Lords Sitting of 3 July 1989

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

Royal Opera House Development Plan
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether, following the Written Answer given by Baroness Trumpington on 25th May last (col. 584), they will not consider themselves satisfied that the views of interested parties on the proposed development of the Royal Opera House have been taken fully into account unless the Royal Opera House authorities have received the views of, and met representatives of, the Theatres Trust, the Association of British Theatre Technicians, the Covent Garden Community Association and the Covent Garden Trust.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, the development board of the Royal Opera House has had, and will continue to have, wide consultations on its proposals and it is open to all interested parties to make representations to it. When final proposals are received from the opera house my right honourable friend the Minister for the Arts will take all views into account.
Lord Jenkins of Putney: My Lords, I am most grateful for that Answer. May I ask the noble Lord whether he is aware that since the original Question was tabled discussions have taken place between the Theatres Trust and the authorities of the Royal Opera House, and that they have been very satisfactory? So far as the development proposals are concerned, it seems likely that on the second try a project will come forward which will lead to a much better development of the Royal Opera House than at first seemed likely. Therefore, that is very satisfactory from that point of view.
However, is the Minister also aware that there are other organisations—for example, the Covent Garden Community Association—who have much wider concerns relating not only to the opera house itself but to the consequential effects of its development? Will the Minister make sure that those organisations are given equal access to the Royal Opera House authorities, and that their views are taken into account as much as the views of the Theatres Trust have been?
I will not say anything further—
Noble Lords: Order!
Lord Jenkins of Putney: My Lords, I will not ask any further questions because the noble Lord, Lord
960
Rippon, who I believe is chairman of the Covent Garden Trust, is in his place, and that makes further questions from me unnecessary.
Lord Hesketh: My Lords, I am sure that all Members of your Lordships' House will be very happy that the noble Lord, Lord Jenkins, is happy with the scheme. I can assure the noble Lord that the Royal Opera House authorities have been in touch with the Covent Garden Community Association. As the noble Lord pointed out, the authorities of the Royal Opera House have recently had discussions with the Theatres Trust and are preparing to meet the Association of British Theatre Technicians and the Covent Garden Trust.
Lord Rippon of Hexham: My Lords, my interest as chairman of the Covent Garden Trust having been duly declared, may I express my satisfaction and pleasure at the Answer given by my noble friend? Is he aware that we are all very grateful that wide discussions are now taking place? There is one question I should like to ask. Is my noble friend aware that there is considerable anxiety about the proposal to have an underground car park? The Department of Transport has said that it has not been consulted. Will my noble friend ensure that it is?
Lord Hesketh: My Lords, I shall certainly bring those comments to the attention of my noble friend Lord Brabazon.
Lord Jenkins of Putney: My Lords, in answering my supplementary question the noble Lord missed out the Covent Garden Community Association. It is important that it should be treated equally and have the same consultation as other bodies. Will the Minister give an assurance to that effect?
Lord Hesketh: My Lords, I understand that the Royal Opera House authorities are in regular touch with the Covent Garden Community Association.

"Clocking" of Motor Vehicles
2.41 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they will take action to reduce the fraudulent abuse known as "clocking" in the re-sale of motor vehicles.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, the Government are discussing with the Office of Fair Trading's used car working group its proposals for making clocking more difficult. The Government do not accept that the compulsory and blanket mileage recording system recently proposed by the group would be sufficiently effective to justify its costs and disadvantages. Suggestions for a more targeted approach have been made to the group, whose attention has also been drawn to existing and proposed private sector initiatives.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that reply. Has he seen reports that the public are still being extensively deceived over mileage figures by unscrupulous dealers? Is there any way of stamping out this malpractice other than by insisting on complete records which can be checked and by imposing severe penalties?
Lord Brabazon of Tara: My Lords, I am of course aware of the problem. The proposals which were put to us would have involved motorists every year entering their cars' mileages on their road tax application forms, and also when cars changed hands. That would involve in the region of 40 million transactions at the DVLC and cost around £2 million to set up and £3 million a year to run. We did not consider the proposals to be justified. On the other hand, as I said in my original Answer, we are exploring other ways of dealing with the problem.
Lord Ezra: My Lords, as president of the Institute of Trading Standards Administration, I ask the noble Lord whether he is aware that trading standards officers are seriously concerned about the limits of the law enabling them to follow up the clocking process. Recommendations have been made by all the motoring and consumer protection organisations. Can we not have stronger penalties and controls imposed on this most fraudulent practice as soon as possible?
Lord Brabazon of Tara: My Lords, it is an offence under the Trade Description Act and successful prosecutions are being made by trading standards departments. In the year ended 30th September last there were 533 successful prosecutions involving mis-described used cars, mostly in relation to clocking. The sum of £413,840 was imposed in fines and a number of prison sentences were given.
Lord Underhill: My Lords, does the Minister recall that I asked a Question on this matter on 7th November? I referred to proposals that had been submitted by a working party comprising 16 responsible organisations. I was told by the noble Viscount, Lord Davidson, that the matter would be given consideration. Is the Minister aware how extremely disappointing his reply has been as it is in accordance with a letter sent on 16th March by his ministerial colleague, the Minister for roads and traffic, to the Director General of Fair Trading? Can the Minister tell me what consultation there has been with the organisations which comprise the working party to which I have referred? Among them are the RAC, the AA, five national local authority associations, the Institute of Trading Standards Administration, the Office of Fair Trading and five motoring trade organisations. Can the Minister not agree that consultation with them is justified, rather than offering simply the negative reply which he has given following on the negative letter received from the Minister?
Lord Brabazon of Tara: My Lords, I should have expected the noble Lord to have been even more surprised if my reply this afternoon had not coincided with the letter that my honourable friend
962
sent to the Director General of Fair Trading on 16th March. A copy of that very long and detailed letter is in the Library. I suggest that those noble Lords who are interested should study it. That letter gives reasons why we were not able to accept the recommendations.
The Earl of Halsbury: My Lords, would not endorsement of the mileage on the annual MOT certificate make a significant contribution to the problem on the basis that, if one buys a secondhand car without its current certificate, caveat emptor?
Lord Brabazon of Tara: My Lords, the mileage is recorded on the MOT certificate but that applies only to cars more than three years old. A significant part of this problem concerns cars below that age.
Lord John-Mackie: My Lords, nearly every car carries a service record and if the public demanded to see it before buying a secondhand ca r, that would overcome many of the difficulties.
Lord Brabazon of Tara: My Lords, that is the case. If a person is thinking of buying a secondhand car there are many ways in which he can have it checked over by a reputable organisation. I recommend that potential buyers should have that done.
Lord Underhill: My Lords, the Minister referred to the letter being in the Library. The Minister may be interested to know that I have read it because it was attached to a Department of Transport press notice. In view of the criticisms of a responsible nature of the working party proposals, does the Minister not agree that those organisations should be consulted? They strongly disagree with the viewpoint expressed by the Minister and repeated this afternoon.
Lord Brabazon of Tara: My Lords, we are grateful to the Director General of Fair Trading for co-ordinating the views of the bodies representing motor dealers, trading standards professionals and others to which the noble Lord referred. Their opinions were studied with great care. No doubt we shall receive a response from the director general to our letter putting forward further proposals.
Lord Paget of Northampton: My Lords, can the Minister tell me whether I am committing an offence if my speedometer stops working while I am driving my car but I continue to drive? If I am committing an offence can we have a definition of it? Can the Minister also tell me, if I am not committing an offence, how one can protect the speedometer?
Lord Brabazon of Tara: That is rather a different question. We are here discussing the matter of whether the mileage recorded on the speedometer has been tampered with when the car is offered for sale secondhand. The industry itself should be working towards producing a tamper-proof mileage recorder or some device that makes it obvious that the recorder has been tampered with.

Drug Smuggling: Mothers and Babies
2.48 p.m.
Lord Grimond Lord Grimond asked Her Majesty's Government:
What steps they are taking to deal with the cruelty involved in separating babies from their mothers charged with the smuggling of drugs at airports.
Lord Brabazon of Tara: My Lords, the real cruelty in these cases arises from the callousness of those who are willing to place babies and young children at risk in order to use them as camouflage for attempts at drug smuggling. Women suspected by Customs of smuggling drugs may need to be detained for observation or questioning. If so, children accompanying them are never removed without the mother's permission. If the mother agrees, child minders are made available to care for the children. This can be at the child minder's home or (if the mother prefers) at the airport.
Lord Grimond: My Lords, is the Minister aware that, however the situation arises and whatever the relationship between the woman and the child, the child is frequently removed from the woman who is the putative mother and great distress results? Can the Minister say whether it would more often be possible for the child to accompany the mother if the mother is taken into custody? Can the Minister further say whether it would be possible to make better arrangements with the country from which the mothers and children come so that there is some check on this trade? It amounts really to a trade in children. Is the Minister aware that it is causing great distress to social workers and others at airports?
Lord Brabazon of Tara: My Lords, I should point out that at Heathrow in the past three months child minders were needed in only three cases to look after children of suspects detained at Customs. Arrangements for the exchange of prisoners to serve their sentences in their home country exist under a Council of Europe convention, but not all countries are a party to it.
Baroness Faithfull: My Lords, is there any possibility of having a treaty of agreement with Nigeria, as suggested by the noble Lord, Lord Grimond? I wonder whether the figures are correct. The figures that I received from the Hillingdon authority, which is responsible for taking these children into care, are higher than the figures stated by my noble friend. These hapless children have to be taken away from their parents. Not only is the child separated from its parents, but all its toys, goods and clothing are taken. The child is placed in a white foster home where it remains for two or three years, according to the sentence, and then goes back with the mother to Nigeria. Would it be possible to have a completely different arrangement? Could there not be hostels for mothers with children? Mothers would receive a probation order with a condition of residence, and the hostels would be paid for by the ill-gotten gains of the mother, or alternatively by the Nigerian Government.
Lord Brabazon of Tara: My Lords, Nigeria is not a party to the Council of Europe convention. I am not exactly clear why it has not become a party, but that would be necessary before we could arrange for the exchange of prisoners. The figures which I gave were for the number of child minders who were needed to be called on to look after the children of suspects detained at Customs. It may well be that the figures my noble friend is thinking of apply once the sentence has been served. As for my noble friend's suggestion of hostels, I understand that Holloway Prison, Askham Grange open prison and the young offenders' institution at Styal provide places for 39 mothers and babies. No baby has been refused admission due to lack of space this year.
Lord Harris of Greenwich: My Lords, for how long is a mother convicted of this offence allowed to keep her child with her? Can the Minister help us on that point?
Lord Brabazon of Tara: My Lords, I understand that when a mother is charged with an offence and remanded in custody at Holloway a baby under nine months old can stay with her. In other cases the local authority takes steps to ensure that the child is cared for, preferably by a relative or friend of the mother but otherwise by receiving the child into care.

Schools: Books and Library Services
2.53 p.m.
Baroness David Baroness David asked Her Majesty's Government:
What guidance will be given to schools under local financial management on the protection and improvement of book expenditure and what steps will be taken to ensure that the role of school library services is maintained.
Viscount Davidson: My Lords, under local management, each school will decide how much of its delegated budget to spend on books according to its particular needs and priorities. Where a local education authority has a school library service, it will be free to continue to manage that service centrally where it believes this to be most efficient. Where an authority chooses to delegate these resources, the schools themselves will decide whether to continue to support the service.
Baroness David: My Lords, I thank the Minister for that Answer which is moderately satisfactory as regards the school library service. Why, in their information on local financial management, have the Government provided no guidance on the level of school purchase, particularly in view of the Secretary of State's previous statements that he expects that expenditure to rise?
Viscount Davidson: My Lords, local financial management in no way affects the overall amount of money available for schools. It simply represents a fairer and more open way of distributing the available resources between schools and ensuring the best match between needs and resources. Evidence

965
from pilot LMS schemes shows schools choosing to spend more rather than less on the direct needs of the classroom, including books.
Baroness David: My Lords, will there be any monitoring? I understand that pilot schools have kept up the level of expenditure—even if it is not high enough—to what it was before. However, there needs to be monitoring, because in the light of the GCSE and the national curriculum, expenditure on books should rise considerably.
Viscount Davidson: Yes, my Lords, I agree. There will be monitoring, which is why we are having the pilot schemes.
Lord Molloy: My Lords, is the department aware that, while this is primarily an education question, the Library Association is keen to help and assist in such matters?
Viscount Davidson: My Lords, I am grateful for the noble Lord's help.
Lord Peston: My Lords, bearing in mind that there is no adequate substitute for books in education, has the noble Viscount seen the excellent volumes called Book Check Action File, published by the Book Trust? Those documents enable schools to determine what they ought to be spending on books. Do the Government agree with the main proposition of those volumes that each school ought to have 10 up-to-date attractive and informative library books for every pupil?
Viscount Davidson: My Lords, I have not seen that one but I have seen Better Libraries: Good Practice in Schools, a survey by Her Majesty's Inspectorate, which perhaps the noble Lord might like to read too.
Baroness David: My Lords, as the Minister has mentioned the HMI report, is he aware of another report by HMI on secondary schools—it is an appraisal published this year—in which it is stated:
"Libraries were in general the weakest aspect of the schools' resources. Only one-tenth of the schools had good libraries, and a further third were adequately provided for. More than half the schools had less than satisfactory provision; one in seven being poor. The provision and use of libraries are matters for considerable concern".
Her Majesty's Inspectorate was clearly not happy about the position. Will particular attention be paid to what happens to the school library service?
Viscount Davidson: My Lords, one of the purposes of the HMI survey was to highlight good practice in the use and management of libraries in schools. Schools will, I am sure, wish to take account of this document in deciding whether to support an LEA library service. I should advise the House that plans for spending on education in 1989–90 should enable LEAs to increase provision for spending on books and equipment in secondary schools by 39 per cent. when compared with spending in 1986–87, and in primary schools the increase will be 31 per cent. That is good news.

Business of the House
2.56 p.m.
The Lord Privy Seal (Lord Belstead): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 38 (Arrangement of the Order Paper) be dispensed with for the purpose of taking the Motion in the name of Lord Trefgarne on Thursday 13th July to take note of the Statement on the Defence Estimates (Cmnd. 675-I) before the Motions to approve the Army, Air Force and Naval Discipline Acts (Continuation) Order 1989 and the Visiting Forces and International Headquarters (Application of Law) (Amendment) Order 1989.—(Lord Belstead.)
On Question, Motion agreed to.

Statute Law (Repeals) Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee.Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Common Land (Rectification of Registers) Bill
Lord Denham: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that Her Majesty and His Royal Highness, having been informed of the purport of the Common Land (Rectification of Registers) Bill, have consented to place their prerogatives and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Dock Work Bill
2.58 p.m.
Read a third time.
Clause 5 [Compensation for former registered dock workers who become redundant]:
Lord McCarthy Lord McCarthy moved the following amendment:
Page 3, line 28, after ("employer") insert ("for any period").
The noble Lord said: My Lords, this amendment arises out of a question which I asked the Minister at Report stage. After reading in the Official Report the reply which he gave me on that occasion, I felt that we on this side of the House had no alternative but to put down this amendment.
The amendment is concerned with the qualifications for the redundancy compensation

967
which is put into the Bill as an alternative to and a substitute for the present level of compensation under the registered docks scheme. Under the scheme, for voluntary severance, compensation for 15 years' service of up to £25,000 is possible. That will no longer exist when the Bill comes into effect. In its place, the Government have proposed in Clause 5 a system of statutory compensation which at its maximum leads to £35,000 for 15 years' service but requires three qualifications.
Our amendment deals with the third of those qualifications. The first qualification comes under Clause 5(2)(b). It says that the person must be dismissed for reasons of redundancy. In other words, unless the person is dismissed for reasons of redundancy, quite obviously he is not entitled to compensation. The second qualification occurs in subsection (2)(a). It provides that if, immediately before the passing of the Act, the person was a registered dock worker, and if subsequent to the enactment of the legislation that person is dismissed for reasons of redundancy, he qualifies under the first two qualifications.
However, the problem arises—at least, we submit that it does—because of the third qualification. Subsection (2)(c) provides that,
"he"—
that is to say, the would-be redundant claimant—
"has been in the employment of that employer since that date".
In other words, at the moment when the redundancy occurs and when the compensation becomes payable, the individual must be in the employment of a registered dock employer. When we first saw the Bill the provision seemed sensible and straightforward enough. Obviously the individual concerned had to be employed in the industry and had to be employed by a registered employer. However, a problem arises with the word "since". The question is, does the clause as drafted cover the situation of a dock worker who has had an interruption in his employment contract which occurs after the date of enactment but before the compensation period runs out? Of course, the Government say that after three years there will be no more compensation in any event. We shall be stuck with redundancy compensation of the first sort.
Therefore we are asking whether there is a service break guarantee implied on the face of the Bill. The amendment proposes that we insert the words "for any period" in line 28, so that the clause would read:
"he has been in the employment of that employer for any period since that date".
If we insert those words, obviously a service break guarantee exists.
Many Members of the House may argue as to whether this is really a problem. They may ask why there should be such a service break, and why should someone who is a dock worker, formerly employed as a registered dock worker, who left the service for reasons other than redundancy be able to come back into the service, be re-engaged and then subsequently qualify—or fail to qualify, unless the amendment is accepted—for redundancy payment.
There are many reasons for this. Because of the way that the industry works there are many reasons for which a dock worker may be placed in that position. I do not wish to burden the House, but I have five examples where such a situation could arise. First, there could be an accident. We have been told by the Government on many occasions that they accept that this is a dangerous industry. There could be a fall, there could be an accident with machinery, or dockers, as I am told by my dock-worker friends in dock-work phrases, can "do in their backs". Indeed, you can often damage your back working as a docker.
If the person concerned feels that he is unable to perform the task then of course he may be dismissed. He may leave the employ of his employer and may even go on to undertake some other work which is outside the area of registered dock work. But, subsequently, the person's back may improve. He may no longer suffer from an injured back. Therefore the person applies for a job, doing the ordinary tasks which he did before. He would have been able, under the old scheme, to go back to work as a registered docker—but that is no longer the case since the scheme is to be abolished. In any event, there has been a period of perhaps two or thee months when he was not employed as a registered dock worker. Does that fact take the person outside the scope of the scheme? Is that what is implied by the words as they appear at present in the Bill?
However, the incident may not be an accident. My second example concerns a medical problem; that is, something which is not accidental. Nowadays people often fall ill, sometimes very seriously ill. Doctors often tell them that they have no alternative but to retire and leave their job. But, suddenly the illness or affliction, however serious it may be, regresses. People often recover from such conditions. They return to work. They are taken on in their old employment. If that happens, they have been out of employment for a period of time. Are such people covered under the provisions of the Bill? A dock worker may have 20 years' service in his favour. He may have some medical incapacity which takes him out of work for six months. Is he to lose that 20 years' service under the provisions of the Bill?
Another example concerns voluntary severance. People sometimes choose to leave and undertake other jobs. They seek other employment in an endeavour to better themselves. However, they may well find that they do not like the new job that they have taken on and that they wish to return to dock work. A person may return to his old employer and, because he is a good worker, the employer is perfectly prepared to take him on again. In the old days the person would go back as a registered dock worker, but now it would be as a dock worker. That is the third example. I wish to know whether such people are covered by the provisions of the Bill.
The fourth example is this. There may be, and often is, a sudden act of alleged misconduct. I suppose that the most obvious example of this is when a supervisor, foreman or some other person in authority considers that there has been an act of peculation, some dishonesty, and the individual is dismissed. Of course that could not have happened

969
under the old scheme because the procedure had to be gone through and the person concerned could always appeal to the local committees. However, that will not happen now.
Under the new scheme a person can be dismissed for an act of alleged misconduct. But, as sometimes happens in the industry, subsequent investigations prove that the person was innocent. In other words, the person who was dismissed should not have been dismissed and the employer, who is a reasonable man, re-engages the worker. The time when the person was not employed may only be a matter of weeks, but has he lost the right to redundancy pay? That is the question we are asking.
Finally, there is another matter I must raise. I apologise for raising it yet again, but although I referred to it on Report I think that the Minister, or those who gave him information for his reply, misunderstood what I was trying to say. There could be, for example, industrial action. When there is industrial action, as the Minister said on Report, there is a breach of contract. If there is a breach of contract the individual can be dismissed as there is now no protection. However, every employer who dismisses workers engaged in industrial action does not take the matter to the point where he never re-engages the persons concerned. That is part of the to and fro of industrial relations. The employer says, "Unless you are all back to work on Monday, you are all sacked". It is quite possible that all the workers are sacked, but ultimately there is a settlement. Perhaps the union is brought in, or ACAS is consulted. Part of the settlement is the re-engagement of all those workers who were dismissed in the course of the industrial action.
That situation frequently arises when there is strike action. The matter does not go to an industrial tribunal; the employer loses his temper, sacks the workers but ultimately takes them all back. Everything is then okay, all is forgiven and life goes on. But, have the dockers involved lost the right to redundancy pay?
I turn to the Minister's reply on Report on 28th June at col. 794 of Hansard. I thought I asked him what happens if a docker is dismissed for reasons other than redundancy. But, my understanding of what the Minister said at the time is that he thought I had asked whether a docker loses his right to redundancy pay if he has been lawfully dismissed for reasons of industrial action. Of course the Minister replied that such a worker would lose his right to redundancy pay. I agree with him. However, that was not my question. I am asking, what happens if the worker is subsequently re-engaged?
There is a further point I must stress. I am sorry if I overemphasise this, but I want the Government to give a straight answer on the matter. There are three conditions: one has to be a registered docker; one has to be in the employment of a registered employer; and one must be dismissed on grounds of redundancy. If the worker left for some reason other than redundancy, and he were subsequently re-engaged before there was any prospect of redundancy under the terms of the Bill, and subsequently there is not merely the prospect of
970
redundancy but actual redundancy, is the individual covered in the Bill? Some may say: "Well, the man on the benefit counter will tell you. If you are dismissed on grounds of redundancy, when you go along to him subsequently and say, "I want my redundancy pay", he will decide". We do not believe that that is enough. We do not believe that that is satisfactory. We do not believe that at this point the man on the benefit counter, or whoever, should read Clause 5(2)(c) and decide what is meant by:
"in the employment of that employer since that date".
The point should be decided by the Government. It should be decided on the face of the Bill. Some may say, "If you do not like the answer, you can go to the tribunal; you can go to law". We do not believe that that is satisfactory. The point should be clear on the face of the Bill, and so we turn to the face of the Bill. We ask the Minister: what does the word "since" mean in that context? Does it mean ever since? Does it mean all the time? "We have been together now for 40 years and I have hated you ever since". Does it mean ever since or does it mean that there could have been breaks in the service? "I did not hate you all the time; only part of the time. Every now and again I stopped hating you when I remembered." It was an interrupted relationship. Is that covered on the face of the Bill? If the individual changes his job and goes back, it is arguable that he was not employed as a docker since the date of the passage of the Act, but for only part of the time since then.
Fortunately, we offer the Government a simple amendment to make the point clear. The provision should read, "He has been in the employment of that employer for any period since that date". That must be what the Government intend. Surely, the Government do not intend that unfortunate dockers who may be subject to injuries, accidents or movement to other jobs who are then voluntarily re-engaged by their employers should lose all the service they have had under the scheme. I hope that the Government accept the amendment. I beg to move.
Lord Rochester: My Lords, like the noble Lord, Lord McCarthy, I hope that the Government will clarify the terms of the subsection. The Minister did not do so adequately on Report, although, as the noble Lord said, he may not have fully understood what the noble Lord was seeking. If the amendment were confined to cases which were not of a disciplinary kind, I should be wholly sympathetic to it. For instance, as the noble Lord has said, if someone were to fall sick during the relevant period and on that account were to be dismissed and subsequently re-engaged, it would seem inequitable that he should lose his entitlement to redundancy pay. However, in drafting the amendment so that it could apparently cover even cases where someone is dismissed because he has gone on strike, I am troubled lest dockers should be placed, by statute, in a position different from that of all other employees.
As we were reminded on Report, rightly or wrongly it has always been the case in this country that anyone who goes on strike can be dismissed for breach of contract, but he does not thereby lose

971
entitlement to redundancy pay but risks losing it by giving his employer other possible grounds to dismiss him.
On the general question, there is a strong case for bringing the position in the United Kingdom into line with that in many other countries where, during a lawful strike, the employee's contract is suspended rather than terminated. I question whether that privilege should be accorded now to dockers alone, for as I understand it—and it may be that I do not understand it in view of what the noble Lord has said—that might be the effect of the amendment. However that may be, like the noble Lord, I should be grateful if the Minister would tell us precisely what the subsection means, especially in relation to people who, having been dismissed, are then re-engaged.
3.15 p.m.
Lord Brabazon of Tara: My Lords, I must compliment the noble Lord, Lord McCarthy, and his noble friends on one thing. The more this Bill progresses, the fewer, the shorter and the simpler do their amendments become. The amendment has a disarming simplicity, but that is as far as my compliment can go. I have to say that we on this side of the House do not agree with the amendment. I doubt whether that will come as a surprise to the noble Lord. I shall explain exactly why we disagree and why we think the amendment should not be made.
As the noble Lord so clearly explained on Report, Clause 5(2) sets out three conditions which must be fulfilled if a person is to qualify for a redundancy compensation payment under the scheme to be made in regulations made under this clause. The third of those is that where a person—a former registered dock worker—is dismissed by reason of redundancy within the period during which the compensation scheme operates, he must have been in the employment of his former registered employer since the date on which the compensation scheme took effect. That date, as noble Lords who have been following this Bill are well aware, will in fact be the date on which the Bill receives the Royal Assent. The Bill therefore provides that the former registered dock worker must, when he is made redundant, have been employed continuously by his former employer between the enactment of the Bill and the date of his being made redundant.
The noble Lord wants the entitlement to redundancy compensation to remain if the period of employment is broken. He wants it to remain if a former registered dock worker has left the employment of his former registered employer, no matter what the circumstances, so that if he should be reinstated, or otherwise taken back into employment by that employer, but subsequently be made redundant within the three-year period in which our special compensation scheme will operate, he will still qualify for compensation under the scheme.
The proposed amendment would apply in any case where a former registered dock worker left his employment, but was subsequently taken on again
972
by the same employer. It would apply, for example, where an employee left of his own accord because he preferred to accept some other job with some other employer, or to go into business on his own, which was one of the examples the noble Lord gave. I see no reason why someone who leaves employment under those circumstances should not lose his right to redundancy compensation.
Some noble Lords may feel that one of the other examples of the noble Lord, that of someone being dismissed for ill-health and subsequently being reinstated, is more deserving of sympathy. I have to say that it seems to me extremely unlikely that a former registered dock worker whose health has unfortunately become so bad that his employer can no longer find suitable work for him and has to dismiss him for that reason, is ever likely to be taken on again by his employer. However, if he is so dismissed, he will be entitled to an immediate sickness pension from the registered dock workers pension fund, regardless of his age at the time. He will also have the right to claim to an industrial tribunal that he has been dismissed unfairly. The noble Lord also referred to the position of a former registered dock worker who goes on strike. Here of course we come to the heart of the matter. The Employment Protection (Consolidation) Act 1978 specifically provides that for the purpose of qualifying for a redundancy payment under the Act, continuity of employment is not broken when an individual goes on strike. The Act states in Section 81 that to qualify for a redundancy payment a person must have been continuously employed by his employer for at least two years. It also states, in Schedule 13, paragraph 15, that:
"The continuity of an employee's period of employment is not broken"
by a week which does not count for calculating the length of the employee's service,
"if in that week, or any part of that week, the employee takes part in a strike".
There is no equivalent provision in this Bill and there is no equivalent provision in the regulations detailing the compensation scheme, which we published some weeks ago in draft. So why are we apparently treating former registered dock workers more harshly than the generality of employees? Why have we apparently abandoned our principle of treating them the same as everyone else?
It is important, if I may say so, to keep one's eyes very closely on the ball. The first point to grasp is that the former registered dock worker who goes on strike does not forfeit his right to a compensation payment just by going on strike, any more than any other employee forfeits his right to a statutory redundancy payment just by going on strike. He does not break the continuity of his employment for the purpose of our special compensation scheme.
Secondly, he does not forfeit his right if, while he is on strike, his employer decides to make him redundant and dismisses him on the ground of redundancy. In that case, he will get the compensation payment to which he is entitled under this Bill and the compensation scheme to be made under it. Thirdly, he will however forfeit his right if, while he is on strike, his employer dismisses him for

973
breach of contract, or indeed for some reason other than redundancy. But if he is so dismissed and is not subsequently reinstated or re-engaged by his employer, he is in exactly the same position as any other employee under the Employment Protection Act. Any employee dismissed for breach of contract, or for some reason other than redundancy, forfeits his right to a redundancy payment.
However, suppose the employer does re-engage an employee who was on strike and whom he dismissed while he was on strike. In the case of an employee other than one to whom this Bill will apply, the period for which he was on strike will not break the continuity of his employment. He will therefore still be eligible for a statutory redundancy payment, if he has completed two year's service with his employer or as soon as he has completed two years' service with him. The period during which he was on strike does not count towards the qualifying two years, or for the purpose of calculating his total length of service and thus his redundancy pay entitlement. But the fact of his having been dismissed for breach of contract while on strike, and then having been re-engaged, does not disqualify him from a statutory redundancy payment if he is later made redundant.
The position of a former registered dock worker under this Bill is however different. If he is dismissed for any reason except redundancy, that breaks the continuity of his employment. If he is later re-engaged by the same employer, he cannot regain his right to compensation. So if, having been re-engaged, he were then to be made redundant within three years of the passing of this Bill, he would not receive any compensation under our special scheme. He would, however, be eligible for the statutory redundancy payment under the Employment Protection Act. For that purpose, the whole of his time on the dock work register and his service up to the date of his going on strike would count, as well as his service since his re-engagement. So he would be in exactly the same position as any other employee.
The situation that I have just described is one which it seems is not likely to happen. It seems to me unlikely that if an employer dismisses his former registered dock workers for breach of contract while they are on strike, he will be prepared to re-engage them once the strike is over. It is even less likely he will do so if he thinks he is going to have to make them, or some of them, redundant in the foreseeable future.
The noble Lord may take a more cynical view. He may say that that is just what an unscrupulous employer will do, because that way he will get his old employees back but escape the obligation to pay them the £35,000 or £20,000, or whatever, under this Bill, if he does decide to make any of them redundant. Indeed he may say that an employer wanting to make registered dock workers redundant will deliberately wait to see whether they go on strike, in the hope that if they do he can get his redundancies on the cheap by dismissing the men at the outset for breach of contract so that they lose their right to redundancy compensation.
Let us suppose that the noble Lord is right about that. Is it unjust? Is it unfair? I submit that it is not.
974
The statutory payments for redundancy that will be available under this Bill will be many times larger than those available to the generality of employees. The taxpayer will be paying half the cost of them. It would be letting the registered dock worker who goes on strike have his cake and eat it if he knows that if he is dismissed for breach of contract, he will suffer no penalty at all if he should be re-engaged. It would tip the balance too far towards the employee. Moreover, it would reduce the chance of the dock worker who has gone on strike and been dismissed being re-engaged. If the employer knows that if he then needed to make the employee redundant it would cost him up to £17,500, it would make him reluctant to re-engage him. If the strike had financially damaged the employer, there would be more risk of his becoming insolvent if he took the men back with that liability. So the taxpayer would have to step in to pay the full cost of redundancies.
I hope that I have given a very clear explanation of why we on the Government Benches believe this amendment to be wrong. In essence, it would be too wide and too generous. Therefore, I hope that the noble Lord will withdraw it. If he does not, I must urge the House to reject it.
Baroness Seear: My Lords, I wish to ask the noble Lord to think again about the two cases which he discussed at the beginning. There was the case of the man who was injured which I do not think the noble Lord mentioned but he would be in the same category as the man who was sick, who left for those reasons, but recovered and was re-employed. The noble Lord said that he thought that was very unlikely to happen. I think it is very likely to happen. It happens again and again in ordinary industry that people leave if they think they are seriously damaged and the doctors and everybody else think they are seriously damaged. It is quite common for an employer to keep them on the books for a while and then to say, "We cannot leave them on the books indefinitely, we shall take them off'. But the man gets better (as happens very frequently), he reapplies and comes back. All the noble Lord said to us was that he thought it would not happen. I should have thought that those cases were in a totally different category from the others which the noble Lord discussed.
One can argue both ways about the man who has been on strike; but the people who have left because they were sick and then return are surely in a much stronger position to be considered for redundancy than any of the other categories discussed.Will the noble Lord think again about that?
Lord Brabazon of Tara: My Lords, I think that the case of injured or sick people would be covered by the remarks I made about sickness. The same would apply to an injury. I said that it was unlikely that somebody would be taken back. However. I pointed out that they would have the right to claim unfair dismissal to an industrial tribunal which would hear the case. The trouble is that the amendment covers not only that situation but every other kind of dismissal which I have already mentioned. The position would be exactly the same in those

975
circumstances for any other class of employee. We have tried not to make a special case for registered dock workers.
Lord Mellish: My Lords, perhaps I may ask the Minister a question arising out of what he said. He will know that Mr. Todd has tried to conform to the law as best he can, and that there is now a second ballot. It is understood that that ballot will not take place until the Bill is passed and the scheme has been abolished.
Let us assume—I am only assuming—that the ballot is in favour of the dispute, and that the dispute is about the removal of the scheme. I support anybody who voted for the dispute because I think that the removal of the scheme is absolutely outrageous. After all, in the early part of this year the Government had no intention of doing that. Nothing was said in the Queen's Speech. There was not a word about it. It was suddenly introduced because some employers said, "You've got to do it"; and so did certain Back-Benchers. That being so, the question I put to the Minister is this. Is he saying what some employers say now: that if the men go on strike within the period of time that I mention, their claim will be disallowed and they will not be entitled to any severance or redundancy pay?
3.30 p.m.
Lord Brabazon of Tara: My Lords, we are on the Third Reading of this Bill. We have already had the noble Lord's views as regards whether the scheme should be abandoned. In answer to the particular case he mentioned, as I said in my speech, going on strike would not necessarily prevent someone from being eligible for the redundancy scheme. On the other hand, if someone were dismissed for breach of contract, he would not be eligible for the scheme.
Lord McCarthy: My Lords, we have had a very wide debate on Third Reading. I hope it will serve as a precedent of what we can do on Third Reading. I shall deal first with what the noble Lord, Lord Rochester, said. I am not saying, and I would not wish to say, that in this amendment we are providing, by a back door, a right to suspension in the case of industrial action. There is a very clear difference here. The employer concerned has to re-engage. We are not protecting a man who is dismissed in a strike. As regards his contract, that is the end of it. The employer concerned has to re-engage. But what we are asking is when an employer voluntarily re-engages a man, does his service stand to the benefit of that worker? The Minister says that service does stand to the benefit of the worker concerned in the case of the redundancy payments legislation. As regards that legislation, it is the case that service does not have to be continuous. If it is considered as uninterrupted as regards the redundancy payments legislation, why cannot the same apply in this case? That is my answer to the point made by the noble Lord, Lord Rochester.
I now turn to the Minister. I suppose it was meant as a compliment when the Minister said that the amendments were getting simpler and simpler. I
976
have to say that he gets meaner and meaner. The Minister said that this provision is too wide and too large because the people involved are ordinary people and are not wealth creators. Such a provision could not be wide enough or large enough for wealth creators, but when it comes to ordinary dockers it is too wide and too large.
The Minister went through the various arguments that I used. He said, without any qualification, that the employment would have to be continuous employment for the provision to apply. There is no doubt whatever that the Government consider there is no chance of any cover unless the docker concerned has been continuously employed. If he is dismissed for six months because his leg falls off, he is considered to have lost all his service. The Government consider that to give such a person any benefit in those circumstances would be drawing the provision too wide and too large.
The Minister referred to ill-health. He and the noble Baroness said that they could not imagine that service would be considered to be discontinued for reasons of ill-health. I sometimes wonder where the Government live. Perhaps when Members of the Government are ill they do not get their pay stopped or get the sack. However, many other people do. In the case of redundancy payments, people suffering from ill-health would not normally lose their continuity of service. However, under this Bill they would lose continuity of service, because anything else would be considered to be drawn too wide and too large.
I am sorry that we moved to the subject of industrial action. The Government could have come forward this afternoon with something that might have taken the noble Lord, Lord Rochester, with them. The Minister could have said that he appreciated the case of ill-health and sickness. However, the problem is that Members of the Government on the other side of the House are obsessed with industrial action. They believe that the only thing to do with strikers is to grind them down. The Minister could have said that he wanted to exclude strike action from the provisions of the amendment. We would have accepted that. At this stage we would have accepted that. If the Government had said that they would make that exemption when the Bill returned to another place, so that this provision only covered ill-health and sickness but specifically exempted strike action, we would have accepted that. Any concession from this Government, however narrow and however small, is worth having.
The Minister does not satisfy me and he does not attempt to satisfy me. He talks about good employers and bad employers. However, I say to the Minister that one of the arguments I was going to use—however, I did not wish to burden the House with this—is that the Government are driving the good employer into illegality. I did not talk about bad employers. The Minister is quite correct to say that bad employers will manoeuvre in such a way that they escape their share of redundancy pay. However, the good employer will tell lies. He will fiddle, or at least he will be under pressure to do so. When the docker goes to the benefit office to find

977
our whether he has benefit, the good employer will collude with that office to ensure that the man in the benefit office thinks the contract is continuous. The man in the benefit office will be furnished with the illegal words that will prevent him from saying that the docker cannot receive redundancy pay. That is what will happen.
The unions, too, will be forced into arguing that every dismissal should be classified as redundancy, because if it is not classified as redundancy the docker will not be able to get the money. That is a fine way to encourage the observance of the rule of law. All the bad employers can use it, and all the good employers are forced into forms of dishonesty in order to do the decent thing, all because this provision is too wide and too large. We think that the Bill is too dreadful, and we intend to divide the House.
3.35 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 117.

DIVISION NO. 1

CONTENTS

Addington, L.

McCarthy, L.

Amherst, E.

McNair, L.

Aylestone, L.

Mason of Barnsley, L.

Birk, B.

Mellish, L.

Bonham-Carter, L.

Mishcon, L.

Boston of Faversham, L.

Mulley, L.

Briginshaw, L.

Nicol, B.

Bruce of Donington, L.

Northfieid, L.

Carmichael of Kelvingrove, L.

Paget of Northampton, L

Perry of Walton, L.

Chester, Bp.

Peston, L.

Cledwyn of Penrhos, L.

Phillips, B.

Cocks of Hartcliffe, L.

Pitt of Hampstead, L.

David, B.

Prys-Davies, L.

Dean of Beswick, L.

Rea, L.

Dormand of Easington, L.

Rochester, L.

Elwyn-Jones, L.

Sainsbury, L.

Ennals, L.

Seear, B.

Ewart-Biggs, B.

Serota, B.

Ezra, L.

Shackleton, L.

Falkland, V.

Shepherd, L.

Gallacher, L. [Teller.]

Soper, L.

Galpern, L.

Stallard, L.

Gladwyn, L.

Stedman, B.

Graham of Edmonton, L. [Teller.]

Stoddart of Swindon, L.

Strabolgi, L.

Grimond, L.

Taylor of Blackburn, L.

Hampton, L.

Taylor of Mansfield, L.

Harris of Greenwich, L.

Tordoff, L.

Hayter, L.

Turner of Camden, B.

Hirshfield, L.

Underhill, L.

Houghton of Sowerby, L.

Wallace of Coslany, L.

John-Mackie, L.

Walston, L.

Kennet, L.

White, B.

Leatherland, L.

Williams of Elvel, L.

Longford, E.

NOT-CONTENTS

Allerton, L.

Beloff, L.

Ampthill, L.

Belstead, L.

Annaly, L.

Blatch, B.

Arran, E.

Blyth, L.

Auckland, L.

Borthwick, L.

Belhaven and Stenton, L.

Boyd-Carpenter, L.

Bellwin, L.

Brabazon of Tara, L.

978

Brougham and Vaux, L.

Lucas of Chilworth, L.

Butterworth, L.

McAlpine of Moffat, L.

Caithness, E.

Mackay of Clashfern, L.

Caldecote, V.

Margadale, L.

Campbell of Alloway, L.

Marley, L.

Campbell of Croy, L.

Maude of Stratford-upon-Avon, L.

Carnegy of Lour, B.

Carnock, L

Merrivale, L.

Cayzer, L.

Mersey, V.

Cockfield, L.

Middleton, L.

Constantine of Stanmore, L.

Mowbray and Stourton, L

Cottesloe, L.

Munster, E.

Cullen of Ashbourne, L.

Nelson, E.

Davidson, V. [Teller.]

Norfolk, D.

De Freyne, L.

Nugent of Guildford, L.

Denham, L. [Teller.]

Onslow, E.

Dilhorne, V.

Oppenheim-Barnes, B.

Dundee, E.

Orkney, E.

Eccles, V.

Oxfuird, V.

Eden of Winton, L.

Penrhyn, L.

Effingham, E.

Platt of Writtle, B.

Elibank, L.

Porritt, L.

Ellenborough, L.

Quinton, L.

Elliot of Harwood, B.

Rankeillour, L.

Erroll of Hale, L.

Reay, L.

Faithfull, B.

Reigate, L.

Foley, L.

Romney, E.

Fraser of Carmyllie, L.

St. John of Fawsley, L.

Gainford, L.

Saint Oswald, L.

Glenarthur, L.

Sanderson of Bowden, L.

Grantchester, L.

Seebohm, L.

Gridley, L.

Sempill, Ly.

Hailsham of Saint Marylebone, L.

Shannon, E.

Shrewsbury, E.

Halsbury, E.

Skelmersdale, L.

Harmar-Nicholls, L.

Slim, V.

Havers, L.

Somers, L.

Henley, L.

Strange, B.

Hesketh, L.

Strathcarron, L.

Home of the Hirsel, L.

Strathclyde, L.

Hood, V.

Strathspey, L.

Hooper, B.

Teviot, L.

Hylton-Foster, B.

Thomas of Gwydir, L.

Ilchester, E.

Trafford, L.

Ironside, L.

Vaux of Harrowden, L.

Jenkin of Roding, L.

Waldegrave, E.

Johnston of Rockport, L.

Whitelaw, V.

Joseph, L.

Windlesham, L.

Kimball, L.

Wolfson, L.

Kinloss, Ly.

Wynford, L.

Kinnaird, L.

Young, B.

Lauderdale, E,

Young of Graffham, L.

Long, V.

Resolved in the negative, and amendment disagreed to accordingly,
3.43 p.m.
Lord Brabazon of Tara: My Lords, I beg to move that the Bill do now pass.
There is no question that the Bill touches on matters of deep concern to a number of noble Lords on all sides of the House, for different reasons. Any Bill which brings to an end a statutory regime which has existed for 40 years is bound to do that. This is especially true when the purpose of those statutes was to improve the working conditions of a group of workers who, even by the standards of those days, suffered particular hardship because of the nature of the industry in which they worked. Poor working conditions in the docks were the product of a technology, and consequent organisation of work, which owed more to the 19th century than the 20th. No one listening to the bitter memories of the days before the dock labour scheme, invoked with a passion born of personal experience by the noble

979
Lords, Lord Mellish and Lord Sefton, could fail to grasp the meaning of the scheme to them and their fears for the future.
However, progress is such that the well-intentioned reforms of one era can quickly become the obstacles of the next. That is the Government's view in this case, and I believe that it is shared by the noble Lord, Lord Rochester, and his colleagues. Employment rights and obligations of employees and employers generally have become more comprehensive. Dock work itself has finally been transformed by the same process of technological change which had already begun to provide the spur for better standards and conditions in other industries when the scheme was introduced. As a result, the docks of today require levels of capital investment and skills comparable to those of any modern industry. That came over very clearly in the contribution from my noble friend Lord Crickhowell which reflected his association with the industry.
In today's changed circumstances the controls of the scheme, and its labour monopoly, have served all too often to impede change which might have produced greater prosperity and genuine security for the workers whom the scheme sought to protect. I believe it was my noble friend Lord Trafford, who questioned whether some of our greatest ports, London and Liverpool in particular, would have declined as far and as fast if they had been able to respond more readily to the tougher competition which all ports face.
The Bill we have been considering brings an end to the dock labour scheme, provides for transitional arrangements under the guidance of the National Dock Labour Board, and the establishment of statutory redundancy arrangements for former registered dock workers. It is neither a long nor a complicated Bill by the standards to which we have become accustomed. The Government have seen no need to propose amendments of their own because they believe that the Bill expresses their intentions clearly and without technical flaws. Indeed, none of the amendments tabled by noble Lords have sought to correct deficiencies of wording. Even the apparently minor change proposed by the noble Lord, Lord McCarthy, this afternoon sought a change in the meaning of the Bill, not its clarification.
The Government have resisted all other amendments to the Bill, either because they sought to overturn the central principle that the scheme should be wound up with the minimum of delay and without imposing a special statutory framework for its replacement, or because they sought to impose additional requirements for the transitional period. There were other amendments, for example on the terms of compensation for former registered dock workers, but I think that those two categories encompass the overwhelming majority.
Those noble Lords who supported amendments coming under the first heading will understand their incompatibility with the intentions of the Bill, even if they disagree profoundly with those intentions. In respect of the second category, the Government's
980
resistance was often less a matter of principle than of their belief that they were unnecessary to achieve a rapid and smooth transition to a position where dock employers and employees in scheme ports were bound by the same statutory rights and obligations as employers and employees elsewhere in industry.
The noble Lord, Lord Rochester, subscribed to that aim on several occasions, and yet felt it important to seek an exceptional requirement that the Secretary of State should satisfy himself of the adequacy of training and welfare arrangements for dock workers before bringing the transitional period to an end. I can assure the noble Lord that the Government share his concern that adequate arrangements should exist. However, the statutory framework for welfare in our ports is already comprehensive and there is every indication that training provision will be developed by the industry to meet its own needs, with the assistance of the Bill's special provisions to allow the board to dispose of relevant facilities—notably its training and medical facilities—in the industry's interests.
Anyone who has followed the four sessions we have devoted to this Bill cannot doubt that the issues have been fully debated. We have found ourselves returning to the same points and arguments on several occasions. There have been many distinguished contributions, and if I mention some I mean no discourtesy to others of equal merit. My noble friend Lord Boyd-Carpenter spoke about the future opportunities for our docks without the scheme with a conviction matched only by the passion of the noble Lord, Lord Mellish, in defence of the scheme. My noble friends Lord Lucas of Chilworth and Lord Peyton of Yeovil drew on their close association with the transport industries in different capacities.
I thank also the noble Baroness, Lady Turner, and the noble Lords, Lord McCarthy and Lord Underhill, whose approach throughout has been typically thorough and unfailingly courteous. I hope that they will accept that, whatever divides us on the means to this end, we share their desire to see a prosperous ports industry capable of providing reasonable terms and conditions for all its workers and a genuine basis for stability of employment.
Moved, That the Bill do now pass.—(Lord Brabazon of Tara.)
Baroness Turner of Camden: My Lords, we have now reached the final stage of the passage of the Bill through Parliament. We on this side of the House have never viewed it with favour. Not only do we not like the Bill; we strongly object to the manner in which it has been introduced. As my noble friend Lord Mellish has constantly reminded the House, it is, after all, not very long since we were told that the Government had no intention of doing away with the dock labour scheme. Then, quite suddenly, a Statement was made to both Houses, followed immediately by a White Paper and a Bill the very next day.
There has been no adequate explanation for that rush, nor have we been told what the emergency was. There was no consultation, either. Why the Government bothered to issue a White Paper, which

981
is normally for consultative purposes in advance of a Bill, has never been explained. We have repeatedly complained about the lack of consultation with the union, only to be told that it was not necessary to consult because the Government knew the result in advance. Were the Government out to provoke a dock strike? Has the union been canny enough to refuse to be provoked? Did the Government want to find a scapegoat for the balance of trade crisis? Whatever happens, they have not succeeded in doing that.
Nevertheless, the Government have persisted with their aim of pushing through the legislation with almost unprecedented haste. Clearly, the word has gone out from on high that nothing must impede the Bill's rapid progress onto the statute book. As has been pointed out on several occasions from these Benches, the lawyers may complain, but they are doing rather better than the dockers. If the press stories are accurate, it now looks as though they have been able to pressurise the Government into having second thoughts. Unfortunately, we have been unable to persuade the Government to do the same for dockers.
Then there is the Bill itself—a short Bill designed, as the Minister said, to do away with a scheme that has been in operation on a statutory basis for over 40. years. As noble Lords have pointed out—not all of them from these Benches—there is no attempt to put anything in its place. The noble Lord, Lord Rochester, spoke about the need for a national strategy, as we did from these Benches, but to no avail. Apparently, the Government are quite content to leave that important industry to the operation of market forces and to the employers.
We have repeatedly been told by the Government that the reason for the unprofitability of some scheme ports is the existence of the dock labour scheme. Again, when it has been pointed out that not all scheme ports are unprofitable, and when the Government have repeatedly been told that Rotterdam, for example, operates a scheme not unlike our own dock labour scheme, and that continental ports have registers of dock workers and oppose casualisation, there has been no response from the Government.
We have repeatedly stressed the dockers' legitimate fear of a return to casualisation. We have heard from my noble friend Lord Mellish, who has experience of the industry, just what conditions were like for dock workers before the scheme came into existence. My noble friend Lord Callaghan has also spoken of his experience when he was an MP for a dock constituency. All those who have spoken in debates on the Bill have asserted their opposition to a return to the bad old days.
However, this is an industry in which a return to casualisation would be only too easy. It is said that the employers are against casualisation now because they need a highly skilled, permanent workforce. But there is still a demand for less skilled work. The union fears that we shall see the emergence of a core of highly skilled workers with a pool of casual labour. That is not unlikely and the assurances that the employers have so far given fall far short of what is required, given the history of the industry.
982
We have sought through our amendments to maintain a role for the Government and, with it, some kind of assurance for the workforce that the bad old days will not return. The Government's refusal to meet those fears and their opposition to the ILO convention on casualisation has strengthened the view that the loss of the scheme will once more put dockers' livelihoods at risk.
Then there is the matter of health and safety, and training. At Report stage, we sought to salvage some protection for the workforce when we urged the Government to accept the amendment put down by the noble Lord, Lord Rochester. That would at least have ensured a continuing government commitment until the Secretary of State was satisfied that adequate provision was being made in those important areas once the scheme had gone. Again, we ran into total opposition from the Government. At no time during the passage of the Bill have they been prepared to give even a small amount of reassurance to satisfy our fears. The most modest of amendments, including that moved by my noble friend Lord McCarthy this afternoon, have met with total opposition.
To those of us on these Benches the most unacceptable argument of all which has been advanced by the Government and some of their supporters is that dockers in the scheme are somehow privileged. We are told that they have privileges that other workers do not have; yet, at the same time, we are told that workers in non-scheme ports are better off. But is it a privilege to have good health and safety provision and medical and training centres? If it is, then it is about time that that privilege was extended to other parts of industry. Is it a privilege to have some degree of security of employment with reasonable compensation for redundancy in the event of termination? Is it a privilege to have the right not to be unfairly dismissed?
After all, this is not the only industry to have an internal appeals machinery. I have repeatedly told the Government that in many industries there exist, particularly for non-manual staff, voluntary redundancy arrangements that are better than those for the dockers. In very many industries, the redundancy terms available under the Redundancy Payments Act are topped up by negotiated agreements. There is nothing very special about the arrangements for dockers except that theirs is a statutory scheme, but, as we have repeatedly said, there is a role for government in an industry like this. Nor can it be said that dock work is all that highly paid. A docker must work long hours to earn about £15,000 a year. We should compare that with some of the salaries around nowadays, particularly in the managerial field. To such people, a docker's annual wage would be so much small change.
We are not defending privileged workers here. However, through their union and through representation on the boards established under the scheme, dockers have some say in their industry and how it is run. Admittedly, that is a minority voice, but it is a voice nevertheless. Perhaps it is that aspect that the Government do not like. Europe's social dimension is anathema to the Government and

983
workers' participation is something with which they apparently do not agree.
I cannot commend the Bill to the House. As the Minister has said, throughout its passage through the House we on this side have done our best to secure some continuing protection for the workers in the industry. We deeply regret that we have not been able to achieve our objectives. Before I sit down, I should like to thank the Minister for the courtesy with which he has dealt with our amendments, but I should also like to say that I am sorry that the Government have found that they could not accept any of them.
Lord Rochester: My Lords, on these Benches our feeling about the Bill as it leaves the House is very much as it was when it came here, so I shall be brief. We have made it plain throughout that in today's conditions the dock labour scheme has outlived its usefulness and should now be brought to an end. We continue to feel that, in keeping with normal practice, the Government should have given other interested parties an opportunity to express their views before determining the precise arrangements under which the scheme was to be abolished. But, on the Motion, that the Bill do now pass, we must consider the position as it now is and not as we would wish it to be.
At the outset of our discussions, I said that my noble friends and I were concerned about one point in particular; namely, the absence of any provision in the Bill to ensure that, after dissolution of the National Dock Labour Board, there were adequate arrangements for the training and welfare of people who continue to be employed as dock workers and for the retraining of those made redundant. As the noble Baroness, Lady Turner of Camden, has already said, that was why I moved an amendment at Report stage proposing that the transitional period between the passing of the Act and the dissolution of the board should not end until the Secretary of State was satisfied that adequate alternative arrangements had been made for the training and welfare of dockers.
I shall not rehearse once more the arguments in favour of that suggestion, but I was disappointed that the Government resisted it. As I said at the time, in so doing they missed a good opportunity to demonstrate that they were not implacably resolved to have the Bill enacted in its present form, but were willing in that small way to take account of the genuine concern felt by dockers about their future welfare.
I cannot end without expressing the fervent hope that in the ballot that is now being conducted a majority of registered dock workers will vote against strike action. I should like to see negotiations begin as soon as possible between employers and union representatives at the various ports now covered by the dock labour scheme, so that there is early agreement on the employment conditions which should operate in future in those ports.
It remains only for me to join with the noble Baroness, Lady Turner, in thanking the noble Lord, Lord Brabazon, for the courteous way in which he
984
has piloted the Bill through the House. Also, if I may, I should like to compliment especially both the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord McCarthy, on their contributions to our discussions.
4 p.m.
Lord Mellish: My Lords, as the noble Lord has just said, the whole House is indebted to the noble Lord, Lord McCarthy, and the noble Baroness, Lady Turner, for the way in which they have conducted the debates on this Bill. I should like to put on record that all those associated with the dock industry will be grateful for their contributions, their extraordinary knowledge of the situation, their sympathy and their understanding. I want that clearly understood.
I suppose that it was only to be expected that a chap like me might stand up and defend those with whom he has worked for many years and who understand the docks perhaps even better than the Minister does, surprising as that may seem. The fact is that the original Act came only as a result of pressure from everyone concerned—good Conservatives and, as they were in those days, good Liberals. The Labour movement as a whole introduced the measure which brought in the original dock labour scheme as we know it. For reasons that I do not understand, this Government have decided to abolish the whole scheme. They have no mandate to do that. Their manifesto said nothing about it. No mention of it was made in the Queen's Speech. In a Question put earlier this year the noble Lord, Lord Boyd-Carpenter, asked about the national dock labour scheme, and the Government replied that it was not their intention to abolish it. They said that to him and not to me.
I was delighted with that Answer. But here we are, a few weeks later, confronted with this Bill. Incidentally, it went through the House of Commons after a guillotine Motion to make sure that protesters shut up and did what they were told. A guillotine was imposed on this Bill so that a great deal of it was never discussed or debated. It was brought into this House in the knowledge that a great number of noble Lords on the other side of the House who have no knowledge at all of the dock industry, and who know nothing about the scheme, could be dragooned into the Lobbies to vote for its abolition.
It has been said time and again—and I put this point in particular to the noble Lord, Lord Boyd-Carpenter, because he consistently opposed the scheme right from the beginning, but I put it also to the Minister—that the abolition of the scheme is based on the economic argument. Where are these economic arguments? The House has never been given any figures. It has been glibly said that the registered ports were not economic. I asked very simply (I am a simple-minded guy) if we could be given some figures. An article which I read on this subject, and perhaps I made a mistake and its facts were wrong, stated that the registered ports were making a 30 per cent. profit. Is that right? If it is not right, why does the Minister not rise and say so? Why does he not say that they are not making a profit but are losing money? On the other hand, if

985
it is true, I ask him: What is the margin of profit required? Does it have to be 30 per cent., 40 per cent. or 50 per cent., and are we to be told about it?
Throughout the whole debate an argument has been put forward that dockers were in a privileged position and that the national dock labour scheme enabled them to function in a manner denied to every other industry. The phrase that was much used by the other side was that the scheme meant "jobs for life". Let us look at that argument—and flatten it.
Initially there were 61,000 dock workers covered by the scheme. Today, there are 9,000. That is a funny old job for life, is it not? The numbers have gone down by 51,000. All those dock workers are not dead; most of them have just left the industry—they have been made redundant, or changes in the industry have meant a complete reorganisation and change of work. Nobody has been more co-operative in that respect than the dock workers. They agreed willingly to changes. They went to Tilbury where there was operated the new method, of containerisation (a dreadful word), which replaced a lot of their work. For some years there was peace and tranquillity in dockland. Now the whole of the docks is in uproar again. I ask, why?
The Government have no mandate for this Bill. The Liberals have suddenly announced that they are in favour of the abolition of the dock labour scheme. That is strange; I have never before heard that from the Liberals. They did not say anything about it before, and did not put down a Question on the subject. Now suddenly they take this view. At least the noble Lord, Lord Boyd-Carpenter, wanted to get rid of the scheme many years ago, when his own party argued against it and said that it was doing all right.
As noble Lords, will know, I was in the other House for 37 years. During that time the Conservatives ruled for 14 years and the national dock labour scheme was in force throughout those years. Why was a measure to abolish it not brought in at that time, when they had the power and the authority to do it? The answer is that the Government were quite happy with the scheme as it then was and now is. This Government have bowed to pressure from a few employers and a small number of Back-Benchers. It is very sad, particularly so for the dock workers.
Let me say a final word on this subject. It has been argued throughout our discussions that a lot more could be done if there were local negotiations but that the unions are determined to have national negotiations. I say to the Minister that there has been a lot of nonsense talked about this matter. Local negotiations have taken place for years and years. Ever since I have known the dock industry there have been local conditions, local variations, local cargoes, local rates and indeed local everything. But the rate of pay was agreed nationally and applied to every dock worker, so that whether a man worked in Merseyside or London he received the same rate of pay. That was a national agreement.
This was not special to the dock industry. The other great industry of which I have some knowledge
986
is the catering industry. One of the biggest firms in the country used to be Peak Freans, and I remember speaking to its management and asking how disputes were avoided. What, I asked, were the procedures? The management said that it was because people locally were given the chance to say what they wanted. Yet every one of the company's agreements was national. There were no arguments about rates of pay, conditions of work and so on. It was the same with the National Dock Labour Board. When that came into being its rules applied right across the country. Now that board has been wiped out.
Dockers were never privileged. They have to work very hard for what the receive. I do not deny that there will be bad men among them. I look around this Chamber and I daresay that there are one or two such here. We do not have to rush down to the docks to see such people. The vast majority of dockers try very hard to do what they are supposed to do. For no reason at all, this Government have decided to abolish the one thing that was created for them by the great Ernest Bevin, for he was the architect of the scheme. It is now to be wiped out.
The convention of this House is that we do not vote against the Third Reading of a Bill. If this side of the House were to do so on this occasion, our votes would be smashed to the ground. So what does it matter? I end by joining with the noble Baroness who has just spoken in thanking the Minister who has had charge of this Bill. I say in front of the noble Lord, the Leader of the House, that he may well be proud of him. He has been courteous and decent throughout. He has conducted himself in a way that is a credit to his party. That is all that I have to say about this rotten Bill.
4.9 p.m.
Lord Boyd-Carpenter: My Lords, whatever the views on the merits of this Bill, no one can fail to be affected, perhaps even moved, by the strong feeling which it has aroused among a number of noble Lords opposite, and most notably, the noble Lord, Lord Mellish, and the noble Baroness, Lady Turner, who spoke with real emotion, understanding and sincerity. Noble Lords will also recall at a previous stage the fine speech made by the noble Lord, Lord Callaghan, who came to the House specially for that purpose.
I recognise at once the sincerity of feeling which lies behind those views. This Bill has aroused emotions which one does not always detect in your Lordships' House in regard to other measures. I am bound to say that I have not found it quite so strong for a long time and I personally very much respect it.
However, the Bill is a perfectly definite Bill which aims to do one thing: it is a clear-cut measure designed to abolish the dock labour scheme.
Lord Mellish: Why, my Lords?
Lord Boyd-Carpenter: My Lords, it is for the Minister to say why. However, if I may respond to the noble Lord's invitation, which I always do most willingly, I might add one or two reasons. As he said, I have for some years been convinced that the dock

987
labour scheme—whatever its merits, or the justification for it originally—was out of date. It was a relic of a type of organisation, perhaps common in the 1940s, but quite unsuited to the needs of the 1980s and 1990s. If one wants an argument about it, one has only to compare what has happened in the scheme ports, to which the dock labour scheme applied, with that in the non-scheme ports.
The noble Baroness referred to one or two European ports by way of contrast. Surely a more relevant, more immediately striking contrast is with non-scheme ports in this country. Of course I now give way to the noble Lord.
Lord McCarthy: My Lords, if non-scheme ports are so excellent in every way, can the noble Lord tell me what the Minister never tells me: why is their productivity 33 per cent. below that of the scheme ports?
Lord Boyd-Carpenter: My Lords, it is for very good reasons. It is because of the type of cargoes and business that they deal with. It is quite impossible to measure productivity in the conventional way, one against another. However, what is striking—and the noble Lord must admit this—is the way in which they have grown, and the way in which traffic in them has grown compared with the decline in the scheme ports. That is indisputable. Given that, it would have been quite wrong for the Government to allow the dock labour scheme to go on. It had outlived its usefulness.
The use of the word "privilege" annoyed one or two noble Lords opposite. But it gave dockers certain advantages which were not open to their fellow workers in almost any other trade. One was the curious provision under which, if an employer packed up, another employer in that port was bound to take on—whether or not he wanted to do so—the dockers whom that employer had previously employed. It might well give him excessive manpower; it might well add to his costs; but he had to do so. Noble Lords also know perfectly well that a number of dock workers would be summoned not to do any work, but simply to stand by and then to be paid while others in limited numbers did the work. This kind of thing, although understandable no doubt in the context of the 1940s and of the deep feeling about casualisation, is unacceptable today when this country has to earn its living by efficiency, including the efficient use of labour.
Therefore, I very warmly welcome the courage and determination of the Government, knowing, as they did, that the Bill would be opposed as it has been.
Lord Mellish: My Lords, guillotined!
Lord Boyd-Carpenter: My Lords, if the noble Lord talks of guillotines, I must recall to a former Labour Chief Whip in the House of Commons that the use of the guillotine has never been confined to governments of one particular colour. No doubt the noble Lord could speak on the guillotine with great expertise as he applied it often.
Lord Mellish: My Lords, I applied it on sensible measures and not on such rubbish as this.
4.15 p.m.
Lord Boyd-Carpenter: My Lords, that is a matter of opinion.When I was in the Commons, I thought that practically all the measures to which the noble Lord applied the guillotine were absolute nonsense. Indeed, the noble Lord may recall that not only did I think that, but I said so on many of them. If the noble Lord looks back he will find that I was right. It is quite absurd to try to distort the argument on this by referring to the guillotine in particular when that point is sought to be made by someone who was a singularly skilful and vigorous exponent of the guillotine when he filled the relevant office.
This is a Bill to remove an organisation which has outlived whatever usefulness it may have had. I know that it still arouses sentimental feelings. I know that it arouses memories that I share of that great man, the late Ernest Bevin. However, if one makes a cool comparison on the scheme and non-scheme ports in this country, it becomes increasingly clear that a Government which allowed this scheme to continue would be failing in their duty; failing in their duty to the British economy; and, finally, failing in their duty to the dockers whose employment in the long run is dependent on the efficiency of the service that their ports provide.
I join with noble Lords opposite in saying how much I appreciate the way that my noble friend Lord Brabazon has handled this Bill. He kept the issues clearly before us. He did not—and rightly in the circumstances—accept amendments because none of them would have been helpful to the direct and main purpose of the Bill. But he rejected them with great courtesy. He must have a feeling of modest and well-earned satisfaction that we have now reached this stage. I am sure that noble Lords are very grateful to him for his skilful handling of the Bill.
I wish the Bill all success. I share the view of the noble Lord, Lord Rochester, that it would be foolish and silly if strikes were to occur, and that there is ample room for negotiations in particular on a local basis in the ports. Such negotiation would be to the benefit of all concerned: dockers, employers, and the British economy as a whole. In passing this Bill, we are contributing significantly to making our country the more efficient, more worthwhile economically, and a better and more competitive country than it was. That surely must be the objective of all of us.
Baroness Phillips: My Lords, I shall be brief because my noble friend on the Front Bench, and my noble friends Lord McCarthy and Lord Mellish, have put the case excellently. I am sorry that the Minister did not notice that I spoke at Second Reading, although he said that he mentioned only a few people.
I am very saddened by this Bill. I speak only because I have the greatest respect for the people who work in the docks, as I said earlier. I was interested to read in a Sunday newspaper yesterday—not a Socialist one, I hasten to say—that the Minister in another place was to be complimented for having skilfully manoeuvred the Bill through two Houses of Parliament in order to

989
get on with the job. That may be of interest to the Minister in question—who I gather has been under some cloud with the Prime Minister—but it is not a reason for legislation. This Bill is a backwards step; let us have no dissembling about it. We are not moving into the 20th century, but back into the 1930s. If the dockers strike, I would say that it would be the least that we would expect them to do.
I hope that the Government at last will take this message. They are trying to override everyone: the teachers, the doctors, the lawyers (although I gather that they are now backing down) and the people who work in the communication industries. They cannot all be wrong.
The Government are trying to force through the Bill very rapidly. We talk about courtesy. Of course the Minister is very courteous. He has a lengthy brief and tries to destroy us by blinding us with science. He gave long answers where short ones would have been more sensible. It is a terrible, destructive Bill. Let us have no mistake about it. I am very sad to see this day.
Lord Lucas of Chilworth: My Lords, perhaps I may have a moment or two of your Lordships' time largely to assure the noble Lord, Lord Mellish, that some of us on these Benches have had business in and around the docks. My knowledge goes back to 1948 when I came out of the army and went to work in Southampton, leaving there in 1963–64. The effect in the latter years on Southampton Docks has been a lack of exploitation through the dock labour scheme. I was involved in transport, overseas trucking, cold storage, warehousing and so forth. There is no doubt that the scheme greatly prevented a number of commercial companies from coming into the docks where there is now virtually a wasteland. The abolition of the dock scheme will undoubtedly given commercial companies, in many different sectors, further opportunities to enhance their business and, indeed, the dock and port industries.
The noble Lord, Lord Mellish, has consistently reminded your Lordships of the reason for the scheme starting. Nobody has ever argued with him about that. What we have been arguing about consistently, since the Bill came to your Lordships' House, is the need for change. There is a need for change which I am afraid to say your Lordships on the other side of the House have refused to accept in a number of industries. When he talks about 51,000 going down the drain, that is absolute nonsense because many of those who worked in scheme ports are still in the port industry, in non-scheme ports. It is equally nonsense for those who say that the Government have refused to ensure that health and safety in the docks is continued, because we have not put anything in its place. I do not hear anything from non-scheme port employees or employers that there has been a rash of accidents or a diminution in health. The port industry is a dangerous industry, but no more dangerous than the construction industry with its specialist equipment: no more dangerous than road building with its very specialist equipment. Employers have been able to provide alongside the legislation which this
990
Administration has put in place suitable health schemes and training schemes in all those industries.
My final word is to echo what the noble Lord, Lord Rochester, and my noble friend Lord Boyd-Carpenter said. I greatly hope that the 9,500 dockers being invited to ballot will be persuaded that their best interests lie in staying in work and, together with the employers, making the industry as successful as the non-scheme ports.
4.23 p.m.
Lord McCarthy: My Lords, the noble Lord, Lord Mellish, is quite right. One should begin by saying what one can say for the Government. One can say and one is pleased to say that the noble Lord, Lord Brabazon, has conducted the case in a smooth, gracious and efficient way. But that is all one can say for the Government. Those of us on this side of the House are bound at this stage of the Bill to wonder what we have gained by our opposition to the Bill. I am afraid that we have not gained an inch of ground. Perhaps two clarifications fell from the lips of the noble Lord. At one stage, I think it was on Report, he told us that he would not insist on an arbitrary end to the transition period and subsequently he said that the way he reads the Bill covers voluntary severance as well as compulsory redundancy. Those are small matters and I do not believe that they amount to an inch of ground, but in every other way, as previous speakers have said, he has rejected all our attempts, even—I do not agree with his description—our last final attempt to change the drafting of the Bill.
We honestly believed that the noble Lord would not say that the amendment meant continuous. It is appalling if he says that that phrase means continuous. I thought he meant it to cover all circumstances and that we were merely making the Bill clearer. It was intended to be a drafting amendment. It was a tiny amendment of substance because the Government were taking the narrowest view of what the words meant.
If we cannot say we have gained an inch of ground, we cannot say that we have actually improved the arguments. We tried. The noble Lord, Lord Mellish, tried repeatedly to persuade the Government and their supporters to go beyond such words as "sensible" and "undoubtedly"—all these things which really mean "our opinion" in the first place—and persuade them to fill in some of the gaps in their arguments. Why do they persist in talking about a job for life when the great majority of dockers have been removed from the docks for quite modest severance pay? We never found an answer.
Why do the Government say that there is £1 billion in subsidies and severance pay when only about one-third of that money went to the dockers, who on average received 35 weeks' pay? Most important of all, why do they talk about restrictive practices, when the productivity levels in the registered docks are above the productivity levels in the unregistered docks?
The noble Lord, Lord Boyd-Carpenter, tells us that it is all very complicated and difficult. One is asked to believe that if the figures went the other

991
way, he would not use them. But if the productivity level in the registered docks was 33 per cent. below the productivity level in the unregistered docks he would feel too decent to bring that out. Of course we know that productivity is difficult to measure, but it is no more difficult to measure in the docks than anywhere else. The fact is that the Government do not have any explanation and on the basis of their argument with all the so-called restrictive practices in the docks, these figures are impossible to explain.
The Minister has given a number of pseudo-arguments. I make no apology for referring to them because he still refers to them. He says that productivity may be higher in the registered docks, but they had to lose the labour to get it. That is as much as saying that in the unregistered docks they retained the labour and that is why they do not have it. That is as much as saying that the level of manpower must be higher in the unregistered than in the registered docks. That is a fine defence—is it not?—for the unregistered docks. Alternatively, he says—and the noble Lord, Lord Boyd-Carpenter, is fond of saying this for he said it again today—that we must not keep talking about productivity, it is not nice; think of the way they have grown; think of the way they have taken 30 per cent. of the trade. If productivity is higher and if we are always being told that wages are reasonably more or less the same, it must be capital utilisation which is the reason and it must be something about the way in which the unregistered ports are run which has nothing to do with labour utilisation at all.
When we look for things which have nothing to do with labour utilisation, we have no difficulty in explaining the growth of the unregistered docks. It is due to where they are; it is their degree of specialisation. Sone people say it is because the registered docks have to operate as a kind of common carrier and have a diversity of trade, much of which has a low profit ratio. There are all kinds of reasons given, which have nothing whatever to do with labour costs, to explain the rate of growth in the two different dock sections of the industry.
The Minister is always referring—because I am always asking him to explain—to the Ministry of Transport's transhipment study. He used it again the other day. It is a study which shows that the handling costs at Felixstowe are 30 or 40 per cent. below Tilbury and Southampton. He knows as well as I do that these comparisons are not worth anything. It is one unregistered port against two registered ports. There are no figures for 38 scheme ports and no figures for 34 non-scheme ports. Why do we have these three ports in the scheme?—because they are the only ports that the Government have looked at.
There is no explanation in the transhipment study—they do not attempt any explanation—for why the handling costs are different. There is nothing about total costs and nothing about labour costs. We have said to the Government over and over again that if they wish to justify what they have said about the relative inefficiencies and restrictive practices in the two sectors of the docks industry, and if they
992
wish to be taken seriously, they must put forward comparative labour costs across the two sections of the industry. But of course they never do.
We have not developed the argument and we have not plugged the gaps. It is not without significance to note that all we have done is to change the emphasis of the argument. We have heard it this afternoon. Had I more time I should quote the Minister because this afternoon he used what I call the "Dark Age defence"—the terrible expense of running the registered ports. When he was asked to explain the paradox of jobs for life, the absence of high redundancy pay, the absence of relative high wages, the amazing figures on productivity, he shifted, as did his noble friends. They all began to talk not about Dark Age defence but about Golden Age expansion and expectation. We were told, "It will be much better in the future if only we can get rid of the scheme. It is not that the scheme creates real privilege".
The Government cannot consider them to be real privileges because they are produced by trade unionism and one cannot have such benefits; they are illusory. But when the registered dockers are forced to be free and come out from under the dark umbrella of the registered dock labour scheme then, say the Ministers, everything will be better. The noble Lords, Lord Crickhowell and Lord Harmar-Nicholls, told us that in Committee. This afternoon the noble Lord, Lord Lucas, said the same. It is only the dock work regulation scheme which prevents the registered dockers from living on the fat of the land. They will receive higher wages, better training, freedom from union monopoly. Somehow the registered dockers cannot see that.
So the Government have shifted from Dark Age defence to Golden Age expansion. That is significant because they often ask us, "What would you do? What does the Labour Party propose to do? What will the Labour Party do when it faces the fact that we have passed this Act? Will it bring it back?" It all depends on whether the Government are right. If they are absolutely right and we have Golden Age expansion, and wages and employment rise, then there will be no reason for bringing back the dock labour scheme. If there is no casualisation and everything works out as the Government say it will, then there will be no reason to do anything, will there?
There is also the fact that the Labour Party proposes a widespread expansion of all kinds of other employee benefits. It proposes a new training scheme; an extension of the functions and powers of the Health and Safety Commission; and a charter of employment rights. Therefore, even if they are not entirely right in what they say, it may be that general legislation will solve the problem. It depends on whether the Government are right and we see this Golden Age, or whether, as we and the Transport and General Workers' Union fear—and we hope that the fear is misplaced—casualisation will begin to emerge. We fear that there will be the same depression of terms and conditions in the docks industry as there has been in every industry in which the Government have abolished wages councils. Wages councils kept up minimum standards and

993
benefited those directly covered by trade unions and also other workers. The danger is that our fears will prove to be correct.
Meanwhile, we say farewell to this scruffy little measure. There was no consultation, no mandate, no amendment and no mercy in this scruffy little measure. We say farewell to it in order to make way for the seventh son of Frankenstein the week after next; yet another Employment Bill. Even before that Bill pops into this House they are talking about the eighth and ninth son of Frankenstein down the other end. I do not suggest that the Minister likes the measure. I hazard a guess that most noble Lords opposite—I do not say all—do not like it any more than we do. They know that they are on auto-pilot and that this scruffy Bill must go through.
4.35 p.m.
Lord Brabazon of Tara: My Lords, I do not intend to repeat all the arguments which were made at Second Reading and during the other stages of the Bill. As noble Lords have said, this is a short Bill, with one purpose: to abolish the dock labour scheme. In the words of the noble Lord, Lord Rochester, the scheme has outlived its usefulness. Therefore, it is not surprising that the arguments have been somewhat repetitive.
I should like to deal with a couple of points which were raised this afternoon. First, it was suggested that the Government acted provocatively in introducing the measure, in the hope of creating a national dock strike and possibly influencing the balance of payments figures. I assure noble Lords that we do not wish to see a national dock strike; that is the last thing we wish to see. And we do not believe that there is a need for one. As my noble friends Lord Boyd-Carpenter and Lord Lucas of Chilworth said, the best future for the docks—and they have a bright future—is the efficiency of the ports free of the scheme. That is the best guarantee that they can have of jobs for the future.
Comparisons were made with ports overseas but, as has been said on several occasions, we do not need to make such a comparison. We have the example of our own non-scheme ports to follow. They combine efficiency with decent employment conditions. Indeed, other countries are looking to improve the efficiency of their ports and some are relaxing the restrictions therein.
A number of noble Lords, notably the noble Lord, Lord Mellish, expressed fears that casualism may return to the docks. I understand those fears, but I believe that they are totally unfounded. No one—the Government and especially the port employers —wishes to see a return to the casualism of the 1930s and 1940s. But no one has explained to me why the abolition of the scheme will mean a return to those days. The fact is that today the ports industry involves modern cargo handling techniques, capital intensive equipment and other expensive and advanced equipment quite unsuited to casual labour. Employers need a properly, well-motivated, permanent workforce. In order to see that the fears of a return to casualism are misplaced one has only to look at the experience of the non-scheme ports
994
which currently employ only 6 per cent. of their workforce on a casual basis. That figure is similar to that in other industries throughout the country. We also have assurances from employers in 93 per cent. of the industry that they have no wish to see a return to casualism.
The noble Baroness, Lady Phillips, and the noble Lord, Lord Mellish, spoke eloquently on the issue. The noble Lord said that I did not understand the docks. Perhaps I did not understand the docks of 40 years ago when the scheme was introduced. However, over the past two or three years I have made it my business to visit as many ports as possible, both scheme and non-scheme ports. Therefore, I hope that I have an understanding of what happens in the ports in 1989. With his experience of the ports industry my noble friend Lord Lucas answered some of the arguments put forward by the noble Lord, Lord Mellish.
I have never said that the scheme ports were not profitable although I do not believe that they are making 30, 40, or 50 per cent.—whatever figure was quoted by the noble Lord, Lord Mellish. However, I said that they could be more profitable after the abolition of the scheme. I also said that some of them are now profitable only because of the substantial sums of money which have been spent in their restructuring, and that has involved the scheme.
The noble Lord, Lord Mellish, made an interesting point about local negotiations. We should like to see local negotiations take place in order to bring an end to the dispute. However, pay is one of the few issues which at present is not negotiated nationally. It is negotiated locally, even in the scheme ports. That has not been the case for long and probably was not so when the noble Lord was involved.
Lastly, I thank all noble Lords who said kind words about my conduct of the Bill. My Lords, I beg to move that the Bill do now pass.
On Question, Bill passed, and returned to the Commons.

Transport (Scotland) Bill
4.40 p.m.
The Minister of State, Scottish Office (Lord Sanderson of Bowden): My Lords, I beg, to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Sanderson of Bowden.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD STRABOLGI in the Chair.]
Clause 1 [Transfer of operations of the Group]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 1:
Page 1, line 10, after ("programme") insert (" which he will lay before Parliament for approval").
The noble Lord said: For the convenience of the Committee, I should like to speak to Amendments

995
Nos. 1, 2 and 3. This follows the procedure in relation to similar amendments in another place, where the Bill went through without a single amendment being accepted. I do not intend to delay the House although I expect to receive some answers from the Minister regarding matters that were not dealt with in the other place to my satisfaction, at least when I reread the proceedings.
The amendments deal with the likelihood—or, in some English experiences, the certainty—that the Bill will be used by unscrupulous buyers to indulge in very lucrative but destructive asset-stripping. At Second Reading I referred to the Hampshire Bus buy-out by Stagecoach. The assets were sold off to the greater good of the buyer. There was an almost criminal neglect by the Government to provide for the defence of the public purse in the English Bill.
The Minister will be aware that Amendment No. 2 differs from the amendment moved in the other place during Report stage. In this House we ask that the Secretary of State and not the employees should approve any sale of assets within five years. Although we would prefer that the employees were involved, we could, if the Secretary of State had to approve and notify Parliament, question in Parliament the reasons for the selling off of the assets. This sale of assets in many cases could be perfectly legitimate. It could be to the benefit of bus services and to the people who use the services who, I stress, in the past provided the money to build up those assets.
Amendment, No. 1 is aimed at starting on a proper footing the process of selling off the bus group. If the Secretary of State has reached a decision on how this most important process for the future of transport in Scotland should proceed, it is only right that Parliament should know about it and be able in its collective wisdom to assist the Secretary of State in his mission to carry out what we think is an ill thought-out concept. Nevertheless, the Bill may be improved by Parliament helping the Secretary of State.
Amendment No. 2 is in many ways the important amendment in this group. Following Report stage in another place I looked at this matter carefully. I am sure that the Minister will accept that we require better answers than those that were given in the other place. I make no apologies for covering the same arguments. The Scottish people should be made fully aware that the Government have been warned of the dangers of asset-stripping. We have made attempts at every stage in the other place and in this Chamber during the passage of the Bill to propose measures that could prevent asset-stripping. The Government may be complacent as to whether this will happen in Scotland. If it does happen, it could have a devastating effect on the Government's already very weak grip on Scottish public opinion. Other examples will no doubt be brought forward from the English experience and we shall be able to point these out to the people of Scotland.
In order to remind ourselves of the dangers, I should like to run through the basic facts of the Hampshire Bus case. I do not believe that this can be often enough explained. Hampshire Bus was sold
996
to Stagecoach for £2.1 million. Within two weeks, Stagecoach sold the City bus station and the coach station for £4.1 million. It then sold half the bus fleet for £1 million. Therefore, having bought the company for £2.1 million, within weeks it sold part of it for £5.1 million. The bus-using public had to queue in the rain until Southampton City Council spent £138,000 of ratepayers' money to build sheltered stands. Can the Minister assure us that this will not happen in Scotland? If it does, where in the Bill are there any reassurances? Will the Secretary of State defend the valuable St. Andrew's Square bus station in Edinburgh, the two Glasgow stations or those in Stirling, Aberdeen and a host of Scottish cities and towns?
It is preposterous that the Bill does not protect the public purse, when the English experience shows what the Bill allowed people to do. Hampshire Bus is the worst example that has so far come to light, but there will be others. If an amendment is not made to the Bill there will certainly be many instances in Scotland.
The third amendment in this group attempts to defend the travelling public from a private monopoly situation. I have no objection to the way in which Stagecoach runs its business. I do not know enough about the company, although I have heard and read stories. However, I am sure it is an efficient group. It has said quite plainly that it intends to bid for every part of the Scottish Bus group. Is the Minister happy about this situation? If so, where is the competition to come from in years ahead? If Stagecoach buys all the Scottish bus companies it will have a monopoly throughout Scotland. That is quite contrary to what the Government said was the purpose of the Bill. I agree that there may be a monopoly in terms of the Scottish Bus group or some of the local authority buses, but they are answerable through their boards to the Secretary of State and, ultimately, to Parliament. The local bus organisations like Clyde and Lothian are all ultimately responsible to the elected councils. If there is a monopoly situation in which Stagecoach succeeds in buying a fair proportion of the Scottish buses, particularly in adjoining areas, then we shall have no defence at all. I hope that the Minister will be able to give some assurance on the three important points raised in these amendments. I beg to move.
Baroness Carnegy of Lour: I was unable to be present at Second Reading of this Bill, but I welcome it very much. I believe that bus travellers in Scotland will welcome it enormously once they get the benefit of local private operators who are free to run buses in the way which local people want and to which local people can respond.
I agree with the comments of the noble Lord, Lord Carmichael of Kelvingrove, about the importance of new operators not being swallowed up in one big company. That will put us back where we started. I shall listen with great interest to what my noble friend has to say about it.
As regards Amendment No. 2, the noble Lord is suggesting that it shall not be possible for a private bus operator who buys one of the local companies to sell it again within five years. I wonder what will

997
happen if the company is proved to be a flop and it cannot cope. If the company wanted to sell to another company that could cope, it would be at the mercy of the Secretary of State who might refuse to allow the sale for one reason or another. That would not suit the local travelling public, who would have a company that was not operating very well. I wonder whether that is not tying the hand of the new company too much, and whether it would not so reduce the attractiveness of the company to potential buyers that no one would be willing to purchase it.
Lord Sanderson of Bowden: I thank the noble Lord, Lord Carmichael, for speaking to the first three amendments en bloc because, as he has said, they do hang together.
The first amendment seeks to require the disposal programme for the Scottish Bus Group to be approved by Parliament. I should like to remind the Committee of the background to the development of the disposal programme. My right honourable friend the Secretary of State for Scotland has already made clear the basis on which the Scottish Bus Group will be offered for sale. It will be sold in 11 units. Clause 2 of the Bill sets out the Secretary of State's main objective in preparing the disposal programme, namely, to promote sustained and fair competition in the bus industry. He is also required to have regard to the encouragement of employee participation and to the net proceeds of sales. We have made it clear that we attach great importance to the encouragement of bids involving a high level of employee participation. This the noble Lord knows, because I said so at Second Reading.
The programme will contain a statement of the general approach to be adopted in carrying out disposals, including a timetable and a description of any measures required in preparation for disposals. The programme will state the units to be offered for sale and indicate the detailed arrangements for inviting and considering bids. In particular, it will set out the basis on which a preference will be given to bids involving significant employee participation. It will deal with safeguards relating to property disposals—I shall return to this important issue in a moment—and the number of companies one buyer can acquire. Bids will be invited on the basis of information memoranda to be issued at the time of sale by the Scottish Transport Group.
The programme will also state that prospective purchasers, in making bids, will require to show their intentions for pensions arrangements and travel concessions for employees, and their policy towards the disabled and other vulnerable groups. No disposal will be recommended by the Scottish Transport Group until an interested management-employee buy-out team has had sufficient time to mount a bid.
In the light of these undertakings which have been given about the contents of the disposal programme, and the fact that it will be published, I do not think that, as regards the first amendment, parliamentary approval should be asked for. I believe this mirrors the legislation in the Transport Act 1985, where legislation did not require the disposal programme to be approved by Parliament.
998
The noble Lord, Lord Carmichael, went on to deal with the second amendment, with which I wish to deal at some length.He has asked that the business should not be resold within a period of five years with the consent of the Secretary of State. The amendment states:
"It shall be a condition of purchase for any undertaking proposed for sale under this section that the business shall not be resold within a period of 5 years with the consent"—
I presume the noble Lord means,
"without the consent of the Secretary of State'"?
Lord Carmichael of Kelvingrove: The Minister must be working from an earlier Marshalled List. There is a correction on the latest Marshalled List pointing out that the business shall not be resold,
"without the consent of the Secretary of State".
Lord Sanderson of Bowden: So there is. I apologise. I acknowledge that, as experience after privatisation with former subsidiaries of the National Bus Company suggests, there may well be pressures which could result in some subsequent resales after privatisation. I do not think that it is realistic to try to legislate against these. For one thing, the amendment would do no more than delay re-sales and would not ultimately prevent them from taking place. Furthermore, any such limitation would be a restriction on the competitive freedom of a company after privatisation which did not apply to companies with which it was competing. Such a restriction might, for example, make it more difficult for the company to raise new capital to expand its operations It might, therefore, be counterproductive in terms of the objective which underlies the amendment. I would also remind tie Committee that safeguards against the development of monopolies already exist in competition law, which applies just as much to the bus industry as it does to other industries.
The Director General of the Office of Fair Trading can refer matters to the Monopolies and Mergers Commission. I wish to take that matter a little further. Following a reference, and a report by the MMC to the Secretary of State for Trade and Industry, he can ask the director general to seek undertakings from the persons concerned about how they will act in future. If necessary, the Secretary of State can make an order, and such an order can require the reversal of a merger between companies. As regards the bus company, following the privatisation of NBC, the OFT has monitored the situation closely and has taken action where it has considered this to be necessary. For example, in a case involving a merger between companies involved in providing bus services in the Bristol area, reference was made by the OFT to the MMC. The OFT is currently investigating the recent takeover of bus companies in the North-West of England by Stagecoach, the company to which the noble Lord referred.
There are thus very positive safeguards already in place against the establishment of monoplies in the bus industry as in other sectors of the economy. The noble Lord mentioned the Hampshire bus situation.

999
I am aware of the general background of the purchase of Hampshire Bus by Stagecoach. Here we feel it is essential that property assets are properly valued and that measures are taken to prevent them being sold off after privatisation at a large profit. Specialist property advisers have been appointed by the Scottish Transport Group to value all the properties of the bus group and to advise on the best treatment of those properties in the course of sale. Property advisers will also be appointed by the Secretary of State.
There are a number of options for dealing with properties. The first is to take out the property from the company and sell it separately, which might apply to property that is not essential for the running of the bus undertaking. A second option is to sell the property with the company, but to ensure that the price received fully reflects the range of values for the assets. A third option is to sell the property with the company, but with a legal charge on the property which ensures that it is subsequently sold within a specified period for development purposes and that the Government will receive a specified share of the development proceeds. A fourth option would be to dispose of an operational property separately from the company, but with a long lease arrangement to allow the company to use it to prevent early disposal for development.
We shall be considering all these options very carefully in the light of the advice that the group will be getting from its property advisers and from the Secretary of State's property advisers, and will take appropriate action.
As well as the competition legislation—I know very well of the genuine fear that the noble Lord has about what he calls asset stripping—I wish to refer to a very important part of the plans that my right honourable friend wishes to approve. I have mentioned that management-employee buyouts are a means by which we wish to see employees participating in the future of their own companies.
It is usual in the case of MEBOs for the team involved to set up a new company to purchase the whole of the issued share capital of the company being sold. In this way they can set up whatever shareholding arrangements in the new company they consider appropriate. The company could make provision in its articles of association to limit the ability of shareholders to dispose of shares outside existing groupings of shareholders by, for example, establishing pre-emption arrangements under which shares would require to be offered in the first instance to the existing shareholders. Articles of association can be changed only if 75 per cent. of the shareholders vote to do so. The structure of shareholding arrangements will be considered at the time of drawing up the disposals programme. The Secretary of State will be taking into account these matters when considering bids in the light of competition objectives. I hope therefore that the noble Lord understands that we are taking this matter very seriously indeed.
The last amendment in this group states:
"In giving effect to subsection (1) above, no single buyer may own more than two of the subsidiaries set up for disposal".
1000
This amendment not only seeks to limit to two the number of bus subsidiaries one purchaser could acquire under the disposals programme, but also appears to require no purchaser to own more than two of the companies disposed of for all time. I think that that is what the noble Lord means. On reading the amendment, that appears to be what he has in mind.
I fully appreciate the noble Lord's intention. The main aim of the Government's privatisation policy is to increase competition and hence efficiency and responsiveness to the consumer. The Secretary of State decided that nine bus operating companies, together with a coaching firm Scottish City Link and SBG Engineering Company, would provide the best balance between competition and stability in the Scottish bus industry. For competitive reasons we decided that it would not be appropriate to privatise Scottish Bus Group as one entity and would clearly not wish a single buyer to purchase several SBG companies.
As regards outside bids, we would not wish a single buyer to purchase several companies. In the NBC privatisation the maximum number of operating companies sold to a single buyer was four. Applying a similar proportion to the SBG subsidiaries, any single purchaser would be limited to one subsidiary, but any such limitation will depend partly on which companies are involved and where they operate. Prospective purchasers could set up separate companies so as to be able to acquire more than one subsidiary, or there could be links between purchasers.
Each case therefore requries to be considered on its merits at the time of sale. It is necessary to examine who the prospective purchasers are and what links they may have with other bus companies. I agree that there is a need to avoid a single buyer acquiring too many bus companies—there is nothing between us on that—but I do not think that legislation on this point is the best course. Having heard my explanation of the three amendments, I hope that the noble Lord will consider withdrawing them.
5 p.m.
Lord Tordoff: The noble Lord, Lord Sanderson of Bowden, is, as usual, persuasive. I have no doubt that the noble Lord, Lord Carmichael, will recognise that the amendments are not necessarily the best that could have been produced by a government draftsman. I spoke at Second Reading on some of these matters. I am somewhat reassured by what the Minister said. However, he has not reassured the Committee in relation to the Hampshire example given by the noble Lord, Lord Carmichael. If it could happen in Hampshire, what is different about Scotland?
Are the Government saying that they are taking a different view in relation to the Transport (Scotland) Bill from the position which exists in England? I detected from what the noble Lord said that that might be the case, but simple folk like me need to have it spelt out in words of one syllable. We need to be assured that in bringing forward this Bill for

1001
Scotland the Government have learnt from their mistakes in relation to buses in England.
People are worried about a monopoly. Indeed, the Government are always worried about monopolies in public undertakings. The Labour Party is always worried about monopolies in private undertakings. I hope that we on these Benches can take a slightly more dispassionate view. There is always a tendency towards monopoly in circumstances of this kind. The very workings of the market tend towards monopoly. I accept what the noble Lord said about the mechanisms of the Monopolies and Mergers Commission operating in this respect, but the potential for asset stripping is of a different order. The evidence so far clearly points towards the danger of asset stripping. Can the Minister give more reassurance that this will not happen in Scotland?
Lord Underhill: As a non-Scot perhaps I may intervene for a moment, in the light of what the Minister said about the National Bus Company. He should add some further points and give some assurances. Are there not instances of former National Bus Company regional units buying up or amalgamating with other units of the NBC? Is there any guarantee under the Bill that this will be avoided with the dissolution of the Scottish Bus Group? There are a number of instances of regional units of the NBC taking over or merging with other regional units of the NBC. I believe that the Minister wants to avoid that happening, but can he give further assurances before my noble friend replies?
The Earl of Perth: The Minister certainly satisfied me on Amendments Nos. 1 and 3, but on Amendment No. 2 he set out four safeguards against a wrong happening. It may well be that one of them is effective. However, why cannot we have one further safeguard to avoid the risk of someone pulling a fast one against the Government or the local authority? We have in the past seen examples of bad deals. It has generally been by the Government or the local authority. The further safeguard proposed in the amendment might be worth considering.
Lord Carmichael of Kelvingrove: I agree with the noble Lord, Lord Tordoff, that the Minister is persuasive. He assured us that were he in charge everything would be absolutely all right and that there would be nothing even faintly shady. However, I still felt uneasy at the end of his speech. The noble Earl, Lord Perth, said that we can accept the Minister's recommendation in regard to Amendments Nos. 1 and 3, but his explanation was woefully inadequate in regard to Amendment No. 2.
The noble Baroness, Lady Carnegy, said that the Secretary of State could frustrate a failing company. That is not how we expect Secretaries of State to behave. The difference between the Secretary of State and a private company is that he is in the limelight and can be questioned in Parliament. If he were doing something as silly or as evil as to frustrate a company he would soon be exposed. If he were trying deliberately to run a company into the ground in order to get assets—for what purpose, I am not
1002
sure—it would soon be found out. The noble Baroness did not quite grasp the point about which we were concerned. We are trying to right a serious wrong that has been created in England and could be created in Scotland.
The noble Lord said that five years is too long a period. It is quantitatively and qualitatively considerably better than two weeks. The disgraceful case in Hampshire illustrated that almost anything is better than that. The Secretary of State is ultimately responsible to Parliament and the press are able to examine his actions carefully.
I accept the Minister's assurances but they are not written on the face of the Bill. Unfortunately, some of the people in the bus industry and those who are coming into the industry are the kind of people who will read the Bill without thinking of the nice words and the kind intentions of the Ministers or the politicians. That certainly applied to some of the people who were in the industry and who caused it to be regulated about 50 years ago. It seems absolutely imperative that the Minister decides or makes clear to the Secretary of State that one or more of these safeguards, at least as regards property, must be put forward before this sale will be trusted by the people of Scotland.
Further, to make the political point, it will not take much to topple over into the brink what is left of the Minister's party in Scotland. I am sure that he is well aware of that fact. The Government have done a great deal as regards Prestwick to help matters in one corner of Scotland. Therefore could they not do a little in respect of the buses to help those in the other corner?
Lord Sanderson of Bowden: I must return the compliment and say to the noble Lord that he is most persuasive. I am glad that he recognises the work that we have done in Prestwick, although I doubt whether that is recognised by all quarters of this Chamber. Two main points emerge from the discussion and I must say that I am grateful to those noble Lords who have taken part. First, there is the question of what can be summed up in the phrase "asset stripping of property". Secondly, there is the general point made by the noble Lord, Lord Underhill, as to whether we have learnt any lessons from the NBC privatisation. As regards the latter, I believe that the answer is, yes.
Perhaps I may give a further example. We have talked about the Stagecoach takeover of Ribble and the fact that that matter is before the Office of Fair Trading. It would therefore be wrong for me to comment on it. However, there has also been the question of Badger Line Holdings Limited and Midland Red West Holdings Limited. Of course that matter went before the MMC. The report has now been published and it will of course go to the Secretary of State for Transport in England. I understand the commission concluded that there was no material loss of potential competition in the provision of commercial services. However, the report indicated that the merger may be expected to operate against the public interest with respect to competitive tendering for local authority supported services. The report recommends that the Director

1003
General of Fair Trading shall seek undertakings from the holding company concerned as to its future behaviour in regard to tendered services and that if such undertakings were not forthcoming the merger should not be allowed and divestment should take place. I understand that discussions are still continuing on the procedure for fair tendering.
I think that the latter gives point to the general remarks I made as regards the fact that there is the law on competitive tendering, and so on, upon which we can fall back. However, what is worrying noble Lords, especially the noble Earl, Lord Perth, and the noble Lord, Lord Tordoff, is the question of asset stripping. I hoped that what I had already said indicated, without me
having to elaborate on the matter, that we in Scotland have looked carefully at the problems which have arisen over asset stripping.
One option in property disposals is to place a legal charge on the subsequent disposal of the property. Therefore the Scottish Transport Group or, after its dissolution, the Secretary of State, can share in development proceeds. Such an arrangement was used in many cases in the NBC privatisation. We shall use that method where appropriate in the Scottish Bus Group sales. I hope that, by indicating that we are very alert to that point—quite apart from the general remarks made by the noble Lord, Lord Carmichael, about how sensitive the Government's position may be in Scotland on that issue—by reinforcing what I said earlier and by giving the noble Lord, Lord Tordoff, this particular answer, the noble Earl, Lord Perth, will understand that I have set the scenario by which we fully understand the difficulties which may arise. That applies not just to me, but also to my colleagues. As I said, we fully understand the difficulties as regards the disposal of property. I trust that the answers I have given will mean that noble Lords will not think it necessary to press these amendments.
Lord Carmichael of Kelvingrove: I thank the Minister for the care he has taken over his reply to these amendments. We shall, however, have another chance to look at the matter. I think he will agree, especially as regards the points made about the protection of assets, that we need to consider the issues raised at leisure and to read in Hansard what has been said. We may perhaps return to these issues at a later stage of the Bill's proceedings. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 and 3 not moved.]
Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 [Implementation of the programme]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 4:
Page 3, line 12, at end insert—
("( ) Any financial assistance made available for management or employees buyouts shall be available for up to three buyout attempts by existing management or employees within any one of the undertakings created by the Act.").
The noble Lord said: Clause 2(2)(a) provides for the Secretary of State to help those in management or otherwise employed in an undertaking to acquire a controlling interest in that undertaking. The Secretary of State has spelt out the amount of assistance which he intends to underwrite. It comes to 75 per cent. of professional fees up to the sum of £65,000—that is to say, the Secretary of State will give assistance for one bid per company for one employee/management buy-out. The money will be required to be repaid if the bid is successful. Therefore, at the very worst we are talking about the Secretary of State perhaps paying out the maximum amount in respect of two bids for any one company. We all know that it is unlikely there will be more than two employee/management bids for more than two or three companies.
That provision is helpful so far as it goes. However, it has been suggested that there could possibly be more than one employee/management buy-out. It has also been suggested that some managements will not want to have employees involved in the new organisation and that it may be just as likely that some employees will feel that they could do a better job by buying the company and installing their own management team from outside, or even from among themselves.
To allow for such a situation we are asking, by way of the amendment, that more than one employee/management bid should be given financial support. I would not expect more than one such bid to be made in all cases—only perhaps in a few cases, if any. However, surely there is a principle involved here. Without this amendment the Scottish Office will need to make a decision very early in the sell-off programme as to which bid it should support. Once the office decides to support one bid it has virtually killed the other one. The sum of £47,000 would need to be raised. Of course, it could be considerably more but even the sum of £47,000 would be a big help towards obtaining an assessment and ensuring that a proper bid is worked out for the company. In other words, before a fully developed tender and firm offer have been prepared by professionals for the groups trying to bid for the services, the Government will be forced to smile at one group and reject the bid of the other.
I believe that a total purchase price of about £300 million has been agreed, although, as an aside, we shall not be told anything other than the total that is received for the Scottish Bus Group. I am not sure that that has been decided. I believe that it was suggested by the Minister in another place that he would think of giving the total. I do not see why the public should not be told the price of each company after the deal has been made. Scotland is the sort of place where people will soon know what has been paid. I do not see why the Government should not let us know the price as soon as the bids are accepted. With a capital valuation of about £3 million, the figure seems small beer if multiple buy-outs of the assets are made. The Government seem to be already pre-judging the bids from inside the industry.
I may be unfair but from reading the speech the Minister made in another place it seemed that

1005
seminars would be held for managers who are interested in bidding, but not for employees. The employees will be putting a relatively higher proportion of their worldly goods into buying if it is decided that they will participate, but they will only be able to see some nice glossy video presentations. I find that unacceptable.
The Government seem to be favouring the idea of management buy-outs. The Government's intention to treat the companies' business performance and assets as confidential may be more of a hardship to the employees than to the management, because in the nature of things managements will have more figures available to them than will the employees, should the employees decide to go on their own.
Will the Minister comment on the Government's attitude to the financial backing for employee buy-outs? It has been drawn to my attention that financial backing from outside organisations, including other bus operators, banks and financial companies, will be considered by the Government not to be bona fide worker-management buy-outs. I do not know where their money will come from. If outside finance is introduced, the bid will not be defined as internal.
It has been drawn to my attention that the Luton and District Bus Company, which is the first successful employee buy-out, has agreed to invest up to 15 per cent. of the finance required. That would apparently disqualify Western Clydeside employees' bid from being an internal bid. I have only recently been told that. This is a wee bit like the famous case of additionality, about which we heard so much a few months ago at one of the by-elections. Although I have not expressed the point as well as I should like to have done, I am sure that the Minister understands what I am getting at. The amendment would be of considerable help in giving substance to the promise that encouragement would be given to employee, management or employee-management buy-outs. It would not be expensive for the Government. I beg to move.
Lord Sanderson of Bowden: As the noble Lord said, this amendment seeks to require the group to make any financial assistance offered to management-employee buy-out teams available to up to three buy-out attempts in any one company.
As already announced, assistance will be made available by the Scottish Transport Group in the form of an underwriting of 75 per cent. of the costs of the professional fees required to mount a bid up to £65,000, that is a maximum assistance of £48,750. The assistance will require to be repaid in the event of the bid being successful. This will be made available to one management-employee team per company.
In eight out of the 11 subsidiaries for sale, financial assistance has now been offered by the Scottish Transport Group to management-employee teams. Assistance has not yet been offered in the case of Western Clydeside, Citylink and SBG Engineering. In the case of Western Clydeside, no decision has yet been made because the company's workforce is divided between a MEBO (management-employee
1006
buy-out) bid and an EBO (an employee buy-out) proposal, and we wish to give time to see whether a unified internal bid may in due course be forthcoming. I must point out to the noble Lord that there is no disqualification for an EBO receiving the money. That is a point that he wished to have clarified.
The best chance of success for a management-employee bid will arise if it is the only such bid from within the company. The difference between us here is not so much on financial grounds—as the noble Lord said, it is not a great deal of money—but on a point of principle where we take a different view from him. A single co-ordinated bid is more likely to compete effectively with outside bids in terms of the financial backing it was able to raise and the price it could offer, than would separate bids from different parts of the workforce. To offer financial assistance to more than one internal team could therefore be counter-productive in the extent to which the objective of encouraging employee participation might ultimately be successful. I should make it clear that any offer of financial assistance to a buy-out team will not confer any official or preferred bidder status to that team.
I must emphasise that there is no prejudgment in this matter. All bids, from whatever source, for a company will be given equal consideration on the basis of the merits of the bids, irrespective of whether they have received financial assistance. The fact that financial assistance may or may not have been paid is therefore not a relevant factor in the consideration of bids.
In view of the fact that this matter comes down to one particular area of concern for the noble Lord, I should like to comment briefly o a the Western Clydeside situation. It is entirely possible that in due course there will be more than one employee-based bid for Western Clydeside. A choice may have to be made with regard to financial assistance. If that happens, and I hope that it does not, I can assure the Committee that each bid will be given full consideration irrespective of whether it has received financial assistance, and that preference will be shown to any bid involving significant employees' participation. That is the fundamental point that I wish to make.
The noble Lord asked about the publication of sale proceeds. This brings us back to a point I made on Second Reading. As he said, we have said that we would publish the total proceeds of the sales. The suggestion that the amount paid for each company should be published raises difficult problems of commercial confidentiality. During the privatisation process it would clearly not be a good idea to publish what had been received for each company, because that could well affect prices at subsequent sales.
That is a real point of difficulty. It might lead to less satisfactory prices, as the process of privatisation proceeded. Publishing the prices once the sales were completed, which the noble Lord asked for, also raises problems of commercial confidentiality because the companies involved might well be concerned that the price they paid for the business should not be revealed to their competitors. As the noble Lord says, that may become known but it will certainly not come from the Government.

1007
The noble Lord mentioned seminars and videos. It is inevitable that the management will take the lead in developing buy-outs. But that does not mean that the employees cannot participate fully. As I have already said, we have made it clear that a preference will be given to bids with substantial employee participation. That would not include management only buy-outs. I fully understand the point that the noble Lord makes; I understand who might have put the matter to him. However, I hope that with this explanation he is reassured that on a point of principle we feel that it is better that the money should go to one operation in any particular company rather than spreading it.
5.30 p.m.
Lord Carmichael of Kelvingrove: In some respects the Minister has helped, but in others he has clouded the issues. I understand the question of the divulging of prices during the process but I am not sure how long afterwards matters should still be commercially confidential. I am always a little worried about commercial confidentiality; it is a phrase which is considerably abused.
As regards management/employee buy-outs and employees only buy-outs or management only buy-outs, I can see the danger that there could be a split company. However some evaluation must be made as to which is the real buy-out. I do not know how those outside St. Andrew's House will be able to feel that a fair decision has been made. We may find one or two particularly strong people in the management team who will go their own way, separately from the rest of the management team, gathering just enough employees to make a respectable bid. Another group may be more in tune with and more acceptable to the workforce; it may come forward and want to make a bid as well. So there could be two perfectly legitimate groups trying to obtain a decision. I do not see how we can know whether the Scottish Office is making the decision on the basis of favouritism or the strength of particular individuals.
I can give examples where individuals have been able to play the system rather better than others. I am not saying that they were evil; they were wise individuals, able to play the system better than those who in other ways were just as good.
I still find it slightly worrying that at the end of the day the Secretary of State will decide or—let us be honest, since there will be a great deal of material to wade through—the Secretary of State will take advice from the people in the Scottish Office as to which decision to make. I hope that the Minister will give the example which I have tried to put forward a little more thought before we reach the Report stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clauses 4 to 6 agreed to.
Clause 7 [Transfer of shipping companies]:
Lord Sanderson of Bowden Lord Sanderson of Bowden moved Amendment No. 5:
Page 5, line 4, at end insert—
("(2A) An order appointing a day under subsection (2) above may make such amendments or repeals of any enactment (including an enactment contained in a local or private Act and any order, regulation or other instrument having effect by virtue of an Act) pertaining to the Group as appear to the Secretary of State to be necessary or expedient in consequence of the transfer.").
The noble Lord said: The main purpose of this amendment is to ensure that existing powers vested in the Scottish Transport Group to act as a harbour authority may be vested in Caledonian MacBrayne when it is transferred to the Secretary of State's ownership. At present in a number of ferry terminals throughout the west coast the Scottish Transport Group is the formally appointed harbour authority, although day-to-day functions are carried out by CalMac which is a wholly owned subsidiary. It would clearly be anomalous to leave STG with harbour powers when it was no longer responsible for shipping services. I beg to move.
On Question, amendment agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 6:
Page 5, line 11, at end insert—
("(4A) The Secretary of State shall ensure that the interests of users, local people, and employers are given representation equal to that of commercial and management interests on the Board of Caledonian MacBrayne Limited.").
The noble Lord said: The purpose of this amendment is self-evident. It was fully discussed at the Committee and Report stages in another place and concerns the composition of the board of Caledonian MacBrayne Limited. I stress that I am not discussing the advisory groups or the users' committees, I am speaking specifically about the board of Caledonian MacBrayne.
I believe that it is true that we all accept that a good strong board is needed for CalMac. No one doubts that there must be experienced commercial control within the board and I want that as well. I do not want a board controlled by a group of people who are there because they are nice or because they happen to live in the area.
Recent history however has taught us that those boards are bodies which have non-executive directors, usually one of whom, to put it bluntly, is a Tory-placed man or woman. One cannot perhaps be quite as explicit in this Chamber as some of my colleagues were in another place, particularly those who know the Western Isles. They were a little fed up with quite unrepresentative people being put on boards and quangos to look after the Highlands and Islands.
We want people from the area on the executive boards, provided we can get the calibre of people, but basically we want people on the non-executive boards from the area. They should be people with interests in the area and a following there. They should be people of strength in the area and with knowledge of the area. Again, I must stress that only one in five of the electors in Scotland vote Tory. It

1009
is an affront and an insult to the mass of Scottish people that time and time again places are found for people who are quite unrepresentative but who come from a particular wing, usually the wing that is "one of us" in the Conservative Party in Scotland. I hope that in the case of the Highlands and Islands where there are no Conservative Members at all, the Minister will see to it that party political considerations are not involved in the management of Caledonian MacBrayne in the islands. I stress that I am speaking of the non-executive side. I beg to move.
Lord Tordoff: The only quarrel I have with the amendment is the use of the word "equal", otherwise I go along with it. If one is making a general premise that non-executive directors should be equal to executive directors on boards, that is a different argument. I feel that there is an argument for that but it should not be incorporated on the face of the Bill.
I certainly support the noble Lord, Lord Carmichael of Kelvingrove, in saying that local representation is important and that the people who are to serve on the boards should have a local base. I do not wish to get deeply involved in the matter of government party placement on quangos, although it certainly exists and has existed more with this Government than any other in living memory. It ought to be stopped now. However, that is not what the Bill is about.
I support the principle of the interests and views of local people and of local companies having some proper representation on the board along with the commercial management interest. But I cannot support the concept necessarily of equal representation.
Lord Sanderson of Bowden: I fear that the noble Lord, Lord Carmichael, and I have been here before. There are shades of the Housing Act in the amendment and I think we debated the point at the time of that Bill.
The object of the amendment is to require the Secretary of State to ensure that the interests of users—local people and employers—are given representation equal to that of commercial and management interests on the board of Caledonian MacBrayne. The Secretary of State is at present considering the membership of the new Caledonian MacBrayne board. That is, geographically, perhaps not an easy task, but it is easier than reflecting in the Scottish Transport Group board the CalMac interest. I expect the noble Lord will understand what I mean by that.
We expect the board to consist of around six to nine members and each member will be appointed for the contribution he or she can make. The Secretary of State has made it clear that he will appoint some people with first-hand knowledge of the islands served and their needs, and it is therefore likely that the membership will include some people who are resident in the islands and who as a consequence are regular users of the ferries. I have no doubt about that. An important part of the members'
1010
jobs will involve being able to assess how good or bad the ferries are.
However, we feel it would be unnecessarily restrictive for the Secretary of State to appoint a range of members who would work together in the best interests of both the company and the travelling public if the Act were to specify equal representation for the categories of people suggested in the amendment. It will be very important for the board to contain a significant level of commercial, financial and shipping expertise as well as a first-hand knowledge of the islands. Individual members might well combine these qualifications, and setting aside specific places for particular interests could easily result in the exclusion of people with a valuable contribution to make. To cater for a range of categorised interests could also involve the creation of a larger, more unwieldy board which might be split by localised issues.
In making appointments to the board, it remains our intention to strike a proper balance between the commercial expertise needed to run a modern business and the local knowledge and commitment required to best serve the interests of ferry users. The noble Lord knows that, under the arrangements, this will mean an emphasis on longer-haul ferries that travel to the outer islands. We believe the amendment would inhibit the Secretary of State's ability to achieve such a balance. As the Minister responsible for the Highlands—I refer now to the Highlands and Islands Development Board which is my responsibility—I reject the charge that the non-executives on that board do not reflect the feelings of those who work in the area. I happen to think that they do that extremely well. I say personally, with my responsibility for 1he Highlands and Islands, that the non-executive members of the CalMac board will be able to reflect that same commitment when the Secretary of State has been able to persuade the right people to join it.
Lord Carmichael of Kelvingrove: We shall all await with great interest the appointment of the board. I am sure that a number of Members of the Committee on both sides of the Chamber will pu1 their names forward. However, we shall await with great interest the appointment of the board. Perhaps we shall return to this issue on a later occasion. The Minister is so reasonable that it is difficult to object to many of the things he says. He makes his remarks with the best of intentions. I can only hope that the provisions are carried out with the best of intentions by others. I beg leave to wihdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sanderson of Bowden Lord Sanderson of Bowden moved Amendment No. 7:
Page 5, line 13, leave out second ("by") and insert ("in pursuance of").
The noble Lord said: This subsection specifies the parliamentary procedure for an order appointing a day for the transfer of the securities of the shipping companies to the Secretary of State. The amendment is a drafting one whose purpose is to bring the wording into line with normal practice in references

1011
in legislation to such parliamentary procedure. I beg to move.
On Question, amendment agreed to.
Clause 7, as amended, agreed to.
Clauses 8 to 13 agreed to.
Clause 14 [Dissolution of the Group]:
5.45 p.m.
Lord Sanderson of Bowden Lord Sanderson of Bowden moved Amendment No. 8:
Page 8, line 12, after ("order") insert ("made by statutory Instrument").
The noble Lord said: When the disposal programme for the Scottish Bus Goup has been completed and Caledonian MacBrayne transferred to the Secretary of State's ownership, the Scottish Transport Group will be wound up. This will be done by order, and Clause 14 specifies that the order may contain any necessary provisions for this purpose. It is appropriate that such an order should be brought to the attention of Parliament and published, and it is therefore necessary to make the order by statutory instrument. The amendment provides for this to be done. I beg to move.
On Question, amendment agreed to.
Lord Sanderson of Bowden Lord Sanderson of Bowden moved Amendment No. 9:
Page 8, line 33, leave out ("or any other Act") and insert ("Act or any other enactment (including an enactment contained in any local or private Act and any order, regulation or other instrument having effect by virtue of an Act)").
The noble Lord said: The main purpose of this amendment taken with government Amendment No. 5 is to ensure that any remaining powers vested in the Scottish Transport Group to act as a harbour authority may be provided for after the group is dissolved. As I have already explained, it is intended to transfer these powers to Caledonian MacBrayne under Clause 7 when the company is transferred to the Secretary of State's ownership. Should, however, this not be done for any reason, or if there were any remaining outstanding matters in private or secondary legislation pertaining to the Scottish Transport Group at the time of dissolution, this amendment will ensure that the appropriate provision may be made. I beg to move.
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with amendments.

Royal Assent
5.47 p.m.
The Deputy Speaker (Lord Hayter): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Police Officers (Central Service) Act,

Hearing Aid Council (Amendment) Act,

Dock Work Act 1989,

Kingston upon Hull City Council Act,

Tees (Newport) Bridge Act.

Clergy (Ordination) Measure
5.48 p.m.
The Archbishop of Canterbury The Archbishop of Canterbury rose to move, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Clergy (Ordination) Measure be presented to Her Majesty for the Royal Assent.
The most reverend Primate said: My Lords, the purpose of this Measure, which we ask should be presented for Royal Assent, is simple. We seek to permit a variation, in exceptional circumstances, to the general rule that no person may be ordained who has married a divorcee or has himself or herself been married after a divorce in the lifetime of a previous partner.
Under existing law, there is an absolute bar to such a man's or woman's ordination. The law does not disbar someone from being ordained on the grounds of divorce alone. It is remarriage after divorce during the lifetime of the previous partner which creates the bar.
After lengthy and considered debate the General Synod decided, by a substantial majority in all three Houses, that this should be a rule to which exceptions might be allowed. Such exceptions should only be permitted after the circumstances have been fully weighed. Procedures for this have already been published and guidelines agreed by the most reverend Primate the Archbiship of York and myself to ensure maximum consistency. We believe this Measure to be theologically sound. We believe it to have wide support in the Church. We believe that justice requires it.
There are claims that the "right formalities" have not been observed in the submission of this Measure, that it should have received two-thirds majorities in each House of the Synod. The Times said this morning that your Lordships have "a proper role in ensuring" that the formalities have been observed.
The central point is that under the synodical Government Measure of 1969, which contains the synod's constitution, a proposal is approved if it receives a simple majority in each House. There are some cases which attract special procedures under Article 8 of this constitution, which speaks of:
"a measure or canon providing for permanent changes in … the Ordinal",
that is the form of service for the ordaining of deacons, priests and bishops annexed to the Book of Common Prayer. Neither this Measure nor the Canon would change the wording of the Ordinal. When a question is raised as to whether Article 8 applies it is determined by a clear procedure. The question was raised; the procedure was applied, and it was determined that Article 8 did not apply.
Alternatively it is argued that under the Worship and Doctrine Measures 1974 a two-thirds majority in each House is required for making a Canon. But that relates only to a Canon under the Worship and Doctrine Measure, it can have no application to a Canon which is made under the Measure which is before your Lordships' House.
The noble and learned Lord, Lord Bridge, advised the Ecclesiatical Committee that "the right

1013
formalities" had been observed. It seems that at least a majority of the committee accepted that advice.
There is a long history of dispensations for various causes by an appropriate authority in the Church. An example today concerns the age of ordination. A dispensation is a means by which the exception allowed may assert more vigorously the principle from which it is an occasional departure. It was the clear wish of the synod that in the matter before us we should proceed by dispensation and that the ultimate discretion should lie with the Archbishops of Canterbury and York. We do not wish to rescind the existing Measure or the Canon. We wish the principle to remain. However, we believe that there are cases in which its provisions are inappropriate. We believe that the procedures for dispensation, though tightly drawn, are manageable. We believe that the archbishops have the means to carry out their responsibilities with care and justice.
The question of justice is illustrated by what happens to a clergyman when his marriage fails. In many cases such clergymen will continue in office without any disciplinary consequences. Only in cases where there is misconduct in terms of the Ecclesiastical Jurisdiction Measure can action be taken to deprive an incumbent of his benefice. If an incumbent who is divorced remarries, or if a bachelor priest marries a divorced woman, in most cases he is able to continue his ministry. There is no legal barrier to that.
I should add that at present no substantial body of opinion in the Church of England has emerged which would wish to change this. Here I must mention the Motion standing in the name of the noble Earl, Lord Lauderdale. Were his amendment to be carried not only would mine be negated but other unfortunate consequences would follow. Would it not be somewhat inconsistent for Parliament, which has legislated for easier divorce, to call in question the enabling Act itself by making a judgment on the discipline of the Church? More than that, it would be intolerable that a beneficed clergyman going through a divorce procedure, perhaps against his will, should automatically lose job, house and income, which appears to be what the noble Earl seeks.
As I have said, there is no substantial body of opinion in the Church of England that supports such a move. It seems somewhat strange that so draconian a proposal
"that no beneficed clergyman who is divorced … may continue to minister"
should come from one in whose own Scottish Episcopal Church there is no legislative bar to the ordination of those who have remarried after divorce, let alone those who have simply been divorced.
There are many examples of clergy whose experience of marital failure and subsequent establishment of a strong second marriage has enhanced their effective preparation of couples for marriage. The witness of failure, forgiveness and renewal is crucial to the understanding of the gospel. We live under grace. We seek to witness to that grace in relation to those currently barred from ordination.
1014
There are still other searching tests to be applied to the character of those who seek ordination; but we believe that a person should not invariably be barred at the outset by the single matter of his or her marital status.
Perhaps I may illustrate the point by means of some actual examples. A man intent on ordination falls in love with a woman who years before has been deserted by her husband. There were grounds for a legal annulment of the marriage but the couple were advised to seek divorce because it was simpler and would avoid publicity. The marriage of the man to that woman would put a stop to the pursuit of his vocation. Yet the irony is that if they postponed their marriage until after the ordination no penalty would automatically attach to it.
Perhaps I may take a second example. A woman is badly battered by her husband and finds comfort, help and advice from her local priest and church. She is confirmed. Years later she marries again and her new husband becomes a Christian through her witness. He has not been married before. Gradually he feels himself called to the priesthood, but he cannot test his vocation because of his wife's previous marriage. The absolute bar to his ordination is not a witness to the forgiving and life-changing faith he and his wife have experienced.
The anxieties expressed by those opposed to this Measure, both in the synod and in the Ecclesiastical Committee, have been clearly set out in the report of the committee. It is first said that the measure would weaken the Church's witness to the doctrine of indissolubility of marriage. Our Lord taught that marriages are meant for life. Anything else spells failure. There is no question about that, and no going soft on that. But he was not legislating for an institution. His words are divine insight into the truth and challenge to follow it.
That point has been weighed very seriously at all stages of our debate. We believe that we should be able to hold up the ideal of matrimony as a lifelong commitment so attractively that we can have the confidence to cope with the exceptions that rightly deserve special consideration. I agree profoundly that the number of marriage breakdowns in our society is a tragic development; but the reasons are complex. It would be difficult to prove that the removal of religious sanctions to uphold marriage as an institution has itself given rise to a higher divorce rate. It would be easier to prove that teaching the special blessing of a lifelong union is the way to reverse the trend.
All Churches vary in their treatment of that difficult word "indissolubility". The Roman Catholic Church makes use of extended grounds of nullity. The Orthodox speak of the concept of the death of a marriage, and allow second marriages in church. Those Churches are equally attempting to cope with pastoral realities as they strive to build good marriages and family life and witness to the sanctity of marriage.
Secondly, it is said that,
"The Church should require exemplary standards of the clergy.
We do not dissent from that opinion of the Committee in any degree. But there are many whose

1015
sins in the past have had to be forgiven and overcome. As the scriptures tell us, Peter was an apostate and Paul was a murderer of Christians. A would-be ordinand said to me, "If I had committed a serious crime in the past, you would test my vocation. But, since my wife was divorced years ago, you won't". I believe that it is intolerable that we should be forced by law into so unjust a pastoral approach.
A third reason given is that it is inappropriate to amend the canon law in that particular respect while leaving the regulation barring the marriage of divorced persons in church unamended. Those are related but distinct questions. It is perhaps worth pointing out that no lay persons are disqualified from office, whether they be churchwarden or church commissioner, on grounds that apply to those who seek holy orders.
In regard to remarriage in church, the difficulty is that each wedding service is a witness to what Christians believe about marriage—I recognise that—whereas an ordination is not a witness to the nature of marriage, but a sign that God can call ordinary, sinful people to his service and, through grace or forgiveness, open up the way to holiness of life
The last argument advanced against the Measure is that there are no criteria specifying the basis on which the discretion of the archbishops would be exercised. We have tried to meet that final point in my recent statement to the House of Bishops, explaining the kind of considerations that would be taken into account in determining dispensations. It is clear that the Faculties will be far from easily obtained. It should be emphasised that the application for a dispensation would not be put by the candidate, but by a diocesan bishop after his own searching inquiries. We cannot allow our discretion to be codified or it would then cease to be a discretion, but the general principles are clear. A copy has been placed in the Library.
Several hundred years ago the Church of England decided that a married clergy was God's will for his Church. It was then that the clergy's personal and domestic lives became involved ineluctably with what happens to marriage in society. There is no way in which we can simply say that, whatever happens to marriage in our society, the clergy will somehow be exempt, either miraculously or by legislation.
As we consider law and practice in this matter, more than one doctrine or principle is at stake. I prefer to lay stress on grace and forgiveness and believe that I have the mind of the Church in asking your Lordships to support the proposal. The consideration given to it in synod was thorough. There has been a wide-ranging debate in the Ecclestical Committee and in the Legislative Committee of General Synod, both separately and in a joint conference, and I testify to its constructive character. I hope that your Lordships will now find it expedient that the Measure be forwarded for Royal Assent. I beg to move.
Moved, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Clergy (Ordination) Measure be presented to Her Majesty for the Royal Assent.—(The Archbishop of Canterbury.)
6.7 p.m.
The Earl of Lauderdale The Earl of Lauderdale rose to move,
That the debate on the measure be adjourned until the present anomaly as between candidates for ordination and incumbents has been corrected to ensure that no beneficed clergyman who is divorced, or has married a divorcee while a former partner of either is living, may continue to minister.
The noble Earl said: My Lords, perhaps I may begin by saying that I am sure that the whole House was deeply moved by the sincere and wonderful words that we have just heard from the most reverend Primate. I should like to take this opportunity to say that I take no relish whatever in the line that I propose to expound, least of all since it is contrary to the purposes of the most reverend Primate, to whom I and my family are personally grateful for his great kindness. I am sure that he will realise that one is only trying to speak the truth in love.
First, there is no question about the legitimacy of an amendment under the Church of England Assembly (Powers) Act 1919. There is no question that Parliament has the right and duty to scrutinise and even, if necessary, to vote on a synod measure. Parliament represents the state Church's constituency—all who live in England—like it or not. That is how things are under the 1919 Act. There are quite recent precedents for Motions and debates, and indeed, votes on measures received from the synod. I have in mind those in 1963 and 1964 about Ecclesiastical Jurisdiction on the one hand and the vesture of ministers on the other.
The debate is not about divorce as such, let alone the misdeeds and ill-doings of many of us here present. It is about the priesthood and—as a layman I say this with the deepest respect—about the priesthood being tampered with. There may be procedural claims that the synod should have handled the matter differently and have come to this House on a matter of such gravity only on the basis of a two-thirds majority. I am not competent even to comment on that as an issue of law. However, as a layman I have to say—and I think I echo the voices of many—that we have had a lot of upsets in quite recent years and I claim that the present anomaly between canon law and civil law, instead of being corrected, is to be made worse. Clergy who are parties to the breaking of a lifelong oath may apparently minister at the taking of that oath.
The Preface to the Ordinal in the Book of Common Prayer requires candidates to be "of virtuous conversation". I submit that that can hardly mean that a man of virtuous conversation is one who is party to the breach of a lifelong oath. However, much we as individuals have erred, we as what I would call church back-benchers—pew members—want to look up to our clergy and be able to honour them without reserve. It is reasonable enough that we should look to them for an example.
I submit that the Church needs a holy and pious priesthood. We need that much more than, if I may use the term, a layer of clubbable good companions.
The most reverend Primate quoted from The Times. That newspaper has reminded us that we might well look into the question of whether the synod should not have seen this issue as sufficiently fundamental for the requirement of a two-thirds majority in each House. Personally, again as a pew member outside the synod and holding no office whatsoever in the Church, I have to say that it seems to me that the minimal requirement should surely have been an overwhelming majority. In fact, we find that 15 per cent. of the bishops were against it, as well as 30 per cent. of the clergy and 40 per cent. of the laity. Whatever the legal niceties may be, I believe that we are entitled to say that there is a moral case that such a change should only be proposed on the basis of a two-thirds majority.
We all agree that the ecclesiastical set-up as between Church and state is awkward at the very least. But part of that set-up is indeed the Ecclesiastical Committee which was established by the Act of 1919. It usually passes measures fairly easily and they then come to your Lordships' House. It is common to pass them in the dinner hour, more or less on the nod. But on this occasion that was not the position by any manner of means.
The Ecclesiastical Committee, consisting of 15 Members from each House, held six meetings stretching over a period of more than a year—in fact, 13 months. There was an average attendance of 22 Members out of 30. One vote went eight to five against the Measure, with 11 abstentions; in other words, there were 24 Members present. The Measure was finally deemed expedient by a single vote, there being 10 votes to nine, with one abstention, including the vote of the chairman from whom I am glad to learn that we shall hear later on in this debate. So by any measurement it was only by a squeak passed by the Ecclesiastical Committee as expedient.
In the committee, the record of whose proceedings is available to all Members of the House from the Vote Office, it emerged that whereas at first the committee had been led to believe that only a handful of cases was in question, and of course the discretion proposed would be very narrowly used indeed, there were in fact more than 200 cases. Then, as an olive branch held out toward the synod, the committee invited the archbishops to describe the criteria that they would use if the Measure were passed. That particular point is contained in the final paragraph of the report, paragraph 9.
The archbishops were invited to provide that information when the Measure was presented. It was tabled on the 19th June. In fact the address of the most reverend Primate to his own House of Bishops was at approximately the same time—the 19th June—and he then listed his criteria. As the most reverend Primate said, they are available in the Library. However, I have to say that as recently as last Thursday, just a fortnight after the Measure was tabled and only one parliamentary day before this
1018
debate, they had not reached the Library. Several telephone calls had to be made to the synod in order to obtain copies, and I only got a copy with considerable difficulty. No doubt there was some slip-up in the machinery.
The archbishops were asked to produce the criteria as a kind of olive branch—and I say "olive branch" because, although I am not a member of the committee, I used the privilege of being a Member of this House to sit in what one might call the "strangers gallery" and listen to the proceedings—and the principles that were set out in the most reverend Primate's speech to the House of Bishops seemed to take us back rather than forward. A new doctrine, if I may use that term—or perhaps "principle" is a safer word—of distance in terms of both time and space regarding the events in question is enunciated.
I want to ask, putting it very crudely, this question: Is a murder any less a murder because it was committed 20 years ago? Of course we know, and I think that everybody in the Committee agreed, as will everybody, that there are cases within very narrow bounds. The most reverend Primate cited one this afternoon, mentioning a person who is converted to Christianity late in life after these events. That is a very different situation. However, it has to be said, and I am sure that your Lordships will recognise the principle that has often been enunciated here and elsewhere, that hard cases make bad law. Although it is proposed to build up a body of case law in these matters, which is some consolation to the rest of us, we have no idea of how the next generation of archbishops will handle the matter, whatever body of experience they may inherit.
This is not simply a question about divorce. If I may say so, it is not really even about the priesthood, because there are many ways of serving the Church outside the priesthood, and to that point I shall return. This concerns a man or woman who has been involved in, or at some point has consented to, the breach of a solemn lifelong vow. I put the question: Shall that man—or woman, if it is a woman deacon—then preside when others take the same solemn vow before God and in the presence of the congregation which is there to witness it?
We are told that the unworthiness of a minister hinders not the effect of a sacrament. Thank goodness that is so. Come to that, thank goodness the unworthiness of a communicant does not affect the benefit of the communion. But in the case of marriage is it not the fact that the minister, priest or deacon who is presiding, presides as a witness on behalf of the Almighty and the sacrament is in fact administered by the two parties? So the question of unworthiness does not really arise in this case.
I ask: Shall such a man who has been involved, either directly or by indirect consent, in the breach of a lifelong vow taken by someone else, be the one who at the end of the ceremony declares, as he folds his stole over the couple's hands, "Those whom God hath joined together let no man put asunder"? Is he the man to advise bridal couples beforehand? Is he best placed to encourage those in marital difficulties to stick to it and not to take the easy way out?
We are sometimes told that the priest who has been through the misery, pain and suffering of divorce is better placed than others to give such advice. I should like to put a different point of view. Surely the priest who is deeply spiritual, whose life is steeped in prayer, who is a man of tranquillity, calm and quietness, and a man of purity, is better placed than the man with what I call human experience. We are told that it is the pure in heart who shall see God. I ask whether such a person is the one to prepare children for confirmation, Is he the one to help us to pray? Is he the one to lead us in private austerity, such as fasting? Is he the one to lead us in meditation? Is he the one to be authorised to give the absolution which is provided for in the Book of Common Prayer, at the Visitation of the Sick, and in the homily at Holy Communion? Is he the one to give absolution, whether in private or public?
Perhaps I may say this in the nicest possible way, but sincerely. I take this opportunity to beg the most reverend Primate and his fellow bishops not to ignore the laity. Aside from raising money for the Church, it is the laity sooner or later who beget the clergy and ultimately the bishops. We beget ordination candidates. We often go to great lengths to foster vocations. My father's vocation was fostered by his mother at the age of 10. My son's vocation was fostered by myself from childhood. I speak therefore with some feeling on this matter. I have seen the priesthood from close to all my life. My grandfather was a priest. My father was a priest. My brother was a priest, and, happily, my son is a priest. From that close view, I am well aware of the strains which no mere human solace can assuage and of the great spiritual loneliness and terrible sense of frustration which priests endure. Nothing but grace can put that right or support them.
I believe that we have a duty to support and never to debase the priesthood. As I consider this, I wonder what Wesley, Pusey, Liddon, King, Temple or Lang would have said. It seems to me that we are being invited to assent to a glaring and unworthy contradiction. My Motion is a plea in the long run to look at the whole matter fundamentally, from the 1919 Act onwards. We are so often told that clergy must respond to the trend of times and difficulties. Times were always difficult. We are also bidden in scripture,
"Be ye not conformed to the world but be ye transformed".
This is a measure which in my view overtly bows the knee to what I think our Lord would have called the adulterous world around us. I see the Church in danger, and so I beg to move.
Moved, That debate on the measure be adjourned until the present anomaly as between candidates for ordination and incumbents has been corrected to ensure that no beneficed clergyman who is divorced, or has married a divorcee while a former partner of either is living, may continue to minister.—(The Earl of Lauderdale.)
6.27 p.m.
Lord Bridge of Harwich: My Lords, if the law leads to results that the intelligent layman would regard as ridiculous or anomalous it is time that the law
1020
was changed. The present state of canon law which this measure seeks to modify is just such a law. Let us consider the position of two men aspiring to ordination in the Church of England. The first is a married man. Either he or his wife were parties to a previous marriage which broke down and was dissolved; the previous spouse of one of them is still living. The second man was convicted of murder. He was sentenced to life imprisonment and he has now been released from that sentence on licence. The second man may repent. He may be forgiven and, in appropriate cases, he may be accepted for ordination. The first man may not. The absurdity of the situation appears from this consideration. The only circumstance which can release the first man—the married man—from the absolute ban on his ordination is the death of his wife, or the death of his own former spouse, or the death of his wife's former spouse. How can one of those fortuitous circumstances affect his suitability or acceptability as a minister of the Church of England? It is the absoluteness of the ban, its rigidity and inflexibility, which makes its operation irrational and arbitrary. It is only that rigidity and inflexibility which this measure seeks to mitigate.
Manifestly the greatest anomaly in the present situation is that the absolute ban applies only to those seeking ordination. It has no application to those already ordained. When I read the Motion for the adjournment of the debate on this measure which has been moved by the noble Earl, Lord Lauderdale, I thought that he was going to speak to the Motion which stands in his name. Noble Lords will have read it. The proposal is that the measure should be adjourned until the present anomaly as between candidates for ordination and incumbents has been corrected. The noble Earl's proposal, as expressed in the Motion—although he has not spoken a single word in support of it—must imply this. There should be legislation so that any bishop, priest or deacon in the Church of England who has been a party to a marriage at some time, or who marries having a previous spouse living, or who marries a woman with a previous spouse living, is guilty of an absolute ecclesiastical offence. In order to cure the anomaly, such a measure would have to operate retrospectively so as to disqualify and deprive of their benefices all those who had at some time in the past contracted offending marriages of the kind to which the legislation was directed. That being so, even if the legislation were not retrospective, it would have such an element of legalistic rigour that, in my submission, it would be wholly unacceptable to public opinion either in the Church of England or in the country at large. I ask rhetorically: who will introduce such legislation? Clearly it will not be the General Synod of the Church of England. If not the synod, then who else? The only way in which the anomaly will be removed, therefore, is by this modest measure proposing the conferring of discretion by canon on the most reverend Primates.
Perhaps I may say a word about the roles of both the Ecclesiastical Committee and Parliament in a measure of this nature. Parliament, in the Church of England Assembly (Powers) Act 1919, conferred upon the then Church of England Assembly the power to legislate on its own affairs by measures

1021
which would acquire the force of law only if approved by affirmative resolution of both Houses of Parliament. The old church assembly is now the synod, whose constitution is governed by the Synodical Government Measure 1969, but the Ecclesiastical Committee still derives its constitution and its functions from the Act of 1919. It consists of 15 Peers, appointed by the Lord Chancellor and 15 Members of the House of Commons, appointed by the Speaker. I do not know what the qualifications are, but I presume that they are all communicant members of the Church of England, though the statute does not require that they should be. I suspect that the primary qualification is a willingness to be drafted.
The function of the Ecclesiastical Committee derives from the statute. Every measure has to be submitted to the committee for report before it is laid before Parliament. The committee is required to report:
"its views as to the expediency [of a measure], especially with relation to the constitutional rights of all His Majesty's subjects".
That is the statutory language from which the committee derives its function. It defines the scope of its function and is a very imprecise and unsatisfactory phrase.
As your Lordships know, this measure has aroused strong controversy in the Ecclesiastical Committee, but my suspicion is that a large measure of that controversy arises from differences of view as to the scope of the committee's functions as defined by that term. My view has always been and remains that the essential function of the Ecclesiastical Committee is to act as a kind of parliamentary watchdog. We are to scrutinise measures which come up from the synod to make sure that they do not encroach upon or conflict with the general law in such areas as, for example, the liberty of the subject or rights of property.
But, when the synod has passed and approved a measure relating to the internal domestic affairs of the Church, and certainly when the only matter of controversy arising from a measure turns upon a point of theology and doctrine, it has always seemed to me to be a quite improper exercise of any function conferred on the Ecclesiastical Committee for its members to prefer the latter's own views to the views which have been expressed by the Church's representative body by appropriate votes of the three houses of the General Synod.
It is at this point that I must say a word about the technicalities raised regarding the two-thirds vote. This was before the Ecclesiastical Committee. It was debate by me ad nauseam in correspondence before the Ecclesiastical Committee ever sat and it arises from a total misconception of the effect of the Worship and Doctrine Measure 1974. I am sorry about the technicalities, but to understand the point one must appreciate the elementary difference between primary and secondary legislation. We all know the difference between an Act of Parliament and a statutory instrument. The analogy in the synod is a measure and a canon. The measure is the synod's primary legislation, which of course requires approval by resolution of both Houses. Legislation
1022
by canon is the synod's secondary legislation, which does not require approval.
A canon can only be enacted so far as it is authorised by a measure, and the Worship and Doctrine Measure authorises legislation by canon in certain matters relating to worship and doctrine. Section 3 of that measure provides that legislation by canon under the authority of Section 1 or 2 of the Worship and Doctrine Measure must be by two-thirds majority of those voting in each of the three houses of the synod. That measure has nothing whatever to do with primary legislation by measure, as the most reverend Primate has already pointed out. That is governed by the Church's constitution, found in Schedule 2 to the Act of 1969, paragraph 5. The normal measure is to be approved by a simple majority of those present and voting in each of the three houses. It is only the special measures, to which the most reverend Primate has referred, which require two-thirds majority under paragraph 8 and, by the procedure which conclusively resolves any question as to the application of paragraph 8, it was determined that this measure was not a paragraph 8 measure. So the point on the Worship and Doctrine Measure 1974 is wholly without substance and is misconceived.
Next there is the question of majorities in the synod, which were, as has already been pointed out, some 85 per cent. in favour in the House of Bishops; 68 per cent. in favour of the House of Clergy, which was well over two-thirds; and only marginally less than two-thirds in the House of Laity, at 61 point something per cent. The point about majorities has been echoed in the minority view expressed in the Ecclesiastical Committee's report that the approval of a measure in the synod does not express the voice of the Church. If the voice of the Church is not to be expressed by a constitutional vote of the synod, I do not know how it is to be expressed.
I have already taken longer than I intended, but finally I want to say a word about the role of Parliament. The General Synod, with its House of Bishops and its elected houses of the clergy and the laity, is the body to which Parliament has committed the primary responsibility for legislating in ecclesiastical matters. Of course it is right that synod legislation, primary legislation, should require Parliament's imprimatur before it becomes law. The question is, on what grounds is it appropriate that imprimatur should be withheld? It goes without saying that if some constitutional issue arises out of a synod measure, Parliament should resolve it. I appreciate that, if a measure comes before Parliament which threatens to split the established Church asunder, that would indeed give rise to a constitutional issue. The possibility of such a measure coming before the House in the foreseeable future is obviously present in all your Lordships' minds, but the present measure is not of that nature at all. Controversy over the measure lies in the relatively narrow field of theology and doctrine, which it is surely within the competence of the Church's representative body to resolve. It would be quite inappropriate, in my respectful submission, for Members of your Lordships' House to take the stance that their own personal views of the

1023
theological merits of the issue should stand in the way of implementing the Church's own solution to a difficult problem which has been approved by the Church's own elected body acting entirely within its statutory constitution.
6.39 p.m.
The Lord Bishop of Guildford: My Lords, I should like to begin with an apology. I was called to give evidence on behalf of the General Synod to the Ecclesiastical Committee of Parliament. During the course of that examination I was asked about the number of people likely to be considered under this draft Measure. I recognise now that I was less than clear in my answers and if in any way I misled the committee I apologise both to the committee and to the House. No figures had been ascertained at that stage. I could therefore rely only on my own experience.
At the time that I gave evidence I had been a bishop for five years. During that period I was aware of only one person in my diocese whom I should have liked the freedom to consider under this proposal. If that is typical then there would be about nine cases a year under consideration by different diocesan bishops, some of whom might become the subject of an application to the archbishops.
Since I gave evidence to the committee an inquiry has been made about the number of people known to be hoping for consideration under the Measure. Across the whole of the Church of England the figure is about 240. That is not an annual figure; it is an accumulated figure. It is the total which has accumulated over the period since the Measure was first suggested. Although it represents the number of people who are known it does not mean that that number will form the subject of an application.
The person in my diocese to whom I have already referred is known to my officers but I have not yet met him. I have indicated that I cannot consider him until the law allows. When I meet him I may decide that the circumstances do not justify any application or that he is not a suitable person. Whatever the number may be to whom the archbishops give a faculty it must be seen against the annual number of ordinations in the Church of England. At the present time it is running at approximately 528 a year. So I hope that shows that although the numbers may be larger than when I gave evidence to the Ecclesiastical Committee we are talking about a small number of people who are exceptions to the General rule.
Who are the people who might be considered under the provision? The potential candidate in my diocese married a divorcee some 15 years ago. His wife's first marriage was never consummated. When she wanted that marriage dissolved the lawyers advised her that it might be more straightforward to obtain a divorce than a decree of nullity. So she took her lawyers' advice and obtained a divorce. Therefore, the man concerned is now married to a divorcee and automatically barred by law from consideration. Had his wife been advised differently by her lawyers she might have obtained a decree of nullity and her present husband would have no impediment.
1024
Let us take another situation. A growing number of those coming forward for ministry are new Christians brought to Christian life and faith later in life. A man may contract an unwise marriage in his early years before he is a Christian. His wife leaves him for another man. He obtains a divorce and both he and his first wife marry again. As a result of his trauma the man grows and matures, is helped by the Church and becomes a Christian. But because of what he did some years ago before becoming a Christian he is legally barred from ordination.
A contemporary of his, who in his pre-Christian days was promiscuous and had a number of transitory partners but never actually married, also matures, settles down, marries and is converted to Christian faith and life. He can be considered. It is in order to be free from such awkward situations that this modest Measure is proposed.
I have a further concern. The present bar to ordination is not attached to divorce but to remarriage. On any strict understanding of the doctrine of indissolubility I can understand that. But the Church of England as a whole has never adhered to a rigid doctrine of indissolubility. We uphold firmly that marriage is lifelong, exclusive and total in its commitment and it should not be dissolved. For most of us the primary failure is the breakdown of the marriage and the divorce rather than the subsequent decision to remarry. So the law excludes at the wrong point.
Furthermore, we must ask: why is this one offence of remarriage a legal impediment? As the law stands at present we can ordain a penitent murderer and a reformed embezzler but not a divorcee. Commonsense and justice indicate that at least there should be provision for exceptions to such a legal impediment.
In his maiden speech the noble Earl, Lord Lauderdale, rightly referred to the importance of having high standards in the priesthood. I fully and unequivocally support that. Our difficulty is that we can use only men. I must tell your Lordships—if you have not already noticed—that men are sinners; a bundle of frailties and failures. Therefore, we must all minister from a position of failure and the experience of forgiveness. Although we must work for the highest possible standards we cannot expect perfection. We must recognise that priests are and will aways be human.
I suggest that this is a most modest Measure passed by a majority in the General Synod of 293 to 147. That is a majority which I suggest any parliamentarian on this side of the river would describe as "substantial" if not "overwhelming". It gives a discretion—and no more—to the two archbishops after scrutiny by our diocesan bishop. Surely there is nothing here which will overturn Church or state or the relations between them.
6.47 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I apologise for entering into the debate as a totally unqualified layman but simply as a communicant of the Church of England. I have deliberately come

1025
without notes because I believe that if I do so I am less likely to detain the House for any length of time.
Of course, I do not question to the slightest degree either the sincerity or the seriousness of the arguments put forward with obvious passion by my noble friend Lord Lauderdale. But I must argue that the amendment that he has proposed is utterly misguided. I wish to support in every way the speeches of the most reverend Primate and the right reverend Prelate and of my noble and learned friend on the Cross Benches who is the chairman of the Ecclesiastical Committee.
I hope that one phrase will not be heard again in the debate. I am referring to "hard cases make bad laws". That is an utter misuse of a jurisprudential cliché. The fact is that silly and unjust laws make hard cases. One cannot justify a silly and unjust law on the basis of a cliché which is designed to illustrate a totally different truth.
The real truth is that the debate has become a matter of serious consideration not only because of the inherent importance of the subject matter but, as my noble and learned friend Lord Bridge has pointed out, because it raises the serious question of the relationship between the established Church of England and the state as represented by the Queen in Parliament. I take the same view on that matter as did my noble and learned friend.
I have one or two qualifications for so doing. In one way or another I have interested myself in every one of these debates since the Prayer Book controversy of 1928. Few of them have been helpful and where the opposition to the Church organs have been successful they have almost always done more harm than good. They have nearly always been inspired by religious beliefs held with more passion than common sense. We must consider where we stand in this matter. The Church of England has always been accused of Erastianism. A little bit of Erastianism does you good, and I think that some part of the accusation sticks.
However, we must consider what a body of this kind—and I am looking at the noble Lord, Lord Houghton of Sowerby—has to say about testing the vocation of a man who wants to enter the priesthood of the Church of England. I am told that the passage of the synodal Measure was entirely at large. The synodal Measure introduced the Ecclesiastical Committee, whose terms of reference were correctly cited by my noble and learned friend. It is quite clear to me that when Parliament sanctioned that Measure and the synodal government was introduced, it was really saying that the constitutional rights of all Her Majesty's subjects was a proper matter for Parliament to safeguard, and the word "expediency" where it occurs in the earlier part of the terms of reference must be read in the light of the whole clause.
We have to consider questions of public interest rather than the particular view of the sanctity of marriage which my noble friend Lord Lauderdale has put forward. I should like to assure him that whatever else may be true, to my detriment, I hold as serious a view of the obligations of marriage as he does, although I do not agree with the application of it to this Measure.
1026
Let us consider how the matter has developed. It happens that I was the first Lord Chancellor to have to consider the effects of the Private Member's Bill which was enacted in 1969, when I was in another place and when I was the spokesman for home affairs and therefore had to take part in the debates. The second time that I was Lord Chancellor I realised at once that the points which I had put forward by way of criticism of that piece of legislation were so serious that in every Session of Parliament during which I held that office, I tried to bring in a family law reform measure to make sense of the situation which was developing.
However, one has to recognise that since 1969 the secular status of marriage is a contract leading to a status. It is not a sacrament. It can exist equally between two divorced persons; it can exist between two Quakers who do not have sacraments, between two Moslems who believe in polygamy; it can or cannot exist between two atheists; it can exist between any persons capable of contracting a marriage in this country, whatever their religion and whatever their religious views. The secular status of marriage is a contract leading to a status.
I know that my noble friend did not intend to mislead anybody in any way, but it is utterly false to say that a man who marries a divorced woman—a woman who has been divorced—is necessarily either breaking his own oath if he has been divorced or encouraging her to break hers. Those churches that hold the indissolubility of marriage—the Roman Catholic Church being the most notable example—have a very elaborate jurisprudence of nullity which is totally different from our own. If an ordinand presents himself for ordination in the Church of England, wishing to marry or having married a lady who has been married for the second and third time after two or three divorces, he is not necessarily infringing the particular view of marriage held by the Church of England because the original partner of the first marriage may easily be dead. If this Measure were not passed, the fact that his partner had been divorced twice and the latest of the partners was still alive would be an absolute bar against ordination.
Where are we going as between Church and state? The position is this. Secular divorce and secular marriage at the present state of the law are part of the secular law of the state. They do not form part of the ecclesiastical and sacramental view of the nature of marriage to which I have no doubt whatever my noble friend Lord Lauderdale subscribes. We must recognise that fact. What we are discussing in this Measure—were we to go into the merits, which I am not, in the short time that I wish to take—is the reality of a vocation from God to enter into the Church of England priesthood. What I am suggesting—and I only echo what has fallen from the Bishops' Bench on this occasion—is that that is a matter which has to be tested by the Church authorities and not by the Queen in Parliament.
If a public interest issue were involved or if the rights of all Her Majesty's subjects were involved, I should be the first to claim the right for Parliament to veto any ecclesiastical Measure which the Bishops

1027
put forward. However, they are talking about something within their peculiar jurisdiction. The Measure was passed by the Synod by substantial majorities in each of the Houses. Usually, in Parliament, a majority of one is considered to be enough. We do not usually decide that if there is only a small majority we ought to defer the measure before it receives Royal Assent. We are not people to talk about two-thirds majorities. I am not prepared to take very much notice of that point for the exact reason given by my noble and learned friend on the Cross Benches.
There is a very serious point which we have to consider. The Church of England is a denomination among many other religious denominations in this country. I happen to belong to it and I hope that I am a loyal member. It is not for Parliament to carry Erastianism too far. It is for Parliament to study public policy questions; and questions of whether a man's vocation to the sacred ministry is a true vocation coming from God or a form of self-congratulation as to his own sanctity are not matters for us. I hope that this amendment is decisively rejected.
6.58 p.m.
Baroness Seear: My Lords, I enter this debate with the very greatest hesitation, recognising how little I know about the theology of the matter and how little experience I have of these questions. However, I speak very much as a layman, a very ordinary member in the pew. It is as a layman and from a layman's point of view that I should like to say a few words. Before doing so, I should like to say how very much I agree—if it is not presumptuous to say so—with the speech made by the noble and learned Lord, Lord Hailsham.
Behind the arguments today lies the question of the relationship between Parliament and the Church and the Church's right to settle its own affairs through its own elected machinery. I think it is of the greatest importance that we bear that point in mind when we vote on this Measure.
Looking at the matter from the view of a very ordinary layman, perhaps I may say this. If a man, through his wife or his own experience, is prohibited from being considered for a priesthood, how is that going to look to the laity as a whole? I suggest that everybody in this House must know through their own friends and family, if not through their personal experience, people who have struggled through the hideous business—and for most it is a hideous business—of divorce with all that that means. In fortunate cases such people have been able to make a second marriage which has been a very fulfilling experience for them.
Surely we have all seen how very good relationships and good families have developed through those second marriages. How are those people going to feel if it is said that someone in their own position is not even to be considered for the priesthood? It is a way of saying to them that what they have done is not acceptable. Otherwise, why should a person with that experience be turned down out of hand, and not even allowed to be considered
1028
for the priesthood? It is an implied condemnation of the way in which they have attempted to solve their own very difficult problems.
The next point that I wish to raise is how grossly unfair such a ruling will be to individuals. We can all cite particular cases which we know about. Let us consider the case of a man's wife who leaves him and goes back to the man with whom she lived before she married. Of course one does not know the circumstances, and one never knows all of the circumstances in such cases. These matters cannot be judged from outside. She goes back to her previous lover, and the lover and she now wish to marry. What can the husband do except agree that she should be free so to do? He divorces her. He does not wish to do so; but he does so because the alternative is that she will continue to live with her lover to whom she wishes to be married, but she will not live in a married status.
The man who has divorced the woman thereby releasing her for the marriage that she now seeks, if the noble Earl, Lord Lauderdale, has his way, is not to be considered for the priesthood. My Lords, what is the right action for a man in those circumtances? Is he to say that because they have entered into an indissoluble relationship for the rest of her life she is not to be allowed to marry her lover although she has not the slightest intention of returning to the man to whom she has been married? Can that be fair and right?
As a very ordinary layman, I feel very strongly indeed that it is quite extraordinary that we attach so much importance to sexual offences in relation to all other kinds of offences. You can be cruel or greedy; you can cheat and be arrogant and avaricious; but those defects are apparently forgivable. However, if you trip up in your sexual relationships, that is not to be forgiven. I simply cannot understand that as an argument, and I cannot accept it. The noble Earl, Lord Lauderdale, raised what I suppose is a theological difference between us. He said that you want to be able to look up to your priest. I hope that the Bench of Bishops will not misunderstand me; but, frankly, I do not particularly want to look up to my priest. However, I do want to be able to talk to him. When I talk to him, I hope that he can understand. It is my belief that it will be far easier for members of the laity to speak to those who are sanctioned by the archbishops—and I am sure it will not be done frivolously—and I believe they will be men and I hope women in due course, with understanding, because of the experience that they have been through.
7.4 p.m.
The Marquess of Salisbury: My Lords, much has been made in the speeches this evening of the exceptions and the benefits that will arise were those concerned given the opportunity to join the priesthood. I wish to query whether we are advocating going down the right road. I have always had doubts whether government by what I call "exception" is not in effect lowering the general standard. I wish particularly to speak about the impact that it might have on the congregations under the ordinands.

1029
We all know that we look up to our parish priest and we expect him to set a standard. It seems to be extremely difficult, if he has broken some rules of the Church, that he should retain respect in the same way as he would have done if he had not been so involved. There are many other opportunities within the Church which such a man can take without being ordained. I wonder whether we are looking at the matter the wrong way round. The question is whether we are lowering Christian standards in this way. I suggest to your Lordships that this Measure is one of a series. Over the years exceptions have continued to be made in various spheres including divorce. Is it right that we should go further without the risk of weakening Christian standards which the Church is supposed to promote?
I wonder how much the teaching of the Church is now concentrated on Christian ethics. Is not the Church going down the road of care? Of course it is necessary to have pastoral care, but do we really need to have a Church acting as second fiddle to the social services? The money raised there could perhaps be used more profitably by paying better salaries to the hard working parish priests. The Church very seldom now tells people what they should not do. It is quite happy to tell them what they ought to do. I wonder how long it is since any of your Lordships have heard the Ten Commandments read out in Church. For my part it is a very long time ago. One of those is that thou shalt not commit adultery. That is what we are talking about now.
I have listened with great care to what the most reverend Primate the Archbishop had to say. I am not clear whether he is satisfied that this Measure is in line with the teachings of our Lord as set out in Chapter 19 of St. Matthew where He says:
"And I say unto you, Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery: and whoso marrieth her which is put away doth commit adultery".
That seems to be fundamental to the issue that we are talking about tonight.
So many of the laity have lost touch with the Church. It does not seem to me that they can be attracted back to the Church by going easy on the moral issues. If one were to draw u parallel between Christianity which seems to be weakening its hold and lowering its standards, and Islam which has maintained its toughest rules, we see Islam forging ahead at this time. Perhaps that is the reason why. I wonder whether this Measure is part of a long line of minor Measures and whether it is one that is not going to be to the detriment of the Church.
7.9 p.m.
Lord Soper: My Lords, I wish ardently to support my noble friend the most reverend Primate in what he has proposed. Consequently, much as I respect him, I object to the amendment which is in the name of the noble Earl, Lord Lauderdale. I begin by reminding myself that I am a Peer within this House but, despite the ecclesiastical appearance, I carry no sprituality whatsoever here. I believe that that is the beginning of an understanding of the problem that underlies a great deal of what has been said so eloquently today.
1030
There is an inevitable collision between the proper rights of a House such as this and the proper rights of a Church, the Anglican communion. There are aspects of relationships which require law, but if I may refer to the third leader in The Times this morning, I believe that we should have no truck in this House with doctrine as such. That does not come within our purview. The House does not of necessity possess the expertise and the experience which would be required to make a formal and final judgment on a moral issue.
It is in that sense that we are embarking on a false course if we imagine that it is within our power in this House to modify or alter the main principles of Christian morality. But as a noncomformist I would say that only within the framework of disestablishment can there be an effective future for the relationships between Church and state. However, having said that, I find that it is a rather incomplete relationship that I bear to the Christian faith and to the Christian Church.
I am a minister of the Methodist Church. In that ministry I would claim to be a churchman. In its history I would remind myself that John Wesley was an ordained priest within the Anglican communion, and that not a few years ago I had something to do with the attempts which were made between the Anglicans and the Methodists to come together, to recapture that sense of unity whose loss I for one deplore. In that regard I believe that there is for me at least a responsibility to put my own case for the adoption of this Measure and to explain my own sense of the indignity which in some respects is imposed on my most reverend friend in having to bring it before the House.
I look for the time when the Methodists will become a preaching order within the Catholic faith, a preaching order indeed within the Anglican communion. It is in that regard that I feel a sense of responsibility for what in the future may be a disestablished Church, but nevertheless a united and more effective one. That brings me to the consideration of these projects which are included and have relationships, mainly sexual. Perhaps I may remind myself and your Lordships that there has been a transformation in the whole concept of sexual behaviour, much of it for the worse, some of it for the better. But one thing has emerged which is germane to the purpose to which we are looking in this debate. A larger element is required of forgiveness and of understanding in those relationships which were much more categorically either approved of or attacked in my own lifetime.
I resent the concept that at least has been apparent in what has already been said, that there is required some doctrine almost of perfection in those who minister, as I have been doing for the past 60 or more years, in many areas of domestic and personal relationships which have a large element—perhaps a dominant element—of sexual context. I do not believe that in the Church we must look for those who are immune from the temptations or the disabilities that follow after misbehaviour.
It was in what used to be Ceylon that I heard a most eloquent preacher saying that the prime requirement for a minister of the Gospel was that

1031
he should regard himself as one thirsty sinner in a desert able to tell other sinners where they could find water. I recognise that such an enterprise would require something almost of a Water Bill to apply it to the various conditions which prevail in any attempt to expose that to public concern and to public edition. But I believe that that is the prime requirement. I have found in my lifetime that the repentant sinner in many cases becomes a more ardent advocate of that which he has previously ignored or transgressed. Though I would not believe that sexual indulgence or infidelity in marriage qualifies one for a better counsellor, I have every evidence in my past experience as a minister to say that, over and over again, it is easier, as the noble Baroness has said, to talk to somebody whom one can assume will understand what one is talking about. In that regard I believe that this Measure is proper, selective and accurate.
In general principle, I deplore a breakdown of marriage, but in many cases I have found that marriages have died and should be buried. I believe in the concept of a resurrection, but with other partners. What I do deplore is the assumption that this evil, if it is known to be part of the background of one who desires to be ordained, prohibits the kind of effective ministry which a repentant sinner is entitled to believe can be his.
I refer the House to the great Pauline concept of the second Adam, who comes to the fight not only bearing wounds and scars but also that enlightenment which is the product of those who have been genuinely sorry for their sins. And within the protection that is offered in this Measure I believe that both archbishops will be competent to discriminate between those whose divorces have become just means of sexual gratification or sexual negligence and those which are part of the on-going process of the good life. It is in that latter sense that I believe the Measure to be right. I believe that there is sufficient justification for acceptance that the various points in the Measure which are open to complex relationships and results can be effectively dealt with by the provisions of the Measure itself. I wish it well.
7.17 p.m.
Lord Nugent of Guildford: My Lords, I wish to express a word of support for the Motion which has been so eloquently moved by the most reverend Primate. I fear, on the other hand, that I cannot support the Motion of my noble friend Lord Lauderdale, much though I sympathise with the passionate conviction with which he put his case, and which I well recognise from many occasions in the past when we have been on the same side. I should also like to thank the ecclesiastical committee for its report on this Measure. I note its recommendation in favour of it, which I was glad to see.
In studying the report and appendices I observed that it reflects the deep concern which was expressed by my noble friend Lord Lauderdale at the distressingly high number of divorces today and at the suffering that flows from them, especially for the next generation of the young who start with disturbed
1032
lives. I sympathise with those who are anxious about this Measure. However, I recognise that the General Synod was persuaded by a majority in each House that the balance of justice and mercy in cases where an applicant for ordination has been divorced or is married to a divorced woman, requires that there should be a discretion vested in one or other archbishop to dispense with Section 9 of the 1964 Measure.
I should like just to mention a constitutional point, because I rather suspect from reports which I have read in the press, that the noble and learned Lord, Lord Denning, will be firing off some broadsides on this aspect. I read the evidence of Professor McLean and I also listened to, and was enlightened by, the speech made by the noble and learned Lord, Lord Bridge, this afternoon. This Measure makes no change in the ordinance; a simple majority in each House of the General Synod is sufficient to take the decision. The Measure is limited to a dispensation; but the order remains in being as before. I feel that that fact must weigh substantially against the arguments which I am sure the noble and learned Lord, Lord Denning, is about to let loose.
After reading the report most carefully, I must say I recognise that the pros and cons of the argument are evenly balanced. However, in reaching my decision on the Measure, I have been most conscious as a parliamentarian, as others have said this evening, that we have substantially devolved by the 1919 and 1969 synodical Measures to our Church in the body of the General Synod, the general responsibility for managing its own affairs, except in a few reserved instances—of which this is not one. It seems to me that the decision in this case should lie within the judgment of the General Synod and that we in Parliament ought not to argue it all over again.
Lord Bridge of Harwich: Hear, hear!
Lord Nugent of Guildford: My Lords, I am delighted to hear the noble and learned Lord, Lord Bridge, say that. Indeed, he has heard a great deal about the matter from the Ecclesiastical Committee.
In this context, I should like to add that I believe this substantial Measure of independent government for our Church will in the long run redound for the greater strength and vitality of our Church, and especially its appeal to the younger generation. I very much agree with the noble Lord, Lord Soper, as regards his feelings on the matter. I confess that, like many others, I have been strongly critical of action or inaction by our Church leaders in recent years. However, I am still convinced that substantial independence will be for the long term benefit of our Church. Being of that mind, I shall support the Measure and reject the amendment.
7.24 p.m.
Lord Denning: My Lords, I have listened to all the arguments in favour of the Measure. In a way, I come into the debate as an ecclesiastical lawyer of old standing. It is nearly 50 years ago that I was Chancellor of the Dioceses of London and Southwark. It was part of my duty to advise those

1033
bishops on the ecclesiastical law regarding it. First, I shall define marriage in our English ecclesiastical law. Marriage is the personal union of one man with one woman, for better or for worse, to the exclusion of all others on either side, so long as they both shall live. That is the ecclesiastical law of marriage. It is the duty of the Church of England to do all it can to maintain that law and not allow exceptions to it. However sympathetic you may be with the people involved, that is the ecclesiastical law. I am not speaking of the divorce law or the civil law in any way; I am speaking of our ecclesiastical law.
There is a report in this suitably coloured book, called "red" . It reports the proceedings of the Ecclesiastical Committee. I am afraid that I must criticise that report. In paragraph 6, under the heading of "Expediency", it says:
"Section 3(3) of the Act of 1919"—
that is the Act which gave the Church of England Assembly its own legislative powers—
"requires the Ecclesiastical Committee to report 'its views as to the expediency' of a Measure".
Indeed, we have those views on that matter by a narrow majority. But it continues to say—and these are the words which have been omitted altogether—that,
"especially with relation to the constitutional rights of all His Majesty's subjects".
But, this is the important sentence:
"The present Measure in no way affects constitutional rights. The Committee is accordingly concerned with its `expediency' in the most general sense".
In my submission, that is a complete error by the Ecclesiastical Committee. The important words in question are,
"especially with relation to the constitional rights of all His Majesty's subjects".
I repeat, "the constitutional rights".
Now I go back to the Book of Common Prayer of 1662, which was made law by the Act of Uniformity which prescribed the doctrines of the Church of England. It prescribed it in the Apostles' Creed, if you please. Is anyone going to alter that by a narrow majority? The Act of Uniformity prescribed the doctrines of the Church of England; it also prescribed the forms of service and the regulations under which a man can become a clergyman. These matters are all in the Book of Common Prayer. They have all been made law by the Act of Uniformity which remained on our statute book right up until 1974. I shall return to that matter presently. But, then there is our Act of Uniformity and our services.
I expect that many of your Lordships, like myself, have from the age often attended church on Sundays. We have all said our creed. Is that to be altered by a narrow majority? The only way in which it could have been impaired was when we reached the 1974 Measure on doctrine and worship. That Measure repealed—the first Act to do so—the Act of Uniformity. In its place, it gave the General Synod power to change and alter our Book of Common Prayer. The synod should be very careful before it changes or alters the Book of Common Prayer. It not only contains some of the best literature in our
1034
English Language, but it is also the governing instrument for the doctrine of the Church of England, for the forms of service and for the ordinands who come before it.
This is where I return to the Book of Common Prayer. As I read the 1974 Measure, if we are to alter, vary or make exceptions to precepts in that book, then we must do so by a two-thirds majority. This is what the Book of Common Prayer says when it comes to a man who has been guilty of any crime or impediment being ordained. I expect that the right reverend Prelates will all know the text by heart. The Book of Common Prayer contains special provisions for
"The form and manner of making of Deacons.".
Let me remind right reverend Prelates of the conditions:
"¶ Then the Bishop shall say unto the people:
Brethren, if there be any of you who knoweth any Impediment, or notable Crime, in any of these persons presented to be ordered Deacons, for the which he ought not to be admitted to that Office, let him come forth in the Name of God, and shew what the Crime or Impediment is.".
Then come the rubric, printed in red of course to emphasise it:
"¶And if any great Crime or Impediment be objected, the Bishop shall surcease from Ordering that person, until such time as the party accused shall be found clear of that Crime."
Cases of murderers and embezzlers have been illustrated this afternoon. They are all notable crimes. A man cannot be ordained a clergyman if he is accused of any notable crime or impediment.
Since 1662 it has always been an impediment for a man to be married to two wives. It is an impediment to the ordaining of a deacon. That is what I go by. I go by the Book of Common Prayer. I go by the rubric of the Book of Common Prayer.
Then I turn to the 1974 Measure which makes it plain, as I read it, that if we are to make any change in, or amend, the doctrine of the Church of England, or if we are to make any change or alteration in the rubrics, then it must be done by a two-thirds majority. That is an important aspect of our constitution. The Book of Common Prayer stood from 1662 until 1980, when we had the alternative service. If we are to alter our Book of Common Prayer, it is the right of every citizen to see that it is not done except according to law. The full integrity of the Book of Common Prayer must be maintained and can be altered only by due process of law.
Section 3 of the Measure makes it clear that,
"No Canon making any such provision as is mentioned" —
that is interfering with our Prayer Book—
"shall be submitted for Her Majesty's Licence and Assent unless it has been finally approved by the General Synod with a majority in each House thereof of not less than two-thirds of those present and voting".
That provision is contained in the 1974 Measure which is part of this country's statute law. Is that not right, if we are to amend our Book of Common Prayer? Are we going to let that be done by a simple majority? It is the doctrine of the Church of England. If anyone—perhaps the right reverend Prelate the Bishop of Durham or whoever it may be—believes that the wording is wrong or inapplicable today and

1035
wants to amend it, it cannot be done by a simple majority. It can be amended only by a two-thirds majority in each House of the General Synod. That is contained in the Apostles' Creed which is part of the doctrine of the Church of England and is contained in the Book of Common Prayer.
Impediments to ordination are dealt with in the same way. They are catered for in the rubrics. If we are to alter the rubric we must do it by a two-thirds majority. That point was never reported upon by the Ecclesiastical Committee. It said that it was not going to go into the constitutional rights of Her Majesty's subjects. I have read the section to your Lordships. It provides:
"especially with regard to the constitutional rights of Her Majesty's subjects".
An essential constitutional right of all Her Majesty's subjects is the maintenance intact of the Book of Common Prayer. If it is to be amended or altered in any significant respect—whether in the doctrine or the form of service—the 1974 Measure allows it to be done, but let it be done according to law. Let it be done by the two-thirds majority.
With all respect, my noble and learned friend Lord Bridge of Harwich said that we are not proceeding under that 1974 Measure; we are going to amend the Canon by a new Measure of our own. In other words, we cannot do it directly under the 1974 Measure; we will do it indirectly through another Measure. That is impermissible. We cannot get round this country's law by enacting another Measure, which itself would be contaminated in that way. That is the constitutional point. It is a point which affects all Her Majesty's subjects.
The sanctity—if I may put it that way—of our Book of Common Prayer has been the subect of controversy between the Houses, and, as a rule, Parliament fights shy of any alteration to it. Any alteration to the Apostles' Creed or to the ordination of deacons cannot be done without changing the Book of Common Prayer by tampering with its rubrics. As I read this country's ecclesiastical law, as embodied in Section 3 of the 1974 Measure, that is not constitutional and for that entirely legal reason—it conforms with the article in The Times today—we are concerned not so much with ecclesiastical theology as with the rights of Her Majesty's subjects not to have altered the Book of Common Prayer, which has been established by Act of Parliament for over 300 years, except in accordance with the law; and as I read the law there should be a two-thirds majority.
I therefore oppose the Measure and support the noble Earl, Lord Lauderdale, not on the grounds that he stated but on the wider constitutional grounds which should have been reported upon by the committee but which have not been reported upon.
7.38 p.m.
Lord Renton: My Lords, I am sure that, whether your Lordships agree or disagree with the noble and learned Lord, Lord Denning, we are glad to find that he is here for the first time for many months since his 90th birthday, expressing matters with his usual vigour and great clarity of mind.
1036
I too shall speak to the constitutional point, but I wish to do so in a way which has not so far arisen in the debate. Perhaps I may say, first, that when the most reverend Primate and the right reverend Prelate the Bishop of Guildford were discussing the merits—I am glad that they did because it is right that we should have some opportunity to do so—they convinced me that there were injustices, anomalies, hardships and inconveniences which need to be rectified. I am a middle of the road member of the Church and a regular worshipper. I assume, for the sake of the argument that I am about to put, and in the light of what has been said, especially by my noble and learned friend Lord Hailsham, that we should concern ourselves primarily with ensuring that the Measure has been properly drawn and ensuring that it makes clear its purpose and any change in the law that it carries out. If it does not do those things I should have thought that it was failing Parliament.
What does the Measure do and how does it do it? Perhaps noble Lords will be so good as to glance at the Measure. They will find that it is entirely procedural. It does not state any principles on which it is based; it does not state what changes in the law are to be made. It gives a complete discretion, first, to the bishops and then to the two archbishops, to exercise it in a way which the two archbishops have described in a document which is not before us and which will not be part of the law. The Measure introduces a very important change in the law and practice of our Church. I must confess that I am very surprised that it has been dealt with in the way which is before us, and which I have tried to describe.
It was right for Parliament to say to the Church, "There are certain matters which are your concern and provided that you deal with them properly and in accordance with the procedures laid down, we shall not interfere". But I think that when the matters are brought before us we should know what is happening.
In my opinion, so far as concerns the Measure's effect—and we can only consider its effect because we are not told its terms—it goes too far. In considering this, I say that we should remember, as my noble friend Lord Lauderdale and others have pointed out, that we expect the clergy to be virtuous and to set an example to the rest of us. If the Measure were simply to approve the ordination—I give an example of a man whose wife has deserted him or who has had to divorce her for adultery or any other reason—for my part I should support that. To that extent I must disagree with my noble friend Lord Lauderdale.
However, the Measure would enable a married man, who, for example, committed adultery with another man's wife, to become ordained. There is nothing to stop that. It will not happen; we know that it is unthinkable. But it is no answer to say that no archbishop would let it happen. The point is that we are asked to approve a measure which would in law allow that to happen. We are told that given enough distance in time and space, many things which have been disapproved of previously and which—as the noble and learned Lord, Lord

1037
Denning, pointed out—have been considered unlawful, could become lawful.
The most reverend Primate referred to "dispensation". He said, "We do not want the procedures too tightly drawn". Surely we should not only be concerned with procedures.
The Archbishop of Canterbury: My Lords, perhaps I may interrupt the noble Lord. I said that the procedures would be tightly drawn.
Lord Renton: My Lords, I am most grateful for that interruption and correction. The most reverend Primate has helped me in a way to clarify my case. We shall have tightly drawn procedures leading to the exercise of an absolute discretion. That discretion is in no way limited. This Measure would have the effect of making the archbishops responsible for limiting the application of the law of the Church so far as concerns ordination. However great a regard one may have for each of the most reverend Primates, for all the bishops and all who may come in the years ahead, I do not think that we should turn them into law-makers, to that extent, or place on them the responsibility of limiting the application of what is a legislative provision, but so widely drawn.
I find myself in a difficulty, as your Lordships may have gathered from what I am saying. I have much sympathy with what was said by my noble friend Lord Lauderdale, but I regret that I could not accept the actual terms of his amendment. Before I came to the debate I thought that I might be able to accept them but having heard other speakers, I regret that I cannot do so.
Nevertheless I hope that for reasons other than those which my noble friend Lord Lauderdale has expressed, the Measure might be postponed or temporarily withdrawn by the most reverend Primate. I hope that he will take note of the powerful views expressed in the debate. As my noble friend Lord Nugent of Guildford said, the arguments are pretty finely balanced. I therefore hope that we may have placed before us at some future date a better defined Measure and a more limited Measure in its potential legal effect. Even trusting the great men of the Church whom we have to trust, in my view this Measure could cause sorrow among many churchgoers.
7.47 p.m.
Lord Robertson of Oakridge: My Lords, I wish to explain why, if your Lordships' House divides on the measure tonight, I shall not vote against it, as I did at the final meeting of the Ecclesiastical Committee. First, I wish to say something which I believe to be almost entirely irrelevant—that is, to say where I stand. I believe that the measure is right in intention and, if the general rule is waived only in really exceptional cases, that it will work out right in practice.
We know that God hates divorce but it also seems that in certain cases He blesses the second marriages of those people who have gone through the terrible
1038
experience of divorce. I say that my views are irrelevant because throughout the consideration of this measure I have taken the view that in my capacity as a member of the Ecclesiastical Committee and now of your Lordships' House, it is not my place to take issue with the General Synod on the interpretation of Christian doctrine. I believe that our main roles are to see that measures sent to us by the General Synod are properly drafted and do not clash with other legislation. For us to argue with the synod on matters of doctrine would be to bring into question the very existence of the synod itself.
I voted against the measure in the Ecclesiastical Commitee because there were no published guidelines as to how the archbishops, present and future, would exercise their discretion. I felt this meant that Parliament would not know what it was being asked to approve. The way was open also for the public to get the wrong idea of the measure. Certainly, some of the letters which I received from both supporters and opponents of the measure seemed to assume that its passing would result in a free-for-all. Furthermore, the ordinands affected by the measure might have been confused as to how it might apply to them. Now, however, proposed guidelines have been published. I should have preferred it had they been a little more easily available, as some of us had difficulty in getting hold of them. However, they have been read to me and I feel sure they will by no means lead to a free-for-all. As a result, I shall support the measure if your Lordships' House divides.
7.50 p.m.
Earl Waldegrave: My Lords, perhaps it is appropriate that I should speak after the noble Lord who has just spoken, as I was also a member of the Ecclesiastical Committee. The only reason I speak is because I was a member of that committee for several years. I am no lawyer of any kind. I am not a theologian, but I suppose I am the lordly equivalent of the man on the Clapham omnibus. I do not know what is the correct description of such a man. Perhaps I shall describe myself as the ordinary man in the motor car. I am the ordinary citizen going about his business, as it were.
When this measure came forward and we were asked to speak on it and consider it, we were extremely bewildered and found it a very difficult subject. That lasted for a period of over 18 months. The committee sat six times on this measure. Perhaps some noble Lords have not had time to examine the evidence contained in the red book that sets it all out. However, it is rather extraordinary that on this particular measure the committee sat first on 21st March 1988, then on 18th April 1988. At that meeting, the right reverend Prelate the Bishop of Guildford and those responsible for the measure in the synod came to explain matters to the committee. We asked them questions and they replied.
Apparently, we were still in a muddle on 16th May 1988, at a meeting which, unfortunately, I was unable to attend and at which a vote was passed by only eight to five. The committee contains 30 members, of whom only 13 attended on that day.

1039
We then met again in July 1988, when 27 members of the committee attended. At that meeting we asked for a conference, which was a very big thing to ask. We were granted a conference. On 13th February that conference was held, and 27 members of the committee attended.
On 10th April, the sixth committee meeting was held to discuss, finally, the draft of what we proposed to do after all this cogitation. The measure was considered expedient—our statutory duty consisted in deciding whether or not it was expedient—by 10 votes to nine. One of the votes was the chairman's vote. I believe that was the first time the chairman had voted at the committee meetings.
Over and over again in those committee meetings and over and over again at the very interesting and full conference that was held where the most reverend Primates the Archbishops of Canterbury and York addressed us, there was constant use of the word "unhappiness". We said, "We in the committee are very unhappy with the measure. We do not quite understand what we are supposed to do. We think we are debarred by the passing of the Worship and Doctrine Measure 1974"—I personally opposed that measure at that time—"from discussing or having a view on theological matters, as that is the duty of the synod." Those duties were passed over to the synod entirely. As I understand it, Parliament cannot deal with those matters in detail. So, what were we to do?
Many members of the committee were not lawyers, so we could not answer the finer points of Sections 7 or 8, which needed a two-thirds majority. We did not know whether that could be achieved by a simple and bare majority of those present and voting. Therefore, we puzzled out the fact that we represented the man on the Clapham omnibus. We had to consider what kind of effect the measure would have on congregations, on people who attend church and on people who do not attend church. People who do not attend church often take far more interest in criticising what goes on in church than the people who do attend church. So the committee had to decide what kind of effect the measure would have.
What effect has the measure had? It has received very wide publicity. There have been leading articles in The Times on the matter. People have said that the measure has infringed constitutional rights. I believe the noble and learned Lord, Lord Denning, must have meant that we should forget about the Worship and Doctrine Measure 1974. I believe he said that we should simply turn up the rules in the Book of Common Prayer, and that if anyone touched them it would be over his dead body.
That is the position now. I still feel unhappy about the measure. We heard a wonderful speech from the most reverend Primate the Archbishop of Canterbury, and also from the noble Lord, Lord Soper, and I am puzzled now as regards whether I shall be considered to be just going with the herd. Perhaps noble Lords will ask themselves why I attended the committee meetings and voted against the measure and yet, when it comes down to it, I jib at the fence and turn. However, I do not feel that that is the case. I believe there are very important
1040
reasons and that there is more to this than we have been told.
I was astonished by the very large number of letters we received on this matter. I am not a politician and I do not come to your Lordships' House very often. Nevertheless, I do not think I have ever received such a large quantity of mail as I did regarding this matter. I see another member of the Ecclesiastical Committee nodding his head in agreement. Certainly, no other measure over the past dozen or so years has led to the same quantity of mail as this one. Therefore, I do not feel I can support my noble friend Lord Lauderdale in asking for an adjournment and for a piece of new ecclesiastical legislation, as I understand it. On the other hand, I do not feel that I can change my mind on this.
It is a question of interpreting the extremely difficult word "expedient". What does that mean? Our chairman, the noble and learned Lord, Lord Bridge of Harwich, said he did not know what it meant. The most reverend Primate the Archbishop of Canterbury said he did not know what it meant. I must quote one thing that he said: "It certainly does not mean that you approve the measure." I quote his words verbatim from page 35 of the report:
"I never suggested that for the Ecclesiastical Committee to say that it was expedient meant they felt they had to approve of the Measure".
Well, some of us asked then, and ask now, what were we there for? That is a different matter, but I felt unhappy then as to whether it was right to say that I thought it expedient. I thought that it would stir up trouble, cause controversy, and make people unhappy. Therefore, I shall have to abstain in any vote tonight.
8 p.m.
Baroness Nicol: My Lords, at this late hour I shall try not to go over too many of the arguments which have already been put forward. However, the noble Earl who has just spoken seemed concerned about the voting figures in the committee. Therefore, perhaps we might go back to the voting figures in the synod. After all, those are the votes which really matter. The Measure gained support by a very comfortable majority. The House of Bishops cast 85 per cent. of its votes in favour; the House of Clergy cast 68 per cent. of its votes in favour; and the House of Laity, 61 per cent. As the right reverend Prelate the Bishop of Guildford said, any government returned on the basis of such figures would consider that they had a landslide majority and a mandate for whatever they cared to do. I think that we must be convinced by the figures.
The synod has chosen the road of grace, forgiveness and redemption. No member of synod, of whatever House, will have reached his decision without prayer and thought, against a background of practical experience in the field. We in this House set great store by expert opinion. A majority of the expert opinion in this case has come down in support of the Measure.
The right reverend Prelate the Bishop of Guildford was concerned that the figures he gave earlier concerning the numbers affected by the Measure were lower than appears to be the case. However,

1041
the numbers involved are irrelevant. Justice has to be absolute. It does not matter whether there are one, two or 200: the answer must be the same.
Opponents of the Measure argue that the Church must set high moral standards. They imply that by removing the present anomaly the Church is proposing a loosening of moral discipline. But the Church also has a duty to set standards of justice and mercy, and those standards are just as important. We are being asked to approve a Measure which will allow the archbishops to judge cases on their merits and to overcome the injustice of the present situation. We can be confident that they will exercise their discretion with care and restraint and after full consultation.
If we accept the proposed amendment the whole argument goes back to square one and the cruel anomaly which exists will continue through what must inevitably be a long exercise. Surely the just and compassionate way would be to approve today's Measure and for those who still oppose its provisions to continue their arguments in the General Synod. That is where the argument really belongs, not in this House. I oppose the amendment and support the Measure.
8.4 p.m.
The Earl of Halsbury: My Lords, my position is that of my old friend the noble and learned Lord, Lord Hailsham. I am a simple communicant, unconcerned, with Church government but concerned very much with the views of my fellow parishioners.
I have listened with sympathy to the exposition of the most reverend Primate and also to the right reverend Prelate, and to their hard-luck cases. I can assure them that I spent the weekend inventing scenarios for hard-luck cases which would involve injustice but no offence whatsoever if this Measure came into force.
When the noble Earl, Lord Lauderdale, invited me to take part in our proceedings this afternoon my heart sank because I felt myself quite unqualified to do so. I felt sure that most of the legalistic arguments would be over my head. Having listened to them, I find that they are. I have never seen guidelines and do not really know what I shall be voting on. My main sympathy lies with the noble Lord, Lord Renton, who feels that some offence is being given, and he would like to see both Motions withdrawn to give us time to think a little more. I do not know whether my noble and learned friend Lord Bridge spoke to the point when he said that the noble Earl, Lord Lauderdale, was not speaking to his Motion. It is not until I read Hansard tomorrow that I shall be sure.
I had hoped that the noble and learned Lord, Lord Denning, would clarify the way in which the leading article in The Times this morning should be read. I do not know what the writer had in mind, but it seemed to me that he meant that if the matter was doctrinal it must go through on the nod, but if it is a procedural fiddle it must not. I have no idea which of the two alternative ways of reading that article I should adopt.
1042
I should like to remind the most reverend Primate of the credibility gap that now exists between my friends, the simple parishioners who are unconcerned with Church government, and the politics of the synod. I ask myself whether the proposals are divisive or whether they will heal breaches that already exist in the community of Christendom. I remind the most reverend Primate that one of the cardinal virtues is patience. Perhaps we could be given a little longer to study the proposals. If both Motions were withdrawn and returned to later, that would be to the benefit of the members of the laity—my friends and fellow parishioners—who simply do not understand what the Church is up to.
8.8 p.m.
Viscount Caldecote: My Lords, I have listened with great admiration to the most sincere and moving speech by the most reverend Primate. I hope that nothing I shall say will cause him any distress, because I hold him in very high regard.
I also listened with great care and attention as I always do, to the speech of my noble and learned friend Lord Hailsham. He mentioned the need for your Lordships' House to consider the public interest in this matter. He drew a very sharp distinction between matters of the Church and of the state, those which are our business and those which are not our business. It seems to me, without any legal knowledge, that with an established Church matters of general interest to the Church must be issues with which we should be concerned. Of course it would be wrong for us to take any view against that of the synod on theological or doctrinal issues. However, in spite of what the noble and learned Lord, Lord Bridges, said, it does not seem to me that this is a wholly theological and doctrinal matter.
As I understand it, we have to determine whether the Measure is expedient. That means: is it on balance advantageous and in the national interest? For one simple reason I believe that it is not. If any great enterprise or institution is to prosper its leaders must set a good and clear example. To ordain a person who has been unable to maintain the promises made in Christian marriage or who has been involved in such difficulties but who must advocate to those whom he marries the need to maintain the vows that are made in the Christian marriage service, seems to me to put him in an impossible position. It also demeans the priesthood and weakens the influence of the Church and its reputation. Therefore, it seems unwise and likely to damage the institution of Christian marriage and the standing of the Church of England, which are both important in our national life.
As regards my noble friend's amendment, the chance of correcting the anomaly to which he refers in his amendment is extremely remote. In any case, there is a considerable difference between removing the holder of an appointment—depriving an incumbent of his benefice, in the words of the most reverend Primate—and refusing to make such an appointment—refusing to ordain a man. As my noble friend Lord Salisbury pointed out, there are

1043
many other ways of serving the Church than in the ordained ministry.
I am therefore inclined to support neither the amendment of my noble friend nor the resolution proposed by the most reverend Primate, but I shall listen carefully to their winding-up speeches and try to vote accordingly. It seems to me that this is one of the most difficult issues that we have had to consider in this House for a long time. I hope that we shall come to the right conclusion.
8.10 p.m.
Lord Harris of High Cross: My Lords, even by the usual economic standards that I try to set myself, this will be a suitably brief contribution to the debate from a struggling and, I feel, sometimes almost fugitive member of the Church of England. After the many excellent and conscientious speeches, I am unable to add new arguments, but can only echo the anxieties that have been expressed by my noble and learned friend Lord Denning, the noble Lord, Lord Renton, and the noble Earl, Lord Lauderdale.
The noble Baroness, Lady Seear, made light—as it is very easy to do—of the emphasis upon sexual offences which, after all, are a most particular challenge to the stability of the family and a sin against which many people have struggled, not always with great success. Those of us who have enjoyed, or even endured, a marriage of three, four or more decades must acknowledge that the continuing success owes something to good fortune as well as to merit and perhaps to prayer and grace. I find that one trial of advancing age is to witness the break-up of marriages of friends and family where the apportionment of blame seems not only fruitless but difficult or impossible. Yet divorce must still be generally acknowledged as a human failure that reflects the fallen nature which we all share and which demonstrates how even thoughtful, highly intelligent people seem incapable of acting far-sightedly in their own best interests, to say nothing of the interests of their spouses or offspring.
I would honestly say, as a provisional view that I shall continue to ponder, that I should prefer a repentant murderer as a candidate for ordination, to give a most spectacular example of turning from evil to witness to the Lord's forgiveness. Unlike one speaker, I must humbly admit that I and many people to whom I speak wish to look up to their minister. For the high calling of a priest, it seems to me not improper that we should seek the highest standard of conduct, not least as an example to us lesser men and women. Of course, we do not seek perfection, but we must set some limits and make some judgment about the extent and kind of failure that is easily tolerable.
I have no doubt that there are cases of divorce—to which reference has been made from the Bishops' Bench—where no personal blame or failure can reasonably be levelled at either party; yet this is a very practical matter. If a divorced man is to be ordained and licensed to conduct marriage services, it is impossible to doubt that, for weaker mortals, it may encourage a less rigorous view of holy matrimony as ideally indissoluble.
1044
I speak as something of a refugee from my local church where the Book of Common Prayer has been banished to the occasional fifth Sunday in the month. I speak for many who do not invariably find that synod reflects the views of ordinary people, especially about the rate at which change is forced upon the great mass of ordinary parishioners. With the greatest respect, I am not surprised that the great and the good—so amply represented in this House—take a more lenient view of matrimonial breakdown. It is a civilised approach to adopt, but I think that the most reverend Primate and the right reverend Prelates on the Bishops' Bench must allow for the widespread unease outside this place with which many simple Anglicans, and many outside our communion, will regard this apparent relaxation of standards. At the very least, I ask that the greatest possible emphasis be placed upon the exceptional nature of the cases that will qualify for possible exercise of discretion by the two archbishops. Indeed, in proportion, as they trumpet the exceptions, they may draw attention to our united claim that Christian marriage should be indissoluble.
8.16 p.m.
Lord Beaumont of Whitley: My Lords, as this debate draws towards its close, I feel like one of those fish who sees being trailed across the water over its head a fishing line baited at intervals with luscious looking baits and hooks. I shall attempt not to seize any of those lures.
We were invited by the noble Earl, Lord Lauderdale, to talk about the priesthood and the priesthood being tampered with. As one of the two parish priests in the House, I should be delighted to debate that subject with him at any time, if that was what the debate was about. The noble Marquess, Lord Salisbury, lured us with the suggestion that the debate was about adultery, a subject that a great many people like to talk about ad nauseam. But, when we reached those subjects which the debate was about, it seemed to me that the major arguments for the amendment were fairly rapidly destroyed. The noble and learned Lord, Lord Bridge, destroyed the argument about the two-thirds majority. The noble and learned Lord, Lord Hailsham, destroyed the argument that the Measure allows the ordination of oath breakers and those who condone oath breakers.
There were other temptations. Behind it all seemed to be a platonic idea that there is such a thing as a platonic marriage which lasts forever and which is laid down from the beginning of the world to the end. I seem to remember that Jesus was asked a question about that and about a woman who had been married seven times. His response was, in effect, "not to be silly".
If we are talking to the subject of the debate, we are talking about a Motion to adjourn indefinitely a Measure brought forward, completely properly, by the synod of the Church of England and its spokesmen in the House. The aim of the amendment for which we are asked to vote is one which almost every speaker has agreed cannot, in the terms laid down, be achieved. If I may say so with due respect, the idea that we need to delay also seems to me to

1045
be absurd. Time and again we have heard of the number of times that the Ecclesiastical Committee has met and the number of times that this issue has been through synod. There are injustices here which are long overdue.
I should like to close my remarks with one further observation. The main point is that this measure has been brought forward properly by the Church, with the requisite majorities, as part of the settlement that now exists between Church and state and there is no reason why we should not pass it.
There is one more minor point to make. Several times the objection has been raised that much of this is management by exception; we should have rigid rules to which we can stick. As a very minor pastor in the Church, perhaps I may say that that seems to me to be the reverse of all the "pastoralia" which should happen in the churches. We deal always with individual people and individual problems. Any blanket laws which allow for no exceptions are almost certainly bad laws and un-Christian laws, in that they do not consider how we should deal with people as their pastors and counsellors within the Christian Church.
8.21 p.m.
Lord Teviot: My Lords, my only qualification for speaking in this debate is that I have had the privilege of serving for many years on the joint parliamentary Ecclesiastical Committee. My only regret is that I did not speak then as strongly for this measure as I shall do now. The reason why I did not speak strongly then was that I did not wish to prolong the agony. After listening to so many speakers I always hoped that the proceedings would soon finish. That may be regarded by your Lordships, justifiably perhaps, as a feeble excuse.
This measure has been long debated in synod in all the houses of that body, not only in the General Synod but in the diocesan synods as well. The General Synod presented us with this measure which is a mild measure, well thought out and supported by many safeguards. Noble Lords are addressing themselves, one hopes, to a law which will allow to become priests people who have either had the misfortune to have a broken marriage or have been married to someone who has had a broken marriage. Neither of those misfortunes can diminish their faith or their ability to minster religion with conviction. Surely such sad events cannot commit them to a lifelong sentence of non-opportunity in administering churchmanship. These people who seek the opportunity to become priests must somewhere along the line have repented, if they needed to repent, and thus have been forgiven.
In my humble opinion the Church of England has changed over the years for the better, and the clergy have come much more into line with present day life. There seems to be a new stimulus. During the past 20 years I have lived in two parishes and have been impressed by the way in which the two incumbents have looked after their parishioners. When I go to church I come out feeling better for it.
Returning to this measure, I must also say that I have been impressed by very genuine letters received
1046
from the victims—if one can call them such—although letters are not in themselves confirmation that the people who have written them are in the right. But that is not my concern; neither, frankly is it the concern of your Lordships. It is a matter for the diocese itself: its parson, archdeacon, bishop and—if that is not enough—its provincial bishop, the archbishop who finally approves the nominations. Surely that is the greatest safeguard.
I now turn to the synod itself. There are deanery synods which comprise a few parishes whose representatives come from the parochial church councils. Above them are the diocesan synods which represent the deanery synods. Ultimately there is the elected General Synod. We have heard the way in which the General Synod voted in all three houses: the House of Bishops, the House of Clergy and the House of Laity. In voting, they all came to the conclusion that this measure was correct. All the people whom I have mentioned were democratically elected and all of them are churchmen.
In my opinion, Parliament should think the same. The joint parliamentary Ecclesiastical Committee confirmed by one vote that this measure was expedient. That was the right decision. On what is essentially a doctrinal matter of the Church that has been deliberated upon and much considered, who are we even to contemplate reversing that decision? It would be a very grave step should Parliament oppose a decision which not only makes sense but denies Christians the opportunity to be guided by those whom their bishops and archbishops have seen fit to ordain.
I very much hope that the House will disapprove of the Motion of my noble friend Lord Lauderdale and approve the Motion in the name of the most reverend Primate the Archbishop of Canterbury.
8.26 p.m.
Lord Williams of Elvel: My Lords, your Lordships will notice that on the list of speakers my name appears above the gap rather than below it. It is our normal practice that if there is an Opposition spokesman to wind up, he should come below the gap. The reason for the change is that as I understand it the Government have no speaker and take no view. There is a gap made so that the noble Earl, Lord Arran, who is prepared to speak if necessary, can explain that the Government have no view on this matter; but I shall not ask what is the Government's view and thus alleviate any anxiety that the noble Earl may feel on that point.
Nonetheless, there are one or two points that I should like to make from this Dispatch Box. First, we on these Benches do not feel that this measure is a matter that should provoke a confrontation between Church and state. We shall therefore vote against the Motion of the noble Earl, Lord Lauderdale, and in favour of the Motion of the most reverend Primate the Archbishop of Canterbury. I say that because this is a matter which has aroused considerable controversy with my colleagues on these Benches. I wished to express that in the most forthright manner immediately when I rose to speak.
Having said that, I shall now speak personally about the measure. A number of noble Lords have

1047
observed that we should not be debating theology, and I agree with them; and that we should not be debating the legality of the measure, and I personally agree with that. Certainly I would not wish to dispute theology with the most reverend Primate; nor would I wish to dispute legality with the chairman of the Ecclesiastical Committee, the noble and learned Lord, Lord Bridge of Harwich. I only say to the noble and learned Lord that I wish that he had given such a clear definition of "expediency" to the Ecclesiastical Committee during its deliberations as he gave today. I think that it might have saved a great deal of discussion.
Nevertheless, when I say that I shall go into the Lobby with the most reverend Primate, I do so with a certain amount of regret. I do not propose to establish my credentials as a lay communicant. They are like those of other noble Lords who have spoken: those of an ordinary member of the Church of England. I want to discuss two points. The first is whether the measure, in introducing changes to the canon law, does not create certain anomalies in place of the anomaly that it is designed to correct. The second point concerns whether this is the message that the Church of England wishes to send out about the nature of the priesthood of the Church. I shall couch this discussion in the form of questions to the most reverend Primate, if I may, because on this occasion I certainly do not wish to be provocative.
We have to remember that we are dealing with a measure for candidates for ordination, not with the general lay position. The Lichfield Commission reported on the Christian doctrine of marriage and the marriage discipline in the Church of England in 1978. The central recommendation was that the Church of England should revise its regulations to permit a divorced person, with the permission of the bishop, to be married in church in the lifetime of a former partner. That was the central recommendation of the Lichfield Commission regarding the laity. This recommendation has not been acted upon. The Church of England has been deliberating on it for over 10 years. The Lichfield Commission also drew attention to such matters as the problem of ordinands which the measure addresses. The measure proposed by synod and proposed by the most reverend Primate today seeks to alleviate that position.
I ask this question of the most reverend Primate. Is it right that the general specific recommendation of the Lichfield Commission with regard to the laity should not be followed through by the Church, but a minor point which was raised by the Lichfield Commission in respect of ordinands should be followed through by the Church? If that is right, does it not raise another curious anomaly: that, if the measure is accepted and achieves Royal Assent, an ordinand may be approved by the bishop for ordination. He may then administer the Sacrament of Holy Communion, for instance, to lay members of the Church of England who themselves, because the matter is somewhat in doubt, are not entitled to the same privilege as the ordinand has received in obtaining approval for his ordination from the bishop. In other words, if one regards ordination, as I do, as a very special sacramental ceremony, the
1048
ordinand—re-married as he may be under the same circumstances as a lay person—can administer sacraments to someone who may be prohibited because of re-marriage, from being re-married in the Church of England. I understand that it is discretionary in the Church. It is a possible contradiction. I should be grateful if the most reverend Primate could comment on that.
There is also the problem of the anomaly which may arise between ordinands who are accepted on the principle of the measure—assuming that it goes into canon law—and existing incumbents of benefices. This matter was discussed by the noble and learned Lord, Lord Bridge of Harwich, and figured in the discussions of the Lichfield Commission. I join with the noble Earl, Lord Lauderdale. It seems odd that there can be come dispensation for ordinands and prospective ordinands in the Church of England, while beneficed clergymen—as opposed to clergymen waiting for institution, as was discussed in the committee—should have to be taken before some ecclesiastical court and convicted of some offence before they can be deprived of their benefice. There is a discretion on the bishop for an ordinand or prospective ordinand. There is no discretion in the case of a bishop for a beneficed clergyman. As I understand it, he has to be convicted of an ecclesiastical offence in order to be deprived of his benefice. The question arises—and I join with the noble Earl, Lord Lauderdale, in asking this—why is the procedure different? Should not the Church be looking at that problem?
The last anomaly that I should like to raise—and it may not be an anomaly, but a difficulty—is this. There is a clear ecclesiastical offence, as defined in the Ecclesiastical Jurisdiction Measure 1963, of any breach of canon law. Canon B.30, paragraph 1, sets out the Church's doctrine of marriage as a permanent and lifelong union. This is a point that the noble and learned Lord, Lord Denning, made. Canon B.30, paragraph 3, requires the minister to explain that doctrine to the intending parties of a marriage in church. Canon C.26 requires a minister,
"to frame and fashion his life according to the doctrine of Christ, and to make himself and them, so far as in him lies, wholesome examples and patterns to the flock of Christ".
I ask the most reverend Primate: is it not the case that any ordained priest or deacon who re-marries while the previous partner is alive must prima facie be regarded as having breached at least two of the canons to which I have referred. Breach of canon law is an ecclesiastical offence and can give rise to deprivation. I ask the most reverend Primate to explain to me, as a layman, how all this will add up in terms of the application of canon law?
My second question of the most reverend Primate is this. What signals does the Church of England wish to give to the public at large about the priesthood? I do not want to become involved in what I call the Lauderdale versus Seear argument as to whether we look up to, across at or even down on our clergy. However, there can be no doubt that the clergy of the Church of England have had a rather bad press, I should think since the Reformation. The Bishop of Barchester is par for the course, or the vicar in

1049
the TV sit-corn. We have seen this far too often. Is it not time that the Church of England started to improve its public relations? On a serious note, in doing so, a reversion to the doctrine that the noble Earl, Lord Lauderdale, was seeking when he made his opening speech of more of a convinced priesthood, more of what my father used to call a priesthood militant, would be more acceptable to what the noble Lord, Lord Harris of High Cross, referred to—and I think rightly—as the general lay opinion of the Church of England. That is not simply the laity who are elected to diocesan or General Synod, but those who are not. If the views of people who do not become elected to the diocesan or General Synod are consistent with the doctrine of the Church of England, I wonder why we cannot achieve such aim.
I have a certain sympathy with the view expressed by the noble Lord, Lord Renton, and the noble Earl, Lord Halsbury, and others, that while the measure is undoubtedly a modest one, as the right reverend Prelate the Bishop of Guildford, said, it may lead us down a path that the Church does not wish to go. I offer that as my personal comment.
I come back to where I started. We shall support the most reverend Primate if the matter goes to the Division Lobby because we believe that on this occasion that is the right thing to do.
8.38 p.m.
Baroness Strange: My Lords, I apologise to noble Lords for jumping into the gap. I am not speaking for the Government or for the great and the good. I speak only as a very ordinary lay person. I wish to make only one point.
The sanctity of Christian marriage is one of the great bulwarks of our civilisation. Anyone married in church makes a vow before God to stay married until death. None of us is perfect. All marriages have ups and downs. Some of the downs can even sink a marriage although we all try to keep afloat. It seems unfair to any human being whose marriage, for whatever reason, has already collapsed to be asked to preach the sanctity and permanence of Christian marriage to others. It is not a question of he without sin casting the first stone. It is not a question of people in glass houses not throwing stones. It is simply that it is better not to build one's glass house in a stone-throwing area. I beg the most reverend Primate and my noble friend both to withdraw their Motions to give us all breathing space and time.
8.40 p.m.
Viscount Buckmaster: My Lords, I shall be one minute only, but I wish strongly to support my noble kinsman Lord Lauderdale. I feel strongly about this. At the moment one marriage in three ends in divorce. If this measure is accepted it will strengthen the all too widespread feeling in this country that divorce is acceptable. For reasons which have been advanced by many speakers this evening, I feel that we should do all we can to oppose this great landslide of divorce which is disturbing so many people in this country.
8.41 p.m.
The Archbishop of Canterbury: My Lords, I have listened with very great care to what has been said in the debate. I am deeply grateful for the many thoughtful contributions that have been made, for the depth of feeling that has been evident, not least in the last two interventions, and for what I have been glad to find here: a universal desire that we should do all we can to uphold and support the institution of marriage. That is not a question which is at any issue in the minds, in the teaching and in the example of those who bring forward this measure to the House.
I hope that your Lordships will forgive me if I do not comment on every speech that has been made. In the first place, I am an irregular attender here and therefore do not have the dexterity of others on the Front Bench on which I am privileged to sit. I shall try to comment on a few as I go along, not forgetting the noble Lord, Lord Williams, at whose father's feet I once sat in order to learn the elements of moral theology.
I should like first to thank the noble Earl, Lord Lauderdale, for the generosity with which he spoke in introducing his amendment, particularly for the personal feelings (which I reciprocate) of respect for his own convictions and witness. I, too, believe that the priesthood should be for those of prayer and piety and conviction, that they have a representative role. However, I wish to give space to what the noble Baroness, Lady Seear, spoke about in recognising that blend of humanity and holiness which is the mark of the Pastor Supreme, particularly perhaps an ideal which has been attempted and cultivated and aimed at by our own Church of England, with its attempt to combine personal convictions with the widest possible scope of a teaching and pastoral ministry. I apologise to him and to others if there has been any breakdown in the procedures by which noble Lords might be able to read the directions which I, along with the Archbishop of York, have given to the bishops at the recent House of Bishops. We gave these guidelines on how we should exercise our discretion.
The noble Lord, Lord Renton, and others have spoken about the uncertainty attendant upon the way in which we should exercise that discretion, but I have to remind your Lordships that, when it comes to ordination, it is inherent in the office of a bishop that he has absolute discretion as to whom he will or will not ordain. In many fields of clergy discipline, particularly those relating to clergy already in post, a great deal of discretion lies with the bishop. It was the especial desire of the General Synod that, if there were to be any exceptions, the strictest way to proceed would be by way of a procedure within the diocese that would ultimately go to the archishops for the exercise of their discretion. We have made available very clear guidelines which we would employ and which I reckon would quickly filter out some of the cases that have been mentioned here, where they would fall because they could not possibly justify the kind of exceptions that I. have talked about.
Where I found that the noble Earl, Lord Lauderdale, did not pursue the terms of his

1051
amendment was in dealing with how we should correct the injustice, which I believe we all recognise, by going the other way; that is, making it harder for clergy whose marital status is irregular, rather than easier for ordinands. That is the amendment proposed and, frankly, I have not heard many arguments in favour of that as correcting the injustice that already exists.
It has been argued in general terms that this measure constitutes a further surrender to the times, a further lowering of Church discipline. That was put before us in a characteristically robust contribution from the noble and learned Lord, Lord Denning, whose presence in the House I so much welcome. It is his first appearance since his 90th birthday.
Noble Lords: Hear, hear!
The Archbishop of Canterbury: My Lords, I am sorry we are not in wholehearted agreement on this issue because I should like to assure him that I, too, am a lover of the Book of Common Prayer and intend that it shall not die within our nation. I, too, can subscribe to every article of the Creed and assure your Lordships that it is not in danger in the teaching of our Church. I, too, believe in the sanctity of marriage, but I do not believe that we need any alteration to the ordinal or the Book of Common Prayer in the passage of this measure. That has been explained to us particularly by the noble and learned Lord, Lord Bridge, and by the noble and learned Lord, Lord Hailsham.
On the general question which worries people, the truth is that the reason for easier divorce is not the failure of the Church to teach the Christian doctrine of marriage. There are many and very complex reasons. The noble and learned Lord, Lord Hailsham, was particularly helpful in talking to us from his great experience about the secularisation of marriage which has taken place in the laws of our country. It means that the kind of argument which depends upon the Church as a sacrament cannot be sustained. The doctrine of indissolubility is one that is held and based upon the idea of marriage as a sacrament. If you are going to deal with exceptions to rules which depend upon that then you must have a complex apparatus of nullity procedures. That is what the Roman Catholic Church has and I respect what it has done and is doing in that area. However, it is not the Anglican way.
The noble Marquess, Lord Salisbury, talked about Matthew, Chapter 19. That is only one in a complex of quotations from the scriptures which make it clear that, as I said earlier, our Lord was providing insight—marriage is for ever—and challenge. He was not legislating for an institution.
I do not believe that this measure is a challenge to fundamental doctrine. It is a response to failure in moral achievement. This is serious but our ordinal is realistic. Candidates for the priesthood are asked to make themselves and their families, as much as in them lieth, wholesome examples and patterns to the flock of Christ.
The measure has attracted wide publicity. I fear that instead of it being a measure concerned simply with the discipline of the clergy it has often been
1052
elevated into an issue which concerns whether one believes in divorce or that divorce is always impossible. But to be fair I believe that the Lord Himself was misrepresented for so-called "laxity":
"The Sabbath was made for man, not man for the Sabbath."
"Neither do I condemn you … go and sin no more".
We recognise that the Church of England does not have a tradition of regulating dispensations by canonical procedures. But we have a good record of attempting to witness to fundamental principles within a broad pastoral outreach. We believe that ordinands and clergy deserve pastoral support. A pastoral approach calls for fairness and trust. That is why we hope that Parliament will give us the support for this carefully considered measure. It is being brought forward in the conviction that the present rigid rule is unjustified in principle, is likely to work unfairly in individual cases and does a disservice to the Church as a whole because it unnecessarily turns away some who would serve the Church well. I plea that the support for this measure—which comes from the bishops and principals of theological college and parish priests as well as lay people—comes mainly from those who are in touch with the pastoral realities and with individual cases. I think that that is an important influence on me: the extent to which it is the background of those people who are speaking in favour of the measure because it comes from areas of experience.
I turn to deal with the points made by the noble Lord, Lord Williams. He talked of the inconsistency between refusing to legislate for the remarriage of divorced persons in church and yet carrying forward this measure. In my opening speech I tried to make the point that the two questions, although related, are distinct. It has been more difficult to win acceptance for remarriage in church because the marriage service is a witness to the Christian belief in marriage. That would be undermined by using the same service twice. On the other hand, the ordination service is not one of witness to marriage precisely but is particularly a witness to the ability of God to call sinful, fragile, forgiven human beings to his service.
The noble Lord, Lord Williams, spoke of the difficulties about the guidelines and about the injustice which may exist in the treatment of those in post, because they are subject to the ecclesiastical jurisdiction measure, and those who are putting themselves forward for ordination. I believe that in some measure that has been tidied up by the benefices measure which came into force on 1st January this year. It gives to the bishop a discretion over his institution of a clergyman to a living. I do not say that all matters have been cleared up but I say that that is a point in favour of the measure. It will move us into greater consistency between the treatment of clergy in post and those who are putting themselves forward for ordination.
Finally, I depend very much on the noble and learned Lord, Lord Bridge, and the noble and learned Lord, Lord Hailsham, for what they say about the significance of the measure in dealing with the relationship between Church and State. It seems to me that the scope of the law is designed to ensure

1053
that Parliament safeguards the constitutional rights of the subject and ensures that there is no conflict with the general law. I am glad that they have been able to clarify that for us and I hope that we shall feel able to follow them.
What we desire and ask is an opportunity for those who believe that they have a vocation to Holy Orders, but are at present canonically debarred, to have their circumstances considered and to have at least the possibility of an archbishop's dispensation. I believe that to pass the amendment would accentuate the injustice, would be unacceptable to the majority of Church people and would never possibly win the support of the synod.
If one wanted to create something divisive, this is the way to go. To go our way would be to confirm what the majority of the synod has been saying for a good number of years. Anybody interested in the debate could have tuned into it years ago. We believe that this is the way, not only of mercy but of justice; a way which would accord with the gospel and serve the wellbeing of the Church.
9 p.m.
The Earl of Lauderdale: My Lords, I am sure that all noble Lords are grateful to the most reverend Primate and also the right reverend Prelate the Bishop of Guildford for their exposition of this matter, which has certainly been constructive and, if I may say so as a layman, done with great pastoral gentleness for those of us who are rather stupid and slow in the uptake.
There is no doubt that the establishment, whether as the Church or of the usual channels of this House, was taken by surprise at the amount of interest which was generated in this debate, lifting it from a mere dinner hour affair to be disposed of on the nod with half a dozen or a dozen noble Lords present. I hope that I shall get credit from the most reverend Primate and the right reverend Prelate the Bishop of Guildford for at least having gathered them a congregation. The best part of 100 Peers have listened to the debate. There are about 70 Peers in the Chamber at this moment, and this at nine o'clock at night for what was expected to go through on the nod in the dinner hour. That is a considerable achievement and I hope that I shall at least get credit for that.
Throughout the debate there have been certain underlying trends. When we read of unemployment
1054
figures we are always told what unemployment was and what was the underlying trend. One trend is clear: that everyone in all quarters of the House recoils from the spectre of a clash between Church and state at any time, particularly on a measure of this scope.
On the other hand, attention has been drawn to contradictions between civil and canon law which are causing anxiety in many quarters. Several noble Lords have pleaded for delay or for patience. It is not for me to comment on that matter, but there is an underlying anxiety. My noble friend Lord Halsbury referred to a credibility gap between the pew and the synod. I am reminded, although I cannot think in what connection, that since the end of the last war there have been occasions when governments have been in power for quite a long time with quite a large majority and have been accused of getting out of touch with the electors. That is commonly said—no names, no pack drill—about governments of both persuasions. I wonder whether there is a certain analogy between the synod and the pew. The members of the synod, splendid godly people as they are, give time and trouble to working at the nitty-gritty of Church government. Inevitably they focus attention on those matters and may well become somewhat distanced, at any rate psychologically, from the ordinary people, of whom a number have spoken today.
There has arisen from this debate a certain note—I will not be so presumptuous as to say a note of warning—but a plea to the episcopate: please, please, please, listen to the inarticulate, stupid, slow-on-the-uptake Back-Bench pew men who sometimes have an anxiety which is not always as quickly recognised in the synod as they would wish. One again thinks of electors who complain at not being properly listened to in Parliament. This analogy of a distance between Parliament and people is purely imaginary. I have no particular case in mind. Having drawn that analogy and drawn attention to what I suspect are real anxieties at large, I hope that tonight's debate will be thought to have been constructive and godly. In that sense, and in that spirit, I beg your Lordships' leave to withdraw my Motion.
Amendment to the Motion, by leave, withdrawn.
On Question, Motion agreed to.
House adjourned at six minutes past nine o'clock.