Lords Sitting of 29 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 Ripon.

Fixed Penalty Offences in Scotland
Lord Graham of Edmonton Lord Graham of Edmonton, on behalf of Baroness Phillips, asked Her Majesty's Government:
Which offences are included in the list for fixed penalties now operating in Scotland.
The Lord Advocate (Lord Cameron of Lochbroom): My Lords, procurators fiscal may offer fixed penalties for those road traffic offences listed in Schedules 1 and 2 to the Transport Act 1982 and also in terms of Section 56 of the Criminal Justice (Scotland) Act 1987 for any statutory or common law offence, in respect of which an alleged offender could competently be tried before a district court.
Lord Graham of Edmonton: My Lords, I am grateful to the Minister for giving that reply. Can he say anything about the offence of shoplifting in respect of these matters? Can he also tell us how extensive is the consultation process as regards fixed penalties, taking into account the fact that there are distinctions between Scottish and English law? For instance, are the views of magistrates taken into account, because I undertstand that the pressure on the courts could be considerably relieved under the fixed penalty system?
Lord Cameron of Lochbroom: My Lords, in response to the second part of the noble Lord's question, such decisions are taken by the procurator fiscal. They will depend on the particular circumstances of the case and whether he considers such a disposal, rather than a prosecution, to be appropriate in the public interest.
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Certain cases of theft by shoplifting would fall within the ambit of the 1987 Act. Depending upon the circumstances, they may be considered appropriate for such a disposal rather than for prosecution by a procurator fiscal.
Lord Leatherland: My Lords, I should like to ask whether the penalties are fixed without any reference to the income and financial standing of the defendant.
Lord Cameron Lochbroom: My Lords, the noble Lord is in one sense correct. Penalties are fixed by the statute under which they were permitted; namely, by the Act of Parliament. The £25 penalty is one of the matters which a procurator fiscal will take into account in determining whether he considered such a disposal to be appropriate in a particular case.
Lord Morton of Shuna: My Lords, can the noble and learned Lord say whether he has given directions or guidance to procurators fiscal in respect of the circumstances under which a fixed penalty should he offered rather than prosecution?
Lord Cameron of Lochbroom: My Lords, I have given certain instructions as regards the circumstances under which the power of an offer of fixed penalty may be used. My concern is to ensure that it will be used correctly. For that reason the present provision is monitored, involving procurators fiscal, clerks of the court and Scottish Office statisticians.
Lord Graham of Edmonton: My Lords, I am grateful to the Minister for the care that he has taken in answering the Question. However, will he comment on the point that I raised? Prior to the powers being exercised, to what extent do consultations take place with magistrates, courts and their representatives? I understand that the courts are under great pressure and that the fixed penalty system may well be one way of easing the pressure.
Lord Cameron of Lochbroom: My Lords, the noble Lord can be certain that procurators fiscal are well

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aware of the pressures that exist on the courts to get through the business as quickly as possible. The use of the discretion is related to the terms of the individual case. I hope that that will be the ruling matter, rather than the question of the pressure on the courts. I can assure the noble Lord that I am particularly concerned with that.
Lord Diamond: My Lords, as a result of the monitoring to which reference has been made, is it possible to publish the statistics in the various categories for which they are available showing the proportion of cases which have been dealt with by fixed penalties?
Lord Cameron of Lochbroom: My Lords, as regards road traffic offences this scheme has been in existence for some time. I believe that 61,000 fixed penalty offers were made in 1987 and that there was a 90 per cent. take-up. Of course noble Lords will be aware that if the offer is not accepted, the matter is taken to court by way of a prosecution.
Lord Hailsham of Saint Marylebone: My Lords, can my noble and learned friend tell me whether one consequence of the positive use of discretion is that the offender will escape all publicity?
Lord Cameron of Lochbroom: My Lords, one consequence certainly is that no conviction will be recorded against the offender and, at the end of the day, that means that there will be no publicity.
Baroness Macleod of Borve: My Lords, with regard to shoplifting which was raised previously, are we to understand that a fixed penalty can be imposed and accepted whatever the value of the goods?
Lord Cameron of Lochbroom: My Lords, as in any other case it will depend on the circumstances of the particular report. However, I assure my noble friend that the value of the goods would be one of the circumstances of which the procurator fiscal would take account before determining the proper disposal.
Lord Cledwyn of Penrhos: My Lords, is the noble and learned Lord able to say whether the Government have it in mind to legislate along similar lines for England and Wales?
Lord Cameron of Lochbroom: My Lords, no, I do not have any such information. I have no doubt that the Government will watch the operation of the scheme in Scotland as a successful means of having an alternative to prosecution which may, at the end of the day, find a response South of the Border as well.

London Traffic
2.46 p.m.
Lord Nugent of Guildford Lord Nugent of Guildford asked Her Majesty's Government:
What arrangements they are making to improve the movement of London traffic.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, we are giving priority to improving London's trunk roads and traffic control arrangements. We are supporting an increasing number of borough road and traffic schemes. We are conducting studies into ways of tackling transport problems in four areas with the most acute difficulties. We are encouraging better control of parking. We are also encouraging efficient and attractive rail and Underground services, which are helping to relieve road congestion.
Lord Nugent of Guildford: My Lords, I thank my noble friend for that comprehensive Answer and offer my congratulations on what has been done. With regard to parking offences is my noble friend aware that we now find the kerbside of London streets full of illegally parked cars which forces double parking by local delivery vans? Is he aware that that is one of the worst offences because it may completely stop the traffic? Will the Minister extend the beginnings of a system of wheel-clamping and car removal which is the most effective means of deterring the illegal parker?
Lord Brabazon of Tara: My Lords, wheel-clamping is being extended to further parts of central London. Since wheel-clamping was introduced it has reduced illegal parking on yellow lines by 40 per cent. and in residents' bays by one third. It has reduced journey times by between 8 and 14 per cent. providing an estimated saving of between £11 million and £18 million a year. Therefore, I believe that in that direction wheel-clamping has been a success.
Lord Strabolgi: My Lords, may I ask the noble Lord whether any decision has been made about the future of the Victoria Coach Station? Is he aware that during the peak periods 1,000 coaches a day pass through narrow residential streets in a conservation area? Does he think it makes any sense for coaches going to the north of the capital to pass through London's heavy traffic?
Lord Brabazon of Tara: My Lords, I am well aware of the noble Lord's interest in the future of the Victoria Coach Station. The situation has been going on for some time now. I am not entirely sure what stage we have reached at the moment but perhaps I can write to the noble Lord with the latest information.
Lord Mowbray and Stourton: My Lords, does my noble friend think that clamping vehicles in itself may be hindering London traffic and, therefore, might it not be better to tow them away if possible? Secondly, is it not slightly upsetting that most of our yellow-capped friends who try to prevent the obstruction of traffic tend to check on areas where there are already cars parked on meters and not on single or double yellow lines?
Lord Brabazon of Tara: My Lords, obviously clamping must be done very carefully and vehicles which are an obstruction to traffic should not be

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clamped. Those would obviously be candidates to be towed away. Normally clamping should be done only where a vehicle is parked for too long in an area where it is not actually causing an obstruction. Therefore, I believe that clamping should be done very carefully.
Lord Jay: My Lords, is the Minister aware that London Transport Underground services still show all the signs of being acutely under-staffed and, as the Government are enforcing financial targets on the authority, do they still refuse to accept any responsibility for the inconvenience forced on the public?
Lord Brabazon of Tara: My Lords, not at all. Investment by London Regional Transport will be a record £300 million this year and we propose to authorise an increased expenditure of £1 million a day for the next year. Therefore, we have not neglected investment by London Regional Transport which is carrying record numbers of people at the moment.
Lord Boyd-Carpenter: My Lords, has consideration been given, following the example of certain European cities, to banning the entry into the central area of very large vehicles?
Lord Brabazon of Tara: My Lords, very large vehicles are banned at certain times of the day from certain parts of central London. I believe this is a question for the local highway authorities which are responsible for that.
Lord Underhill: My Lords, does not the Minister agree that the problems of London traffic congestion have been aggravated by the abolition of the Greater London Council and the break-up of its transportation unit? Members may smile, but is it not a matter of concern that there has been failure to agree among the London boroughs and hence there is now a five-year agency agreement for a traffic control unit controlled by the smallest local authority in Greater London; namely, the Corporation of London? Is that not a matter for concern?
Lord Brabazon of Tara: My Lords, I should hate to disagree with the noble Lord but since the GLC disappeared expenditure has risen quite sharply as regards both central government and major borough schemes. The department has approved 38 major borough schemes worth about £400 million in supplementary grant for the coming year.
As regards traffic control, I do not see that it matters very much that the City of London Corporation has agreed to take this over. It is a very valuable tool in traffic control. At present 120 traffic signals are controlled in the system and a further 60 signals are being added to the system every four months. That is certainly going ahead much faster than in the unlamented days of the GLC.
Lord Mowbray and Stourton: My Lords, may I ask my noble friend to reply to the second half of my question on whether parking enforcement officers are
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concentrating too much on meters and not on parking on single or double yellow lines?
Lord Brabazon of Tara: My Lords, traffic wardens operate under the auspices of the police and it is, of course, a question for the police to decide how best the resources should be used. I have not noticed any discrimination being made between metered spaces and yellow lines.
Lord Diamond: My Lords, has consideration also been given to the practice in certain continental cities where, if the pavements are empty and the roads are full, parking is allowed on one side of the road on the pavements thereby enabling traffic to flow more readily?
Noble Lords: Oh!
Lord Brabazon of Tara: My Lords, I think that on the whole pavements should be reserved for pedestrians and other users such as people in wheelchairs, with prams, and so on.
Noble Lords: Hear, hear!
Lord Brabazon of Tara: My Lords, I am sure that in certain areas where there is a large area of pavement it might be possible to use some of the space. I have seen one such area near where I live. However, in general terms pavements must be reserved for pedestrians.
Baroness Gardner of Parkes: My Lords, does not the Minister agree that enforcement is essential in all traffic control? Will my noble friend review the bus lanes in London which were sprinkled everywhere by the late Greater London Council? They often operate during hours when there are no buses using them, to the detriment of other traffic.
Lord Brabazon of Tara: My Lords, my noble friend makes an important point but with the exception of trunk roads within central London that is a question for the local highway authorities and not for the Government.
Lord Jenkins of Putney: My Lords, is the noble Lord unaware of the fact that, like many of the Government's so-called improvements, what he has been talking about seems to have made the situation worse rather than better? The noble Lord referred to towing away. Is the noble Lord unaware of the fact that towing away was much more effective than clamping? Will he not consider reintroducing it?
Lord Brabazon of Tara: My Lords, it is not a question of reintroducing it. Towing away occurs to a considerable extent. Clamping and towing away are complementary measures.
Noble Lords: Next Question!
The Lord Privy Seal (Lord Belstead): My Lords, I think perhaps the House feels that we should pass on to the next Question. It is possible to have too much of a good thing.

Caravans: Illegal Parking on A/
2.54 p.m.
The Earl of Onslow The Earl of Onslow asked Her Majesty's Government:
What action they propose to prevent the illegal parking of caravans on the A.3 at Potters Lane, Send.
Lord Brabazon of Tara: My Lords, my right honourable friend is seeking an order through the county court for vacant possession of the highway land. He hopes to obtain a hearing early in March and in the event of an order being granted the land could be vacated within a few weeks.
The Earl of Onslow: My Lords, will my noble friend urge upon his right honourable friend not to make the link, which he has done in correspondence to me, between Section 143 of the Highways Act and the Caravan Sites Act 1968? That is the excuse which the department has been using. This matter has been going on since 1985 and the local authority and local people are becoming extremely irked and cross because nothing has been done. After all, we did manage to remove 11,000 Argentinians from the Falkland Islands in three months and it seems a little ridiculous not to be able to get rid of three caravans in five years.
Lord Brabazon of Tara: My Lords, I am well aware of my noble friend's concern but I can reassure him that the order we seek at present will be under Order 24 of the County Court Rules, 1981.

Zebra Pedestrian Crossings: Lighting
2.55 p.m.
Lord Campbell of Croy asked Lord Campbell of Croy asked Her Majesty's Government:
Whether they are satisfied that the lighting of zebra crossings is adequate for the safety of pedestrians during the hours of darkness.
Lord Brabazon of Tara: My Lords, yes. My right honourable friend the Secretary of State for Transport is satisfied that the provisions of the Zebra Pedestrian Crossings Regulations, supported by advice on the design of pedestrian crossings published by the department, are adequate for safety during the hours of darkness.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that Answer, but there is a respectably held opinion that pedestrians are difficult to see in bad weather, even where there are spotlights. Is it intended gradually to install at the busiest of these crossings the push-button traffic lights which give much more certain protection?
Lord Brabazon of Tara: My Lords, we believe that there is a role for both the pelican-type crossings and the zebra crossings. In the department's advice notes which are sent out to local highway authorities we
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give guidance as to when one sort or the other should be used.
As regards supplementary lighting in the form of white lights above pedestrian crossings, that is a very good idea and should improve visibility for drivers.
Lord Underhill: My Lords, would it be of interest to the Minister to learn that, since the noble Lord tabled his Question, in travelling home from this House every night I have been checking the number of pedestrian crossings where one or both orange globes have been destroyed? I am shocked by the number that are in that state. Can the Minister say whether or not police motor patrols are informed that they should notify the local authority when such breakages occur? Should there not be emergency teams, doing other work, who can speedily replace the lights?
Lord Brabazon of Tara: My Lords, the noble Lord makes an interesting suggestion. I am not at present aware of who is responsible for reporting such breakages to the local highway authority responsible for replacing them. Indeed, I hope that the police who are on patrol do report such breakages. However, I will draw the noble Lord's remarks to the attention of my right honourable friend.
Lord John-Mackie: My Lords, does not the noble Lord agree that it would be much better if pedestrians wore light clothing or a light arm band? I have had several nasty experiences involving dark-clothed people on well-lit pedestrian crossings. On a bad night one cannot see them.
Lord Brabazon of Tara: My Lords, the noble Lord makes an interesting suggestion, but it is a matter for people to decide for themselves. Nevertheless, I should say that the incidence of accidents on pedestrian crossings, both during the day and at night, is not that high though I do not wish to be complacent. However, it would indeed be useful if people wore more visible clothing.
Lord Molloy: My Lords, in addition to the point made by my noble friend Lord Underhill concerning beacons being destroyed, may I point out that there is also the growing habit of motorists parking on the zig-zag lines? As a result, the official safe crossing becomes a greater hazard than any other part of the road which has no zebra crossing.
Lord Brabazon of Tara: My Lords, I have always understood that parking on the zig-zag lines next to a pedestrian crossing is practically a capital offence. I hope that other road users also take that into account.
Lord Campbell of Croy: My Lords, does not my noble friend agree that push-button operated lights have another advantage in that they assist traffic flows and the flow of vehicles round squares, so returning to the points raised during the second Question?
Lord Brabazon of Tara: My Lords, my noble friend is right. That is one of the aspects included in our guidance notes for highway authorities when they decide between pelican or zebra crossings. Pelican crossings are, of course, more expensive to install, and are not necessary everywhere, but they do have an important role to play.
Lord Airedale: My Lords, frequently street lights of all kinds burn brightly in the midday sun and not in the midnight darkness. Does the Minister not consider that it would be a contribution to road safety if local authorities were liable to be prosecuted in the same way as motorists for not having their lights on after dark?
Lord Brabazon of Tara: My Lords, I am sure that all local authorities try to keep their street lights operating at the correct times. Many are now automatically controlled, and however much we advance in technology we cannot avoid the occasional breakdown.
Lord Wallace of Coslany: My Lords, on safety for pedestrians, may I draw the attention of the noble Lord—
Noble Lords: Question!
Lord Wallace of Coslany: Perhaps I may ask the noble Lord whether he is aware of the disastrous and chaotic conditions which apply due to building work in Villiers Street, between the Embankment and the Strand. The pedestrian not only needs light clothing but he needs to carry hazard lights because of the terrible conditions, particularly in wet weather.
Lord Brabazon of Tara: My Lords, I am afraid that am not aware of the instance to which the noble Lord draws my attention. What I can be fairly sure of is that it is not a matter for the Government; it is a matter for the local highway authority.

Foreign Marriage (Amendment) Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to introduce a Bill to amend the Foreign Marriage Act 1892 and to repeal certain enactments which are spent relating to the validation of marriages of British subjects solemnised outside the United Kingdom.
I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read a first time—(The Lord Chancellor).
On Question, Bill read a first time, and to be printed.

Legal Aid Bill [H.L.]
3.2 p.m.
Read a third time.
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Before Clause I, insert the following new clause:
("Purpose of this Act.
The purpose of this Act is to establish a framework for the provision under Parts II, III, IV, V and VI of advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means.").
The noble and learned Lord said: My Lords, Amendment No. 1 is a response to an undertaking which I gave at Committee stage to try to produce in the simplest terms that could be devised a statement of the purpose of the Bill to be settled at its outset. Your Lordships will remember that I gave that undertaking in response to the amendment put down by my noble friend Lady Faithfull, the noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Allen of Abbeydale and Lord McGregor of Durris. The inclusion of a purpose clause was supported by speakers from all sides of the Committee and I took note of the feeling of the Committee on that occasion. I have now brought forward my amendment in response.
Your Lordships will see that it is drafted in the form of a statement of the purpose of the Bill. I said at Committee that I would be unable to accept a clause which sought to impose a duty on the Lord Chancellor. I was supported in this view by several of your Lordships. If I remember correctly, I was supported by my noble and learned friend Lord Hailsham and by my noble friends Lord Campbell of Alloway, Lord Renton and Lord Morris. The noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, seem also to have come to this view, since their amendment at Report spoke in terms of purpose rather than of duty.
The amendment is self-explanatory and I hope that it meets with your Lordships' approval. It contains elements of the amendments put down on this subject at Committee and Report. It sets out clearly that the Bill is about establishing a system of publicly-funded advice, assistance and representation for those who might otherwise be unable to obtain such legal services because of their means. I hope it provides the appropriate fanfare to start the Bill that many of your Lordships thought was needed.
With it comes the consequential amendment, No. 3. This removes what would otherwise be a repetition of parts of the new clause and thus maintains what I hope is the general elegance of the Bill. I beg to move.
Lord Mishcon Lord Mishcon moved, as an amendment to Amendment No. 1, Amendment No. 2:
Line 1, leave our ("establish a framework for the provision under Parts II, III, IV, V and VI of") and insert ("provide under Parts II, III, IV, V and VI").
The noble Lord said: My Lords, perhaps I may at once express the regret of my noble and learned friend Lord Elwyn-Jones that he is unable personally to move this amendment. He is at the moment sitting judicially. He has in me a very inadequate junior who is asked to present this amendment to your Lordships.
The noble and learned Lord, as one would expect, has been extremely gracious in regard to this

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proposed amendment. If I may say so, the wheels were set in motion by the noble Baroness, Lady Faithfull, at Committee stage. When the wheels looked as if they needed a little oiling, the Report stage amendment was moved by my noble and learned friend.
As the noble and learned Lord said, it is desirable that the purpose of this Bill should be expressed. It is quite understandable that the noble and learned Lord was very careful to make it clear that to impose duties was a very dangerous thing, especially in this day and age, when the remedy of judicial review is available in order that the citizen may go to the courts and say that a duty imposed upon the Crown has not been fulfilled.
That point was taken on board. My noble and learned friend and I tried our best at Report stage to table an amendment which we hoped would escape the judicial review procedure and at the same time deal with the points that the Lord Chancellor had made at Committee stage. At col. 1202 of our proceedings at Report stage on 4th February, having looked at that amendment of ours, he said this:
"I am grateful for the introduction of this matter by the noble and learned Lord, Lord Elwyn-Jones. It has proved to be a fairly difficult task but, as I stated in the letter read to your Lordships, I am hopeful that at Third Reading we shall be able to bring forward a satisfactory statement of purpose clause. I am extremely grateful to the noble and learned Lord, Lord Elwyn-Jones, and to the noble Lord, Lord Mishcon, for promoting this amendment. I am glad to say that I have also been in receipt of help from other quarters, We shall endeavour to make the best possible use of all that help".
Then came the sentence which put optimism in the hearts of my noble and learned friend and myself:
"I fear that I cannot accept the present proposal with complete certainty that it is 100 per cent. in accordance with what is desired by those assisting me in the drafting of the Bill. However, I assure your Lordships that it will be taken into account".
The optimism that filled our hearts at that time was that at Third Reading the noble and learned Lord would come forward with something which was 99 per cent, of what we had tabled.
The amendment which comes before your Lordships at Third Reading and which has just been moved by the noble and learned Lord sitting on the Woolsack is one that deserves these comments. It is differently worded from the amendment at Report stage. It carefully uses the word "purpose" and not "duty" and therefore deals with the point in regard to judicial review. For the rest of the clause, when detailing the purpose in regard to advice, assistance and representation which are publicly funded, it deals with the matter in a perfectly acceptable way.
There being no pride of ownership in the words that occur in the amendment which we moved at Report stage, that part of the proposal in this amendment of the noble and learned Lord is accepted by us with gratitude. However, our real difficulty in accepting the amendment is one that I hope your Lordships—and indeed the noble and learned Lord the Lord Chancellor—will share. It is now some 39 years since the first Legal Aid Act was passed in 1949 and we have evolved and progressed over 40 years. Instead of dealing with the history of legal aid and
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with the purpose of the Act in fulfilling certain aims of legal aid as have evolved, the curious words occur:
"The purpose of this Act is to establish a framework for the provision under Parts II, III, IV, V and VI of advice, assistance and representation".
We presented that framework 40 years ago. At the Committee stage, when we were dealing with the amendment, the noble Baroness, Lady Faithfull, so correctly quoted the Lord Chancellor as saying at Second Reading of the Bill:
"The legal aid system in this country is one of the best in the world. The provisions in the Bill not only preserve all that is best in our legal system; they enhance it".—[Official Report, 15/12/87; col. 614.]
We have reached an advanced stage along our journey in regard to legal aid. To talk in terms of this Bill as though it were the very first time that builders had started the job of erecting legal aid and had merely reached the stage in the Bill of providing the framework for it seemed to us not only to be a wrong use of words but to signal something that was historically incorrect and quite undesirable.
Our amendment accepts every single sentiment and word of the Lord Chancellor in regard to this Legal Aid Bill and its purpose but asks for the omission of the words,
"establish a framework",
so that the amendment, if passed, would read
"The purpose of this Act is to provide under Parts II, Ill, IV, V and VI advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means".
I beg to move.
Baroness Faithfull: My Lords, on behalf of the noble Lords, Lord Allen of Abbeydale and Lord McGregor of Durris, I wish to thank the noble and learned Lord on the Woolsack for his amendment. It is straightforward, and will be understood by people using legal aid and organisations such as the law centres and Citizens' Advice Bureaux. It will help them realise what the Bill is for. We are grateful to have this purpose clause set out by the noble and learned Lord. I have not had time to discuss with my noble friends the alteration put forward by the noble Lord, Lord Mishcon. However, it seems to me that there is not much between the amendments. We are grateful to the noble and learned Lord the Lord Chancellor for the word "framework" and we are happy with it.
3.15 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I prefer the words of the Lord Chancellor's amendment to those of the alternative. Perhaps I may say to the noble Lord, Lord Mishcon, that his historical point is a bad one because it affects his own amendment equally. The provision of legal aid is 40 years old and has gradually advanced during the years. To pretend that the purpose of the Bill is to provide something which does not already exist is historically far more inaccurate than any criticism that could he levelled at the words of the Lord Chancellor.
Quite apart from that it is inaccurate because the purpose of the Bill is in fact to provide a framework. It sets up the Legal Aid Board which is structure. It

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provides for committees and for various kinds of other structure. It gives to parliamentary subordinate legislation, either by way of affirmative or negative resolution, an enormous part, as has been pointed out repeatedly during the course of our debates. Again, structure. This is a Bill for the structure of legal aid. I prefer the word "framework" to be in the Bill.
Lord Simon of Glaisdale: My Lords, I too should like to thank my noble and learned friend for a valuable purpose clause. Like my noble and learned friend Lord Hailsham I prefer Amendment No. 1 to Amendment No. 2 for the reasons that he gave; namely, that from the very beginning of legal aid we have relied greatly—almost preponderantly—on subordinate legislation. And so it is here. Therefore it is perfectly correct to say that the purpose is to establish a framework, a framework which will be fleshed out in due course when your Lordships see the regulations.
I have noticed in certain of the remarks that have been addressed to your Lordships—notably by the noble Lord, Lord Mishcon—a certain wary attitude to the remedy of judicial review. That development is entirely salutary. This country has for many years been disgracefully behind other jurisdictions in developing an administrative law. The system of judicial review is a valuable beginning— indeed, it has now developed beyond a beginning—in which the courts can review the activities of administrative bodies. That has been welcomed in all except the very citadels of bureaucracy. As no doubt we shall be discussing judicial review later, I hope that it will not be in any way looked at askance.
Lord Renton: My Lords, I am grateful to my noble and learned friend the Lord Chancellor. Indeed I wonder whether I may use the word "thrilled". It was a principal recommendation of the Committee on the Preparation of Legislation, of which some years ago I had the honour to be chairman, that there should be purpose clauses. The noble and learned Lord, Lord Simon, and others have frequently pressed for purpose clauses, and this is one of the first that we have seen of a comprehensive kind. I attach great importance to the fact that it is the noble and learned Lord the Lord Chancellor himself who has had it drafted and has moved it before the House.
This purpose clause, like others, will be valuable for interpretation. When I say that, I mean that it will be especially valuable in assisting the courts. Of course it is of value to all readers of the statute as well. I wonder whether I may make a brief reference to the Lord Chancellor's second amendment. He has referred to it and so I believe it will be in order for me to do so.
He points out that Clause 1 is for purposes of interpretation; that would be the effect of his amendment. Strictly speaking—and I hope I am not being pedantic in suggesting this—the new amendment which he moved will be equally valuable for the purpose of interpretation. Therefore Amendment No. 3 might well have covered the new Clause 1 (as it would be) as well as the present Clause 1 which my noble and learned friend is amending.
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I do not think I need add anything to the powerful arguments that have already been used by my noble and learned friends Lord Hailsham of Saint Marylebone and Lord Simon of Glaisdale, about the amendment moved by the noble Lord, Lord Mishcon. I respectfully agree with both of them.
Lord Morris: My Lords, I should like to express another concern that I have about the amendment tabled in the name of the noble and learned Lord, Lord Elwyn-Jones, which was so ably moved by the noble Lord, Lord Mishcon. My concern is that the wording requests an Act of Parliament to do something that it cannot possibly do. The wording is:
"The purpose of this Act is to provide".
No Act can provide those goodies which are suggested in the Long Title or indeed in the amendment of the noble and learned Lord the Lord Chancellor. It is obviously the administration of that Act and the framework under which the Act is administered that provide such matters. For that reason I believe, although I am no draftsman or lawyer, that the amendment of the noble Lords opposite would not be workable. I believe it is useful in terms of interpretation, although I think the new wording is a reiteration of the Long Title. Just as the Long Title is used by the courts in the interpretation of any Act, so this further purpose clause can likewise be used. It is for that reason that I am grateful.
Lord Morton of Shuna: My Lords, I am slightly puzzled by what the noble Lord, Lord Morris, has just said. I do not see the difference in English between an Act to make new provision and an Act which provides. The meaning is the same.
Lord Morris: My Lords, it was the Long Title that I referred to.
Lord Mishcon: My Lords, I seem to detect some amount of opposition to the amendment that I moved. Whether that opposition is due to extreme sensitivity or not, I am not sure. However, because I regard it as being very important, I should like to say at once that I do intend, at the end of what I have to say, to test the opinion of the House.
First, I should like to pay tribute (although I thought I had done so previously) to the noble and learned Lord who sits on the Woolsack for coming forward with this amendment at all. I say that because when the noble Baroness, Lady Faithfull, was courageous enough to move the amendment in Committee the response of the noble and learned Lord the Lord Chancellor was reflective but not entirely supportive. Therefore it shows his openness of mind, if I may say so, and that he was convinced in the course of the debates that putting a general purpose into the Bill might be a sensible thing to do.
However, he did sound, as did others in the debates, a note of caution which was a very proper one: if you impose a duty which is enforceable in our courts, then quite obviously you have to be extremely careful because of the doctrine of judicial review. Those words were not spelt out, but everybody knew what they meant. Of all the people who knew what those words meant, the noble and learned Lord, Lord

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Hailsham of Saint Marylebone, certainly knew what they meant.
I mention this point only because of the contribution of the noble and learned Lord, Lord Simon of Glaisdale. From these Benches we have upheld, supported, encouraged and praised the remedy of judicial review. The only reason that I mentioned the remedy was in order to make it quite clear that we on this side of the House shared the care of the noble and learned Lord the Lord Chancellor in wanting to see that we did not put anything into a statute which enabled the remedy of judicial review to be applied for in circumstances that would be quite unreasonable and unfair. That is why we adopted the words "the purpose"; and, indeed, "the purpose" are the very words that start off the noble and learned Lord's amendment.
It may well be that I am extremely faulty in expressing what one wants to express in language. However, I find it difficult in the course of a debate to deal with an argument which says that it is wrong to express a purpose in words which appear to show that you are erecting a building; but that it is absolutely right to say that you are doing it as a framework. Therefore it is wrong for one to do it historically (to pretend that you are erecting a building) by virtue of the fact that 40 years ago you started it; but it is perfectly correct, in accordance with the argument, to say 40 years afterwards that you are presenting the world with a framework. I do not follow the logic of that argument. If this were merely an argument on semantics, I would take my seat and not waste your Lordships' time any further; but it is not just semantics. It gives the purpose of the Bill quite inaccurately and falsely historically to say that Parts II, III, IV and V provide a framework. That framework was supplied—and I repeat it—in the first Act which dealt with legal aid in 1949. A matter of principle is involved, and one wants the correct words to go to the other place.
I am reminded and I hope I have not been discourteous to the House—that the noble and learned Lord the Lord Chancellor has not yet replied to my amendment. He will therefore be speaking after me. If I have said anything which seemed to suggest that the noble and learned Lord had nothing more to say on the matter, then I apologise.
I merely say to the House that, subject to what the noble and learned Lord has to say in his reply and with the openness of mind that he himself has shown in regard to this matter—which may therefore surprise your Lordships in that reply in accepting the amendment—I feel I must pursue the amendment as a matter not just of historical fact but, as I have already said, of principle.
The Lord Chancellor: My Lords, I am sorry if I gave the noble Lord, Lord Mishcon, the feeling that I have nothing to say on the amendment. I was seeking to give a full opportunity to anyone else who had not yet taken part in the debate to speak before I responded to the noble Lord's amendment.
First, I am grateful to all of your Lordships who have spoken commending the amendment which I
16
moved. It is true to say that there are not many such purpose clauses in statutes. It is also true that my noble friend in his committee recommended this provision. I have found the recommendations of his committee from time to time to be most useful, and have sought to follow them where possible—although perhaps not always entirely to his satisfaction—but at least I have gone some way into doing so.
It is important if one has a purpose clause to make sure that it is accurate. One of the points that the noble and learned Lord, Lord Elwyn-Jones, has often made about the Bill is that it contains many powers for secondary legislation. It is only a framework. It is not all the statutory provisions that are required even to make provision for legal aid. I must say that one does not need to consider long to see that there is a distinction between providing and making provision under which something can happen. To provide legal aid is one matter; but to make provision under which it can happen is something different.
The important point is that the Bill provides a framework. It establishes as a statutory provision a framework under which legal aid in the various aspects of Parts II, III, IV, V and VI are to be provided. It recognises in the scheme the scope for subordinate legislation. Therefore, I do not claim, and the amendment does not claim, that that has happened for the first time. I am not trying to put back the clock to 1949; I am trying to say that the Bill establishes a statutory framework for legal aid. In that, it is entirely accurate. The suggestion that it is more than a framework, and that it is something that provides legal aid itself, without the necessity of any intervention by subordinate legislation, which seems to be the emphasis of the amendment moved by the noble Lord, Lord Mishcon, is in my judgment inaccurate.
I adopt the arguments to the same effect that have already been put more eloquently than I can put them. That is essentially why—I hope not with undue modesty—I prefer my amendment to that moved by the noble Lord.
Lord Mishcon: My Lords, my response should be courteous and short. I respect the view put to the House by the noble and learned Lord. It has not affected my view that for the reasons that I have given the amendment should be put to the opinion of the House.
3.31 p.m.
On Question, Whether the said Amendment (No. 2), as an amendment to Amendment No. 1, shall be agreed to?
Their Lordships divided: Contents, 40; Not-Contents, 141.

DIVISION NO. 1

CONTENTS

Ardwick, L

Cledwyn of Penrhos, L.

Birk, B

Cocks of Hartcliffe, L.

Bottomley, L

David, B.

Bruce of Donington, L.

Davies of Penrhys, L.

Carmichael of Kelvingrove, L.

Dean of Beswick, L.

17

Ennals, L.

Milford, L.

Fisher of Rednal, B.

Mishcon, L.

Fitt, L.

Molloy, L.

Gallacher, L.

Morton of Shuna, L.

Galpern, L.

Northfield, L.

Graham of Edmonton, L. [Teller.]

Ponsonby of Shulbrede, L.

Irving of Dartford, L.

Serota, B.

Jay, L.

Stewart of Fulham, L.

Jeger, B.

Stoddart of Swingdon, L.

Leatherland, L.

Taylor of Blackburn, L.

Listowel, E.

Turner of Camden, B.

Llewelyn-Davies of Hastoe, B.

Underhill, L.

Longford, E.

Wallace of Coslany, L.

McCarthy, L.

White, B.

McIntosh of Haringey, L.

Williams of Elvel, L.

NOT-CONTENTS

Ailesbury, M.

Hesketh, L.

Airedale, L.

Hives, L.

Allen of Abbeydale, L.

Hood, V.

Allenby of Megiddo, V.

Hooper, B.

Allerton, L.

Hutchinson of Lullington, L.

Amherst, E.

Hylton-Foster, B.

Ampthill, L.

Iddeslesigh, E.

Arran, E.

Jessel, L.

Attlee, E.

Johnston of Rockport, L.

Auckland, L.

Joseph, L.

Aylestone, L.

Kaberry of Adel, L.

Bathurst, E.

Kearton, L.

Beaverbrook, L.

Kennet, L.

Belhaven and Stenton, L.

Killearn, L.

Bellwin, L.

Kilmarnock, L.

Beloff, L.

Kimball, L.

Belstead, L.

Kinnaird, L.

Benson, L.

Lane-Fox, B.

Bessborough, E.

Lauderdale, E.

Blake, L.

Long, V.

Blatch, B

Luke, L.

Blyth, L.

Lyell, L.

Bonham-Carter, L.

McGregor of Durris, L.

Boyd-Carpenter, L.

Mackay of Clashfern, L.

Brabazon of Tara, L.

Mackie of Benshie, L.

Brougham and Vaux, L.

Macleod of Borve, B.

Bruce-Gairdyne, L.

McNair, L.

Burton of Coventry, B.

Manton, L.

Caithness, E.

Margadale, L.

Cameron of Lochbroom, L.

Marley, L.

Campbell of Croy, L.

Massereene and Ferrard, V.

Carnegy of Lour, B.

Merrivale, L.

Clinton, L.

Mersey, V.

Coleraine, L.

Milverton, L.

Colnbrook, L.

Morris, L.

Cottesloe, L.

Mottistone, L.

Cowley, E.

Mountgarret, V.

Cullen of Ashbourne, L.

Mowbray and Stourton, L.

Davidson, V. [Teller.]

Munster, E.

Denham, L. [Teller.]

Murton of Lindisfarne, L.

Donaldson of Kingsbridge, L.

Nelson, E.

Dudley, B.

Newall, L.

Dundee, E.

Norrie, L.

Edmund-Davies, L.

Nugent of Guildford, L.

Effingham, E.

O'Brien of Lothbury, L.

Ellenborough, L.

Orkney, E.

Erroll of Hale, L.

Oxfuird, V.

Faithfull, B.

Peyton of Yeovil, L.

Ferrers, E.

Porritt, L.

Fraser of Kilmorack, L.

Raglan, L.

Gainford, L.

Rathcreedan, L.

Gardner of Parkes, B.

Reilly, L.

Gray of Contin, L.

Renton, L.

Greenway, L.

Ripon, Bp.

Grey, E.

Ritchie of Dundee, L.

Gridley, L.

Rodney, L.

Haddington, E.

St. Davids, V.

Hailsham of Saint Marylebone, L.

Saint Oswald, L.

Saltoun of Abernethy, Ly.

Halsbury, E.

Sandford, L.

Hanworth, V.

Seebohm, L.

Harris of Greenwich, L.

Selkirk, E.

Hayter, L.

Sempill, Ly.

18

Shaughnessy, L.

Teviot, L.

Simon of Glaisdale, L.

Thomas of Gwydir, L.

Skelmersdale, L.

Tordoff, L.

Stockton, E.

Trumpington, B.

Strange, B.

Vaux of Harrowden, L.

Strathcona and Mount Royal, L.

Waldegrave, E.

Wigoder, L.

Strathspey, L.

Wynford, L.

Sudeley, L.

Resolved in the negative, and amendment to Amendment No. 1 disagreed to accordingly.
On Question, Amendment No. 1 agreed to.
3.40 p.m.
Clause 1 [Basic definitions and other preliminary provisions]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 1, line 7, leave out from ("section") to ("of") in line 8 and insert ("has effect for the interpretation").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I should perhaps say one word in answer to the comment which my noble friend Lord Renton made upon it. I think it is true that all clauses in a Bill are capable of being used for interpretation. In a sense, therefore, if one is to be entirely consistent one would have to say that after every clause. But in many cases the connection of the clause with the structure of the Bill is clear. In Clause 2 of the Bill as it will now be, there is a list of words and phrases which are defined. As a consequence of the change by inserting the new clause to which your Lordships have just agreed, that would be an inelegant way of introducing Clause 2 of the Bill. We have changed it in the way proposed, and therefore I would not feel it right to alter Clause 1 in the way in which my noble friend has proposed. I beg to move.
Lord Renton: My Lords, of course I accept the explanation of my noble and learned friend. Indeed one could reinforce it by saying that when there are definitions in any clause it is often referred to as an interpretation clause.
On Question, amendment agreed to.
Clause 2 [The Legal Aid Board]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
Page 3, line 10, at end insert ("other than proceedings on an appeal from the decision of a juvenile court to the High Court").
The noble and learned Lord said: My Lords, this amendment relates to the later government amendments on the treatment of legal aid for child care proceedings. I should perhaps indicate that with this amendment I am taking Amendments Nos. 15 to 25, 47 to 49 and 51.
Your Lordships will remember that under the former framework for legal aid, legal aid in child care proceedings was dealt with as being included in legal aid for criminal proceedings. We decided, in establishing this framework, that the child care provisions should be taken out and dealt with separately. We now have a part of the Bill which deals with the legal aid relating to child care proceedings.
In Committee the noble and learned Lord, Lord Elwyn-Jones, moved an amendment designed to

19
question whether there were some other provisions or situations dealt with under civil legal aid which should also be grouped with child care legal aid. Ours had originally only been that part of child care legal aid which had formally been dealt with along with criminal matters. I considered and said at the time that that would appear to be an improvement. But there were a lot of rather disparate situations covered in rather different ways and we needed to look into the matter fairly closely. That we have tried to do now and to make consistent arrangements for child care legal aid to be dealt with under the child care legal aid provisions.
However, I saw the problem that might arise if any of the proceedings that were to be moved from Part IV to Part VI of the Bill involved proceedings in the High Court or the county court. This is because neither of these has the administration to deal with the grant or refusal of legal aid and Part VI at present requires that decision to be made by the court. The only proceedings which, on examination, have turned out to fall into this category are appeals from the juvenile court to the High Court. The handling of legal aid applications in these cases will therefore rest with the legal aid administration—that is, the board. So Clause 2(4), which deals with the legal aid functions not currently carried out by the legal aid administration but which might be transferred to the board at some later stage, has to be amended.
Clause 2(4)(c) refers to functions relating to care proceedings under Part VI. Since, as I have said, the decisions on legal aid for appeals from the juvenile court will rest with the board from the start, the amendment will be necessary to make that clear. It is part of a group which seeks to carry out the policy which I have just endeavoured to describe fairly briefly. I beg to move.
Lord Mishcon. My Lords, if I may say so this all seems very sensible.
Baroness Faithfull: My Lords, as an ex-children's officer and speaking also for the voluntary organisations and for the director of social services, I support the amendment.
The Lord Chancellor: My Lords, I am very grateful for that support. As I have said, the problem was originally highlighted by the noble and learned Lord, Lord Elwyn-Jones, in his amendment. All we have sought to do is to carry forward that thinking in detail. Therefore I am grateful that your Lordships feel we have reached the right conclusion.
On Question, amendment agreed to.
3.45 p.m.
Clause 3 [Powers of the Board]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 5:
Page 4, line 30, at end insert—
("( ) The power to secure the provision of representation under Part IV by means of contracts with other persons shall only be exercisable in the classes of case prescribed in regulations.").
The noble and learned Lord said: My Lords, this is the first of a series of amendments which deal with
20
what is sometimes referred to as the "class action" problem, but that is not particularly accurate. I shall endeavour to show in a little more detail what I seek to deal with. Together with this amendment I shall take Amendments Nos. 8 to 10, 26 to 35, 46 and 50.
Following the discussion that we had at Committee stage on the question of class actions, I have been giving further thought to the problems raised generally by multi-party actions and to ways in which the Legal Aid Bill might be amended to allow publicly-funded representation to be given in different ways which would meet the problems that arise in such multi-party actions.
I undertook at Committee stage to consider whether some sort of contracting provision similar to that in Part II of the Bill might help here. I had intended to elaborate on this a little at Report stage, but the amendment raising that matter was not brought forward for discussion. What I am now proposing in these amendments is that the board should have the power to enter into contracts with a particular firm or firms of solicitors for them to provide representation in categories of civil proceedings specified in regulations by the Lord Chancellor. The way I see this working is that the board would identify particular groups of cases—possibly all cases relating to a particular action or perhaps a more general category—which could with advantage be dealt with in this way.
Perhaps I may take as the leading example the multi-party action. This could take place because there were particular issues common to all the cases involved and no likelihood of a conflict of interest. Once such a category had been identified in regulations, the board could contract with particular solicitors with a view to their providing representation, and assisted persons with a case coming within the category would be directed to those solicitors. This would involve some restriction necessarily on the freedom of choice of solicitor by individuals involved in those cases, but that is a price that I think must be paid for greater co-ordination of multi-party actions anyway in order to secure the strength of a common representation.
These arrangements could, if the board and the Lord Chancellor thought it appropriate, provide for special arrangements for eligibility and means testing for some or all of the group. Separate provision could also be made, by means of the power given in Clause 32(2)(f) to enable the statutory charge to be taken from the totality of the money recovered.
It might also be necessary to have a rather different merits test, though it could well be possible to achieve this through guidance on how the existing test is to be applied. It might well be possible, for example, to justify taking an action which had as its purpose recovering perhaps comparatively small amounts of damages for a large number of people when the cost involved for each of them taken separately would not justify proceeding with the action.
These are matters which will have to be considered in the light of whatever court procedures, including class actions if such a procedure is introduced, can appropriately be dealt with in this way. This is a matter I shall invite the board to keep under review.
I venture to think that this approach deals with a good amount of the difficulty which presently arises and to which the noble Lord, Lord Mishcon, referred in Committee about applying legal aid in its present form to actions where one legally aided person, perhaps without a contribution, was selected as the leading case to determine a whole lot of similar cases. Under the present system all he recovers is subject to the statutory charge in respect of all the expenses and costs incurred on his behalf.
The amendments proposed here enable the Legal Aid Board to in effect apportion between the various parties whose cause is espoused as part of the unit the cost so that the statutory charge, even if it was operating at its full force, would operate only on the proportionate part of these costs.
It is worth pointing out that this proposal is not the same as that for contracting out advice and assistance. There contracted out advice and assistance under Part II will replace advice and assistance under Part III. Here the contracts will merely be a different way of providing legal aid under Part IV. For contracted out advice and assistance, things like eligibility conditions will be spelt out in the contract. Here, unless specifically changed by means of the powers in Clause 32(2)(f), the normal means and merits test would apply, as would the normal provisions on the award of costs.
The important point to bear in mind is that this is a variant on civil legal aid rather than a replacement for it. The essential difference is that in these cases the applicant would be directed to the solicitor under contract to the board, thus ensuring proper co-ordination of all the relevant cases.
There will obviously be a great deal of detailed work for the Legal Aid Board to do on the administration arrangements for the contracting system. I believe it represents a useful way forward, not only for multi-party actions, but also for civil legal aid generally where it might well be both appropriate and cost-effective to establish contractual arrangements for handling certain categories of work. For example, apart from the multi-party type of case that we have perhaps been thinking about primarily the kind of situation which the noble Lord, Lord Allen of Abbeydale, figured in relation to the development risk defence might be one that would be appropriate for treatment under this kind of provision.
I have endeavoured to meet the prescription that the noble Lord, Lord Mishcon, laid down in Committee. He said that he did not want the Lord Chancellor to say that he would go away and consider this, then initiate some kind of study and many years later possibly come back with something. He said that he wanted something done now.
When I get orders like that, if I can meet them I try to do so. It is quite plain to me from what I know about the position that it is quite out of the question for any kind of rules relating to class actions to be formulated in the timescale that the noble Lord has in mind. Therefore the best that can be done—I believe it is quite an improvement and quite a step forward—is to introduce the possibility of flexibility
22
into the legal aid arrangements, which would provide for the strength from unity which this kind of amendment provides.
In my judgment it is not appropriate in the Legal Aid Bill to seek to introduce procedural adjustments of a general character for the court. That is something for other legislation and for the rules of court themselves to provide. I am considering as an ancillary to that whether something should be done to consider further the idea of the class action.
In a sense, if this works it makes less necessary the class action concept, because in this it would be possible at least on the merits of the matter for a case to go forward that would take forward the interests of a large number of people together, whereas the class action requires in effect that a person is taking the whole of a class forward while there is only one nominal plaintiff. So it may be that the strict idea of the class action, which is I think current in the United States, might not be so necessary here if this system which I have sought to describe were to work.
There are further detailed amendments which seek to work out this scheme and these details are all self-explanatory as elaborations of the idea which I have explained. I beg to move.
4 p.m.
Lord Mishcon: My Lords, my only respectful quarrel with the noble and learned Lord is that he has paraphrased precatory words into making them mandatory. I prayed him not to inquire further into this matter and so delay some kind of remedy. I would never do anything else other than that. Certainly in the light of the century which he scored against me by way of a majority on the last amendment, it is necessary for me to be extra humble.
We are grateful to the noble and learned Lord for having taken this problem very much on board and for having conveyed it into this Bill now by way of an amendment in a way which certainly goes quite a distance in dealing with a problem which we ventured to bring before your Lordships at previous stages of the Bill.
As the noble and learned Lord said, there is a grave injustice to which the Master of the Rolls drew attention very recently—I quoted him rather extensively in Committee and I shall not do so again—where one gets an action in the courts with a number of plaintiffs involved, with the same issues in regard to liability but obviously different issues in regard to damages very often, and where of necessity one selects, from the point of view of contributions to the legal aid fund and the financial burden that might fall, a plaintiff who does not in fact because of financial means become liable to make any contributions or very small ones. They are known as lead actions.
The injustice, which was emphasised in the recent pronouncement of the Master of the Rolls, is that when that plaintiff is successful the legal aid fund pounces upon any damages that might be awarded in that case in order to satisfy the costs. That poor plaintiff may well find that every penny of the damages awarded is taken in fighting the case, which

23
may have been fought on behalf of a great number of people who had expert evidence called and so on. In that context I have in mind the recent Opren case.
We brought that point to the attention of the noble and learned Lord, who bravely wrestled with the problem (if that is not a mixed metaphor) and came forward with this solution. If one looks at Amendment No. 11, it will be seen that the Law Society also tried to wrestle with the problem and deal with the perfectly just criticism of the noble and learned Lord the Lord Chancellor; namely, that trying to secure a class action within the boundaries of the Legal Aid Bill when class actions have not yet been brought into our judicial system and procedure is—to use the noble and learned Lord's phrase—putting the cart before the horse.
We considered the matter and settled on something very different from a class action. We utilised an existing procedure under Order 15, Rule 12 of the Rules of the Supreme Court, which states:
"Where numerous persons have the same interest in any proceedings … the proceedings may be begun and, unless the court otherwise orders, continued by or against any one or more of them as representing all except one or more of them".
Taking advantage of that rule, we tried to introduce what we thought was a fairly easy procedural concept; namely, that one of Her Majesty's judges in the High Court, nominated by the Lord Chief Justice if he was not able to deal with the matter himself, would issue a certificate in an appropriate case. That certificate would result not only in what perhaps I may call a representative action being brought, subject to the directions of the court, but would also rule out the question of the statutory charge in such circumstances. We thought that that was a very good way of getting over the problem.
The amendment of the noble and learned Lord deals with the problem in rather a different way. To describe it in simple language, it provides for a contract system with a firm of solicitors, who presumably are mentioned in a specific list and who are nominated to act in that matter. The costs are kept down by those solicitors, who are presumably acting for a number of people who have similar cases, and by contract the statutory charge provisions are either varied or dealt with in some way by agreement. That agreement, of course, will be with the Legal Aid Board.
We considered that amendment and, frankly, we found certain disadvantages. From a professional point of view there are two difficulties. First, how are those solicitors to be selected? Are they to be selected by choice, by tender, or in what way? It seems to be a little undesirable, whichever way they are chosen. However, of far more importance is the fact that the proposed amendment does away with the principle of the person who is ill being able to a large extent to choose his or her general practitioner—the person who thinks he suffers from some malady in regard to the law or an injustice that he wants to put right is robbed of the opportunity to choose his own lawyer. That is the first difficulty that this amendment presents and it is one which is not presented in our amendment.
24
The second difficulty is that very often the Government themselves are concerned in such actions. Indeed, a government medical board was concerned in the Opren case. To the public the Legal Aid Board seems like a government institution. Its members are appointed by the Lord Chancellor and, as I said, it appears to be a government agency. If that government agency turns down a request of this kind, is it not somewhat inappropriate that the Legal Aid Board and not a court should make the decision?
Stemming from that argument is another. Is the Legal Aid Board, which contains as a minimum a couple of solicitors and a couple of barristers, a suitable body to look into the complicated issues that may be involved and give directions for a contract of this kind to be entered into? Is it an appropriate body to look into the issues and decide whether there is a good case and who may be the appropriate people to be involved in it? One would have thought that the court was very appropriately the tribunal to deal with very difficult matters of that kind and give appropriate directions.
The noble and learned Lord said that there was a great desire to deal with this problem in some way and to deal with it quickly. I immediately salute that sentiment and acknowledge that he has produced a partial solution—with the disadvantages that I have mentioned—which does deal with the matter quickly. In opposing the amendment one puts back a possible solution and delays it. Moreover, one takes the risk of whether the alternative procedure adopted in Amendment No. 11 will be accepted by your Lordships. Rather than run that risk I believe that the appropriate course to take, which may commend itself to the House, is not to oppose the amendment of the noble and learned Lord and in due course not to move Amendment No. 11, to which I have already spoken. Perhaps then the disadvantages that I have respectfully pointed out to the noble and learned Lord will be considered and no doubt another place can take a decision upon these matters when this Bill, as will inevitably happen, goes to that Chamber. I believe that to be the best way of dealing with the matter in order to ensure that at all events some solution emerges from the Bill as a result of a situation which nobody wants to see continue and which is unjust from the point of view of the class of cases about which we have been talking.
Lord Morton of Shuna: My Lords, I am sorry to take up more of your Lordships time but I do so merely in order to ask a question; namely, is it the Government's intention to make similar provisions for Scotland for these multi-party or class actions? If so, would this Bill not be the proper vehicle for that course, because in Clause 42 and Schedule 4 there are amendments proposed to the Scottish Legal Aid Act? It would appear appropriate that the two countries and the two jurisdictions should go hand in hand on this matter, as certain of these cases, such as drug cases and vaccine damage cases, have the same point on both sides of the border, and there is perhaps a waste of money if two sets of actions are undertaken.
Lord Renton: My Lords, as my noble and learned friend—to whom we are all grateful for this

25
initiative—mentioned, this is a new departure in our legal procedures. It is a very important and very great one. I hope that I am not being disrespectful to your Lordships' House when I say that in a way we are fortunate that we can consider such amendments at Third Reading. That is not possible in another place where such an amendment, if it came up at Report stage, would be the subject of a recommittal Motion; it would be necessary to be back in Committee just for the purpose of this one item. That might have been an advantage but, as it is, we are confined to one speech and cannot explore the matter much further. It is with that in mind that I can make only very general comments.
My first general comment is that, as my noble and learned friend pointed out, this splendid new procedure is to be introduced for legal aid purposes only. At any rate there has to be a legal aid element; as I understand it at least one of the plaintiffs has to be a legally aided person before this procedure can come into force. Again, as my noble and learned friend mentioned, for actions on product liability there is a very strong case. That is an area in which the noble Lord, Lord Allen of Abbeydale, has shown such a great interest. He presided over the Committee and several times addressed your Lordships' House on the subject. There may be other strong cases for making this new procedure a general part of our rules of procedure for civil actions. That would also be a very welcome departure.
My next point is a matter purely of the use of words. I believe that these actions first became known in the United States as "class actions". I consider that to be a misnomer. In this context it is not a statutory term in this country. The expression "class" does not appear in the amendments tabled by my noble and learned friend and I do not consider that the expression "class action" is a good description. We use the word "class" in this country to describe differences between social classes and in relation to education, and we talk about classifications of all kinds of things. However, the people who will get together in such actions in my opinion are not well described as a class; they are better described as a group.
At one moment my noble and learned friend used the expression "group" in passing. I also noticed that in an introductory letter which was sent to some noble Lords, the Law Society referred to a "group" rather than a "class". Therefore, I hope that before it becomes consolidated into our legal practice, procedures and thinking we can get away from the word "class" to describe such actions and describe them as "group actions".
Lord Goodman: My Lords, perhaps I may venture to introduce a little reality into this discussion, if it is not impertinent to suggest it. My noble friend Lord Mishcon, who has practised law, as I have for something over 50 years, must realise that it is unreal to suggest that anyone has total choice of his lawyer. To begin with the very best solicitors are not on the legal aid panel. When I say the very best I mean the most prestigious and certainly the most expensive. I think the question of perfection is at the root of a
26
great deal of trouble in our legal system. Is it not better that someone should be able to proceed with a solicitor chosen for him than as so often happens, week after week, day after day, to have to advise people that they cannot be represented at all because they cannot afford the risks of an action?
About two years ago I was called upon to represent some 40 or 50 doctors who unfortunately had all been poisoned at a professional dinner—to them it was not a laughing matter although it has a certain element of humour. Not one of those doctors was eligible for legal aid and not one of them had the means to prosecute an action on his own account. That is the kind of situation with which one has to deal. I think that only a perfectionist would say that it is a terrible thing not to be able to select your own solicitor. It is an even more terrible thing not to be able to bring an action at all to redeem a serious loss. It is on that score that I strongly support this amendment, which appears to me to have a note of realism.
4.15 p.m.
The Lord Chancellor: My Lords, first of all perhaps I may say that I referred to a "class action" simply because that was the way in which the problem was originally introduced. The phrase "class action" is nowhere used in these amendments and I certainly did not intend to use it to describe what is covered by the amendments.
Secondly, these amendments do not require that the persons concerned should necessarily be eligible for legal aid under the ordinary criteria. There is power to alter the criteria by reference to particular classes of case which could be used in conjunction with that power. The noble Lord, Lord Goodman, has touched the heart of this amendment. I am particularly grateful that someone of his great experience should support the amendment in this way. When thinking round the problem I felt that I was moving into an area in which theoretical difficulties about choice might be thought to be involved. I agree thoroughly with the view that one has to be realistic about this matter. I believe that it may well be possible to implement these amendments in a way, for example, that would cope with the type of case to which the noble Lord referred.
As I said earlier, I think that this amendment could also be used to cope with the kind of case which the noble Lord, Lord Allen of Abbeydale, raised—I think at Report stage—in relation to the development risks defence.
Perhaps I may turn to what I think it would be fair to say was the hesitation of the noble Lord, Lord Mishcon, in accepting these amendments. The first point related to choice. The noble Lord, Lord Goodman, has dealt with that in a way to which I would not presume to add.
His second doubt related to the fact that many of these actions would be against the Government and the possibility that the Legal Aid Board would be seen as involving a government agency in deciding cases against the Government. I hope that the stature of those who will be appointed to the Legal Aid Board will ensure that they are independent. The Bill

27
makes it clear that the Government will have no right to intervene in the decision whether to grant or to reject any particular application. The day-to-day running of the legal aid system in so far as it is within the board's power—and this amendment deals with that particular area—will not be subject to interference by the Government. It would be quite wrong that the Government could say whether legal aid was to be granted in any case and particularly in a case that was against the Government. If that were a good point it would apply to every type of case against the Government. There are many cases in which legal aid is applied for in cases against the Government which are quite outside the scope of this particular amendment. If that was a good point it would prove much too much.
The third matter was that the Legal Aid Board, with a minimum of two solicitors and a minimum of two barristers on it, is unlikely to have the kind of expertise to understand what sort of arrangement should be made in this type of case. That is a criticism in advance of the people who are to run the Legal Aid Board which I hope will be completely disproved by the event. So I certainly hope that we shall be able to secure persons to take on the responsibility of membership of the Legal Aid Board who have the necessary qualities to take the right decisions on matters of this kind.
Possibly on a slightly divergent note from that, the noble Lord, Lord Morton of Shuna, asked whether the privilege of these amendments will be extended to Scotland. That is a matter on which I have no doubt that my noble and learned friend the Lord Advocate will have a point of view, and it is one which I am sure those responsible for legal aid in Scotland will consider.
I think I also detected in what the noble Lord, Lord Morton of Shuna, asked, the question whether, if an action could be raised on both sides of the Border, it would not be wise to have only one, in which case would it be the Legal Aid Board or the Scottish Legal Aid Board which should have the initiative. I hope that in this we shall have an outstanding example of cross-border co-operation if, in fact, these powers are granted to the Scottish Legal Aid Board. To those of your Lordships who have welcomed this amendment—and I think that probably applies to all who have spoken, though perhaps the noble Lord, Lord Mishcon, had reservations—I should like to express my gratitude.
Lord Mishcon: My Lords, before the noble and learned Lord sits down and with the permission of the House, he has perfectly fairly expressed the view that I put to the House that it would be desirable, subject to what I said, that this amendment should be agreed to. I know he will forgive me if I say that he did not quite interpret my proper views, possibly because I did not express them as I should have done, when I talked about difficulties which would confront the Legal Aid Board which would be more appropriately dealt with by a court. I was dealing with a separation of issues, seeing whether there were common issues and giving certain directions which quite obviously
28
would be more appropriately given by the court. Nothing that I said was meant to be at all disrespectful to the personalities who would be making up the judicial board and their competence. I only wanted to make that abundantly clear before the amendment was put to the House.
The Lord Chancellor: My Lords, I am very grateful to the noble Lord. Obviously I was seeking to summarise as fairly as I could what he had said and I had made rather an inadequate note of it. So if it was not entirely fair, that is my fault, not his. One can see that procedural directions might well be required from the court in actions of this kind and nothing in this amendment is intended to preclude that. As to whether there are common issues in actions, I should have thought that that was something which the Legal Aid Board would be capable of identifying, and it is that kind of question that it might have to face.
I think the noble Lord, Lord Mishcon, indicated that he might not be proposing his Amendment No. 11 today. Obviously there are a number of difficulties about his Amendment No. 11 which I could enlarge upon. But if he is not minded to move it today, I could perhaps reserve my statement on those difficulties to some more appropriate occasion.
On Question, amendment agreed to.
Clause 7 [Scope of this Part]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 6:
Page 6, line 33. after ("Part") insert ("including making a will or other instrument").
The noble and learned Lord said: My Lords, this amendment proposes to make an addition to Clause 7 of the Bill by making provision that advice and assistance under the green form scheme shall also be provided for the making of a will or other instrument. It is an important part, alas, in this finite world, of our human duties, if we are responsible, to make wills. For those who do not, the result is often very unfortunate for the survivors—
Lord Hailsham of Saint Marylebone: So it is if they make them.
Lord Elwyn-Jones: And sometimes it is if they make them, my Lords. That is why it is important, if the noble and learned Lord will allow me, that they should get good advice. He has made my point for me, as he often does in his interruptions—not always intentionally perhaps. But there is need for the provision of legal advice in the making of wills. I have little doubt that the noble and learned Lord will be greatly impressed by the information, which he no doubt knows already, that in the Legal Aid (Scotland) Act there is specific provision in Part II, dealing with advice and assistance, as to any steps which a person seeking advice might appropriately take with regard to making a will or other instruments.
So making a will is expressly provided for there, for good reason, even though I understand from my noble friend, who speaks with great expertise in these matters, that in Scotland making a will is somewhat simpler than it is in England. All the more reason,

29
therefore, for making provision for legal advice in the making of a will in this part of the United Kingdom. I do not think I need dwell at any length upon this matter. It is a clear, simple but, if I may say so, desirable amendment to make to the Bill. My Lords, I beg to move.
Lord Morris: My Lords, this amendment will be particularly attractive if the person making a will makes provision in that will to leave a sum of money to reimburse the Legal Aid Board for the cost of the advice received from that body.
4.30 p.m.
The Lord Chancellor: My Lords, before preparing the White Paper, consideration was given to the effective use of the money available for legal aid, and one of the areas that was considered was that of making a will or other instrument. It was thought—and I entirely agree with this approach—that in the generality of cases, if one was making a will disposing of property, on the whole that property should bear the cost of the will.
There are, however, some exceptional cases which were referred to in Committee stage. I think at that time the amendment under consideration was being moved by the noble Lord, Lord Mishcon. He pointed to some particular cases where a will might be made which had the effect, for example, in a single parent family of nominating someone to look after the child or children in the event of the death of the single parent. There might not be any property in question but it might be very important that someone should have that responsibility, as nominated by the parent. Therefore, I recognise that there may be exceptions to the generality proposed in the White Paper.
This is a matter which is best dealt with in regulations. Regulations under the relevent power will now require, as a result of the effort of the noble and learned Lord, Lord Elwyn-Jones and others, an affirmative resolution. Therefore, your Lordships would be furnished with the detail and would have an opportunity to consider that detail before the provisions came into force.
I am bound to say that this amendment, which appears to have the purpose of precluding giving effect to the proposal in the White Paper, is not acceptable. I am certainly open to considering exceptions and circumstances where such a rule as we had proposed in the White Paper might have a harsh effect and to limit the proposal so as to exclude such cases. However, I certainly cannot accept that it would be wise to make it compulsory in all circumstances to include advice and assistance for this purpose without exception, which is what I understand the purpose of this amendment to be. I therefore have to suggest to your Lordships that this amendment should not be accepted.
Lord Elwyn-Jones: My Lords, it is naturally somewhat disappointing to receive that reply. The Scottish provision is, I understand, without exception. I do not quite see why the circumstances south of the Border are so different that help in the making of a will is not needed in the South as well as
30
north of the Border. It is a trap stage in the life of so many people. The noble and learned Lord. Lord Hailsham (more in jest than in gravity I think) suggested that getting a lawyer to make a will was as capable of producing confusion. Nevertheless, assistance is greatly needed.
I used to practise the law in the part of these islands where will disputes were very exciting. I will not say they were lucrative, but an important part of a lawyer's existence. The frequency with which lack of testamentary capacity was raised, for instance, was very great indeed.
However, this is an important part of responsibility and I am accordingly extremely disappointed that the Lord Chancellor is not disposed to make a change. I do not know whether, by talking on, I might be able to persuade him to change his mind, but an indication suggests that is not so. I cannot say that I would go to the stake about the amendment; but in the unfortunate circumstances of the adamant refusal of the noble and learned Lord, I can only hope that when the matter is considered in another place, for once they will show a better example to us than we have been able to give to them. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Availability of and payment jar, advice and assistance]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 7:
Page 7, line 12, leave out subsection (3) and insert—
("(3) Assistance by way of representation under this Part shall not be given without the approval of the Board, except in proceedings before the Social Security Commissioners, subject to any other prescribed exceptions.").
The noble and learned Lord said: My Lords, this is an amendment which I hope may attract the approval of the noble and learned Lord, bearing in mind that he has indicated in Committee that he takes a sympathetic view of the provisions of advice and assistance by way of representation under the green form scheme in proceedings before the Social Security Commissioners. Those commissioners are the body to whom appeals on a point of law are referred from the Social Security Appeals Tribunal. They are dealing, by virtue of the work that they have to do, with complex law. Indeed, the noble and learned Lord the Lord Chancellor himself indicated in Committee that he felt that the Social Security Commissioners was a tribunal which should have high priority in having some form of legal representation. That was perhaps at a time when we were seeking full legal aid and advice, but it may well be that the noble and learned Lord will be disposed to accept the amendment. In case he has not already decided that (and as I do not have another opportunity to speak as I understand it) I shall say a little more about this.
The noble and learned Lord said that the commissioners are at the very top layer of the statutory authorities in social security. At the Committee stage I think he was inclined to favour representation by means of assistance. As things

31
stand, in any proceedings before the Social Security Commissioners, the DHSS is always represented by lawyers with particular expertise in that field of law. One asks what chance an unrepresented claimant would have to pursue his or her case against the knowledge and expertise of lawyers so instructed by the DHSS.
My understanding is that extension of ABWOR to the proceedings would cost very little. The appeal to commissioners applies on points of law only and there is no question of lengthy witness proceedings. In the circumstances therefore, and in view of the crucial importance of this matter to the potential claimants who will be from the poorest section of the community, least able to afford assistance and most deserving of it, I hope that the noble and learned Lord will agree to this modest proposal. I beg to move.
Lord Wigoder: My Lords, might I support the amendment moved by the noble and learned Lord, Lord Elwyn-Jones. I do so on the grounds, as he has indicated, that if there is to be any extension of legal assistance to cover people appearing before any tribunals, then the Social Security Commissioners are clearly the first tribunal that should be borne in mind for a possible extension, as the noble and learned Lord the Lord Chancellor himself said on a previous occasion.
I support the proposal that it should be so extended, first, because the proceedings before the Social Security commissioners are frequently very complex; and, secondly, because there is very often case law involved which it is difficult for an unrepresented applicant to discover for himself. Indeed, it is a matter of great difficulty for a represented applicant to discover, unless the lawyer is a person who is accustomed to appearing before these tribunals and knows exactly where to find authorities.
In those circumstances, I hope the noble and learned Lord the Lord Chancellor will agree that in principle it is desirable that some steps should now be taken to extend representation to this particular tribunal.
Lord Renton: My Lords, I must say that I have some doubts about the amendment. I agree that the proceedings before the Social Security Commissioners can sometimes be complex, but so can many other proceedings. I should have thought that within the general framework of the Bill—if one may dare to use such an expression—it would be wrong to make an exception just for that particular type of proceeding. We are here talking about advice and assistance, not representation; and in that connection I think we need to consider subsection (4) of Clause 8, which says:
"Approval under subsection (3) above may be given with or without limitations and may be amended, withdrawn or revoked."
I think that is taken from the previous legislation and I do not think that there was any adverse comment on it at any earlier stage of the proceedings in this House.
32
It seems to me that assistance by way of representation—because that is what the amendment refers to—would seem to be outside the scope of Clause 8. In any event, even though it is considered to be within the scope of Clause 8, there does not seem to be a strong reason for differentiating it from the kind of advice, assistance or indeed representation that might apply to any other type of proceeding. Therefore, I should be surprised if my noble and learned friend were to accept the amendment.
The Lord Chancellor: My Lords, I do not propose to surprise my noble friend on this occasion. The Social Security Commissioners in certain circumstances appear to me, as I said at Committee and repeated on Report, to be in a situation where perhaps a high priority exists if there is to be an extension of the scope of legal aid. On the other hand, a research project has been commissioned by my predecessors, to be carried out on behalf of the department, into the effect of representation in tribunals fairly generally. It is also possible that the board itself might have a view on this subject.
There is also of course the question of resources to be borne in mind. Your Lordships may take it, as I said at the outset, that I personally am very sympathetic to extending some form of legal aid to hearings before the Social Security Commissioners, but I do not believe the time is ripe to put that into statutory form now. It may well be that at some time in the future I may have the privilege of doing something about this, but there are many other competing situations so I do not hold out any particular promise as regards that matter. However, I certainly do not believe it would be right to do it in this way at this time. If an opportunity offered, the framework is sufficiently flexible to enable the extension to be made and I hope that your Lordships might agree to leave the matter on that basis.
Lord Elwyn-Jones: My Lords, confident though I am in the long survival of the noble and learned Lord, time is of the essence and one would like not to have to wait. My information is, in regard to the research that was referred to by the noble Lord, that it does not cover proceedings before the Social Security Commissioners. Perhaps the noble and learned Lord will examine that when these proceedings are over.
The submission which I make—and I am grateful for the support from the Alliance Benches—covers what we conceive to be an important omission in the present provision of legal advice to those in need. In view of the basic goodwill expressed by the noble and learned Lord the Lord Chancellor, and his own earlier view that Social Security Commissioners are a tribunal which has high priority in having some form of legal representation before it, the time to improve the law in this important field is now. For that reason, I think it is desirable to test the opinion of the House upon this matter.
4.45 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 63; Not-Contents, 120.

DIVISION NO. 2

CONTENTS

Airedale, L.

Jay, L.

Ardwiek, L.

Jeger, B.

Attlee, E.

Kilmarnock, L.

Aylestone, L.

Listowel, E.

Beaumont of Whitley, L.

Llewelyn-Davies of Hastoe, B.

Birk, B.

Longford, E.

Bonham-Carter, L.

McCarthy, L.

Boston of Faversham, L.

McIntosh of Haringey, L.

Bruce of Donington, L.

McNair, L.

Carmichael of Kelvingrove, L.

Meston, L.

Carter, L.

Milford, L.

Cledwyn of Penrhos, L.

Morton of Shuna, L.

Cocks of Hartcliffe, L.

Ogmore, L.

Davies of Penrhys, L.

Ponsonby of Shulbrede, L. [Teller.]

Dean of Beswick, L.

Diamond, L.

Raglan, L.

Donaldson of Kingsbridge, L.

Rathcreedan, L.

Elwyn-Jones, L.

Ross of Marnock, L.

Ewart-Biggs, B.

Serota, B.

Ezra, L.

Stewart of Fulham, L.

Falkland, V.

Stoddart of Swindon, L.

Fisher of Rednal, B.

Strabolgi, L.

Gallacher, L.

Taylor of Blackburn, L.

Galpern, L,

Taylor of Mansfield, L.

Graham of Edmonton, L. [Teller.]

Tordoff, L.

Turner of Camden, B.

Grey, E.

Underhill, L.

Hampton, L.

Wallace of Coslany, L.

Harris of Greenwich, L.

Walston, L.

Houghton of Sowerby, L.

White, B.

Hughes, L.

Wigoder, L.

Hutchinson of Lullington, L.

Williams of Elvel, L.

Irving of Dartford, L.

NOT-CONTENTS

Airey of Abingdon, B.

Fraser of Kilmorack, L.

Allen of Abbeydale, L.

Gainsborough, E.

Allenby of Megiddo, V.

Gardner of Parkes, B.

Allerton, L.

Gray of Contin, L.

Ampthill, L.

Gridley, L.

Arran, E.

Haddington, E.

Beaverbrook, L.

Hailsham of Saint Marylebone, L.

Belhaven and Stenton, L.

Beloff, L.

Harmar-Nicholls, L.

Belstead, L.

Hayter, L.

Benson, L.

Hesketh, L.

Bessborough, E.

Hives, L.

Blatch, B.

Holderness, L.

Blyth, L.

Hood, V.

Boyd-Carpenter, L.

Hooper, B.

Brabazon of Tara, L.

Hylton-Foster, B.

Brougham and Vaux, L.

Iddesleigh, E.

Bruce-Gardyne, L.

Ironside, L.

Caithness, E.

Johnston of Rockport, L.

Cameron of Lochbroom, L.

Joseph, L.

Campbell of Croy, L.

Kaberry of Adel, L.

Carnegy of Lour, B.

Killearn, L.

Carnock, L.

Kimball, L.

Coleraine, L.

Lane-Fox, B.

Cottesloe, L.

Lauderdale, E.

Cowley, E.

Lawrence, L.

Craigmyle, L.

Long, V.

Cullen of Ashbourne, L.

Luke, L.

Davidson, V. [Teller.]

Mackay of Clashfern, L.

Denham, L. [Teller.]

Malmesbury, E.

Digby, L.

Mansfield, E.

Dundee, E.

Manton, L.

Eccles, V.

Margadale, L.

Ellenborough, L.

Marley, L.

Erne, E.

Massereene and Ferrard, V.

Faithfull, B.

Merrivale, L.

Ferrers, E.

Mersey, V.

34

Milverton, L.

Seebohm, L.

Moran, L.

Sempill, Ly.

Morris, L.

Shannon, E.

Mottistone, L.

Shaughnessy, L.

Mountgarret, V.

Simon of Glaisdale, L.

Mowbray and Stourton, L.

Skelmersdale, L.

Munster, E.

Slim, V.

Murton of Lindisfarne, L.

Somers, L.

Nelson, E.

Stockton, E.

Newall, L.

Strathcona and Mount Royal, L.

Norrie, L.

Nugent of Guildford, L.

Strathspey, L.

O'Brien of Lothbury, L.

Sudeley, L.

Orkney, E.

Terrington, L.

Oxfuird, V.

Teviot, L.

Plummer of St. Marylebone, L.

Teynham, L.

Thomas of Gwydir, L.

Porritt, L.

Trumpington, B.

Renton, L.

Vaux of Harrowden, L.

Ridley, V.

Waldegrave, E.

Rippon of Hexham, L.

Westbury, L.

Rodney, L.

Wolfson, L.

St. Davids, V.

Wyatt of Weeford, L.

Saltoun of Abernethy, Ly.

Wynford, L.

Sandford, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.56 p.m.
Clause 14 [Availability of, and payment for, representation under this Part]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 8 to 10:
Page 11, line 18, at end insert—
("( ) Where the case is one in which the Board has power to secure the provision of representation under this Part by means of contracts with other persons, the grant of representation under this Part may be limited under subsection (4) above as regards the persons who may represent the legally assisted person to representation only in pursuance of a contract made with the Board.")
Page 11, line 23, at end insert—
("(5A) The Board's obligation under subsection (5) above is—

(a) in the case of representation provided in pursuance of a contract between the Board and the legally assisted person's solicitor, to make such payments as are due under the contract; and

(b) in the case of representation provided otherwise than in pursuance of such a contract, to make such payments as are authorised by regulations.")

Clause 15, page 12, line 27, at end insert—
("(10) Where a legally assisted person has been represented in any proceedings in pursuance of a contract made with the Board on terms which do not differentiate between the remuneration for this and other cases, the reference in subsection (9)(a) above to the sums paid or payable by the Board on his account in respect of the proceedings shall be construed as a reference to such part of the remuneration payable under the contract as may be specified in writing by the Board.")
The noble and learned Lord said: My Lords, I have spoken to Amendments Nos 8 to 10 which carry out the policy I outlined in connection with Amendment No. 5. With the leave of the House, I beg to move these amendments en bloc.
On Question, amendments agreed to.
[Amendment No. 11 not moved.]
Clause 20 [Availability of representation under this Part]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 12:
Page 16, line 13, at end insert ("and section (Criteria for grant of representation for trial proceedings) applies for the interpretation of this subsection in relation to the proceedings to which that section applies.")
The noble and learned Lord said: My Lords, at the Report stage I indicated that I would agree to incorporate into the Bill the "Widgery criteria" as they have been called in affectionate remembrance of the Lord Chief Justice. Amendments Nos 12 and 14 have that effect. However, Amendment No. 14 has been drafted by a parliamentary counsel to incorporate the Widgery criteria in language judged to be appropriate for primary legislation. That was not what the Lord Chief Justice had in mind when he laid out the criteria. I have also incorporated a power to vary the factors in line with the Scottish Act in the light of experience. I beg to move.
Lord Morton of Shuna: My Lords, we are grateful to the noble and learned Lord for tabling these two amendments. In the circumstances, we shall not move Amendment No. 13.
On Question, amendment agreed to.
[Amendment No. 13 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 14:
After Clause 20, insert the following new clause:
("Criteria for grant of representation for trial proceedings.
.—(1) This section applies to proceedings by way of a trial by or before a magistrates' court or the Crown Court or on an appeal to the Crown Court against a person's conviction.
(2) The factors to be taken into account by a competent authority in determining whether it is in the interests of justice that representation be granted for the purposes of proceedings to which this section applies to an accused shall include the following—

(a) the offence is such that if proved it is likely that the court would impose a sentence which would deprive the accused of his liberty or lead to loss of his livelihood or serious damage to his reputation;

(b) the determination of the case may involve consideration of a substantial question of law;

(c) the accused may be unable to understand the proceedings or to state his own case because of his inadequate knowledge of English, mental illness or other mental or physical disability;

(d) the nature of the defence is such as to involve the tracing and interviewing of witnesses or expert cross-examination of witness for the prosecution;

(e) it is in the interests of someone other than the accused that the accused be represented.

(3) The Lord Chancellor may, by order, vary the factors listed in subsection (2) above by amending factors in the list or by adding new factors to the list.").
On Question, amendment agreed to.
Clause 25 [Representation in care proceedings: scope and competent authorities]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 15 to 25:
Page 20, line 18, leave out ("before a juvenile court").
Page 20, line 20, leave out ("before a juvenile court").
Page 20, line 22, leave out ("and").
Page 20, line 23, leave out ("on appeal before the Crown Court").
Page 20, line 25, at end insert—
("(d) proceedings under section 3 of the Children and Young Persons Act 1963 (application by parent or guardian for an order directing a local authority to take proceedings under section I of the 1969 Act);
(e) proceedings under section 3, 5 or 67(2) of the 1980 Act (proceedings in connection with resolutions by local authorities with respect to the assumption of parental rights and duties); and
(f) proceedings under Part IA of the 1980 Act (access orders);").
Page 20, line 32, leave out ("courts") and insert ("authorities").
Page 20, line 37, at end insert—
("(c) as respects apppeals from decisions of juvenile courts to the High Court, the Board;
(d) as respects proceedings before a justice of the peace under section 12E of the 1980 Act (applications for emergency orders), the justice of the peace.").
Page 20, line 40, after ("of") insert ("any").
Page 20, line 40, leave out ("before any court").
Page 20, line 43, leave out ("court") and insert ("authority").
Clause 26, page 21, line 5, leave out from first ("to") to end of line 13 and insert ("any person, other than a local authority, who is a party to the proceedings.").
The noble and learned Lord said: My Lords, Amendments Nos. 15 to 25 are detailed amendments giving effect to the policy I described when speaking to Amendment No. 14. With the leave of the House, I beg to move the amendments en bloc.
On Question, amendments agreed to.
Clause 29 [Act not generally to affect position of legal representatives or other parties]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 26 to 35.
Page 23, line 1, leave out from beginning to ("shall") in line 3 and insert—
("(2) A person who provides advice, assistance or representation under this Act").
Page 23, line 4, after ("is") insert ("made by the Board or").
Page 23, line 8, at end insert (", arising otherwise than under a contract,").
Clause 30, page 23, line 10, leave out ("subsection (2) below") and insert ("the provisions of this section").
Page 23, leave out line 14 and insert ("from among the solicitors and counsel willing to provide advice, assistance or representation under this Act.").
Page 23, line 15. leave out subsection (2) and insert—
("(2) Where the Board limits a grant of representation under Part IV to representation in pursuance of a contract made by the Board, it may, as it thinks fit, assign to the legally assisted person a solicitor or a solicitor and counsel or direct that he may only select a solicitor from among those with whom such a contract subsists.
(2A) A person's right to select his solicitor or counsel is subject, in the case of representation under Part V, to regulations under subsection (6) below.
(2B) Subsection (1) above does not confer any right of selection in relation to proceedings under section 27 for the purpose of proceedings for contempt.").
Clause 31, page 24, line 19, at end insert ("and (5A)").
Clause 32, page 25, line 44, leave out ("(f) modify this Act for") and insert ("(2A) Regulations may also modify this Act for the purposes or').
Page 26, line 1, leave out ("subsection (1) and (2)") and insert ("subsection (2A)").
Page 26, line 2, leave out ("under this section may") and insert ("may also").
The noble and learned Lord said: My Lords, Amendments Nos. 26 to 35 are tabled in pursuance of the policy I sought to describe in relation to

37
Amendment No. 5. With the leave of the House I beg to move the amendments en bloc.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 36 and 37:
Page 26, line 37, at end insert ("and").
Page 26, leave out lines 39 to 42.
The noble and learned Lord said: My Lords, Amendments Nos. 36 and 37 are brought forward in the light of my consideration of comments made at the Report stage by a number of your Lordships as regards a similar amendment moved by the noble Lord, Lord Benson. He found the wording of paragraph (g) to be obscure. I sought to explain the matter at Report stage. Having considered that explanation and the fact that not only the noble Lord, Lord Benson, but also my noble and learned friends Lord Ackner and Lord Griffiths found the wording obscure—although that is, I believe a less harsh description of the amendment than the one they used—I have considered whether it is absolutely essential to retain the paragraph. Having taken advice, I have concluded that it is not necessary to retain the paragraph. Therefore, Amendments Nos. 36 and 37 are intended to delete it from the clause. I beg to move.
Lord Ackner: My Lords, I am grateful to my noble and learned friend the Lord Chancellor for removing that paragraph. My noble friend Lord Benson did not expect the other amendments to be moved so fast. As he was the mover of the amendments on Report, he intended to be here to express his gratitude. However, I shall do so now on behalf of us both.
On Question, amendments agreed to.
Clause 33 [Advisory Committee]:
5 p.m.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 38, 39 and 40:
Page 27, line 12, after ("recommendations") insert ("or furnish comments").
Page 27, line 23, at end insert—
("(3A) It shall be the duty of the advisory committee to provide to the Lord Chancellor, as soon as possible after 31st March in each year, a report containing any advice, recommendations or comments of theirs on questions or matters arising during the preceding twelve months.").
Page 27, line 25, leave out from ("any") to end of line 27 and insert ("the annual report of the committee made to him under subsection (3A) above.").
The noble and learned Lord said: My Lords, amendments Nos. 38, 39 and 40 are intended to give effect to considerations which I have had as a result of matters raised in the course of the discussions on this Bill about the functions of the Legal Aid Advisory Committee and also as a result of a meeting which I had with it at its request, I think I am right in saying, during the course of the Bill's proceedings when we had a very constructive discussion.
It has been my view that to have flexibility when the committee presented its report would be an advantage, but having discussed the matter the
38
committee felt that there was merit in having an annual timetable. I feel it right to give effect to that and also to make it clear that whatever is said in the report will be laid before Parliament. Therefore, Amendments Nos. 38, 39 and 40 are intended to give effect to that. I beg to move Amendments Nos. 38, 39 and 40 en bloc.
Baroness Faithfull: My Lords, I should like to support Amendments Nos. 38, 39 and 40 and to say how much the committee is appreciated by all the voluntary organisations, particularly the National Consumer Council and the Citizens' Advice Bureau. The committee is looked upon very much as an independent body to whom one can apply. Although the Legal Aid Board will, I am sure, do its work extremely well, it is good, at any rate to start with, to have a guarder of the guardians.
The Lord Chancellor: My Lords, I am grateful to my noble friend for her observations. I also value the work of the committee and, as I have said, I certainly intend it to remain in operation and functioning as well as hitherto, at least through the transistional provisions.
On Question, amendments agreed to.
Clause 34 [Orders and regulations: general]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 41 and 42:
Page 27, line 40, after ("2(4)") insert ("and 33(5)").
Page 27, line 43, after ("2(4)") insert ("or 33(5)").
The noble and learned Lord said: My Lords, on Report, I undertook to consider making the power to stand down the advisory committee dependent upon an instrument passed by the affirmative procedure. These amendments are intended to have that effect. Since they are so closely related, with the leave of your Lordships, I propose to move them en bloc.
Lord Renton: My Lords, I wonder whether the word "and" in line 41 should not be "or"? However, there may be a good reason for that.
The Lord Chancellor: My Lords, the noble Lord is probably correct in the circumstances. Perhaps the noble Lord will allow me to proceed with this without commitment and we can have it corrected in another place.
On Question, amendments agreed to.
Clause 36 [Restriction of disclosure of information]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 43, 44 and 45:
Page 28, line 13, after ("furnished") insert ("for the purposes of this Act").
Page 28, line 14, leave out ("for the purposes of this Act") and insert ("upon whom functions are imposed or conferred by regulations and so furnished").
Page 28, line 46, at end insert ("or a person upon whom functions are imposed or conferred as mentioned in subsection (1) above").
The noble and learned Lord said: My Lords, this relates to a matter raised in Committee by the noble Lord, Lord Mishcon, about the provisions relating to the disclosure of information. I have considered what he said and have decided to bring forward these amendments to make the position absolutely clear. The first two amendments, Amendments Nos. 43 and 44, make it clear that the clause covers only information furnished to the board or to other courts, persons or body of persons for the purposes of the Act. The third amendment corrects a defect in subsection (6). At the moment information furnished to counsel or a solicitor is defined as not being information furnished to the board. The amendment more correctly reflects the position set out in subsection (1).
I should perhaps mention, in order to allay any anxiety on the matter, that the specific example of a journalist, which the noble Lord, Lord Mishcon, raised in Committee, does not seem to fall foul of this clause even as it stands, though these amendments make that position even clearer. Since these amendments are all closely connected, with the leave of your Lordships, I propose to move them en bloc.
On Question, amendments agreed to.
Clause 38 [Adaptation of rights of indemnity in cases of advice, assistance or representation in civil proceedings]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 46:
Page 29, line 43, at end insert—
("( ) Where a person's right to be indemnified ensures for the benefit of the Board under subsection (3) above in a case where he has been represented in pursuance of a contract made with the Board on terms which do not differentiate between the remuneration for his and other cases, the reference in that subsection to any expenses incurred by the Board on his account shall be construed as a reference to such part of the remuneration payable under the contract as may be specified in writing by the Board.").
The noble and learned Lord said: My Lords, this amendment goes with Amendment No. 5 to which I have already spoken.
On Question, amendment agreed to.
Schedule 2 [Civil proceedings: scope of Part IV representation]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 47, 48 and 49:
Page 35, line 3, leave out (". section 3 of the Children and Young Persons Act 1963").
Page 35, leave out line 14.
Page 35, line 24, leave out paragraph 7.
The noble and learned Lord said: My Lords, Amendments Nos. 47,48 and 49 go with the policy to which I spoke in relation to Amendment No. 4. As they are closely connected, with your Lordships' leave, I shall move them en bloc.
On Question, amendments agreed to.
Schedule 5 [Minor and Consequential Amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 50:
Page 42, line 34, after ("14(5)") insert ("and (5A)").
The noble and learned Lord said: My Lords, this amendment goes with Amendment No. 5 to which I have already spoken. I beg to move.
On Question, amendment agreed to.
Schedule 6 [Repeals]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 51:
Page 44. line 50, at end insert—
("1986 c. 28. The Children and Young Section 3(3).") Persons (Amendment) Act 1986.
The noble and learned Lord said: My Lords, this amendment goes with Amendment No. 4 to which I have already spoken.
On Question, amendment agreed to.
An amendment (privilege) made.
The Lord Chancellor: My Lords, I beg to move, that the Bill do now pass.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, in indicating our intention not to oppose the Motion, it does not mean that it has met with our general approval. On the contrary, the Bill has perhaps proved to be more notable for its omissions than its content. The major problem that the House has had to meet is that in many respects it is an enabling Bill and we do not know what its precise shape and future content will be. The significant change is the setting up of the Legal Aid Board and that has been generally welcomed. That does not imply basic criticism and disapproval of the administration conducted by the Law Society. On the contrary, the House has acknowledged its gratitude for the valuable work done. However, the quantum of work now to be dealt with in the legal aid and advice field has increased enormously and it is right that this independent—as we hope it will be—authority should be set up.
A great deal of its value will no doubt depend upon the degree of the independence it will enjoy. It will be under rigid financial control and one of the important features that remain for the future to indicate is the readiness of the Government to provide adequate financial resources for this work. We had long debates over the financial provisions of the Bill and there was clear warning from many quarters of the House about the risk of having a second-class legal aid service with insufficient remuneration to attract those of ability and competence to conduct the work required in the courts, which is very often of a most grave character in both the criminal and civil fields.
The composition of the Legal Aid Board is as yet undecided, but much will depend upon its quality. We know that it will extend from 11 to 17 in number and we were reassured during the discussions on the Bill that there would be not only two solicitors but

41
also two representatives of the Bar on the board. What other choice will determine its composition will be at the discretion of the noble and learned Lord the Lord Chancellor, but he has indicated that a wide range of competence and ability, and representation of the community at large, will be included. We look to the realisation of the promises that it will be a reliable and independent board representing the kind of persons and bodies that ought to be represented in its administration. If possible there should be a good presence of those representing the potential consumers as well as the professional experts who will be required to manage the board and its work successfully.
I venture to say that a great deal of the content and future shape of the Bill remains uncertain, partly because of the mass of secondary legislation which the noble and learned Lord announced would be necessary and which we have not yet seen. No doubt we shall see it in due course. I would be less than gracious if I did not recognise the important changes which he has made in this field, indicating that certainly for the most important parts of the secondary legislation the affirmative resolution of both Houses will be necessary in respect of measures of importance in principle and in substance. Of course we are grateful for that important concession.
However, in my submission there has been a considerable omission in the failure to extend legal aid to more statutory tribunals. The particular lack is with regard to industrial tribunals dealing with important matters such as unfair dismissal, redundancy, equal pay and sex discrimination. It is wrong that cases in those categories should take place with employers and government departments in the proceedings having a panoply of lawyers on their side but in many cases with no adequate representation for the claimant. That is quite wrong and unjust. It is disappointing that the Government have not seen fit to advance in that field. I am informed that last year there were over 4,000 contested cases in the employment field and there was gross inequality in representation. That cannot be right and we shall have to return to this subject again in future debates and future legislation.
Finally, there is one aspect where there is still a great deal of anxiety; that is, the provision of adequate resources for advice and law centres. The position still is, to put it mildly, uncertain. We have tried from various parts of the House to obtain the provision of more finance for the advisory bodies, but they still feel a sense of insecurity. The Lord Chancellor has refused to accept responsibility for them, as has the Secretary of State; and local government authorities have been reluctant to accept full responsibility, though many have been good.
The Legal Aid Board will have an important role in this sphere and one can only hope that it will fill the gap. In the legal aid set-up, where so much depends on the advice of bodies often run by volunteers or by those in law centres on the most modest of remunerations, we look to the Lord Chancellor, who has overall responsibility, to make sure that in this vital area the provision of legal aid and advice is adequately financed and provided for. However, for
42
the concessions that the Lord Chancellor has made, we express our gratitude.
5.15 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I rise to congratulate my noble and learned friend on the Woolsack on passing through this House this important and valuable measure. I think it does a great deal more for both the profession and the recipients of legal aid than the noble and learned Lord who has just spoken was prepared to concede. As one who had some part in the preparation of the earlier phases of the legislation last year, I was gratified and perhaps a little flattered to learn that in many respects my noble and learned friend on the Woolsack supported the difficult judgments that at times I had to make.
I hope the noble and learned Lord, Lord Elwyn-Jones, will not mind my complaining mildly of the phrase "a second-class service". I hope that we shall never hear it again.
Lord Elwyn-Jones: My Lords, I said I greatly hoped that we would not have a second-class service.
Lord Hailsham of Saint Marylebone: My Lords, it is the expression that I object to and that is what is being repeated. I intend no commercial plug but I run a Maestro car. It is not a Porsche; it is not a Rolls-Royce; it is not a Bentley but it does what I want it to do. I use the names of people deceased for fear of giving another commercial plug, which would not be acceptable, but it is not every case that requires a Pat Hastings, a Norman Birkett, an Edward Carson or a Rufus Isaacs. The general run of the legal profession is perfectly capable within the bounds of the existing scheme of providing the service that is required. I hope we shall hear no more of this awful phrase "a second-class service" for those who choose not to have antimacassars behind their backs in a railway carriage or who have little cars instead of big ones.
As regards the question of tribunals, I should like to repeat words which I have used before. Obviously any Lord Chancellor in administering legal aid is faced with the fact that he is presiding over a branch of the social services upon which demands are being made faster than any other. In those circumstances it is inevitable that the service itself should be subject to a good deal of scrutiny from rival postulants as regards the moneys of the taxpayers. It is not surprising that the service should also be suffering from a number of growing pains because it is growing very rapidly indeed. The reasons for its growth are not altogether desirable; namely, the increase in crime, the high rate of divorce and road accidents.
As regards the question of tribunals, since the late Aneurin Bevan in another place started them off in one field after another just after the war, I have seen develop a sort of Rake's Progress. First of all we had tribunals usually with three members, one of whom was a lawyer, another was supposed to represent the employers or the landlords and the other the initiator of the proceedings for unfair dismissal or diminution or increase in rents; whatever the case may be. When they were introduced we were told that there would

43
be no more beastly legal formalities and no more beastly lawyers to put up the cost and to create delays with quibbling arguments. After about six months we heard the legal profession in its majesty say that the employer was legally represented so the applicant must equally be legally represented. We return to a kind of Rake's Progress. We create these tribunals to avoid legal intervention and we end with the lawyers moving in in a big way—in a trade union way—and getting in on both sides.
It is true that to a cobbler there is nothing quite so good as leather. That is right. Advocacy is an art and when practised skilfully it can produce results. We must not forget that essential fact. Nonetheless, a Lord Chancellor who presides over legal aid is bound to face a dilemma. Either he spreads his money thickly where it is most needed and the money is limited, or he spreads it thinly over a wider field which does not do much good for anybody. I am perfectly sure that above all in this area of work which is rapidly increasing the money ought to be spread thickly and where it is most needed rather than spread thinly over a wider field.
I believe that the Lord Chancellor has made a pretty wise choice about the way it should be spread. As the noble and learned Lord, Lord Elwyn-Jones, knows very well, I am not in any way an enemy of law centres and that kind of thing. If I had to choose between spreading my money thickly on the green form scheme and proper legal advice for the individual and increasing the ambiance of law centres, I believe I would go for the first. On the whole I do not regret either having retained those law centres which the noble and learned Lord supported, I believe rather piratically, or having gone in for the green form scheme, which has justified itself even more so over the years.
I believe the legal profession has every reason to be grateful to my noble and learned friend for supporting the abolition of the deduction of the percentage from what was a fair fee. It was a feature from the first of the scheme in civil litigation. I always thought that to be unjust and I believe my noble and learned friend is to be congratulated for removing it.
He has also chosen the right balance on remuneration. There is one factor that I hope will remain in the minds of the legal profession. There has always been an element of sheer idealism in the services that we provide. There are occasions when a Pat Hastings or a Norman Birkett is needed by a poor man and perhaps occasionally lawyers ought to provide their services at rather less than their commercial value. I should be very sorry if the tradition of the legal profession in that way did not persist into the present age.
Perhaps I have detained the House too long. I rose really to congratulate my noble and learned friend.
5.30 p.m.
Lord Simon of Glaisdale: My Lords, from the Cross-Benches perhaps I may be allowed to congratulate my noble and learned friend on the Woolsack on having piloted through the House what
44
I regard on the whole as an extremely valuable Bill and on showing considerable responsiveness to the suggestions that have been made.
Before I come to those who have opposed the Bill or parts of it, I hope I am forgiven for mentioning my noble and learned friend Lord Hailsham in view of our long companionship. Obviously his position was to some extent a delicate one, since he has had much to do with the genesis of the Bill. It seems to me that his contributions have been admirably timed, always constructive and helpful.
Finally, I come to those who have opposed parts of this Bill. They have been the spokesmen of the Law Society in the shape of the noble Lord, Lord Mishcon, and three of my noble and learned friends who have been chairmen of the Senate of the Bar and of the Inns of Court. I agree entirely with what has just been said by my noble and learned friend Lord Hailsham. There are fears of a first and second-class service. A first-class service is that of counsel and solicitor who appear for paying clients and the second-class service is for those who appear in cases financed by legal aid. That suggestion is entirely or very largely misplaced. I do not believe that there will be any division of the profession in that way.
I say so because I do not believe that the profession will allow it. I do not believe that it will allow it for the reason that was indicated earlier and has just been repeated by my noble and learned friend Lord Hailsham. The legal profession has always acknowledged its duty to see that justice is prosecuted. Until 1949 we had a legal aid scheme in which the procedure was in forma pauperis. Eminent solicitors and counsel always regarded it as their duty to see that that system worked. Famous cases were pursued up to the Bar of your Lordships' House by solicitors and counsel appearing without any fee. I am sure that that spirit will be pursued in relation to legal aid.
It will be more difficult these days because the Bar is much larger than it was. It is no longer the Bar of Pendennis. The solicitors' profession has enormously proliferated. It is no longer the solicitors' profession that was pictured in that classic of Hine's, Memoirs of an Uncommon Attorney. However, I am quite sure that the problem is manageable. Just as counsel and solicitors managed to make the proceedings in forma pauperis work by acknowledging their supervening duty to make it work in the interests of justice, just as they helped to launch the legal aid scheme by accepting a percentage cut in what would be the normal emolument, I am quite certain that what my noble and learned friend Lord Hailsham described at Report stage as that spirit of idealism (a point that was taken up nobly by the noble Lord, Lord Mishcon) will prevail, will be organised and will prevent any kind of division into a first or second-class service.
The opposition of those who opposed the Bill in the way I have described could not be justified, certainly in so far as many of the amendments amounted to drawing an open cheque on the Exchequer and having open-ended financial commitments in this narrow field. It is not the only field in the administration of justice: my noble and

45
learned friend on the Woolsack wants more courts and more judges in order to speed up the administration of justice. In addition, there are all the competing fields of national health, defence and so on. That line could not be justified and will not work out to the mischief that even my noble and learned friend Lord Elwyn-Jones painted just now.
Nevertheless, although I welcome this Bill and although I would have stopped at this point were it not going to the other place, I should like to mention two serious defects as I see the Bill. One is the defect in Clauses 12 and 17 that has been pointed out; namely, what is by statutory definition an injustice to the unassisted party who succeeds in an action which has been financed by the Legal Aid Board. Loss will be suffered. Who should bear that loss? Should it be the public body which has forced the successful defendant into court to vindicate his right; or should it fall on the unassisted party even though it is just and equitable—that is the phrase in the statute—that he should get his costs? If it had not been an assisted case he would have got his costs. As it is, he will not get them; not even if he shows hardship—he has to show severe hardship. That is a major injustice that will have to be considered—and I do not doubt will be considered—in another place.
It might be justified if the rectification were extremely costly; but even though my noble and learned friend on the Woolsack had been alerted to this point in Committee he could put no price on it when we came to the Report stage. He thought that it would be expensive. I venture to take quite a different view. I presided over a division of the High Court where the litigation was a great consumer of legal aid funds. I came across only one case where this point arose. I do not doubt that there were others but they must have been very few. Moreover they will be minimised by the provision which will be in regulations whereby the unassisted party can be heard when the Legal Aid Board considers the merits.
There is one final blemish which is diffused in the Bill. I refer to the use of the ridiculous phrase "with the consent of the Treasury", which appears several times. On each occasion it appears quite unnecessarily. The terms "consultation with the Treasury", "the consent of the Treasury" and "the concurrence of the Treasury" are used indiscriminately; but they will be taken care of by the ordinary administration of government.
There were years of complaints that our statutes were over-complicated, unintelligible and inflated. Those complaints came to a head in a notable debate in another place which led to the setting up of the Renton Committee. It was a very powerful committee and it made a number of valuable suggestions. What have we seen? I have looked at the statute book. The Renton Committee reported in 1975. In 1976 there were 86 Public and General Acts running to 2,096 pages. A decade later there were only 68 Acts but they ran to many more pages. The figure was 2,780. That is because no notice has been taken of the proposals of the Renton Committee and because we continue to stuff an overblown statute book with flatulent phrases like "with the consent of the Treasury" and many others.
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I do not doubt that that issue too will be considered in another place, because the argument in that respect came to a head on what has now become Clause 40, which is concerned with finance, and finance is, of course, a particular concern of the other place. I trust that when the Bill comes back to your Lordships' House every one of those phrases will have been struck out, as well as the injustice that I have ventured to identify in Clauses 12 and 17.
Lord Meston: My Lords, although improved, the Bill remains, as the noble and learned Lord. Lord Elwyn-Jones, said, essentially an enabling Bill which confers wide powers and promises a great mass of as yet unseen regulations. Throughout the Bill's passage, that state of affairs and method of legislation has been justified by the noble and learned Lord the Lord Chancellor in the name of flexibility. Therefore the concern must remain that such flexible and wide powers could be used, or misused, in the future in ways that are restrictive of the legal aid service—that is, restrictive of the availability of legal aid or restrictive of the type of representations to be made available. I hope that those fears are misplaced.
As a practising lawyer I should like especially to pay a respectful tribute to the great efforts of the noble and learned Lord, Lord Ackner, and others, in their debates upon the provisions relating to remuneration. However, it remains a matter of regret that at the end of the day the Government were shy of an explicit statement on the concept of fair remuneration. But it will at least be thanks to the cogent advocacy of' the noble and learned Lord, Lord Ackner, that the Treasury will be aware of the message which he sought to convey: that the continuing confidence and goodwill of the legal profession, which is essential to a future functioning of the legal aid system, must he retained because it is ultimately in the public's interest.
Lord Renton: My Lords, in view of the comments made by the noble and learned Lord, Lord Simon of Glaisdale, your Lordships may think that the less I say the better it will be. Nevertheless, I feel obliged to say that this is the first major Bill that the noble and learned Lord the Lord Chancellor has presented to the House. It is a Bill which he inherited and is now an even better Bill than it was when he first introduced it. In my opinion the fact that it is an improved Bill is largely due to his open-mindedness. He has not been able to accede to all the proposals that have been put forward for the Bill's improvement but he has been able to do so in respect of some important ones. I should especially like to acknowledge the importance of the "purpose clause" which has just been accepted. I should also like to acknowledge, especially in view of what the noble Lord, Lord Meston, said, that the Lord Chancellor has provided that there should be not less than two members of the Bar on the Legal Aid Board.
As regards the general effect of the Bill upon our profession, I shall obey my noble and learned friend Lord Hailsham of Saint Marylebone in not repeating the phrase that he wishes never to hear again. However, I should add this point to the arguments already used. Not only will the profession not allow

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itself to become divided between "superior" and "inferior" but I do not think that the Legal Aid Board, the Lord Chancellor or Parliament could allow the scheme to be marred by the profession not being adequately rewarded for the work that has to be done. It is upon that principle that the success of the scheme will depend.
I support the plea made by the noble and learned Lord, Lord Simon of Glaisdale, about the use of the expression, "consent of the Treasury". The Lord Chancellor has shown wonderful initiative, and, if I may say so, fertility of mind in handling some of the problems which have been put before him. I express the hope that such initiative and fertility of mind may one day be directed towards eliminating not only that phrase but many other unnecessary phrases from the statute book.
The Bill is intended to create, in the light of forty years' experience, a better legal aid scheme and an expanded one. In my opinion it has every likelihood of so doing. But we shall await with interest—I hope with not too much anxiety—the 50 or so regulations that have to be placed before Parliament, some of which we shall have the opportunity to discuss in this House.
5.45 p.m.
Lord Morris: My Lords, I am compelled to rise on this occasion not only because, as a Spaniard once said, "In the heart of every peasant there lies a lawyer; and in the heart of every lawyer, however urbane, there lies a peasant", but also because I feel justified in speaking as I have read every word of the proceedings thoughout the Bill's passage. I must say that I have been deeply saddened. The reason for my sadness is that there is no distinction in principle, as your Lordships are aware, between the Bill and a national health service Bill; save inasmuch as this Bill provides its customers with a learned legal service as opposed to a learned medical service. If, during the passage of a national health service Bill, the only people who took part in the proceedings were doctors, nurses and paramedics, the first people who would be on their feet saying, "Oh, well they would say that, would'nt they?" would be the lawyers. I make that point but I recognise that there are many exceptions. The noble and learned Lord who spoke on the Bill looked at it thoughout the proceedings from the point of view of the customer as, in many respects, did the noble and learned Lord, Lord Simon of Glaisdale.
Therefore I put forward the following pleas to my noble and learned friend. First, I ask that, when the Bill proceeds to another place, he should do everything in his power to ensure that the committee considering the Bill does not contain too many lawyers. Secondly, he should ensure that, when consideration is given to the commissioning of the committee the majority of people on it should be those who are concerned with the benefits that the Bill is intended to provide rather than those who are only concerned with the provision of those benefits. I do not think that the functioning of the committee would be harmed by so doing.
The Lord Chancellor: My Lords, I do not wish to take up much of your Lordships' time because your Lordships have been most generous in your remarks about the Bill. However, I should like to say at the outset, in reference to the point just raised by my noble friend, that, for my part, when the Bill passes from this House I am happy to commit it to the wisdom of those in another place and leave to them the choice of who may consider it there. I do not think it would be wise for me to express any view upon the matter. All I can say is that I am sure it will be considered with wisdom.
I should like to thank all noble Lords who have taken part in the proceedings on the Bill. I say that whether noble Lords have spoken in support or against a position that I have taken up; my thanks are equally warm. I am glad that I can say that it was not only lawyers who took part in the proceedings. It is of course true that the discussions were largely in the hands of lawyers but we were fortunate enough to have interventions from time to time from those who are not lawyers. I shall not mention particular names because there are many of them and I might miss someone out. However, I am glad that those who took part who were not members of the legal profession came from all parts of the House.
The Bill, as the purpose clause that your Lordships have just approved now makes clear, is to provide a framework. It is that framework which justifies and makes necessary the number of regulation-making powers that have been a feature of legal aid legislation from the start. The way the matter has been addressed in your Lordships' House has sometimes suggested that that was a novel and rather poor invention of mine. Far from that being the case, the legal aid system has always proceeded by having primary legislation which provided for a great deal of subordinate legislation. I suspect that whatever government are in power, however unexpected the result will be very much the same.
I believe that the framework provided by the Bill is excellent. Those who talk, as some have done, about a second-class service are doing a great disservice to the honour and reputation of those solicitors and barristers who over the years have provided and still provide an excellent legal aid service to the less well off. I can think of nothing more likely to damage the morale of legal aid practitioners than that suggestion.
I believe that in sending the Bill to another place your Lordships can do so confident that the legal profession as a whole, including those whose services may be much in demand for commercial purposes and for others, will be willing to participate in providing a level of service under the legal aid framework that will continue to command the respect of all who require it.
A number of important changes and improvements have been made to the Bill with your Lordships' assistance. I am grateful for all of that. I am grateful for the kind things that have been said about me. I have not yet mentioned anyone specifically. I propose to make an exception in the case of my noble and learned friend Lord Hailsham. He has a special place. As my noble and learned friend said, he had responsibility for a good deal of

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the Bill when he held the office which I now have the honour to hold. I am grateful for the fact that he has been willing to play such a constructive and helpful part in these proceedings. It must be difficult for him to see someone as inexperienced as I am trying to pilot through the Bill. He has shown no such feelings. On the contrary, he has shown the magnanimity of spirit, help and support that we have all come to know and expect of him.
The noble and learned Lord, Lord Elwyn-Jones, also a predecessor of mine in this office, has always been extremely helpful. I am grateful to him for that. His support has in no sense been a second-class service but one I have much appreciated, although, of course, we do not see eye to eye on everything.
I mention those two noble and learned Lords especially because the position from which they speak is, in a sense, special. However, I wish to extend my thanks to all your Lordships whose efforts, I hope, will bear fruit in an even better legal aid system for the future than we have had in the past.
On Question, Bill passed, and sent to the Commons.

Local Government Bill
5.54 p.m.
Read a third time.
Clause 2 [Defined activities]:
Lord Dean of Beswick Lord Dean of Beswick moved Amendment No. 1:
Page 3, line 19, at end insert ("or if it is work carried out by the caretaker of a primary school where he is the only member of staff employed on caretaking and cleaning duties.").
The noble Lord said: When we dealt with this issue on Report, the Minister indicated what I then thought was considerable movement. I think that he will appreciate that one had to read and digest what he said. The issue has been debated a number of times during the Bill's passage, most recently and extensively on Report on 15th February. The Association of County Councils' concern about the effect of compulsory competition for cleaning on the role and supply of caretakers in small schools was then referred to. The ACC seeks an exemption from Schedule 1 in respect of the cleaning function in primary schools where the caretaker is the only member of staff employed on caretaking and cleaning duties.
The problem was then stated; but it is perhaps worth repeating. As currently drafted, the Bill will catch the work of caretakers in most primary schools although caretaking itself is not a defined activity. That is because caretakers in many primary schools normally spend more hours cleaning than on other duties, although caretaking is the most important part of the job. Because, quantitatively, they spend more hours cleaning, their work is not exempt from compulsory tender.
On Report, a number of examples were given of the extent to which primary schools in shire local education authorities will be affected. The need to
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combine the roles of caretaker and cleaner in one person in primary schools and the undesirability of contracting out the work of caretaker/cleaners—the solution then advocated by the noble Earl, Lord Caithness—was also argued.
The ACC welcomes the noble Earl's statement that the Government propose,
"to exempt from competition work carried out by people who are required as a condition of their employment to live in particular accommodation".
In doing so, the Government recognised that some school caretakers are required to live in tied accommodation and thus could face a potential loss of both job and home. The noble Earl went on to say:
"I believe this concession that I have offered to the House will go a long way to helping with the issue that this amendment seeks to address".—[Official Report, 15/2/88; col. 464.].
Unfortunately that is not the case. As the following details will show, few small primary schools have tied accommodation. I shall give details of some of the authorities which are in difficulty over the Bill, even with the concession that was made.
For example, Devon has 448 primary schools. In 447 of them the caretaker spends over 50 per cent. of his time cleaning; so 447 are caught by competitive tender. In 151 of those schools the caretaker is the only member of staff employed on caretaking and cleaning duties. And in only one of those 151 schools is the caretaker in tied accommodation. So the concession, although welcome, helps in one case only in the situation about which we are most concerned—the sole caretaker/cleaner in small schools.
Kent, as mentioned on Report, will have 234 of its primary schools caretaker/cleaners caught by tendering because the caretaker/cleaner spends more than 50 per cent. of the time cleaning. Only 33 of those 234 caretaker/cleaners live in tied accommodation; so the concession will again not help the problem.
Norfolk is another county much affected by the absence of exemption for sole caretaker/cleaners owing to the number of small rural primary schools it has. Only a handful—perhaps 10 or so—of its 412 primary schools have a caretaker who does less than 50 per cent. cleaning and is therefore exempt. Norfolk has 38 primary schools with tied accommodation for its caretaker/cleaners. It is understood that a handful of exempted caretakers occupy tied accommodation anyway. So the net effect is that about 374 primary schools in this county will still have their caretaker/cleaners caught by the Bill's provisions, despite the concession.
I think that enough examples have been given to show that the concession, useful and welcome though it is, does not really address the problem of the need to safeguard the caretaker in the primary schools from competitive tendering on the one hand, or the splitting off of the caretaking/cleaning job on the other. The Minister said on 15th February 1988:
"I would not claim that it would make sense to split up such caretakers' jobs and expose part of them to competition."—[Official Report, 15/2/88, col. 464.]
Therefore we have no hesitation in urging your Lordships' House once again to amend the Bill to

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exempt a primary school caretaker from competition where he is the only member of staff employed on caretaking and cleaning duties. We are not asking for all primary school caretakers to be exempt; this is just an amendment to tackle the most severe problems of the smaller primary schools.
I said at the outset that I was grateful for the concession that was made at the Report stage. But I think that the details which have been sent to us by the Association of County Councils on behalf of some of their constituent members indicate a rather more widespread difficulty than some of us had imagined at Report stage. On that basis, I should hope that even at this late stage the Minister may be able to look sympathetically on what my colleagues and I feel to be a reasonable request. I beg to move.
6 p.m.
The Minister of State, Department of the Environment (The Earl of Caithness): My Lords, the noble Lord, Lord Dean of Beswick, said that we had debated this type of amendment a number of times before. Indeed, I think at Report stage, Lord Graham of Edmonton, said that we had cantered over this course at an earlier stage and I presume that we can now go around it blindfold. We had ample evidence at the Report stage, and indeed again today, from the noble Lord, Lord Dean of Beswick, that there are quite large numbers of primary school caretakers who spend more time on cleaning than on security and other duties. Despite the undertaking which I gave at Report stage and which was not given lightly, I can say to the noble Lord that there was lengthy consideration within the department and with my right honourable friend about giving such an undertaking. But we felt that in the circumstances it was right to give it.
Notwithstanding that residential caretakers will be exempted, there might remain many caretakers whose work will not be exempt from competition. I have to say, as I have said previously, that I simply do not understand why this should be regarded as unacceptable by the noble Lord, Lord Dean. Education authorities are perfectly capable of setting down clearly what they require caretakers to do, whether or not the job involves elements of cleaning, locking and unlocking, attending to heating systems and so forth. I suggest that the outcome of the competitive process is not likely to be the splitting apart of these employees' cleaning and caretaking functions which various education authorities have no doubt rightly said would be inefficient, but the more efficient carrying out of the combined function. That is exactly what the Bill sets out to achieve for all the services listed. It sets out to achieve better value for money in the carrying out of the work which each authority decides it wants carried out.
Finally, I hope that the noble Lord, Lord Dean, will not mind me pointing out just one matter of detail. If the amendment is to be added to Clause 2(b), I believe that the line reference should be to line 14 rather than 19. That is a small matter of drafting. On the principle of the amendment, I hope that the
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House will not give its support to the noble Lord, Lord Dean.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for the detailed and courteous reply which we have come to expect from him. I am sorry however that he could not go a little further as we had requested. It is my belief that the worries which have been highlighted on behalf of these authorities during the various proceedings in your Lordships' House, both in Committee and on Report, will manifest themselves.
I think that the Bill as it stands will create difficulty of a personal nature in some of the rural areas where the caretaker is tied almost into the fabric of the building as one of the staff whom everybody knows. Personally, I think that when the Bill becomes an Act and is applied in these areas it may well founder as regards some of these local interests and the interests of the community as a whole. However, I have no desire to press the amendment to a Division. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 2.
After Clause 5, insert the following new clause:
("Power to carry out works contracts for other persons.
(1) The Secretary of State may by regulation authorise a local authority to enter into contracts for the provision by that authority of work or services within a defined activity (not being works contracts within the meaning of section 5 of the Local Government Planning and Land Act 1980) with any other person whether or not being a public body within the meaning of section I of the local Authorities (Goods and Services) Act 1970 in circumstances where he is satisfied that—

(a) the direct labour organisation of the authority carrying out that work or providing those services is no larger than is necessary having regard to the functions of the authority and the circumstances of its area, and

(b) the carrying out of such contracts is desirable or necessary for the purpose of facilitating the efficient use of the resources of the organisation.

(2) Regulations under this section may—

(a) specify the types of contracts to be authorised and may include such supplementary, incidental or consequential provisions as appear to the Secretary of State to be necessary or expedient, and

(b) modify the conditions specified in section 4 above or provide that the said section shall not apply to any specified class of contract authorised under this section.").

The noble Lord said: My Lords, perhaps the Minister would accept that it would be convenient to take Amendments Nos. 2 and 3 together, because he may find that of value. The new clause which is suggested in Amendment No. 2 gives total discretion to the Secretary of State in determining to what extent he allows local authorities to conduct work with persons who are not public bodies—that is, work outside the local authority and other public body spheres.
The wording of this amendment is based on Section 38 of the Local Government (Miscellaneous Provisions) Act 1976. I believe that it provides quite a useful precedent. Although it specifically deals with computers and computer time, the wording could quite easily be altered to deal with other types of direct labour work and also to show that the

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precedent is certainly there. I would suggest that there is a case for the full and economic use of equipment and staff of local authorities other than just the computers and computer time.
In a perfect world, the balance would be perfect: the amount of staff and equipment and the capital which was expended on the equipment would all balance out completely and the local authority would have no spare capacity whatever at any time. If this were a perfect world, it would be the same for those who were contracting for local authorities. But it never is the case; it cannot be. Sometimes one finds that in order to use up equipment and staff time for short periods, contractors will occasionally pick a contract and will be willing to give a very sharp and keen price for that contract.
So I believe and hope that the Minister will look favourably at the idea that the local authority or the direct labour should have some flexibility which would be circumscribed by the Secretary of State. The rules will be circumscribed by him to allow the local authority direct labour to compete with outside contractors.
Amendment No. 3 is perhaps not quite as wide ranging as Amendment No. 2. It deals with the ability and the right of the local authority direct labour to engage in open competition for certain activities outside. However, as regards activities which are normally done by the local authority—we are not talking here about breaking new ground and starting new types of activities—the local authorities should be able to break into the outside field if their expertise, abilities, staff and equipment allow them to do so.
The amendment is not seeking carte blanche for local authorities to set themselves up as trading organisations in any or all fields of the economy. The intention of the Bill is to expose to open competition certain activities normally undertaken by the staff of local authorities in order to ensure that the local authorities are achieving value for money in such activities. That is fair enough. The purpose of the amendment is to allow the local authorities themselves perhaps to check back on the contractor to see whether they are getting a fair deal from him. It is not always in the field of public works particularly where arrangements are made among contractors to submit one tender that is preferable to another by agreement. That may not be legal but it is frequently done and almost on a weekly basis.
But this amendment will permit authorities to seek contracts for cleaning, vehicle maintenance or catering, for example, outside the net of defined authorities if they so wish. I hope that the Minister will give this serious consideration. If local authorities are denied that freedom to seek and obtain work for this purpose they are being deliberately placed at a disadvantage, because that freedom is of value only if local authorities can win work on price and performance in fair competition.
As regards competition for local authority work, the Bill is certainly based on the principle of fair competition. I shall be interested to hear the Minister's reply but I hope that he is sympathetic to
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at least the second amendment that I have tabled, which is Amendment No. 3. I beg to move.
Lord Stoddart of Swindon: My Lords, I hope that the Minister will indeed seriously consider these two amendments. I express that hope because when I served on a local authority one of the actions we took was to set up a direct labour building department. We also had a printing department. So successful was the building department that on its first tender in 1968 for the building of 79 houses to sell, not to rent, it was able to tender for a contract at £500,000 less than the nearest private tenderer.
The people who bought the houses did very well. The building department carried out the works to price and to time. Indeed so well-known did its success become that the electorate at large demanded of the councillors that the direct building department should do private work for the electorate. But as the law stands, and as it then stood, we were unable to say to those people that we had a very efficient department and of course it could carry out works of improvement. Therefore the department which was set up by the ratepayers and which was welcomed by the ratepayers was unable to carry out work for those very same ratepayers.
This is a very valuable amendment which has been moved by my noble friend. As 1 say, we also had a printing department which was very competitive and which would have welcomed being able to do work from outside because that would have spread the overheads and made the jobs that it did even cheaper than they actually were. In any event its prices were highly competitive compared with the private sector.
The Minister is a very fair man. Therefore I should have thought that he would have understood that one can have competition both ways. This amendment enables the Government, so to speak, to have their cake and eat it too; so I hope that the Minister will welcome it with open arms.
Lord Boyd-Carpenter: My Lords, to have one's cake, eat it and welcome it with open arms seems an extraordinarily agile performance. Although none of your Lordships would deny the quality of agility to my noble friend, I am not sure that it is a wholly appetising prospect which we are offered.
I very much hope that my noble friend will not accept this amendment because it seems that it would have the effect, and no doubt is intended to have the effect, of driving the proverbial coach and horses through this part of the Bill. As I understand it, it would, for example, be perfectly possible if Amendment No. 2 were carried into law for two local authorities to get into cahoots with each other and for each to contract with the other and the other's direct labour organisation for work which otherwise under the terms of the Bill would have to be put out to contract for general bids by all concerned.
It is well known that local authorities, particularly adjoining local authorities of the same party political connection, sometimes have very close links. That is certainly so of some of the boroughs of East London whose goings-on have rightly attracted a great deal of attention in recent months.

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It would be slightly absurd if the work of a local authority were to be done not only by a direct labour organisation but by the direct labour organisation of its neighbour, while at the same time that authority did the work for the neighbour. I hope that we shall not make nonsense of the Bill in that way. It is bad enough to have, as we have in this same political connection, the practice under which elected councillors of one local authority are employed often in jobs of no particular practical value by an adjoining authority. We certainly do not want to add to such activities between local authorities. I hope that we shall reject this.
6.15 p.m.
The Earl of Caithness: My Lords, I first of all should like to welcome the noble Lord, Lord Stoddart of Swindon, to the discussion on this Bill. I think it is the first time that he has taken part and his participation is extremely welcome. I shall have to be more on my mettle than usual as the Opposition seem to have a regular supply of bowlers on this subject.
Amendment No. 2, which the noble Lord, Lord Carmichael of Kelvingrove, has moved, is clearly designed to provide an escape valve where an authority may find that it has temporary surplus capacity which for good management reasons should be usefully and productively employed. I approve of the principle of making efficient use of available resources but that can already be achieved without the introduction of this new clause. The answer lies in existing legislation. Section 111 of the Local Government Act 1972 gives subsidiary powers to local authorities, which could authorise the use of temporary surplus capacity by any person as being incidental to one of the authority's functions. Indeed there is a complementary provision for Scotland in Section 69 of the Local Government (Scotland) Act 1973.
I would also make clear, however, that such implied powers do not permit an authority to hire staff surplus to requirements solely or principally for the purpose of providing services to others. If the use of direct labour operatives is merely subsidiary, utilising genuine temporary spare capacity, no additional power is necessary. If more than that is envisaged, the DLO would soon be in the business of establishing itself as a public trading organisation. That would be clearly undesirable.
The noble Lord, Lord Carmichael, quite rightly drew the attention of the House to Section 38 of the Local Government (Miscellaneous Provisions) Act 1976, because that gives an express power in respect of utilisation of excess capacity in computers. The noble Lord will know better than I do that that power was, however, deliberately confined to computers, because it was considered that in some circumstances it was probably economically sound for local authorities to purchase computers with capacities greatly in excess of immediate needs. I understand that some authorities with large amounts of surplus time available in their computers were doubtful whether Section 111 of the Local Government Act
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1972 would cover the sale of so much time and they were anxious to be given a specific power for the sale of this surplus capacity. It is not considered that similar uncertainties arise in the situation covered by this amendment.
I now turn to Amendment No. 3. I thought that the noble Lord, Lord Stoddart of Swindon, argued persuasively for allowing local authority direct labour organisations to compete for work in the private sector. But I would say to him, why not go the whole hog? Surely if there is a situation such as that, those direct labour organisations should be turned into genuine companies that will sink or swim in the private sector, where they will be unsubsidised by the taxpayer and the ratepayer and will compete on a truly genuine basis.
Lord Stoddart of Swindon: My Lords, I am most obliged to the noble Earl. I understand the point that he has made. However, one of the benefits of creating the direct labour organisation was that a local authority would be able to compete with the private sector and put in realistic tenders. As a result not only did a local authority obtain cheaper work from its direct labour department but the price of private sector building in the whole area came down. That really was competition. What the Minister is suggesting would not be competition at all, because one way or another the private sector could set up its own cartel, as it has in the past.
The Earl of Caithness: My Lords, if one takes the situation referred to by the noble Lord to its proper conclusion, and if it had been a true private sector company, would it have been able to submit the prices that it put forward? The complaint that we most commonly receive about local authorities is that they are favouring their in-house DLOs. Clause 33 of the Bill bears witness to that. Amendment No. 3 offers the prospect of private contractors being placed in an unequal position by the subsidised operations of local authorities. I believe that this amendment is designed to create more jobs for local government empire builders rather than to improve competition, which is the aim of the Bill.
The noble Lord, Lord Stoddart of Swindon, was right to say that at the moment private contractors cannot compete because of the Local Authorities (Goods and Services) Act 1970. We are trying to allow private enterprise into what has become a local authority monopoly in order to obtain better value for money for the ratepayer.
Lord Carmichael of Kelvingrove: My Lords, the Minister will appreciate that his reply is rather disappointing. First of all, I should like to welcome to the House my noble friend Lord Stoddart, who has been liberated from the Front Bench. We are not happy about the reasons for that but we know that on the Back Benches he will be extremely active and pertinent and even show the aggression that we expect and enjoy from him.

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it is an extremely valid point that local authorities have a right to check whether private contractors are being competitive. The idea that there are no cartels is nonsense. The Minister asked why local authority direct labour departments did not become private companies and move into the private sector. The chances are that they would join the private contractors in some form of syndicate when it suited them and be part of the cartel. I am not saying that it is a major problem now. A great many steps have been taken to stop outside contractors putting in tenders that are agreed beforehand. But the situation had got so out of hand that I wonder whether it has been entirely cleared up.
1 remember on one occasion contracts were put out to tender for many thousands of yards of drainpipes. The cost of supplying them submitted by half a dozen different companies was the same to the last penny—for thousands upon thousands of yards of drainpipes. It is not true that competition of that kind will necessarily produce the best price, the best conditions and the best job. That is why we wanted these amendments included in the Bill.
I am glad that the Minister says that no special powers are required to use excess capacity in certain cases. I wonder whether at some point—perhaps not today—he could give me an indication of the parameters of that additional capacity. Perhaps he could write to me about that.
We are disappointed in the reply but, recognising that in the Government's view the purpose of the Bill would not be strengthened by this amendment— although we believe that the hands of the local authority and of the people who ultimately pay would be strengthened—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 28 [Local authority publicity]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 4:
Page 27, line 22, leave out subsection (2) and insert—
("(2) A local authority association may, within a period of six months after the date of passing this Act, issue (whether or not jointly with any other such association) a code of practice with regard to publicity for the guidance of its members, and section 4 of that Act shall not have effect in relation to any authority to whom such a Code has been issued until after the making of an order under subsection (2A) below.
(2A) The Secretary of State may, after considering any Code issued under subsection (2) above, and after consultation with the local authority associations, make an order to give effect to section 4 of that Act in relation to any authority to which an association has issued a code under that subsection, provided—

(a) that he shall first provide any authority affected with a written statement of his reasons for making the order, and

(b) that no order shall be made before a date nine months after Royal Assent; and

(c) that no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

(2B) In section 4 of that Act (issued by Secretary of State of Codes of recommended practice on publicity)—
(a) at the beginning there shall be inserted—
"(1) This section shall apply to a local authority where

(a) no Code has been issued to that authority by a local authority association of which it is a member under section 26(2) of the Local Government Act 1988; or

(b) an order has been made in respect of that authority under section 26(2A) of that Act."

(b) in subsection (1) for the words "local authorities" there shall be substituted "a local authority to which this section applies." ").
The noble Lord said: My Lords, Amendment No. 4 returns to a subject which has been debated in earlier stages of the Bill. However, I think that it does so in a different way and one which justifies its reconsideration here.
This amendment does not—I repeat "does not"—affect the definition of publicity for political purposes. For the purposes of this amendment we have not sought to challenge the Government's intention to prohibit publicity by local authorities which could be thought to be of a political nature. We still have worries about the wording of that but Third Reading is not the time for this House to go over those concerns again.
What we are concerned about today is the nature of the codes of practice to which the Bill, and of course the Local Government Act 1986, refers. I should explain that the amendment we are putting forward has the support not only of Labour local authorities assembled together in the Association of Metropolitan Authorities but also of local authorities of all political persuasions, and of none, in the Association of County Councils and the Association of District Councils. It also has the support of outside bodies such as the Institute of Public Relations, the Campaign for Freedom of Information, the Association of Free Newspapers and the Campaign for Press and Broadcasting Freedom.
The issue is that since 1986 the Government have made consistent and, to do them credit, persistent attempts to draw up a code of practice for local authority publicity following the requirements which were introduced by the 1986 Local Government Act. We are now on the fifth draft of that code of practice. Each one has been subjected to criticism—I think constructive criticism—by local authority associations and by others who are concerned with local government and publicity. After a period of well over a year and half we have still not achieved a code of practice which has proved to be acceptable and agreed to be properly worded for the purposes of giving guidance to local authorities as to the way in which they should conduct their publicity.
There are those on the government side who say that that is because local authorities are being difficult about their criticisms of the wording and intentions of the code of practice. I do not believe that that is the case. By their nature, and it is not in any way to their discredit, civil servants are not close enough to the problems of local authorities (and the way in which local authorities ought to be communicating with the people in their area) to be able to produce a suitable code of practice. That does

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not mean that they are not good at their job as civil servants. It means that this should not be their job. The code of practice could and should be drawn up by the local authorities together with their local authority associations. Towards the end of last year they drew up a draft code of practice which in my view forms a very good basis for the implementation of this clause.
This amendment says that they will have a further opportunity six months after the Bill is passed to present that or a similar code of practice to the Secretary of State. The Secretary of State may—not "must" but "may"—then bring it into effect as the appropriate code of practice under this Bill. There is no compulsion on the Secretary of State.
There is no criticism of the objectives of the code of practice as defined in subsection (1) of the clause. What is given here is an opportunity to short-cut what has appeared to be an interminable procedure of drawing up codes of practice. This can be dealt with relatively quickly and to the satisfaction both of government and the local authorities and we have the oportunity to do it in this relatively simple and certainly modest amendment. I hope that it will command the support of the Government and those who have felt and still feel strongly about the issues of local authority publicity. I beg to move.
6.30 p.m.
Lord Campbell of Alloway: My Lords, I hope that your Lordships will not accept the amendment. At one stage when we were discussing Clause 27 of this Bill the Chamber divided against the Government on the status of the code of practice. That is now no longer in issue. By their very nature codes of practice are fairly difficult for a Secretary of State to formulate in any event, and they must always be formulated after due consultation. To that degree I go along with the noble Lord, Lord McIntosh.
However, if I am not mistaken the noble Lord referred to "interminable" negotiations. Certainly from my scant knowledge I know of some very detailed negotiations and have come across strenuous efforts to agree upon the content of a code. None of them has borne fruit and, with respect to the little that I know about the matter, none of them is likely to do so. I hope that the noble Lord will agree that it is not necessarily the fault of the civil servants nor of the local authorities; it is not necessarily a question of' want of accommodation nor lack of goodwill. In this area it is simply a very difficult result to achieve.
Because of those difficulties, once the principle of the clause has been accepted it is up to the Secretary of State to settle the code, having taken into account all relevant consultations—and, my word! there have been some consultations over the years. To require that he should:
"first provide any authority affected with a written statement of his reasons for making the order".
is to impose a wholly inappropriate fetter on the way in which a Secretary of State should discharge his duties in accordance with the intention of this clause.
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Very briefly, for those reasons I hope that your Lordships will not accept the amendment.
Lord Hayter: My Lords, your Lordships will know as well as I do that sometimes the Chamber has to deal with an amendment which consists of changing only one word—probably "shall" or "may"—and that such an amendment has a desperate effect on the Bill as a whole. On other occasions there may be a fairly long amendment such as the one that we are now discussing, which may appear to be very complicated. However, the amendment can be summed up in a few words: to allow a voluntary code of practice to operate for a trial period. That is the aim.
The purpose of the amendment is to allow local authorities through their associations to draft and work to their own code of practice on local government publicity before the Secretary of State issues his own and imposes it if he so wishes. There is no need for me to go into the background of this topic. There has been a long history of the government believing that local authorities are anxious and willing to push forward party-political publicity on each and every occasion. However, they are wrong. They are pushing against an open door; a fact which the Widdicombe Committee bore out. Of course there have been no cases heard since 1986 of any such attempts which have been bruited abroad.
When it addressed itself to the question of a code of practice, the Widdicombe Committee stated that there should be guidelines covering the tone and presentation of local government publicity. It considered a number of ways in which that could be done but was not happy with them. However the committee was very clear on one point in particular; namely, that the structure of the guidelines should be based upon self-regulation. When one thinks about it, that is logical. The Widdicombe Committee concluded:
"We believe that tone and presentation is important, but it would undoubtedly be best if it were the subject of self-regulation".
It is perfectly true that the Government have published five drafts of' a code of practice and that each draft has been commented upon by the local authorities, but they still have not come up with anything that has been acceptable to both sides. There are one or two specific problems, of which I shall mention but one. There is still a provision in the Government's draft code of practice that:
"publicity should not attack, nor appear to undermine, generally accepted moral standards".
I do not know what that means. Although I am quite sure that the Minister's moral standards are the same as mine and so we would get on together very well, in a general sort of way I do not understand what is meant by that wording. I think that it is only reasonable to ask the Minister to give some definition of' what is implied.
I have with me a chronological summary of all the attempts that have been made in this respect. The Government claim that that is an indication of their willingness to take local government with them, but the truth of the matter, as has already been referred to in different contexts by both speakers on this

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amendment, is that civil servants are not persons engaged in the work of local authorities, just as persons in local authorities are not civil servants. The truth is that the two find it very difficult to come to a common agreement.
We believe that local authorities should be allowed to draw up their own code of practice. In a way they have been asked to do so and we feel that that is the right course to pursue. Should they not be successful, the Minister will retain the right to introduce his own code of practice, which is perfectly proper. There has been no abuse by the local authorities of their publicity powers, as I mentioned previously, and we feel that the Government should let the authorities get on with the job of drawing up the code of practice.
Lord Boyd-Carpenter: My Lords, if local authorities were prepared to get on with the job of restraining the activities of a good many of them who use public funds for party political purposes, there would not have been any necessity for the clause as a whole or for this part of the Bill. However, the very fact, at any rate in the view of Her Majesty's Government and Parliament so far, that it is necessary to legislate to restrain those activities surely indicates that one cannot leave to a local authority association the drafting of the code of practice. If local authorities were so well disposed, so responsible and as public spirited as the noble Lord, Lord Hayter, seems to suggest, it would not be just a question of a code of practice but of whether it was necessary to legislate at all on this matter. I know it is something about which some of your Lordships take different views, but so far we have proceeded on the basis that it is necessary to legislate on this matter.
Therefore there does not seem to be any reason to believe that, by handing the duty of drafting the code of practice to the local authorities, one would not merely have the whole operation of restricting their party-political activities frustrated.
I have also two points to make about the drafting of this amendment. The amendment states that:
"A local authority association may"
draw up a code of practice. As your Lordships will know, there are a number of local authority associations. What will happen if several of them go into the business and draft different codes of practice? What will happen then? What is the Minister to do when an almost embarrassing flow of alternative codes of practice come to him from the different local authority associations? The one thing that is perfectly clear to all of us who have any experience of local authority associations is that they very rarely agree inside themselves and hardly ever agree with each other. So it really is making a nonsense of this part of the Bill to put this proposal forward.
I am also a little surprised to see it proposed that,
"no order shall be made before a date nine months after Royal Assent".
This is postponing again the very necessary introduction of a code of practice if that quite unnecessary artificial delay is to be imposed. I never like using the phrase "wrecking amendment" because
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it is thought, though I do not think it is generally intended, to be somewhat discourteous to those who put it forward. But this amendment, if adopted, would do very severe damage to this part of the Bill and I hope, for that reason if not for many others, that my noble friend will with his usual politeness and firmness reject it.
Baroness Fisher of Rednal: My Lords, I should like to intervene very quickly about the phrase "with regard to publicity". I do not know how much local authorities spent. They were spending money before the abolition of the metropolitan counties and of the GLC. But as regards publicity, the most marvellous publicity that has appeared on television—I do not know how much it cost but it must have cost many thousands of pounds—was when the Government were selling off British Airways. There was the most spectacular advertising, no doubt without a code of practice, putting forward a political party's philosophy with taxpayers' money. British Airways belonged to the taxpayer and that money was used for political publicity.
The same is true in the case of British Telecom. The advertising was not quite as spectacular, but we saw people abseiling and that was publicity paid for by public money, just as local authorities' money is public money, being used to put over a political philosophy. So I have the greatest difficulty in following the noble Lord, Lord Boyd-Carpenter, in his arguments.
Lord Boyd-Carpenter: My Lords, before the noble Baroness sits down, will she allow me to say that she has given me my case, because what she is saying is that she is against the promotion of party politics on the rates and therefore supports this amendment. That is exactly the point I was trying to make.
6.45 p.m.
The Earl of Caithness: My Lords, first I must say that 1 was a little surprised and disappointed to see the amendment in the name of the noble Lord, Lord McIntosh of Haringey. This amendment was first tabled by the noble Lord and the noble Lord, Lord Hayter, at Committee stage. During the debate on Amendment No. 113ZA, which was taken to a Division, the noble Lord, Lord McIntosh of Haringey, made it clear to the Committee that he was also presenting the case for this and a number of other amendments. He then gave full expression to his arguments for this amendment and I duly responded to the points he made.
I should, however, like to take this opportunity to remind the House of the purpose of Clause 28(2). It seeks to require local authorities to take account of the code of recommended practice which the Secretary of State is authorised to issue under Section 4 of the 1986 Act. It proposes therefore that local authorities should be required to have regard to the provisions of the code. In other words, it reinstates

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the force of Clause 4 of the earlier Bill before it was amended by your Lordships.
The main purpose of this amendment appears to be to remove the Secretary of State's responsibility to set out principles of good practice on publicity for local authorities to take into account. This responsibility was given to him only two years ago with the approval of both Houses of Parliament, which accepted the basic justification for his involvement.
The reasons for placing the responsibility for the code in the hands of the Secretary of State are just as valid today as they were when Section 4 was first debated. Some local authorities, I regret to say, remain determined to use their position and their access to public funds to produce publicity of a type and on a scale which is impossible to justify. The Government have no doubt that in this highly sensitive area it is right for them to seek to ensure that principles of good practice are laid down and matters of bad practice discouraged.
No one can deny the onslaught of political propaganda in some areas. One has only to look at a recent edition of Ealing Council's house magazine which provides a clear example of such abuse. But the code will not extend or interpret the ban on party political publicity in Section 2 of the Act. That is entirely separate and free-standing. Nor will it fetter the legitimate use of local authorities' publicity powers. What it will do is to set out clear principles of good practice reflecting the conventions that should apply to all publicity at public expense, and which traditionally have applied in both central and local government.
To summarise the position, noble Lords opposite are making the claim that the use of public money by local authorities for publicity is not a matter which Parliament and central government should seek to influence. The fact that large sums of public money have been used on controversial publicity in recent years, a large percentage of which is taxpayers' money, gives central government a clear and important remit. History proves that some local authorities—and I stress "some local authorities"—have not been very good at maintaining the accepted conventions. They have used a very sensitive medium in regrettable ways.
What the Government are now seeking to ensure is that local authorities have regard to the practice which Parliament recommends in the field of publicity. It seems only sensible to us that this requirement should be imposed in a form that all local authorities are fully familiar with, so that account is taken of the recommendations approved by Parliament.
The noble Lord, Lord McIntosh of Haringey, rightly drew the attention of the House to the fact that some local authority associations have produced a satisfactory code. I am pleased that my view on these matters is reinforced by the draft code on publicity prepared by officers of the main associations in December.
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At first sight, this draft code bears some resemblance to the Government's draft code, a copy of which is in the Library of the House. I do not think it would be right to take up the time of the House with a line by line critique of the document. Suffice it to say that, although it appears to cover some of the matters included in the Government's draft, it excludes a number that we believe to be essential. Perhaps that is due to the fact that, as my noble friend Lord Boyd-Carpenter pointed out, there is more than just one local authority association.
I have to say to the noble Lord, Lord Hayter, that that is why we believe that the voluntary code is the wrong approach. More importantly, its provisions are written in such vague terms that we see no prospect that local authorities would be pointed towards good practice in any meaningful sense. That is the purpose of having the code in the first place.
I think it is right that I should explain to your Lordships once again why a code has not yet been issued. I explained in Committee, and I repeat, that there are two reasons why no code has yet been put to Parliament. These are, first, that we have endeavoured as far as possible to take local government with us on the drafting of the code. The history of the drafting demonstrates that we have been prepared to listen to their point of view and, where appropriate, to make amendments designed to allay their concerns. It will be for Parliament to decide whether to approve the final product of this consultative process.
Secondly, and I think perhaps more importantly, we did not think it was right to ask Parliament to approve a code the status of which would not be clarified until your Lordships and those in another place had had time to consider what is now Clause 28(2). I hope that your Lordships will not accept the amendment before us.
Lord McIntosh of Haringey: My Lords, I suppose we must be grateful for the fact that we have achieved two things in this little debate. The first is that at last, after consistent refusal to do so both in this House and in another place, the Minister has given an example of abuse of local authority publicity powers since the passage of the 1986 Act. He has given the example of Ealing Council's house magazine, which I shall certainly look into. Perhaps he will be kind enough to send me a copy of it—not in the middle of my speech. It is a fact that ever since this Bill came before Parliament the Minister of State in another place and Minister here have always refused to give any examples. A Minister of State in another place refused on principle because he said it was not relevant to the argument for the clause, and Ministers in this House perhaps gave less objectionable reasons.
The second thing we have achieved is that the Minister has described the local authority code which was produced last December as satisfactory. I am sure that those who have taken part in drafting it will be pleased to hear that description. That leads me to think that perhaps we are not as far apart as we might be. Indeed, if it had not been for the speech of the

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noble Lord, Lord Boyd-Carpenter, I might have been tempted to withdraw the amendment. However, the misconceptions contained in it were so profound that I think it is necessary that they should be corrected or that the House should have an opportunity to attempt to correct them.
The first misconception was exactly this question of examples. The noble Lord referred again, without giving specific examples, to abuse of the code. There have been (with this exception, which I look forward to seeing) no examples of abuse of the provisions of the 1986 Act since it came into force. Ministers have not been able to give any examples. The fact of the matter is that the 1986 Act has been working. It has been working partly because it was amended and improved by your Lordships' House against the wishes of the Government.
The second misconception is the idea that there is an indefinite number of local authority associations that would be in constant dispute about the contents of a code. There are four local authority associations. They are all in agreement with this amendment whether they are Conservative controlled, as is the Association of District Councils, whether they are under the control of no one party, as is the Association of County Councils, or whether they are Labour controlled, as are the Association of Metropolitan Authorities and the Association of London Authorities. If they can achieve that form of agreement on this amendment, as they have achieved agreement on the draft code that they have produced, there is no reason why they should not continue to achieve a draft code which would be acceptable to the Secretary of State.
The third reason why I take issue with the noble Lord, Lord Boyd-Carpenter, is that he refers to no order being made before a date nine months after Royal Assent. If it were indeed the case that there were continued abuses of local authority publicity powers and that we were questioning the objectives of the clause, which is to restrain unjustified political publicity by local authorities, that point might have some force. However, we have the opportunity here to do something which is not only better in itself as regards publicity but is also better because it restores a relationship of mutual confidence between local authorities and government. On that basis, if on that basis alone, I think it is right to take the opinion of the House.
6 53 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 91.

DIVISION NO. 3

CONTENTS

Airedale. L.

Birk, B.

Ampthill, L.

Blackstone, B.

Ardwick, L.

Bonham-Carter, L.

Barnett, L.

Brooks of Tremorfa, L.

Beaumont of Whitley, L.

Callaghan of Cardiff, L.

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Carmichael of Kelvingrove, L.

Listowel, E.

Carter, L.

Llewelyn-Davies of Hastoe, B.

Cledwyn of Penrhos, L.

Lovell-Davis, L.

Cocks of Hartcliffe, L.

McIntosh of Haringey, L.

David, B.

McNair, L.

Davies of Penrhys, L.

Masham of Ilton, B.

Dean of Beswick, L.

Milner of Leeds, L.

Elwyn-Jones, L.

Morton of Shuna, L.

Ewart-Biggs, B.

Mulley, L.

Falkland, V.

Ogmore, L.

Fisher of Rednal, B.

Peston, L.

Gallacher, L.

Ponsonby of Shulbrede, L.

Galpern, L. [Teller.]

Greenway, L.

Raglan, L.

Grey, E.

Ripon, Bp.

Hampton, L.

Ross of Marnock, L.

Hanworth, V.

Seear, B.

Hayter, L. [Teller.]

Serota, B.

Henderson of Brompton, L.

Shackleton, L.

Hirshfield, L.

Stewart of Fulham, L.

Houghton of Sowerby, L.

Stoddart of Swindon, L.

Hughes, L.

Taylor of Blackburn, L.

Hylton, L.

Taylor of Mansfield, L.

Hylton-Foster, B.

Tordoff, L.

Irvine of Lairg, L.

Turner of Camden, B.

Irving of Dartford, L.

Underhill, L.

Jay, L.

White, B.

Jeger, B.

Williams of Elvel, L.

Kilmarnock, L.

Winterbottom, L.

NOT-CONTENTS

Arran, E.

Lyell, L.

Bathurst, E.

Mackay of Clashfern, L.

Beaverbrook, L.

Margadale, L.

Belhaven and Stenton, L.

Marley, L.

Beloff, L.

Massereene and Ferrard, V.

Belstead, L.

Merrivale, L.

Blatch, B.

Mersey, V.

Bledisloe, L.

Morris, L.

Blyth, L.

Mottistone, L.

Boyd-Carpenter, L.

Mountevans, L.

Brabazon of Tara, L.

Mowbray and Stourton, L.

Bramall, L.

Munster, E.

Brougham and Vaux, L.

Murton of Lindisfarne, L.

Caithness, E.

Nelson, E.

Cameron of Lochbroom, L.

Newall, L.

Campbell of Alloway, L.

Orkney, E.

Campbell of Croy, L.

Oxfuird, V.

Carnegy of Lour, B.

Peyton of Yeovil, L.

Carnock, L.

Plummer of St. Marylebone, L.

Chelwood, L.

Coleraine, L.

Quinton, L.

Colnbrook, L.

Rees, L.

Colwyn, L.

Renton, L.

Cowley, E.

Ridley, V.

Cox, B.

St. Oswald, L.

Craigmyle, L.

Saltoun of Abernethy, Ly.

Davidson, V. [Teller]

Sandford, L.

Deedes, L.

Skelmersdale, L.

Denham, L.

Slim, V.

Dilhorne, V.

Stockton, E.

Dundee, E.

Strange, B.

Fraser of Kilmorack, L.

Strathclyde, L.

Gray of Contin, L.

Strathcona and Mount Royal, L.

Gridley, L.

Halsbury, E.

Sudeley, L.

Harmar-Nicholls, L.

Swansea, L.

Hertford, M.

Teviot, L.

Hesketh, L.

Thomas of Gwydir, L.

Holderness, L.

Trefgarne, L.

Hooper, B.

Vaux of Harrowden, L.

Johnston of Rockport, L.

Waldegrave, E.

Kaberry of Adel, L.

Windlesham, L.

Kenilworth, L.

Wise, L.

Killearn, L.

Wolfson, L.

Kimball, L.

Wyatt of Weeford, L.

Lane-Fox, B.

Wynford, L.

Long, V. [Teller.]

Resolved in the negative, and amendment disagreed to accordingly.
7.1 p.m.
Clause 29 [Prohibition on promoting homosexuality by teaching or by publishing material]:
Lord Airedale Lord Airedale moved Amendment No. 5:
Page 27, line leave out ("it sees fit") and insert ("may reasonably he drawn from the evidence before it.").
The noble Lord said: My Lords, this is a rather smaller matter than the one we have just decided. It is an amendment to a subsection of the clause that prohibits the promoting of homosexuality. The subsection says that the court,
"shall draw such inferences as to the intention of the local authority as it sees fit".
I do not think any judge reading that will feel any the wiser. I cannot believe that the decision in any case is going to be different whether this subsection goes in or is left out. Nor can I believe that any change is here intended in the familiar practice of the courts in drawing inferences as regards people's intentions. I cannot believe that such a change would be slipped into a subsection of a clause in a miscellaneous provisions Bill about local government. The noble Lord, Lord Henderson, on Report, moved to leave out this subsection. We argued for sparing the statute book a subsection which really does not carry the matter any further. But the Government seemed quite determined to have their subsection. So now we say, "Let us at least state the position correctly". It simply is not correct to say that the court may draw such inferences as it sees fit, just like that. The Minister stated the position correctly at col. 640 of the Report stage on 16th February when he said that,
"the court will he obliged in the normal way to consider the facts of the case, to weigh the relevant factors and to come to an objective view about the authority's purpose on the basis of those factors".
That is what the amendment says very much more than the subsection says as drafted. I hope that your Lordships will consider the amendment an improvement on what has been drafted. I beg to move.
Lord Campbell of Alloway: My Lords, I hope that my noble friend the Minister and your Lordships will think it right to accept this amendment. Everyone knows that the phrase "as it sees fit" does not really mean what it appears to mean; and the fact that it is there will not alter in any way the correct judicial approach to the drawing of such inferences from the primary facts on the evidence. And, of course, if they are not properly drawn by a tenable process of deduction, then the decision would be reversed on appeal. Everyone knows that. However, if one is drafting a statute it is preferable to use an expression which means what it appears to mean.
Lord McIntosh of Haringey: My Lords, I do not know whether a non-lawyer may intervene in this debate, but it seems to me that the noble Lords who have just spoken have a good case. Although to some extent I took a back seat on this amendment—after our attempt to have the whole clause thrown out was
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rejected by your Lordships— I was somewhat taken aback by the phrase:
"such inferences … as it sees fit".
It did not seem to me that that was what courts were in the business of doing. As a layman, it had always seemed to me that they were in the business of looking at the evidence and assessing it. I hope that the Minister will see fit to accept the amendment.
Lord Hylton: My Lords, every single amendment we have dealt with today seems to have underlined the value of your Lordships' House as a revising Chamber. This one is no exception. I hope that the Government will be able to accept it.
Viscount Massereene and Ferrard: My Lords, I have always been rather shy of the words, "reasonably" and "reasonable". They are rather vague words, are they not? Some people will think something is reasonable and others will not. I have mentioned this point on previous occasions. In spite of that. I would personally support the amendment.
Lord Henderson of Brompton: My Lords, I was delighted to hear the noble Lord, Lord Campbell of Alloway, say that everyone knows that the words "as it sees fit" do not mean what they appear to mean. That recalled to me the extraordinary word "pretended" used elsewhere in the Bill, which clearly does not mean what everyone thinks it does. I wish that the word "pretended" had been amended. In seeking to amend the expression now being discussed the noble Lord, Lord Airedale, has hit on a very happy solution. He has received support from all sides of the House and I very much hope that the Minister will accept this improvement.
Viscount Bledisloe: My Lords. I should also like to support the amendment. I confess that I am not sure that it really is as unworrying a point as the noble Lord. Lord Airedale, suggested. I confess to not being aware of any other statute which appears to suggest that a court may draw inferences "as it sees fit". If one were to have such a provision in this statute I venture to suggest there is a risk that the court might think that somethng new and novel was meant and therefore might think that it had a greater liberty to draw inferences, or to draw inferences without evidence, other than in the normal way.
Unless the noble Lord the Minister can point to other examples where these words have been used, I think it is not only an improvement to have the amended wording but also that it would be a positive menace to leave the wording as it is.
The Earl of Caithness: My Lords, with his customary clarity and concern for clarity, the noble Lord, Lord Airedale, has proposed this amendment to subsection (3) of Clause 29 to spell out more fully the court's duty in any proceedings against a local

69
authority under this clause. As I explained in reply to an amendment moved at Report stage by the noble Lord, Lord Henderson of Brompton, the Government are confident that the present formulation would be understood by the court. Its effect would be precisely that intended by the noble Lord, Lord Airedale, with his present proposal. A court would naturally base its conclusions about an authority's intention on factors that could reasonably be drawn from the evidence and the circumstances of the case.
However, I do not want to be obstructive. I entirely accept the noble Lord's desire to be helpful in this matter and to clarify a point that has troubled a number of your Lordships. There is really nothing between us and therefore I am content to recommend to the House that the amendment he accepted.
Lord Airedale: My Lords, I am obliged to the Minister. I should like to say to the noble Viscount, Lord Massereene, that if he wishes to know what is reasonable he must ask the gentleman on the Clapham omnibus, because what he thinks is reasonable is reasonable.
On Question, amendment agreed to.
Clause 34 [Local authority companies]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 6:
Page 29, line 31, leave out ("11th February 1988") and insert ("the day on which this Act receives the Royal Assent").
The noble Lord said: My Lords, this amendment refers to Clause 34, which concerns local authority companies and was introduced by the Government in this House. It has not yet been considered by another place. In introducing this amendment we are concerned not with the content of the provision on local authority companies, which has already been debated, but with the issue of retrospective legislation. Clause 34 as drafted provides that the clause should come into effect on 11th February; that is the day after the Government's new clause was published and before the matter had been debated in your Lordship's House.
On occasions, there may be cases for retrospective legislation. However, I suggest first that they should be kept as few as possible and, secondly, that this is not such a case. If retrospective legislation were to be justified in this case there would have to be overwhelming evidence not only that local authorities had in hand plans to create local authority companies which would circumvent the proposals in the Bill, but also that those local authority companies could be legally enforced before the date of Royal Assent of the Bill. That cannot be more than two or three weeks away if, as we expect, the Bill is passed in this House this afternoon and goes immediately back to another place.
No evidence has been produced to show that any local authorities have set up, or have advanced the process of setting up, local authority companies
70
which will have the effect of circumventing the Government's intention in the Bill. There are examples of local authorities seeking to set up local authority companies. Most of the examples of which I am aware concern Conservative controlled councils. I have seen only one referred to publicly and it is Rochford Borough Council in Essex, which is Conservative controlled. According to the Local Government Chronicle of 29th January it is proposing to set up a company not merely in advance of the Housing Bill so as to transfer properties to housing associations, but as a separate company running a £10 million leisure centre with 200 employees. I do not know whether the authority has been able to set up that company between 29th January, when the report was made, and 11th February, the date when the Bill, as drafted, would make it impossible to circumvent the provisions of the Bill. I believe that it is most unlikely that there will be a significant number of local authorities which will act in any way to frustrate the Government's intentions and I am aware of no such Labour controlled authorities.
If we introduce into a Bill at a late stage, as we now have, what is claimed and justified as an emergency provision in order to deal with a particular case, we must have much better evidence than has been produced showing that something will go wrong between now and the middle of March, or whenever the Bill is granted Royal Assent. Here the case for retrospective legislation has not been made. If the Minister has other examples that he wishes to quote I should be delighted to hear them. If he has other examples which he would like to communicate to me privately I should also be delighted to hear them. However, as the matter stands at the moment I do not believe that the House should approve this piece of retrospective legislation on the evidence that it has heard. I beg to move.
The Earl of Caithness: My Lords, I cannot resist drawing to the attention of the House what appears to be a change of view among noble Lords opposite regarding the significance of Clause 34. In commenting on it originally the noble Lord, Lord Dean of Beswick, seemed to doubt very much whether the potential abuse at which the clause is aimed actually existed. He commented that there were shadows which have not really appeared.
I made it clear that the Government had become aware that a minority of authorities had indeed been looking into the possibility of using the company device and that we did not regard ourselves as bringing forward a provision which was merely of academic interest. It would now appear that noble Lords opposite have come to share the Government's view or there would be little point in their seeking to have the effective date of the clause's operation the date of Royal Assent. If no authorities arc likely to have their plans affected by the decision, why bother with the amendment? Surely it contains the seeds of its own destruction.
From the point of view of the Government, the effect of the amendment would be to create a much worse situation than that which would exist if the

71
Government's measure never had been introduced. It would be the equivalent of saying to authorities "Look the Government have allowed you several weeks to take advantage of an anti-competitive loophole which avoids the provisions of Part I of the Bill altogether". That would be a sure-fire way of translating into a reality the possibility of using the company device.
I carry no brief for retrospective legislation in general but from time to time many governments have had to agree that a degree of retrospection is necessary under limited circumstances. I quite clearly believe that this is one of those limited circumstances.
Lord McIntosh of Haringey: My Lords, I am afraid that after a distinguished career as a spokesman on environment matters, the noble Earl has, in dealing with this amendment, given one of his weakest replies. At an earlier stage we said that we did not like the amendment because we thought that there were no good examples of the abuse which the Government claimed as justification for the new clause. Our sceptiscism about the abuses still exists. It is even more strong because the Minister has failed to take another opportunity which has been given to him to set out the abuses justifying not only introducing a new clause at a late stage in the Bill, but justifying the retrospective elements of the clause. We are saying exactly the same as was said by my noble friend Lord Dean at an earlier stage. We are saying that as we have failed to persuade the Government to take out the clause they should at least remove one particular objection to it; namely, that it is retrospective legislation without adequate justification being given. The Minister has given no further justification for the clause whatever.
I am unhappy with that situation. I do not believe that we should extend the application of retrospective legislation in that way. However, this is not a matter which will in any way shatter the bonds between local authorities and central government. No companies would have been set up between 11th February and Royal Assent and therefore it becomes a theoretical rather than a practical point. Although I disagree with the Government's arguments I believe that it would be inappropriate for me to seek the opinion of the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Caithness The Earl of Caithness moved Amendment No. 7:
Line 6, after ("purposes") insert ("to prohibit the promotion of homosexuality by local authorities").
The noble Earl said: My Lords, I beg to move Amendment No. 7 and, for the convenience of the House, speak at the same time to Amendments Nos. 8 and 9. These three amendments would all add references in the Long Title to provisions which have been added since the Bill was introduced. The first adds a reference to what is now Clause 29, which, as all your Lordships know, deals with the promotion of homosexuality by local authorities; the second adds
72
a reference to the provisions on dog registration. The Government are still considering what attitude they should adopt to Clause 38, but since the clause will be in the Bill as it leaves the House, it is right it should be referred to in the Long Title.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 8:
Line 8, after ("administration") insert ("the powers of auditors").
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 9:
Line 12, after first ("and") insert ("dog registration").
On Question, amendment agreed to.
The Earl of Caithness: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Earl of Caithness.)
Lord McIntosh of Haringey: My Lords, in speaking to the Motion, That the Bill do now pass, first I must express, despite my comments on the last amendment which I moved, my deep appreciation to the Minister and his colleagues for the way in which they have progressed this Bill through your Lordships' House. It must have been a shock to the Minister to have been brought so suddenly into the Department of Environment from the Home Office, where he had distinguished himself. However, he certainly earned the respect of those of us who have been working in local government matters for a number of years for his understanding of the issues involved, his unfailing courtesy in dealing with the arguments put foward and, on occasions, for his understanding of the validity of the arguments put forward, although inevitably those occasions were less frequent.
I must also express my appreciation to my noble friends who have taken part in the debate on this Bill, to my noble friend Lord Underhill, who spoke so ably on Second Reading, to my noble friends Lord Dean and Lord Graham, who undertook duties particularly while I was absent, to my noble friend Lord Carmichael, who dealt with the Scottish aspect and, indeed, to my noble friend Lord Irving, who accepted an extension of his duties as spokesman on defence to duties as spokesman on defence of postmen when we dealt with the amendments on dog licences. There were also notable contributions from the Opposition Back Benches, notably from my noble friends Lord Longford, Lord Peston, Lord Gifford, Lord Rea and many others present and absent whom I should not be able to list.
As it entered your Lordships' House, this Bill was unsatisfactory in detail and undesirable in objective. We still feel that that is so today, although there have been some changes to it. The Bill arose partly because—and I acknowledge this —of the bad behaviour of some local authorities, many of them Labour local authorities. One might say that the tricks played by some local authorities made it possible for the Government to achieve a wider

73
measure of acceptance for parts of this Bill than would otherwise have been possible. To that extent we are culpable and are responsible for the restrictions on local autonomy which have been brought forward by the Government.
However, those abuses, which have been acknowledged by all sides to be the abuses of a small minority of local authorities, have led to a gross over-reaction by the Government. In almost every case with which we have dealt in this Bill, whether competitive tendering, contract compliance or the different bits and pieces which have been added to the Bill at various stages, the result of this Bill has been the extension of detailed central government control of local autonomy and democracy. That can only be undesirable, whatever the motivations of the particular government in putting them forward. For that reason, we deeply regret that this Bill has gone through your Lordships' House with so little amendment when so much needed to be amended.
Perhaps I may say a few words about Clause 29 on homosexuality. As your Lordships know, that has not been a matter on which my noble friends have been whipped. There has been a free vote throughout our consideration of the matter although I am grateful and impressed that so many of my noble friends have felt in the same way as I about this matter. In my view and that of many of my noble friends, it is not a matter which should have been the subject of legislation at all. It arose from a very small number of abuses and is a great over-reaction to those abuses which will, as the most reverend Primate the Archbishop of York said at an earlier stage, be damaging to the civil rights of our people. The effect of any attempt to introduce legislation on this subject in a Bill of this kind must be damaging to our legal system and to our civil rights.
I am bound to say— and perhaps it is only safe to say it now when all amendments have been considered—that Clause 29 does not have the kind of restrictive effect which was intended by its promoters in another place or which was feared by many of those, particularly in the artistic world, who have been so worried about it, because the clause as now drafted refers only to the intention of local authorities to promote homosexuality. I do not believe that there is a clear legal definition of what is meant by promoting homosexuality, just as, like the noble Lord, Lord Henderson, I do not believe there is any clear definition of what is meant by "pretended family relationship". To that extent, the clause is still objectionable but we know from the series of legislative restraints on local authorities and the legislative restraints on what they can do to promote anything that in fact there will be very little practical effect. What can a local authority do to promote the teaching of any subject in a classroom? Even under existing legislation, it can do very little because a local authority is restricted by the Education Act to a general statement of policy which would have to he approved by the governing body if it were to get anywhere in a school. Even then, it would have to be accepted by the teachers.
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The Borough of Haringey, which is of very great renown, attempted to introduce as a positive policy the promotion of positive images of gays and lesbians. It did not succeed in finding a single governing body of any of its schools which accepted that policy and was prepared to put it into effect in the school. Therefore, it could not have happened then and the prohibition on a general policy of that kind is not a meaningful change. That is not to say that, because it will not have the same effect as its promoters intended, this is a good clause. It is still an abuse of the legislative procedure and is the introduction of moralising into our legislation in a way which ought not to be allowed. However, we can be thankful that the amendments which have been introduced by the Government and now by the noble Lord, Lord Airedale, and the further explanations which have now become available about the powers of local authorities and education authorities in particular have meant that the fears of the artistic community will not be realised.
Baroness Blatch: My Lords, I am most grateful to the noble Lord for giving way. Does he not agree that, while no governing body of any school was able to support the policy of positive images, a way round that has been found by funding with ratepayers' money organisations such as the Reading Matters bookshop, which does all the promotion that the positive images policy would have done within the local authority?
Lord McIntosh of Haringey: My Lords, no, I do not agree at all. The clause is about teaching at schools and there is nothing anybody who wants to promote homosexuality in Haringey can do to affect teaching in schools. Many of the activities of the Gay and Lesbian Committee I very much applaud and, indeed, many of those activities will not come under the provisions of this clause. Neither do I agree positively with the noble Baroness in the example that she gave and nor do I agree that it would be undesirable to have the alternatives she suggested.
I am sorry to have gone on at length about this clause but it took up an inordinate amount of time in your Lordships' House. It is necessary that we should state as clearly as possible where we stand at the end of our consideration of the matter. The clause ought not to have been included in the Bill and it still should not be there but it is important that the outside world should know as clearly as possible the restrictions that exist as a result of the wording of the clause and the ability of the moralisers and the Grundys to affect the behaviour of consenting adults in private.
7.30 p.m.
Baroness Seear: My Lords, I too, briefly on behalf of these Benches, thank the Minister for the very agreeable way in which he has conducted the Bill through this House—a way to which we have now become familiar in respect of the various Bills loaded upon the noble Earl.

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However, having said that I find myself to an unusual extent in agreement with much of what the noble Lord, Lord McIntosh, said. We regard this as a thoroughly bad Bill. We very much regret that Clause 29, as it now is, is on the statute book. I personally echo what the most reverend Primate the Archbishop of York said about the intrusion by government, by legislation, into what is taught in the classroom. In our view it is an extremely dangerous precedent. We are also extremely sorry that the Government took a very narrow view about the extension of contract compliance to women, allowing it for ethnic minorities but, on a narrow legal argument, not for women.
Above all, it is yet another extension of government power over local authorities. We shall be discussing this matter at greater length in the debate on Wednesday so I do not propose to say anything about it now except that I wonder whether the Government realise the extent to which they are concentrating power at the centre and the potential dangers that lie with that concentration.
We thank the noble Earl for the way in which he has handled the Bill but we find nothing to thank him for in the Bill itself. However, we very much hope that at least the change in relation to dog licences will remain in place. I think he hinted that even that might not be so.
Lady Saltoun of Abernethy: My Lords, I should like to read out a short extract from a leading article in the Daily Express of last Monday, 22nd February:
"Some critics of the Government's proposal to ban the promotion of homosexuality in the classroom—Clause 28 of the Local Government Bill"—
now Clause 29—
"—say that legislation is unnecessary. Teaching children about homosexuality is not promoting it, they believe.
Well, actor Ian McKellen has news for them. And has confirmed the fears of millions of parents.
Addressing a 'homosexual rights' rally to protest against Clause 28 he said: 'We must he out and about in pubs and clubs and classrooms, talking about homosexuality. In fact, in that sense, promoting it.'
We should he grateful to Mr. McKellen for his honesty. No one can now claim that lessons projecting homosexuality as just another 'lifestyle' are not meant to promote it…McKellen's words amply demonstrate that Clause 28 comes not a moment too soon."
Clause 28, now Clause 29, for the most part started in December 1986 as a Private Member's Bill in the name of the noble Earl, Lord Halsbury, drafted for him by the noble Lord, Lord Campbell of Alloway. It passed through this House unopposed just over a year ago and went to another place under the auspices of Dame Jill Knight but was a casualty of the general election. Those people, parents in particular, whose anxieties it meets have special reason to be grateful to the noble Lords I have just mentioned and to the noble Baroness, Lady Cox, all of whom devoted a great deal of time and effort to giving it birth and to cherishing it to maturity; as well as to Mr. Wilshire who moved it as a new clause to this Bill in another place and to the Government for
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accepting it. Those of us who have supported it, in particular the noble Lords I have mentioned, are especially grateful to the noble Earl, Lord Caithness, for his unfailing help, patience and courtesy through the long hours during which he has sat and listened to the debates.
Finally, on behalf of the Cross-Bench Peers I convey to the noble Earl the same sentiments for his patience and help throughout all the long drawn out stages of the Bill.
Lord Boyd-Carpenter: My Lords, like the noble Lord, Lord McIntosh of Haringey, I very much regret the necessity for the introduction of this Bill. It was introduced because of certain abuses and certain things going wrong in local government. I am afraid it is an example of the well-known principle that if those in public positions and public authority over a long period abuse their powers, do wrong, then sooner or later a change has to be effected; and responsibility for that change lies with the national government and with Parliament.
Lord McIntosh of Haringey: My Lords, and the electorate.
Lord Boyd-Carpenter: My Lords, the noble Lord is absolutely right, and the electorate. Indeed, the approach which lies behind this Bill was only as recently as last June endorsed by the electorate.
It is in that sense that the Bill is a necessity and in the view of many of us an unwelcome necessity. The same principle applies to the famous, or if your Lordships prefer it, the notorious, Clause 29.1 do not want to add to the enormous amount of controversy that there has been about this clause save only to say that to some of us, faced with the evidence that in a limited number— not a great many—of local authorities children in schools and young people with activities outside schools were being exposed to the promotion of homosexual ideas, something had to be done. Faced with that situation, I suggest that no government could fail to take action. To take the line so blandly taken recently by the most reverend Primate the Archbishop of York and suggest that government should let it be is not acceptable to the minds or indeed, to the consciences of a very large number of people in this country.
I have no doubt at all, having had some experience of government, that the Government were reluctant to get into this. The Government know well the heat, the passion and the correspondence which a measure of this kind generates. No government, faced with all the tasks of government, want to add to their labours in that respect. However, I still feel convinced and, I think, the bulk of the people in this country remain convinced, that a government faced with this practice, this evil practice, could do no less than they have felt bound to do.
Above all, I want to express the warmest congratulations and admiration to the Minister. As

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the noble Lord, Lord McIntosh of Haringey, in his very generous tribute pointed out, my noble friend was translated from the calm pastures of the Home Office to the more rugged hillsides of the Department of the Environment just at the beginning of this Bill.
He was, as I believe I said to him at the time, thrown in at the deep end. He has swum extraordinarily well and has now swum finally through, as far as this House is concerned, to the landing place. Your Lordships owe a great deal to the good temper, the quickness, the adroitness and, above all, the incredible stamina of the noble Earl in the conduct of this Bill. It certainly would not have reached this stage by tonight had we not had the advantage of an exceptional Minister who has handled the Bill with the very greatest of skill. I should like very warmly to express to him the gratitude of, 1 believe, all of us in all quarters of the House.
Lord Houghton of Sowerby: My Lords, we have already had a list of credits as long as one sees at the end of a popular television programme. I am not sure whether it will help if I add mine. The Minister does not deserve some of the unpalatable tasks he is given to do. He is a willing horse and an able worker. At least, it is my impression that he is; and if he is not, then he should he. But I believe that he pays dearly in peace of mind for some of the tasks imposed upon him.
I wish to comment on the way the Government carry out their business on a Bill of this kind. It is fight that we should be concerned with what the Government are proposing to do. I believe it is also important that we should take an interest in how it is done. This is a striking example of the misuse of a piece of legislation with provisions which were never intended for it. Matters that were slung into it have given rise to very tiresome consequences.
I remind your Lordships of the two clauses which have caused so much bother. Neither was really intended for the Bill. It is regrettable that the Government tend on occasions to be pushed by their militant tendency. They include in Bills dealing with important but less controversial matters questions which give rise to a great deal of emotion. As a result a great deal of time needs to be spent discussing them.
I have frequently referred to a previous local government miscellaneous provisions Bill which had thrown into it at the Report stage in another place clauses relating to sex shops and pornography together with schedules that were longer than the original Bill itself. We had to deal with those matters at length in your Lordships' House.
We have another example in what is now Clause 29. I remind your Lordships of how this came about. The Bill was introduced into another place and read for a second time on 6th July last year. The Standing Committee in another place began on 16th July. The clause prohibiting the promotion by local authorities of homosexuality was introduced at the Standing Committee stage by a private Member as late as 8th December. It passed through the Standing Committee in one sitting and without a
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Division. It is extraordinary. The noble Baroness spoke a moment ago about what this House had done on a similar theme earlier. I believe this to be a striking example of reaction to proposals in a Bill that are sometimes slow to move to a groundswell and to a realisation of the deeper implications of what is proposed.
On 8th December the clause went through the Standing Committee in another place. Within the week on 15th December, it came to the Report stage and Third Reading. Two days later, on 17th December, it came here. We began with the Second Reading of the Bill on 11th January. That is no way to deal with a highly emotive and complex matter such as the promotion of homosexuality. It is no way in which to deal with any moral issue. It is upon moral issues that the Government are most easily pushed by their militant tendency.
Probably all parties have a militant tendency. The Labour Party has one with views which are near to communistic, but it refrains, fights shy or hesitates to embrace all the disciplines and the suppressive instincts of a communist regime. On the Tory side the militant tendency consists of an authoritarian, puritanical and highly illiberal group of people who pursue a political and a moral philosophy which stops just short of donning a uniform in order to show the public where it stands. That can be called neo-Fascism. I believe it to be present in some elements of the Conservative Party.
We received a Bill that is ill-drafted. I do not know who drafted it, and I do not mind. It is ill-drafted, ill-considered and ill-intentioned. That is hardly a recommendation for any Bill to come to your Lordships' House. I will not dwell on the issues involved. I merely say that I regret that the Government lend themselves to this kind of legislative process. In my opinion the Government ought to take a firmer line in order to ensure that these matters are not just the result of catch-as-catch-can in our parliamentary processes but the outcome of careful consideration.
All the issues in Clause 29 merit the deepest consideration by Parliament because they go to the root of the liberty of the subject. They deal with moral issues and the behaviour of individuals. These issues go to the very root of our culture, our society and of our libertarian instincts. They also affect our freedom of thought and activity short of doing harm to the rest of the community. I deplore the manner in which the matter has been dealt with. It seems to me that so far this Bill has received very little praise from either side of the House.
The next subject I come to is that of dogs. This is more pleasant for me because I have long been associated with the dog problem. I remind the House that it is 10 years since two important investigations and studies were made into the problem of dogs in our society. One of these investigations was mine; the other was an inter-departmental committee appointed by the government of the day soon after I began my work. Both committees came to similar conclusions but failed to receive any serious attention

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from subsequent governments. There has been more shilly-shallying by more Ministers on the question of dogs than any other subject in the parliamentary calendar. Now we have reached the point of slinging into this Bill the question of the abolition of the dog licence fee but with nothing else proposed about it. That is really what happened when the Bill began its process through this House.
Clause 40 is certainly an advance on what we had before. It contains part of the proposals made in the two previous reports for dealing with this matter. The powers in the hands of the police should be transferred, or should be available, to local authorities on similar terms. I am glad that this has been done.
I come to how we are leaving the question in the Bill. We have got rid of the dog licence fee. The decks are cleared as regards dogs and the taxation system. The matter is open to further review of what should be done without the encumbrance of a long-standing and inadequate form of taxation. What are we going to do, what is Parliament going to do and what are the Government going to do about the clause which is now Clause 39? It proposes the introduction of a registration system. Registration is probably part of the solution of the growing problem of how dogs are treated in society and how they can be given a more satisfactory place in our midst, but it is by no means the whole solution. Many other aspects fall to be considered when the Bill goes back to another place. The Government will have to decide what they are going to do about the amendment passed by your Lordships. I do not think that they can feel very happy about leaving the Bill in its present form.
The Government have to consider whether they will broaden their consideration of this matter by appointing yet another advisory committee on this complex question. I am sure that it would have some very important contributions to make towards a solution. There are many factors: there is health; there is the discipline of the dog; there is the companion animal which is now becoming an integrated part of human society, and so on. With the very best wishes to the Minister, I sincerely hope that he can resolve the dilemma with which this House leaves him. I offer my humble suggestion, without volunteering for the job, that another advisory committee might do well to find answers to current questions on the dog problem.
Democracy is supposed to be the final word of the people. A great many students of the principles of government believe that when the people have spoken in a democratic society that represents their final judgment upon any issue. That is the theory that we apply to our actions and our deliberations. We say that Parliament is sovereign. We have no constitution to provide a check upon the excesses, the follies and indeed upon the evil of the majority. We say that the people have spoken. There is no divine being and no monarch to decide and no final arbitrament on the wisdom of what we do.
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We claim as a Parliament to be the judges of what is done in subordinate institutions (if "subordinate' is the word) which are exercising the system of democracy that we have here. This is a salutary thought. The noble Lord, Lord Boyd-Carpenter, said that no government can let this go on and that no government can ignore the excesses and indiscretions of other institutions in our democratic system. But they in their way are just as sovereign in a democratic sense as we are here and yet we claim to have the superior judgment upon them.
I see that the noble Lord is shaking his head. If we are a democratic society, and if we give local government powers to exercise the democratic system within the terms of reference of local government, then it should be free to do so.
Lord Boyd-Carpenter: My Lords, surely the noble Lord is ignoring the fact that in a unitary system of government such as ours the sovereign power is the Crown in Parliament. That means (does it not?) that unless Parliament is prepared to acquiesce in wrongdoing, wrongdoing will flourish, but it gives to that sovereign Parliament the ultimate duty of putting it right.
Lord Houghton of Sowerby: My Lords, wrongdoing can also be perpetrated by Parliament. There is nobody to put it right. If you concede democratic control, you have to accept its verdict. I cannot put the noble Lord to more vigorous exercise in shaking his head. We shall just say that we differ about this.
I do not want to carry my philosophy about democracy too far because I do not think that Parliament is any more representative of the people of this country than many local authorities are representative of their electorates. We talk about representative government and then talk about unrepresentative local authorities. The truth of the matter is that we feel ourselves to be mighty superior in the art of democracy and we look down upon those who exercise it in their own way but from a different point of view.
That is where I shall leave it. A few thoughts on what we are doing, how we do it and what is the plan of the future of our system should never be very far from our minds. There is something gravely wrong with a parliamentary system in which the Government, elected, so they think, on a clear mandate by a huge majority, are unpopular the day after, become more unpopular as the days go by and become thoroughly unrepresentative of the majority of the people probably throughout their whole period of office. That is the end of my lecture and no doubt the House will be greatly relieved. However, as other people are not incommoded by our being detained in the House at the moment I thought it not inappropriate that I should offer a few observations upon some of the issues.
Lord Hylton: My Lords, it is beyond doubt that there have been abuses in the past. Nevertheless the 1986 Act went a long way to correct them and I therefore regret that the Government seem to have used a sledgehammer to crack one or two rather small nuts.
Perhaps I may say something about the drafting of the Bill. I hope that the remarks made earlier today by the noble and learned Lord, Lord Simon of Glaisdale, on the Legal Aid Bill will be deeply pondered by the Government and pondered in relation to this Bill as well as the previous one. It is beyond doubt that the drafting of what is now Clause 29 is still unsatisfactory. If the Government can take further steps in another place to improve it, that would be welcome. I say that following and in spite of the helpful amendment moved by the noble Lord. Lord Airedale, and passed by your Lordships.
Before I sit down I should like to point to the speed with which this complicated and intricate piece of legislation has been taken through your Lordships' House. I think I am right in saying that it has occupied 30 working days for all its stages. That I suggest is too short a period.
8 p.m.
The Earl of Caithness: My Lords, the House can fairly congratulate itself on its thorough examination of a Bill which, though not particularly lengthy, deals with a range of complex and contentious issues. We have spent more than 25 hours at Committee stage and more than 14 at Report and very few stones have been left unturned.
In the course of very full debates on Part I of the Bill I tried hard to persuade all your Lordships that the test of competition was one that should be welcomed. Many of my noble friends- in particular the noble Baronesses, Lady Blatch and Lady Carnegy of Lour, and the noble Lord, Lord Bellwin—helped me greatly in this endeavour as in many others. I am not sure whether we succeeded in persuading every one of your Lordships but nevertheless I am grateful that the House decided to support the principles of competition.
On the details, my noble friend Lord Mersey and other Members of the House presented a strong case, which the Government accepted, for the exemption of the maintenance of fire service vehicles. The noble Lords, Lord Graham of Edmonton and Lord Dean of Beswick, persuaded the Government that the work of employees in tied accommodation should also be exempted. We accepted amendments from the noble Baroness, Lady Nicol, to exclude work such as that associated with national plant collections from the definition of ground maintenance. I am sure all your Lordships will share my expectation that competitive tendering will work better as a result of those changes.
The Government are in no doubt that Part I will greatly increase value for money in the local authority services listed. An article in the New
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Statesman recently confirmed this by pointing out that:
"the shameful point for municipal socialists is that it has taken Tory legislation to force them into examining their councils' records as a service provider".
As your Lordships know, we have not yet decided whether to proceed with the addition of sport and leisure management to the list. The many points made on this by noble Lords on both sides of the House have added greatly to the advice which the Government will consider before coming to decisions.
With one notable exception, the House has accepted the principle behind the Part II provisions. Two minor amendments, including one typographical error spotted by my eagle-eyed noble friend Lord Balfour, have only served to dot the i's and cross the t's.
Those provisions, which are concerned with public supply and works contracts, were subject to lengthy and detailed scrutiny. Clearly, there remains a fundamental difference of opinion between the Government and noble Lords opposite as to the factors which it is proper for authorities to take into account during the contractual process.
I have tried to state the Government's position clearly throughout, ably helped by many of my noble friends such as Lord Beloff and Lord Boyd-Carpenter. We do not believe that authorities should set themselves up as extra-statutory enforcement agencies on matters which are already the subject of existing statute and which already have appropriate enforcement provisions.
The one significant amendment to these provisions which your Lordships saw fit to make was in the field of disabled employment. Unlike many of the other amendments put forward by noble Lords opposite, this amendment did not seek to give authorities a role in law enforcement. Instead, it allowed authorities to refuse to do business with a contractor because, in their view, he did not have proper regard to a non-statutory advisory code—the Manpower Services Commission's Code of Good Practice on the Employment of Disabled People. I have to say that the Government will consider the implications of this amendment carefully, as it clearly runs counter to the basic principle behind the Part II provisions which your Lordships have otherwise consistently endorsed.
Your Lordships decided not to debate Part III of the Bill at any great length, though not because the provisions on housing assistance are unimportant. I should like to reiterate the Government's firm belief that, far from stifling local authority initiative as the noble Lord, Lord McIntosh of Haringey, and others have suggested, the provisions in Part III will result in a variety of new schemes involving a genuine mix of public and private finance. This must benefit those wishing to live in rented homes.
I turn now to Part IV. I hope that in the useful debates we had on publicity I succeeded in demonstrating to your Lordships that the first subsection of the clause will clarify and thus improve the existing statutory restatement of the common law

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ban on party-political publicity issued at public expense. The second subsection will ensure that the Secretary of State's code of recommended practice will be among the factors a local authority must take into account in exercising its publicity functions.
We have spent a good deal of time debating what has now become Clause 29. Indeed, the noble Lord, Lord Houghton of Sowerby, was one of those who contributed to the 11 hours-plus of debate that we have given to this clause. The Government have brought forward amendments which made it clear that it is the intention of the local authority that is crucial to the judgment of whether it has promoted homosexuality, or promoted a certain form of teaching in schools.
Claims have been made that the clause will lead to discrimination; bring about censorship of the arts or material in libraries; stop teachers dealing with homosexuality in an objective way; and stop local authorities providing legitimate counselling and care services. Those claims cannot be substantiated, as the noble Lord, Lord McIntosh of Haringey, so rightly reminded us. Unless it can be demonstrated that a local authority set out deliberately to promote homosexuality in carrying out its functions, there will be no problems of the kind that have been widely alleged. We believe that the terms of the clause are clearly set out, so that there is no question of legitimate services being adversely affected. I acknowledge the great concern of all your Lordships who took part in the debate on the clause, and I should like to express particular thanks to my noble friend Lord Campbell of Alloway for his help on the matter.
The other matters dealt with in Part IV of the Bill may be miscellaneous but they are certainly not trivial. Clause 30 provides improved powers for the local government ombudsman, and has been significantly improved by the provisions for direct access brought forward by the noble Lord, Lord McIntosh of Haringey.
Clause 31 makes important amendments to the auditor's powers, to allow them to act quickly to stop authorities incurring unlawful expenditure or loss. This will reduce the risk of authorities getting into financial difficulties as a result of their failure to comply with the law. It will reduce in future the need for long and difficult surcharge actions which at present provide the only way of resolving those abuses.
Clause 34—another new clause added in your Lordships' House—puts it beyond doubt that even if authorities wish to form their direct labour organisations into separate companies this does not absolve them from the duty to seek competition for work which would otherwise fall within the provisions of Part I of the Bill.
With that, I should like finally to move on to the infinitely debatable subject of dogs. The House has agreed with the Government that the continuation of excise duty on dogs, raised by licensing, is indefensible and should go. But our discussions ranged far wider, encompassing issues of dog control
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and welfare at large. A modest but significant proposal emerged which commanded general support, as a result of which the Government introduced Clause 40, which gives local authorities the same powers as the police to control stray dogs. There was far less consensus about the many other ideas that were suggested, but despite the Government's reservations your Lordships decided to give discretionary powers to the Secretary of State in Clause 38 to introduce a dog registration scheme.
The noble Baroness, Lady Seear, for whom the whole House has immense respect, complained about the powers being accumulated in the centre. Indeed, the Liberals bounded into the Lobby to give my right honourable friend powers that he did not want. In view of the noble Baroness's remarks and her concern, and, indeed, what the noble Lord, Lord Houghton of Sowerby, has said, the Government will have to consider this matter again most carefully.
The noble Lord, Lord McIntosh of Haringey, said that there had been little amendment to the Bill. I must tell your Lordships that the House had agreed some 38 amendments to it. That leaves us with six more clauses and one more schedule than when the Bill was introduced. The fact that it has achieved that amount of amendment is due to the great care and courtesy that all your Lordships have given to our consideration.
I should especially like to thank my noble friend Lord Hesketh who has bounded to and fro to bring me notes when I have run into difficulties. I thank too my noble friend the Leader of the House who took the Second Reading on the Bill. I think particular thanks are due to the Opposition Front Bench who have been extremely kind to me in my initiation ceremony on local government: namely, the noble Lords, Lord Dean of Beswick, Lord Graham of Edmonton and Lord Carmichael of Kelvingrove. They have been extremely courteous, as, indeed, has the noble Lord, Lord McIntosh of Haringey, who came refreshed from Australia with a lot more googlies to bowl at me.
Finally, it would be wrong of me not to thank the civil servants who have helped me in my task. It has been a job very well done on their part. I am therefore most grateful to them for everything they have done. I believe that the House has played its traditional revising role extremely well in this instance. I beg to move.
On Question, Bill passed, and returned to the Commons with amendments.

Drug Trafficking Offences (Enforcement in England and Wales) Order 1988
8.10 p.m.
The Earl of Arran The Earl of Arran rose to move, That the draft order laid before the House on 4th February be approved [l5th Report from the Joint Committee].
The noble Earl said: My Lords, this Order in Council would complete the arrangements by which the courts are able to recover the proceeds of drug

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trafficking throughout England, Wales and Scotland. The order has been considered by the Joint Committee on Statutory Instruments.
I have no need to remind your Lordships of the grave menace posed by drug trafficking, nor of the misery and squalor inflicted by those unscrupulous people who seek to profit from it. We believe that to deny the drug trafficker the proceeds of his trade is one of the most effective weapons against this evil.
The necessary powers to do that were first introduced in the Drug Trafficking Offences Act 1986, which has been in force since 12th January 1987. Soon after its enactment my right honourable friend the Secretary of State for Scotland introduced legislation to enable the courts in Scotland to exercise comparable powers in their Jurisdiction. Like the Drug Trafficking Offences Act, this legislation was welcomed on all sides of the House. My right honourable friend intends to bring these provisions into force on 1st April 1988.
This order contains the provisions needed to enable orders made by courts in Scotland under the Criminal Justice (Scotland) Act 1987 to have effect and, if necessary, to be enforced in England and Wales. The order has been drafted so as to mirror very closely the provisions already in operation for giving effect in Scotland to orders made by the courts in England and Wales. The essence of the scheme is that orders in one jurisdiction should have automatic effect in the other but should be enforceable in the other jurisdiction. This ensures that cross-Border arrangements can operate without unnecessary inhibition, while at the same time the independence of each jurisdiction is respected.
Article 3 is the key provision. It provides that restraint orders and other orders connected with the restraint or realisation of property made by the Court of Session in Scotland are to have automatic effect in England and Wales. Thus for example, where the Court of Session makes a restraint order preventing a suspected drug trafficker from disposing of his assets, that will automatically apply to his property in England and Wales as well as to any in Scotland. However, for the order to be enforced in England and Wales it must first he registered in the English High Court, which then has the power to enforce the order as if it were an order of its own. For example, the High Court could take proceedings for contempt of a registered order made by the Court of Session. The provision for registration of orders is contained in Article 4.
Article 5 is worth pausing on for a moment. It ensures that the important safeguards governing the Court of Session's powers to restrain and realise property will also apply when those powers are given effect in England and Wales. The High Court will be bound by the principles set out in Section 23 of the
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Criminal Justice (Scotland) Act 1987. Those require the power to be exercised with a view to securing the satisfaction of a confiscation order and, in relation to third parties who have received gifts from the defendant in a drug trafficking case, to realising from them no more than the value of the gifts they received.
I commend the order to your Lordships. If approved and made, the Order in Council will complete the arrangements whereby court orders for the restraint and confiscation of the proceeds of drug trafficking will he effective throughout Great Britain, no matter whether they were made originally in England and Wales or in Scotland. That is an objective to which I am sure your Lordships will lend full approval. I beg to move.
Moved, That the draft order laid before the House on 4th February be approved [15th Report from the Joint Committee.]
Lord Mishcon: My Lords, anything that we on this side of the House can do to punish, in justice, those who indulge in the evil trade of drug trafficking will be done, and the Government are assured of that. The order sensibly means that cross-Border orders can be made effective in regard to the confiscation of the ill-gotten gains made in this dreadful trade. It is a sensible order. We also commend it to the House.
The Earl of Arran: My Lords, I am obviously grateful that the noble Lord is in full agreement with the order. I should just like to conclude by saying that the chances of defeating the menace of drug trafficking can only be improved by the Order in Council. It will ensure that measures to deprive the traffickers of their proceeds are effective throughout England, Wales and Scotland. That is a most important objective. Therefore, I am sure that your Lordships will give it your full assent.
On Question, Motion agreed to.

Saint Bennet Fink Burial Ground (City of London) Bill [H.L.]
Committed to an Unopposed Bill Committee.

Land Registration Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at a quarter-past eight o'clock.