Lords Sitting of 21 January 1988

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwark.): The LORD CHANCELLOR on the Woolsack.

EC Transport Ministers' Council
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what dates have been agreed for meetings of the European Community Transport Ministers' Council in 1988, and whether they will make a statement concerning the present position of the proposal made by the European Commission to withdraw its list of exemptions to the competition rules of the Treaty of Rome.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, Transport Council meetings under the German Presidency have been arranged for 14th and 15th March and 20th and 21st June. There will also be an informal Council on 25th and 26th April.
During negotiation of the EC's aviation package, the Commission, with the UK's support, threatened to withdraw its proposal for transitional exemptions from the competition rules at a time when some member states were pressing for inadequate measures elsewhere in the package. The package was adopted unanimously last month and it contains the transitional exemptions.
Baroness Burton of Coventry: My Lords, why do we need a list of exemptions at all? Does the Minister not agree that having a list of block exemptions attached to the competition rules of the Treaty of Rome means that the Commission will be able to challenge only on a much narrower basis any allegedly anti-competitive packaging or fare-fixing deals?
Lord Brabazon of Tara: My Lords, the group exemptions to which the noble Baroness refers will be granted under Article 85·3 of the Treaty of Rome. They do not produce the scope for Commission action because they will apply only to agreements which meet the conditions for exemptions laid down in the treaty. The exemptions, which are only transitional, will expire on 31st January 1991.
Baroness Burton of Coventry: My Lords, that may well be the case but I am not much further on with that matter. Does the Minister feel able to tell the House now, or to publish an Answer in the Official Report if I table a Question, the details of the list of exemptions and in what way he thinks they will benefit the Community in the proposed reforms that have been agreed?
Lord Brabazon of Tara: My Lords, details of the exemptions are listed in Article 2·2 of the regulations, a copy of which has been placed in the Library of the House. Therefore the noble Baroness, and any other noble Lord, will be able to see them. The Council thought it right that the exemptions should be reviewed in three years in the light of the changed circumstances which may then exist.
Baroness Burton of Coventry: My Lords, if I table a Written Question, will the Minister give the House the benefit of that information in Hansard?
Lord Brabazon of Tara: My Lords, if the noble Baroness tables a Written Question of course I shall answer it.
Lord Underhill: My Lords, the Question asked about future meetings of the Transport Ministers' Council, and the Minister has kindly given dates for the next few meetings. Is the question of VAT on transport likely to be raised at those meetings? If so, what will be the Government's attitude to the possibility of VAT being levied on our transport system?
Lord Brabazon of Tara: My Lords, I cannot answer that question at the moment because it is for the Presidency to table the agenda for the March Council, and that has not yet been done. It must be done 16 days in advance of the meeting.

Foreign Goods Vehicles: Requirements
3.4 p.m.
Lord Boyd-Carpenter: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps are taken to ensure that foreign-registered vehicles using British roads comply with British restrictions on dimensions and weight of vehicles.
Lord Brabazon of Tara: My Lords, all goods vehicles, including foreign registered vehicles, entering the ports and travelling on the roads in Britain, are liable to be stopped and checked by the department's traffic examiners or the police to see that they comply with our legal requirements for vehicle dimensions and weights. Local authority trading standards officers also make regular use of the department's weighbridge sites.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that Answer. Does his reference to the liability to be checked mean that, in practice, all vehicles go over weighbridges?
Lord Brabazon of Tara: My Lords, obviously we do not check every vehicle but we try to check a number. We have an increasing programme of checks to be made. Last year 5,700 foreign registered vehicles were weighed. In the coming year we propose to raise that figure to at least 8,800. Over the next few

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years we plan to provide additional weighbridges around the country.
Lord Underhill: My Lords, in view of what the Minister has just said, is he aware that on 11th January his honourable friend Peter Bottomley mentioned the figure of 8,800 in a Written Answer? However, he said that they comprised only 3 per cent. of the number of inward journeys. Is that not a shockingly low number? In view of the interest that there is in this country concerning the use of weighbridges for outgoing lorries, could not the matter be raised again with European Transport Ministers with a view to weighbridges being used at both ends of the journey?
Lord Brabazon of Tara: My Lords, of the 3 per cent. of vehicles weighed, many are regular visitors and therefore the chances of any one vehicle being caught is heightened. As regards weighing at ports, as part of ferry safety operations we are required to weigh lorries which are boarding ferries. We are also in consultation with European countries to ascertain whether they will make similar arrangements on the Continent.
Lord Mowbray and Stourton: My Lords, will the Minister say whether the present United Kingdom maximum axle weight requirements are in line with European requirements? Will he also say what are the weights in the United Kingdom and Europe?
Lord Brabazon of Tara: My Lords, we are not in line with Europe. The maximum weight on the Continent is 40 tonnes; at present we have a temporary derogation to a limit of 38 tonnes.
Lord Mowbray and Stourton: My Lords, I asked about axle weights.
Lord Brabazon of Tara: My Lords, I do not have the figures for axle weights; I was giving the figure for maximum weights.
Lord Orr-Ewing: My Lords, surely in an age of automaticity it should be possible that lorries are automatically weighed as they roll off the ferries and, if they are overweight, an indication light signals to stop them. Is it sensible to pick on 3 per cent? Are we sure that we are picking on the right 3 per cent? A very big load can be very light and a very small load can be extremely heavy. Therefore, ought not this to be done automatically, thus reducing the manpower and increasing the effectiveness of our control?
Lord Brabazon of Tara: My Lords, more weighbridges are being planned at ports for weighing lorries which leave the ferries. We are also examining methods of increasing the number of lorries weighed by using new technology and faster weighing equipment. Consultations are under way with a view to mounting a pilot project at five selected ports to test a range of options for increasing the number of weighings at ports.
Lord Mowbray and Stourton: My Lords, I am sorry to return to the point, but when my noble friend Lord
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Peyton was Minister of Transport years ago there was far more worry about the axle weight than the total weight of the vehicle. Is the emphasis no longer on the axle weight, and is it not the axle weight that causes damage to bridges rather than the total weight of the vehicle?
Lord Brabazon of Tara: My Lords, we are still concerned with axle weights. I indicated to my noble friend that I did not have the figures for drawing a comparison between Europe and this country in respect of axle weights; I have only those figures for total weight limits. Axle weights are indeed important as regards roads and bridges.
Viscount St. Davids: My Lords, I wonder whether the noble Lord can suggest how we might overcome the dilemma? A number of people break our laws who, if they were citizens of this country, would appear before our courts. However, those people leave our country almost immediately but what can we do about it?
Lord Brabazon of Tara: My Lords, if foreigners are caught in this country they are prohibited from further movement until their load has been adjusted. In some cases instant courts have been convened to coincide with foreign vehicle checks and the appropriate penalties have been imposed.
Lord Boyd-Carpenter: My Lords, in view of the damage done to motorways and the road safety aspect, can my noble friend say whether it is the intention and object of the Government to ensure that all incoming vehicles are weighed and that we do not rely on the fallacious method of trying to guess a vehicle's weight by looking at it?
Lord Brabazon of Tara: My Lords, I cannot say that at present we intend to weigh every single vehicle that enters the country. However, as I said, we intend to improve our resources for weighing the vehicles and to increase the number of checks and weighbridges.
The Earl of Bessborough: My Lords, can my noble friend tell us what will happen when the Single European Act comes into force in 1992? Surely then there will not be any restrictions on the movement of vehicles within the European Community?
Lord Brabazon of Tara: My Lords, our derogation from the 40-tonne limit is temporary but we have said that we cannot accept any increase in the total weight or axle weight until our roads and bridges have been surveyed and strengthened where necessary. That will inevitably take many years to complete and no early increase in lorry weights is contemplated. In any case, any increase could not be brought into effect without the approval of Parliament.
Lord Donaldson of Kingsbridge: My Lords, can the noble Lord inform us what proportion of the 3 per cent. tested complied with, or did not comply with, our regulations?
Lord Brabazon of Tara: My Lords, about 24 per cent. are overloaded.

Influenza Vaccine Supplies
3.12 p.m.
Lord Nugent of Guildford: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what arrangements they have made to ensure that adequate supplies of influenza vaccine are available throughout the country.
The Earl of Arran: My Lords, influenza vaccination is a selective programme recommended only for at-risk groups. In recent winters the number of doses sold has varied between 1.4 and 1.6 million, but when it became known some weeks ago that demand had increased considerably the department liaised with the vaccine manufacturers for the supply to be increased to 2.1 million doses. At the very end, this represents a 25 per cent. increase over recent winters.
Lord Nugent of Guildford: My Lords, I thank my noble friend for that helpful Answer, as far as it goes. Is he aware that his campaign last summer to encourage vaccination against 'flu has on the one hand, increased the take up and the hurricane in the South-East which cut off electricity supplies for some days or even weeks, on the other hand, destroyed a great deal of vaccine which was either in doctors' surgeries or chemists? Therefore, there is a shortage now. In the neighbourhood where I live neither the chemists nor the doctors' surgeries have these supplies. Will my noble friend look further into the matter to see whether it is possible to make a further supply available in our area?
The Earl of Arran: My Lords, my noble friend is quite right in that the Influenza Monitoring and Information Bureau last October held a press conference which suggested that since there had been no influenza epidemic for 10 years one was likely to occur this winter. As a consequence, demand for the vaccine rose and shortages began to be reported. However, I am informed that the department received no reports that supplies were affected by the storms or by the resultant interruption to electricity supply. But if my noble friend is still having problems in receiving supplies I undertake to look further into the matter with the department.
Lord Mason of Barnsley: My Lords, will the noble Earl explain to the House what evidence is available that this 'flu vaccine actually works?
The Earl of Arran: My Lords, I have no direct evidence upon me but I am reliably informed that it is effective for 70 per cent. of those who take it and lasts for a period of about one year.
Lord Winstanley: My Lords, can the noble Earl tell the House whether we yet have an influenza vaccine which is claimed to confer immunity against all strains of the virus? He said that the vaccine is recommended only for at-risk groups. Does he realize
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that many members of the public feel that everyone should have the vaccine and that doctors and patients need clear and unequivocal advice about who should and who should not be vaccinated? Can the noble Earl give that advice?
The Earl of Arran: My Lords, experience in the United States has shown that when general vaccination of the whole population is attempted, a small yet significant number of people will suffer from serious side effects. It is for doctors to decide whether vaccination is appropriate in individual cases.
Lord Ennals: My Lords, will the noble Earl confirm that the main reason that there is a shortage of vaccine is that the influenza monitoring bureau, financed by the pharmaceutical industry, put out a warning of a 'flu epidemic, which led to substantial demand and which certainly exhausted the supplies that were intended for priority groups? Can he say what was the evidence, if any, on which the bureau put out its warning and how much it cost the National Health Service to pay for something which seemed to be a form of scare tactic?
The Earl of Arran: My Lords, I require further notice of that question. I am not aware of the cost to the National Health Service.
Lord Blease: My Lords, will the noble Earl include Northern Ireland in his inquiries? Certainly two or three weeks ago I understand that supplies were scarce in Northern Ireland.
The Earl of Arran: My Lords, as I said, I undertake to look at the current supply situation and will pay particular regard to Northern Ireland.
Lord Ennals: My Lords, may I say how much I welcome the declaration—
Noble Lords: Question!
Lord Ennals: My Lords, may I welcome the noble Earl's statement that he will make an inquiry? May I ask whether in his inquiries he will consider to what extent it is right that a non-governmental body issues advice about an impending crisis rather than the ministry itself? Is it not for the department to take the lead rather than a body financed by the pharmaceutical industry?
The Earl of Arran: My Lords, I understand that the Influenza Monitoring and Information Bureau was established last year and is financed by two of the three United Kingdom manufacturers of influenza vaccine. However, I take the point and I shall talk to the department about this.
The Countess of Mar: My Lords, has the noble Earl seen the recent report that the epidemic is not now expected until next year? Will he ensure that there is sufficient vaccine available for next autumn?
The Earl of Arran: My Lords, I shall take into account the remarks made by the noble Countess.
Lord Nugent of Guildford: My Lords, is the noble Earl aware that his undertaking to look into the shortages to which I have referred will be most reassuring and that I am most grateful?

Civil Servants: Confidentiality
3.18 p.m.
Lord Molloy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether Treasury civil servants are bound by the terms of their employment to the same rules of confidentiality as those imposed on civil servants employed in the security services.
The Lord Privy Seal (Lord Belstead): My Lords, as Sir Robert Armstrong said in his note which my right honourable friend the Prime Minister announced in another place on 2nd December 1987, all civil servants are under an obligation to keep the confidences to which they become privy in the course of their work.
Lord Molloy: My Lords, is the Leader of the House aware that that is a most remarkable Answer to my Question, bearing in mind that on 24th December the Daily Telegraph carried a detailed account of highly confidential discussions between the Chancellor of the Exchequer and senior officials of the Treasury? Can he tell the House how that came about?
Lord Belstead: My Lords, all I can say to the noble Lord is that the Government are concerned to prevent the unauthorised disclosure of information at all times.
Lord Mishcon: My Lords, is the Leader of the House aware that sometimes leakages occur not from civil servants but from Ministers? Is he therefore prepared to put the same barrier in the way of Ministers who continually leak information as that imposed on civil servants?
Lord Belstead: My Lords, in a sense I have replied to the noble Lord, Lord Molloy, on that point. Perhaps I may add to what the noble Lord, Lord Mishcon, said in that it would be better not to probe too deeply into this because it goes very wide of the original Question.
Lord Bruce of Donington: My Lords, is the House to understand that the Treasury advisers, who according to the Daily Telegraph were involved in a row with the Chancellor of the Exchequer, will be prohibited when they come to publish their memoirs from giving a detailed, blow-by-blow account of what actually happened on this auspicious occasion?
Lord Belstead: My Lords, I am sure that the noble Lord would not expect me to comment on any individual case.
Lord Shackleton: My Lords, will the noble Lord refresh his memory on the report of the Radcliffe Committee of Privy Counsellors, of which I happen to a be a member, on the publication of ministerial information? It is an allied matter. If we expect civil servants to maintain an undertaking, the same must apply to Ministers, and not just ex-Ministers.
Lord Belstead: My Lords, of course I take seriously the point made by the noble Lord. This is in fact wide of the original Question but that does not detract from its importance. Perhaps I may go back to my orginal Answer to the noble Lord, Lord Molloy. Quite genuinely, this Government, as all governments have been, are concerned to prevent the unauthorised disclosure of information.
Lord Mellish: My Lords, is it not a fact that some of the autobiographies of Ministers, ex-Ministers and others have shown this whole matter to be full of riddles and something of a farce? The noble Lord, Lord Molloy, in tabling this Question must have known that it is a matter of a person's integrity. The person concerned knows that he is working for the government of the day and he should shut up afterwards. Some Ministers do not give a very good lesson, do they?
Lord Belstead: My Lords, I cannot possibly improve on the question of the noble Lord, Lord Mellish.
Lord Molloy: My Lords, is the Leader of the House aware that many hundreds, if not thousands, of civil servants are now of the opinion that the Government have certain standards for what they call important confidential reports made to Ministers? Some civil servants have been hauled before the courts-they were freed—and others have written books upon which there has been world-wide discussion. However on the vital issue of the next budget of Great Britain information was leaked which has apparently upset many civil servants who believe as I do, in the loyalty that the Leader of the House espouses but are of the opinion that at certain levels and in certain quarters you can get away with disclosure? In other situations a person is harrassed even if there is grave doubt. There is no doubt about the supplementary question which I put: is the Leader of the House prepared to take that matter very seriously?
Lord Belstead: My Lords, I do indeed take seriously the exchange which we have had across the Floor of the House, but I do not think that I should repeat the answer to the first supplementary question which the noble Lord asked me. I do not believe that I can improve upon the original Answer that I gave to him. All civil servants are under an obligation to keep the confidences to which they become privy during the course of their work.
Lord Peyton of Yeovil: My Lords, whatever steps my noble friend may feel it is necessary to take in this matter, will he take great care to ensure that they do not result in making dull books into best sellers?
Lord Belstead: My Lords, that is characteristically wise advice.
Lord Molloy: My Lords, may I ask the Leader of the House whether he would be prepared at some time, as I am sure he takes this matter extremely seriously, to consider coming to the House to make a further statement?
Lord Belstead: My Lords, I am not sure that that entirely appeals to me, much as I have enjoyed the exchanges this afternoon.

Australian Bicentenary: Humble Address
3.26 p.m.
Lord Belstead: My Lords, I beg to move that an humble Address be presented to Her Majesty in the terms set out on the Order Paper.
I am sure that the whole House wishes to support the Motion on the Order Paper of your Lordships' House. The presentation of a vice-regal chair to the Parliament of the Commonwealth of Australia by both Houses of the Westminster Parliament is our way of marking the bicentenary of the first European settlement of Australia in 1788. Australia holds a special place in our affections. I know that many Members of your Lordships' House have over the years developed strong links with the Australian people. We admire the unique beauty of their country, the strength of their institutions, in particular their Parliamentary traditions, and of course their characteristic zest for life.
I am sure that your Lordships wish to know what exactly it is that we propose to give to the Australian Parliament. The chair will be placed in the Senate of the new Federal Parliament building in Canberra. Like the throne in your Lordships' House, it will be occupied by Her Majesty the Queen or the Governor General when opening Parliament. It is to be made of pear wood by craftsmen in London and it will be delivered to Australia in time for the opening of the new Parliament building in May.
I feel sure that your Lordships will agree that this is a most appropriate way for us at Westminster to mark Australia's bicentenary, and that the whole House will join in congratulating the Australian people on their achievements. I beg to move.
Moved, That an humble Address be presented to Her Majesty, praying that Her Majesty will give directions that, to mark the bicentenary in 1988 of the first European settlement of Australia and the opening of the new Parliament House in Canberra, a gift of a vice-regal chair be made, on behalf of both Houses of Parliament, to the Parliament of the Commonwealth of Australia. [Lord Belstead.]
Lord Cledwyn of Penrhos: My Lords, on behalf of the Opposition, I warmly welcome this Motion to authorise the presentation of a vice-regal chair to the Parliament of Australia. As the noble Lord said, the Motion refers to the bicentenary of the first European settlement of Australia 200 years ago. All of us know that the circumstances at that time were not entirely auspicious. There was great courage and there was
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great suffering. It was a different age with different standards and different aspirations. However, it would be wrong to dwell upon these events today.
We join Australia in celebrating the historic transformation that has taken place in that beautiful country. Since 1788 a great democracy has emerged based first on a British and then upon a multi-racial community as well as the original inhabitants of Australia. Looking around the world, we must be thankful that it is a true democracy of forthright and independently-minded people.
Furthermore, in two centuries, it has become a land of beautiful cities with great artistic and scientific achievements. They have their problems, as we have; but it is for their Government to resolve them. I believe that they have the vitality and the vision to do so. We all wish Australia and her people success and happiness in the future.
Lord Diamond: My Lords, we too wish very strongly to be associated on this happy occasion with the remarks which have been made. Many noble Lords must have shared the experience which I have frequently had: on being a Member of a parliamentary delegation, visiting the Chamber of the Parliament in question and seeing there some important piece of furniture which has come from the mother country and which has given great pleasure to all who have seen it, especially when they are fellow countrymen. I think this is a most happy idea on what is undoubtedly a very great occasion.
I hope that I may be excused for being slightly serious because I shall never forget that during the course of my lifetime the Australian people have, without hesitation, twice—twice, my Lords—given the flower of their youth in order to protect our common standards, our common ideals and our common heritage of liberty. It is therefore with very great pleasure that all of us on these Benches wish to be associated with this expression of good will that we give to the peoples and the parliamentarians of Australia, not forgetting those who sit in their Upper Chamber, where this chair will reside for all to see.
3.30 p.m.
Lord Shackleton: My Lords, as the chairman of the Britain-Australia Society perhaps I may say that I think we ought not to regard this as a perfunctory Motion. I very much agree with what the noble Lord, Lord Diamond, said about the role the Australians have played in helping to save this country. I still remember, in 1940, the first appearance of Australian uniforms. I remember that so often in the RAF you saw the dark blue of an Australian, usually a navigator. They were of vital importance to our own survival and I like to think that we shall remember that. A little patriotism now and again is not entirely amiss in these days.
I also remind your Lordships of the fact that it was about this day in 1788 that that great leader and governor—the first governor, Captain Phillip, later Admiral Phillip—wrote:
"We … had the satisfaction"—
after he had abandoned Botany Bay—
"of finding the finest harbour in the world, in which a thousand sail-of-the-line may ride in the most perfect security".

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He named it Sydney.
They are one day ahead now in Australia, but the following day they had an encounter with the aboriginals. They called the place Manly Cove,
"because of the confidence and manly behaviour shown by the natives. They seemed desirous of our hats and attempted to seize some. Like King, Bowes had to order pants to be pulled down for the 'Indians'. They expressed a wish to know of what sex we were".
There have been tragedies in our relations with the aboriginal people, and the record is not one on which we wish to dwell. I can only give as an up-to-date example that the Royal Geographical Society Linnean Society 200th anniversary expedition to the Kimberleys has had many meetings with the aboriginals, and the leader of the Banaba people actually said:
"I am very glad that the skills of my people will be at the disposal of science".
Not all is bad in that area.
Many of your Lordships have had close relations with Australia, particularly the noble Lord, Lord Home, who played a great part in maintaining these good relations. I wish that my noble friend Lord Wilson of Rievaulx were here, because at the age of 10 he went to Perth. His uncle from Kalgoorlie became the president of the Legislative Council. He was not of the same party as my noble friend Lord Wilson. It is alleged, though my noble friend Lord Wilson will not confirm it, that at the age of 10 he told his mother that he would like to stay in Australia, in which case the history both of Australia and of this country might have been different.
The British have in fact contributed about £3 million. The Government gave £1 million, which went largely to that splendid sail training boat "Young Enterprise", but a lot of other money has been raised and the history of this is exciting. It is a birthday party. The only point I should like to make—and, again, the noble Lord, Lord Home, heard me say this the other night at the Guildhall—is that there is a difficulty in getting visas. Perhaps this is a matter that the Government could give a little thought to—all the more so since according to Whicker's programme there are obviously rather specialised services available for people who get visas to go to Australia. This is a splendid occasion, and we should be proud that we are able to play a part in some way and the Houses of Parliament are making an appropriate gift.
Lord Parry: My Lords, it is a privilege to be associated with this Motion for a humble Address. It will not surprise the House, given the nature and purpose of the first fleet, that there were two Parrys aboard. The first was classified as a felon and his wife, Sarah Parry, was given an older profession. I sometimes think that she probably founded the tourism business in Australia which is based on visiting friends and relations.
The serious purpose is that this is a donation of a chair, which is a particularly apt gift when one realises that William Morris Hughes, a London Welshman, Welsh-speaking, became a very distinguished Prime Minister of Australia. He sat in the House for 51 years and for eight years was Prime
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Minister, and is credited by another Welshman, David Lloyd George, as having made a massive contribution to the winning of the First World War with his energy and zeal and the way in which he devoted himself to the interests of the then empire.
It is also apt that the High Commissioner for Australia, the honourable Douglas McClelland, was chairman of the Senate and the representative in the Senate for New South Wales. He is here doing a great job for Australia. While we remember the origins, the history and the difficulties that have been alluded to, what a joy it is that we are able to look on these people, the Australians, as kith and kin of the British and of the Western Europeans, and have shared their pleasure in their 200th birthday.
Lord Boyd-Carpenter: My Lords, as one who goes regularly to Australia and claims to know the country well, perhaps I may add just one word of additional congratulation to the Australian people on the successful achievement of the past 200 years. Australia, as your Lordships know, is a country with wonderful natural resources, full of active, energetic, dynamic and efficient people. I am quite sure that the century which is now opening will show even greater achievements. Indeed, when your Lordships come to the tercentenary celebrations, Australia will undoubtedly then be one of the great powers of the world. We wish it well.
Lord Home of the Hirsel: My Lords, I do not think that the tributes to Australia ought to end without a mention of the word "cricket". They have been our rivals and companions on the cricket field for as long as we can remember, and we hope they will be so for another 100 years.
On Question, Motion agreed to nemine dissentiente: the said Address to be presented to Her Majesty by the Lords with White Staves.

Procedure of the House: Select Committee
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the Lord Ackner be appointed a member of the Select Committee on the Procedure of the House.—(The Chairman of Committees.)
On Question, Motion agreed to.

House of Lords Offices: Select Committee
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Lord Ackner be appointed a member of the Select Committee on House of Lords Offices. (The Chairman of Committees.)
On Question, Motion agreed to.

Legal Aid Bill [H.L.]
3.39 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 35 [Restriction of disclosure of information]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 57CA:
Page 28, line 42, after ("Board") insert ("or any court or other person or body of persons").
The noble and learned Lord said: With the leave of the Committee I shall speak at the same time to Amendment No. 57DA. These amendments seek to restore fully the position under Section 22 of the 1974 Act. The provisions deal, as is the case at present in the Bill, with the board but other arrangements continue. There has been concern that the Government wish to lessen the restrictions on the confidentiality of legal aid applications, a subject related to one which Members of the Committee were discussing a little earlier. This is certainly not so.
In fact the amendment goes further than to restore the position in Section 22 of the 1974 Act which covered only civil legal aid applications. The Bill will now cover criminal legal aid applications handled by the courts as well as any other matters with which the board deals.
The same point is dealt with in the amendments down in the name of the noble Lord, Lord Irvine of Lairg. I believe that our amendments which take account of his amendments cover all that his amendments would cover and possibly go just a little further. I hope that Amendment No. 57CA will be acceptable to the Committee.
Lord Mishcon: I am very glad that the noble Lord, Lord Irvine of Lairg, and I put down Amendments Nos. 57D and 57E. The noble and learned Lord has been gracious enough to put down a government amendment. It was necessary because there were cases where the disclosure of information to DHSS officials was going into quarters where it was never meant to go. There was the case of Whipman v. Whipman in 1951 where the quoted words of the Legal Aid Act 1974, to which the noble and learned Lord referred, were held to include officers of the National Assistance Board, which was the forerunner of the DHSS.
My only reason for rising, apart from thanking the noble and learned Lord for putting right this matter to which we called attention, is to say—and I am sure he will not regard this as an impertinence—that in this amendment he is not quoting the words of the 1974 Act as we were content to do. Section 22 of the 1974 Act said, and at that time the Law Society was doing what the board will do:
"or to any committee or person on their behalf".
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Therefore the confidentiality was reserved for those who were acting on behalf of the Law Society as indeed the DHSS was at that time.
I well understand why in any amendment, because those words were omitted from the Act, one should try to cover precisely the same bodies. I well understand why one wants to cover criminal legal aid as well as civil legal aid by having the words "any court". But the words the noble and learned Lord uses in his amendment are,
"any court or other person or body of persons".
The words "on their behalf" are omitted. As therefore the cloak of confidentiality will now descend upon a communication by anybody to any person or body of persons provided that it is in regard to the matters contained in the Bill, I should have thought that the noble and learned Lord is in fact putting down a curtain beyond what he might intend to do.
I said that I venture this submission with the greatest respect and it is not meant to be anything other than helpful. If the noble and learned Lord will kindly look at the wording of the Act as it will be when it is amended, he will see that it will read:
"Subject to the following provisions of this Section"—
there are exceptions to this rule which are contained in the clause—
"no information furnished to the Board or any court or other person or body of persons for the purposes of this Act in connection with the case of a person seeking or receiving advice".
I am very content, if the noble and learned Lord is, that this is meant to cover people in Citizens' Advice Bureaux and people who give information to officials at the town hall, saying, "I want to consult somebody in connection with my rights under the Act", and thereupon telling an official at the townhall something about his case or what he wants to do. If the noble and learned Lord is content with the extent of that umbrella I certainly do not raise any question. I thought it my duty to call to the attention of the noble and learned Lord, if he will permit me to do so, the wording of the 1974 Act and the limiting words that we put in our amendment which are far more limiting than his own.
3.45 p.m.
The Lord Chancellor: I am grateful to the noble Lord for the spirit in which he has welcomed the amendments and also for the constructive questions that he has asked about the wording. He raises a doubt about whether the cloak of confidentiality has not been drawn too far to cover information. I looked at this point myself in relation to the amendment and the other amendment of the same kind to which we shall come shortly. In the light of the exceptions in paragraphs (a) to (f), it seemed to me that we had got it right. However, this is an important question and if the noble Lord will allow me I shall certainly consider further what he has said. It may be that he will want to enlighten me even further and in more detail about the particular risks that he has in mind. I am sure that we could conveniently do that without taking up the time of the Committee.
I am anxious that we should get this right and have it not too far from and not too short of the goal. If

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we miss the goal by going too far I would be happy to bring it back. At the moment I think it is right, when one has regard to the various exceptions which I think would cover all the proper situations in which disclosure might take place. If the noble Lord has particular problems in mind perhaps I may have the opportunity to discuss the matter with him.
Lord Mishcon: The noble and learned Lord has spoken with his usual courtesy, and I shall be delighted to have the kind of conversation or correspondence that he has in mind. I mentioned as an example the communication that might be made to a journalist for the purposes of any claim or matter under the Bill and as to whether again the curtain of confidentiality is meant to fall on that communication—a matter which is in no way dealt with in the exceptions contained in the clause. As he rightly says, this is more a matter for friendly discussions as there is no difference between us except that we want to know what we are providing for. I gladly accept what the noble and learned Lord has said.
The Lord Chancellor: The journalist case may be of some importance. I want to draw attention to the possibility of general information being handed out by the board under subsection (2). The idea is that information about activities and so on can be furnished in such a way as not to identify the circumstances of a particular case. That is put in with a view to trying to help to ensure that the public investigation and interest in these matters can be furthered without damage to individual confidentiality.
On Question, amendment agreed to.
[Amendment No. 57D not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 57DA:
Page 29, line 18, after ("Board") insert ("or any court or other person or body of persons").
The noble and learned Lord said: I spoke to this amendment a moment ago. I beg to move.
On Question, amendment agreed to.
[Amendment No. 57E not moved.]
Clause 35, as amended, agreed to.
Clause 36 [Proceedings for misrepresentation etc.]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 58:
Page 29, line 34, leave out ("four") and insert ("three").
The noble and learned Lord said: Clause 36 sets out the proceedings and penalties where those seeking or receiving legal aid fail to furnish or falsely furnish the information required of them under this Bill. Subsection (1) lays down the penalty for this offence as being a fine not exceeding level 4 on the standard scale, currently a maximum of £1,000 and/or a term of imprisonment not exceeding four months. This was the penalty under the 1974 Legal Aid Act, but I am informed that it is out of line with the maxima which are normally adoped now. The more usual formulation nowadays is for a level 4 fine to be accompanied by a maximum period of three
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months' imprisonment. I am sure your Lordships will think it right that this normal rule should be adopted in this case and this amendment will bring the Bill into line with the standard practice. I beg to move.
Lord Elwyn-Jones: I respectfully agree that this is a useful and beneficial amendment of which we on this side of the Committee approve.
Lord Renton: I, too, agree but I wonder whether I may briefly mention in passing that one of the offences to which this level of penalties will relate is described in paragraph (a) of subsection (1) as:
"intentionally fails to comply with regulations as to the information to be furnished by him".
We know that there will be a great mass of regulations under the Bill. It may be quite an alarming task for the ordinary lay person to have to decipher the regulations and make quite sure that he has not failed to comply with them, whether intentionally or otherwise, unless they are phrased in such a way that he could not possibly go wrong or unless a suitable explanatory note is attached to them.
Of course, we will not have the chance to amend these regulations to ensure that situation in either House. Therefore I ask in passing that my noble and learned friend—who will, I know, pay particularly careful regard to the contents of all the regulations—makes sure that these particular regulations are such as the ordinary person can understand.
Lord Campbell of Alloway: May I support everything that my noble friend Lord Renton says? I ask respectfully that my noble and learned friend the Lord Chancellor perhaps considers a departure from practice in this way. As a rule, the regulations say at the start of the explanatory note, "These regulations are made pursuant to Section this, that or the other of the Act". It would be very helpful in this case if reference could be made in the explanatory note to the penalties for breach of the regulations as provided in subsection so-and-so.
Lord Elwyn-Jones: However complex the regulations may be—and the Committee will by now by over-weary with what I have said by way of complaint about the mass of regulations-this amendment will be beneficial on any view of the regulations to the person concerned. Therefore for that reason I approve.
The Lord Chancellor: Although it does not arise out of the terms of this particular amendment, since my noble friends have raised the question I should say, first, that of course we shall do our best to make the regulations as explicit as possible. Where information is required from applicants, that is done by means of forms that they have to fill up, and again we shall endeavour to have those forms absolutely plain so that the questions they have to answer are clear to them. It is normal in such forms to draw attention to the possibility that the giving of false information may have criminal consequences. One does not want to frighten people unduly, but, on the other hand, it is right that they should be informed.

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But the real protection for anyone who makes an error is the word "intentionally' which is used here. The idea of that is to prevent people being convicted of a criminal offence under this provision if it was not done intentionally. If it was done because they had misunderstood or something of that kind, it would not he an offence. I renew my Motion.
On Question, amendment agreed to.
Clause 36, as amended, agreed to.
Clauses 37 and 38 agreed to.
Clause 39: [Finance]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 58A:
Page 31, line 6, leave out ("with the approval of the Treasury").
The noble and learned Lord said: On Tuesday night until a very late hour we heard the well repeated statement of the fact that, to a great excess, the baleful eye of the Treasury was upon every movement of the Lord Chancellor in regard to the application of legal aid. The real matter that is raised by the question is: why in the circumstances that are contained on page 31, line 6, and page 31, line 8, is an express reference to the approval of the Treasury being required?
The provisions of Clause 5 of the Bill deal with the major expenditures to be incurred and to be paid by the board, and paragraph (b) of Clause 39(1) provides for such further sums as the Lord Chancellor may from time to time think it necessary, or the board itself may think it necessary, to expend to carry out the purposes of the legal aid scheme.
Then one comes to subsection (2) which reads:
"The Lord Chancellor may, with the approval of the Treasury

(a) determine the manner in which and times at which the sums referred to in subsection (1)(a) above shall be paid to the Board; and

(b) impose conditions on the payment of the sums referred to in subsection (1)(b) above."

It seems to me an unusually detailed exposition of the requirement of Treasury approval, going beyond the range of previous experience of the involvement of the Treasury in the relevant legislation. Perhaps the noble and learned Lord will explain why it is necessary in such wide terms to involve the Treasury in almost every penny that he spends. I beg to move.
Lord Simon of Glaisdale: I support both of these amendments, because I think that the noble and learned Lord has spoken to both Amendment No. 58A and Amendment No. 58B. But the words,
"with the approval of the Treasury"
are unnecessary and, if unnecessary, their appearance in the Bill is positively undesirable. As for the necessity, my noble and learned friend Lord Elwyn-Jones has analysed this clause.
By subsection (1)(a) the Lord Chancellor may pay to the board out of monies provided by Parliament, as I understand it—and my noble and learned friend the Lord Chancellor will correct me if I am wrong—such sums as are required for advice, assistance and representation; and under paragraph (b) such sums as he may determine are required for
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other expenditure. I take it that that refers to matters like staff and accommodation.
It seems to me that the approval of the Treasury is certainly required for both those kinds of expenditure. Under paragraph (a) there will be large sums paid out of the monies provided by Parliament. Although the Treasury is not—if I recollect correctly—responsible for the actual handling of the funds in the Consolidated Fund, in the sense that it does not manage those funds, it has a general responsibility and therefore it is right that the Lord Chancellor should have the Treasury's approval. If I am right in thinking that paragraph (b) deals with accommodation and such things, that again is a matter which intimately concerns the Treasury and is a daily matter of routine. Therefore it is right that the Treasury's approval should be required.
I do not know what is intended by subsection (2)(b). When my noble and learned friend the Lord Chancellor replies perhaps he will say what conditions he has in mind. My question to him is: if those words arc not in the Act when it is passed, will he not as a matter of routine and the ordinary machinery of government arrange for his officials to clear the payments with the Treasury? My recollection of spending departments and the Treasury is that that would be done as a matter of routine. It is not required on the face of the Act.
When we discussed a similar matter on Clause 32(11), I think it was, my noble and learned friend said that these words are common form. So they are, and so much the worse for all of us who have to use the statute book. Why litter the statute book with unnecessary phrases if my noble and learned friend's department would clear such payments with the Treasury as a matter of routine and the ordinary machinery of government?
I said that those words are not only unnecessary; they are positively undesirable. During the Bill's passage so far, the Treasury has come under constant fire. On Second Reading one of my noble and learned friends, who is noted for his moderation of language, said that the Bill was peppered with instances of the hand of the Treasury on the Lord Chancellor. In Committee another of my noble and learned friends referred to the Lord Chancellor as being manacled to the Treasury. I do not by any means share those criticisms. But if Treasury officials insist, as they have in the past, on such unnecessary terms being put into the Act, the Treasury has only itself to blame if it becomes subject to vilification, as it has been during the Bill's passage.
For those two reasons—that the words are unnecessary and, if they are unnecessary, they are undesirable because they clutter up the statute book and focus an unfair gaze on the Treasury—I support the amendment.
4 p.m.
Lord Campbell of Alloway: Surely the sums referred to in paragraph (b) are sums taken from a grant of public funds granted with the Treasury's approval. That is the source. We have at Parliament the source for the granting of the funds. Is it appropriate that the manner of allocation,

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as determined by the Lord Chancellor, for the purposes of
"the other expenditure of the Board",
should in any event be subject to the Treasury's approval. Surely it is for the Lord Chancellor to determine how he allocates out of public funds the expenditure for those other purposes. Perhaps it is my ignorance but what does the Treasury have to do with that?
Lord Renton: On various previous occasions I have supported the noble and learned Lord, Lord Simon of Glaisdale, and he has sometimes supported me, when attempts have been made to exorcise those words from other statutes dealing with different matters. However, we have never had a stronger case than this for getting rid of words which clutter up the statute book, as has been said. We all know something about system of government and the careful and thorough consultations which take place within it, and I find it strange that the Lord Chancellor, one of the great Officers of State, should have specifically written into the statute that he cannot act without the Treasury's approval when he would never dream of doing so even if it were necessary for him to do so.
Sooner or later I hope that wisdom will prevail and we shall no longer have those words inflicted upon us in Bills. If this could be the occasion, many people would rejoice.
I shall add this argument to all those that have already been expressed. I refer to the second amendment tabled by the noble and learned Lord, Lord Elwyn-Jones. In subsection (2)(a) we find that the Lord Chancellor is to:
"determine the manner in which and the times at which the sums referred in subsection (1)(a) above shall be paid to the Board".
Those are matters of comparative administrative detail upon which the Lord Chancellor is the right person to make his own decisions. The money to be approved will already have been advanced either as an Estimate or a Supplementary Estimate, and in any event in the natural course of events, with the Treasury's approval. Why should the Lord Chancellor have to go back to the Treasury yet again for it to decide relatively minor matters as to how and when he is to pay the moneys to the board? That seems utterly absurd.
Lord Mishcon: Not only is it utterly absurd but as the noble and learned Lord, Lord Renton, hinted—
Lord Renton: I am not regarded as learned in this place.
Lord Mishcon: Nevertheless, there are some of us who regard the noble Lord as learned and I intend to continue to use the adjective, and not only as a matter of courtesy. As the noble Lord, Lord Renton, with his learning, said, there is no doubt that this provision is wrong. It is not that it is otiose and it is not that obviously Treasury approval must be obtained. The point he makes—one which I wish to underline for an additional reason that I shall give in a moment—is
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that it is absolutely wrong to fetter the Lord Chancellor's Department in regard to the matters mentioned in paragraph (a) with the duty of having to obtain the approval of the Treasury.
As the noble Lord said, the sum which is available is approved by the Treasury. The way in which it is handed out, the period over which it is handed out in instalments, or whatever, must be a matter for the administration of the Lord Chancellor's Department. If I may say so, if these words were suggested by any Treasury official, then, with the greatest respect to that official, that is a bit of impertinence and should be removed.
I believe that it may help in the tidiness of the debate if, instead of making a separate speech on the next Amendment, No. 58C, I speak to that amendment in my name at this stage. The Amendment is to leave out lines 11 to 13. Those lines constitute paragraph (b), which says that the Lord Chancellor, but only with the approval of the Treasury, may,
"impose conditions on the payment of the sums referred to in subsection (1)(b) above".
The paragraph referred to there says:
"such sums as he may [again] with the approval of the Treasury, determine are requred for the other expenditure of the Board".
So that the debate is a comprehensive one and the noble and learned Lord in his courtesy may reply to the various matters at issue in this clause, I should like to say why I put down the amendment. Perhaps I may now turn to the noble and learned Lord, Lord Simon of Glaisdale. I put it down, first, because it is a little uncomfortable for the Committee again to be faced with the possibility of conditions being imposed the nature of which noble Lords are completely unaware at this stage. It would be helpful if the noble and learned Lord would give some indication as to why these words are included so that we may at least know the workings of the mind of the noble and learned Lord the present Lord Chancellor.
One of the reasons I have asked for this paragraph to be excluded is to draw attention, so that the noble and learned Lord can deal with it in his reply, to the parlous state in which the board may be placed if it has not the proper resources of administration. A crisis point was reached last year and a joint statement was issued by the Law Society and the Bar Council in the spring of 1987, before all the implications of the White Paper could possibly have been taken up, because the White Paper came out only a matter of a month or so before this statement.
The statement said:
"Figures worked out by the legal aid administration show that in l987–88 time taken to deal with applications for civil legal aid and with claims for payment by solicitors and counsel will substantially increase. Whereas previously there have been delays of some weeks there will now be delays of months. The service is already stretched by tight funding. It has been necessary to discontinue the payment of overtime and the employment of temporary staff in legal aid offices: to impose tight controls of the filling of vacancies which occur and even in some offices to decline to deal with incoming telephone calls".
That was the position in the spring of 1987 and this was a joint statement made by the Law Society and the Bar Council.
Now comes the additional work which we know will be imposed upon the board by reason of

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suggestions which have been made in the White Paper and which we have been informed will be taken up. Let me give noble Lords one big example of the new burden on the Legal Aid Board. It was one which came up with approval when we dealt with previous clauses in the Bill in Committee: namely, the right of a person concerned in litigation, where an application has been made by the opposing party for a legal aid certificate, to make representations to the board as to the grant of that legal aid certificate. We thought that was a very important provision in order to stop the sort of bogus case which was referred to in the speech which I remember was made by the noble and learned Lord, Lord Denning.
We thought that was a proper instrument, especially because of the injustice which is so often meted out to somebody who is not an assisted person, faced, as an opponent in the courts, by somebody who is. Noble Lords can well imagine the burden which will fall on the department in dealing with those applications to oppose the grant of legal aid.
It is intended also, following on the White Paper, as I understand it, to impose greater limitations on the scope of legal aid certificates. That, again, will place an additional burden on the administration. I am informed that what the Law Society and the Bar Council really fear is that the legal aid system will fall into disrepute because of delays and inefficiencies caused by a lack of funding.
It is proper to bring this up in the debate. I hope that the noble and learned Lord the Lord Chancellor will in the course of his reply give us some assurance that he is satisfied, having regard to such discussions as have already taken place with the Treasury, that these additional matters can be covered, that there should not be a lack of funding which will lead to delays and the inefficiencies to which I have referred, since there are these additional burdens now being placed on the board as against those which were placed on the Law Society in the past.
4.15 p.m.
Lord Donaldson of Kingsbridge: No layman has spoken on this question and I feel I cannot let slip the opportunity of making perfectly plain that though I may not understand everything the noble Lord, Lord Mishcon, has said, I understood the noble and learned Lord, Lord Simon of Glaisdale, very clearly. He said that if the phrase under discussion is unnecessary it is also undesirable. It seems to me that it is perfectly clear that it is unnecessary, because the money is voted by Parliament and the duty of the Treasury is not to deal with the quantities but to deal with the fact that that money is within the Vote. That is its only duty. So it is clearly unnecessary.
As we should never miss an opportunity of excluding reference to the Treasury when it is possible, I support this amendment very strongly, partly also because I should prefer the decision of the Lord Chancellor without the Treasury to the decision of the Lord Chancellor with the Treasury.
The Lord Chancellor: I am very grateful for the sentiment which the noble Lord, Lord Donaldson of Kingsbridge, has just expressed, in a sense. But I
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think that in approaching this matter we must have regard to the constitutional position. As the noble Lord, Lord Allen of Abbeydale, mentioned earlier on, he had the honour of serving in the Treasury, which he described as a great department of state. It is the department which has the responsibility to Parliament for the proper administration of moneys voted by Parliament, not only as to the total amount but also as to the way in which the amounts voted are disbursed, and to take the proper steps to see that they are disbursed in accordance with the intentions of Parliament and in a way which properly reflects the care which the Government should have of the taxpayers' money.
I hope that all of the Members of the Committee will share the view that it is vitally important that when the public, the taxpayers, are asked to provide money for whatever purpose they should be assured that the maximum possible steps are taken to ensure care of that money and its disbursement in the proper way. The department which has primary responsibility for that is the Treasury although of course every department and every Minister shares that responsibility to some extent.
It is also important in the administration of a matter like legal aid that distinctions are drawn between matters that are still available for control and for intervention and matters that are not. The Committee will see that the provision that we are considering now has been carefully framed. Just in case it escapes me to mention it later, it was suggested that the inclusion of these words may have been as a result of some suggestion from an official of the Treasury. The noble Lord, Lord Mishcon, may take it that the Bill in its draft is the responsibility of the Lord Chancellor. The Bill is put to Parliament in these terms because I as Lord Chancellor consider it appropriate that provision should be made in this way.
The noble and learned Lord, Lord Simon of Glaisdale, expressed the view, which I share, that words that are totally unnecessary should normally not appear on Bills or Acts of Parliament. On the other hand, there are occasions when at first sight words which appear unnecessary may be of vital importance. The Committee will notice that there is an important distinction between Clause 39(1)(a) and Clause 39(1)(b) in this connnection.
There is no requirement for approval of the Treasury in relation to the Lord Chancellor paying to the board
"out of money provided by Parliament—

(a) such sums as are required…to meet the payments"

needed under Clause 5(2) of the Bill.
That is an absolutely statutory obligation so far as we have gone. The requirement of Treasury approval comes only in Clause 39(1)(b) which covers the sums required by the board for expenditure other than the expenditure covered in Clause 5(2).
Clause 5(2) basically deals with the provision of legal advice, assistance and representation. The Lord Chancellor has a statutory duty under this clause to pay those sums. On the other hand, sums for administration of the board are not the subject of a direct statutory duty of that kind because it is

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possible for them to be estimated with more precision and it is right that the board's expenditure should be a matter agreed with the Treasury. Of course it is said, and rightly said, that if the Lord Chancellor is hoping to have a reasonable life he will proceed by trying to get agreement with the Treasury. I have no doubt that those of my noble and learned friends and other noble and learned Lords who have had much more experience of Government than I have had will agree that it is wise, if possible, to get the agreement of the Treasury to one's plans. The ultimate success of a Minister may well depend upon his skill in that connection. But that is different from requiring the approval of the Treasury in other situations and in other ways.
In this case there is, as I said, an important distinction between Clause 39(1)(a) and Clause 39(1)(b). As regards Clause 39(1)(a), as I said, there is a statutory duty to pay the money and no approval of the Treasury comes into that obligation. Therefore once the hoard has incurred expenditure in terms of Clause 5(2), that is, for "advice, assistance or representation", the Lord Chancellor has a statutory duty to pay that money.
That ensures that the board will be in funds to meet the remuneration, for example, of the solicitors' branch of the profession and the Bar to which they have become entitled when they have done work for the board on behalf of citizens who require those services. Therefore the hoard will have a statutory entitlement, without condition of approval of the Treasury, as regards the basic entitlement to that money.
On the other hand, as I said, it is the Treasury that has the management of those funds and therefore it is right that the approval of the Treasury should be required as to the manner in which and the times at which the sums referred to should be paid to the board because obviously, apart from anything else, the Treasury has the management of the tax revenues—the funds that are to be used. As it is responsible for that it must have a say in determining how the sums are to be paid and at what times. But that does not qualify the underlying obligation to pay. It would not, for example, be possible for the Treasury to refuse out and out to pay any of the money which the Lord Chancellor is bound to pay under Clause 39(1).
That is the reason for this very important distinction between demand-led expenditure on the one hand, which is the expenditure which is covered by Clause 39(1)(a) of the kind that I have described—I use the phrase demand-led simply as a shorthand to save me repeating every time the full formula that I have tried to use—and the sums required for the expenditure of the board. So the phrase has a very important role to play. The way in which it is used throughout this provision makes an important distinction which I would regard personally as vital between the two types of money covered in Clause 39(1)(a) and Clause 39(1)(b).
As I said earlier, and as I shall repeat now, it is as appropriate as it is common form for it to be made plain in regulation making powers and in statutory provisions where public funds are involved that the
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approval of the Treasury is required for the making of the regulations or for the disbursement of particular funds. That has been a feature of the great office of Lord Chancellor for many years.
I feel absolutely certain that my noble and learned friends Lord Hailsham of Saint Marylebone and Lord Havers and the noble and learned Lord, Lord Elwyn-Jones, have very often signed instruments which required the concurrence of the Lords' Commissioners of the Treasury signified on the instrument. It is perfectly in accordance with the machinery of Government and it is important in signifying the distinction between the responsibilities of different people in that situation.
It is particularly important if there should arise—as I hope fervently that there will not, at least as long as I occupy my present office—any question of judicial review of any decisions relating to this kind of matter. But if by any chance such a thing should happen it is absolutely vital that the responsibility which may accrue to a particular Minister should be identified with precision in the way that this particular clause does.
Therefore, with great respect to Members of the Committee who have expressed a contrary view, and having given the matter close attention, I must firmly say that it would be quite wrong to accept the amendments. Those phrases and the way they are used in the provision make distinctions which are vital in the administration of the scheme. I hope that the Committee will not accept either of the amendments.
I pass from that matter to the question of administration and the points made in that connection by the noble Lord, Lord Mishcon. There are more reasons than shortage of money for administrative delays. The noble Lord himself referred to the possibility of other administrative difficulties. I shall not repeat fully what he said. However, it is very important that the administration of the scheme should be efficiently managed. It is my belief that an important aspect of the formation of the board is that it should have management expertise on it in order to make cost-effective use of the money available for the administration of the scheme.
The Committee will know at least as well as I do that the mere fact that extra money is given does not necessarily mean an improvement in efficiency of administration. What is required is a good long-term strategy for dealing with the problems that arise and a management plan which is likely to be effective. For that reason, people with experience of management and administration have an important part to play.
I do not want to leave the matter without repeating what I said at earlier stages of the Bill as regards the Law Society. It has shouldered the burden of administration for civil legal aid for a considerable time. The administration of criminal legal aid has been distinct from that of civil legal aid. The Law Society is to be thanked and I am sure that my noble and learned predecessors will join with me in acknowledging the work that it has done in that connection for many years and will wish to thank it on behalf of the public.

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However good administration is, there is always the possibility of improvement. One improvement which I have just mentioned is the possibility that by bringing together (as ultimately the board may well do) the different areas of legal aid administration, green form administration and other methods of funding advice, there may well be administrative savings and efficiencies introduced which could not have happened under the present scheme. One of the major purposes of the formation of the board and the provisions that have been made in relation to it is to seek—and I sincerely hope to obtain—administrative efficiency which will be cost-effective and give a good administrative service for this important social service of legal aid to people of small or moderate means.
I cannot advise the Committee to accept the amendments. I strongly invite it not to do so.
Lord Simon of Glaisdale: Before my noble and learned friend sits down, perhaps he will deal with the contents of lines 12 and 13, about which the noble Lord, Lord Mishcon, and I both asked.
The Lord Chancellor: I am obliged for that reminder. As regards conditions on the payment of sums, it is not easy to give precise details. One does not know how such matters may arise. It may well be that particular payments should be made conditional; for example, on the use of a particular method of dealing with administration. It may well be that the condition on payment of sums would be that they were required at a particular time. It may be that particular situations which had been envisaged as possibly requiring a certain amount in fact obtain. In other words, it may be possible to make a condition that certain sums should be paid only in certain contingencies—for example, as a result of some situation which would require them. There are many types of condition that might be appropriate in certain circumstances of efficient administration.
I hope that that is a sufficient indication of the content that paragraph (b) of subsection (2) has in mind.
Lord Renton: I have a further query on which I should be grateful for elucidation in addition to that raised by the noble and learned Lord, Lord Simon. Perhaps I may say that the noble and learned Lord was at one time Financial Secretary to the Treasury. Therefore he speaks with a great deal of knowledge of those matters.
I have been trying to follow the closely reasoned argument of my noble and learned friend the Lord Chancellor. I have been trying to link it up with the terms of the Bill. That involves a great deal of internal cross-referencing, which has not been altogether easy. I shall be grateful for assurance from my noble and learned friend that, referring back to Clause 5(3) and above all Clause 5(2), which is referred to in Clause 39(1)(a), the approval of the Treasury might be required in order for payments to be made in individual cases. If that is not the intention of the drafting, the drafting should be reconsidered. It will be absurd if the Treasury have to give approval
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before money can be paid out within the powers given under Clause 5 to meet the needs of individual cases.
The Lord Chancellor: I can assure my noble friend that there is no question of that. I fear that my explanation, even if it was closely reasoned, has not been clear enough if that impression remains.
The approval of the Treasury is not required in respect of payments made under Clause 5(2) at all except in relation to the times at which and the manner in which they are to be made. The obligation to pay the sums under Clause 5(2) is an absolute obligation, once it arises, which does not require the approval of the Treasury. With the regulations under which the rates are determined, those under Clause 32 already require the approval of the Treasury. However, once that regulation comes into force so that, let us say, a person under the regulations is entitled to a certain sum of money from the board, then the Lord Chancellor, in terms of the statute as drafted, has an absolute statutory obligation to pay the board all of that money.
There is no intervention by the Treasury which can prevent that obligation from ultimately being fulfilled so long as Parliament provides the money. That applies to the whole of the funds which are required to discharge the obligations under Clause 5(2). Clause 5(3) provides for payments into the fund. The Lord Chancellor is bound to provide the difference between what is required to be paid out under Clause 5(2) and what comes in under Clause 5(3). It is only the balance that must be found.
The whole aggregate of those sums is subject, because of the way the provision is drafted, to an absolute statutory obligation on the Lord Chancellor to pay, although the Treasury has a say in the manner in which it is paid and the time at which it is paid. It would be quite ultra vires under the provisions for the Treasury to attempt to cut down a sum or anything of that kind. I hope that I have made it plain. I am sorry that I did not make it plain the first time.
Since the noble Lord mentioned it, I should also like to say that I always listen with the very greatest respect to the noble and learned Lord, Lord Simon of Glaisdale, because I know that he had a most distinguished career, which included being Financial Secretary to the Treasury. The first time I had the privilege of meeting him was at the Bar of this Chamber when he was dealing with a regional employment premium case which involved a great deal of detail. He was sitting in the position now occupied by my noble and learned friend Lord Havers and hearing a judicial appeal. I learnt very quickly to respect his views and interventions on matters of Treasury. I have not lost that respect and will never lose it.
Lord Campbell of Alloway: Having intervened in this matter, I thank my noble and learned friend for his very detailed and careful explanation, which now that I understand the position I find wholly satisfactory.
Lord Hughes: It is not in any thirst for legal knowledge that I venture to intervene but just mild

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curiosity. The discussion has been based on the words,
"with the approval of the Treasury".
The noble Lord, Lord Renton, has just referred back to Clause 5. The words used in that clause are,
"with the concurrence of the Treasury".
I understood that it was always desirable to use the same language. Is there a difference between those two expressions?
Lord Simon of Glaisdale: Before the noble Lord, Lord Mishcon, sums up this debate, I should like to thank my noble and learned friend the Lord Chancellor for his very kind references to me, and ask him what difference it will make to any action of his, of any official of his department, the Chancellor of the Exchequer or any Treasury official if those words are omitted?
The Lord Chancellor: The answer is that if the board sued the Lord Chancellor under the provisions of the first part of Clause 39(1)(a) he would have no defence that he did not have the approval of the Treasury, whereas if the board sued the Lord Chancellor under Clause 39(1)(b) for administrative expenses he would have a complete answer that the approval of the Treasury had been refused. In that case it would have to join the Treasury—the Minister responsible for the Treasury and his department—to the matter.
That is a very important distinction. It would make a great difference to me and also make some difference in the responsibility of the accounts officer—the Permanent Secretary of the Lord Chancellor's Department. I am sure that he would need to be mighty careful that he did not agree to the payment of any sum under Clause 39(1)(b) for which he did not have Treasury approval, whereas under Clause 39(1)(a) he could agree to pay out, although the manner in which and the time at which the particular sum would be paid would be subject to the approval of the Treasury.
There is just one other point that I should mention. I tried to explain this matter as carefully as I could. It is a complicated subject and naturally I cannot encompass every possible detail. I have tried to take the broad headings. In the minor part of Clause 5(2), paragraph (d), there is the possibility of obtaining the concurrence of the Treasury as the noble Lord, Lord Hughes, says, in a determination for payments other than the principal payments to which I referred under subsection (2)(a), (b) and (c). Perhaps as a footnote I should add that for accuracy. I think that the distinction between "concurrence" and "approval" is rather a fine one. It may be more easy to get concurrence than approval.
4.45 p.m.
Lord Mishcon: My remarks are likely to get neither from the noble and learned Lord.
First of all perhaps I may make the point briefly that it is terribly untidy legislation when one has to try to get some meaning from clauses—to which the noble and learned Lord referred with his usual
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lucidity. I was trying to find my way through the maze. The noble and learned Lord is quite correct. Clause 39(1)(a) deals with matters for which approval of the Treasury is not expressly stated as being necessary. The coverage of that discretion—a power which he has—is defined as:
"such sums as are required (after allowing for payments by the Board into its legal aid fund under paragraphs (a), (b), (c), (d) and (f) of section 5(3)) to meet the payments which, under subsection (2) of that section, are to be paid by the Board out of that fund"
The process of close analysis shows that obviously paragraph (e) is omitted from that definition, although the other paragraphs are covered. Therefore I immediately seek a definition of paragraph (e). On turning to page 5, having looked for clarity in regard to paragraph (e) because of the wording of Clause 39(1)(a), I find that Clause 5(3)(e) reads:
"the sums to be paid by the Lord Chancellor in pursuance of section 39(1)(a)".
I go backwards and forwards with the kind of mental agility which the Lord Chancellor always shows but with which some Members of the Committee, including my humble self, cannot keep pace. In those circumstances I make my first point to him. Before this Bill leaves the Committee it would help to tidy up the references back and forward with some of the clarity that he himself has shown this afternoon.
I now come to the main point of difference between the noble and learned Lord and myself as well as other Members of the Committee. He said that for moneys that are required for all purposes except administration, including the payment out to the solicitors, barristers and so on, the approval of the Treasury is not required under the Bill. However, when it comes to the administration expenses of the board, the approval of the Treasury is required and that would be common form; it is usual.
I have been at the receiving end of his criticism—and possibly rightly so—every time I have asked for a provision about consultation to be included in the Bill. I have been asked whether I expect the Lord Chancellor—whoever he may be at the time—not to do what it is obvious he should do; namely, to seek the counsel of others, be it the Law Society, the board or the Bar Council. Either it is absolutely common form and necessary to seek the approval of the Treasury for the administration of the board's expenses or it is not. If it is necessary and it is common form, why is it in the Bill? If it is not so, why is the Lord Chancellor saddled with the necessity of obtaining the approval in the Bill? I could just about swallow its inclusion if the noble and learned Lord were to say: "It is my department's practice to do this. We are setting up a new board and I feel that it ought to be in the Bill. It would not necessarily be incumbent upon me to seek that approval".
I come to the words that I have sought to have omitted from the Bill; namely, those contained in subsections (2)(a) and (b). Here he is called upon not in regard to the amount of the money required for the administration—and I repeat, not in regard to the amount required—but to have the approval of the Treasury before he can determine the manner in which and the times at which the sums referred to in

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subsection (1)(a) shall be paid to the board. He does not therefore have a complete discretion over subsection (1)(a)—the payment to the lawyers and the other matter—but he has to obtain the approval of the board to determine the manner in which the money has to be paid and the periods in which it has to be paid. He cannot impose conditions even on the payments of the sum referred to in subsection (1)(b).
We have a little definition of the kinds of conditions he has in mind. He cannot even do that without the approval of the Treasury. That cannot be common form. That cannot be usual and I do not see why those words are in the Bill.
I tried to unfetter the Lord Chancellor and his department from the manacles that are being put upon him, quite unnecessarily in my view. What frightens me are the examples that I tried to give the noble and learned Lord of the shortages that have appeared in the past with regard to the Law Society and the Bar Council—against whose efficiency no complaint of which I am aware has ever been made, certainly not by the Lord Chancellor—and the conditions under which they had to function. They found huge delays occurring not as a result of inefficiency but through lack of funds or the way in which they were handed out.
It is for those reasons that I shall press the amendment to which we next come. However, I promise faithfully not to address Members of the Committee upon it because I have spoken upon it in this debate.
Lord Elwyn-Jones: I beg leave to withdraw Amendment No. 58A.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendment No. 58B:
Page 31, line 8, leave out ("with the approval of the Treasury").
The noble and learned Lord said: The same applies to Amendment No. 58B.
[Amendment No. 58B not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 58C:
Page 31, leave out lines 11 to 13.
The noble Lord said: I intend to ask for the opinion of the Committee on Amendment No. 58C. I promised not to make a further speech and I shall keep my promise.
The Lord Chancellor: I wish to reply because I have not dealt with this. I understand the request now is that the whole of this provision in Clause 39(2)(b) be left out. I have sought to give an example; I can give another.
If it was considered that the total number of applications for legal aid might exceed a certain number, it might be very reasonable to provide additional money as a contingency in case that happened. If that happened, the additional money would be forthcoming. In keeping control of taxpayers' money there is much to be said for not handing it out if it is unnecessary.
If, for example, there were some relationship—I am not suggesting that there would be a close one but
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there might well be a relationship—between the amount one requires for administration and the amount of business one has to handle, and if, for example, by a certain time in the year the number of legal aid applications that the legal aid board had received exceeded a certain amount, it might be right that additional money should be released for the administration—to increase the staff or something of that kind. Therefore to have a contingency fund of that kind might be a highly desirable feature of the administration.
If one does not have such a provision as this, there is at least a risk that one cannot do that. One has either to vote a whole sum or none at all. That would remove an entirely desirable administrative technique from this Bill. Why on earth should Members of the Committee wish to do that, I ask respectfully and rhetorically?
Lord Denning: Perhaps I may add a word on this. As a result of the withdrawal of the earlier amendments we have in the Bill the words,
"with the approval of the Treasury".
But if they are to remain as being desirable there seems to be no possible objection to keeping in subsection (2)(b). It is a perfectly good administrative provision to insert and to keep in the Bill.
Lord Mishcon: Perhaps I can immediately tell the Committee that I am in error. I come before the Committee with an apology, but I realise that I cannot put myself right. What I meant to do was to go ahead with obtaining the Committee's view on Amendment No. 58B that the words,
"with the approval of the Treasury",
be omitted at page 31, line 8. On our side we withdrew the amendment. I cannot put that right now. I shall have to come back to the matter at Report stage.
There would be no point in my putting to the Committee Amendment No. 58C when the pith of such remarks as I made, and the whole basis of them, was that I wanted the words,
"with the approval of the Treasury".
omitted. I apologise. It is not the first time that I have erred; and it will not be the last. However, I must try to put myself right at Report stage.
Lord Elwyn-Jones: My noble friend takes too much upon himself. The error was mine. I am sorry. We shall have to put the matter right at Report stage.
Amendment, by leave, withdrawn.
Clause 39 agreed to.
Clause 40 [Definitions]:
On Question, whether Clause 40 shall stand part of the Bill?
Lord Airedale: Clause 40 is a definition clause. It says among other things that,
"'the Board' has the meaning assigned to it by section 2(1)".
Clause 2 says that the board shall be known as the Legal Aid Board. Therefore why does not Clause 40 say that "the Board" means the Legal Aid Board?

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That is shorter than saying that "the Board" has the meaning assigned to it by Section 2(1) and it saves the reader from having to turn back 30 pages to find the answer.
The Lord Chancellor: The only difficulty is that in Clause (2)(1) in the brackets it says,
"(in this Act referred to as 'the Board')".
Therefore one would be in breach of that provision if one were to follow the noble Lord's suggestion. But we shall be happy to consider any improvement. I shall ask the parliamentary draftsmen to consider it.
Clause 40 agreed to.
Clauses 41 and 42 agreed to.
Clause 43 [Short title, commencement and extent]:
On Question, Whether Clause 43 shall stand part of the Bill?
Lord Renton: May I ask my noble and learned friend whether he is able to give any indication as to his intentions with regard to bringing into force various Parts of the Bill?
The Lord Chancellor: I am certainly anxious to bring into force as soon as possible the part which gives to the Legal Aid Board the responsibility for the administration of civil legal aid. I think that is as far as I can go at the moment. As I indicated at Second Reading, I hope that we shall be able to establish the board as a shadow board before it has formal statutory responsibility. Progress thereafter will depend upon consultations with the members of the board once it is established. Experience has taught one over the years that when one is making a major change it may be wise not to go too fast but to consult fairly widely in the course of making these arrangements. That is as far as I am able to go at the moment.
Lord Renton: I am obliged to my noble and learned friend.
Clause 43 agreed to.
Schedule 1 agreed to.
Schedule 2 [Civil Proceedings: scope of Part IV representation]:
[Amendments Nos. 58D to 58F not moved.]
5 p.m.
Lord Gifford Lord Gifford moved Amendment No. 59:
Page 36, line 24, at end insert—
("(8) Proceedings before a Coroners Court.").
The noble Lord said: In moving this amendment let me declare my interest as a barrister remunerated in part under the legal aid fund. This is an important amendment which seeks to allow for legal aid to be granted so that the properly interested parties who appear before a coroner's inquest may be represented by a lawyer remunerated under the legal aid scheme if they do not have sufficient means.
I should like to introduce the amendment by drawing attention to the great value of the inquest
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procedure in our jurisdiction. When there is a sudden and unexplained death or a death under unusual or suspicious circumstances, it is very right and proper that there should be a public examination before a judicial officer (sitting in certain cases with a jury) in a hearing in which those who are properly interested may take part. The properly interested parties include particularly parties who may be held responsible for the fatality, and the next of kin of the person who has died.
Inquests are taken very very seriously by interested parties. When, for instance, there is a death in a factory it is common for the owner of the factory to be represented in order to protect his interests. When there is a death in unexplained circumstances in a police station, similarly the police are represented so that their position can be made known.
The next of kin in such cases are placed in a terrible position. They are in the first place the bereaved; they have suffered the death of a loved one. They are desperate to know why that death has happened. They want to take advantage of the opportunity afforded by the law to appear and have any party who may be responsible for the death questioned. But if they have no means, then legal aid is not available to pay for their legal representatives. They have either to rely on the goodwill of a lawyer appearing without a fee—and there are many members of the Bar and solicitors who have appeared without a fee particularly in cases of controversy. Alternatively they go unrepresented in which case the facts of the death cannot be properly inquired into. Having appeared at inquests, I can tell the Committee that the presence of a lawyer to ask the right questions of the right witnesses is essential for justice to be properly done in a coroner's inquest.
I remember a terrible series of fatalities which took place about seven years ago when a fire swept through Clanricarde Gardens, a tenement block in West London, and killed a number of the tenants. At the inquest the landlord was represented by a distinguished lawyer who called expert witnesses to try to prove that the fire was caused by arson by one of the tenants. The next of kin disputed that suggestion and believed that the fire was the responsibility of the landlord. A number of questions were asked by the lawyers who appeared; questions that could only asked by lawyers. A substantial amount of information was gathered and in the end justice could be done and seen to be done.
There are many other cases where proper inquiries have satisfied the next of kin either that there was no blame attached to someone who might be under suspicion—and that is equally important—or that there was some further cause for inquiry if necessary by civil action.
There are not so many inquests that the inclusion of this provision would add enormously to the expenditure of the Legal Aid Board. By passing the amendment the Committee could ensure that justice was done to a number of bereaved people in times of great difficulty by allowing for their lawyers to use this valuable inquest procedure to question the circumstances and the causes of the death of someone they loved. I beg to move.
Lord Elwyn-Jones: I should like to support the amendment. Those of us who have had experience in coroners courts are well aware of the importance of next of kin and families being represented. In my experience the powers of coroners to intervene seem to have been far more powerfully exercised than I would have expected—I fear to the disadvantage of next of kin and families. However, that may have been one experience in particular circumstances.
Generally speaking the proceedings in coroners' courts arc of immense importance to next of kin and families. The kind of verdicts that will be arrived at are important, for instance, to the reputation of the deceased. They are important particularly to dependants—to families. Life insurance does not cover the contingency of suicide. It is of very great importance to families to be able to establish a proposition to displace the allegation and fear of suicide. I do not like mentioning specific cases in which I myself was involved, but it is of great importance in my submission that families and next of kin of small or moderate means should have the right to legal aid.
It is significant that the 35th annual report of the Lord Chancellor's Advisory Committee suggested extending representation to proceedings before coroners. That committee has high authority, independence and monitoring capacity. The noble and learned Lord wishes to continue to have the services of the Committee. Its judgment is of very great importance, and I venture to think it will have weight upon him. I urge this from my own personal experience. In some cases it would have been of very great importance to have this available, and I hope accordingly that the amendment will be accepted.
Lord Pitt of Hampstead: I should like to support the amendment. I am a layman in this matter, but in my medical practice I have known many occasions when bereaved persons have been very unhappy about coroners' inquests. On all those occasions I had formed the impression that if they had been able to provide themselves with legal representatives, they would have been less unhappy and I should have seen less of them. Therefore I should like the noble and learned Lord the Lord Chancellor to bear that in mind in deciding whether to accept the amendment. Many people do not understand what has taken place and it has not been properly explained to them. They emerge unhappy about the situation but had they had a good lawyer looking after their interests they would not have felt that way. I should like that point to be borne in mind.
Lord Denning: It is many years since I appeared in a coroner's court. It was a case involving a man who had been killed on a railway line and I was instructed by the railway company. The relatives of the man appeared in person and they succeeded in obtaining a verdict in their favour against me as a lawyer.
I believe it to be unnecessary to have legal aid in all such cases. It may be helpful in some cases but one will find that the relatives or those concerned are helped by a lawyer who probably takes no fee. In the great majority of cases there is no need for a lawyer.
358
This is not a case for legal aid but it is one for the relatives and their friends to obtain legal representation, if they wish, at their own cost.
Lord Wigoder: I should like to add a comment in support of the amendment. There are many tribunals where the person who presides has such legal experience that, to some extent, he is able to compensate for the fact that one of the parties is not legally represented. That does not necessarily arise in coroners' courts because the coroner is often a person of limited legal experience, although he may have substantial medical experience. It would assist the fairness of proceedings in that particular tribunal if there was legal representation of both sides.
Lord Mishcon: I should like to add one observation to what fell from the noble and learned Lord, Lord Denning, and which, if I may say so, fell on an icy and stony floor. I should like to put a question to the Committee: I wonder whether any Member of the Committee will reply if what the noble and learned Lord has said is correct. I know of no case involving an accident in which an insurance company has thought that it might be at liability where the insurance company has relied on any official or lay representative to represent it at an inquest. Without exception, it properly thinks it necessary to instruct solicitors and counsel. Why put the family of someone who has been killed in an accident at a disadvantage when they fall within the limits of the legal aid financial provisions?
The Lord Chancellor: I sympathise with the spirit of this amendment. Very trying circumstances may prevail when families are involved in proceedings before a coroner's court. As the noble Lord, Lord Wigoder, has pointed out, the coroner is not necessarily legally qualified. I think that that suggests the nature of the tribunal in question; it is intended to be relatively informal from a legal point of view. The coroner has the responsibility of inquiring into the matters.
From his experience, the noble Lord, Lord Pitt, has indicated to the Committee that families may leave feeling very unhappy, but that if they had had a good lawyer they would have better understood the situation and that would have been an improvement. I should like to say at once that I well understand that point and welcome his intervention. I should not like it to be thought that this Bill was one for intervention by lawyers alone. From my point of view, our deliberations profit from the intervention of Members of the Committee other than lawyers.
The difficulty is that all those matters are matters of priority in regard to the funds available. So far as I have been able to judge—and this is not a judgment made for the first time by me—the coroner's court is not at the top of the list of priorities for the introduction of legal aid. I sympathise with the situation of relatives in a position such as this. However, at the moment I do not feel that legal aid for all coroners' courts is a proper answer, or that it would be the highest priority in extending the present scheme. Therefore, while I have sympathy with the spirit that lies behind the amendment, and with the

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concerns of the noble Lord, Lord Gifford, in moving it, I cannot advise the Committee to accept it.
The scope of legal aid is a matter to be kept constantly under review. If efficiency produces a sufficient amount of savings, who knows what money might be available? However, in the present situation, and with the priorities that I have so far seen, I cannot accept the amendment.
Lord Gifford: I regret that I find the noble and learned Lord's answer to be very unsatisfactory. I must first point out to him that the coroner's court is not an informal court. There are many coroners who conduct the proceedings with humanity and with a sense of concern for the grief of the next of kin, but when controversial facts are being examined the proceedings are far from informal. The representatives of those who might be at fault—and my noble friend Lord Mishcon has given as an example the insurance companies—question the witnesses at great length in order to bring out every possible fact which would support the lack of negligence or the innocence of their client. The next of kin have the right to, and do, cross-examine at length when they are legally represented, and it is necessary that they should do so. Members of the Committee should be under no illusion that a person without a lawyer is at a great disadvantage.
It is then said that this is not a matter of high priority; that justice for those who have been bereaved, in the shape of the right to ask legitimate questions as to why their relative has died, is not a high priority. The legal aid scheme applies in civil cases across the board in the High Court and in the county court. That is subject to the proviso which would apply overall—that it is reasonable for a legal aid certificate to be granted. That proviso would also apply to these cases. Therefore, to say that this kind of case is somehow less worthy than the generality of civil claims will not, in my submission, be tenable.
The situation is so unsatisfactory, and so little has been said to indicate that there is any chance that the noble and learned Lord the Lord Chancellor will change his mind and reconsider, that I wish to divide the House.
5.20 p.m.
On Question, Whether the said amendment (No. 59) shall be agreed to?
Their Lordships divided: Contents, 53; Not-Contents, 113.

DIVISION NO. 1

CONTENTS

Airedale, L.

Gallacher, L.

Attlee, E.

Gifford, L.

Aylestone, L.

Graham of Edmonton, L. [Teller.]

Broadbridge, L.

Callaghan of Cardiff, L.

Grimond, L.

Caradon, L.

Hanworth, V.

Carter, L.

Harris of Greenwich, L.

Cledwyn of Penrhos, L.

Hirshfield, L.

Elwyn-Jones, L.

Houghton of Sowerby, L.

Ennals, L.

Hughes, L.

Ewart-Biggs, B.

Hunt, L.

Fitt, L.

Irving of Dartford, L.

360

Jeger, B.

Prys-Davies, L.

Kilbracken, L.

Ritchie of Dundee, L.

Kirkhill, L.

Seear, B.

Llewelyn-Davies of Hastoe, B.

Serota, B.

Lloyd of Kilgerran, L.

Simon, V.

Longford, E.

Stewart of Fulham, L.

Lovell-Davis, L.

Stoddart of Swindon, L.

Milford, L.

Underhill, L.

Mishcon, L.

Wallace of Coslany, L.

Molloy, L.

Wells-Pestell, L.

Morris of Kenwood, L.

White, B.

Perry of Walton, L.

Wigoder, L.

Phillips, B.

Winchilsea and Nottingham E.

Pitt of Hampstead, L.

Ponsonby of Shulbrede, L. [Teller]

Winterbottom, L.

Ypres, E.

NOT-CONTENTS

Abinger, L.

Hylton-Foster, B.

Airey of Abingdon, B.

Jenkin of Roding, L.

Aldington, L.

Joseph, L.

Alexander of Tunis, E.

Killearn, L.

Ampthill, L.

Kitchener, E.

Arran, E.

Lauderdale, E.

Auckland, L.

Long, V.

Bauer, L.

Lothian, M.

Belhaven and Stenton, L.

Lucas of Chilworth, L.

Beloff, L.

Luke, L.

Belstead, L.

Mackay of Clashfern, L.

Blatch, B.

Macleod of Borve, B.

Blyth, L.

Malmesbury, E.

Boyd-Carpenter, L.

Margadale, L.

Brabazon of Tara, L.

Merrivale, L.

Brougham and Vaux, L.

Mersey, V.

Broxbourne, L.

Monk Bretton, L.

Bruce-Gardyne, L.

Montagu of Beaulieu, L.

Buccleuch and Queensberry, D.

Morris, L.

Mottistone, L.

Butterworth, L.

Munster, E.

Caithness, E.

Murton of Lindisfarne, L.

Campbell of Alloway. L.

Nelson, E.

Campbell of Croy, L.

Nelson of Stafford, L.

Carnegy of Lour, B.

Newall, L.

Carnock, L.

Norrie, L.

Coleraine, L.

Nugent of Guildford, L.

Colwyn, L.

Onslow, E.

Cork and Orrery, E.

Orkney, E.

Cottesloe. L.

Orr-Ewing, L.

Craigavon, V.

Pender, L.

Cullen of Ashbourne, L.

Peyton of Yeovil, L.

Dacre of Glanton, L.

Quinton, L.

Davidson, V. [Teller.]

Rankeillour, L.

Denham, L. [Teller.]

Renton, L.

Denning, L.

Rodney, L.

Dormer, L.

St. Davids, V.

Dulverton, L.

Sanderson of Bowden, L.

Dundee, E.

Sandford, L.

Elibank, L.

Selkirk, E.

Elliot of Harwood, B.

Shaughnessy, L.

Elliott of Morpeth, L.

Simon of Glaisdale, L.

Elton, L.

Somers, L.

Faithfull, B.

Sudeley, L.

Ferrier, L.

Suffield, L.

Fortescue, E.

Teynham, L.

Fraser of Kilmorack, L.

Thomas of Gwydir, L.

Glenarthur, L.

Trafford, L.

Grantchester, L.

Trumpington, B.

Gridley, L.

Ullswater, V.

Haig, E.

Vaux of Harrowden, L.

Hailsham of Saint Marylebone, L.

Ward of Witley, V.

Westbury, L.

Havers, L.

Wilberforce, L.

Hesketh, L.

Wolfson, L.

Hives, L.

Wynford, L.

Home of the Hirsel, L.

Young, B.

Hooper, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.27 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 59A:
Page 36, line 24, at end insert—
(". Proceedings before the Social Security Commissioners.
. Proceedings in the Immigration Appeal Tribunal.
. Proceedings in the Vaccine Damage Tribunal.").
The noble and learned Lord said: This amendment arises from the provisions in that part of the Bill dealing with civil proceedings. It sets out in Part I of Schedule 2, headed "Description of Proceedings", the various proceedings that are covered by legal aid. This amendment proposes to add to that list, which includes seven diverse proceedings, three others: proceedings before the Social Security Commissioners, proceedings in the Immigration Appeal Tribunal and proceedings in the Vaccine Damage Tribunal.
Our submission is that each of those proceedings is of very great importance to the parties which appear before them—often parties with small or moderate means and the very type that ought to be protected by legal aid—and that legal aid should also be made available to them. It is significant that again I call in aid the wisdom and experience of the Lord Chancellor's Advisory Committee, which recommended that legal aid should be granted to the immigration appellate authorities for applications to the Immigration Appeal Tribunal, the Social Security Commissioners and the Vaccine Damage Tribunal. That was done in the 35th annual report of the advisory committee. We have that authority and support for these recommendations.
The first category of proceedings before the Social Security Commissioners, which is a court of resort to those who have been refused the vital Plimsoll line of defence of a social security benefit, concerns proceedings of very great importance to a large section of our community dependent upon the help of social security for survival and continuity. It is in our submission a category of proceedings where those unable to afford the funds for legal representation should be represented. Very often issues of considerable legal complexity arise in regard to the interpretation of the various provisions for social security; provisions which go beyond the resources and capacity of unrepresented citizens to present to the commissioners. That is the first of the three categories.
Immigration Appeal Tribunals are vital and sometimes nearly of life and death significance for those who fear being sent back to the place from whence they came and who want to place before the tribunal the facts upon which they seek to justify their stay in this country. Again, this is a very important aspect of our law. It has been said more than once that our justice can be tested by the way in which we treat foreigners who come to this country, particularly those who have escaped persecution and poverty to come to the shelter of these shores. Very often they find the final resort of the appeal tribunal of great significance in their lives. There again we think that this is an appropriate tribunal.
Then there is the sadder category—I shall not say the saddest—of the dependants and families of those grievously injured by vaccine damage or who have
362
lost their lives because of vaccine damage. It is a touching and sad section of our community; they are of inadequate means to present their cases and a grave injustice may be done to people in this category who, more than anyone, need legal aid. In those circumstances I hope that the noble and learned Lord, not only out of a sense of compassion but also of justice, will see that legal aid is available in all three categories. I beg to move.
Lord Denning: I suggest that the Committee should not accept this amendment. I have not appeared before those bodies individually, but in the Court of Appeal we heard many cases which had been before the Social Security Commissioners and before the Immigration Appeal Tribunal.
I first deal with social security. As a rule, the amounts involved are small to the general population; a few pounds or a few shillings a week, or whatever it may be. First, they are dealt with by the insurance bodies themselves. There is then an appeal from that and then to the Social Security Commissioners. The number of regulations that have to be interpreted is enormous and difficult. There is a whole body of case law on the proper interpretation of these regulations brought Out by the Ministry in large volumes. The Security Commissioners know the regulations backwards and far better than any lawyer who appears before them. The Commissioners deal with most of them on paper and they decide the cases themselves. If there is a case which needs argument, I am sure it can be well dealt with by the Security Commissioners themselves. There is no need to encumber our system with the right to legal representation and legal aid at the expense of the taxpayer in regard to those bodies.
The Immigration Appeal Tribunal falls within the same category. The cases are all dealt with by adjudicators very carefully and sympathetically. The appellants go on from there to appeal and eventually, if needs be, to an Immigration Appeals Tribunal. That Tribunal is expert and knows all the law and the considerations about it. It always gives written decisions and having seen its work I believe that in none of these cases is it necessary to give legal aid as of right. The members of the tribunals know the law perfectly well and probably better than any of the lawyers who would appear before them.
I do not know much about the Vaccine Damage Tribunal, which is rather new. It should not be made the subject of legal aid, as of right, at the present day. I am not in favour of the amendment.
Lord Wigoder: I support the amendment, and I do so with a modest knowledge of the topic. I served for some six years on the Council on Tribunals which not only had to examine the workings of all the tribunals, but individual members spent a great deal of time visiting individual tribunals of all kinds in all parts of the country. One saw a great many of the proceedings that we are now discussing.
I should like to say that when the tribunal system was first set up it was hoped that to a large extent it would be an informal procedure. It was inevitable—and it has in fact happened—that formality has taken over in regard to some of the major tribunals. That is

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certainly the case regarding the three categories in the amendment.
They are all matters of considerable importance. Appeals (not the first hearings) can be substantial matters, measured not in terms of a few pounds, as suggested by the noble and learned Lord, Lord Denning. A few pounds can mean quite a great deal to a poor person even it it does not mean all that much to some of the Members of the Committee.
The proceedings at the Immigration Appeals Tribunal and the Vaccine Damage Tribunal need no elaboration as to their importance to the individuals involved. In all those three categories of cases not only is there now very considerable formality before those tribunals, but there has also developed a substantial body of case law in relation to each of them. It is case law which is not accessible or easily available. It requires a skilled lawyer to discover what are the authorities to be referred to in cases which are heard before those three tribunals.
I know that the noble and learned Lord will express his sympathy with the principle. It has been done by governments for many years now by extending legal aid to a further number of tribunals. No doubt the point will be made that it is a matter of expense, when the funds are available, and so on. That argument is getting a little thin as we approach a budget in which it appears that the funds of the Government are more readily available than they have been over the past 10 or 15 years. Therefore, one hopes that one will not hear too much about the privations which the Treasury has to suffer which makes it impossible to do what the noble and learned Lord the Lord Chancellor would, in his heart, wish to do. It will be of interest if the noble and learned Lord can tell us, when it is possible to extend legal aid to the tribunals, which tribunals are going to have priority. The noble and learned Lord indicated in relation to coroners' courts that, to use his words:
"Coroners' courts are not at the top of the list".
May I venture to ask what is at the top of the list?
I ask that in all innocence. I am reminded of Jack Benny, I think it was, the American comedian, who used to claim that he had been voted the second most popular comedian in the world. When he was asked, "Well, who is the most popular?" he said, "Well, all the other ones tied first equal". I rather suspect that we are going to be in the position today where these tribunals and the coroners' courts all come second equal. but there is no first candidate to which we could at least leave this amendment knowing that when funds are available legal aid would be extended.
Lord Renton: I feel strongly that there should not be the right of legal aid for proceedings in the Immigration Appeal Tribunal. If that were granted the pressure on the Legal Aid Board would become tremendous because there is a great demand for people from various overseas countries to enter our overcrowded country. Although in many of the cases the board would not consider it right to issue a certificate, nevertheless the pressures would be enormous. I therefore feel that we should certainly not grant legal aid in such circumstances. I have an open mind on the other two matters, and I should be
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interested to hear what my noble and learned friend has to say.
5.45 p.m.
The Lord Chancellor: When decisions were taken many years ago to take certain cases out of the courts and send them to various forms of extra-court tribunal, the ideal was some informal sort of proceedings in which ordinary people, non-lawyers, could go along to take part. It is still surely the ideal that that should happen. As the noble Lord, Lord Wigoder, said—and he speaks with the authority of his experience on the Council on Tribunals—a degree of formality that may not have been intended by those who originally set up these tribunals has crept in.
It may be that that development has to some extent been contributed to by the nature of the representation available in some of these tribunals, but on the other hand sometimes these expectations of simplicity are disappointed by the complexity of the circumstances to which the very simple law that the Committee enacts has to be applied. Anyway, I accept of course that matters are more difficult than those who set up these tribunals originally anticipated—and I am now thinking generally and not of these particular ones—and have developed in a way that perhaps is not in accord with what they wanted.
My noble and learned friend Lord Hailsham was faced with this problem some time ago, and instead of just concentrating on legal aid there has been set up a research project in relation to tribunals in order to examine the effectiveness of representation, both legal and non-legal, for parties before tribunal hearings as compared with other forms of tribunal assistance; for example, to the judges, the people who actually operate the tribunals. It may well be that it is help to them that would be most useful; not, I think, in relation to the tribunals that we are particularly speaking about in this amendment.
This research project is studying four tribunals: the immigration tribunals; industrial tribunals; mental health tribunals; and social security tribunals. That is the Social Security Appeal Tribunal, not the commissioners. The commissioners are the very top layer of the statutory authorities in social security, and this is the tribunal referred to as No. 1 on this list.
I well understand that there is a desire to extend some form of representation or help in these tribunals. If I had at this very moment to assign a No. 1, I would not be very far from the first one mentioned in this amendment. I must be quite frank about that. But of course I am speaking as a result of what I have heard over a fairly short time, and I have no doubt that representatives from some other tribunals might have a strong case to put which I have not yet had the opportunity of hearing. But in all frankness, since the noble Lord, Lord Wigoder, asked about it, I personally feel that the Social Security Commissioners is a tribunal which would have high priority in having some form of legal representation before it.
Even if Members of the Committee thought that that was a desirable objective and should happen

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now, there is an important question as to the manner in which help should be given. This amendment makes it by way of legal aid; that is to say, a statutory entitlement to legal aid with a means test and all the rest of it. There may well be other methods of assistance which would be more appropriate in this kind of matter. For example, in relation to the immigration work the Home Office has, under the Immigration Appeals Act 1969, funded in part—90 per cent.—a statutory body which does assist.
There are other possibilities in relation to, for example, the Social Security Commissioners. It might well be that if it was wise to extend some form of help there, it should be under Part III of the Bill rather than under Part IV with its full means test and the like. There is of course also the possibility of the Part II powers of the Bill. Therefore, even if the principle was correct that some form of help should be decided upon, I would not suggest to the Committee that this amendment necessarily would be the right way to go about it.
The submission that I would put to the Committee is that this is a matter to be kept under review once the structure of legal aid is determined. When I say "legal aid" in that context, I mean the whole subject matter of this Bill. Reviews have taken place from time to time, and extensions as a result of them. For example, in 1982 legal aid was extended to the mental health review tribunals, and my noble and learned friend Lord Hailsham has the credit for that. He was the Lord Chancellor at that time. I can assure the Committee that this is a matter in which I am deeply interested, and Members of the Committee can take it that I would be very interested in reviewing the position in the light of what comes out of the research project.
The research project started work in April 1987 and is expected to report in March 1989. It might well be that the situation could be reviewed very fully in the light of that with the board in position. At the present moment, in my submission, apart from the general point that I made, it would be quite unwise to pass this amendment because it would make the representation in the form of fully means-tested legal aid under Part IV.
Lord Elwyn-Jones: I am grateful that the noble and learned Lord has indicated that there is an area of need here that needs filling. He is not disposed at this stage at any rate to say that legal aid is the answer. I feel sufficiently encouraged by what has been said, but sufficiently impressed with the urgency now—not waiting for two years or one year—to give the kind of assistance that legal aid could give in these categories. In the circumstances, and with the knowledge that there is still a Report stage, I ask leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 59B:
Page 36, line 24, at end insert—
(". Arbitration proceedings.").
The noble Lord said: I hope that this amendment will commend itself to the noble and learned Lord for
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two reasons; first, it is just in the light of what is happening now in our country; and secondly, in my view, and in the view of those who know much more about these matters than I do, it would be an economy for the legal aid fund.
As regards what is happening now generally, there are many arbitration agreements which the Committee may feel belong to the field of high commerce and international business. Equally, in this day and age, there are many arbitration clauses in agreements involving "little" people. In consumer agreements people may be at a great disadvantage when they find that the arbitration clause is binding whereas had there been a court case they would have been granted legal aid. The Consumers' Association is anxious that the amendment should succeed.
There is another class of case about which Members of the Committee may have received some literature. The chairman of the Official Referees' Bar Association has been sending out a memorandum advocating what I am now about to say. The chairman, Mr. Butcher, who is one of our leading counsel and is a well known official referee member of the Bar, will obviously impress the Committee. He draws attention to the fact that many householders—and they can be "little" people —find themselves in great difficulty as a result of building contracts where there is an arbitration clause. Quite recently one felt that this was no longer a great worry because of a case, Fakes v. Taylor Woodrow Construction Limited, in 1973 which went before the Court of Appeal. In that case the decision was made that legal proceedings in a construction dispute would not be stayed for arbitration where the plaintiff was impecunious because legal aid was not available for arbitration. That was the voice of justice and mercy which is so continually a mixture in our courts. The plaintiff was allowed to continue with a case in spite of the arbitration clause, and the proceedings in our courts were not stayed.
Unfortunately, and as a result of a recent decision, that is no longer the position in the majority of such building cases. In the case of Crouch v. Northern Regional Health Authority in 1984 it was decided that any dispute which involved the opening-up of an architect's certificate or any similar certificate must be arbitrated since the courts do not have the jurisdiction to open up such a certificate. As in most of the building cases the question of the architect's certificate is very much a consideration; it means that here again the person who is bound by the arbitration clause suffers a great handicap.
I said that this would effect an economy. In my humble submission, that would really be the case. As a rule arbitrations are very much less expensive than litigation in our courts. By adopting this proposal we would save court fees and we would reduce the heavy pressure that now exists upon court officials throughout the land. It would encourage people to adopt this cheaper form of justice which is just as efficient, and it would enable matters to be concluded—matters which affect "little" people in a large way—through the process of arbitration. I beg to move.
Lord Denning: I seem to be against all these amendments. Arbitration is a consensual matter between the two parties to the contract or whatever it may be. The contract provides for what is to happen—whether the architect's certificate is to be final, what will happen if there is an arbitration, who will hold it and so forth. It is a consensual process in which the state is not involved.
In the City of London commercial arbitrations are very important and they may be expensive. Of course there may be cases involving house building and so on with an arbitration put into the printed form. It is a consensual matter and the state should not be involved. There should not be any right to legal aid before it because parties have provided for their own tribunal by agreement. Let them therefore provide for their own representation before it. I am against the state granting legal aid in these matters.
Lord Broxbourne: I am sorry to differ from the noble and learned Lord, Lord Denning, to whom I, in common with most noble Lords, always listen with great respect. But I rise to support the amendment so eloquently and persuasively moved by the noble Lord, Lord Mishcon. I hope that I do not observe a twinge of pain or apprehension across his features when I make that announcement. Perhaps he is trying to recall the words of Virgil:
"Non tali auxilio nec defensoribus istis".
Lord Mishcon: I am grateful to the noble Lord for his gracious remarks. That quotation was in my mind as he was uttering it.
Lord Broxbourne: It is a far cry from the days when the noble Lord used to honour me occasionally with his instructions in a professional capacity.
I preface my brief reasons for supporting the amendment with this preliminary observation. I have no pecuniary interest to declare in the sense that comes within the practice of the House in regard to declaration of interest. I have certain interests of a more general character which perhaps I ought to confess to the Committee, if that is the mot juste, so that it can discount any natural partiality I may have in favour of the subject matter of the amendment.
Though I am no longer in practice at the Bar I am a Fellow of the Chartered Institute of Arbitrators, an Associate of the Royal Institution of Chartered Surveyors and a Vice-President of the National House Building Council, which the Committee may know exists to prescribe and enforce good standards of building construction and, to heap Pelion on Ossa, I am concerned with that publication now known as Walker-Smith on the Standard Forms of Building Contract. I do not suppose that many Members of the Committee are much concerned with that esoteric if unexciting publication. It went through several decades under the blameless title of The Annotation of the Standard Forms of Building Contract. My kind publishers have now renamed it, though I tease them by saying that I notice that they waited until I changed my name before they gave it that name.
The reasons for my support are very similar to those so well expounded by the noble Lord. I too
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received this memorandum from Mr. Anthony Butcher, QC, an erstwhile formidable forensic opponent, still and always a valued friend. He writes in his capacity as chairman of the Official Referees' Bar Association. I do not think it existed in my day but I have no doubt that it does very valuable work.
I adopt the reasoning of the noble Lord, Lord Mishcon, particularly in regard to these building disputes which normally do not occur to people in the context of legal aid, because in the normal building dispute both parties—builders and building owners—are people of substantial means. But of late of course there has come this new category, to which the noble and learned Lord, Lord Denning, referred, of the householder who has a construction dispute in regard to his dwelling house.
He may very often be eligible, or would be eligible, for legal aid but he is debarred by this paradoxical situation. He could get legal aid if he brought his case before the Official Referee's court. Unless this amendment is accepted, he cannot get legal aid, if he goes to arbitration. That is clearly a paradoxical situation, that he should be compelled by reason of the decision in the Crouch case to have recourse to a forum which denies him legal aid. The reason, as given in the Crouch case, is because of the inability of the courts to review an architect's certificate.
The noble and learned Lord, Lord Denning, said that this was to be found in some contracts. It is virtually found in all. The standard forms of building contracts include this provision. It is in Article 5 of the main standard form, which gives an architect the right to issue the certificate, makes that certificate binding, but gives to the arbitrator—and, again, arbitration is compulsory under the standard forms—the right to review and revise the architect's certificate. So the arbitrator can do what is essential and the courts cannot. That was the ratio decidendi of Crouch's case, and it is of course a decisive element in favour of the adoption of this amendment so that that paradox can be removed.
So may I respectfully urge my noble and learned friend the Lord Chancellor not to seek to deploy his great powers of advocacy in defending this paradoxical position? It can be removed only by the adoption of this amendment. Therefore I hope that, even if he does not say immediately that he is going to accept it, he will at least undertake sympathetically to review it with a view to introducing such a provision on the Report stage.
Lord Hailsham of Saint Marylebone: I would just say this in support of what fell from my noble and learned friend Lord Denning. I do not in the least want to stop my noble and learned friend on the Front Bench from reviewing the situation. But if he grants this amendment now, I believe it will be a millstone around his neck because of the immense cost of it. It will take priority, for instance, over the very things which the noble and learned Lord on the Front Bench opposite was advocating in the last amendment.
Secondly, as regards what was said by my noble friend Lord Broxbourne, the argument contained in the circular and the argument advanced by my noble

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friend Lord Broxbourne is self-defeating. The reasons why the courts decline to reopen an architect's certificate is precisely because the architect's certificate is the certificate of an experienced, professional man, accepted by both parties, and the reason why the arbitrator—if there is an arbitration—is allowed to look at it when the courts will not, is precisely because the arbitrator knows, without being advised by solicitors and counsel on both sides after prolonged legal argument, whether or not the architect's certificate ought to be reopened. One of the types of arbitration—it is not the only type—where parties agree to arbitration is precisely to avoid the prolixity of legal proceedings conducted according to legal procedure.
The Lord Chancellor: I heed my noble friend's admonition, which I take to be an admonition to be rather brief on this amendment, and I adopt what has been said by the noble and learned Lord, Lord Denning, and my noble and learned friend Lord Hailsham. So far as concerns Crouch's case, as I understand it the reason why the architect's certificate cannot be altered except by the arbitrator is because the contract so provides. If one has entered into a contract that one will be bound by the certificate of an architect nominated by the person, it seems at least not to be the strongest possible case for legal aid.
In the ordinary case, Fakes' decision would apply and if the interests of justice require it the court would allow proceedings in court to proceed, notwithstanding an arbitration clause, as I understand the law of this country. So this is a very special point.
The noble Lord says that arbitration is inexpensive, quick, and so on. That has been claimed for it more than once. I am not sure whether it is always entirely justified; but it may be almost as good a claim as claiming that legal aid should be available in arbitration. In my submission, if there is a list of priorities for extension of legal aid, arbitration is certainly nowhere near the top of that list. I would strongly submit that this amendment should not be agreed to.
Lord Mishcon: My reply equally will be brief. I refer the noble and learned Lord to the decision in Crouch, and to the remarks of the Master of the Rolls. He said that one of the reasons for that decision was to reduce the length of the list of the official referees who habitually deal with construction disputes, and that rather negatives much that has been said in this debate. In the circumstances, I should very much like to consider with care what has been said, especially by the noble Lord, Lord Broxbourne, for whose remarks I was infinitely grateful. I am talking about the remarks in support of the amendment at this stage. In the circumstances, and having regard to the state of the clock at this moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Gifford Lord Gifford moved Amendment No. 60:
Page 36, line 27, leave out paragraph (1).
The noble Lord said: The purpose of this amendment is to remove from the excepted proceedings in Part II of Schedule 2 proceedings which are in respect of defamation. All the other excepted proceedings seem to have some logical reason why they should be there; but, in my mind, this one has not. The law lays great stress on the protection of a person's reputation. The British people appear also to lay great stress on the protection of a person's reputation because the damages awarded by juries who have to try to quantify in monetary terms the damage caused by a slander or a libel are very high in many cases.
The reason why they place such stress on a person's reputation is the same reason as was given by Cassio to Iago in Shakespeare's Othello when he said:
"O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial. My reputation, Iago, my reputation!"
I have never understood why it is that only the wealthy can get access to justice when it is a question of their reputation. Certainly the reputations of the poor should be regarded with no less weight than the reputations of the wealthy. I have from time to time had to advise that although someone has an arguable case against a great newspaper to take libel proceedings, the cost and the risks in undertaking those proceedings are so great that the client really cannot afford to proceed. In many cases, the newspapers know that and with their unlimited resources take advantage of the poverty of a potential plaintiff who accuses them of libel. It would be a valuable addition to our legal aid law. I beg leave to move.
Lord Denning: This matter has been discussed on many occasions in this place. It has been before the Law Commission, Mr. Justice Hirst's Committee, and the like. The argument put forward is that a poor person should be able to bring an action for defamation on legal aid. The answer is that if it were allowed no end of people who had been perhaps defamed—rightly or wrongly—would put the newspapers to great expense. Many cases would take up the time of the courts indefinitely and at great expense. It is much better to leave out defamation from the legal aid system.
Lord Renton: It is a good principle of legislation that bottomless pits should be avoided.
The Lord Chancellor: As the noble Lord who moved the amendment knows, it has never been law for defamation actions to be included in civil legal aid. The people who set up the scheme were no doubt wise and they did so for wise reasons. As the noble Lord said, it is uniquely difficult to forecast the outcome of defamation proceedings, and that makes it especially difficult to apply the "merits" test normally applied to such proceedings.
Advice not to take an action for defamation is often the appropriate advice to give to someone who is wealthy and apparently has a good case. I have given such advice myself and the persons involved have come, although perhaps not immediately, to see that it was wise advice. Whatever the merits of the

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argument for the provision, it could not by any means be of high priority. As the noble and learned Lord, Lord Denning, said, it is likely to be an expensive item. I would rather extend legal aid, or some form of assistance, to the social security commissioners' proceedings than to actions for defamation. I hope that the noble Lord will feel able to withdraw the amendment.
Lord Gifford: I do not know whether the noble and learned Lord's last observation is an offer in disguise. But, in the hope that it might be, and that we might in the end receive some extension to the legal aid scheme in the interests of the very poorest, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Schedule 3 agreed to.
Schedule 4 [Amendments of the Legal Aid (Scotland) Act 1986]:
The Earl of Dundee The Earl of Dundee moved Amendment No. 61:
Page 39, line 42, at end insert—
("PART I
Direct payment of fees and outlays by legally assisted person
1. In section 4(2)(a) (payments out of the Scottish Legal Aid Fund), after the word "due" there shall be inserted the words "out of the Fund".
2. In section 17 (contributions. etc.)—

(a) in subsection (1), for the words "the Fund" there shall be substituted the words "the expenses incurred by them (or on their behalf)";

(b) subsections (3) to (8) are repealed;

(c) at the end there shall be added the following subsections—

"(9) Except insofar as regulations made under this section otherwise provide—

(a) any award of expenses to a legally assisted person; and

(b) any property (wherever situated) recovered or preserved for him in the proceedings for which he is legally assisted shall be paid initially to the Fund, to be applied towards the expenses incurred by or on behalf of the legally assisted person in those proceedings.

(10) Where the solicitor acting for a legally assisted person is employed by the Board for the purposes of Part V of this Act, references in subsection (1) above to "expenses" and in section 33 of this Act to "fees and outlays" include references to sums which would have been payable to that solicitor had he not been so employed.
(11) Nothing in subsection (9) above shall prejudice the power of the court to allow any damages or expenses to be set off.".
3. In section 32(a) (restriction on payment etc.), the words ", out of the Fund" are repealed.
4. In section 33 (fees and outlays of solicitors and counsel) in subsection (1), for the words from "out" to the end there shall be substituted the words—
"in respect of any fees or outlays properly incurred by him in so acting—

(a) by the legally assisted person, to the extent to which a contribution has been determined for him under section 17 of this Act;

(b) to the extent that such fees and outlays exceed any such contribution out of the Fund in accordance with section 4(2)(a) of this Act.".

PART II")
The noble Earl said: Schedule 4 amends the Legal Aid (Scotland) Act 1986. The amendment will alter the arrangements for the collection of contributions
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from assisted persons in civil cases, so that payment will become a matter for settlement between solicitor and client. This change will reduce the administrative costs for the Scottish Legal Aid Board and place the assisted person in the same position as a private client in relation to the contribution.
The amendment will not be commenced until consultations have taken place with the Scottish Legal Aid Board and the Law Society of Scotland as to timing and any related regulations. I beg to move.
The Earl of Selkirk: I should like to make one observation, not on what the amendment does but on the way it does it. If one looks at Clause 41 one sees the words "this Act". In subsection (10) of the amendment at line 3, one sees the words "this Act". Here is one Bill using the words "this Act" and referring to two different Acts. That is probably wrong. I see no reason why the amendment should not specify the Act to which it refers.
I shall add one further point. The amendment is amending a different Act. It should be done by the textual method, which is generally accepted, instead of in this rather scraggy way, which will not make it easy to understand. I should like the noble Earl to think about that point to sec whether it can be corrected. I am sure that in this Bill to refer to "this Act" when it has two different meanings is wrong and careless. I suggest to the noble Earl that he take the amendment back and look at it more carefully.
The Earl of Dundee: I am grateful to my noble friend for his contribution about the drafting, I will take it back, look at it, and without commitment, possibly bring it back on Report.
On Question, amendment agreed to.
Schedule 4, as amended, agreed to.
Remaining schedules agreed to.
House resumed: Bill reported with amendments.

Betting, Gaming and Lotteries (Amendment) Bill [H.L.]
6.15 p.m.
Lord Newall: My Lords, I beg to move that this Bill be now read a second time. I wish to declare my interest as the chairman of the British Greyhound Racing Board which is the elected representative body for greyhound racing that operates under the rules of racing of the National Greyhound Racing Club.
This is the third time in eight years that I have asked for the indulgence of the House to agree to measures which seek to amend the statutory straitjacket in which the sport of greyhound racing was placed in 1933 and 1934. I am pleased to say that on two previous occasions in 1980 and 1985, the Private Members' Bills which I submitted to the House were eventually passed and made law. Those Acts, principally the 1985 Act, removed the statutory ceiling on the number of days and races when greyhound racing could be held.
The House has heard much discussion in recent weeks of the problems that in another place can beset Private Members' Bills which have been approved by

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this House. However, I hope that the Bill will be supported in both Houses.
The Bill seeks to amend one of the many remaining restrictions on greyhound racing; namely, the limitation to five times the normal public admission on the charges that can be made to on-course bookmakers at greyhound racecourses. Those charges are unrealistic and accepted as such by the bookmakers themselves who make voluntary payments to the racecourse managements to supplement the low statutory returns. Their total nationwide voluntary contributions to the tracks amount to approximately 55 times the price of normal public admissions. That is not over-generous. In fact the National Association of Bookmakers has already offered to make suggestions that bookmakers increase their voluntary contributions.
My Bill simply seeks to regularise this situation by increasing the statutory multiple to 70 times the cost of the admission. I mean that as an absolute maximum, thus dispensing with the necessity of having to place so much reliance on voluntary payments. It is true that horse racing has a similar restriction of five times the admission for on-course bookmakers; but of course that sport has the distinct advantage of having the support of an off-course betting levy given to them by the Government. Greyhound racing does not have that advantage so this Bill is solely related to greyhound racing and does not affect horse racing in any way. The authorities of horse racing have written to my board saying that they will not themselves seek a similar amendment to the 1963 Act.
Whenever a Totalisator is operated at a greyhound racecourse, that racecourse must by statute permit on-course bookmaking. Managements are under a statutory duty to provide convenient space and facilities where the bookmakers can operate. The ratio of betting at greyhound racecourses is approximately 75 per cent. to the bookmakers and 25 per cent. to the Totalisator. The permitted legal deduction by the Totalisator operator is limited by statute to 17½ per cent. So clearly the Totalisator cannot itself support the operation of greyhound tracks at 17½ per cent. of an ever decreasing proportion of the on-course betting turnover. Now contrast that position with the on-course bookmakers. They have only to obtain a bookmaking permit from the licensing justices and then they have no further degree of accountability whatsoever. They can make any deductions they wish for profit and any other arrangements. There is no method at all whereby either the licensing authority or the racecourse management can intervene.
The average admission charge for greyhound racecourses in Britain is about £2, resulting in an average maximum charge of £10 per bookmaker. For this small sum he can set up his stand at a greyhound track and use all the facilities to operate his business. In total, there are 90 tracks in this country. So the bookmaker is required to make no further payments whatsoever towards the operation or promotion of the sport.
As I have said, many bookmakers recognise that the present statutory charge is quite inadequate. Nearly all of them make voluntary payments to the
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racecourse managements in addition to the statutory charge. It is estimated that the nationwide sum which accrues from these voluntary contributions is approximately £6·3 million per year. However, this is a very uncertain method by which to operate a business. These voluntary charges can be and are withdrawn without notice by bookmakers and indeed can be subject to legal challenge as being contrary to Section 18 of the Betting, Gaming and Lotteries (Amendment) Act 1963. It is considered that these voluntary payments are outside the ambit of this section, but of course challenges of this nature are a continuing worry for the racecourse concerned. Voluntary contributions also invite interference from bookmakers in the conduct of racing. Regrettably, there have been a number of such instances.
So in order to take a more realistic view of the present and future arrangements, this Bill provides for the adoption of a new multiple of 70 times the admission charge as maximum. Ideally, there is a strong case for saying that this section should be repealed entirely and that market forces should prevail which would take into consideration obviously the requirements that bookmakers have to be admitted whenever a Totalisator is operated.
However, our discussions with the Government have brought forth the view that the most acceptable form of amendment is to alter the multiple. I should like to ask my noble friend the Minister whether he would consider this point very seriously and perhaps discuss it further with his experts and advisers.
After all, the restrictions basically on greyhound racing in 1933 were there to protect the working-class man from gambling away his money instead of looking after his family. This was long before supermarkets, betting shops, do-it-yourself and the hundreds of new temptations to spend money which are put in the way of everybody today. In those days, betting on horses and dogs was the only way for the lower paid (or anybody for that matter) to gamble at all.
So I have endeavoured to sketch out the present situation concerning the sport of greyhound racing and the necessity for the Bill. It is a sport which does not receive any subvention whatsoever and must stand or fall on its own feet. The Bill seeks only to amend one of the remaining statutory shackles from the outdated legislation and follows the precedents contained in the previous amending Acts. With over 4 million spectators in 1987, slightly more than the people who went horseracing, and an industry employing over 5,000 people, we cannot afford to ignore the situation. Therefore, I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Newall.)
6.30 p.m.
Baroness Ewart-Biggs: My Lords, I am very grateful to the noble Lord, Lord Newall, for giving such a clear presentation of his Bill. I am the more grateful because I personally feel rather inadequate when confronted with these serious matters in this sport. The noble Lord has made very clear what the problems for the sport are and that there is a need for

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some kind of change. I also understand from what he has said that the present admission charge for bookmakers to the track is not satisfactory to the sport as a whole.
I have had one or two thoughts about this issue and I should like to put these to the noble Lord. Also at the end of my speech I should like to put another idea to the Minister, although I am not quite sure what his response to this Bill will be.
From my way of seeing it, there seem to be three separate interest groups who are concerned, all of whom have to be satisfied. First, there is the National Greyhound Racing Club, who operate the sport. Secondly, there are the bookmakers, whose interests are represented by the National Association of Bookmakers. Thirdly, there are the spectators and punters. I have been unable to find anybody who represents their interests here; although I have asked around the House this afternoon, I have found no one who satisfied me on what the punter needs.
The noble Lord has presented the case as from the British Greyhound Racing Board and made it clear that the new multiple of 70 may sound excessive over the present multiple of five. However, he maintains that the true payment is at present nearer to 55 times the admission charged by way of voluntary and statutory payments. However, the British Greyhound Racing Board concede that the multiple which this Bill seeks to raise is artificial and has no relationship whatsoever to the cost of promoting the sport and ensuring its integrity. I therefore understand that this multiple has been chosen in rather an arbitrary way as higher than the present charge but not so high as to make it unacceptable.
Perhaps I may move on to the reaction of the National Association of Bookmakers. I must admit that it seems to be rather unequivocal. They say that they are implacably opposed to Lord Newall's Bill and the reason they give is that they believe that it is unfair to raise the multiple of maximum admission fee which can be charged from five to 70. They point out that this sum must be paid by a bookmaker each time he attends a meeting which could be several times a week.
Also there are far fewer punters per bookmaker at a greyhound track than at a racecourse. Consequently, the bookmaker at a dog track has less potential revenue. This I understand is the position that the bookmakers present. The association also says that any further increase would have to be passed on to the punters. This is where the situation becomes rather more worrying. It suggests that it would lead to a decline in the number of punters, a fall in turnover and still fewer bookies on the tracks. This is what my investigation has uncovered as regards the bookmakers.
I wish briefly to mention some of the recommendations which came out of the report of the Royal Commission on Gaming chaired by the noble Lord, Lord Rothschild, in July 1978. The commission at that time recommended that charges made to bookmakers should remain unchanged. The report stated:
"We are not persuaded by the cases made for adjusting the present formula limiting the charges which tracks can impose on bookmakers on course and we recommend that it should remanin unchanged".
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The provision that bookmakers cannot be charged more than five times the entrance fee was:
"designed to protect the bookmakers on course, to ensure that the punter has access to a competitive form of betting when totes are in operation, partly to protect the punter and partly to prevent track management from making excessive profits".
The report concludes:
"We are in no doubt that the position of bookmakers on tracks operating totalisers should be protected. If some change were needed to ensure this it would have our support. But the National Association of Bookmakers apparently had no specific change in mind and matters can therefore be safely left as they are".
I know that that report was published in 1978, which is a long time ago, but nevertheless those were part of the recommendations put forward by the committee of the noble Lord, Lord Rothschild.
Finally I come to the position of the punters and spectators. As I have said, there seems to be doubt that the extra cost put on to the bookmakers might be passed on to the punters. So with their interests in mind I find it difficult to give my wholehearted support to the noble Lord's Bill and would very much rather put a suggestion to the Minister, which would be that perhaps we should devise some alternative form of funding, which, as the noble Lord, Lord Newall, said, is certainly necessary. That alternative form of funding could be introduced with the mutual support of the various interested parties involved in the running of this sport. That would mean that there was a fixed admission fee which was of a different nature for the bookmakers and not based on a multiple of what the spectators pay.
I understand completely from what the noble Lord, Lord Newall, said that there is a problem. I am not absolutely convinced from my investigation that his solution is the correct one. He himself admitted that he was not sure that it was the ideal way of dealing with the situation. But I shall be very interested to hear when the Minister replies whether he will put forward some ideas of his own.
6.34 p.m.
The Earl of Arran: My Lords, it may be helpful if I intervene at this stage to indicate the Government's views of the Bill which the noble Lord, Lord Newall, has introduced and which he has very capably explained to us. The present law—Section 18 of the Betting, Gaming and Lotteries Act 1963 — presupposes the presence of bookmakers when there is greyhound racing and governs the amount which management may charge bookmakers and their staff for this opportunity.
As the noble Lord indicated, one original purpose of the provision has been overtaken by the passage of time and changes in social culture. The origin was a concern to forestall the multiplication of greyhound tracks, which were providing a new betting opportunity to working men. The social evil which the legislation sought to anticipate did not come about, whether because of the success of the provision, a change in the habits of the working man or his recourse to other leisure possibilities. The other purpose of the provision was to assist in providing a choice of betting for punters between the tote operated by the track owner and the odds offered by the bookmakers. This may be seen to retain some validity as a measure of fair competition.

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It is, however, common ground that the original restriction on the amount that management may charge bookmakers is open for revision and negotiation. This is reinforced by the fact, which the noble Lord has explained, that bookmakers already make voluntary payments in addition to the charges levied on them as a result of the legislation.
As the noble Lord has indicated, the Government would favour a reform of the current arrangements should that be agreed by both parties. The two representative bodies, namely the British Greyhound Racing Board and the National Association of Bookmakers, have been in negotiation for some years about a means of rationalising the financial arrangements between their members.
As I understand the position, the measure before your Lordships is not agreed by the bookmakers. This may be because the sums generated by the proposed new factor of 70 times the admission charge could be greater than those currently provided by the voluntary payments. But it seems that it is rather the inclination of the bookmakers to keep to an informal system.
The nature of the present system of voluntary payments may be thought not to be entirely satisfactory. On the other hand, the measure before your Lordships has not secured the agreement of the bookmakers, which may be thought to be a necessary ingredient. The Bill does address a real issue. Whether the solution it proposes is the right one is a question for Parliament to judge. I most readily note the comments made by the noble Baroness, Lady EwartBiggs, but in the first instance it is for your Lordships to decide whether the Bill should proceed.
6.36 p.m.
Lord Newall: My Lords, I am very grateful to the noble Baroness, Lady Ewart-Biggs, for the time and trouble that she spent in doing her research. I was extremely interested to hear what she said as well as what my noble friend the Minister said.
If the noble Baroness wants to know what a punter wants I can tell her. He wants very good racing at a reasonable cost, with good dogs, good tracks and good prizes. Unless we as a racing board have more money coming in many tracks may have to close. Then people will be put out of work, as well as putting the punters out of their flutter.
The Royal Commission chaired by the noble Lord, Lord Rothschild, was not without its own flaws and they have been proved with the passage of time. But I do not think it realised that in 1988 the bookmakers would be paying up to 55 times the admission charge voluntarily. Therefore that knocks a bit of a hole in the report in some ways.
As I have already said, the informal system is no way to run a business. We must find a method to run this sport. If we are two people who cannot find a solution, it is up to one of us—which is why I am introducing this Bill—to try to find a solution which will be workable even if one side does not agree with it at the moment. I am most grateful to noble Lords and to the noble Baroness for what they have said
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and I shall note it very carefully. I hope that we can see this pass to the other place. I beg to move.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Gale Damage
6.39 a.m.
The Earl of Onslow The Earl of Onslow rose to ask Her Majesty's Government what assessment they have made of the extent of the damage to trees and to the countryside caused by the gales of 16th October.
The noble Earl said: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
On 16th October last year God blew with his winds and they were scattered. I am not talking about the Spanish Armada but 15 million trees across the southern and eastern quarter of England. There are 4 million cubic metres of wood lying pathetically on the ground, some of them already beginning to rot. Even more trees will have to be felled to clear up this horrendous mess.
Sevenoaks is one, or possibly nil, oak at the moment. Wakehurst, Kew, Petworth, Emmets, Sheffield, Goodwood and Nymans have all been ravaged by nature. I know that my noble friend Lord Montagu of Beaulieu, as Chairman of English Heritage, will wish to elaborate on the damage which has been done to English Heritage gardens and parks.
Parklands, hedgerows and individual farm trees have been uprooted and severely damaged. I have been told by Task Force Trees and the Countryside Commission that 2 per cent. to 6 per cent. of all trees in affected areas were damaged. At first sight, that is not a very large number. However, the storm went in whirlygigs and it ripped up large chunks here and there and left other areas without damage. A neighbour of mine who farms some fields on the northern slopes of the North Downs had some particularly attractive beech trees under which cattle or sheep grazed. They added considerably to the beauty of the Surrey hills. His fields are now littered with fallen beeches, which have dug holes in the fields leaving great chalk gouges in the countryside. Those trees were all happily growing on 14th October.
Perhaps an extreme and poignant example of the damage will be of interest to your Lordships. It involved my very popular and noble—I use that word not only in the parliamentary but also in the personal sense—friend Lord Chelwood. He has a property of 200 acres. One hundred acres are in trees which he has been planting and tending for 25 years. That was all done exactly according to the book and with the advice and consent of the Forestry Commission. He has 80 acres of trees lying on the ground. His conservatory has been lifted out of the ground and the broken glass is scattered all over his lawn. He estimates that cost of the damage is between £250,000 and £500,000. The prospect of bearing that loss and clearing it up is extremely depressing and daunting.
Some of us have been asked, "What about insurance? Why was the damage not insured?" I have been in touch with my insurance contacts and NFU

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Mutual, with whom I do not deal but whom I know. They say that it is not the practice to do that in England except on rare occasions where trustees of charitable funds have done it. I know that it is done much more in Scotland since the big blow of 1968. I believe that in Scotland the costs are approximately £2 per hectare per annum after 15 years. I suspect that my noble friend Lord Stockton may want to elaborate further on the damage which has actually been done.
The Timber Growers of the United Kingdom, the Forestry Commission and the timber merchants got together and formed a Windblow Action Committee. I wish that people would not use words such as "windblow". Words such as "wind", "hurricane", or "gale" are perfectly adequate. That is but a minor criticism, however. The group has produced an excellent report. It was submitted this morning to the Agricultural Select Committee of another place. I know that the Minister has a copy.
Perhaps I may summarise the main conclusions of the report. The storm of which we are speaking was the worst storm since 1703. Twenty per cent. of the woodland in the area damaged by the hurricane—let us call it a hurricane because it was nothing short of that, in spite of what that weather forecasting gentleman said—has been affected. A large chunk of hardwood—much of it admittedly old hardwood—and much of what could be classed (especially in Surrey) as unmanaged woodland, which was extremely important from an environmental point of view, was badly affected.
The report calls for effective restoration and maximum salvage, both to minimise the loss and to help finance restoration work. The volume of non-durable and low-quality timber and additional clearance costs and landscape damage are major problems. As your Lordships will know, beech, pine and soft whitewoods have a low lying-in-the-field value. I believe that beech rots within six months and pine within about nine months. Needless to say, that has been helped by the wettest autumn we have had for a very long time.
The committee would like to increase the wood market in size and it would like help for replanting. Also, timber mercants must be attracted from outside the area. The committee recommends that that can only be done by a transport subsidy. Governments frequently say, "We cannot do that; it has never been done before". However, obligingly enough, there is a precedent for that action in the Scottish example of 1968. The committee believes that a net subsidy or grant of about £500 per hectare over and above salvageable and ordinary grant and tax relief for hardwood and £200 extra for softwood would overcome the problems caused by difficulty of access, the fact that many trees are broken off 12 or 15 feet above the ground and are lying higgledy-piggledy and the fact that bits must be cut on the outside of a wood in order to get into the wood to work there. The committee believes that the subsidy demand will be something in the region of a total of £6.5 million over five years.
Surrey County Council, with whom I have been in touch, believes that its costs alone are £3.6 million
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over five years for planting. The Government, generous as ever with taxpayers' money, immediately said that they would give £2.75 million for replanting. The trouble is that that could not possibly be spent up to 31st March. I hope that, because it could not possibly be spent up to 31st March, the gremlins in the Treasury will not say, "You have not used the money by 31st March; therefore you cannot have any more for next year". To expect the Treasury to change its spots or its accounting habits because of the gale is asking too much. I hope that my noble friend, when he has had time to listen and reply to the debate, will have that point firmly in mind.
The Surrey County Council is particularly worried, in that it has 9,000 acres of primary public open space and recreational space which is managed more from that point of view than from the point of view of commercial forestry. According to its submission to the Countryside Commission on 16th November, which is a lucid and sensible document:
"The biggest and most insurmountable obstacle to replanting in this or immediately subsequent years, is the large amount of damaged timber lying about. Much of this is Beech, with a short pre-decay life, and a market which has plummeted; much of it is in inaccessible places, and requiring heavy lifting machinery for safe disposal. Damage to standing trees also requires urgent surgery, again often impossible until fallen trees are removed. Another difficulty is estimating the amount of planting which can physically be completed this financial year; contractors and estate staff are busy on clearing up operations, many woodlands are too dangerous to allow work by volunteers"—
I am sure that my noble friend Lord Norrie will touch on the matter of volunteers—
"and tree stock is likely to be in short supply due to damage in nurseries and the huge demand.
A further constraint upon immediate replanting is the urgent need to take stock and reconsider planting and landscaping policies. The huge amount of damage wrought by the storm has thinned out many areas of unmanaged and aged woodland and tree-stock, and the opportunity should be taken of building upon this enforced "management", rather than exactly replacing what was there before".
I think that those are extremely sensible paragraphs. Many of the papers that I have been given have been in the same constructive and useful vein.
There is one other minor point, about which I speak from personal experience. In front of a house which is now National Trust property but whose land belongs to me, there is—or there was—a beech avenue which was planted to celebrate the birth of my grandfather (I did not get an avenue; I just got one tree). Half that avenue was blown down. In the part that we wanted to clear-fell so that the trees could be replanted approximately 10 trees remained. The Forestry Commission came down; the local authority came down; the National Trust came down; and I went down. We all agreed on exactly what should be done. It has taken two months, but I understand from my noble friend Lord Caithness that a felling licence is on its way. This is bureaucracy run riot. I know that planning authorities have many things to do. One of my neighbours in Surrey told me that he wanted to alter the planning application for his agreed five-year designated plan. Again, the borough council was slow in clearing the application. There was no question of a disagreement; it was a question of bits of paper not arriving so that things which were ready to be done and should have been done were not done.
The NFU has produced evidence of the damage to their members' interests. I hope that my noble friend has been in close touch with the Ministry of Agriculture, Fisheries and Food. I must admit that I have heard from several sources that co-operation between the various arms of Government has been excellent, which is a nice thing to hear. There has been no squabbling between permanent secretaries over who will be the first to get a knighthood. The NFU's main points relate to general damage to light and historic farm buildings; damage done to vehicles, walls, fences and stored crops by fallen trees; certain cropping areas which have not been able to be used because of fallen trees; glasshouse damage to protected crops; damaged top fruits, soft fruit, and much more. I appreciate that help for fruit growers has been forthcoming for orchard replanting and in the shape of conservation grants. I give credit where credit is due. In the case of used farm buildings—and by "used" I mean farm buildings which are in use, not those which are finished with—insurance should have been in place. According to the NFU some 200 old decent farm buildings which could be classed as uneconomic were destroyed in the storm. That is a heritage loss and I hope that something can be done about it.
The wages of chainsaw operatives are now up to £12 per hour and the price of timber has fallen, which was inevitable. When there is a labour shortage the price goes up and when there is a glut the price goes down. There is a labour shortage for clearing up and a glut of timber. The iron law of economics has applied. There is not enough trained manpower and there is an imbalance—admittedly temporary—in our saw-milling capacity. All of those to whom I have spoken have asked for help in clearance, which represents the great extra cost.
I have been inundated with tautly written submissions on the storm, varying from a paper from the NFU to a note from my noble friend Lord Cottesloe, who explained to me that 738 trees were destroyed on Hampstead Heath. Because of lack of time I have had to omit quite a lot of facts and information, but I hope that I have been able to outline something of what is known. I know that others will add to and elaborate on what I have said. However, we must regard this tragedy as an opportunity to plan and think long-term. We ask that the Government give a long and continuous commitment to that aim. I do not think that it is a question of spending lots of money now; it is a question of needing lots of thought now, and funding at a moderate level over a long period to enable us to repair, alter where necessary and improve if possible a very beautiful countryside.
6.55 p.m.
Lord Montagu of Beaulieu: My Lords, I am sure that the whole House will be enormously grateful to my noble friend for raising this very timely question this evening. At Beaulieu we were very much in the eye of the storm and considerable damage was done. However I speak tonight not as a victim of the storm but as the chairman of English Heritage, which is one of the government agencies that is trying to do what
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it can to help in this situation. I also speak with the encouragement of my noble friend Lord Caithness and am in no way trying to presume on his answer at the end of the debate.
The great storm did more than bring tragic destruction to trees across a wide swathe of South-East England; it also revealed the disturbing extent to which the great historic parks and gardens, which form such a characteristic part of the landscape, have been allowed to fall into decay. Historic gardens and parks, like historic buildings, have always depended for their upkeep on a number of traditional, superimposed cycles of maintenance, from the very regular cutting of grass to the very infrequent replacement of mature trees. The great storm and the extensive subsequent survey work by English Heritage have shown that in many well-known gardens major cycles of maintenance and replanting have been neglected over a long period. That is not to criticise the majority of owners. Understanding and advice on the maintenance requirements of historic parks and gardens have been limited, and the cost of their upkeep is very high.
Although powers have existed for the Government and more recently English Heritage to make grants toward the upkeep of gardens and land of outstanding historic interest, this nettle was never grasped, mainly because there were more urgent demands on funds. As a result, English Heritage operates no garden grant schemes analogous to those operated over the past 35 years for outstanding listed buildings, although we and others have pressed hard for resources for this purpose.
Cumulative neglect and the great storm have precipitated in our historic parks and gardens a crisis of epic proportions, to which my fellow commissioners and I decided that we had to react immediately. Therefore, on 21st October—the very same day when the Secretary of State so commendably and quickly granted money to the Countryside Commission℄I announced a scheme of grant aid toward the cost of clearance and replanting. Within days English Heritage and the Countryside Commission had met to assess the damage. The sum that we felt able to divert from our other grant schemes for that purpose was about £250,000, which is very little in relation to the scale of demand for help. So far we have had to limit the scope of our scheme to the immediate pleasure grounds of the house or, as we say, within the ha-ha.
Since the end of October we have made very considerable progress with this emergency programme of grant aid. The recently completed English Heritage register of historic parks and gardens—wisely legislated for in 1983 but not, I may say, universally welcomed by some Members of this House—has proved an invaluable and essential tool, enabling us to have written within 10 days to nearly 300 owners of historic parks and gardens in the storm damaged areas. We have received in return 241 requests for assistance, some from gardens not even on our register. Using consultants, co-ordinated by our own staff, we have surveyed almost all of these gardens and will finish the task by the end of this month. At the same time, we have begun the work of identifying those gardens which are of outstanding

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national importance and thus eligible for our grants. We shall therefore be very shortly in a position to start making firm offers of grants. In the meantime we have made it clear to owners that the essential work of clearance need not be delayed while grant applications are being processed.
Much of the work of reconstruction and replanting will take a considerable time to put into effect. In order to see that the historic interest of the gardens is enhanced and not jeopardised by replanting we are calling for proper replanting and management shemes to be submitted as a condition of grant offer.
I have referred to our reluctant confinement of grants to storm damage within the ha-ha. With regard to those which are nationally outstanding, I ask the Government to consider that from an administrative point of view, and certainly from the owner's point of view, it would be far better to deal with the land without the ha-ha together with that within it. By necessity this would mean that extra resources would have to be given to English Heritage to cover this responsibility. I understand that the Countryside Commission would support such a decision.
Of course the Countryside Commission, in consultation with English Heritage, the National Heritage Memorial Fund and others, have put to the Government a plea for additional funding for trees over several years, which include all trees within historic parks and gardens which are not outstanding. My commission hopes that the Government will give the Countryside Commisssion the means to deal with such parks and gardens.
The scale of the financial problem facing owners must not be underestimated. The response from the first 100 gardens which we have investigated suggests a total cost with respect to planting alone of the order of £5 million. This ignores the massive damage to park walls, as well as the loss of future visitor income and increased maintenance costs until the new planting has reached maturity. The great storm of 16th October demonstrated in the most dramatic way the need for realistic funding if historic parks and gardens—such a crucial component of our heritage—are not to be allowed to fall into decay.
The scale of the recent devastation has precipitated English Heritage into realising its long-standing ambition of introducing gardens' grants, albeit on an ad hoc basis. But what the great storm has revealed is that our landscape, and in particular our historic parks and gardens, needs constant upkeep and renewal which is often beyond the means of individual owners. It is therefore our belief that a permanent grant scheme is essential. We and the Countryside Commission will monitor the progress of this emergency grant scheme with care so that, provided we receive the necessary resources in the future, we have the experience and expertise to introduce a permanent grant scheme covering the whole country.
7.3 p.m.
Lord Moore of Wolvercote: My Lords, I am not a landowner and I have no personal stake in the
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destruction caused by the October hurricane. However, I feel that the special nature of this disaster justifies some degree of government assistance. I have attempted to penetrate some of the devastated woodland. I can only say that no photograph can give a full picture of the state of the worst affected woods. Much of the woodland is impenetrable. It was an eerie experience trying to climb in over the fallen trees and to find oneself 15 to 20 feet above the ground with nowhere further to go. Even my dog could not find a way through.
I understand that the Government's policy is to concentrate on restoring tree cover, and I am sure that that is right. The problem is that replanting cannot take place until the sites have been cleared of fallen trees. Landowners will be prevented from doing this by the high cost of clearance. Machines with skilled operators are required and these cost a great deal of money.
The immediate problem is the softwood, which will deteriorate fast. Much of it is conifers planted 35 to 40 years ago as a result of post-war planting encouraged by the government of the day. These were just beginning to produce timber. But all this promising material has had to be sold for pulpwood as the timber mills are flooded with larger sized trees. Prices paid by the mills for pulpwood are half what they were before the hurricane. In addition therefore to losing the growth potential, woodland owners are faced with losing £4 a tonne for removing their fallen softwood and transporting it to the pulp mills. The problem is accentuated by the pulp mills being situated mainly in Wales, the North of England and Scotland, so that the transport costs are prohibitive.
I should like to ask therefore whether transport grants could be given to the timber growers to get the wood to the mills. As the noble Earl, Lord Onslow, said, transport grants were made to help private woodland owners after the last big wind blow in Scotland, so there is a precedent.
My second suggestion concerns replanting grants. The aim is to restore tree cover, but this will not be done if the timber growers cannot afford to clear the sites. The replanting grants already cover stump clearance and site preparation. Could their scope be extended to include an element for site clearance? This could be done for only a limited period to cover clearance of trees brought down by the October hurricane. The woods of Kent, Sussex, Surrey, Hampshire and Suffolk are such a wonderful part of our countryside and I hope very much that the Government will be able to provide special help for their restoration.
7.6 p.m.
The Earl of Stockton: My Lords, the expression "the wind of change" is one that may not be unfamiliar to noble Lords, In the case of my property, the home for all his life of the originator of that phrase, it took on a terrible new significance in the early hours of that dreadful day. When the hurricane abated we started to try to evaluate the problem and found that the damage was not only outside our experience in the South-East but outside that of the whole country. Even the great wind blow

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of 1972 in Scotland pales by comparison. It is the estimate of the Forestry Commission that there is more mature timber on the ground in the South-East than would normally be harvested throughout the United Kingdom in five years.
I do not want to get into a ghoulish statistical competition with noble friends on both sides of the House whose homes have also suffered. We have lost 60 per cent. of the timber on the 900 acres of woodland on the Birch Grove estate. This means that 60,000 trees have been smashed, blown down or shattered by falling trunks. A further 10,000 have received damage that may imperil their long-term survival either through snow, further wind or disease.
A forestry contractor gave me an estimate that to clear up in order to replant, using contract labour, would cost me between £1·2 million and £ 1·5 million. With my own labour force we have estimated that it will take 10 years and the cost, in terms of depressed values of mature and salvageable timber, of lost value of immature timber, loss of incidental income such as shooting and fishing and of increased equipment costs and overtime, will be between £400,000 and £500,000. Clearly this is way beyond the scope of any private individual.
We have started work and we are shifting and burning at the rate of about four trees a day. We have therefore a lot of work ahead of us. The woods, which looked like Passchendaele after the bombardment, now have muddy tracks through them that would have been familair to my grandfather in the trenches.
But this sad story can be heard and told by my noble friends Lord Cowdray, Lord De La Warr, Lord Egremont and Lord Limerick. We are all in the same position. I am aware that the Government have made some grants, but very few to help the private landowner with the clearance of fallen timber. I am afraid that to replant we must clear, and it is a race against time. The softwoods will be useless in a year, the beech in two and with the spring coming the brambles and the rabbits are on the way.
If the roof of this mighty Palace had been blown off there would have been money forthcoming from the Government. We have beech trees that were as high as the roof of this Palace which are now lying on the ground, and oaks, which were mighty trees before this building was even a gleam in Pugin's eye. I was told by my noble friend Lord Bruce-Gardyne that he thought the Secretary of State in another place was right not to, "spend taxpayers' money to help you rebuild your shoot". I wonder whether the Secretary of State's elder brother, my noble friend Lord Ridley, would agree with such sentiments.
In the end it is not my shoot that is the question; it is not even my property that is the question. We have to decide whether we mind enough about those parts of southern England's green and pleasant land that have so far escaped the bulldozer and the developer, to prevent them falling foul of the hurricane and the Secretary of State.
7.12 p.m.
Lord Norrie: My Lords, I should like to bring to the attention of the House the role and response of the voluntary sector. The voluntary sector has
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already contributed a great deal of help to the storm-affected counties. Its contribution cannot and should not be under-estimated. One criticism which is wholly unjustified is that an unnecessarily long-term view is being taken and that the public have been confused by too many appeals. This is definitely not the case.
It is worth noting that many of the organisations involved such as the National Trust, the Woodland Trust and the County Trusts, are major landowners. Naturally, their immediate priority has been to concentrate on storm clearance and safety of access. The scale of the problem is highlighted by the Woodland Trust, an organisation committed to the purchase and protection of woodlands. Imagine the enormousness of the task before them when suddenly a total of 41 woods in 12 counties were devastated by the storm of 16th October last year.
One organisation with which I have a very close association as their president is the British Trust for Conservation Volunteers (BTCV). Its particular role is to involve people in practical conservation. In recent months the people of this country have demonstrated conclusively just how aware and how caring they have become about their environment. It was the ability to direct this irrepressible enthusiasm and harness it to their professional expertise in woodland management which led the Countryside Commission to invite the BTCV to join its emergency task-force trees team.
The purpose of the team is to set up and allocate the Department of Environment special grant of £2.75 million to local authorities and the voluntary sector and devise a long-term plan for clearance and replanting. Everywhere the response by individuals has been swift and immediate. People were prompted by the many articles in newspapers and radio and television to want to help either by giving money or actually lending a hand. Thank goodness they did! The full-time professional bodies could not possibly have coped with the scale of damage caused by last year's storm without the help of so many volunteers.
Such a willing commitment demands our wholehearted encouragement rather than the opposite. Even national television has highlighted the BTCV as the major organisation for practical conservation work. Some 10,000 people have now received the emergency information pack which allows each volunteer to use his or her energies in the most effective way. Since October some 4,000 people have worked on over 330 sites in the storm-ravaged areas.
An example of the way in which landowners and those of us who appreciate their land can work together on a voluntary basis is the co-operation nationally from March this year of the BTCV and the Woodland Trust. Even in the voluntary sector such work costs a great deal of money. It runs into millions. The appeal targets set by each organisation have effected considerable private and individual support to date. But this will change as the emotion and memory of the damage caused on 16th October last year begins to fade.
Parhaps I may therefore seek from the Minister an assurance that the Government will agree a long-term financial commitment to the voluntary sector to

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secure for the future a legacy worthy of our children and all that the English countryside means to people everywhere.
7.16 p.m.
Viscount Massereene and Ferrard: My Lords, I appear to have temporarily mislaid my glasses. I shall not be able to read the notes I have written down. I should like first to thank my noble friend Lord Onslow very much for putting down this Question. I am surprised that it was not put down before, because the situation is so very serious.
I also have an interest to declare; but my interest is a very great financial loss, as I am sure is the case with the other noble Lords who have spoken on this subject. It has been appalling in the Stour Valley. There are three estates where the valley gets narrower: Olantigh, Godmersham—where Jane Austen wrote her books— and Chilham. In my park, it has been absolutely devastating. In the gardens we have lost 148 big trees, many of them exotics like paulownia, catalpa and tulip trees. The park is about 400 acres and includes about 100 acres of woodland. We have lost about 2,000 really big deciduous trees. I am not counting the softwoods I have planted, like douglas fir. I established a plantation of douglas fir over 30 years ago. They were doing extremely well and they have just come down like a pack of cards. The larch have held up a bit better.
The avenue from the main gates on the village square to my front door is only a short straight run of 300 yards and has a double row of limes on each side, planted in 1820. They have come down to a man. I suppose trees are female too, but anyway they have all come down. They fell in about two or three minutes. It was apparently an appalling gust of over 100 miles an hour—some people say 130 miles an hour—which brought them down.
I think that the Government have made a great mistake in putting the cart before the horse. It is true to say that they have promised grants but, as we all know, one gets grants from the Forestry Commission in any case if one plants. But how can you plant if you cannot clear the land? To clear my park will certainly take 18 months and probably two years. How am I to clear it? I have tractors, trailers and chainsaws, but I only wish we had what we had in the old days (before my time, naturally). In the 18th and early 19th centuries they used to work the timber with elephants. Where can I get elephants? Where can I get trained elephants? I do not know what the solution is. I do not have the enormous machines with great grabs to lift the trees. They cost about £80,000. I am told you can hire cranes for £500 a day, but who can afford that? So how am I going to clear the ground? One cannot do it.
I am concentrating on the gardens because we have the public coming to see the gardens. It will be shaming. As my noble friend Lord Stockton said, the scene was like the battlefields of Ypres or the Somme and all the ground was churned up. We are gradually taking away the enormous roots, but that is difficult because they are terribly heavy. However, I hope that we shall be able to clear the gardens.
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I must not continue for too long or I shall bore your Lordships—perhaps I have already. I was saddened by the fact that in the park was the oldest recorded heronry in Britain. It is about 860 years old and is recorded in the Doomsday Book. Some of the herons return on St. Valentine's Day and I am worried that if they do not return then some terrible fate will befall me. I do not know what to do about that because every tree has gone. Beech trees of a great height have all come down. I shall try to erect artificial nesting sites but I do not know if the herons will use them.
My noble friend Lord Stockton also spoke of what transpired at the conference at Wye College, London University. People from the three counties in the South East of England attended. There were many expert speakers. They told us that the number of trees that had fallen, which was said to be 3 million, was more like 20 million. As my noble friend Lord Stockton said, about five years' supply of felled timber is lying on the ground.
I should like to ask the Government to provide a grant for the clearing that we have had to do. People have been very helpful and various societies have offered to help, but they do not appear to have any money. My noble friend Lord Onslow spoke about £2 million, but that will be a drop in the ocean. It has been suggested that the area inside and outside the ha-ha of my park should be treated as one, and I think that that idea is fair. However, I should like to see the Government giving a clearing grant of so much per hectare; even one-third or one-quarter of the cost of clearing would be a great help. I hope that something like that can be achieved. So far, I have not been able to sell any timber apart from black walnut. I should think that every other noble Lord present is in the same position.
I have spoken for long enough and I ask my noble friend on the Front Bench to approach the Prime Minister. I am sure that if the Prime Minister knew of the extent of the tragedy she would make the bureaucracy act and we should all be much happier.
7.24 p.m.
Lord Dulverton: My Lords, I should like to express gratitude to my noble friend Lord Onslow for initiating this important debate. I have a personal interest in the subject which I shall declare later. In my home in the north Cotswolds we were jolly lucky to have escaped the worst effects of the terrible hurricane which hit us in October. I do not wish to dwell upon the severity of the damage because other noble Lords have spoken about it. It has been well-publicised in newspapers and elsewhere.
The bare statistics are horrifying. Four million tonnes of timber of different species, sizes and shapes much of it broken and tangled on the ground, is five times the normal output in the worst affected areas of devastation. Seventy per cent. of the area is in the private sector of forestry, with consequent crippling losses for owners who have expended long decades of care necessary for the production of good quality timber. All that has gone overboard.
My noble friend Lord Onslow referred to the fact that immediately after the hurricane a Forestry Wind

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Blow Action Committee was set up, though he objected to the two words, "wind blow". My secretary typed it as one word and I believe that she was right. The committee was immediately set up and was a consortium of the Forestry Commission, Timber Growers of the United Kingdom, who are the official representatives of the private sector of forestry, the timber merchants and the wood processing industries. It has done excellent work in assessing the damage and weighing up the consequent problems.
The Timber Growers have produced a report in advance of anything that has been forthcoming from the Government or the Forestry Commission. That report provides an excellent assessment of the situation and I am proud of it. Here I must declare an interest because I am its honorary president. I have ensured that the report has been made available both in the Library of this House and in the Printed Paper Office for any noble Lord who would like to peruse it. I think that it is a good, factual assessment of the problem.
Two major issues are involved to which other noble Lords have referred. One is the clearance, removal and, where possible, utilisation of the fallen and damaged trees. Many trees that have not fallen have been damaged by those that have, and something must be done about them. They are often lying in a tangled mess on the ground. They are frightfully difficult to work among and the handling of them far exceeds the capacity of local foresters, local contractors and local timber industries. We have by no means dealt with the clearance, but the second issue is the replanting of both forest and amenity trees when the ground has eventually been cleared and tidied. Fifteen million trees have fallen and many more must be planted and cared for over many decades before they, having been thinned, contribute to the landscape.
There are no short cuts in forestry. Unless the clearance and disposal problem is expedited far beyond the capacity of local resources, more than half of the fallen timber will have deteriorated into uselessness. About the only species that will survive several years of lying on the ground is the oak. The beech (which has been referred to) and many other soft woods and species will be unsaleable. Much of it is only good for firewood anyway. Even so, it is worth bearing in mind that the loss value of 2·5 million tonnes which will not have been cleared unless something drastic is done will amount to about £75 million in lost revenue; and that is loss to the nation as well as the owners. If distant timbermills with the capacity to use the timber can be enlisted to make use of the many kinds of trees with their varying properties there will be a good chance of greatly expediting operations. However, the expense of long distance haulage thus involved would leave nothing, or even a deficit, in the hands of contractors even if they could be attracted from outside the area to deal with this mess.
It is desperately necessary to contract an army of such contractors into the areas of disaster and I hope that the Minister might persuade his colleagues in another place to provide an emergency subsidizing
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fund towards the transport costs required, estimated at £2·5 million. That will enable an expedition of operations to take place along those lines.
As to the replanting phase which it is to be hoped will succeed the clearance, and will take several years to achieve, private owners will need help and persuasion to do all that is desirable. That again will cause a substantial increment in the present scale of planting grants; otherwise, there is every possibility that owners will be far too disheartened and out of pocket to restore their devastated countryside.
Your Lordships should bear in mind in this connection that many of the lost woodlands were of amenity or sporting value rather than commercially managed. Once again, I hope that my noble friend can and will persuade his colleagues in another place to help with this matter. It has been estimated that another £4 million will be required.
I have said little or nothing about all the lovely amenity trees and the arboreta that have suffered; but, cherishing as I do our arboreta at Batsford which escaped the hurricane, that is not due to any lack of concern but because of the need for brevity.
7.33 p.m.
The Duke of Buccleuch and Queensberry: My Lords, I hope I may be forgiven for making a brief intervention. Although I live a long way from the areas devastated by the October hurricane, nevertheless I offer sympathy to those who have been affected. I have seen many examples of gale damage in my time, in Scotland in particular, and what I saw around Sevenoaks really took my breath away. Violent storms strike different parts of the country periodically and Scotland suffered badly in 1968, which helps me to appreciate the consequential problems. One of those problems is the orderly marketing of blown trees which is, of course, a crucial prelude to orderly recovery programmes, though we have to accept the sad fact that the landscape, as we have come to know and love it, can never be the same again in our lifetime.
However, there is one matter for which we can be thankful. There is now in existence a body called the Forestry Industry Committee of Great Britain which grew only recently out of the Timber Growers organisation and the timber trade. This has the capability of making a significant impact upon sensible and orderly marketing. I was glad that my noble friend Lord Onslow referred to its specially formed action group, and I believe it is probably doing a very good job.
Of course, this is a matter of great importance to all tree growers throughout the land, partly because of the ripple effect of glut in one area knocking prices in another, and partly because no one knows where the next disaster will strike with a corresponding need for action by that same Forestry Industry Committee. That means that wherever we live all those with an interest in trees and the landscape should do their utmost to support the Forestry Industry Committee by providing it with the financial muscle that it badly needs to ensure that it can do its job efficiently.

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There is one other aspect which I believe merits consideration. The tragic loss of landscape is a salutory though cruel reminder that in nature nothing stands still and that however much one might wish to freeze the landscape just as it is, trees, like everything else, grow up, grow old and die. That suggests that landscape replacement and rejuvenation must be a continuing process and not left to the next hurricane. I am glad that my noble friend Lord Montagu emphasised this very clearly in his speech. This is especially relevant in the context of trees subject to tree preservation orders as these are likely to be the most vulnerable in a storm and may constitute a high risk to life and limb. It may be a good idea for the Government to remind those who impose TPOs of the risks involved and the need for appropriate precautions, including regular reviews of the condition of such trees if they are to fulfil their proper responsibility for public safety.
My last point is to mention that the replanting of wind blown areas will require a large number of broadleaved plants, and if shortages are to be avoided it may be as well to relax the proportion of broadleaved species to be planted with conifers on hill country where they will, in any case, face a precarious struggle for survival. I hope that the Government will give serious consideration to the many constructive points made this evening.
7.37 p.m.
Baroness White: My Lords, as the noble Duke, the Duke of Buccleuch, has intervened in this debate without putting his name down, may I crave your Lordships' pardon for doing the same thing. I am certain that my noble friend Lady Nicol will deal most adequately with the subject of this debate but I should not like it to be thought that because there are not many of us present on this side of the House we are not deeply concerned about the matter.
I think that virtually every noble Lord who has spoken has declared some personal, direct or indirect interest. As the noble Lord, Lord Dulverton, knows, on occasions I have been critical of forestry policy in this country, not least of the taxation arrangements which, in certain circumstances, make it possible for film stars and broadcasting people and such like to make large fortunes Jut of forestry. Such criticism as one may have made leaves one completely dumb when one has to follow the tragic consequences of what was, after all, as one used to say in the olden days, an act of God.
I very much hope that the Minister, when he comes to reply, will recognise that while a great deal was done instantly—or more or less instantly— it is clear from the speeches made that a great deal still has to be done, particularly on this matter of clearance. Unless some imaginative and substantial help is given—and I am thinking in particular of Birch Grove, which I used to know fairly well—tragedies of that kind call for extraordinary measures which are not contemplated in normal circumstances. I hope that when we hear the Minister's reply it will be clear that the situation faced in this part of the country is recognised as being extraordinary and merits extraordinary solutions.
7.40 p.m.
Lord Monk Bretton: My Lords, there is one other aspect that I should like to mention. It is very important that we manage to clear up this disaster as well as we possibly can, not only for the environment and the landscape, which is important and which has been spoken about. I should not wish to detract at all from what has been said about that.
There is another aspect. The Government want more trees to be planted. In view of that, I believe it is important to emphasise the enormous degree to which forestry owners in the devastated areas have been disheartened by what has happened. It is the scale of the disaster which is so frightening. Timber growers suspect that if nothing is done it is highly likely that 50 per cent. of the woodland which has gone will never be replanted. I am sure that the smaller the owner, the more disheartening is the situation.
There are long memories regarding the business of forestry, and there have been some disagreeable experiences in the past which should not be entirely forgotten. The years of the slump were bad enough and a great many people despaired at that time. The last war should have been better because it was a time when timber was definitely wanted. We had been planting timber for that for some years. What happened was not really so good so far as concerns the timber grower. During the war there was a desperate urgency and there was no time for sophisticated operations like thinning plantations. Very often young plantations were simply butchered —clear-felled—in order to get pitprops as soon as possible. I remember good oak being cut up in order to make railway sleepers.
I also recollect at the time that prices were pretty miserable and they were controlled. During the war there was no possibility of replanting and there were no sprays to kill the brambles as there are today. The undergrowth grew to about 10 feet or more and became a devastated area which had to be dealt with long afterwards and at very great expense. It was a terrible mess.
I have heard it said that the government of the day, in the haste of the war, virtually handed over timber growing to the trade to despoil. That is a hard thing to say but there may be a grain of truth in it. There is a certain disillusion about what can happen when timber is wanted.
Much of that slow and expensive replanting since the war has been wrecked again in the South-East. Here I must declare an interest because I did some replanting. I suppose about half of what I replanted has gone. I believe that I only suffered the loss of about half and that is quite good luck. It is going to take a great deal of effort to restore confidence if we are to establish a viable forestry industry. Something more is wanted than just another bout of enthusiasm for grants for planting. The matter needs thinking through much more thoroughly than that, and there perhaps I am edging onto another story.
Meanwhile, I trust that my noble friend and the Government will react favourably to what has been said tonight and provide further help. That was really

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the one point I wished to make. I should like to say how well timed and welcome I found the Question tabled by my noble friend.
7.45 p.m.
Baroness Nicol: My Lords, I too wish to thank the noble Earl for this very timely Question. The value of it is obvious from the speeches that we have heard tonight and some of them were very moving speeches.
The events of 16th October were a national disaster which affected us all. Because it affected all of us and it was a national disaster it is the responsibility of everyone to see that restoration is carried out so far as possible. I shall not go into the details of damage because that has been covered very well by other speakers and I know your Lordships have heard it all before.
But disasters can provide opportunities. We are all aware, as the noble Lord, Lord Montagu of Beaulieu, said, that woodland management in this country has not been universally good. Like our human population, our tree population had too many in the upper age bracket. That and the lack of good husbandry in some cases—but only a few cases—added to the losses.
Now we must look to the future. To replace tree for tree is not a very imaginative solution. The National Trust is to be commended for its constructive approach in its storm disaster appeal. Where possible, it is to use the fallen timber to repair its own buildings. I quote briefly from a letter I have received from the trust:
"We are also planning carefully for the future, because at some properties we should not simply be trying to re-plant what was there before, but should be thinking creatively about new opportunities".
That is a lesson which I think we should apply wherever restoration is to be carried out. I am not talking particularly about commercial forestry but amenity forestry, woodlands and the smaller scale operations.
Some areas should be allowed to regenerate naturally to provide a range of age and height of tree stands. Gaps or glades should be left clear to provide for grazing and for flora. Noble Lords would expect me to put the conservation point of view. Those open areas are valuable for certain bird species. Some deadwood also should be left to provide insect habitat.
Clearance has to be done before anything else can start and I was particularly interested in the suggestion of the noble Lord, Lord Moore, about transport grants. I hope the Minister will be able to provide an answer to that. I am aware that the terms of the Question are rather narrow, but I am convinced that from the Minister tonight we shall not hear just an assessment of the damage but also of the Government's solution to the problem.
We should seek safeguards against woodlands which have been cleared by the storm from being ploughed for other uses. Perhaps it is unnecessary to say this at a time when we are seeking to persuade farmers to increase their woodland and to plant land which has been used for arable purposes. That should be discouraged where it might happen. It is essential that the efforts of the voluntary bodies about which
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the noble Lord, Lord Norrie, spoke so convincingly, should be supported and the statutory bodies and local authorities should have their work coordinated.
The Royal Society for Nature Conservation suggests that the best unit size for co-ordination is that of the county, which seems to make sense. The 12 nature conservation trusts most affected by the storm are county trusts and they are already working closely with the county councils. For example, in Kent the trust's officer has been accommodated in the county council offices and that must be to their mutual benefit.
The World Wildlife Fund and the Royal Society for Nature Conservation, with the backing of the Countryside Commission and the Task Force Trees unit, have all made good progress. Public response to appeals for money is going well; but as time goes on, the public will forget, as they do, the problems that we have before us. This is a long-term task. Planning must be at least five years ahead. Obviously it has to be longer than that if we are to replace in the way that I feel we should our broadleaved woodlands, but it must be at least five years initially. Tree nurseries, for example, must be assured that when public interest has died down there will still be customers for their trees—that money will be forthcoming—if they are to take longer-term decisions on the growing of stock.
Here perhaps I could put in a word for using native species wherever possible. We have seen recently what happens in London, where the plane trees, which were all imported clones, are suffering from a disease common to all of them and are changing the landscape in London quite considerably. It is also necessary for the retention of expert staff that at least five years should be assured. Only government can give the backing and the assurances that are needed, especially in the case of local authorities, which need to know that this important conservation work is not vulnerable to unexpected cuts. Here I should like to reinforce the theme of the noble Earl, Lord Onslow, about waiving bureaucracy wherever possible, because it really needs to be waived in the case of local authorities. Flexibility must be introduced.
A few moments ago I was handed a letter from a Mr. Talbot in Kent, who makes a moving plea for help in the High Weald. I can do no better than end with the last two paragraphs of his letter. He says:
"The farmers, small landowners and those directly involved cannot begin to afford the cost of clearance. Only the Government can save what Kipling describes as 'belt upon belt the wooded, dim, blue goodness of the Weald'.
"England has suffered a great disaster. Like many disasters, it affords a great opportunity. If the Government acts with speed and determination it will earn the thanks of posterity".
7.52 p.m.
The Minister of State, Department of the Environment (The Earl of Caithness): My Lords, the great storm which occurred in the early hours of 16th October was a natural catastrophe unknown since the early 18th century. It wrecked property, destroyed gardens on which many years of care had been lavished and laid bare landscapes with which local people had been familiar since childhood. I am

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grateful to my noble friend Lord Onslow for giving us the opportunity to discuss that fateful event in the House.
Faced with this emergency, local authorities and others responded with great speed and efficiency. The Government too played their part: my right honourable friend the Secretary of State for the Environment swiftly announced special aid under the "Bellwin Rules" for local authorities to carry out emergency work. He also explained that £3 million would be made available in 1987–d the replacement of trees. Out of this £250,000 was allocated to the Royal Parks. Most of the extra funds however have been used in the form of grants paid through the Countryside Commission, which quickly set up a special unit, Task Force Trees, to administer the programme.
The Countryside Commission's responsibility is for trees as a feature of the landscape, in small woods or in the countryside generally; and for this special programme it has extended its activities to urban areas as well. The mild weather so far this winter has been a tremendous boost for the progress of this work on the ground. I understand that a good deal of planting has already taken place, and this is enormously encouraging. Therefore, I can say to my noble friend Lord Onslow that we expect a high proportion of the money to be spent this year unless there is a sustained period of hard frost now. In fact bids from local authorities mean that the amount available is three times oversubscribed.
Other government departments and public bodies also took action in the wake of the storm. The Forestry Commission, which is responsible for woodlands of a quarter of a hectare or more, where one of the purposes is timber production, joined forces with other relevant bodies to set up the Forest Windblow Action Committee, aimed at coordinating the timber industry's response; a statement by my right honourable friend the Minister of Agriculture, Fisheries and Food announced the introduction of special storm damage compensation arrangements for farmers, which covered orchards and shelter belts; and English Heritage, the Historic Buildings and Monuments Commission, announced (as my noble friend Lord Montagu has just described) a programme of assistance to owners with the clearing and replanting of outstanding historic gardens.
However as this timely Question from my noble friend reminds us, it is essential as a basis for longer-term planning that we have a comprehensive assessment of the damage to tree cover caused by the storm. The results of one survey have already been widely publicised. In November the Forest Windblow Action Committee announced its conclusion that some 4 million cubic metres of timber had been blown down in the storm, representing an estimated 15 million trees. Some idea of the scale of this loss can be gauged from the fact that in 1986 the annual domestic production of timber in the United Kingdom was 5·6 million cubic metres; and 80 per cent. of this output was softwood. About 50 per cent. of the timber lost was broadleaves. Therefore, let us be clear that the total quantity of timber blown down
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is just under one year's timber consumption over the whole country.
The committee estimated that 70 per cent. of the total loss was in private woodlands, 25 per cent. in woodlands managed by the Forestry Commission and a further 5 per cent. was in hedgerows, parks and gardens. The worst affected counties were West Sussex, East Sussex, Suffolk and Kent. The committee's estimate was that 20 per cent. of all timber in those counties had been brought down. It also reported that significant volumes of wind blown timber lay in Essex, Hampshire and Surrey, while Berkshire, Dorset, the Isle of Wight, Greater London, Hertfordshire and Norfolk had also been affected but had less timber on the ground.
As my noble friend Lord Dulverton knows, generally the good quality timber is finding a market. However, some of the timber is over-mature and of poor quality. In this there is a message for the future, that we must ensure that we manage trees properly and not regard them as things which can be preserved indefinitely. That was a point so well made by the noble Duke, the Duke of Buccleuch, who also mentioned the risk of tree preservation orders preserving trees beyond a safe age. At this stage let me just pay tribute to the noble Duke, because it was indeed his father who employed me many years ago when I did my year's mud studenting before going to Cirencester, where I learnt about trees and developed the interest in them that I have been able to maintain.
This survey was carried out with commendable speed and has been of great value in gauging the overall position, particularly the implications for the timber market. I should perhaps say a few words on the physical problems of undertaking such surveys. Many woods are still largely inaccessible as a result of the damage sustained. Forestry Commission surveyors drafted in from as far away as Scotland have done sterling work. Aerial photography has a role to play in extensive surveys, but obtaining such photography is always subject to weather conditions. The process of quantifying damage by interpretation of aerial photographs is a task which demands particular skills.
The responsibilty of my department is trees in open countryside and in built-up areas, for which it is even more difficult to produce accurate figures, especially given the localised nature of some of the damage. This was again a point that my noble friend Lord Onslow made. However, to guide the long-term programme of restoration it is essential that we have a more precise assessment. We have therefore commissioned a survey of damage to non-woodland trees. The contractor has been asked to take aerial photographs of a sample series of strips in the 10 worst affected counties to establish the extent of loss. Of the 235 sample strips involved well over half have been flown, mainly in Suffolk, Hertfordshire, Essex, Dorset and Hampshire. Preliminary figures for' Suffolk, Hertfordshire and Essex suggest that 44,000 trees outside woods have fallen or been badly damaged as a result of the storm. Separately my department is also funding work by the Arboricultural Advisory and Information Service to try to learn as many lessons as possible from the storm damage.

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Work by others is also helping to build up the picture. English Heritage has carried out an appraisal of the damage to historic parks and gardens. Of 336 gardens in the affected counties on its national register, 161 have suffered significant losses of trees. In 46 the historically important tree planting has been virtually flattened. The Nature Conservancy Council has also carried out an important study of damage to ancient woodlands in statutorily protected areas; and through Task Force Trees information is becoming available on local authority estimates of damage to amenity trees in their areas.
The Nature Conservancy Council has also been assessing the effects of the storm on wildlife, such as the heron mentioned by my noble friend Lord Massereene and Ferrard. I have to say that its initial conclusions have been reassuring. If anything, the council would prefer from the wildlife point of view that fallen trees should be left where they lie rather than be cleared, a point mentioned by the noble Baroness, Lady Nicol. Perhaps I may take this opportunity to say to my noble friend that, as he knows better than I do, the Forestry Commission's headquarters is opposite Edinburgh Zoo. I shall ask it to look into the question of elephants, but I think that the opportunities might be a little limited in present circumstances.
The results from all this work will need to be brought together to produce a comprehensive picture. My department is taking the lead in a specially convened interdepartmental committee to do just that. The group contains representatives of the Forestry Commission, Task Force Trees, the Nature Conservancy Council, the Ministry of Agriculture, Fisheries and Food, the Department of Transport, and English Heritage. It has already held two meetings and I hope to receive its interim findings shortly. The final report will be prepared as soon as sufficient information is available.
I believe that all noble Lords will welcome this programme of assessment and agree with me that it forms the essential foundation stone for considering the need for longer-term programmes of action. Replacement of trees lost in the storm will be the task of years, not months. It is our children and their children who will see the results of planting which takes place now. We must ensure that it is carefully and responsibly done. This is a challenge to all of us: to government, owners and gardeners alike. Included in this challenge, as the noble Baroness, Lady Nicol, said, is the opportunity to think creatively. We have a unique opportunity to encourage the natural regeneration of woodlands.
I wish to emphasise the key role which voluntary initiative can play. Although government can provide a guiding framework for replacement planting, it is a spread of effort on the ground which counts. After all, planting by private owners on a small scale has determined much of the traditional landscape of England. I am therefore glad to have this opportunity of applauding publicly the launching of a number of appeals to help fund replacement planting by bodies such as the National Trust, Woodland Trust, Men of the Trees and also the British Trust for Conservation Volunteers, whose
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plans my noble friend Lord Norrie has outlined tonight and which I am sure the House will wish to commend.
Local authorities also have an important role to play. They will now be drawing up their budgets for the coming financial year and, in contrast to the position in the immediate aftermath of the storm, which was an entirely unexpected catastrophe, they will be able to weigh up the various calls on resources and decide what priority they wish to give to tree planting.
A number of your Lordships have pressed the case for continuing government assistance with this massive task. In the case of woodlands of a quarter of a hectare or more, the normal Forestry Commission planting grants are available for restocking, and higher rates of grant are given for broadleaved trees. In the case of other trees, we are discussing with the Countryside Commission the need for a continuation of the special programme of grants operated by Task Force Trees and assessing how that will fit in with the efforts of local authorities, of other bodies and of individual owners. I shall return to the Countryside Commission's programme in a moment. We shall also examine whether there is a case for additional resources for English Heritage, as my noble friend Lord Montagu urged, and I look forward to receiving the detailed assessment of which he spoke. I can tell my noble friend Lord Massereene that I am sympathetic to the point of my noble friend Lord Montagu that English Heritage ought to be responsible for assistance to outstanding historic parks, as well as outstanding historic gardens. I should like to consider this further.
Many noble Lords have urged that government assistance should be available not only for replanting but to meet the costs of clearance. My noble friend Lord Stockton gave an example of the scale of those costs and said that in present circumstances they are unlikely to be offset completely, or even in the worst cases offset to any significant extent by the value of the timber extracted. In some cases practical assistance either has been or may in the future be forthcoming from volunteers co-ordinated by the British Trust for Conservation Volunteers, from the community programme of the Manpower Services Commission or from the Farming and Countryside Initiative.
The general principle, however, must be that clearance is the responsibility of the individual owner. That applies at all levels, from the individual householder who had a tree blown down in his garden and who perhaps has not been mentioned to the full tonight, right up to the Forestry Commission. That is why the grants the Government make available are specifically for planting and are paid only as and when planting is known to have taken place. There cannot be any question of advance payment.
We have received a number of representations urging assistance to private householders for clearance of trees. This is a difficult area. The Government's approach has been to alleviate the costs to ratepayers generally of dealing with the storm by making available special financial assistance

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to local authorities. We are sympathetic to the position of householders who face costs for clearance but we do not believe it would be either practicable or appropriate for us to accept that these costs should fall on taxpayers nationally rather than the private householder.
As concerns aid under the schemes for both the Countryside Commission and English Heritage, exceptionally they have been prepared to consider helping with the cost of clearance, but only in the case of parks and gardens where there is a particularly strong public interest. However, Countryside Commission grants may include a limited amount of assistance for site preparation, for instance if a stump has to be removed.
We also accept that there are extra costs falling on the owners of large woodlands when they have to replant after a windblow. The Forest Windblow Action Committee set up by the Forestry Commission has discussed this issue and also the commercial prospects for owners trying to sell their fallen timber. The committee has very recently made certain recommendations to the Government, as my noble friend Lord Onslow mentioned.
The noble Lord, Lord Moore of Wolvercote, and my noble friend Lord Dulverton also mentioned the possibility of a subsidy towards the cost of taking timber to mills in other parts of the country and certain precedents in that respect. This is another aspect discussed by the committee. I am sure that the House will not expect me to enter into discussion on the merits of these proposals this evening but I shall ensure that my right honourable friends are fully aware of the views that have been advanced by noble Lords tonight.
I take the point made by noble friend Lord Onslow about some delay in the processing of felling licence applications which have been made in respect of remaining trees following the storm. I willingly support the noble Baroness, Lady Nicol, that delay from any party in the processing of applications should not be condoned.
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Both in the public and the private sector the target is to reach considered views of prospects and plans for the start of the next planting season later this year. For their part the Government will make a statement of their intentions in good time for the start of that season. In the meantime we shall be taking note of any further representations which may be made on this matter. I can however make two announcements now about additional funds for the Countryside Commission.
First, in the current financial year we are increasing the commission's grant-in-aid by a further £500,000, of which £250,000 will be available for tree planting. Secondly, we are making available a further sum of almost £800,000 to supplement the commission's planting programme in 1988–e that your Lordships will accept this as a clear sign of the Government's desire to see restoration of the damage wrought by the storm and of our wish to facilitate such planting as far as practicable. However, to reflect the essential partnership role of local authorities in longer-term efforts of recovery, the maximum rate of grant aid available for planting by local authorities next season will revert to the former rate of 50 per cent. of the cost to the authority.
The storm affected many people, farmers, forresters, owners of parks and gardens, and individual householders. Even those who are not directly involved are moved by a profound sense of personal loss when they see the extensive damage to the treescape of the countryside, which is our national heritage. Because the effects of the storm were wide-ranging, so is involvement in tackling its aftermath. The Forestry Commission in respect of commercial timber, the Ministry of Agriculture with regard to farms and my department in respect of amenity trees are all concerned in this matter. I can assure the House that we shall continue to liaise closely within government and with professional, environmental and other bodies in the task ahead for all of us.
House adjourned at ten minutes past eight o'clock.