for example in Haringey and Brent.
I have my doubts about this wording and the phrase "pretended family relationship". I think it is a mistake. I understood from the noble Lord, Lord Henderson, that this was to be dropped from the amendment by the noble Viscount, and I certainly think it should be deleted.
Lord McIntosh of Haringey: I intervene at this stage from the Dispatch Box not in any way to inhibit my noble friends from further intervention—nor anyone else who wishes to speak. I do so because I think we are in danger now of having a debate on clause stand part rather than the amendment which is before us. It is important that we should try our best to get back to that. These are different issues. It is not like the publicity issue which we were debating a couple of hours ago. There are different issues involved and further amendments which deserve debate before we come to the clause stand part debate. I should like to concentrate our attention on going back to the amendment moved by the noble Viscount, Lord Falkland, and the noble Lord, Lord Henderson.
I have a particular reason for concentrating on this amendment rather than on the clause stand part debate because, as I made clear at Second Reading, I stand in a different capacity at this Dispatch Box when speaking to amendments. In other words, I hope to speak on behalf of my noble friends on this and other amendments rather than on clause stand part where I think it will be recognised that there is no question of a whip, and there will be a free vote as a matter of conscience.
The Earl of Longford: Perhaps I might intervene. I understood that there was no question of a whip on any of the amendments.
6.45 p.m.
Lord McIntosh of Haringey: I hope to expand on that matter in relation to this amendment and that what I say will be acceptable to my noble friend. The benefit of this amendment on which we ought to concentrate, as I see it, is that it deals quite comprehensively and effectively with what the noble Lord, Lord Beloff, charmingly called the "infelicities" of the wording of the amendment. There are many things worse than "infelicities". The

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words "promotion", "pretend" and "acceptability" are fundamental to the difficulties which we have with this clause. They have to be dealt with, clarified, if any sort of a clause on this subject is to be acceptable to Parliament and workable in the country.
I understand that the advice which the Government are receiving is that the word "promotion" refers specifically to proselytising activities, to attempt to persuade people to become homosexual. Apart from a deep doubt as to whether that is possible through any activities of a local authority—I have never known local authorities to be very effective in propaganda of that sort—there are equally strong and widespread legal opinions that it means nothing of the sort. It means a much wider form of promotion. This is the advice which has been given to the National Council for Civil Liberties, the National Council of Voluntary Organisations, the Arts Council of Great Britain and to many other organisations. If the Government believe that "promotion" means proselytising, then they should say so. They should take out the word "promotion" and insert the words "persuading anybody to become a homosexual", rather than the broader words which they have at the moment.
The noble Lord, Lord Henderson, rightly referred to the difficulty about the word "pretend". Is it just an old-fashioned way of saying a "claimed" relationship, or does it mean something else? Again, it is the responsibility of the Government, if they wish, to defend this clause. Their amendments indicate that they do wish to defend it not quite but virtually in its entirety. If so, then they must deal with this and make it understandable to ordinary people and to a consensus of lawyers.
Finally and perhaps worse, there is "acceptability" which immediately raises the question: acceptability to whom? Is it acceptability to pressure groups of the right or the left? Is it acceptability to libertarian pressure groups or authoritarian pressure groups? Is it acceptability to the man on the Clapham omnibus or acceptability to a primary school child? There is no indication of that anywhere in this clause. Until something is done about the word "acceptability" or until it is wiped off the face of the clause, it is difficult to see how this clause will have a coherent and useful effect.
The last word on these difficulties of terminology, in my view, was given by the noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Hooper, a year ago when they said that these words were capable of harmful misinterpretation, and that the Bill, which was proposed by the noble Earl, Lord Halsbury, was unnecessary. If that was true then, there has been no evidence whatsoever that it is untrue now. It is difficult to see why the Government are changing their mind.
There are specific advantages to these amendments which I should like to suggest make it worthy of support. The matter of literary, artistic, scientific and educational merit has already been canvassed; but I should like to refer to something which has not yet received any attention: treating or preventing the spread of disease. The Association of Metropolitan
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Authorities wrote to the Minister on 5th January this year asking specific questions about the services of local authorities in relation to the spread of disease and dealing with AIDS. They asked whether, under the clause as it would be amended by the Government, it would still be possible for them to give aid to voluntary groups which sought to disseminate information about AIDS. They asked whether the word "treatment" of AIDS extended to the concept of care and counselling; in other words, help to those who might already be infected. They also asked whether the word "prevention" meant the aspect of prevention which is covered by sex education.
I understand today from the Minister of State's office that a reply is expected tomorrow. It is a great pity that there was no reply available in time for the debate this evening because clearly it is of great importance to our understanding of the responsibilities and rights of local authorities that we and they should know whether the valuable work which they do at the moment to combat the spread of AIDS will still be possible if this clause goes through without substantial amendment.
Coming back to the the issue of the promotion of homosexuality, I think that there will be a general consensus in the Committee with remarks that have been made on all sides about the dangers, particularly in schools, of some publications which have been referred to. I do not think that they have been as widely used as has been suggested; but there is no doubt that they are there, and there is no doubt that there are individuals and groups of individuals—although there is doubt about whether there are authorities—who would like to see their wider use. That has been the starting point for the campaign which has been carried on in support of previous legislation and in support now of this amendment.
I suggest that the activities even of the gay and lesbian groups in local authorities are overwhelmingly not of that character and overwhelmingly of a quite different character. It is confirmed by the National Council of Voluntary Organisations that on the whole they seek to attempt to diminish fear on the part of those who find themselves to be homosexual. They seek to counter discrimination against homosexuals; they seek to break down the barriers in ordinary life which exist between homosexuals and heterosexuals; they seek to make life better for homosexuals. That does not mean encouraging promiscuity or encouraging proselytisation. It just means encouraging homosexuals to have a decent, ordinary and acceptable life. They seek above all to help homosexuals to contribute to society in the work that they do; in the arts that they can contribute to society; in the knowledge that they can give to society and in the work that can be done, particularly in the caring professions. In those respects, which are much more important in terms of the contribution that local authorities can make on this subject than any of the more damaging aspects that have been mentioned, I believe that the clause as amended would be preferable to the clause as unamended. I support the amendment.

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I come to the issue which my noble friend Lord Longford referred to. I recognise that there are, among Members of my party, those who feel very strongly about homosexuality. They are strongly opposed to it and to any expression of homosexuality. They feel very strongly that we should not by amendment or by support of the original clause do anything to support homosexuality. I respect that view; but I hope that it is held by as few as possible of my noble friends.
The Earl of Longford: I may say that that view is not held by me.
Lord McIntosh of Haringey: I did not go so far as to accuse my noble friend of that. However, I know that there are people who take that view. But what I would hope to persuade my noble friends, and what my recommendation would be with all the strength that I can give to it, is that this is a rational, a reasonable, a helpful and forward-looking amendment to the clause and that it deserves all the help it can get.
The Earl of Caithness: If I sense the mood of the Committee it might just be that 1 should say a few words at this stage.
This debate has become the focus of the great concern voiced in recent weeks about the effects of Clause 28 of this Bill on the activities of local authorities. These concerns have been ably summarised by the noble Viscount, Lord Falkland, and by the noble Lord, Lord Henderson of Brompton, in moving the amendment which stands in their names. The purpose of the Government amendment which we are also debating—and my main purpose here today—is to remove those concerns which we think are misguided.
Let me make it absolutely clear at the outset that the clause in no way imposes some form of discrimination against homosexuals. The Government are firmly opposed to all forms of discrimination. To listen to some of those who have spoken in public about the clause, the Committee might be forgiven for thinking that the clause would stop local authorities providing services to homosexuals, would stop local authorities helping groups that have homosexual members, and would stop local authorities having any books or works or art by anyone who might be thought to have been a homosexual—in short, one might think that the clause erected a Chinese wall between local authorities and homosexuals.
It is a familiar device to set up an Aunt Sally, pretend that it actually is one's opponent, and then knock it down. That is just what we are seeing here. I do not for a moment question the sincerity of those who have attacked the clause, but most of them are attacking a dummy which bears little or no relation to the clause as we have it before us. Full of sound and fury though their arguments may be (if the Committee will permit me a Shakespearean allusion in a debate that seems so concerned with the arts), those arguments are wide of the mark.
I must say to the noble Lord, Lord Willis, (whom I am glad to see returning to his place) that the clause
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would in no way prevent local authorities ensuring that parents or children have access to counselling services to provide help in an objective and helpful fashion. That is quite different from intentionally promoting homosexuality which is what the clause prohibits.
I first want to explain why in the Government's view there is no real difficulty with the clause as it stands. I shall then go on to set out why nevertheless we think that the clarificatory amendment that we have put down is justified. Thereafter it might be helpful to the Committee to demonstrate why we are not prepared to accept the amendment so clearly explained by the noble Viscount, Lord Falkland. Finally, I shall comment on the other amendments that are also in this group.
Let me therefore start with the clause as it stands. Far from being introduced with unseemly haste, I would remind the Committee that only a year ago your Lordships passed a Bill whose operative part was identical to the clause we are now discussing. There was then scarcely a dissentient voice on the principle at stake and certainly no Division. It was then introduced in another place. Notice of the amendment was given well in advance of the debate. The new clause was not starred as the noble Lord, Lord Henderson of Brompton, said that it might have been. It was taken on the last day of the sitting because new clauses are in another place. It was taken after all the amendments to the clauses in the Bill as introduced.
When this was tabled in another place, the Government took the view that this formulation, which had already been accepted by your Lordships, encapsulated well a satisfactory approach to the mischief. Let me to try to explain why. Some Members of the Committee are concerned about the vagueness of the word "promote". We do not think that this is justified. Language naturally has an "open texture". Words are coloured by their context. But we think that "promote" has a clear meaning. If one promotes something, one is deliberately doing something to give what is promoted a more favourable treatment, a more favourable status or wider acceptance, than other things or than that thing hitherto.
The Oxford English Dictionary and its supplement make this natural meaning of the word clear: to further the growth, development, progress or establishment of anything: to help forward a process or result; to further, advance, encourage; and in the context of advertising, to further the sale of an article. What promotion is concerned with is therefore all forms of activity designed to enhance the status of something. Thus in banning the promotion of homosexuality we think the promoters of this clause well encapsulated the range of activities for which local authorities should not be using the ratepayers' and taxpayers' money
I now turn to the question why the Government have decided to propose an amendment. I start from the point that we have always been clear that what is prohibited by this clause are those actions which are deliberately carried out by the authority for that purpose. This being so, it follows that no action

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undertaken by a local authority for any purpose within the authority's powers, untainted by any intention of promoting homosexuality, would be prohibited by the clause.
From this it followed that there could be question of the clause affecting many of the examples that were cited as being likely to be upset by it. Local authorities have a duty to provide a comprehensive library service: provided that this, and this only, is what they intend to do, there can be no question of the clause inhibiting them from stocking any book that they think necessary for that purpose. Local authorities have power to provide entertainments. Provided that this, and this only, is what they are intending to do, there is no reason why the clause should inhibit them from staging plays by Joe Orton or Oscar Wilde. Local authorities have power to assist voluntary organisations providing public services. If they want to support a homosexual "help-line", provided that they do so on the same basis as they would support a similar facility for any other section of the community, the clause gives no reason why they should not do so.
Since this was the Government's view of the clause, there seemed no reason why we should not say so. We have therefore brought forward an Amendment (No. 116ZA) which makes it explicit that what we are banning is intentional promotion of homosexuality.
The second government amendment (No. 117A) is a necessary safeguard to this. It is not inconceivable that a local authority might claim that its intention was one thing, when any independent outside observer would be quite clear that this was just a sham and what it was really intending to do is to promote homosexuality. The second amendment in my name therefore makes it clear that the courts are not bound by any such sham claims, but can take the position of the independent outside observer and judge from what the authority does, as well as what it says, what its real intention is.
Having thus explained the attitude that underlies the Government's view of the clause and the Government amendments, I must now explain to the Committee why we cannot commend the amendment moved by the noble Lord—
Lord Peston: Perhaps I may interrupt the Minister before he moves to the next point. He is seeking to reassure the Committee about the nature of the clause as put forward and as he seeks now to amend it. I wish to ask him two specific questions concerning his reassurances. Is he saying to the Committee that if the clause in his amended form passes into law, we can be absolutely certain that as a consequence no book will have to be withdrawn from a library? Secondly, may we be assured that no teacher, librarian or other local authority employee who is explicitly homosexual will ipso facto be in danger of being fired from his or her post as a result of the clause being passed into law? Is the Minister able to give us those assurances?
7 p.m.
The Earl of Caithness: No. The book and the teacher to which the noble Lord has referred may promote, by various means, the homosexuality which the clause is designed to ban. If the book in question is part of a range of other books on the shelves of a library in a school or of a local library, those are facts to be considered by an appropriate authority at the time.
Having explained the attitude that underlies the Government's view of the clause, I shall explain why we cannot agree with the amendment moved by the noble Lord, Lord Henderson, and the the noble Viscount, Lord Falkland. The first point to note about the amendment is that it does not apply across the whole range of local authority activity. It applies only to what they do in relation to teaching and publishing. All other activities remain unrestricted. We believe that that is unacceptable. Some of the most objectionable forms of action taken by local authorities have been where they are reported to have attached conditions intended to promote homosexuality to grants to voluntary organisations.
The second point to note is that the amendment would only prohibit material which has as its primary purpose the representation of homosexual acts or relationships as more acceptable than their heterosexual equivalents, or the representation of homosexual relationships as pretended family relationships. That again is very narrow. There are many other ways of promoting homosexuality, and those are all equally objectionable.
Thirdly, I say to my noble friend Lord Bessborough that even in the limited area it covers, the amendment provides a major loophole, as identified by my noble friend Lord Campbell of Alloway. It would exempt anything published in the bona fide belief that it serves or may serve a literary, artistic, scientific or educational purpose. I have little doubt that those local authorities which go in for that type of activity would have no difficulty in claiming that everything that they are doing is for an educational purpose. It would be argued that their purpose was clearly to re-educate the public to their way of thinking on homosexuality. Even in the limited way in which that is put forward, the amendment carries the seeds of its own destruction.
We recognise the thought that has gone into the amendment and the unimpeachable motives of those who support it. Neverthelss, we cannot commend it to the Committee, as we do not think that it in any way provides an answer to the mischief at which the clause is aimed.
Perhaps I may turn now to the manuscript amendment of my noble friend Lady Cox. My initial reaction is one of concern at the use of the word "permit" in the amendment. That implies that local authorities have direct control over the content of sex education given in maintained schools. My noble friend is well aware that they do not. The Committee will be aware that Section 18 of the Education (No. 2) Act 1986 provided for control to pass from local education authorities to the governors of schools. Therefore, the most that they can do now is to influence what goes on in sex education in schools.

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However, I should like to take the amendment away for futher consideration between now and a later stage of the Bill. I should also like to consider some of the points which my noble friend raised concerning the original drafting.
The noble Lord, Lord McIntosh of Haringey, proposed a reformulation in his Amendment No. 116A of the exemption in subsection (2) for actions undertaken for the purpose of treating or preventing the spread of disease. We believe that care, counselling and health education in relation to AIDS or other diseases are fully covered by the present formulation in subsection (2), as are all other activities concerned with the treatment and prevention of disease. We feel that the amendment proposed by the noble Lord is rather narrower than the provision in the Bill. Therefore, we should be reluctant to accept it, as we think that the wider basis is right.
Turning to the remarks made by the noble Lord, Lord Kennet, the reason that the clause deals only with local authorities is that local authorities are the only class where there is evidence that public funds are being used to promote homosexuality. However, 1 take his point. Should further examples occur, that will be a matter on which my right honourable friend will have to decide.
Some Members of the Committee have said that the Government have changed their minds on the matter. I wish to make it absolutely clear that we have not changed our minds. If Members of the Committee will read what was said at an earlier stage, they will see that our view has been entirely consistent throughout. My noble friend made it clear that the Government entirely support the purpose of the Bill proposed by the noble Earl, Lord Halsbury. That purpose is the same as that of the clause which we are now debating.
Anyone who has seen the books and materials put out by what I must admit is a limited number of local authorities, aimed primarily at children, will realise that something had to be done. I am sure that it is for that reason that the Opposition spokesman in another place put out a press notice which said:
"It is not and never has been the duty or responsibility of a local authority to promote homosexuality. The Labour Party does not believe that councils should promote homosexuality".
Nor do we.
To sum up, the Government consider that the fears that have been expressed about this clause are misplaced. It is in no way intended as part of some campaign against homosexuals. It is a modest and necessary measure to restrain the activities of some local authorities which have gone too far.
Lord Annan: Even the charm of the Minister cannot persuade me that it is necessary to do this. The Government remind me of a pompous headmaster who keeps the whole school in after lessons because some "oiks" have flicked bread pellets at him during assembly. The oiks in this case are the militants in the so-called gay liberation movement. What they want is a first-class row. They then want to parade their self-righteousness. Why oblige them? The militants do not represent homosexuals any more than the student union activists used to represent students.
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Homosexual men and women ask to be left to live their own lives. They ask not to be harrassed by the police or by their fellow citizens. They ask not to be denied opportunities which are open to their fellow citizens.
By introducing Clause 28, I think that the Government are playing into the hands of the militants. I put it to the Minister that the clause exhibits something which in society as a whole will be interpreted by many people as nasty and illiberal. In recent months the Government have shown themselves far too ready to get into a huff. For instance, they did so with the universities over free speech on campus. They introduced a clause which will probably restrict freedom of speech. I supported the noble Baroness, Lady Cox, on that matter because, I regret to say, the universities had disregarded a specific plea by the Secretary of State and showed themselves impervious to public opinion. Those disturbances had gone on for years. Still the universities refused to put their disciplinary procedures in order.
However, in this case, can the Government point to a single child who has been corrupted by the literature in question? How many local authorities have voted to disseminate that literature? I must press the Minister. I believe that the number is six authorities out of 1,500. I believe that outside London this debate would be regarded as almost unintelligible.
The Government should let public opinion work for them instead of working against them as it is now. I received a letter from a Conservative councillor in Haringey, who said that the campaign that he and others had mounted against these offensive books had stopped the militants in their tracks, and that no homosexual books were being peddled in Haringey. I quote from his letter:
"It would be far better to leave the matter alone and trust the electorate to throw out ill judged council policies".
Is it not possible that one of the reasons why ILEA got rid of Mrs. Frances Morrell was that public opinion was fed up with her activities? Where the welfare of children is concerned public opinion is not slow to form.
Let me turn for one moment to the noble Lords, Lord Beloff and Lord Campbell of Alloway, and to the noble Baroness, Lady Cox, and reply to the question whether this measure is likely to stop serious literature from being disseminated in schools. Obviously the noble Lord, Lord Beloff, thought that that was a purely specious argument. When he said that I recalled what happened when the obscenity Act of the noble Lord, Lord Jenkins, was passed. If ever there was a book which that Act was meant to protect, it was a book such as D. H. Lawrence's Lady Chatterley's Lover. What happened? Directly Penguin published it, the Director of Public Prosecutions brought a prosecution. Penguin were very well-to-do, and I am glad to say that as a result of that prosecution became even better-to-do.
However, local authorities and individual theatre companies, and other ventures even less, would not dare to defend an action if it were brought against them. Where the arts are concerned, I am bound to

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say to the noble Earl that I never trust the establishment—I never trust the judiciary, the police or the Home Office, all of whom can be relied upon to take an illiberal line.
I made my maiden speech in this Chamber on the subject of one of the late Lord Arran's Bills to end homosexuality remaining a criminal offence in all situations. Nothing that has happened since has made me change my view—not AIDS, not the offensive propaganda directed against the most reverend Primate the Archbishop of Canterbury, not the incidents that have led to this clause being put forward, and not even the abduction of that enchanting word "gay" that brightens so many lines of poetry. None of those things has made me change my views.
The Arran/Abse Act was a victory for justice, liberty and tolerance. I am afraid that the Government are falling into the American habit, whenever a mischief is discovered of saying, "There ought to be a law against it". Let public opinion do the job and do not overlegislate. I beg the Government to think again and not to create a loophole for busybodies, humbugs and vindictive queer-bashers.
7.15 p.m.
Lord Hutchinson of Lullington: I do not wish to prolong this debate, because I know that the hour is late. However, the matter is of enormous importance and I should like to make one or two comments on what the Minister has said and to bring the Committee back to the points which were made on the form of the clause. In my submission, that is extremely dangerous and I do not think that many Members of the Committee on the Benches opposite realise the extent of this clause in the form in which it is presently drafted.
It gives me great pleasure to follow the noble Lord, Lord Annan, and the noble Earl Lord Bessborough, whose balanced speech, it seems to me, gives the general feeling of the Committee in its heart of hearts. I speak as someone whose has had something to do with the arts and with the law and whose favourite client was Lady Chatterley's Lover. I am grateful to the noble Lord, Lord Annan, for having mentioned that book just now.
I take my stand on the words of the noble Lord, Lord Skelmersdale, in the debate on 18th December (although the noble Earl has just said that the Government have not changed their view) when he said:
"The distinction between a balanced approach to teaching about homosexuality and promotion cannot be drawn sufficiently clearly in legislation so as to avoid misrepresentation. That is a risk that we cannot take".
Those were wise words and I shall take my stand on that. I have heard nothing from the noble Earl, Lord Caithness, to show that the noble Lord was not absolutely right in saying that. I must say that I am astonished to hear the noble Earl sweep aside the opposition to this clause. To use his phrase, it is easy to set up an Aunt Sally with a great deal of sound and fury and knock it down as a camouflage of one's real views.
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Is the noble Earl saying that Sir William Rees-Mogg, Lord Olivier or the Chairman of Faber and Faber have all been setting up an Aunt Sally in order to knock it down to camouflage the truth of the matter? When Sir William Rees-Mogg went to see the Minister for the Arts, did he go there to put up an Aunt Sally so that it could be knocked down when he was really trying to save the face of all the homosexuals in this country? Or was and is there nothing in the argument which has been put forward by a host of responsible people advised by distinguished Queen's Counsel, as is the Arts Council, as to the dangers of the breadth of the clause as it is drafted?
As a lawyer, I say to the noble Lord, Lord Campbell of Alloway, that the drafting of this clause is simply not tenable. The noble Lord, Lord Beloff, said that we were dealing with children, but one of the dangers of the clause is that we are not dealing with children. If we were dealing only with children, as limited by the amendment proposed by the noble Viscount, I would ask the Committee to support the amendment, but we are dealing here with promoting homosexuality—finish. Promoting homosexuality has nothing to do with children. The words "promote homosexuality" are at the beginning of the clause. It is an impossibly imprecise concept to put in an Act of Parliament, especially when the noble Earl's new amendment—which incidentally is the sixth attempt—says that inferences can be drawn from facts exactly as anyone sees fit.
Homosexuality means having a propensity for persons of one's own sex. It can include anything across the whole range of human relationships between simple affection and homosexual acts. There is no choice in this matter. It is genetically determined. As the Wolfenden Report said, homosexuality exists among all callings and at all levels of society from those of the highest intelligence to the dullest oaf. One cannot promote a propensity. In using these words the clause is wide open to every form of interpretation.
It provokes the sort of argument that one will find in courts and, long before the matter gets to the court, in local authority and council chambers. As the noble Earl says, "promoting" means to help forward, to enhance, to give more favourable treatment. However, before one comes to what "promotion" means one has to start from somewhere. From which point are your promoting? If you are someone who takes the view that homosexuality is not acceptable, that homosexual relationships cannot be as true as heterosexual relationships, and if you, as a local authority, support counselling organisations, agencies, homosexual lifelines, and so on, you are raising the basis of the view of those people about homosexuality. You are in fact promoting homosexuality from the level at which it is being considered.
Lord Elton: Perhaps I may expedite matters. I take it that this is an interruption and that the noble Lord has not finished. Can he tell us whether he is advocating one of the amendments on the Marshalled List or speaking against the question that the clause stand part?
Lord Hutchinson of Lullington: If the noble Lord will look at Amendment No. 114, it starts,
"leave out lines 17 to 29".
If the Committee is to consider this amendment, the first decision which we have to reach is this. Are we to leave out lines 17 to 29? If we are, and there are good reasons and good arguments for doing so, then is what is on the Marshalled List in Amendment No. 114 a correct and good substitute?
I may be corrected—my experience is much less than that of the noble Lord—but is it not in order to point out the reasons for leaving out (a), (b) and (c) in this clause as it is drafted? If it is not, then I shall not continue to say any more about it.
Lord Elton: I had no wish to stop the noble Lord. He has now made it clear that he is addressing this aspect of the Bill in order to advocate an amendment. He had not got around to doing it; I thought that it would help if he did so.
The Viscount of Falkland: It is probable that millions of people are watching us tonight. It is absolutely essential that we get this provision right. In our admirable debate we have shown that there are fatal flaws here which will put in jeopardy the peaceful and productive lives of many people. We have had some very eloquent speeches, in particular from the noble Lord, Lord Annan. We, on these Benches, do not have a Whip on this issue. We are voting with our consciences. I cannot understand why others are doing otherwise. The prayer from the High Court of Parliament, has a phrase which says,
"setting aside all partial affections".
I think that this is the kind of moral issue where we ought to have just that phrase in mind. We have put forward arguments to show that my amendment is an enormous improvement. Bearing that in mind, I should like to test the mood of the Committee.
7.23 p.m.
On Question, Whether the said amendment (No. 114) shall be agreed to?
Their Lordships divided: Contents, 111; Not-Contents, 166.

DIVISION NO. 2

CONTENTS

Adrian, L.

Chichester, Bp.

Alport, L.

Cledwyn of Penrhos, L.

Amherst, E.

Cocks of Hartcliffe, L.

Ampthill, L.

Craigavon, V.

Annan, L.

David, B.

Ardwick, L.

Dean of Beswick, L.

Avebury, L.

Delacourt-Smith of Alteryn, B.

Barnett, L.

Basnett, L.

Diamond, L.

Birk, B.

Donaldson of Kingsbridge, L.

Birkett, L.

Dormand of Easington, L.

Blackstone, B.

Elwyn-Jones, L.

Bonham-Carter, L.

Ennals, L.

Bottomley, L.

Ewart-Biggs, B.

Bruce of Donington, L.

Falkender, B.

Callaghan of Cardiff, L.

Falkland, V. [Teller.]

Canterbury, Abp.

Ferrier, L.

Carmichael of Kelvingrove, L.

Feversham, L.

Carter, L.

Foot, L.

898

Gallacher, L.

Molloy, L.

Gifford, L.

Monkswell, L.

Gladwyn, L.

Montagu of Beaulieu, L.

Graham of Edmonton, L.

Morton of Shuna, L.

Grey, E.

Mountevans, L.

Hampton, L.

Nicol, B.

Harris of Greenwich, L.

Oram, L.

Hatch of Lusby, L.

Peston, L.

Hayter, L.

Pitt of Hampstead, L.

Henderson of Brompton, L. [Teller.]

Ponsonby of Shulbrede, L.

Prys-Davies, L.

Houghton of Sowerby, L.

Rea, L.

Howie of Troon, L.

Ritchie of Dundee, L.

Hughes, L.

Russell of Liverpool, L.

Hunt, L.

St. Aldwyn, E.

Hunter of Newington, L.

St. John of Fawsley, L.

Hutchinson of Lullington, L.

Seear, B.

Irvine of Lairg, L.

Seebohm, L.

Irving of Dartford, L.

Serota, B.

Jeger, B.

Shackleton, L.

Jenkins of Hillhead, L.

Shaughnessy, L.

Jenkins of Putney, L.

Soper, L.

John-Mackie, L.

Stedman, B.

Kilbracken, L.

Stewart of Fulham, L.

Killearn, L.

Strabolgi, L.

Kilmarnock, L.

Taylor of Mansfield, L.

Kirkhill, L.

Tordoff, L.

Kissin, L.

Turner of Camden, B.

Lawrence, L.

Tweeddale, M.

Listowel, E.

Underhill, L.

Llewelyn-Davies of Hastoe, B.

Wallace of Coslany, L.

Lovell-Davis, L.

Wedderburn of Charlton, L.

McCarthy, L.

White, B.

McGregor of Durris, L.

Willis, L.

McIntosh of Haringey, L.

Winchilsea and Nottingham, E.

McNair, L.

Mayhew, L.

Young of Dartington, L.

Melchett, L.

Milford, L.

NOT-CONTENTS

Allerton, L.

Croft, L.

Arran, E.

Cross, V.

Ashbourne, L.

Davidson, V. [Teller.]

Atholl, D.

Deedes, L.

Attlee, E.

Denham, L. [Teller.]

Auckland, L.

Dilhorne, V.

Barber, L.

Dundee, E.

Bauer, L.

Elibank, L.

Beaverbrook, L.

Ellenborough, L.

Belhaven and Stenton, L.

Elles, B.

Bellwin, L.

Elliot of Harwood, B.

Beloff, L.

Faithfull, B.

Belstead, L.

Fanshawe of Richmond, L.

Bessborough, E.

Ferrers, E.

Blatch, B.

Fitt, L.

Blyth, L.

Foley, L.

Borthwick, L.

Fortescue, E.

Boyd-Carpenter, L.

Fraser of Kilmorack, L.

Brabazon of Tara, L.

Gainford, L.

Bramall, L.

Gainsborough, E.

Broadbridge, L.

Gibson-Watt, L.

Brougham and Vaux, L.

Glenarthur, L.

Buckmaster, V.

Goold, L.

Butterworth, L.

Grantchester, L.

Caithness, E.

Gray of Contin, L.

Caldecote, V.

Greenhill of Harrow, L.

Campbell of Alloway, L.

Greenway, L.

Campbell of Croy, L.

Gridley, L.

Carlisle of Bucklow, L.

Grimthorpe, L.

Carnock, L.

Hailsham of Saint Marylebone, L.

Charteris of Amisfield, L.

Chelmer, L.

Halsbury, E.

Chelwood, L.

Hanworth, V.

Coleraine, L.

Harmar-Nicholls, L.

Colnbrook, L.

Havers, L.

Constantine of Stanmore, L.

Henley, L.

Cottesloe, L.

Hertford, M.

Cox, B.

Hesketh, L.

Craigmyle, L.

Hives, L.

Crickhowell, L.

Home of the Hirsel, L.

899

Hood, V.

Reay, L.

Hooper, B.

Rees, L.

Hylton-Foster, B.

Renton, L.

Jenkin of Roding, L.

Renwick, L.

Johnston of Rockport, L.

Robertson of Oakridge, L.

Kaberry of Adel, L.

Rodney, L.

Kearton, L.

Romney, E.

Kimball, L.

Saltoun of Abernethy, Ly.

Kinloss, Ly.

Sanderson of Bowden, L.

Kinnoull, E.

Sandford, L.

Lane-Fox, B.

Savile, L.

Lauderdale, E.

Selkirk, E.

Lindsey and Abingdon, E.

Shannon, E.

Long, V.

Sherfield, L.

Lurgan, L.

Simon of Glaisdale, L.

Lyell, L.

Skelmersdale, L.

Mackay of Clashfern, L.

Slim, V.

MacLehose of Beoch, L.

Somerleyton, L.

Manton, L.

Southborough, L.

Margadale, L.

Strange, B.

Marley, L.

Strathcona and Mount Royal L.

Marshall of Leeds, L.

Merrivale, L.

Suffield, L.

Mersey, V.

Swinfen, L.

Milverton, L.

Terrington, L.

Moran, L.

Teviot, L.

Morris, L.

Teynham, L.

Mottistone, L.

Thomas of Gwydir, L.

Mountgarrel, V.

Thorneycroft, L.

Mowbray and Stourton, L.

Torphichen, L.

Munster, E.

Trafford, L.

Murton of Lindisfarne, L.

Trefgarne, L.

Napier and Ettrick, L.

Trumpington, B.

Nelson, E.

Vaux of Harrowden, L.

Norfolk, D.

Waldegrave, E.

Nugent of Guildford, L.

Ward of Witley, V.

Onslow, E.

Westbury, L.

Orkney, E.

Whaddon, L.

Orr-Ewing, L.

Windlesham, L.

Oxfuird, V.

Wise, L.

Pender, L.

Wolfson, L.

Plummer of St Marylebone, L.

Wrenbury, L.

Porritt, L.

Wyatt of Weeford, L.

Portsmouth, E.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
Lord Hesketh: I beg to move that the House do now resume.
Lord Ponsonby of Shulbrede: Before the House is resumed, will the noble Lord indicate that we shall not return to the business on the Local Government Bill until half past eight.
Lord Hesketh: Yes, not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Norfolk and Suffolk Broads Bill
7.36 p.m.
Lord Hesketh: My Lords, I beg to move that the House do now resolve itself into Committee (on recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on recommitment).—(Lord Hesketh.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [The Broads Authority.]:
Baroness Nicol Baroness Nicol moved Amendments No. 1
Page 2, line 7, leave out ("one") and insert ("two").
The noble Baroness said: The purpose of Amendments Nos. 1 and 2—it may be for the convenience of the Committee if I speak to both at the same time—is to increase the number of appointments made by the Nature Conservancy Council from one, as is currently provided in the Bill, to two. This would put the Nature Conservancy Council's representation on the same footing as that of the Countryside Commission in that it can appoint two members. By reducing the number of appointees made by the Secretary of State from nine to eight, the size of the authority with 35 members—which many believe is already very large—will remain unchanged. The local authorities will retain a majority of 18 representatives.
The balance of membership proposed for the authority is, as it should be, in favour of democratically elected representatives. The Nature Conservancy Council is the statutory body with specific duties to provide advice on conservation matters. Given the high scientific and conservation element in the Broads Authority's responsibilities, it seems essential that the Nature Conservancy Council should be properly represented. I am aware that on the existing Broads authority there was no representative of the Nature Conservancy Council. However, we are now talking about a body with much wider powers and with a wider representation than the old authority. It seems proper that the Nature Conservancy Council should increase its representation to equal that of the Countryside Commission. The Nature Conservancy Council in its submission to the Select Committee said that it would welcome any further membership facility, though it did say that that should not be at the expense of the Countryside Commission. We do not propose that it will be at the expense of the Countryside Commission. I beg to move.
Lord Harvington: I rise to oppose the noble Baroness. I do not like doing so because I agree with her on so many issues. In proposing the amendment, however, she has the whole thing wrong. If she reads the Second Reading debate, she will see that the noble Baroness, Lady Blatch—I shall not worry the Committee with the exact quotation but it is at col. 27 if anyone is interested—made it clear that she supported the Bill as it was and that it could not be improved in the way I believe the noble Baroness had in mind. The words used by the noble Baroness, Lady Blatch, form a very good reason for not accepting the amendment.
At the time my noble friend Lord Ferrers made a very important speech on this matter. He was quite firm in saying that it was much better to leave the Bill as it stood and not to try to amend it, as the noble Baroness now seeks to do. Later, the Lord Privy Seal, then speaking as the Minister in charge of the Bill for the Government, made matters abundantly clear by saying that it had taken 40 years to achieve the amount of agreement which had been reached on the Bill as it stood with all the interests, of which there are

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so many, which come under the wing of the local authorities and with the boating interests and so on. They have at last come to an agreement. If we accept an amendment such as this, we throw the whole matter into the boiling pot again. Perhaps it becomes a hybrid Bill, in which case the Examiners will have to look at it to decide whether it should go to a Committee of the House again. An interminable time would be wasted by accepting an amendment such as the noble Baroness suggests.
I do beg the noble Baroness not to press my noble friend to accept the amendment. I hope that she is looking for some further clarification. I am quite sure that the questions of conservation that she and I share will be adequately looked after by the new body which the Bill seeks to set up. I hope that the mere fact that all the interests concerned have agreed that this indeed is the case will weigh with her; and I hope that she will not press her amendment.
Lord Hunt: I should like to support the noble Baroness's amendment. I support all four of her amendments, but we are talking about Amendment No. 1.
In response to the noble Earl who has just spoken, I for one do not yet know what the noble Baroness's intentions are about dividing the House on this matter. I think it should at least be discussed.
I am in favour of Amendment No. 1 because it is self-evident that there must be adequate representation. There must be adequate voices who will make themselves heard on the Broads Authority and who are knowledgeable about and have experience in the particular characteristics in regard to conservation and nature conservancy in that authority. This tends to redress the imbalance and the insufficiency of those voices, bearing in mind that that authority is heavily represented by local land-owning interests no doubt in the local government representation and commercial interests. Even if, as I hope, the Government were to see fit to accept the noble Baroness's amendment (No. 4) I still feel that it is most important in the case of the Broads, which has very particular and fragile conservation characteristics, that there should be adequate representation of what I regard as the priority of setting up the Broads Authority.
Lord Renton: At first sight, I was tempted to think that a body of such importance as the Nature Conservancy Council should have two members rather than one, if only for the reason that if one member is ill they will not be represented in the discussion at all. That could be a misfortune. On the other hand, the Nature Conservancy Council has many demands upon its membership. If it is to be an established principle that they are to have two representatives on every important conservation body, then their resources so far as concerns the members of the council would be somewhat strained.
I missed the first two minutes, I am sorry to say, of the noble Baroness's speech when moving the amendment; but I wonder whether I may ask if the Nature Conservancy Council have expressed views about this or not. I should like also to seek
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clarification from my noble friend Lord Harvington. He said that all the interests concerned have agreed the composition of the Boards Authority, as set out here. May I ask whether the Nature Conservancy Council was one of the interested parties which took part in that discussion?
Lord Harvington: I am not absolutely sure whether the conservancy council took part itself, but its interests were definitely very much represented. The whole idea was to have everybody on a level so that no one could veto a common decision and say, "That is not the decision we want; we want this". I think we can safely say that those with, for example, navigational interests, whose livelihood depends on keeping everything beautiful and as we would like to see it, will take great care to see that for their part the things which the noble Baroness wishes to see done will indeed be done.
Baroness Nicol: I think I should have spoken to Amendment No. 3 with these two amendments, because one cannot divide them. If I may, I will say just a little more.
As I said to the noble Lord, Lord Renton, the Nature Conservancy Council said that they would welcome additional membership provided it was not at the expense of the Countryside Commission. The question of alternates was one which I intended putting to the Minister. I too was concerned that if one member of the Nature Conservancy Council should fall ill, there would not be a representative there. Although I take the point of the noble Lord, Lord Renton, about their strained resources, the fact that they have two members appointed to it does not necessarily mean that those two members need to be there every time. It does mean that they have a better chance of seeing that one of their members is there. That is a another reason for doing it.
Amendment No. 3 would not alter the size of the authority. It still remains at 35 members. It would be on a par with provisions contained in Clauses 1(5) and (6) which provide for consultation with voting and land-owning interests. My feeling is that the membership as presently constituted and the requirements of the Secretary of State in regard to voting and land-owning interests does in fact tip the scales in favour of those interests at the moment, leaving conservation interests a little light.
The Minister, Mr. Moynihan, said in the Standing Committee in another place on 16th July 1987, (col. 56):
"The composition of the Authority is the key. It should allow conservation issues to be well aired by specialists from a wide range of conservation bodies."
How true that is! It is obviously the intention of the Minister that this should be so. It has been repeated by other Ministers on other occasions. The Bill as drafted does not provide for this. Unless the present and future Secretaries of State are required to consult with voluntary conservation bodies and amenity bodies on a proportion of the appointments of the Secretary of State, it is difficult to see how the Minister's very worthy aims will be fulfilled.
As we know all too well, Secretaries of State can change. We have had quite a number of Secretaries of

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State and Ministers for the Environment in the past few years. Members of the authority will also change. There is a kind of euphoria at the moment and everybody wants to make it work, but that could change. I think it is much safer to make sure that all interests are properly represented in the membership as shown on the Bill.
I apologise for taking up so much time. I think I have now filled all the gaps.
Lord Melchett: I very strongly support my noble friend's three amendments. I think it is worth bearing in mind that this Bill was introduced because of widespread and long-standing concern about the deterioration in the conservation and amenity interests of the Norfolk Broads. It was not introduced because of concern about navigation or concern for some other interest such as agriculture in that area. It was introduced because of concern at the appalling loss of wildlife and loss of the natural beauty of the area. For that reason, the setting up of the Broads Authority has been welcomed by amenity and wildlife conservation interests.
It is hard to conceive of any other major national interests in this country which would accept a body, set up for those reasons, having such a small representation directly from it of three people. It seems to me that the extraordinarily complex ecology of the Norfolk Broads is still very poorly understood. Certainly measures to reverse the damage that had been done are still in the experimental stage. It would be extremely useful to have two people with the scientific and ecological knowledge which Nature Conservancy Council appointees would bring. I do not accept for one moment the point made by the noble Lord, Lord Renton, that this might stretch the Nature Conservancy Council. It is a major national organisation with representatives and regional offices all over the country, including one with a number of senior staff in Norwich.
As the noble Lord, Lord Renton, will know, there are many national parks with representatives from many interests. The Norfolk Broads will be the only equivalent of a national park to have been established because of the ecological deterioration being suffered by that area. It is unique and it is absurd that there should be only two representatives of the NCC on its managing committee, let alone one.
I should like to respond to the points made by the noble Lord, Lord Harvington. For the life of me, I cannot see how my noble friend's amendment could possibly introduce into the Bill any question of hybridity. That may be claimed to arise—wrongly, in my view—in respect of a later amendment but certainly not in relation to these amendments. For the noble Lord to suggest that the Bill is incapable of improvement by Parliament is a novel constitutional doctrine and would make the Bill unique in the annals of parliamentary democracy. I am quite sure that it is not that—
Lord Harvington: I apologise to the noble Lord for interrupting him. I did not mean that Parliament could not try to intervene. I meant that it would be impossible to obtain agreement between the many
904
parties concerned, from which agreement has been obtained, if we do not accept it as it is now.
Lord Melchett: If I may say so, the noble Lord is wrong for a third time. There is no agreement among all the parties involved as regards the composition of the Broads Authority. As far as I am aware, widespread concern has been expressed by all the voluntary wildlife and amenity organisations both about the composition of the Broads Authority as proposed in the Bill and the way in which the Broads Authority's duties are set out. If it were not for the grave problems that have existed for many years in the Broads I daresay that some organisations would be opposing the Bill for those reasons. There is no agreement.
The Norfolk Naturalists' Trust, of which I am a member, is horrified by the lack of representation of nature conservation interests on the Broads Authority. That trust owns a large area of the Broads; probably the largest area owned by any single landowner. It is very concerned about this matter. As it stands, it is not a consensus measure. I believe that my noble friend's amendments will help to move it in that direction and I support them.
Baroness Blatch: I believe that the Committee is in danger of assuming that the appointees from, for example, the Nature Conservancy Council and the Countryside Commission are the only people on the newly appointed Broads Authority with conservation interests. When I first became involved with the Bill I was particularly impressed with the interests of Norfolk County Council as regards the problems set out by the noble Lord. It was concerned about the loss of wildlife and it was particularly concerned about the state of the Broads. Because of that it initiated the former Bill and that is why it is anxious to see this Bill through. Rather than being concerned specifically with the Nature Conservancy Council or the Countryside Commission, we should be concerned about the conservation of the Broads. When the Bill passes through this House we must make sure that the issue of conservation is well and truly recognised in this document.
We have debated at length the difficulty of giving conservation primacy, because there is a balance of interests which must be recognised in the Bill when it is passed. Therefore I do not join with the noble Baroness, Lady Nicol, in her concern—probably her suspicion—that the interests of conservation are not properly protected. I believe that they will be properly protected and that we shall find ourselves with a body of people which has a vested interest in seeing that the Broads flourish as a most beautiful and protected part of our country. I believe that the Bill will provide that.
We could spend a great deal of time thwarting the progress of the Bill by arguing about composition. I believe that there has been a high degree of consensus, although I am not sure whether it has been absolute. However, speaking with representatives who have visited the House during the course of the Bill, with the exception of the Sandford principle which we shall discuss later, I have been impressed with the degree of consensus that there has been about the way in which the Bill has been put together.
Lord Hesketh: When my noble friend introduced this Bill at Second Reading in your Lordships' House he particularly stressed the balance that we had sought to strike in the Bill between the various interests that have been so vividly described this evening and which have a part to play in the future conservation of the Broads for all to enjoy. He said to the noble Baroness, Lady Nicol:
"the balance struck in Clause 1 is as near to a very good balance as one can hope to achieve."—[Official Report, 16/11/87; col. 34.]
Nothing that the noble Baroness has said in moving these amendments—which have already been extensively considered and rejected in another place—leads me to take a different view from that of my noble friend.
I believe that my noble friend Lady Blatch made a telling remark, which was that the noble Lord, Lord Melchett, tended to indicate that only the voluntary conservationists were interested in conservation in the Broads. That is patently untrue. In every part of this country one meets landowners, farmers and people with boating interests who are equally keen on the preservation of the great and beautiful things in this land of ours.
The effect of these amendments, which the noble Lords, Lord Hunt and Lord Melchett, urged strongly on the Committee, would be to alter radically and drastically the balance which the Government have sought to strike between the various legitimate interests in the membership of the proposed new authority. These amendments would double the representation of conservation and amenity interests; and they would, moreover, leave my right honourable friend with only one, single, un-earmarked appointment to represent other interests which are given no assured representation in the Bill—angling, tourism and land drainage, for example.
The question was raised as regards what would happen if one member of the NCC was ill and unable to attend. I have mentioned people who have no guarantee of a single seat. For those reasons alone I urge Members of the Committee not to listen to the siren voice of the noble Baroness. But I must also draw the Committee's attention to the recent decision of a Select Committee of your Lordships' House which considered, but declined to make, an amendment to Clause 2 which would have unreasonably tipped the balance struck in the Bill as now drafted in favour of nature conservation at the expense of the other equally important interests which the authority will have a general duty to consider.
I put it to the Committee that amending Clause 1 of the Bill in the way proposed by these amendments is no more and no less than another way of achieving the result which the Select Committee has ruled against.
I should like to explain briefly to the Committee the reasons why we believe that Clause 1 strikes as near a perfect balance as can be struck. Briefly, Clause 1 provides that the authority will have 35 members in all, giving the eight local authorities a bare majority of 18 and leaving 17 places to be filled by others. On national parks
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authorities two-thirds of members are appointed by the local authorities and one third by my right honourable friend the Secretary of State. No appointments are made by other bodies. We decided that we should follow the national parks precedent in relation to appointments by my right honourable friend, and the Bill therefore provides for him to appoint nine members; one-half the number appointed by the local authorities.
We decided that the remaining eight places should represent interests that are vitally involved in the Broads. Six of these places are therefore allocated to statutory bodies having special interests in the functions to be performed by the new authority. The remaining two are to be appointed by the authority itself from the outside members of its navigation committee—one of whom, and probably (but not certainly) the other, will represent boating interests.
Clause 1 makes two further provisions to ensure that the membership adequately reflects the various interests. First, Clause 1(5) provides that at least three of the members appointed by my right honourable friend will be appointed after consultation with boating interests.
Secondly, Clause 1(6) provides that a further two of the appointments made by my right honourable friend are made after consulation with farming and landowning interests.
Lord Melchett: I should like to ask the noble Lord a question in relation to that matter. Earlier in his speech he said that one of the interests which would not be represented along with angling was land management. How can that be if the National Farmers' Union and the Country Landowners' Association are to be asked to recommend two people to the authority?
Lord Hesketh: I did not say "land management"; I said "land drainage".
This is not a provision that the Government made. We have always recognised that farming and landowning interests would need to be represented, but would have preferred that this—like the representation of other interests I have already mentioned—should be left to my right honourable friend's discretion.
This provision was one made by the Select Committee in another place which carefully considered all the arguments put to it over nine sittings. The Government have therefore accepted its judgment. That Select Committee also considered the case for making the amendments proposed by the noble Baroness, but declined to make them.
I remind the Committee of the Select Committee's final verdict:
"We believe that the Bill as we have amended it represents a fair balance between the many conflicting interests".
Provision is already made in the Bill for three members to be appointed to represent conservation and amenity interests—two appointed by the Countryside Commission, and, as my noble friend Lord Renton mentioned, one by the Nature Conservancy Council.
The Committee should perhaps be aware that the NCC is not directly represented on the existing non

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statutory Broads authority. In framing our Bill we decided that the NCC ought to have direct representation, but we could only make room for this appointment by taking away one of the three appointments that had originally been proposed for the commission in Norfolk's Private Bill. The commission accepted this reduction because it recognised that allocating an additional appointment to represent nature conservation interests would unbalance the overall membership arrangements and would destroy the two-thirds to one-third ratio between local and national appointments.
Those remain insuperable objections to the first two of the amendments proposed by the noble Baroness. Moreover, I cannot in any way accept the argument she has urged that the NCC must have parity with the Countryside Commission. The role of the NCC, though very important, is relatively narrow. It cannot be equated with that of the Countryside Commission, which we expect to perform the same wide-ranging sponsorship role in relation to the Broads as it does in relation to all the national parks.
The third amendment would go even further than the first two in favouring nature conservation and amenity interests at the expense of others, and thus destroy the careful balance now struck in the Bill. The combined effect of these amendments would be to double the assured representation of these interests, weighting these interests above those of any other interest. It would deny my right honourable friend any scope for appointing members to represent other legitimate interests.
I suggest to the noble Baroness that the result she seeks to achieve by her amendments could not provide the proper basis for co-operation and mutual understanding between the many interests which must work together for the future of the Broads—an objective which I am certain we both share. I hope therefore that she will not press her amendments. But, if she does, I must ask the Committee most earnestly to reject them.
Lord Renton: I am sorry to have to trouble my noble friend, but he has continually talked about a fair balance and he has told the Committee that there will be 35 members of the authority altogether. He has also told the Committee that there will be three representatives of conservation interest; namely, two from the Countryside Commission and one from the Nature Conservancy Council. That is three out of 35. If he looks at Clause 2(1)(a), he will find there that the first named (and I should have thought the principal) general duty of the authority is conservation—conserving and enhancing the natural beauty of the Broads.
If noble Lord uses his great mind and his concept of a fair balance, is he really going to say that by having two members of the Nature Conservancy Council plus two out of what will become eight members appointed by the Secretary of State, he is upsetting the fair balance between conservation and other interests? The arithmetic of the matter simply does not support him. I am sorry—he is a noble friend and I have always been happy to support all
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Members of my Front Bench whenever possible—but on this occasion I think he has been, if I may say so, wrongly advised.
Lord Melchett: I am sorry that I misheard the noble Lord earlier, but his reference to land drainage not being represented does not help me very much because some land drainage interests will be represented by the person appointed by the Anglian Water Authority, which has statutory responsibility for most aspects of land drainage in this area as in others.
I should like to add one point to the remarks made by the noble Lord, Lord Renton. It seems to me that the special expertise which will be brought to the Broads Authority by the Nature Conservancy Council representative is not just a concern for wildlife or concern for the conservation of the Broads. As the noble Baroness opposite said, that is a concern that is going to be shared by, one hopes, all the representatives of the local authorities in the area which have in recent years, after a great deal of prompting by voluntary conservation organisations, not to say a long-running militant campaign by voluntary conservation organisations, taken this cause to their hearts and are supporting the Bill.
However, the particular expertise which local authority members are unlikely to have is the scientific expertise to deal with some of the very serious ecological problems from which this area suffers. Those are difficult, technical questions to which we do not yet know all the answers. Various experiments are under way but none of them has proved wholly successful. It seems to me that there is an argument for saying that that scientific expertise should be adequately represented on the authority. I do not believe one person will do that, even if he manages to turn up at every single meeting.
Lord Trafford: It seems to me that this Bill has been brought before this Committee with a long history of negotiation between a large number of authorities, all of whom for different reasons have generally the same objective in mind; namely, to produce an authority that could cover the variety of functions laid out under Clause 2(1)(a), (b) and (c), which are the three main agreed functions of this Bill.
I am always uncomfortable in disagreeing with the noble Lord, Lord Renton, but as the noble Baroness, Lady Blatch, said, a large number of the members of the county council who have themselves, as he well knows, promoted the previous Bill and are interested and very concerned about this Bill, will be interested in this aspect. For that reason, I suggest that the noble Lord's mathematics may not be absolutely right.
Lord Renton: They certainly are.
Lord Trafford: If the noble Lord is suggesting that only three out of 35 will be interested in conservation, then he is almost certainly wrong because it is most unlikely that, for example, the 18 members appointed by the local authorities or indeed the nine, under the present Bill, appointed by the Secretary of State, would also be totally uninterested in this.

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One of the features of the Bill is that to obtain agreement, a balance always has to be kept. Throughout the arguments both in another place and here, a great deal of effort was devoted—mainly by the conservationists' lobby—to try to obtain a primacy for conservation in this particular Bill which would have led to the others probably withdrawing from this situation. It is for that reason that the best balance that we can achieve may have been achieved, where everybody can go forward and make this a great success. I share entirely the view expressed by the noble Lord, Lord Melchett, and the noble Baroness that it is desperately important that conservation is carried out properly and scientifically and that the Broads, which have seen such a desperate decline over recent years, are restored to their previous state. Because of those points, I personally could not support this amendment.
Lord Renton: Very briefly, as the noble Lord has challenged what I have said, I wonder whether I may point out two matters. First, my noble friend Lady Blatch—I have never disagreed with her before, and I have known her many years—is quite right, I am sure, in thinking that the present members of Norfolk County Council are conservation minded. I am not disputing that. However, the composition of county councils changes.
We find that in Clause 2(1)(b) among the general duties of the authority is,
"promoting the enjoyment of the Broads by the public".
We may very well find, through a local government shift, the strong feeling that the public's enjoyment has not been adequately catered for, leading to a change of approach. We must have a degree of certainty here. The certainty under the Bill as it stands is that only three out of 35 will be specifically involved with conservation interests; others may or may not be. We must keep a sense of proportion. If the amendments proposed by the noble Baroness are accepted, instead of three out of 35 there will be six out of 35. It does not seem to me that that is going to upset the balance very much.
Baroness Blatch: It is with great trepidation that I rise possibly to counter a most respected friend, my noble friend Lord Renton. However, may I first say that there is no difference between any of us in the Committee about the importance of protecting this beautiful area of our land. Conservation is a very real issue.
If one assumes, for the hypothesis I am about to put, that all named authorities—the local government representatives and those who are not specifically mentioned as conservation organisations —are "other interests", then the unfairness is not on the side of conservation. The unfairness, if it exists—I do not argue that it does—is on the part of boating interests. Of those members who are not local authority members, we come down to two from the Countryside Commission, one from the Nature Conservancy Council, which gives three, and only two for boating interests and one for water. Then there are the Secretary of State's appointments.
I would need to possess the highest degree of suspicion to discount the fact that responsibility even
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where there is a change of local authority members, will be on the board of governors or management authority to abide by this Bill. They are required by Clause 2 to give equal weight to conservation of the natural beauty of the Broads, promoting enjoyment and access by the public, which is also very important, and protecting the interests of navigation. We had a long debate about the balance of those interests and the fact that not one of those interests could be considered greater than the other. I believe that it will be a requirement of the body that its objective is to strike a balance and to conserve the beauty of the Broads along with full access for the public.
The noble Lord, Lord Melchett, is concerned about expertise. I have sat on enough committees to know that it is not committees that necessarily bring the kind of technical expertise that is required. What is important is that the board has access to the technical and expert information that is required—with, of course, practical help. With the Countryside Commission and the Nature Conservancy Council represented and also the conservation interests that some of the 18 members of local authorities inevitably will have, plus the Secretary of State's appointments, I believe that, in the end, conservation will probably win rather than merely have a balance.
Lord Melchett: Can the noble Baroness tell me why it is necessary to have three boating experts? Boating is a fairly technical subject, but not as technical as the ecology of the invertebrates and the fauna of some of the Broads. If her arguments were accepted there would be no interests represented on the authority at all.
8.15 p.m.
Baroness Blatch: I said boating, but I used the word loosely because the two people who will represent the Great Yarmouth Port and Haven Commissioners will not necessarily be concerned only with boating. The condition of the waters, too, is a factor. Again, that is an aspect which has deteriorated over the years and about which there needs to be a management plan and a management concern. Therefore, I simply say that there are two specifically with water interests and port and haven interests and three with conservation interests.
Lord Melchett: I do not want to prolong the debate, but the noble Baroness has not looked at Clause 1(5) where the Secretary of State appoints three people from the boating interests.
Lord Hesketh: I feel that my noble friend Lord Trafford put his finger on the point because, to be perfectly honest, 1 am rather depressed by the discussion that has taken place. For 45 years we have been trying to get an Act on the statute book and the arguments I have heard in the past 10 minutes illustrate one of the reasons why we have not yet been able to do that.
Lord Renton: We are going to get this one.
Lord Hesketh: I am not sure that we are going to get it tonight, which we had hoped. The fact is that not only is the ecology a delicate balance. There is also a very delicate managerial balance representing the local authorities, the Secretary of State, scientific input, navigation, commercial, the pleasure of hundreds of thousands of people in this country who go to the Broads and many other interests besides.
I could seek to argue with my noble friend Lord Renton on whether there should be three, as I believe to be correct, or more, as he believes, representing conservationists. I believe that what we have in the Bill is an acceptable balance that is agreeable, perhaps not 100 per cent. to all parties but agreeable enough to achieve the aim of the Bill.
Baroness Nicol: Before I decide what to do with the amendment, can the Minister answer two questions? His noble friend sitting behind him indicated that there was a danger of hybridisation of the Bill if the amendment were to be accepted. Can the noble Lord confirm that? Secondly, can the noble Lord answer my question on alternates as regards the one member of the Nature Conservancy Council? I specifically asked that question earlier.
Lord Hesketh: As regards the point concerning the member of the Nature Conservancy Council being ill, if we applied that to any of the other bodies which have only one representative we would be back at square one. As regards hybridisation, I shall be coming to that later.
Baroness Nicol: I need to know about hybridisation in relation to this amendment.
Lord Harvington: Perhaps I may interrupt here. I should apologise to the noble Baroness. I believe I made the mistake. On reflection, and I should know from my long memory, I do not think hybridisation is involved.
Baroness Nicol: We are taking rather longer over this amendment than I expected. May I say to the noble Baroness, Lady Blatch, that, yes, I am sure that many people who come from local authorities will be interested in conservation. I do not doubt that. However, that is not the point at issue. The point concerns what is actually written into the Bill now and for the possible future changes in local authorities. That is a danger we should guard against.
We are all aware that the real difficulty is a balance of interests and a possible clash of interests rather than finding a formula. We could all find a formula which would work if everyone was prepared to accept it. I have to say again that Minister after Minister says that the whole purpose of the Bill is to secure the long-term conservation of the Broads. Indeed, some Ministers have said that it is also to restore the Broads to what they were in the past, which is something a little more than simply conserving them as they are now. I do not feel that the composition which is being proposed will achieve that. I do not believe there is sufficient weight in favour of conservation interests. However, I do not wish to press the amendment to a Division this evening and
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rather regretfully I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 and 3 not moved.]
Clause 1 agreed to.
Clauses 2 to 4 agreed to.
Baroness Nicol Baroness Nicol moved Amendment No. 4:
After Clause 4, insert the following new clause:
("Conflict of interests.
.—(1) Without prejudice to the generality of section 2(1) of this Act, where it appears to the Authority that there is, or is likely to arise, in connection with the discharge of the functions under section 2(1), irreconcilable conflict between the interests of conserving and enhancing the natural beauty of the Broads, and either promoting the enjoyment of the Broads by the public, or protecting the interests of navigation, it shall give priority to the interests of conserving and enhancing the natural beauty of the Broads.
(2) The Secretary of State shall prepare and issue (in such form and in such manner as he considers appropriate) guidance to the Authority for the purposes of subsection (1) above.").
The noble Baroness said: This amendment would introduce the Sandford principle, which is a recommendation of the National Park Policies Review Committee chaired by the noble Lord, Lord Sandford. I am glad to see the noble Lord in his place and I am sure that he will put me right if I say anything about it which is incorrect.
That committee reported in 1974 and the Secretaries of State in their reply to the report said:
"NPAs can do much to reconcile public enjoyment with the preservation of natural beauty by good planning and management and the main emphasis must continue to be on this approach wherever possible. But even so, there will be situations where the two purposes are irreconcilable. The Secretaries of State accept the Committee's view that where this happens priority must be given to the conservation of natural beauty and they will issue guidance to this effect to the NPAs. The Secretaries of State will consider further whether and if so, how, this guidance might be given statutory force".
It seems to me that in the discussions on the new Broads Authority there has been a great deal of comparison made with the national parks. Everyone says that it is a national park but with a difference. That difference seems to be the existence of a third force, if I may put it that way, and that is the navigation interests on the Broads.
The existence of this third force adds to the danger that one day there may be an irreconcilable conflict. I do not believe that these conflicts are inevitable and I do not think that, if they happen, they will happen often. In fact I am glad to be able to quote from the report of the Select Committee to this House. The representative of the Norfolk Naturalists' Trust said at page 27:
"I think it is actually important to say that the Norfolk Naturalists' Trust or any other conservation body and boating interests are not at each other's throats in the Broads the whole of the time which is what you are suggesting".
It was said in reply to a question. The representative went on to say:
"We do actually work quite closely together."
I am sure that this is true and I am sure that in the majority of cases any differences will be sorted out before the point of irreconcilable conflict is reached. But that day might come and if it does then I believe we need something like the Sandford solution. The very existence of the principle would itself reduce the possibility of conflict since there would be an understanding of the background to the Bill.
I have said before this evening and I say it again, that various Ministers have said over and over again that the purpose of the Bill is to ensure the long-term conservation of the Broads. The noble Lord, Lord Belstead, whom I am glad to see with us, said at Second Reading in this House at the very beginning of his speech:
"The basic purpose of this Bill is to establish new statutory arrangements whereby the Norfolk and Suffolk Broads can be conserved for all who value and treasure this unique area."—[Official Report, 16/11/87; col. 10.]
On the same occasion at col. 12 the noble Lord said:
"It is conservation problems that have dictated the need for this Bill, and conservation of the Broads for all to enjoy must surely be our ultimate objective."
He went on to say that we must do justice to all the other legitimate interests and so we must.
What we are saying is that these statements made by the Minister and by Ministers in another place and also by the Secretary of State himself have no power. Ministers change, authority members change and even governments change. Today's sweetness and light may not last. The inclusion of this clause would leave the stated intentions of the Government in no doubt and it would be there for future years when all the personalities now involved have gone.
The enjoyment of the Broads will be as important to future generations as it is today and we must find a way to ensure their long-term survival. I beg to move.
The Chairman of Committees: The Committee raised the question of hybridity on the first three amendments where it did not arise, but on this amendment I am afraid that it does. It may be convenient if I explain to the Committee the procedure that will be followed if this amendment is agreed to. In my opinion this amendment raises a prima facie question of hybridity because it singles out for preferential treatment one of the three members of the class affected by Clause 2(1) of the Bill. If it is agreed to, in due course I shall have to table a Motion to refer the Bill to the Examiners.
Lord Renton: I hope that the noble Baroness will not to take too much time on this amendment. I was glad to support her on her previous amendments but I believe that she has a tremendous difficulty here in addition to the hybridity point, which could delay the passage of the Bill very much. Her difficulty is that if you have a relatively minor point of conservation, but a major point involving a major decision on (shall we say?) navigation, it would perhaps be an exercise of bad judgment for the Broads Authority to say "Oh no, we must have priority for conservation therefore the major navigation point must give way." That is why I think the amendment is quite unacceptable.
Lord Hunt: I shall not detain the Committee very long. I understand and appreciate what the Chairman of Committees has said. I appreciate entirely the hope and wish of the Government that there should be a balance of interests between the three purposes in Clause 2. I am very much aware of the generally happy and constructive way in which
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the voluntary Broads authority has carried on its business hitherto. But we are not in a static situation; we are in a situation in which increasing pressures are going to arise. They are going to arise from the increasing demands, particularly from boating interests and the tourist industry associated with that, and from the navigational interests associated with boating. There will be increasing pressure from that side bearing adversely on the interest of conservation.
With respect, I slightly disagree here with the noble Baroness, but when conflicts arise in the future—even if they have not already arisen—the balance of interests will go by the board. There will be increasing pressure from the commercial and associated navigational interests.
The intention of the Bill is to give statutory authority to the voluntary nature of the authority which exists, and I shall regret it if we can get no further than placing on record the fact mentioned by the noble Baroness. That is, that there would not be this Bill and the intention behind it if it were not to create an authority whose purposes are analogous to those of the other national parks. If we forget that, and the Sandford principle attached to it, we are making a grave error for the future.
Lord Sandford: It is always gratifying to hear one's name mentioned in a debate like this, particularly when it is linked to a principle. When the noble Baroness opposite looks at me in that inviting way, I cannot but respond. She was perfectly correct in the first part of what she said because she was quoting from Circular 476, which gave the views of the Minister on the review which I undertook for the national parks. What she did not do was to go on to the next paragraph, which reads:
"Several of the comments on the report suggested that a third statutory purpose should be introduced; namely, the promotion of the social and economic wellbeing of the national park areas".
The comments on the report were quite extensive on that point. We did not go into them because it was not within the national park authority's terms of reference to pursue the social and economic well-being of national park areas. After we reported there was a strong body of opinion to the effect that it should have this role, but the Secretaries of State took another view. Since then, everyone has seen much more clearly that if the national park authority does not take a hand in promoting the social and economic well-being of the national park areas, there will not be the necessary economic pressures to promote any policy. That is why we have seen developments such as the uplands farm land experiment which was a way of promoting the economy of the uplands so that some of the purposes of conservation could be pursued.
There has been no statutory change but anyone who studies the present national park plans and compares them with the first generation of plans, which arose as a direct result of my report, and the administrative changes made at the same time, will see that conservation comes well to the fore. It cannot be a criticism of what is contained in the Bill that the Sandford principle—choosing between two functions of the national park; namely, conservation and access—did not pay any regard to the economic and

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well-being of the areas concerned. It did not do so because it was not in the terms of reference. It is firmly in the Bill's terms of reference and it is right that it should be given some primacy. In my view, the Government have the balance right.
8.30 p.m.
Viscount Hanworth: I fear that I must to some extent disagree with my noble colleague Lord Hunt. I pay tribute to what environmentalists have achieved over the years. I have some sympathy with what the amendment seeks to achieve. There is however a grave danger of enthusiasm getting out of hand. Almost every major project has some unfortunate environmental aspects which must be balanced against the advantages or necessity of the project. To hand over, as the amendment does, and to weight the decision in favour of the environmentalists, I fear might lead to disaster. It is only too easy for enthusiasts to put forward an issue and push it to the ultimate. In that case, what happens? Priority would have to be given to them.
There is the further point that if we do this we are creating a precedent which would be highly unfortunate in a large number of other areas. Therefore, despite the sympathy that I have for the amendment, it must not go ahead.
Baroness Blatch: I rise to mention one point. I believe that by re-hybridising the Bill the real risk is that we shall lose it altogether. The chances of the Bill coming back through Parliament again are slim indeed, certainly in the foreseeable future. I should like, given that all things in the end are compromise, to plead with the noble Baroness not to press her amendment. I was sympathetic at the beginning because I hoped that outside the Bill a form of words could be found that would give people the impression that conservation was at least a real objective of the Government in passing the Bill. But I understand that once a Bill is enacted what counts is what is inside it and not what is outside it.
I believe that the risk is too great to press the amendment. I have two reasons for opposing the suggestion that the Sandford principle be built into the Bill. The first is that the irreconcilable conflict may not necessarily be between a conservation interest and another interest; it may be two different interests. What would happen in that case? Secondly, should the Sandford principle form part of the Bill, there is always the tendency not to agree because one knows that at the end of the line the Sandford principle at least guarantees a solution. I am in favour of people finding solutions themselves and of the board sitting down until a solution is found.
Given that the Bill's requirement is to balance interests and to ensure that no one issue has primacy over another, I hope that that will at least be some assurance and some guarantee that conservation will receive fair and equal consideration.
Lord Melchett: I shall say a brief word in support of my noble friend and ask the Government one question. I agree with the noble Lord, Lord Sandford, that to some extent we are having a debate
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about concepts, and about words which are rather dated given the enormous changes that have taken place, for example, in agricultural policy.
There was seen to be a clear conflict of interests between the economic well-being of farmers and conservation in an area such as the Norfolk Broads. The Norfolk Broads were of course a forerunner of the environmentally sensitive areas. Most of the farmers in the area covered by the new authority are now making money by farming for conservation. Their economic interests are the same, at least in theory, and almost always in practice as the interests of conservationists.
Trying to set up social and economic interests on the one hand and conservation on the other does not work very well on the Broads. The same should apply and on the whole, as my noble friend pointed out, does apply on the ground when we consider the interests of navigation and conservation. After all, the reason so many people visit the Norfolk Broads is that it is an attractive and wild area with many wild birds, beautiful reed beds and so forth.
The economic interest in the long run, not, unfortunately, in the short run, of the boating interests on the Broads will be to conserve the area so that people will want to continue to go there. An entirely sterile and dead area with no reeds, no wild birds and no fish, which is what some of the Broads have already turned into, and most of the rest are in danger of turning into, would not be in the economic or general interests of navigation. To that extent, there is a false argument, but unfortunately it is one which the Government have forced upon us because in drafting the Bill they have set out three interests as if they were separate and were liable to be in conflict. Everyone talks about one not having primacy over another.
The Bill should have been drafted to give the Broads Authority a duty to conserve the Broads to promote enjoyment and the economic and social well-being of the area and to protect the interests of navigation. In that way, the Bill would have recognised what I believe is the reality; namely, that all these interests depend in the long run on the proper conservation of the landscape and wildlife of the Broads.
But the Government have messed that up and missed that opportunity. We are now faced with the threat of hybridity and the loss of the Bill. My noble friend might be well advised not to press the amendment in view of what has been said in this place. That does not prevent the Government from doing something and that is what I ask them to do. I hope that they will repeat the assurances that have been given in the past: that the purposes of this Bill are to conserve the wildlife and the landscape of the Broads; that is why the legislation has been brought forward; and that is what the Government will expect to happen once the Bill becomes enacted.
Baroness Nicol: Before the Minister replies, perhaps I may put one more question to him. If I were not to press the amendment, and I am conscious of the need to preserve the Bill, can the Minister say whether the Government are likely to issue guidelines, which would not be on the face of the Bill

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but would have some power to advise the Broads Authority? Is he willing to issue guidelines on the Sandford principle?
Lord Hesketh: Before I say anything, perhaps I may answer the question of the noble Lord, Lord Melchett. We do lay out and have clearly laid out the general duties of the authority to manage the Broads. There are three primary considerations: the conserving and enhancing of the natural beauty of the Broads; the promotion of enjoyment of the Broads by the public and the protection of the interests of navigation. Those three hold equal weight. All I can say to the noble Lord is that at the end of the day politics are about the art of the possible.
I regret very much that the noble Baroness has seen fit to table this amendment and at so late a stage. I am in no doubt, and Members of the Committee should be in no doubt, that this new clause, if it were to be included in the Bill, would wreck the balance that we have so carefully sought to strike between the various legitimate interests; and that it would destroy the basis for co-operation on which the future of the Broads depends.
I am in no doubt whatever that this new clause would be violently opposed by all the other interested parties: the local authorities, the farmers, the boating and navigation interests, other recreational interests, and all those who depend for their livelihood upon the economic life which is centred on the Broads. It has been tabled so late in the day that many of these interests will have had no chance to realise that a further, last minute, assault is being launched upon the Bill in the name of conservation, and are thus unable to express their views. I must therefore speak for them.
The noble Baroness has said that this amendment does not seek primacy for nature conservation. She argues that it does no more than enshrine in the Bill the Sandford principle—that is, the guidance that was given to the National Park Authorities in Circular 4/76 in response to the recommendations of a committee chaired by my noble friend the noble Lord, Lord Sandford, whom I am pleased to see here this evening. I disagree most strongly.
First, the new clause goes further in saying not only that actual conflicts, but all conflicts that are likely to arise, are to be decided in favour of nature conservation whenever the conflict is judged irreconcilable. If that is not a recipe for ensuring that the nature conservation interest will always insist on its interest prevailing, and thus for artificially creating irreconcilable conflict, then I do not know what it is. The purpose of this Bill is to provide a mechanism for resolving conflicts, not creating them as this new clause would. I have a rather poor speaking note on the Sandford principle; but I am sure that we are all equally grateful this evening that we were able to hear—for his name has been much bandied about—the actual words which the noble Lord, Lord Sandford himself used. I shall certainly not debase them by using my speaking note.
That is why I say that this new clause seeks to give primacy to nature conservation. This is an issue which has already been exhaustively examined and
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discussed in Select Committees both in another place and in your Lordships' House. It has also been debated and rejected in Standing Committee in another place. A time comes when one must accept the judge's (or the umpire's) verdict graciously and without dissent. If I may say so, the case pleaded by the noble Baroness has already been heard and lost in a court of first instance, in a court of appeal, and by the highest court, your Lordships' House.
I do not think it right to detain the Committee with a recital of all the objections to what this amendment seeks to achieve. They have already been recorded at length in the reports of two Select Committees, which have rejected the arguments put to them for making changes to the Bill which would favour one interest at the expense of others.
In another place the House authorities advised that any amendment giving priority over any of the others to any one of the three equal purposes in Clause 2(1) would rehybridise the Bill. If such an amendment were to be made by the Committee this Bill would be stopped in its tracks. It would be the ultimate irony if a Bill that has been designed to ensure the future conservation of the Broads were wrecked by those claiming that conservation of this area was their sole interest. I cannot say definitely that this amendment would be ruled to rehybridise the Bill—although I think it very likely, since in my view there is no doubt at all that it is intended to give primacy or priority to nature conservation. The noble Baroness will have noted what the Chairman of Committees said on this matter. I can only recommend to the Committee what my noble friend Lord Renton said. We were possibly going too far on this front. Also, my noble friend Lady Blatch pointed out that it would be a disaster if we lost the Bill.
I have no doubt whatever that both Select Committees were right in their verdicts. May I remind the Committee of the actual words of the verdict of the Select Committee in another place?
"The Bill now before the House is the outcome of more than 40 years of discussion and proposals aimed at improving the management of the Broads. It is framed in the belief that the problems caused by the conflicting interests are not irreconcilable. We believe that the Bill as we have amended it represents a fair balance between the many conflicting interests, and we hope that this measure will encourage co-operation and goodwill—the only way in which the Broads will flourish."
The noble Viscount, Lord Hanworth, spoke sympathetically of the aims and ambitions of the amendment; but he also pointed out that at the end of the day practicality would have to triumph.
May I also remind the Committee of the verdict of the Select Committee of your Lordships' House which declined to make an amendment to Clause 2 which would have tipped the scales towards nature conservation?
"The Committee … recognise the unique character of the Broads, and share the concern of the Petitioners … [these were the voluntary conservation/amenity bodies.] … For the vital importance of maintaining—indeed of restoring—its value as natural habitat … They consider that the Bill already requires the new Authority to give weight to such considerations, while pursuing the wider aims of effective handling of the Broads' resources."
That is the view of the Government, and of all the interested bodies except the nature conservationists.
In the light of what I have said, I hope that the noble Baroness will not press her amendment. It

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would, in our view, wreck the Bill and the future prospects of the Broads. If she does, I must urge you most strongly to reject it, and reject it decisively.
8.45 p.m.
Viscount Craigavon: Before the noble Baroness replies, I wonder whether the Minister can answer the final question the noble Baroness, Lady Nicol, put to him about guidelines. I served on the Select Committee and perhaps I may briefly refer to one answer given by Mr. David Walley, the chief witness from the Department of the Environment—and a very good witness, if I may say so. Answering on Question 636, referring to the Sandford Report, he said:
"It is a note of general guidance and philosophy to national parks authorities, if you like, about how they should approach their planning and management of the parks. What I was saying was that the Government had some sympathy with the view that similar kinds of philosophical guidance, if I can put it that way, might be given to the Broads Authority."
He then said:
"But it is not something that the Government feels can, or should, be written into the Bill."
I hope the Government can give some general philosophical guidance, partly based on that, since Mr. Walley referred to it, when this Bill is launched.
Lord Hesketh: I am most grateful to my noble friend Lord Craigavon for his intervention since I know that he served us on the Select Committee. He summed the situation up very well. The Government are philosophically very much attuned both to the Broads and to the Bill; but we shall not be able to provide guidelines, for instance, based on the lines of the proposed clause following Clause 4.
Lord Melchett: Will the Government provide some general guidelines of the sort that were discussed in Committee and which the noble Lord has been asked about? That is the question.
Lord Hesketh: I have no doubt that we shall be able to consider the matter.
Lord Melchett: Would it be possible for the Government to consider the matter before the Bill leaves this House? It is a significant point. The noble Lord has said very strongly that this should not be pressed because of the danger of hybridising the Bill. That puts a considerable constraint on your Lordships' House. Would the noble Lord be prepared to consider the matter before the Report stage?
Lord Renton: Before my noble friend replies I hope he will not let it be thought that this is a fit subject for legislation for a department to be asked to give guidelines.
Lord Hesketh: I shall have to bring the matter to the attention of my noble friend the Minister.
Baroness Nicol: I am a little taken aback at the fierceness of the Minister's reply. After all, this is the
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first opportunity which we in this House have had to put down amendments. He reproaches me for being late in the day. This is the first opportunity, at the Committee stage, where one could put forward amendments. Although I am aware of the long history of the Bill, it has not been in your Lordships' House. We have only had the Second Reading, plus two days upstairs.
I think that in spite of all that has been said there is no doubt that the Bill as it stands does not give sufficient weight to conservation matters. In earlier amendments we did not even touch on the navigation committee which will be an extremely powerful body, and which will be doing a lot of the day to day navigation matters which will not even need to come before the authority. There is every reason why we should be seeking more safeguards on the authority itself for conservation matters. As regards the guidelines, I know that what the noble Lord, Lord Renton, has said is correct. It is not a matter for legislation in this place. But to ask for an undertaking from the Minister is surely not out of place? I intend to find some way of asking for that at a later stage, so I hope that some thought will be given to it. It has never been my intention to hold up this Bill, and certainly not to have it sent back in the way that has been described. Therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clauses 6 to 27 agreed to.
Schedule 1 [The Broads Authority]:
Lord Hesketh Lord Hesketh moved Amendment No. 5:
Page 25, line 16, at end insert—
("Authority's chief officer
The Authority shall not—

(a) appoint a person to the office (by whatever name it is known) of chief officer of the Authority; or

(b) determine, or vary, any of the terms and conditions on which he is employed by the Authority;

without first consulting the Countryside Commission.").
The noble Lord said: I beg to move.
Baroness Nicol: I am aware that the Committee wishes to get on, but we have to deal with these amendments. On Second Reading, the noble Baroness, Lady Blatch, raised the question of a chief officer. I am glad to see that some facility is made for a definition of how he should be appointed. However, there is no mention in this amendment about a decision on a chief officer. Is that not a matter for the Bill?
Lord Hesketh: On Second Reading, the noble Baroness, Lady Blatch, speaking on behalf of the Countryside Commission, urged the case for amending the Bill to say something about a chief officer for the new authority. She suggested, as is the case with all national park authorities, that there should be a requirement for the Countryside Commission to be consulted about the appointment of the chief officer and the nature of that appointment which the Countryside Commission believes should be a full-time post. That suggestion made by the

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noble Baroness was supported by the noble Lord, Lord Walston, and by my noble friend Lord Belstead, who was then the Minister responsible for the Bill. He gave noble Lords an assurance that the Government would look as favourably as they possibly could at the suggestion made with the aim of bringing forward a suitable amendment for the purpose.
That amendment is now before the Committee. The form of the legislative requirement as it applies to the national parks is not appropriate to this Bill, but the amendment we have tabled achieves the same purpose. It requires the Countryside Commission to be consulted by the new authority before it appoints a chief officer and enables the Commission to proffer its advice on the person to be appointed and the terms and conditions of the appointment. I commend it to the Committee.
On Question, amendment agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 agreed to.
Schedule 3 [Functions of Authority]:
Lord Hesketh Lord Hesketh moved Amendment No. 6:
Page 30, line 26, after ("II") insert ("and section 45(2) and (3)").
The noble Lord said: This amendment rectifies a slight oversight. Paragraph 30 of Schedule 3 makes the authority a local authority for the purposes of Parts I and II of the Ancient Monuments and Archeological Areas Act 1979. But we overlooked a section in Part III, Section 45, which empowers local authorities to incur expenditure on archeological investigations. This amendment will give the authority that power as well. I beg to move.
On Question, amendment agreed to.
Baroness Nicol Baroness Nicol moved Amendment No. 7:
Page 31, line 32, leave out ("Minister of Agriculture, Fisheries and Food,") and insert ("Ministers").
The noble Baroness said: In moving Amendment No. 7, I also wish to speak to Amendments Nos. 8 and 9.
This group of amendments provides for the statutory drainage code to be agreed jointly by the Secretary of State for the Environment and the Ministry of Agriculture. It also provides that any dispute arising from the implementation of the code shall be determined jointly by the two Ministers. The term Ministers is defined in Clause 25 of the Bill to mean the Secretary of State for the Environment and the Minister of Agriculture acting jointly.
These amendments seek to follow the precedent which exists in relation to the Government's own code in respect of land drainage in England and Wales which has the rather long title of Land Drainage and Conservation—Guidance Notes on Procedures for Water Authorities, Internal Drainage Boards, the Nature Conservancy Council and the Countryside Commission on the Operation of Section 22 of the Water Act 1973 as amended by Section 48 of the Wildlife and Countryside Act 1981.
That code was issued jointly by the Department of the Environment, MAFF and the Welsh Office and
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provides for objections to drainage schemes to be referred to the Ministers for decision. Our concern in relation to the Broads is not that Ministers should necessarily be refusing drainage grants, but rather it is important that in view of the wetland characteristics of the area, and the effect that drainage activities can have on our environment and wildlife which it supports, the Secretary of State for the Environment should have a role to play in agreeing on the guidelines to be issued in respect of the day to day procedures and operations of drainage authorities.
Similarly, he should have a role in determining any disputes that may arise between the Broads Authority and drainage authorities in implementing the code. Since the Government's conservation and landscape advisers, the NCC and the Countryside Commission, are responsible not to MAFF but to the Department of the Environment, so the environment Minister should be consulted over the formulation of any guidance material that may have a bearing on conservation. I beg to move.
Lord Hesketh: My Lords, the purpose of these three amendments is to remove from my right honourable friend the Minister of Agriculture, Fisheries and Food his sole power of approval over the issue of the drainage code of practice and arbitrations and disputes relating to the code. It also requires him to exercise these functions jointly with my right honourable friend the Secretary of State for the Environment.
I would remind the Committee that these changes sought by the noble Baroness have already been fully considered but rejected in another place. I suggest therefore that we would need to have very good reasons for taking a different view in relation to a matter that has already been exhaustively considered.
I do not believe that the reasons put forward by the noble Baroness in moving these amendments are good ones, or indeed that any good reasons exist. I believe that the provisions of the Bill as drafted are the right ones. In providing for a code of practice to be drawn up to regulate the carrying out of land drainage works by drainage authorities, and for the authorities to have ultimate responsibility for the code, I believe that we have properly reflected the nature conservation interests. However, because there are genuine land drainage interests, it is right that the issue of the code should be agreed by the Minister of Agriculture, Fisheries and Food, who in doing so will also be aware of his responsibility under Section 48 of the Wildlife and Countryside Act 1981 to further the interests of nature conservation wherever it is practical to do so.
It follows that he should also arbitrate in any dispute between the authority and a drainage authority in relation to the application of a code. The contents of the code and the form in which it is published are clearly matters for the Minister responsible for land drainage, and it is wholly inappropriate to involve my right honourable friend the Secretary of State in these aspects.
However, the noble Baroness pointed out that she felt that the Secretary of State had a role to play. We

923
do believe that he should be involved in the resolution of important disputes under the code, and assurances have already been given in another place that he will be, which I am happy to repeat here. In the light of what I have said, I hope that the noble Baroness will not press her amendments. If she does, I urge the Committee to reject them.
Lord Melchett: I hope that the noble Lord will not mind me saying that his constant repetition that we are bringing things up late in a Bill's passage when we are in Committee is getting a little wearing. If the noble Lord was saying that at Third Reading, it might be reasonable; but as my noble friend has already said, this is the first opportunity we have had to debate any of these detailed points on the Floor of the Chamber. The fact that this is a hybrid Bill and that private interests have had the opportunity, through an entirely different procedure, to have their interests debated, is really of no relevance whatever. I hope that the noble Lord will not keep repeating for the rest of the time that we spend on this Bill the point that we are coming to it very late in the day. We are in Committee regarding the public aspects of this Bill. I hope that the noble Lord will not mind me making that point.
I have two questions to ask the noble Lord. First, why is the code of practice issued under this Bill different from the other land drainage codes which my noble friend mentioned where the Secretary of State for the Environment and the Minister of Agriculture play a joint role in drawing up and issuing the code? I do not understand that. The noble Lord said that it is very late in the day and it has all been considered in other places. But he did not say why there was a difference between the procedures under this Bill, where only the Minister of Agriculture is involved, and procedures in other matters.
Secondly, if the noble Lord accepts that the Secretary of State for the Environment should play a part (as clearly he must and will do) in practice under any government in resolving any serious disputes in this kind of field, why could that not be put in the Bill?
9 p.m.
Lord Hesketh: In response to the last question, perhaps I may say that I have made a commitment to the Committee this evening. In answer to the second question, I shall write to the noble Lord. With regard to his comments concerning my remarks on lateness, I remind the noble Lord that, as he is well aware, the most important amendment—Amendment No. 4—was put down last Friday.
Baroness Nicol: I was not aware that the Minister was referring to lateness in that respect. I understood him to criticise the fact that we are discussing the matter at all. In support of my noble friend's comments, perhaps I may say that to tell us that something was fully discussed in another place is not an answer. The Committee is not a rubber stamp. We are entitled to discuss matters at length if we wish to do so. However, I can see that I shall get no further
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with the amendment this evening. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 and 9 not moved.]
Schedule 3 agreed to.
Schedules 4 and 5 agreed to.
Schedule 6 [Application to Authority of certain enactments applying to local authorities etc.]:
Lord Hesketh Lord Hesketh moved Amendment No. 10:
Page 49, line 15, leave out from ("Authority") to end of line 17 and insert ("and any member of its Navigation Committee").
The noble Lord said: The amendment simply rectifies another small error in the Bill as now drafted. Paragraph 10(7) of Schedule 6 will enable the authority to pay special responsibility allowances to any of its local authority members, but not to its other members or to non-local authority members of its navigation committee. The amendment will enable all to be treated equally. I commend it to the Committee.
On Question, amendment agreed to.
Lord Hesketh Lord Hesketh moved Amendment No. 11:
Page 51, line 23, at end insert—
("The Housing Act 1985 (c. 68)
. In the definition of "local authority" in section 4 of the Housing Act 1985—

(a) the words ", in sections 43, 44 and 232 includes the Broads Authority" shall be inserted after the word "Scilly"; and

(b) the words "the Broads Authority" shall be inserted after the words "Education Authority".

The Landlord and Tenant Act 1985 (c. 70)
. In the definition of "local authority" in section 38 of the Landlord and Tenant Act 1985, the words "the Broads Authority" shall be inserted after the words "Education Authority".").
The noble Lord said: These are technical amendments designed to make the Broads Authority a local authority for the purpose of legislation relating to security of tenure and right to buy. There is no particular reason to expect the new authority to become a landlord for housing purposes. However, we have to envisage that it may at some stage have to provide some residential accommodation for caretakers, wardens, and suchlike. By virtue of these amendments any such tenants would be put in the same position as equivalent tenants of any local authority. I commend the amendment to the Committee.
On Question, amendment agreed to.
Lord Hesketh Lord Hesketh moved Amendment No. 12:
Page 51, line 28, at end insert—
("The Landlord and Tenant Act 1987 (c.31)
. In section 58 of the Landlord and Tenant Act 1987 (exempt bodies), the following paragraph shall be inserted after paragraph (d)—
""(dd) the Broads Authority;"").
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
Schedule 7 [Transitional provisions]:
Lord Hesketh Lord Hesketh moved Amendment No. 13:
Page 51, line 35, leave out sub-paragraph (2) and insert—
("(2) When the Secretary of State is satisfied that all of those members have been duly appointed, he shall, if he has not already exercised his powers under sub-paragraph (2A) below, do so.
(2A)If the Secretary of State is satisfied that at least 27 of those members have been duly appointed, he may by order specify a date for the purposes of this paragraph.
(2B)The Authority shall he deemed to have been duly constituted as from the specified date, notwithstanding the absence of some of its members.").
The noble Lord said: It may be for the convenience of the Committee if I speak to Amendments Nos. 13 and 14 together, The two amendments are designed to facilitate the earliest possible establishment of the authority after enactment of the Bill to enable it to put in hand all the necessary preparatory work and take all the planning decisions that will be needed before it assumes all its executive functions on the operative date.
The first amendment will enable my right honourable friend to make a commencement order, prescribing the date on which the new authority is to be established as soon as 27 members—just over three-quarters of the full membership—have been appointed, instead of all 33 of the members to be appointed by the local authorities and other appointing authorities, including my right honourable friend. It seems to us a wise precautionary measure to guard against the possibility of delay in making even one single appointment—for whatever reason—preventing the establishment of the authority.
The second amendment is designed to reduce to the minimum any possible delay in making appointments about which my right honourable friend is required to consult outside bodies. The amendment provides that if my right honourable friend starts his consultations before Royal Assent those consultations can satisfy the requirement which would otherwise only start to apply after Royal Assent.
I should take this opportunity to say something about timing. When the Bill was first introduced in another place in November 1986 it was hoped that it could be enacted by the summer of last year. That Bill accordingly provided for the new authority to assume its executive functions on an operative date of 1st April this year. The intervention of a general election rendered that timetable impossible. The Bill was accordingly amended to provide, as it now does, that the operative date should be specified in an order made by my right honourable friend.
Until recently we had hoped that a date of 1st October this year would be achievable. However, because of the various preparatory steps that have to be taken between enactment and the operational date if transfer of responsibilities is to be effected in an orderly and sensible way, that October target date was dependent upon achieving enactment of the Bill by the end of last year. Sadly, therefore, I have to advise the Committee that October is no longer achievable, and that our target must now be 1st April 1989, coinciding with the start of that financial year.
This further delay that has been forced upon us makes it all the more vital that there should be no more delay if we can possibly avoid it. I invite the Committee to agree to the amendments as sensible precautions to minimise delay in establishing the new authority.
Baroness Nicol: Perhaps the Minister can answer two brief questions. The amendment represents a considerable reduction in numbers, from 35 to 27. I am anxious that the authority should not go on too long with such a reduced membership. Perhaps the Minister can give me an idea of a timescale over which the appointments will be made. He will appreciate, in view of the arguments which we had earlier this evening, that the balance could be tipped one way or the other by a delay in some appointments.
My second question concerns how the quorum will apply in the interval before the full body is appointed. Will it be one-quarter of 27 or one-quarter of 35? Neither of those is possible, but there it is.
Lord Renton: In a very long experience of legislation—I first entered Parliament 40-odd years ago—I have never seen a precedent for this type of provision. I have never known a provision to be enacted by Parliament which stipulated that, if a Minister could not appoint the proper number of members on a public authority as laid down by Parliament in a Bill, the department could get cracking with fewer members. In this case, we are speaking of a fairly large proportion.
I listened as fast as I could to what my noble friend said, but I cannot pretend to have taken it all in. However, this matter will become a precedent. As it is an unusual and important precedent, we should be sure that we shall be doing the right thing. I should have thought that perhaps my noble friend does not have to press the amendment. It would not hold up the Bill if he did not press it tonight. It would make me much happier if more thought were given to the matter.
Lord Hesketh: I shall deal first with the numbers on the authority, and, secondly, with the point made by the noble Baroness about the quorum. My noble friend Lord Renton raised the same point about the numbers on the authority. Acceptance of this amendment need not mean that there will be fewer than 33 members at the authority's first meeting.
Baroness Nicol: I hope that the Minister will forgive me, but the number is 35, not 33.
Lord Hesketh: I am sorry—35. The amendment is designed to allow my right honourable friend to take the initial step of making the order prescribing a date for the establishment of the authority before all 35 appointments have been made. The date of the authority's first meeting is bound to be some time after the order itself, as may also be the date of establishment. Therefore, by the time that the authority meets all 35 members may well be in place. This is only a precautionary provision. I very much hope that it will be possible to make all 35

927
appointments promptly so that they are all in place when the authority is established.
Should that prove impossible, I do not believe that any real damage will be caused if briefly the authority is missing one or two members. The most immediate decisions that the authority will have to take will not commit it on matters where the contributions of those missing members could be seen as vital. They will largely be preliminary enabling decisions—for example, to initiate consultations about membership of its navigation committee. However, unless action is started promptly on these issues the authority will be delayed in starting its real work.
In conclusion, perhaps I should point out that the existence of a provision enabling the authority to be established before all appointments have been made will provide an incentive to all appointing authorities, including my right honourable friend, to press ahead with making their appointments and for those consulted to respond quickly to consultation, so as to ensure that their interests are not left unrepresented even for the shortest period.
So far as concerns the quorum for meetings, paragraph 3(6) of Schedule 1 provides that:
"No business shall be transacted at any meeting of the Authority unless more than one quarter of its members are present".
This is the normal provision which applies to local authority meetings generally. I am advised that this provision will mean at least one-quarter of the full membership of 35 under Clause 1—namely, nine—even if the actual membership is fewer than 35 at any time, for whatever reason.
Lord Renton: I have listened carefully to my noble friend but he has not told us whether this provision is breaking new ground or whether there is a precedent for it. If this is a precedent I hope that it will not be used at random by a less well-intentioned government at some time in the future.
Lord Melchett: For the first time this evening I should like to give some support to the noble Lord on the Government Front Bench. I think it would be a good idea. I hope that I have not entirely put him off his dinner. I think that it would be a good idea to get moving on setting up the authority and the transfer of functions. As he said, a provision of this kind will encourage everyone to make appointments quickly to the new authority. Given the assurances that the noble Lord has mentioned about a quorum, I personally should be happy for this amendment to form part of the Bill.
Baroness Nicol: I must make just one point. We have spent 40-odd minutes at the beginning of this evening arguing about the importance of one extra body for the Nature Conservancy Council. The Minister is now telling us that it does not really matter too much if two or three of them are missing when the authority starts. Either one person is important or he is not. I hope that a date will be set for the appointment of the full authority.
Lord Hesketh: With regard to the noble Baroness's last points I can only draw her attention to the remarks of her noble friend Lord Melchett. Certainly I shall take note of what my noble and learned friend Lord Renton has drawn to our attention this evening and bring it to the attention of my right honourable friend the Secretary of State.
Lord Renton: My noble friend is much too generous. I am not learned in your Lordships' Chamber.
On Question, amendment agreed to.
Lord Hesketh Lord Hesketh moved Amendment No. 14:
Page 53, line 15, leave out from beginning to end of line 19 and insert—
("Consultation.
6—(1) Consultations carried out by the Secretary of State before the coming into force of subsections (5) and (6) of section 1 of this Act shall be treated as satisfying the requirements in those subsections if they would have done so had those subsections been in force at the time in question.
(2) Consultations carried out by the Authority before the coming into force of subsection (3) of section 13 of this Act shall be treated as satisfying the requirements of that subsection if they would have done so had that subsection been in force at the time in question.").
On Question, amendment agreed to.
Schedule 7, as amended, agreed to,
House resumed: Bill reported with amendments.

Local Government Bill
9.14 p.m.
House again in Committee on Clause 28.
The Deputy Chairman of Committees (Lord Alport): I understand that Amendment No. 115 falls as a result of the defeat of Amendment No. 114.
Lord Monson Lord Monson moved Amendment No. 116:
Page 28, line 17, after ("(1)") insert ("Without the prior approval of a majority of those electors entitled to vote in a local poll,").
The noble Lord said As one of the original 94 Members of this Chamber who voted almost 23 years ago for the Wolfenden Committee's recommendations for the reform of the laws governing private male homosexual behaviour, at a time when this was considered a fairly shocking and even disreputable thing to do in some quarters, and as one who has consistently spoken and voted in favour of all subsequent decriminalisation measures, whether in relation to Scotland or Northern Ireland or to 18 to 21 year-old males, I do not think that anybody could accuse me of being hostile to the genuine (I stress the word "genuine") rights and freedoms of homosexuals.
However, it is one thing to say that the police should never again be obliged to peer through keyholes into the bedrooms of consenting adults. It is quite a different thing to claim that local authorities should be free, using ratepayers' money, to propagate

929
purpose of this book seems to be to persuade impressionable teenagers that there is no pleasure in life more intense or desirable than being sodomised by an older man. A more blatant example of trying to brainwash teenagers who are going through a transient homosexual phase into crossing the line permanently can scarcely be imagined.
I should add that before dinner the noble Baroness read out some of the most innocuous passages from that book. Far worse is contained within it. This, in conjunction with various other developments that have come to light over the past years and months, has persuaded me that Clause 28, albeit with suitable modifications, not only those in the name of the noble Earl, Lord Caithness, and the noble Baroness, but possibly also Amendment No. 120, in the name of the noble Lord, Lord Peston, is indeed necessary. In taking this line I must disagree with my noble friend Lord Annan, who I understand was also one of the original 94 who voted for Wolfenden.
Let me explain Amendment No. 116. Perhaps those of us who are in our fifties or older are out of touch with what ratepayers and local government electors with children of school age feel about this matter. I do not believe that we are, but I may be wrong. If the militant homosexuals and their supporters are as numerous as they claim to be—it was originally 1 per cent. or 2 per cent.; it then rose to 5 per cent., then to 10 per cent., and now it is more like 20 per cent.—their large numbers, combined with the intrinsic merit of their arguments, assuming that their arguments have merits which many of us have been too obtuse to appreciate, should be sufficient to ensure that they win any local poll, such as that held in Swanage prior to the Third Reading debate on the Swanage Yacht Haven Bill in this Chamber fairly recently.
If, on the other hand, they are not as numerous as they claim, and/or their arguments fail to convince their fellow local government electors, they will lose. Either way, local democracy in its true sense will have prevailed.
Let me stress that there is no question of genuine, fundamental freedoms being put at risk in any way by this amendment. Nor is there any question of censorship. If local government electors vote against such material being provided on the rates, material of this kind will still be available in sex shops for purchase, or indeed in ordinary bookshops if the owners feel inclined. It is one thing to allow such material to be sold. It is quite a different thing for unwilling ratepayers to be forced to pay for it. I beg to move.
Lord Campbell of Alloway: I oppose this amendment. It is totally unacceptable in principle because the justification for the intervention by central government in devolved government is the sad saga of the abuse of rates in this and other contexts; but we are concerned only with this context within the prohibition of Clause 28.
If it is right and necessary—indeed requisite—for central government to intervene in the interests of the vast majority of ratepayers, it is wholly unacceptable,
930
as I see it, to carve up the country into a series of city states where there is a disparate regime according to the vote of the majority of the electors in each city state. That may have been all right for the doges of Venice; but surely in principle this is a novel and wholly unacceptable proposition.
Lord Henderson of Brompton: I do not think this is a novelty. The noble Lord will recall that there used to be local control about the opening of pubs. That no longer exists; but there certainly is a precedent for it. I am not recommending it particularly, but it is going in the right direction. As my noble friend Lord Monson said, it is at least asking the people what they want to have in their district, instead of the Government dictating whatever they may or may not have.
I feel sure that my noble friend Lord Monson has the right instincts on this matter. I believe that if we let the local people foment enough opposition to the objectionable practices, that would be quite enough, together with the DES circular and a properly drafted code of practice. The Milkman, which I have not read, but extracts from which have been quoted by the noble Baroness, could be dealt with by being prosecuted under the Obscene Publications Act. It is not a reason for bringing the clause into the Bill.
Lord McIntosh of Haringey: I should be the last to question the credentials of the noble Lord, Lord Monson, on this matter. I certainly do not question his motives in bringing forward the amendment. Indeed, I come back from Australia as a recent convert to compulsory voting; but I very much doubt whether it is really appropriate to introduce, at this time and on this subject, the entirely new principle of a majority of those qualified to vote rather than a majority of those actually voting. There are very few local elections in which a majority of those entitled to vote vote on any side, let alone for the winning side, and to expect a majority of those entitled to vote to vote is a little unrealistic. Although the amendment is, as the noble Lord, Lord Henderson, says, undoubtedly well meant and is a step in the right direction, it is a minuscule step and I do not think it will help us very much.
Lord Campbell of Alloway: I do not suggest that it was not well meant, well intended or that I doubt the sincerity of anyone; but for the reasons I have sought to give I suggest that it is wholly misconceived and unacceptable.
The Earl of Caithness: The noble Lord, Lord Monson, whom I am glad to see taking part in the debate—I am sorry he was unable to do so earlier—suggests that the prohibition on the promotion of homosexuality should be qualified if the majority of electors entitled to vote at a local poll give prior approval to the proposal that the local authority may underake an activity that promotes homosexuality. Quite apart from the cost implications of such referenda, and the constitutional problems of deciding issues in that way, the Government have other worries that make us feel that we are unable to accept the noble Lord's

931
such odious books as The Milkman's on His Way, to which the noble Baroness, Lady Cox, so helpfully drew our attention to some months ago. The chief proposition. Surely it plainly undermines our view that local authorities should not be promoting homosexuality in any circumstances.
The major drawback of the noble Lord's amendment arguably is that one effect of the amendment would be to authorise local authorities to promote homosexuality when it is by no means clear that they have such authority under the existing law. That is the major stumbling block, quite apart from those that worry the noble Lord, Lord McIntosh of Haringey, that makes us feel that is is not a step in the right direction as the noble Lord, Lord Henderson, thinks.
Lord Monson: I am grateful to my noble friend Lord Henderson of Brompton for his support and for his confirmation that there is indeed a precedent for the procedures which my amendment proposes. I was well aware that my amendment had the technical defect to which the noble Lord, Lord McIntosh, drew attention. Had it been acceptable, I would have been very happy to have altered that defect the next time round. I also anticipated many of the objections made by the noble Earl, Lord Caithness. I do not think in practice that they would come to very much because I cannot believe that many local government electors would vote in favour of the material which I described earlier. However, I think the whole issue needed an airing. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.30 p.m.
The Earl of Caithness The Earl of Caithness moved Amendment No. 116ZA:
Page 28, leave out lines 18 and 19 and insert—
("(a) intentionally promote homosexuality or publish material intended to promote homosexuality").
The noble Earl said: I have already spoken to this amendment. I beg to move.
Lord Gifford: May I ask the noble Earl for clarification? I apologise if the point has been covered. I was in a trial in Manchester this afternoon and could not attend the earlier session of the Committee. I should like clarification on the meaning of the amendment. There are two matters; first of all, "intentionally promote homosexuality". The intention there is clearly the intention of the local authority. The second matter is, "or publish material intended to promote homosexuality". Whose intention is being referred to? Is it the local authority again? Or if the local authority published material intended by its author, perhaps a well-known writer whose works, in someone's view, promoted homosexuality, would that be covered by the proposed amendment? Surely, it should be clear that the only intention involved is the intention of the local authority? As it reads, it is ambiguous. If the local authority published material which was intended by James Baldwin or E. M. Forster, or whoever else wrote it, to promote homosexuality, it would be capable of being covered by this clause. I hope that this point will be considered. Perhaps the Minister can obtain advice. I hope that he intends that it is only the local authority's intention which is meant to be decisive in construing this clause.
Baroness Seear: The point raised is really quite clear. It is not the local authority because "intended" qualifies the material. It is the material intended and therefore it is the author's material and not the local authority's intent, grammatically as it stands. This is not a point of argument; it is a point of grammar.
Lord Campbell of Alloway: My intention as draftsman—it is a valid point to take, if I may say so with respect to the noble Lord—was that it was the intention of the local authority. I would have thought it so read. If there is any doubt about it, it is surely a matter of importance which should be clarified.
Lord McIntosh of Haringey: This is a very interesting intervention by the noble Lord. We have heard of him drafting bills for the noble Earl, Lord Halsbury. Is he now drafting government amendments?
Lord Campbell of Alloway: The noble Lord is being rather mischievious, and that is permissible at this hour. He knows perfectly well that I do not draft government amendments. But the original draft of the Bill was my draft, if he was present when I spoke. My intention in the original draft, which has not been
934
departed from, as I understand the government amendment, was that it should be the intention of the local authorities.
Lord Houghton of Sowerby: The more we hear about these amendments, the more ridiculous your Lordships' House will look on the television play-back 50 years from now. It is time for a little impatience to emerge in the debate. We have listened to more nonsense today than for many, many a day. What does the noble Earl want to do? Does he really want to carry this to the point of absurdity? How does one unintentionally promote? In any case, he has another amendment, Amendment No. 117A, which says,
"In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as it sees fit".
How many more times is the intention of the local authority, or the unintention of the local authority, to be stated, restated and finally examined by the court? Surely the Minister can leave it alone. When I say "leave it alone", I mean that we are going into the refinement of the words and the extension of their meaning when at the end of the day a court will decide the matter.
We shall soon have to issue guidelines and codes of conduct for the courts; we shall not be able to leave them to interpret words either. What is the matter with everybody? Why are we asked to stay late at night to go into this kind of guff? Surely we can get on and finish it now. Drop all this nonsense and let us get on and decide that we do not want homosexuality in schools. It ought to be in the Education Act but we have stuck it in the Local Government Act. We are to consider the curriculum and other matters relating to educational reform in due course, but here we are spending time on a local government Bill which really has nothing to do with this matter. Tomorrow we shall be talking about dogs. We shall spend hours discussing dogs tomorrow and all the arrangements have been made to spend hours discussing dogs tomorrow.
When television viewers see pictures of this Committee they will wonder what has happened. They will see all these ageing Peers sitting on crowded Benches and discussing homosexuality in schools. The young will roar with laughter and ask: what did those old men do when they were young?
The Lord Bishop of Manchester: I cannot follow an act like that! However, I should like to ask the Minister one question. I apologise if the point has been made before during the debate, as I am sure it has. The amendment states:
"intentionally promote homosexuality or publish material intended to promote homosexuality".
I understand that that refers to homosexual acts and relationships. However, that is not stated and I should like the Minister to explain why. I ask that question because it seems to me important that a distinction should be made, because we know very well that a certain proportion of people in this country are homosexual by nature. It is vitally

935
important that prejudice is not encouraged by a clause of this kind. I should like the Minister to say why it is not stated in that form.
Lord Boyd-Carpenter: In response to the comments made by the noble Lord, Lord Houghton of Sowerby, I believe that television viewers will regard this Committee with great respect for the trouble that it is taking to get the Bill right, whatever their views. The noble Lord says that the viewers will see aged Peers. They may see the noble Lord, Lord Houghton, but, on the other hand, when their eyes turn to the Government Front Bench, whatever accusation can be made against the Minister great age is not one of them. I believe that viewers will be deeply impressed to see that a Peer of his relative youth is able to handle this complex material with such skill, patience and effectiveness.
As regards the amendment, I should like to make the point that the intention is surely perfectly clear. If the material that is published is intended to promote homosexuality, surely it can be assumed that a local authority which takes it upon itself to publish that material intends to promote homosexuality. It can hardly say, "We published this so sweetly and innocently that we had no idea that this material was intended to promote homosexuality. We just thought it was beautiful literature". I cannot believe that it would get away with that in any court. It seems to me that my noble friend's amendment is perfectly effective. If the material is intended to promote homosexuality, then the local authority which has taken it upon itself to publish that material also intends to promote homosexuality. Therefore this seems to me a perfectly good amendment.
Lord Jenkins of Putney: Nobody is more anxious to get on with the Bill than I am, as I am waiting to move an amendment which stands in my name. However, I believe it is rather serious that we are proposing to leave in a matter of ambiguity on this question of intention. As my noble friend said: by whose intention? If the local authority is not only to be the arbiter so far as itself is concerned as to what it thinks, but is also to determine what a series of very distinguished authors—they may be distinguished as well as the porn people—may think, we shall be putting a local authority in an absolutely impossible position. Therefore, I think that when the noble Earl comes to reply to this debate he must say that he will clarify this point. We cannot have local authorities left in the position of censors not only of themselves but of everybody else as well. We must have clarification on that point.
Lord Hutchinson of Lullington: the noble Lord, Lord Jenkins, has put his finger on the point. The noble Lord, Lord Boyd-Carpenter, said that the television viewers will be impressed because the Committee has tried to get it right. That is exactly what the Committee have not done. They have tried all afternoon to get it right and have got it wrong.
I will give the Minister an example and ask him to tell the Committee what will happen. Suppose that a local authority is supporting a theatre which puts on
936
a play which depicts a homosexual relationship which in fact is depicted as being successful and happy and in every way as good as any heterosexual relationship. Suppose that that is the message of the play. A councillor says, "This theatre is putting on a play which in my opinion promotes homosexuality because it makes it equal to heterosexuality, and that in my view is wrong and is promoting homosexuality." The other councillors say "Why do you say that?" He says, "In the Bill it says that I may draw any inference that I like from what goes on and the inference I draw is that this playright is promoting homosexuality".
Will the Minister tell the House whether in those circumstances this clause here, as amended, means that if those councillors come to the conclusion that that playright is intending to promote homosexuality however good a play, the authority will be perfectly entitled to withdraw their subsidy and therefore this is censorship by the back door? I should like the Minister to tell me if that is correct.
Lord Henderson of Brompton: I should just like to answer the right reverend Prelate with regard to the word "homosexuality". That point was raised in the earlier debate. It was raised by myself, among others; and I described homosexuality as an abstract concept which meant nothing. I very much take the point made by the right reverend Prelate, and I give notice to the Minister that I shall be moving an amendment to delete "homosexuality" and to put in "homosexual acts" or words to that effect at the next stage of the Bill. I am happy to see the right reverend Prelate nodding, and hope that I may have his support when I come to that amendment.
The fact that this amendment has been so widely criticised is yet another instance of the rush and hurry in which this whole business has been put before Parliament. This amendment was tabled late on Friday. Nobody on Friday could get hold of it. It was circulated at the very earliest on Saturday morning. If one happened not to be at home, or to live far away, one did not receive a copy until one arrived at the House this afternoon. And the matter is to be debated this afternoon. That is not treating the House properly. It is merely a continuation of the rush and hurry with which this Bill was pushed through another place. I know that the noble Earl very kindly sent me a letter to the effect that he was tabling this amendment on Friday, and it was courteous of him to do so. However, in thanking him for doing that, surely it is an indication that he admits himself that it is very late in tabling an important amendment and that he found it necessary to make that explanation to me as one of the signatories to Amendment No. 114.
While I am on the subject of rush and hurry (which I consider to be highly reprehensible on a matter of social sensitivity) I should like to add, as I said earlier, that the government amendments in another place were starred. That was denied by the noble Earl. I have a copy of the proceedings for Standing Committee A in front of me. It is dated 8th December 1987. I see, if it is worth putting before the Committee, that the amendment was starred on that

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very morning of 8th December; that is, the last day of the Committee proceedings. However, because the amendment was taken at the afternoon sitting, it lost its star. I ask the Committee whether that is not pushing things rather hard. Is not the noble Earl pushing us hard in this place by producing this amendment late on Friday night? I do not consider that this is the proper way to treat Parliament on a socially sensitive issue. All I shall do at the moment is reserve my right to bring forward an amendment to the word "homosexuality", which I consider to be totally unacceptable.
I follow on from the noble Lord, Lord Houghton of Sowerby, who asked whether it was possible unintentionally to promote. I should like to ask a further question. If "intention" is to cover "publish" as well as "promote", how can you unintentionally publish something? The noble Earl, Lord Stockton, has experience of publishing, and I see that he is in the Chamber. How is it possible for him or anyone else unintentionally to publish something? I see that he is shaking his head; so it is not a possibility. That is another indication of the absurdity of this amendment which has been pushed through in such an unseemly rush.
Lord Airedale: If you substitute "likely to promote homosexuality" for "intended to promote homosexuality", you substitute the judgment of the court for the opinion of the local authority. Perhaps that is a safer way of dealing with the matter.
The Earl of Caithness: I am grateful for the suggestion of the noble Lord, Lord Airedale, because it is to the courts that we look to draw what inferences they wish on the example put forward by the noble Lord, Lord Hutchinson of Lullington. That means of course that the courts can take into account all the relevant circumstances in determining the purpose of the local authority, not just what the authority claims to be its purpose.
As I believe I explained at some length on Amendment No. 114, what we are aiming to do is reach those local authorities that have abused the situation that has always been held by local authorities and who have in the recent past promoted homosexuality; that is, giving it a standing over and above the standing that is given to similar matters.
I know that the noble Lord, Lord Gifford, was not here earlier, and that I fully appreciate; but I covered the point he made in that the intention of the Government certainly is not to ban the literature and the plays to which I believe he refers. However, he has raised a point which I should like to look at in some detail. As I understand it, the point is to catch the local authority on this; but he has perhaps raised a query which I should look at between now and a later stage of the Bill.
The right reverend Prelate the Bishop of Manchester asked about the vagueness of "homosexuality" itself. He asked about the abstract concept. We believe that the word "homosexuality" is a useful and clear way of referring to all three aspects. That covers the point that the noble Lord, Lord Henderson of Brompton, will come to in a moment.
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Some local authorities have been concerned to expend taxpayers' money on promoting positive images of homosexuality. That is the abstract concept. Others have been concerned to ensure that homosexual relationships receive a degree of support and assistance not necessarily available to other relationships. Other authorities in recommending books which set out to explain the details of homosexual activity seem to want to encourage such acts. The word "homosexuality" is therefore a convenient way to cover all aspects of the problem.
At this stage I hope that the Committee will accept the recommendation of the Government on the proviso that I shall look at the point that has been raised. If I am wrong, or it needs tightening up in the way that the noble Lord, Lord Gifford, suggests, we can come back to it at another stage.
9.45 p.m.
Lord McIntosh of Haringey: The Government have dug themselves into a pit, and every time the Minister wriggles he sinks deeper into the mire. For the first time he has attempted first of all to define "promote". He says that "promote" means to say that homosexuality is something over and above heterosexuality. The Minister has never said that before and it is an interesting thing for him to say. It goes flatly counter to common English usage, and it certainly demands more justification than it has had from the Minister tonight. He is now attempting to justify the use of the word "homosexuality" by defining the different objectives which local authorities may have in, as he describes it, promoting positive images. There again the Minister has got himself into very deep trouble because homosexuality as an abstract concept is not an adequate way to look at these various aspects of homosexual behaviour, and homosexual acts including the representation of homosexual behaviour.
Obviously with his undertaking to my noble friend to look at the question again, it would be inappropriate for the Committee to pursue him now. The Minister will find himself in very much greater difficulty at the Report stage than he anticipates if he believes that the Government can get away with the present wording, because they cannot.
Baroness Seear: In fact the Minister is playing Humpty-Dumpty is he not? "Words mean what I want them to mean" said Humpty-Dumpty, "neither more nor less".
On Question, amendment agreed to.
Baroness Cox Baroness Cox had given notice of her intention to move Amendment No. 116ZB:
Page 28, leave out lines 20 to 23 and insert—
("(b) permit the teaching or use of any material which promotes homosexuality in any maintained school;").
The noble Baroness said: I have already spoken to this amendment, and I shall not detain the Committee any longer in speaking further this evening. I am most grateful to my noble friend the Minister for his undertaking to take this amendment

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away and consider it. On that understanding, I shall not press it further this evening. I beg leave to withdraw the amendment.
[Amendment No. 116ZB not moved.]
Lord McIntosh of Haring Lord McIntosh of Haring had given notice of his intention to move Amendment No. 116A:
Page 28, line 28, leave out ("treating or preventing the spread of disease") and insert ("care, counselling or health education in relation to Aids or other diseases").
The noble Lord said: I spoke to this amendment in the debate on Amendment No. 114. I listened very carefully to the reply from the Minister in which he indicated that the amendment was perhaps narrower than I intended it to be. In the circumstances, it is better that I do not move it.
[Amendment No. 116A not moved.]
Lord Peston Lord Peston moved Amendment No. 117:
Page 28, line 29, at end insert ("or the stocking and lending of works relating to homosexuality in the normal discharge of the functions of a public library or the library of an educational institution.").
The noble Lord said: The remarks I have to make about Amendment No. 117 more or less cover Amendment No. 120, so with the permission of the Committee, I assume I shall not have to speak twice.
The general position that I hold is the one that I took during Second Reading, and which has been reinforced by listening to the debate we have had today. The clause is essentially nonsensical, and that seems to me to be amply confirmed by the debate. It is in the nature of things in Committee that one only discusses the question of a clause standing part of the Bill after discussion has taken place on the amendments to the clause. Therefore I find myself in the intellectually unattractive position of considering amendments to a clause that I think is gibberish in the first place.
Nonetheless, because one has a duty in a fail-safe sense to try to do something to rectify the situation, it seems to me that the material in Amendments Nos. 117 and 120 is at least worth considering. As regards Amendment No. 117, after listening to the noble Earl it may well be that the provision is taken care of in his interpretation of the clause. Obviously I do not have a record, but I thought that he said that the words in the amendment would be in order, and that if the library were run normally but happened to contain books of a homosexual nature in one form or another it would not run foul of the law. If that is the case, obviously I shall not press the matter any further.
Again, a possible interpretation of what the noble Earl said could also cover Amendment No. 120, because that essentially relates to the normal operations of a library, and of teaching and so forth.
There are two possibilities. Either it is clear that all these matters are taken care of, and that that was what the noble Earl was saying (in which case I do not need to press the matter) or it is intended that it should be the case and that it is not clear, in which case it would be reasonable for the noble Earl to accept most of the amendments.
I wish to refer to the concept of a defence in any action. Not being a lawyer, if we pass the clause (people keep talking about the courts) I should like to have some clarification as to who would bring the appropriate action. I assume that the local authority would defend in such cases. But would the police bring the action? Would it be possible for parents to bring the action? What do the Government have in mind about that aspect of the legal side of the matter? Those are the points upon which I should like some reassurance. I beg to move.
Baroness White: I was also engaged in public business in the Principality earlier in the day, so I am not sure to what extent the Minister has covered the points raised by the noble Lord, Lord Peston.
It is some half century since I was on the staff of a public library. That library was not in this country but in New York. It was the great New York Public Library on 42nd Street with which some of the Committee may be familiar. It is one of the great libraries of the world. It combines public responsibility and private beneficence, which ought to appeal to the Government. I have kept in touch, although distantly, with the profession of librarianship. I ask the Minister to recognise that there is considerable anxiety among librarians as to precisely where they will stand. It is essential that somewhere in the Bill we have the statement that the noble Lord, Lord Peston, has mentioned, which would leave the matter in no doubt.
We all know the pressures under which public and educational libraries work these days. One needs only one difficult client to make one's life a misery. One needs a clear statement as to what action is proper and permissible in the eyes of the Bill's promoters, and what is not. I do not want to labour the point but it is a serious one which affects an important profession. We have had representations, and before the Bill leaves this place we must secure absolute clarity on the issue.
Lord McNair: In general, I support both the amendments, but I have niggling worries about them, which suggests to me that it might be better if they were withdrawn tonight and introduced later.
The worry about Amendment No. 117 is that it is awkwardly attached to the clause as it stands. If it were accepted it would read:
"Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of treating or preventing the spread of disease or the stocking and lending of works relating to homosexuality"
etc. The therapeutic and the literary do not seem to me to go in one subsection. I would urge the noble Lord, Lord Peston, to bring this in again later as a separate subsection.
When we get to Amendment No. 120, since the noble Lord has spoken to both amendments, I take it that his intention is that any of paragraphs (a), (b), (c) or (d) should be a defence. If that is his intention, ought there not to be an "or" after (a) and (b)? As I read it at present, the defence would have to consist of (a) plus (b) plus either (c) or (d). I do not think that

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is what he meant. This might be better given a little more thought and perhaps discussed in further proceedings.
Lord Hutchinson of Lullington: I should like to support the amendments, particularly Amendment No. 120. Perhaps I might ask the Minister why there should not be a defence provided. The Government have reduced support of material which may show homosexuality favourably to the level of the law of obscenity. Anyone who is charged with an offence of obscenity has a statutory defence. Surely, here, there should also be a statutory defence. If you are charged with obscenity but it can then be shown that the work has great artistic merit, even though it may be obscene, it will not be caught by the legislation.
Suppose there is a work of the greatest possible artistic merit which also promotes homosexuality. Is a conviction inevitable? If a conviction is inevitable, then are we not right in fearing, as we have said throughout this debate, that this clause is stark censorship through the back door?
Lord Campbell of Alloway: I oppose the amendments. At this hour, I wish to make only one point: why should the courts be encumbered with juridical imponderables such as the literary merit, the pedagogical need and what is incidental to principal content, and what is essential to completeness of a work of learning or reference? These concepts render the prohibition in Clause 28 totally unworkable. They dilute the whole essence of the prohibition and, in view of what my noble friend the Minister has already said this afternoon, they are surely unnecessary.
As to the proceedings, as I understand it civil proceedings may be instituted; but I am open to corrrection. The noble Lord, Lord Hutchinson, referred to "conviction" which presupposes criminal proceedings. I understood that this was enforceable in the civil jurisdiction.
Baroness White: Can the noble Lord explain to the Committee, if he were a librarian having to work out the purchasing list for a library how he would feel about the remarks which he has just made?
Lord Campbell of Alloway: I have made my point and I do not think the Committee would wish to hear any further from me at this stage.
Lord Hutchinson of Lullington: In answer to the noble Lord, perhaps it was a slip of the tongue to use the word "conviction". I mean finding the offence proved. But is the noble Lord saying that literary merit can have no relevance whatever under this clause?
10 p.m.
Lord Monson: Having made it clear earlier that I broadly support the Government on Clause 28, I urge them to give sympathetic consideration to Amendment No. 120. I am not so happy about Amendment No. 117.
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By no means all the fears expressed from the Opposition Benches are well founded, but some of them undoubtedly are. I think that acceptance of Amendment No. 120 either as it stands, or in slightly modified form, will go a very long way to meeting these legitimate concerns. Let me also point out in favour of Amendment No. 120 that it is more tightly drawn than Amendment No. 114, which was defeated, and that only works of literary merit as opposed to those works which merely have a literary purpose are exempted. That would make it clear beyond doubt that those recommending works by Oscar Wilde, E. M. Forster, Proust and others have nothing to fear.
Lord Trafford: I take the point in worrying about this amendment, mainly with regard to its wording— I understand fully the intention of the noble Lord, Lord Peston, in moving his amendments—and I share the anxieties of my noble friend Lord Campbell of Alloway about Amendment No. 117. As regards Amendment No. 120, in view of what was said in this afternoon's debate I wonder whether it is necessary at all because surely there will be no proceedings taken here. The true answer to the question how one would act as a librarian is that if one is as a librarian carrying out one's proper function and duty, which is to get a proper selection of books including those of literary merit, one would continue to select such books. I do not believe that under this kind of provision, which after all is only a restriction on local authorities, librarians would have anything to fear. I am sure we shall hear again from the Minister—perhaps I misheard him earlier—that that fear is without any grounds.
Lord Henderson of Brompton: There should not be any doubt at all, but the fact is that there is a fear. There was an unsuccessful attempt made in Amendment No. 114 to do something of this kind and it is very valuable that the noble Lord, Lord Peston, has brought in Amendment No. 120, which I consider to be rather better though I should not be willing to pawn its worth.
There is quite a lot to answer for. The noble Lord, Lord Campbell of Alloway, was asked two questions which by his silence he does not seem able to answer. Perhaps the noble Earl, Lord Caithness, will do so in his place.
I hope that the Minister will take this matter very seriously and consider whether something could be brought forward at another stage to meet the genuine concern which the noble Lord, Lord Peston, has put forward. At the same time, refer once again to the fact that the only government amendments in the House of Commons were starred. The only starred amendments on this occasion are government amendments. If the Minister is going to table any amendments on Report, will he please make sure that they are not starred as well?
Lord Campbell of Alloway: I thank the noble Lord, Lord Henderson of Brompton, for his charming courtesy and for the assumption that because I do not take up the Committee's time at this hour I am unable

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to answer the question and that I have not the slightest idea what I am talking about! But I shall not proceed any further.
The Earl of Caithness: The noble Lord, Lord Peston, has proposed a specific exemption in Amendment No. 117 for the stocking and lending of works relating to homosexuality in the normal discharge of the functions of a public library or the library of an educational institution. In his speech he quite rightly referred to the fear of those in the library world that the normal functions of public libraries would be constrained as a result of this clause.
We have debated at some length in the context of the earlier amendments the various fears about the effect of the clause. I have made it clear that we believe those fears to be misguided. I would only reiterate what my noble friend Lord Trafford has just said on that. I can assure the Committee that it is no part of the Government's intention to inhibit local libraries in their decisions on which books to stock. We recognise that local authorities are under a duty to provide a comprehensive and efficient library service and that they may wish to stock a range of material about homosexuality dealing with homosexual themes or written by homosexual authors.
In our view, Clause 28 does not stop them doing so unless they are setting out intentionally to promote homosexuality. The amendment is, in the Government's view, therefore unnecessary. It is no part of a local authority's role to promote homosexuality. Our amendments make it absolutely clear that it is only the deliberate promotion of homosexuality by local authorities that would be affected.
Turning to Amendment No. 120, again, we do not accept that it is a legitimate defence for a local authority alleged to have contravened the prohibition that a literary work used by the author or made available to the public by the authority also served a legitimate purpose.
I am happy to reassure the noble Lord that Clause 28 would not prevent local authorities from making available literary works in any of the circumstances specified in his amendments so long as it was no part of their purpose intentionally to promote homosexuality. I come back to that theme, which we have been trying to get across to the Committee as being the sole purpose of the clause. It is for that reason that the Government would not wish to sanction any defences for activities with that specific purpose, which would be the effect of the amendment.
The noble Lord asked a specific question regarding who would be able to bring the action. Any ratepayer, elector or anyone affected by the authority's decision could seek judicial review of that decision. That could cover a parent in the case of a decision affecting a school. In any event, such a party would need the leave of the court, as the noble Lord, Lord Hutchinson, is fully aware. He asked me whether a conviction would be inevitable. I "tangled"—I use the word in inverted commas—with
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the noble Lord on the Criminal Justice Bill, so he is aware that I cannot give him a straight answer as I have not had the legal training that he has. Again, it would depend on whether the local authority was seeking intentionally to promote homosexuality. That would be the matter at which the court would look.
To answer the noble Lord, Lord Peston, further, the authority's auditor could use his power to seek a declaration from the court that expenditure is illegal under the clause.
Lord McCarthy: Before the Minister sits down, perhaps I may make sure that I have understood him. Is he saying that masterpieces such as the first 138 sonnets of Shakespeare or large parts of the Iliad, if found by a court to promote homosexuality, could not be issued by a public library?
The Earl of Caithness: No. I am saying that if the local authorities put a range of materials in their libraries, we do not wish to affect them with the clause. If a local authority goes out of its way deliberately to promote homosexuality, that is a matter of great concern.
Lord Peston: Perhaps I may ask for one final clarification. I thank the noble Earl for his clarification on the matter of who may bring an action. However, I am even more confused now. Let us assume on the one hand that there is an argument about a certain authority promoting homosexuality. Assuming that, does that not bring into question everything that the local authority is doing? Therefore, as my noble friend Lord McCarthy has said, the issue of Shakespeare's sonnets would arise. One is arguing in a sense that the authority is promoting a positive policy and defying everybody. Therefore, how is one to know that those particular books are not connected with the promotion of homosexuality?
It seems to me that the Minister is not fully aware of what he has opened up and the enormous dangers he is presenting to libraries, schools, and so on. I do not wish to press the matter too strongly. However, I believe that he ought to think about the matter instead of simply rejecting it. I think that the matter is more serious than he appreciates.
The Earl of Caithness: I take the arguments and theories of noble Lords opposite very seriously indeed. If such a matter comes to court for judicial review—and leave must be given for that to happen—and the court looks at all the circumstances, it then has to assess the intention of the local authority. If the authority did nothing other than provide on all its shelves books which were for the promotion of homosexuality, I dare say that under the clause it would not stand a terribly good chance. However, I should not wish to prejudge any situation. As I have said time and again, if there was a wide range of books covering a variety of subjects, we would not wish to catch that in the clause.
Lord Hughes: When the Minister answered Lord Peston's point about who would raise the action he indicated that any ratepayer could apply for a judicial review. Then he went on to talk about the powers of the auditor, which seemed to be a fall-back position. If no ratepayer wanted to involve himself in seeking a judicial review, there would still be this other matter. Am I right in thinking that when he talks about the powers of the auditor he is referring to the new clause in Amendment No. 120BA and the new schedule after Schedule 3 which empowers the auditor to issue prohibition orders against an authority which is infringing any of the provisions in the Bill? If so, what happens in Scotland which is specifically excepted from the new clause and the new schedule?
Lord McIntosh of Haringey: I hope that the noble Lord, Lord Campbell, will allow me to speak first. He has had two or three goes already on this amendment. It seems that the longer the Minister seeks to answer questions the more difficulties he encounters. He has now raised a completely new concept; namely, the idea that a library has a range of books on different subjects and that if the library consists entirely of books about homosexuality it would be subject to challenge, but not if homosexual books are only a part of its general range. Of course none of that appears anywhere in the clause, but that is the interpretation which the Minister offers us.
Let us take a halfway house example. Many bookshops have sections on feminist books, as do many libraries. Many of the feminist books are lesbian feminist books. If they are put in a position of prominence in a public library, is the local authority at risk? I know of bookshops which have shelves and sections specifically for gay and lesbian books. If there is a section of that kind in a public library, is the local authority at risk?
There is no escape for the noble Earl from the difficulties that he is making for himself in accepting this clause and the way in which it has been phrased. Every time that he says something more he makes it increasingly impossible for there to be an acceptable interpretation of what the Government intend by this clause.
Lord Campbell of Alloway: From this side of the Committee we do not have the impression at all that the more the Minister says the more difficulty he gets into. One has the impression that noble Lords opposite have created difficulties which on examination do not have substance. I am not much given to supporting Ministers but on this occasion my noble friend the Minister has acquitted himself logically and well on this subject and is in no difficulty at all.
May I ask a question for clarification? My noble friend the Minister said that the prohibition in Clause 28 was enforceable by judicial review. Then he went on to say "or by a declaration". As I understood it, the normal process of enforcement would be the civil process, that is to say, in England applying in the Chancery Division for a declaration that the conduct was prohibited. One would not be limited to a judicial
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review process. The civil courts would have the power in an appropriate case even to award damages. That power would be distinct from any powers of the auditor to which the noble Lord has just referred. My understanding is that in the ordinary way if one were consulted about a prohibition, whether or not there was a breach, one would issue a summons or a writ in the High Court seeking a declaration and, if appropriate, in very rare cases damages. Is that the right approach?
Lord McCarthy: Before the noble Earl answers that question could he simply tell us whether it is a private Mother Grundy who brings the case or a government Mother Grundy? Is it a civil liability or criminal liability?
10.15 p.m.
The Earl of Caithness: I was surprised by what the noble Lord, Lord McIntosh, said about my earlier comments. All I did was repeat what I had said, admittedly in slightly different words. I thought it would be wrong for me to repeat to the Committee exactly the same words that I had used before. However, let me repeat them for the Committee's sake. I am sure that the noble Lord inadvertently did not hear me.
We recognise that local authorities are under a duty to provide a comprehensive and efficient library service and that they may wish to stock a range of material dealing with homosexual themes, or written by some homosexual authors. In our view, Clause 28 does not stop them doing so unless they are setting out intentionally to promote homosexuality. That is exactly what I said to the noble Lord a moment ago. For him to say to me that I have changed my mind and have dug a deep hole is nonsense. It surprises me that the noble Lord has said it.
To answer the noble Lord, Lord McCarthy, I think that I am right in saying that this is a civil matter. I say to my noble friend Lord Campbell of Alloway that I understood it was through judicial review that one sought the decision; but perhaps I should check on that.
Lord Hutchinson of Lullington: The noble Earl has not answered the question on Amendment No. 120. This sword of Damocles is hanging over the council: that if it supports this play then it may be said that it is promoting homosexuality because it is supporting an organisation which is putting on a play which is promoting homosexuality. That authority will then withdraw its funding because it has hanging over it the sword of Damocles that any member of the public or the auditor may say, "Take them to court. They are promoting homosexuality".
One wishes to know whether in those circumstances the local authority can sit back and say, "This is a play of clear, artistic merit. We do not care a damn that it is promoting homosexuality. We are perfectly safe. We can say to the other councillors that we are perfectly safe because there is here a work of literary merit and that is what makes the difference"; or is literary merit irrelevant? If it is irrelevant, then I ask the Minister again to answer the charge that this is censorship.
Lord Boyd-Carpenter: The noble Lord, Lord Hutchinson of Lullington, said on an earlier amendment that we were not even trying to get things right. I would certainly agree that that observation applied to his own contribution. However, Members of the Committee generally are trying to get this right. What the noble Lord, Lord Hutchinson, has just said confirms what I said a moment or two ago about his attitude. If a play is put on which is intended to promote homosexuality, I think that it would not be, and should not be, a defence that it was also of high artistic or literary merit. If the purpose was the promotion of homosexuality, literary merit is and should be no defence. If a play is put on in the general way and is not intended to promote homosexuality, it is all right.
The final safeguard is the view of the court. Here we come shortly to another amendment of my noble friend. If the court thinks that a play or book, or whatever action is involved, is intended to promote homosexuality, the court will find against the authority financing it. However, if the court finds that the main purpose of the play is the maintenance of a high literary standard and that the homosexual aspect of it is of less importance, it will not find that the purpose is the promotion of homosexuality. Therefore it seems to me that the noble Lord is making extremely heavy weather on a rather bad point.
Lord McIntosh of Haringey: We must be grateful to the noble Lord for coming clean. He rather reminds me of the mother whose child comes home and uses bad language. In defence the child says "Why mustn't I use those words? Shakespeare uses them". The mother says, "Well, you mustn't play with Shakespeare any more."
Lord Boyd-Carpenter: Is the noble Lord really saying- it is interesting because I think he has unconsciously come clean—that one can put on, shall we say a play, the clear purpose of which is to promote homosexuality and hope to get away with it because it is of high literary quality? Is that what the noble Lord is saying?
Lord McIntosh of Haringey: We have consistently questioned whether the phrase "to promote homosexuality" has any definable meaning, and we persist in doubting that. There cannot be an answer—not that we are unwilling to give an answer—to the noble Lord's question because the terms of that question are inappropriate. If his question, properly interpreted, is whether a play of high literary merit is to be banned, although it portrays homosexuality as an acceptable or as a "pretended family relationship", our answer would be that high artistic merit would defend it from the charge of promoting homosexuality and it ought not to be banned. If that is not the Government's position, the Government have really committed themselves, should they accept the arguments of the noble Lord, Lord Boyd-Carpenter, to a position of censorship of the worst kind that I have heard in this Chamber in the time that I have been here. It raises
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much greater doubts about the sanity of the Government in pursuing the clause than I should have thought possible.
Lord Boyd-Carpenter: It is the noble Lord who has committed himself, not the Government. He has made it clear—and it is useful to have got this clear—that one can put on a play deliberately designed to corrupt young people—
Noble Lords: No.
Lord Boyd-Carpenter:—deliberately designed to corrupt young people and get away with it if it is written by someone whose literary skills are adequate to enable it to claim high artistic or literary character. It is extremely interesting to have extracted that from the noble Lord. It has taken a good many hours to do it, but the truth is now out.
Lord Campbell of Alloway: Yes, at long last one knows what one is facing. One realises why all the speeches on Amendment No. 114—which I gather was an Arts Council amendment proposed by the noble Viscount and seconded by the noble Lord, Lord Henderson of Brompton—were not in favour of the amendment; they were even against the amendment. They were against any interference that was in favour of the motion, That the clause shall not stand part. The motivation has just been explained and we can read it in Hansard tomorrow.
Lord Monson: I can understand the reservations of the noble Lord, Lord Boyd-Carpenter, about paragraph (a) of Amendment No. 120. I am not sure that I entirely agree with him, but I can understand his reservations. Does he not agree that there can be no possible objections to paragraphs (b), (c) and (d) of Amendment No. 120?
Lord Boyd-Carpenter: I am not dealing at the moment with Amendment No. 120. I was dealing with the one specific point as to whether a play or any other publication designed deliberately to promote homosexuality, and thereby to corrupt young people, should get away with it because it had high literary merit. I confine myself to that point and resting on that, I feel that the other parts of Amendment No. 120 do not arise, although I demur to the suggestion at the end that if the reference were educational, that perhaps would not matter. It is a question of the intention.
Lord Hutchinson of Lullington: I invite the noble Lord to withdraw the phrase "to corrupt young people". It was I who asked the question. I never mentioned anything about corrupting young people. Young people did not come into my question. The question that I asked was whether a play which incidentally promoted homosexuality or put homosexuality in a favourable light would be caught by this clause if it had high literary merit. Corrupting youth has absolutely nothing to do with it. The noble Lord has misconstrued the question which I put. I should very much like him to withdraw those words.
Lord Boyd-Carpenter: I was not in fact referring to Lord Hutchinson of Lullington's point; I was dealing directly with his noble friend on the Front Bench to whom I directed the question. Therefore, I have nothing whatever to withdraw in respect of the noble Lord, Lord Hutchinson of Lullington, although I felt that his speech tended, as they so often do, to miss the point.
I am dealing with the point, which is now clearly established, that it is apparently the view of the Opposition that however damaging and however effective in promoting homosexuality a publication may be, it should get away with it if it can demonstrate high literary merit. That is all. I think that is a point of which not only the Committee but also people outside may take note.
Lord McIntosh of Haringey: I am directly challenged. I am content to let Hansard record correctly what was said. I made no reference to the corruption of young people, as the noble Lord perfectly well knows. Those are entirely his words. I do not care whether or not he withdraws them. They bear no relationship to anything that I said. I also made it absolutely clear that in our view the phrase "promote homosexuality" has no definable meaning and therefore cannot be used effectively in legislation. I will not be led into the trap of trying to use his words and the Government's words to define our point of view.
We are saying that many works of art and literature throughout the ages have portrayed homosexual relationships as being acceptable, admirable, happy and worthwhile. Nothing should be done in this Bill which would make it impossible for local authorities to publish, promote or make available such works of art. Anybody who says otherwise is going back not only on the last few years of legislation but also on hundreds of years of civilisation.
Lord Trafford: Perhaps the noble Lord will answer the question. It seems to me that he answered his own question in his choice of words and so did the noble Lord, Lord Hutchinson of Lullington.
If I remember correctly, Lord Hutchinson's question began with the words, "if a play is shown which incidentally contains a large amount of homosexual material" or words to that effect. By using the word "incidental" as opposed to "intentional" it seems to me that the noble Lord, Lord Hutchinson, answered his own question and that he was talking about an entirely different type of play from my noble friend Lord Boyd-Carpenter. He was talking about an ordinary play with perhaps a considerable amount of homosexual content which was, to use his word, "incidental".
In exactly the same way a few minutes later, the noble Lord, Lord McIntosh of Haringey, referred to a work of art. I assume that he was referring to a play. If those are the reasons why a play is put on, then it cannot fall foul of this particular clause. I am giving an interpretation which I believe I have heard come from the Front Bench on this side of the Committee all the way through; namely, that if it is not the
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obvious intention of a particular work of art or play to promote homosexuality, then it does not fall foul of the clause. From the way in which they phrased their questions, I should have thought that both noble Lords had answered the point.
The other point which we were trying to pin down was made I thought a little prematurely by my noble friend Lord Boyd-Carpenter. He was referring to plays that one might say were homosexual or heterosexual. If they were heterosexual I suppose they might come under the term "blue film" or "pornography". This is the obverse side of that particular coin. No matter what sexuality it was promoting, it probably would have been obscene. But where it is a work of art and where its primary intention is not to promote homosexuality, even if it is portrayed in the book or the film, then it would seem to me that it is self-evident from all that has been said on this side of the Committee that it does not fall foul of this clause.
10.30 p.m.
Baroness Blatch: I rise to support the point made by my noble friend Lord Boyd-Carpenter. Earlier in the debate it was said that laws were made because of the authorities or individuals who abuse. If one were to think of the worst kind of example of that to which the noble Lord was referring, it is using great works of art not as such but to promote homosexuality. In other words, the works of art are the focal point of the teaching or the influencing, and I include young people. It does not include great plays which incidentally contain homosexual people or descriptions of homosexual acts. There are great works of art which are there to be enjoyed, and there is no intention on the part of the Bill, or on the part of those who support Clause 28, to prohibit that from continuing. However, we have heard today of examples of some individuals within the educational system or some local authorities who would specifically use selected parts of the works of art to exploit, promote and further the cause of homosexuality. That is what is to be outlawed by the Bill and not the works of art themselves.
Lord McCarthy: Before the noble Baroness sits down, I should like to say that it is not a question of selecting some works of art. The first 138 sonnets of Shakespeare are a love poem from one man to another. Would she catch that or not?
Baroness Blatch: With respect, I would advocate that my children and anyone else's children should continue throughout the future years to study the beautiful pieces of literature; the Shakespeare sonnet. I would absolutely and violently disagree where somebody uses the sonnets to advocate and promote homosexuality. That is not how I expect them to be used or taught. It is in the hands of the person influencing somebody else.
Lord McCarthy: It is all right if it is Shakespeare but not somebody else.
Lord Hughes: I should like to return to my little play within the play and the origin of the matter in respect of an offence. The Minister said to his noble friend Lord Campbell of Alloway—who was about to leave but has now stopped—that he thought it would be judicial review. I think that the Minister is right about that matter. At the bottom of page 10 is set out the power of the auditor to apply for judicial review in the new schedule. I should like to be certain as to the position of Scottish local authorities in respect of that matter. This schedule, and the clause which refers to it, are specifically stated to apply only to England and Wales. I do not expect the Minister to answer my question, even though he has just been joined by the noble Earl, Lord Dundee. However, in order that I might know whether I need do anything at the next stage, I should appreciate it if the Minister would write to me outlining the Scottish position.
The Earl of Caithness: I shall be happy to write to the noble Lord on that particular point because I think that it would be the right way to deal with the matter.
I should like to try to summarise the debate, if that is remotely possible. When a local authority, which carries out its normal functions, decides to stock books, it can stock books with homosexual themes. If a local authority decides to put on plays, it can put on plays with homosexual themes. The question that the noble Lord, Lord Hutchinson of Lullington, asked me is perhaps the question that the local authority should be asking itself. It needs to decide what its purpose is in either stocking the books or funding the play. If its purpose is to fund a work of literary or artistic merit, then its purpose will be legitimate.
Lord Peston: I must apologise. I thought my two amendments were very innocuous and I thought they would be dealt with very rapidly; but I am relatively inexperienced. Of course I agree, en passant, with Lord McNair that there are some disjunctives missing from the clauses, but that is not a major problem.
I believed that the difference between the noble Earl, Lord Caithness, and myself was that I took him to be saying that my worries are taken care of implicity in the clause as put forward. I am saying that I am doubtful and should like it made explicit. I was hoping for a more positive response from him, but it looked early on as if one could agree to differ. However, given what several Members on his side of the Committee said, I thought their remarks were disastrous from almost every point of view because they certainly lead to a completely different conclusion and lead me to the view that especially what I say in Amendment No. 120 is absolutely necessary. Regretfully, I cannot withdraw the amendment and I must divide the Committee.
10.37 p.m.
On Question, Whether the said amendment (No. 117) shall be agreed to?
Their Lordships divided: Contents, 28; Not-Contents, 42.

Division No. 3

CONTENTS

Airedale, L.

Hutchinson of Lullington, L.

Amherst, E.

Jenkins of Putney, L.

Ampthill, L.

Kilbracken, L.

Birkett, L.

McCarthy, L.

Cocks of Hartcliffe, L.

McIntosh of Haringey, L.

David, B.

Mackie of Benshie, L.

Dean of Beswick, L.

McNair, L.

Ewart-Biggs, B.

Manchester, Bp.

Gifford, L.

Nicol, B. [Teller.]

Graham of Edmonton, L. [Teller.]

Peston, L.

Seear, B.

Grey. E.

Tordoff, L.

Henderson of Brompton, L.

Turner of Camden, B.

Houghton of Sowerby, L.

White, B.

Hughes, L.

NOT-CONTENTS

Beloff, L.

Johnston of Rockport, L.

Belstead, L.

Long, V. [Teller.]

Blatch, B.

Lyell, L.

Borthwick, L.

Mackay of Clashfern, L.

Boyd-Carpenter, L.

MacLehose of Beoch, L.

Brougham and Vaux, L.

Mersey, V.

Butterworth, L.

Morris, L.

Caithness, E.

Norfolk, D.

Campbell of Alloway, L.

Renton, L.

Carnegy of Lour, B.

Saltoun of Abernethy, Ly.

Colnbrook, L.

Sandford, L.

Davidson, V. [Teller.]

Selkirk, E.

Dundee, E.

Shannon, E.

Ferrers, E.

Skelmersdale, L.

Glenarthur, L.

Stockton, E.

Grantchester, L.

Strange, B.

Halsbury, E.

Thomas of Gwydir, L.

Harmar-Nicholls, L,

Trafford, L.

Harvington, L.

Trumpington, B.

Hesketh, L.

Windlesham, L.

Hooper, B.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.44 p.m.
The Earl of Caithness The Earl of Caithness moved Amendment No. 117A:
Page 28, line 29, at end insert—
("( ) In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as it sees fit.").
The noble Earl said: I have already spoken to this amendment. I beg to move.
Lord Airedale: Although this amendment was spoken to earlier, and although the Minister was kind enough to be sympathetic to a suggestion I made a short time ago, I ask him whether he really thinks that this amendment is necessary. It states:
"a court shall draw such inferences as to the intention of the local authority as it sees fit".
You cannot look into the mind of a person or even that of a body corporate and get direct evidence of what was intended. All you can do is to infer somebody's intention from the way that they behave. The courts are doing this every day; they could not do it any other way. We ought to be careful not to clutter the statute book with matters which are not strictly necessary. I believe that the words of the amendment go without saying and are unnecessary.
Lord Hughes: I should like to make the same point as the noble Lord, Lord Airedale. If this amendment is not put in the Bill, would the judge be unable to draw such inferences as he thought fit?
The Earl of Caithness: On the best legal advice that I have available to me I am advised that this amendment is necessary to make it absolutely plain what inferences the court can draw when and if a case is brought before it. Contrary to what the noble Lord. Lord Airedale, said, my legal adviser on this—I must take the legal advice, not being a lawyer myself—says that these words are very necessary.
On Question, amendment agreed to.
[Amendment No. 118 not moved.]
Lord Jenkins of Putney Lord Jenkins of Putney moved Amendment No. 119:
Page 28, line 37, at end insert—
("(4) Nothing in subsection (1) above shall be taken to apply to the production and/or presentation of a play within the meaning of the Theatres Act 1968").
The noble Lord said: In case the Committee is completely drowned with words by now, I believe that I should make it entirely clear that this amendment is not intended to contradict anything which the noble Earl has said from the Front Bench. It is intended to make quite sure that the intentions of the noble Earl are translated into the legislation. That is the object of this particular exercise; it is quite different from anything else that we have been discussing until now.
The amendment which was lost at an earlier stage was, as the Committee will be aware, promoted to some extent by the Arts Council. I had better come clean and say that this amendment is promoted by the Theatre Managers' Association, by the Society of West End Theatre Managers and by the Theatrical Managers' Association. They asked me whether I would agree to put forward an amendment which they felt was necessary not only in regard to their artistic requirements but also from their financial point of view.
Today, the supported theatre and the commercial theatre are closely intertwined. Most of the companies which operate throughout the country are members of either the Society of West End Theatre Managers—in the case of the great national theatres—or of the Theatrical Managers' Association in the case of the smaller companies. They put on shows which initially are quite often promoted by local authorities. Therefore they have an interest in this subject purely from a financial point of view.
They have not asked me to become involved with the niceties and difficulties into which the Arts Council got itself, but simply to ask the Committee to add these words on the assumption that the previous amendment would be defeated. Personally, I believe that it would have been necessary to add these words even if it had not been defeated. The amendment seeks simply to say:
"Nothing in subsection (1) above shall be taken to apply to the production and/or presentation of a play within the meaning of the Theatres Act 1968."
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That takes out of the situation what I believe it was never the intention of the Government to include—the performance of plays. I do not believe that to have been the object of the exercise at all; it arose, I believe, incidentally. It so happens that, among other things, local authorities finance theatrical productions. Sometimes they are also financed by the Treasury and by the Arts Council. Quite often, plays are financed by private enterprise. In fact we get what is a mixed economy operating together in the theatre. That is necessary because even as amended by the noble Earl subsection (1) states that a local authority shall not,
(c) give financial or other assistance to any person for cither of the purposes referred to in paragraphs (a) and (b) above".
The two purposes referred to in paragraphs (a) and (b) are,
"intentionally promote homosexuality or publish material intended to promote homosexuality".
and promote the teaching of homosexuality and so on.
Paragraph (c) worries theatrical managers. There are a number of productions around the country at the moment which might conceivably be decided by a judge to be promoting homosexuality because they do not present it in a deleterious or tacky way. They might be regarded as being neutral on the matter. They might be regarded by some people to be promoting homosexuality. The situation is uncertain. It does not matter what the noble Earl's opinion is because it is not his opinion which will count. I ask the Minister not only to give us his opinion, but to say, "Yes, I am so sure of my opinion that I am prepared to accept your amendment," which merely provides:
"Nothing in subsection (1) above shall be taken to apply to the production and/or presentation of a play within the meaning of the Theatres Act 1968."
All plays put on commercially in this country come within the meaning of that Act which covers the whole theatrical scene.
The opposition is widespread. My desk has been covered with papers. If I were to spread them out they would cover every seat in this Chamber. Not only the seats on which Members of the Committee are sitting, but all the others would be covered with letters from people who are sincerely worried about this issue. They see something happening here that we have tended to resist in this country. We have tried to avoid the use of monetary censorship. The Arts Council has always tried hard not to use the money that it distributes in a way which betrays a desire to influence what the play says but solely to give the money on its artistic merits.
The same principle applies to the man who is putting on a play commercially. If he thinks that someone is saying something interesting, he may want to put on the play. With help from the local authority, either directly or indirectly, he can put it on. Such a person may want to take over a play, which has already been put on elsewhere, and translate it to the West End. That is where the issue of intention comes in:
"intentionally promote homosexuality or publish material".

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or give money. How will the system work? Someone may see a play and say, "I think that this play is promoting homosexuality." By that time it may be in the West End, in a large town or anywhere else. Whose intention are we talking about? Originally, of course, it was the local authority's intention. By putting on that play, did the manager take on the local authority's intention? What about the playwright? Where does his intention start and finish? By taking on the local authority's intention and the playwright's intention is the manager automatically assuming a responsibility of his own? Does it become his intention?
Those matters are not sufficiently clear. However, they would all be clear if the noble Earl were to say, "Well, this is something we did not intend to enter into at all. It is not the object of the exercise. We had no idea that all these problems would arise and that people would be so seriously worried about them." So if the noble Earl will say, "I not only say that what I am doing here, what the Government are doing here, does not have this effect, but I will accept your amendment to show that we are confident that it will not have that effect", I think we shall be happy.
This matter is thought to be very important by people not only in the commercial theatre but in the theatre generally. The theatre is important in this country; make no mistake about that. It is not something which does not matter. It matters a great deal, more than many other things which we give value to. If the noble Earl cannot say, "I not only mean what I say but I'm prepared to support legislation", we shall have to press the matter further. I hope I have said enough to convince the noble Earl that what I am proposing here is something which he can accept, and that he will do so. I beg to move.
Lord Houghton of Sowerby: What about films? We have not mentioned films throughout the whole debate. It seems to me that local authorities are more likely to promote a film for these purposes than a play. I have a suggestion to make. If it is a film we might invite the services of the British Board of Film Classification. I notice that the vice-president of that board has been sitting here for hours. I dare not ask him whether he is here to see what classification his board would give to the video recording of our proceedings today. Would it be classified as available for general viewing, or would it be only for people over the age of 18 who would have to go to a sex shop for it? Or would it be for children between 15 and 18, but only under parental guidance?
It seems to me that to give all the refinements an expert body would be needed for an answer to this dilemma as to whether a work is free of taint. I would not suggest that local authorities should take a chance and produce a film and by calling it educational they would not go to the British Board of Film Classification at all. There is a law to prevent any display of genital organs in educational films, except under very strict conditions. So I think that anything that was called education which contained this unseemly content would fail to be classified as a lawful educational film.
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Quite seriously, there is wonderful scope here for exploring aid in defining the various degrees of acceptability of films and plays. It seems that by the end of the day we shall have suppressed something, but I do not think we shall be very clear about what it is. I am only trying to be helpful. I am prepared to stay here all night as long as I can be helpful.
11 p.m.
Lord Birkett: I had intended to make a short and modest contribution in support of the noble Lord, Lord Jenkins, and I had no idea that as vice-president of the British Board of Film Classification I should be called upon at this late hour for technical advice on the classification of movies. In order to get that out of the way as swiftly as I possibly can, let me say that so far as concerns the proceedings of the Committee, should they be issued for sale as a video, there are a number of classifications to choose from. The most widely accepted and generally regarded as being totally acceptable is called U(C), which means universally acceptable and especially suitable for children. Whether one would dare to apply that to the proceedings of the Committee I should not dream of saying without seeing the film first.
To revert to the matters in hand today, should anybody, whether a local authority or anybody else, produce a film designed to promote, encourage, proselytise homosexuality, I should be very surprised indeed if my board gave it a certificate at all, of any sort. So I very much doubt whether that eventuality will arise. However, I have to say that I support the amendment of the noble Lord, Lord Jenkins of Putney, partly because I seem to have spent most of my working life connected with the theatre in one way or another—I love it and I still believe it to be one of the great glories of this nation—and partly for the slightly sentimental feeling that his amendment is beginning to look a little lonely at this time of night on the Marshalled List.
The noble Earl, Lord Caithness, has made a lot of reassuring remarks today about what the Bill is not intended to do, and how many people need not be alarmed about the effects of it; in particular, of course, the artistic community who are and were alarmed. It was for that reason that the Arts Council called for the legal opinion that it did and proposed through several of the Members of the Committee, particularly the noble Viscount, Lord Falkland, and the noble Lord, Lord Henderson of Brompton, Amendment No. 114. I was very sorry to see that disappear and rather surprised to see it find so little favour on government Benches. I think the artistic community has been worried.
It is all very well reassuring it about the intentions of the Bill and how it will not be caught by some of the more luridly imagined worries that come into its mind; but I do not think the artistic community is preternaturally sensitive about those things. We are dealing with an amendment now on the theatre. We have had one that touched upon libraries. The matter of artistic merit has been debated. We have had pedagogical merit debated. We have had a number of amendments, none of which seems to have found favour in the eyes of the Committee. So one after another little clauses have disappeared.

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I put it to the noble Earl that if he would really like to dispel the worries of the artistic community at large about this Bill it is not beyond the wit of man and certainly not beyond the wit of the drafting expertise available to his department to put into the Bill at some stage a degree of reassurance in the very terms that he has outlined so clearly this afternoon which will in fact take the curse off what is seen as a very dangerous measure by the world at large and reassure in particular the artistic community. I recommend him to think very seriously about that before the next stage. In the meantime, I simply extend some warm support to the noble Lord, Lord Jenkins of Putney.
Lord Dean of Beswick: I rise at this stage to support the amendment moved by my noble friend Lord Jenkins of Putney. As I said, I wish to be very brief; but this matter is a worry that has developed from the previous exchanges regarding the possibility of prosecution of a local authority. I think the noble Lord, Lord Jenkins, in his brief remarks, referred to the way that theatre these days is financed, in some cases from a local authority and donations from businesses. That is how it works.
I am going back now to my days in Manchester when the local authority did make contributions from the rates to the Halle Orchestra, the Library Theatre, and the 69 Theatre. I put the point in a most constructive sense to the Minister. One of the theatres that was a beneficiary of some support from the local authority rate fund might promote and produce a recognised bona fide play that had homosexual undertones or depictions in it and then (as theatres do on some occasions for these plays or concerts in order to justify the donations made) they may distribute tickets to schools.
If some of the tickets that were made available were then distributed among sixth formers who then went along to see these plays what would be the situation? Would the local authority be liable to prosecution, but not the people who made the private donation? If that was the case, there would be the situation where the local authority would be treated quite differently and quite arbitrarily while the person or the company who made the private donation would be in no way involved. Is that not a rather strange way of applying what we are supposed to in this country—the even-handedness of the law as it affects everyone? I should like the Minister to answer that point because I do not think it is as hypothetical as some people in the Committee may think.
Lord Boyd-Carpenter: I declare an interest as a director of a company that owns a good many London theatres. Having said that, I make the simple point, in response to the amendment of the noble Lord, Lord Jenkins of Putney, that it would seem very odd to make an exception of the theatre as compared with every other activity. I do not yield to him in my admiration for the very high standard of the theatre in England today, whether owned by private enterprise or operated by local authorities. Although there may be some force in what he has said it would be a great mistake to make a conspicuous exception and a grant of special immunity from
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prosecution for the theatre, when all other activities would be exposed if they erred in that direction under the Bill.
Baroness Blatch: It is true that our briefcases are lined with correspondence on the subject. It is also true—I listened to Members of the Committee as they exchanged notes on who had heard from whom and about what—that that correspondence has come from a relatively small percentage of the community and almost entirely from homosexuals, with some exceptions.
Noble Lords: Oh!
Baroness Blatch: Perhaps Members of the Committee on the opposite side of the Chamber have had more correspondence from people asking to support the Bill than those of us who have received correspondence urging us to oppose it. The bulk of my correspondence has been in terms of: "Please support Clause 28". However, I believe that Members of the Committee have all received the same letters from the same people. Very few letters have come in saying: "Please, do what you can to make sure that Clause 28 stays in the Bill."
I wish to refer to the 88 per cent. of people, as determined in a recent opinion poll, who are very concerned about the issue. Our responsibility is to address that concern. I am worried about the danger of going around the same arguments once again. At the end of the day, the debate is about proving an intention to promote homosexuality. That is what it is all about. If plays are put on in the normal way, the public go to see them and the intention is simply to show a play for the sake of showing a play, whether or not it is of high literary merit. There is no danger to that activity from the Bill.
Where there is an intention to promote homosexuality and that can be proved, there is something to be worried about. I cannot support the exemption because I do not believe that the people mentioned by the noble Lord, Lord Jenkins, are in any kind of danger. The Bill is concerned with the promotion of homosexuality which it is designed to outlaw.
Lord Hutchinson of Lullington: Is the noble Baroness saying that the authority takes the view that the play promotes homosexuality? That is what it is all about.
Baroness Blatch: I am saying that if the people putting on the play have the intention and purpose to promote homosexuality, then I believe that the motive is questionable. If the motive is simply to present a play to the public and no more than that—schools or theatre companies may be producing a whole season of plays—then there is no danger. The motive for putting on the play in the first place is the matter at issue.
Lord Dean of Beswick: I think the noble Baroness is wrong in assuming that, because the Minister has given the Government's view on the intention of the Bill, it becomes the law. In another place I sat on

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numerous standing committees both in opposition and in government. It was always made clear that court decisions were made on what was in an Act and not what the Government thought was in an Act. I have to remind the Committee that three times in the last Parliament Secretaries of State were taken to court for misinterpretation of Acts. Unless it is written into the Act, the court has no clear guidance on the law. It has to be written into the Act and not be in the Minister's words from the Dispatch Box, however good his intentions.
Lord Peston: Perhaps I may make one brief point, which follows on what the noble Baroness, Lady Blatch, has said. It has been bothering me all day. The suggestion has been made that opposition to Clause 28 stems primarily from homosexuals. To my certain knowledge, so far as concerns the arts, that is simply not the case, because the whole force of objection is coming from people who are heterosexual. That applies to the sciences as well. However, to judge it as opposition from a small pressure group is entirely erroneous. We ought to get that point on the record. The objections are not from groups asking for special privileges but precisely from other groups who say that they do not want that to happen.
Baroness Blatch: Many of my letters actually start with the phrase, "I am a homosexual". Perhaps I have had a different set of correspondents.
Lord Monson: Although I am still unhappy about certain aspects of Clause 28—even as it has been amended—I agree with the noble Lord, Lord Boyd-Carpenter, and the noble Baroness, Lady Blatch, that it would be quite illogical to exempt one medium and one only. Furthermore, I do not think that the clause as it stands is quite the threat to the theatre that the noble Lord, Lord Jenkins, and his supporters suppose. I dare say that they have in mind "The Romans in Britain" as one of the plays that might possibly be affected. "The Romans in Britain" does not promote homosexuality; but shows it in a most unpleasant light, so much so that it has precisely the opposite effect. I do not think that noble Lords need have any worries on that particular score.
Lord Henderson of Brompton: One of the things worrying the theatre is the fact that there will be two laws: a play will not be censored if it is not promoted by a local authority, but it will be censored if it is. That surely is an undesirable situation—to have one law for plays that are put on or promoted by local authorities, and another law for those which are not so promoted. It may be the very same play.
Let us consider the case of E. M. Forster's novel Maurice. That has been made into a film which could well be said to promote homosexuality. I myself believe that it does. In the view of many people it is a work of art. That film is freely shown in cinemas in the United Kingdom. However, suppose that it is shown in cinemas owned by local authorities. Those local authorities can then be taken to the courts for promoting homosexuality. That is merely another
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amendment which showed how ridiculous is the construction of the clause, and another reason for the noble Earl to take it back to his friends and ask them to reconsider it.
11.15 p.m.
The Earl of Caithness: I thought that the noble Lord, Lord Jenkins, was very ingenious in the way in which he introduced his amendment. He highlighted the answer that I would give him, which has been the fairly consistent answer that I have been able to give this afternoon. Then he said, "Get me off the hook; let us exclude theatres". Therefore, I have to repeat that the Government do not share the noble Lord's view that local authorities' funding of the theatre would be affected by Clause 28, except in circumstances in which a local authority, or a group which it was funding, set out deliberately to promote homosexuality.
A local authority wishing to stage or assist with the staging of plays as part of a programme designed to provide a wide cross-section of material for the general public need not feel constrained from doing so by this provision. Here is the rub for the noble Lord, Lord Henderson. He has itemised one play. I am not itemising one play. If the local authority is staging a succession of plays of which one is the one that he mentioned, I hope that he will bear my words in mind. However, if the local authority were to promote a succession of plays which promoted homosexuality as their only motive the plays must be subject to questions that would have to be resolved by the courts. It will then become the defence of the local authority to say that it was not their intention. The purpose of the amendment that I have just moved is to allow the court to take into account all the circumstances.
The proposal in the amendment of the noble Lord would, however, be damaging in terms of the Bill's objectives, and I know he fully realises that. It would effectively allow local authorities who wished to do so to use the theatre to promote homosexuality; for example, by funding a theatre group whose purpose was solely or mainly to do that. The Government could not support the introduction of this important loophole into the clause for the very reasons that my noble friend Lady Blatch has given.
In summary, the Government do not believe that the local authorities would be prevented by Clause 28 from financing the theatre for the purposes of ensuring that the public have access to a full range of available material. Our amendments put beyond doubt any question that they would. I believe that we have met the noble Lord's concerns and that his worries are not founded.
Lord Jenkins of Putney: The noble Earl is too young to recall that about 20 years ago, almost to the day, in this country we abolished censorship of the theatre. The only noble Lord present who was a member of the committee which abolished it, as well as myself, was the noble Lord, Lord Renton. He was a member of the committee which abolished censorship of the theatre. It was an extraordinary committee. It was a joint parliamentary committee

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under the chairmanship of the noble Lord, Lord Strauss, consisting of the noble Earl, Lord Scarbrough, the late Lord Kilmuir, the noble Viscount, Lord Norwich, the noble Lord, Lord Tweedsmuir, the noble Baroness, Lady Gaitskell, the noble Lord, Lord Lloyd of Hampstead, the noble Lord, Lord Annan, the noble Lord, Lord Goodman, and, in addition, Mr. Faulds, Mr. Foot, Mr. Hooson, Mr. Hugh Jenkins. Sir David Renton, Mr. St. John-Stevas, Mr. Strauss and Mr. William Wilson.
One could hardly have had a group of people less likely to agree about anything. However, the reason that they came to the conclusion that the censorship on the theatre must be abolished was that the Lord Chamberlain himself, who was the censor, said, "I want nothing more to do with this nonsense". He said that he had spent his life substituting this unpleasant word for that unpleasant word and saying that it could then go through, judging whether or not there was an intention and judging whether or not there was a deliberate intention to promote. He said, "This is a total nonsense. Abolish me". We had no alternative but to abolish his office.
What is happening now is that, by a silly back door, censorship is being allowed in again. All the problems that we spent all those years dealing with are listed—the noble Earl can read them—as are the absurdities we went through when discussing whether the issue did or did not promote something, or whether it intended to, and so on. We decided that enough was enough. This issue is coming back. This is a disgraceful business. It is the result of introducing into a Bill which has nothing whatever to do with the subject an issue which has been insufficiently studied by people who have no knowledge of it and do not realise the quagmire, the swamp, into which they are putting themselves. I suggest to the noble Earl that they will bitterly regret Clause 28.
Lord Renton: Will the noble Lord allow me to intervene? I hope that he will allow me to remind him that in reaching our unanimous decision to which he has referred, our minds were prompted by the fact that we were taking away from the Lord Chamberlain a jurisdiction of being censor while placing upon the courts a responsibility which, it could be said, they already had of allowing the law relating to obscenity to operate. In order to give a complete picture of the conclusion that we reached, I think that that should be borne in mind.
Lord Hutchinson of Lullington: Will the noble Lord agree that the whole of this matter we are discussing should be left to the ordinary law and the law of obscenity? If not, why not?
Lord Renton: That would make the amendment unnecessary.
Lord Jenkins of Putney: I think I agree with much that the noble Lord, Lord Renton, said. One of the courses we took was to make sure that the law was not exploited by every Tom, Dick or Harry. We made it necessary to get the fiat of the Attorney-General before an action could be brought under the Act. Therefore, if instead of the noble Earl telling me that
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anybody can sue under this—the whole country—he will say that the Government will introduce a clause whereby action can only be taken with the fiat of the Attorney-General, we may look at it again. But he is not saying anything of the sort. He is saying simply: "Here it is. We have done it and we are not going to change our minds". That simply will not do. A change has to be made, and unless the noble Earl has something more to say, even at this late hour, it will be my duty to divide the Committee, simply to demonstrate some of us will not have this nonsense.
Lord Monson: Does the noble Lord not agree that a local authority owning a theatre could not possibly be caught by the clause unless it were deliberately to put on something entitled, for example, "A season of homosexual drama" and advertise it widely as such? Unless it were to do such a thing it could not possibly be caught by the clause.
Lord Jenkins of Putney: If that were put into the Bill, yes. But if no such thing were done, what the noble Earl says about a range of things is absolutely meaningless. The Bill itself is in total contradiction of the words of the noble Earl on the Front Bench.
Lord Henderson of Brompton: There is this point of censorship. This is how it will come about. A local authority will say, "We shall not put on 'Maurice'. Goodness me, no; otherwise someone will prosecute us". Therefore one will have censorship in that form. It will not be put on because somebody will prosecute. It will be a fear of prosecution by the local authority that will stop it putting on a perfectly reputable play because some busybody will take it to court, waste ratepayers' money and the court's time in finding out whether or not the intention is there in putting on a single production of "Maurice".
This is absolutely censorship by the back door. The noble Lord, Lord Jenkins, has put his finger on it. The noble Lord, Lord Renton, has given the game away completely. The whole of the clause can be operated under the Obscene Publications Act.
11.23 p.m.
On Question, Whether the said amendment (No. 119) shall be agreed to?
Their Lordships divided: Contents, 20; Not-Contents, 33.

DIVISION NO. 4

CONTENTS

Airedale, L.

Houghton of Sowerby, L.

Ampthill, L.

Hutchinson of Lullington, L.

Birkett, L.

Jenkins of Putney, L. [Teller.]

Cocks of Hartcliffe, L.

Kissin, L.

Dean of Beswick, L.

McCarthy, L.

Ewart-Biggs, B.

McIntosh of Haringey, L.

Gifford, L.

Mackie of Benshie, L.

Graham of Edmonton, L. [Teller.]

McNair, L.

Peston, L.

Grey, E.

Turner of Camden, B.

Henderson of Brompton, L.

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NOT-CONTENTS

Beloff, L.

Hooper, B.

Belstead, L.

Johnston of Rockport, L.

Blatch, B.

Long, V. [Teller.]

Borthwick, L.

Mackay of Clashfern, L.

Boyd-Carpenter, L.

Mersey, V.

Brougham and Vaux, L.

Monson, L.

Butterworth, L.

Morris, L.

Caithness, E.

Norfolk, D.

Campbell of Alloway, L.

Renton, L.

Davidson, V. [Teller.]

Saltoun of Abernethy, Ly.

Dundee, E.

Selkirk, E.

Ferrers, E.

Skelmersdale, L.

Glenarthur, L.

Stockton, E.

Grantchester, L.

Thomas of Gwydir, L.

Halsbury, E.

Trafford, L.

Harvington, L.

Wynford, L.

Hesketh, L.

Resolved in the negative, and amendment disagreed to accordingly.
11.30 p.m.
Lord Peston Lord Peston had given notice of his intention to move Amendment No. 120:
Page 28, line 37, at end insert—
("(4) It shall be a defence in any action brought under subsection (1) of this section to establish to the satisfaction of the court, with regard to any literary works used by or under the local authority and which are alleged to be contrary to subsection (1), that—

(a) such works are of literary merit;

(b) the use made of such works, in all the circumstances, meets a genuine pedagogical need.

(c) the references to homosexuality in the works are incidental to its principle content; or

(d) the references to homosexuality in the works are essential to its completeness as a work of learning or reference.")

The noble Lord said: Disappointed though I am by what one might call the noble Earl's standard reply, it seems to me that I have had a very fair run for my money and therefore I shall not move the amendment.
[Amendment No. 120 not moved.]
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 120A:
Page 28. line 37, at end insert—
("(4) Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of providing information, counselling or advice to any pupil at a school or other educational establishment maintained by the authority as to his personal development or any family relationship which could reasonably be regarded as likely to affect that development.")
The noble Lord said: Having failed to get any sense out of the Government in defining precisely the meaning of the terms "promote" or "intentionally promote", the intention of the amendment is to look at what we consider could be a problem the other way round. The Government may believe that there are children who will need protection from some people involved in education. The amendment seeks to point out that there are those who intentionally seek to promote homosexuality in all the terms used by the Minister and his friends and that they need to be stopped. That is the stance of the Labour Party because this is substantially the amendment which was moved by my honourable friend John Cunningham, the Member for Copeland in another place.
Will the Minister confirm that in carrying out their duties regarding sex education as laid down by, for
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example, the Department of Education, the overwhelming majority of teachers are doing nothing that they will not be able to do when the Act is passed, provided that there is not an intention to promote homosexuality? In every school there are young people who are growing up and finding that they need to ask questions and to discuss matters. They need counselling of one kind or another in the school. We want the Minister to confirm that all those duties which are now undertaken will not be caught by the Act because they do not intentionally promote homosexuality. I hope that what is being done by the teachers, counsellors and groups is what every Member of the Committee would wish them to do—they are responding to genuine concerns, cares and considerations which are brought to their attention by young people.
The Minister may well say that there is no need for this amendment. If he says that there is no need for it because all the issues which it seeks to include in the Bill are not caught by the Bill, in my view that would substantially meet the case. I do not wish to delay the Committee unduly.
I was interested to hear the noble Baroness, Lady Blatch, speak of the correspondence which she has received about this matter. I have received more than 200 letters from the city of Cambridge. Undoubtedly, most of them are from students in the colleges. All of them substantially plead the case in respect of Clause 28. She will understand how remarkable it is that they have chosen the right person in her and the right person in me.
The other point that the noble Baroness made was that most of the letters she received started off, "I am a homosexual". In one of the letters that I have from Downing College, which is certainly better known to the noble Baroness than myself, the writer speaks both as a heterosexual and a Christian:
"I feel bound to say that in my opinion this Bill proposes a very dangerous precedent."
In another part of the letter he speaks as a scholar of literature and the fine arts. He says:
"I also wish to register my profound dismay at the implications of Section 27(2)(a) of the Local Government Bill."
Undoubtedly Members of the Committee have received much correspondence.
The Minister can assure a great many people who are worried about what the Bill means in practice. If it makes no difference whatever to the overwhelming number of teachers who are carrying out their duties properly, fairly, compassionately, sincerely and giving guidance and counselling to young people who have come to a realisation of their sexual orientation and are seeking guidance and who are not promoting or intentionally promoting homosexuality, then I am sure the Minister will do those and thousands of other people a good service. I beg to move.
Lord Gifford: I should like to support the amendment. The clause as drafted at present puts teachers—and especially teachers who have the pastoral care of young people—in an impossible position. They are charged with counselling and

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trying to assist and advise young adolescents who are finding out about their sexuality. They will be approached by young men and women who may be discovering that they are gay. The young people may be very oppressed by that discovery, particularly given the climate of our times, and they come to the teacher for advice.
What is the position of a teacher who counsels that young person that he or she is not abnormal but that there are millions in the same position; that their sexuality—if they arc indeed gay—is not something abhorrent or unacceptable but is real and is normal and is their particular characteristic and not something to be ashamed of? If that young person then in conversation with their parents or relations divulges that advice and the parent, in horror, complains to the press or the local authority that here is a teacher who is promoting homosexuality, what happens to the teacher then? Can the Minister assure the Committee that teachers in that position will not be subjected to disciplinary proceedings if they do not abstain from that kind of advice? There is a real point of issue raised by this amendment, and I hope the Minister will assure the Committee that he will either look at the matter again or give a sympathetic reply.
Lord Henderson of Brompton: The noble Lord, Lord Gifford, has put his finger on a most important point. There is another aspect of this matter. Those charged by the council, by HMI and the Department of Education and Science with the task of counselling will be afraid to do it in relation to homosexuality in case just this sort of thing happens. They will be afraid to carry out their proper task of counselling. I ask the noble Earl to consult with the Department of Education and Science and ask it whether or not it has fears because there is a HMI publication dated 1986 called Health Education front 5 to 16 which states:
"The importance of sexual relationships in all our lives is such that sex education is a crucial part of preparing children for their lives now and in the future as adults and parents."
That cannot he done without describing the whole range of sexual inclinations. The 1987 Department of Education and Science circular entitled Sex Education at School states:
"The Secretary of State considers that the aims of a programme of sex education should be to present facts in an objective and balanced manner so as to enable pupils to comprehend the range of sexual attitudes and behaviour in present day society".
Let us suppose that there is a homosexual teacher, of either sex, who is afraid of being exposed in just the way that the noble Lord, Lord Gifford, related to the Committee. What is that teacher going to do? He or she is not going to do the job properly, but will refrain from telling children about homosexuality, whether male or female, and will not be able to fulfil the wishes of the Secretary of State in his circular. That is a most undesirable development which might well take place.
Lord Renton: This well-intentioned amendment is extremely widely drawn and I wonder whether those who have moved it have really contemplated that it would have a most damaging effect. The only criterion as to whether this information, counselling and advice could be given is to be found in the words at the end:
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"which could reasonably be regarded as likely to affect that development."
Absurd though it may seem, the amendment means, as worded, that if it is to have an adverse effect it would be all right-anything goes. I find that a very strange result but one must infer that from the wording of the amendment.
Another point that the Committee may wish to hear in mind about the amendment, mainly because of what I said about the wording of it, is that it would be in conflict with subsection (1). We should therefore be passing a wrecking amendment if we agreed to this one.
The Earl of Caithness: I am grateful to the noble Lord, Lord Graham of Edmonton, for giving the Committee the opportunity to discuss the question of pupil counselling. Clearly it is important for a local authority and its staff to feel free to discuss with a pupil any problems that arise because of a pupil's personal preferences, including problems that involve the discussion of homosexuality. The Government naturally share the Opposition's concern that local authorities should not be prevented from ensuring that pupils with personal difficulties have access to persons, be they teachers or specialised counsellors, who can discuss those personal circumstances in an objective and helpful fashion. That is quite different of course from promoting homosexuality or promoting the teaching of the acceptability of homosexuality as a pretended family relationship.
Let me again reassure the Committee that the government amendment would make it clear that local authorities' legitimate counselling services would not be affected so long as the local authority was not promoting, or assisting counsellors to promote, homosexuality. That was the point that my noble friend Lord Renton picked up from the final words of the amendment. Clearly I have great faith that the majority of counsellors will do this in an objective and helpful fashion; but what is fundamental to the Bill is that those local authority staff who promote homosexuality must be candidates for being looked at as seriously transgressing it.
11.45 p.m.
Lord Gifford: Perhaps I may press the Minister a little further and take him up not on the question of promoting homosexuality but on the other limb of the clause as it stands, that is to say, promoting,
"the teaching… of the acceptability of homosexuality as a pretended family relationship".
If, in a counselling situation, a pupil were to ask, let us say, about his parent who may be in a lesbian relationship, it would surely be promoting the teaching of homosexuality as a pretended family relationship for the teacher to say, "There is nothing wrong with your mother's relationship; it is a normal relationship and many women have such relationships. It is perfectly acceptable."
Is it really to be supposed that a counsellor should be inhibited from trying to reassure a child who is concerned about something in relation to his parents because that teacher will be at risk of promoting the teaching of the acceptability of homosexuality as a

967
pretended family relationship? Surely, there is something to be looked at here, at least in respect of paragraph (b) if not (a) as well.
I hope that we shall have an answer to the point raised by the noble Lord, Lord Henderson. Has the Minister consulted the Department of Education and Science as to its view of this clause? If he has not, he should, should he not? Will the Minister undertake to the Committee that he will?
Lord McIntosh of Haringey: Before the Minister replies, perhaps I may refer to what my noble friend thought might be a hypothetical situation. One of my closest friends is a lesbian and is living with the mother of a five year old child who has just started school. The case which my noble friend has put is precisely that which is happening now in a school in north London. Is that young child, a boy aged five, to be told that what he sees as his family relationship is unacceptable? Is it to be prohibited that the truth should be told about the relationship which is that of a happy family? It is clear from the way in which the Bill is drafted that a description of that relationship is outlawed by this clause.
Anybody may have their own views about my friends. But they cannot consider it acceptable for an innocent five year old boy to be deliberately confused by a clause of this kind.
Lord Renton: The noble Lord has overlooked the fact that if the five year old child, when he becomes a teenager, asks about this relationship and is told, "In the case of your mother and her friend it is a relationship that they have decided upon and I do not think you need worry," that is not promoting homosexuality in the child.
Lord McIntosh of Haringey: It is promoting in a maintained school the acceptability of homosexuality as the pretended family relationship. That is what it is doing.
The Earl of Caithness: Of course, the noble Lords, Lord Gifford and Lord McIntosh of Haringey, were right to raise the question of a pretended family relationship. I am sorry that I did not say earlier that this is the very point which I took back to look at. It was the amendment of my noble friend Lady Cox. I wanted to have another look at the wording between now and another stage, and I shall do so.
Of course, the Ministers at the Department of Education and Science have been consulted. I did not answer that question from the noble Lord, Lord Henderson of Brompton, because I thought that with his knowledge of the workings of government he would have automatically assumed that that had taken place, as indeed it had.
In response to the noble Lord, Lord Gifford, this was something that I agreed to take away and look at again. I said that when the noble Lord was not here.
Lord Houghton of Sowerby: The trouble with this kind of legislation is that one cannot leave anything to chance. On subjects of this kind there are some
968
extremely vicious people around who are relentless in their pursuit of their objective. I do not want to mention any names, but one can recall cases that have been taken against local authorities by citizens who want to work out, to the bitter end, their relentless opposition, for example, to what was being done in connection with young girls and family planning.
We cannot leave this issue to chance because people can pursue matters all the way to this place on legal aid. It is astonishing how far people can go on legal aid to resolve some matter of public importance. That is why we must be so careful.
I shall not detain the Committee any longer, except to say that it is remarkable that, so far as I am aware, throughout this debate no advice has come forward from anyone representing the Department of Education and Science. The issue has been treated as a local government matter. We are discussing an educational matter during a debate on a Local Government Bill.
Another point is that it is undesirable to be considering matters relating to schools and the teaching or promotion of homosexuality separately from consideration of other subjects being taught to children. What other proscriptions are there to be? What matters in our educational system are to become obligatory? Where is the balance? Where can we see the whole child undergoing educational instruction and enlightenment?
My noble friend Lord Henderson read out something a moment ago relating to sex education in schools. But we have heard nothing about that subject. All we have heard about is promoting homosexuality. This is the narrowest, most blinkered piece of legislation that one can possibly have in such a matter.
I thought the Chamber existed to make good law and to see that it is done properly. But we are just a receptacle for the slipshod work done in another place. Legislation that is ill-considered, thrown in at the last minute and ill-drafted comes to this place to be knocked into shape. I shall have much more to say about this when we come to Clause 10 stand part.
Lord McCarthy: The noble Earl has said that the Department of Education and Science was consulted. Will he tell us at what level it was consulted, what it was asked and it said?
The Earl of Caithness: Of course the noble Lord, Lord Houghton of Sowerby, is right to raise the question of sex education. However, he knows full well that under the Education (No. 2) Act 1986, control passed from the local authorities to school governors. It is right that one should still consult one's colleagues in other departments, and more than one department is involved in this. But it would be wrong for me to spell out the details that the noble Lord, Lord McCarthy, requires.
Lord Graham of Edmonton: I bet that if the Minister had the details he would not hesitate to spell them out. I strongly suspect that he does not have them. I am not saying that they are not available. Over the past few minutes the Minister has again

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sought to stick rigidly to the fact that the only offenders arc those who intentionally promote homosexuality. And when, in our naivety on one side of the argument—sadly, always on this side of the Chamber—we say. "Well, if in fact that is wrong, can you tell us that this or that is right?", the Minister cannot give us the answers.
I accept that he does not have the answers or is unwilling to give them, but what is certain is that we have no answers to those questions. The term "a pretended family relationship" will haunt the Minister for a long time. There are a number of one-parent families or families where the two members are male or female. They may not be homosexual or lesbian, but the family has in the eyes of those two men or two women, a loving, caring relationship—not homosexual.
The Minister must do a lot of hard work in bringing forward phrases which are not only much more acceptable, but also much less offensive to people who are leading their own lives. The noble Lord, Lord Renton, makes a valid point. I never intended, nor would I accept that the wording was absolutely perfect. It was designed to try to get the Minister to give a little more reassurance for those outside so that what they have been doing in counselling young people is not caught by the Bill.
I am afraid that the Minister has not satisfied me and it will be seen by those outside that he has not satisfied them. But in the light of the time and circumstances, I beg leave to withdraw the amendment, with the prospect of bringing it forward again at a later stage.
Amendment, by leave, withdrawn.
Midnight
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 120B:
Page 28, line 37, at end insert—
("(5) Nothing in subsection (1) above shall be taken to prohibit the doing of anything for the purpose of discouraging discrimination against any homosexual person, or designed to protect the civil rights of any such person.")
The noble Lord said: This amendment ought not to be necessary. The clause ought to have been adequately drafted to ensure what has been proclaimed a number of times by its supporters; namely, that it is not the intention of the Government nor of the supporters of the clause to encourage discrimination against any homosexual person, nor to damage the civil rights of any such person.
In order not to detain the Committee any longer, I should be very happy if the spokesman from the Government Front Bench would give me the assurance not only that that is the Government's intention but that they will accept either this amendment or another one in suitable terms, to ensure that we achieve that.
I beg to move the amendment.
Lord Gifford: I should like to support the amendment. If I had been able to be here tomorrow to oppose the Question, that the clause stand part, I should have done so on the basis that the clause, in my view, breaches fundamental human rights. But
970
because this amendment draws attention to the aspect of discrimination and civil rights, there is a lot to be said for it.
I want to look at this country's obligations as a signatory to the European Convention on Human Rights, and to ask the Minister whether he has considered this country's obligations when he supports the clause as it now stands. Article 8 of the convention is in the following terms:
"Everyone has the right to respect for his private and family life…"
Article 10 of the convention is in these terms:
"Everyone has the right to freedom of expression."
Both those articles are subject only to the following qualifications:
"there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of"
and various matters follow, including the protection of morals. Finally, Article 14 of the convention says:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion … or other status."
I had the privilege of arguing before the European Court of Human Rights on this very issue in the case of Dudgeon v. United Kingdom. In that case the court declared that it was a violation of the rights of the applicant, Mr. Dudgeon, for the law in Northern Ireland to prohibit homosexual acts. As a result of that decision, the Government had to change the law. The court, whose interpretation of the convention binds this country, had some very interesting things to say about Article 8, in particular. It said:
"The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of the public authorities can be legitimate for the purposes of Article 8(2)."
The court continued that,
"in Article 8 as in several other Articles of the Convention, the notion of necessity is linked to that of a 'democratic society'. According to the Court's case-law, a restriction on a Convention right cannot be regarded as 'necessary in a democratic society' (two hallmarks of which are tolerance and broadmindedness) unless, amongst other things, it is proportionate to the legitimate aim pursued".
The court then added:
"The Court is not concerned with making any value-judgment as to the morality of homosexual relations between adult males".
One looks at the clause before us without the amendment proposed by my noble friend in the light of that convention and our obligations under it. Let us remember the factual background under which we are considering this clause. Millions of our fellow citizens are gay men and lesbian women who make family relationships full of the mixture of affection, compatibility and sexual feeling and respect which make up any enduring love relationship. Those are family relationships as much as any between husband and wife. They are entitled to protection under Article 8 of the convention.
People do not become gay through persuasion, reading books or through seduction. Their sexual orientation is fixed in early childhood so that a young person will discover at an early age when sexual feelings begin to develop that he or she is gay. Therefore, the prohibiting of books and materials has nothing to do with stopping people being

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homosexual but everything to do with Article 10 of the convention which protects the right of free speech.
Finally, we look at this against a background of deep prejudice against gay men and lesbians, a prejudice which Article 14 is designed to combat. Surely it is fundamental that responsible leaders should invoke Article 14 and combat prejudice instead of encouraging it? Looking at this clause against that background, does it interfere with those rights under the convention? In my submission it does—in its terms and in its consequences.
In its terms the clause attacks those particular family relationships protected by Article 8. It states that they are pretended and unacceptable and, as I said a moment ago, a teacher is at risk in voicing the idea that they may be acceptable. The clause is incompatible with our obligations under the convention. It will lead to breaches of the convention in its inevitable consequences.
I mentioned a moment ago the possibility of teachers losing their jobs because they might say to children what I have just said in this Chamber; namely, that gay and lesbian relationships are just as normal and acceptable as any others—quite apart from the dangers of censorship to which we have drawn attention in earlier amendments.
We often rail against violations of human rights in foreign countries, but under the clause as it stands—without these amendments which would do something to rectify the position—human rights in Britain will become a cause of great anxiety. I challenge the Minister to tell us whether he has taken advice on the compatibility of the clause with our obligations under the convention and, if not, to agree to look again at the amendment.
Lord Henderson of Brompton: I regard this amendment as one of the most important of all the amendments. I very much regret that it has been so arranged that it is discussed at or after midnight. I am extremely grateful to the noble Lord, Lord Gifford, for giving us the benefit of his experience in the European Court. What he said is most important and I am very glad he has taken this opportunity of saying it so that it is on the record.
Unfortunately those who have not stayed this late will not be able to read the discussion because it is overmatter and will not be printed tomorrow morning. Those who take part in the debate on clause stand part will not have the benefit of the noble Lord's utterances. That is a great shame. I must say that I am very sorry that the Committee is so thin to hear such an important argument. Nevertheless it is very good to have it on the record and, of course, it will be referred to on Report.
My interest is not so much in human rights. At least it is; but I have not the confidence to talk about that issue. My interest is in the first part of the amendment as regards discrimination. I have been concerned about discrimination against the disabled for many years and I am concerned about discrimination against that minority of our community.
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I shall not ask the Minister whether he has consulted the DHSS because I know that he has. One of the many starred amendments which the Government produced at the last moment concerned AIDS. It was introduced on the last day of the Committee stage in another place. Therefore, I know that the DHSS has been consulted.
Things have moved on since the time of the Standing Committee. In January of this year the department published Problems Associated with AIDS (Cmnd. 297). That was the department's response to the third report from the Social Services Committee session 1986–87. The paper quotes Recommendation 25 from that committee.
"The alienation of any sub-group from the rest of society, whether by their own intent or through the attitudes of others, will undermine the public health, since they may not then feel any responsibility to act for the general good, especially in preventing the spread of infection. We recommend that likely reactions are taken into consideration when planning the targeted campaigns".
The Government then gave their considered reply—no doubt after the Minister had consulted the department because it was published in January. They replied to the Select Committee in Paragraph 3.9.
"The Committee's view of the need to ensure that AIDS information is presented in ways acceptable and relevant to the target audience is shared by the Government, particularly where the objective is to effect behavioural change. Any reinforcement of feelings of alienation or stigma could lessen the impact of the campaign and, in this respect, researching and piloting of material to be used are most important.
3.10 The Government shares the Committee's view that educational material is often best put across by bodies active in particular fields, e.g. among the homosexual community or representing disabled or sensorily impaired people, or those from ethnic minority communities. Their advice in presenting and putting out messages about AIDS to these groups is greatly valued".
In view of the recommendations of the committee and the firm response of the Department of Health and Social Security, I should have thought that the amendment was absolutely necessary.
Lord Renton: With great respect to the noble Lord, Lord Gifford, I do not agree that Clause 28 as it stands in any way offends the European Convention on Human Rights. I do not consider that an amendment along the lines of Amendment No. 120B is necessary. However, if it were to be considered necessary, with great respect to noble Lords who have spoken, the amendment does not cover the points made by the noble Lord when he quoted from the judgments. I believe that the first judgment he quoted referred to non-interference with a person's private life. The second judgment referred to freedom of publication. The amendment does not deal with either of those matters. Even if the assumption which the noble Lord invites us to make is correct, I do not think that the amendment meets his purpose.
Lord Gifford: Perhaps I may respond. The noble Lord, Lord Renton is right because the law does not recognise civil rights, as referred to in the amendment. That is why I am asking the Minister not so much to say that this amendment is perfect but to ensure that the articles of the convention—they are not judgments—to which I have referred are safeguarded by the final version of this clause.
The Earl of Caithness: At first sight the amendment proposed by the noble Lord, Lord McIntosh of Haringey, seems very reasonable. We are all against discrimination. We all want to protect civil rights. However, I must ask the Committee to look more closely at the amendment. On closer examination, I think that it proves a Trojan horse which, in the guise of something to which we can all subscribe, could in fact remove much of the effect of Clause 28. In the first place, I ought to point out that the amendment is concerned not with discrimination by the local authority but with the local authority's attempts to discourage discrimination by others. Therefore the whole amendment is built upon a busybody's charter. It deals not with the local authority's own decisions but with other people's conduct of their own business.
More importantly however I have to draw the Committee's attention to the phrase "the doing of anything". As Members of the Committee are aware, that is a very wide phrase. In particular, it can cover the promotion of homosexuality. In other words, the amendment—like some others before it—is suggesting that a local authority can promote homosexuality if its purpose in doing so is to discourage discrimination or protect civil rights.
In the Government's view, if the noble Lord's amendment were concerned directly with discrimination by local authorities it would be unnecessary. Clause 28 will not provide any justification for a local authority to discriminate against homosexuals. However, given the way in which the amendment is drafted, we believe that it would open a back door to all the practices which have caused so much public concern. Therefore we feel that the amendment is positively damaging.
Turning to the question of the European Convention on Human Rights, I am grateful for what my noble friend Lord Renton said. I say to the noble Lord, Lord Gifford, that of course we have considered this important convention but the clause is concerned with what local authorities may spend their money on and not with what individuals may do. Therefore we are satisfied that the convention is not applicable to what is proposed.
Lord McIntosh of Haringey: It may be the lateness of the hour, but I thought that those were uncharacteristically weak rejoinders from both the noble Lord, Lord Renton, and the Minister. The noble Lord, Lord Renton, did nothing but assert his disagreement with my noble friend. He gave no reasons for that disagreement and even misinterpreted the status of the articles of the European Convention on Human Rights.
The Minister surprised me with his final remarks when he said that the European Convention on Human Rights does not affect legislation which is designed to control the way in which a local authority spends its money—or the ratepayers' money. Presumably, any way in which the ratepayers' money is spent by a local authority in this respect can have an effect on discrimination for or against any particular group in our society, and on the civil rights of any of the inhabitants of that local authority's area. Therefore it is not possible simply to exclude on
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such weak grounds the relevance of the European Convention on Human Rights.
As the noble Lord, Lord Henderson, said, this is perhaps one of the most important amendments that has been tabled to this clause. It has come at the end of a series of amendments which have progressively exposed not only the weakness of the clause as drafted but also what we have seen as the impossibility of putting it right.
When the Minister once again relies on that totally impossible and unworkable phrase "promote homosexuality" as his justification for all the "obscenities" (I am tempted to say) which the clause is likely to carry in its train, it is clear that there is something much more seriously wrong with this clause than had previously been thought. In a matter of six hours of debate in this Chamber there has been no effective defence of any significant aspect of this clause. It will need not only the most severe criticism when we resume tomorrow afternoon, but it will clearly need severe and rigorous attention at the Report stage. Clearly at quarter past midnight it is not appropriate to take the Committee to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hesketh: I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at sixteen minutes past midnight.