Lords Sitting of 20 March 1990

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

Council House Rents
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What action they will take to mitigate the effects of the substantial rises in council house rents recently proposed by certain local authorities.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, housing revenue account subsidy ensures that rents can stay within the reach of council tenants. It is for local authorities to determine their own levels. Rent rebates give assistance to those who need it, and for tenants receiving rebate any increase in rent is fully rebated.
Lord Dean of Beswick: My Lords, I thank the Minister for that Answer. Would he care to tell us why three of the highest rent increases have been levied, totally against the Government's recommendations, by Conservative authorities such as Redbridge? That borough will levy a rent increase of £ 15 per week. Reigate will levy £ 9 per week and another borough will levy an increase of £ 7 per week. These increases are totally against the Government's wishes. Can the Minister tell us why these authorities have levied such tremendous increases? Will the increases qualify in full for housing benefit?
Lord Hesketh: My Lords, I shall answer first the last part of the question of the noble Lord, Lord Dean. Those in receipt of rebate will continue to receive it, whatever the increase. However, I should also point out to the noble Lord that even though he introduced examples of Conservative authorities, many times from this Dispatch Box I am accused, for the Government, of interfering with local authorities. It is not for the Government to interfere but for the electorate to decide.
Lord Stallard: My Lords, is the noble Lord aware of the further example of the city of Canterbury? It has announced an increase of 54-69 per cent. which raises the average rent of £ 22 to £ 34 per week. How does the Minister justify that for people who do not receive rent rebate?
Lord Hesketh: My Lords, we face the perennial problem at the Dispatch Box that the decision has been reached by a locally elected authority. I am constantly berated for the Government interfering with local authorities. This is something which the local authority must address to its tenants and electors.
Lord Stallard: My Lords, is it not a direct result of government interference in the form of the Local Government Act 1988?
Viscount Massereene and Ferrard: My Lords, does the noble Lord agree that the city of Canterbury is in a unique position? It has to pay for the roads within its boundaries and other facilities in order to attract tourists. I am sure that the noble Lord will agree with me that it is not an ordinary city.
Lord Hesketh: My Lords, I am sure that all in your Lordships' House agree that Canterbury is a unique city in our country. However, I must repeat what I said earlier— that two facts are important. First, those in receipt of rebate will not be affected by the increase. Secondly, it is a matter for the local authority to set the level of rent.
Lord Tordoff: My Lords, will the noble Lord take the time to answer the last question by the noble Lord, Lord Stallard?
Lord Hesketh: My Lords, with great respect, I believe that I have answered it in the reply that I have just given.
Lord Stoddart of Swindon: My Lords, can the noble Lord say how these government-imposed swingeing rent increases help the Government's fight against inflation?
Lord Hesketh: My Lords, I do not think that it is fair to describe these as swingeing increases. There are many examples of authorities which have set the levels of rent below the guideline given by the Government. It is important to remember that the average council rent in the country is based on £ 22 per week.
Lord Gisborough: My Lords, can my noble friend say to what extent rent rises are influenced by the rent arrears in certain districts?
Lord Hesketh: My Lords, it is possible, I suppose, to extrapolate debt through to rent arrears. However, the department does not have the figures that specifically connect the two. There is a very wide range. If one examines the London area, the arrears vary from 47 per cent. in Brent to 24 per cent. in Hackney. I believe that my noble friend comes from the North-East. He will be interested to know that of the five lowest authorities, Durham's rent arrears are only 0.6 per cent.
Lord Monkswell: My Lords, we have been given the answer that the Government will not intervene where large rises in council house rents have been proposed by local authorities because they do not agree with interfering in local government. Will they make a statement now that they will not cap local authorities in connection with the poll tax if those authorities have levied a community charge to pay for local services?
Lord Hesketh: My Lords, I am sure that the noble Lord will not be surprised that I am not willing to

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make the commitment he requires. I can assure your Lordships that for three-quarters of all authorities the new suggested rents will exceed the guidelines only by 3 per cent.
Lord Orr-Ewing: My Lords, can my noble friend say whether he has worked out how much local income tax would cost if it were put forward by the Opposition? How much would the roof tax cost if that were put on by the Opposition in accordance with its policies?
Lord Hesketh: My Lords, I believe that the Government will have to wait to see the Opposition's proposals in order to provide a reply to that question.
Lord McIntosh of Haringey: My Lords, the Minister is again sheltering behind the pretence that the Government do not intervene in the finances of local authorities. Will he not now acknowledge, as my noble friend Lord Stallard challenged him to, that it is the Local Government Finance Act 1988 and the two housing Acts which have caused these vast increases in local authority rents? It is not interference in any individual local authority which is required but interference to restore the level of government support for affordable rents.
Lord Hesketh: My Lords, it is important to remember that we have in this country housing benefit. The fact that the Government have asked authorities to recognise the value of their property and the fact that we ring-fence the housing revenue account does not mean that we are imposing a policy in order to charge more and more rent. It is important to remember that within the calculations reached by the Department of the Environment there is a factor for damping in order to protect.
Baroness Fisher of Rednal: My Lords, will the Minister tell the House what the total cost of housing benefit will be now that the Government have forced local authorities to increase rents?
Lord Hesketh: My Lords, I do not have that figure available today, the reason being that the year has not finished.
Lord Dean of Beswick: My Lords, is the Minister aware that there is a strong feeling abroad in the borough of Redbridge that the £ 15 a week increase has been deliberately levied because when the tenants of the council estates in Redbridge were balloted on the matter of privatisation they voted to stay with the local authority? The feeling is abroad that this is the Conservative local authority's way of punishing them. Will the Minister give an undertaking that any surpluses that accrue to the housing revenue account because of the substantial increases will not be used next year by these authorities to levy an artificially low poll tax?
Lord Hesketh: My Lords, if the noble Lord is referring to a surplus in rebate, I can assure him that from the department's point of view that is seen only
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in regard to public housing and not in terms of a cross-subsidy to the community charge.
Lord Mackie of Benshie: My Lords, does the Minister agree that council house tenants are not suffering nearly as much as those people the Government have persuaded to buy their houses?
Lord Hesketh: My Lords, I believe that that question is rather wide of the one on the Order Paper.
Lord McIntosh of Haringey: My Lords, in an earlier reply the Minister claimed that the Government do not intervene in the ring-fencing of the housing revenue account. Is it not a fact that rent arrears are not paid for by ratepayers as a whole but are paid for only by those council tenants who pay their rents on time?
Lord Hesketh: My Lords, I do not believe that is the case because in the final analysis all adjustments are paid for by all council tenants and all taxpayers.

Dental Checkups
2.47 p.m.
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
How many people have attended dental checkups in the year since the introduction of charges; and how this compares with the previous year.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, it is not possible to provide this information in the precise form requested by the noble Baroness. The figures we have show that for England and Wales the total number of examinations for which fees were scheduled in the middle quarters of 1989 was 15.2 million compared with 15.4 million in the corresponding period in 1988.
Baroness Nicol: My Lords, I thank the Minister for that Answer. Is she familiar with the survey that has recently been published by the Consumers' Association which shows very clearly that in the past year there has been a decrease in people paying dental visits? The people themselves say that that is because of higher charges and check-up fees. In view of the Government's commitment to preventive medicine, will they not reconsider the question of charges for checkups?
Baroness Hooper: My Lords, the article in Which? magazine to which the noble Baroness refers reports that one in six people were put off going for checkups in 1989. On that basis we would expect to see a fall in the statistics of about 17 per cent. However, according to the statistics we have, that has definitely not happened. The dip in figures is about 6 per cent. We do not accept that that is a long-term trend.
Lord Gainford: My Lords, has my noble friend any information to show whether any dropping off that

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has occurred recently with regard to people visiting national health dentists is a result of a possible surge in attendances in order to take advantage of the prices that existed before the recent increase?
Baroness Hooper: My Lords, I think that my noble friend is perhaps seeking to make a comparison with the sight test charges. We cannot make a direct comparison there because people do not have their eyes tested as frequently as they visit the dentists. The evidence we have of the overall trend year on year is of a slight increase. As I have said, although we recognise there has been a slight dip we do not accept that it is a long-term trend.
Lord Molloy: My Lords, is the noble Baroness aware that the figures she has given do not mean much to dental surgeons and other practitioners involved in dentistry? They are concerned about the long-term effects and what will happen to people who should have visited the dentist three years ago to have their teeth examined but who have not bothered because of the charges. Is the Minister prepared to consider that aspect of the matter as well?
Baroness Hooper: My Lords, we are confident that most people accept the general principle that it is right for those who can afford to do so to pay a small amount for the care of their teeth. It must also be remembered in that context that for 40 per cent. of patients all National Health Service treatment is completely free— for example, for young people under 18, students, pregnant women and those receiving income support. As I said, we do not accept that a long-term trend has been established. We believe that the proposals in the new dentists' contract will also contribute to improving vastly the service that is being offered.
Lord Ennals: My Lords, can the Minister explain why the figures that she gave were so different from the figures given by her honourable friend Mr. Freeman in another place on 20th February, which showed a fall from 7-9 million examinations to 7-4 million examinations? Can she explain why there were half a million fewer examinations than before the charges were introduced? Will she also say what she thinks of the views of the dentists themselves and the BDA that people are waiting until they have trouble with their teeth before going for an examination? Finally, can she give an assurance that in April we shall not see a further increase in examination charges?
Baroness Hooper: My Lords, the figures that I quoted represented the two middle quarters of last year. The figures quoted by my honourable friend, which the noble Lord has mentioned, are those for the final quarter of last year. The diminution from 7-9 to 7-4 million took place in the final quarter of last year. The figures differ from those quoted by the noble Baroness because our records show when dentists were paid for check-ups, which is usually some time after the check-ups took place.
Lord Ennals: My Lords, is the Minister really saying that the figures that were quoted in another place, which showed a reduction of half a million examinations, were the most recent figures, although she gave different figures which showed a much smaller reduction? Why?
Baroness Hooper: My Lords, the noble Lord can be happy because he now has all the figures before him.
Baroness Nicol: My Lords, instead of juggling the figures can we not accept the word of 40 per cent. of dentists interviewed who said that the number of patients attending their surgeries has decreased dramatically? Can we not also accept that the patients themselves say that that is because of higher charges and check-up fees?
Baroness Hooper: My Lords, I cannot accept that the slight dip that has been indicated by our figures represents a dramatic decrease.
Lord Molloy: My Lords, is the noble Baroness aware that she has not answered my question? Will she please consider speaking to the British Dental Association in order to get the facts straight so that the right action can be taken?
Baroness Hooper: My Lords, we are frequently in consultation with the representatives of the dentists and their various professional bodies. That is particularly so in the case of the new contracts which are proposed for dentists and which we believe will introduce very important changes to the benefit of patients.

Interest Rates and Inflation
2.53 p.m.
Lord Dormand of Easington Lord Dormand of Easington: asked Her Majesty's Government:
What effect the present level of interest rates is having on the rate of inflation.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, the contribution of the mortgage interest payments component to the annual rate of increase in the retail prices index in January was 1.9 percentage points.
Lord Dormand of Easington: My Lords, does the Minister recall the many occasions on which we have been informed that the main objective of high interest rates is to curb consumer spending? In view of the most recent official figures on this matter, which show that consumer spending continues to rise at a fairly high rate after 18 months of high interest rates, does not the Minister now agree that using only interest rates is an abject failure?
Lord Henley: No, my Lords, I do not agree. I accept that the inclusion of the mortgage interest

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payments in the RPI leads to the perverse result of increased interest rates pushing up the RPI in the short term. However, in the long term a tight monetary policy will bring inflation down.
Lord Bruce of Donington: My Lords, will the noble Lord give the House an indication as to what he means by "long term?" Will he ask his right honourable friend the Chancellor of the Exchequer whether he would be prepared now to amend his slogan, because quite clearly the interest rate is hurting and is not working?
Lord Henley: My Lords, it is beginning to work. I shall certainly pass on the noble Lord's comments to my right honourable friend. As my noble friend, Lady Hooper says, that will probably not be this afternoon, because he is busy with other matters.
Lord Donoughue: My Lords, is the Minister not aware that the impact of high interest rates goes much wider than mortgages? Is he not aware that the present level of corporate debt, the debt of industry, is at almost its highest historical level? Since the cost of money is a major factor in industrial costs, does he accept that such high interest rates must have an inflationery impact?
Lord Henley: My Lords, the original Question was about the effect of interest rates on the RPI. Mortgage interest payments are the only form of interest payments which are included in the RPI.
Lord Donoughue: My Lords, does the Minister have a different Question from the one on the Order Paper? That does not mention the RPI; it mentions inflation.
Lord Henley: My Lords, the RPI is our measure of inflation.
Lord Williams of Elvel: My Lords, can the Minister be more statistically accurate? The RPI is not the necessary measure of the rate of inflation. The Question refers to the present level of interest rates— the generality of interest rates— and how that affects the rate of inflation across the economy. That is the point that my noble friend Lord Donoughue made.
Lord Henley: My Lords, our measure of the rate of inflation is the RPI. It is the best measure that we have, and mortgage interest repayment rates are the only form of interest included in the RPI.
Lord Stallard: My Lords, the noble Lord said that the interest rate is working. Is he satisfied, therefore, that one of the criteria for that judgment is that thousands of people can no longer afford to live in their houses, which have been repossessed? Is that what he calls "working"?
Lord Henley: My Lords, I repeat what I have said on many occasions and what my noble friends and colleagues in another place have said. Interest rates
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will remain as high as is necessary for as long as is necessary to bring down the rate of inflation.
Lord Tordoff: My Lords, is the Minister seriously trying to tell the House that the retail prices index is the only measure of inflation that this Government use?
Lord Henley: My Lords, we also consider some uprating of the retail prices index without housing costs. On this occasion I am talking about the retail prices index.
Lord Williams of Elvel: My Lords, the noble Lord has admitted that there are other measures of inflation which the Government adopt, such as, the taxes and prices index which a previous Chancellor introduced. Will he now answer the Question as to what effect the present level of interest rates is having on the rate of inflation?
Lord Henley: My Lords, I have answered that Question. I said that I was answering in terms of the retail prices index and I shall stick to that Answer.
Lord Kinnaird: My Lords, should we perhaps wait for the result of the Budget this afternoon?
Noble Lords: No!
Lord Dormand of Easington: My Lords, why are high interest rates not curbing consumer spending?
Lord Henley: My Lords, I accept that retail sales growth picked up in the early part of this year. However, retail sales are still much lower than in 1988 and early 1989. Retail sales growth in 1988 reached 8 per cent. compared with a growth rate of 2.25 per cent. in the three months ending in February.
Lord Jay: My Lords, why is it that this Government have been fighting inflation for 10 years and more but inflation still seems to be winning?
Lord Henley: My Lords, I do not accept that inflation seems to be winning. The all-items inflation rate is lower now than in the middle of 1989. The underlying rate, as measured by the RPI excluding mortgage interest payments, rose by only half a point since the beginning of 1989, and is only marginally above the rate in May 1989.

Single European Market
3 p.m.
Baroness Elles Baroness Elles asked Her Majesty's Government:
What progress is being made in the legislative process needed to establish the single European market.
The Minister of State, Department of Trade and Industry (Lord Trefgarne): My Lords, excellent progress is being made in the legislative process needed to establish the single European market. The Council of Ministers has now adopted, reached a

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common position on, or secured agreement in principle to, 166 of the 279 measures in the Commission's White Paper. This means that about 60 per cent. of the programme has been completed.
Baroness Elles: My Lords, I welcome the reply of my noble friend with regard to the legislative process. However, can he give any further information as to the United Kingdom's position with regard to joining the exchange rate mechanism?
Lord Trefgarne: My Lords, back in 1979 when I first spoke from the Dispatch Box in an even more junior position than today, I said that we would join the exchange rate mechanism when the time was right. I am happy to say that that remains the position.
Lord Rippon of Hexham: My Lords, does my noble friend agree that the United Kingdom has just about the best record in implementing the directives agreed under the Single European Act and, above all, the best record in keeping the law once we have agreed to it?
Lord Trefgarne: My Lords, I am grateful to my noble friend for saying that because it is indeed the case. I believe that only about six of the directives and other documents emerging from Brussels in that context have yet to be implemented by the United Kingdom. We accept the purport of all of them and will adhere to them as soon as possible.
Lord Molloy: My Lords, what were the guidelines and what has yet to be achieved for the Government to be able to say that the time is now right? What must happen?
Lord Trefgarne: My Lords, a great range of factors must be taken into account, all of which receive constant attention.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that joining the exchange rate mechanism will not be a panacea for all our economic ills? They will be cured only by taking the proper and appropriate measures on a national basis. Will he accept that and will he spell it out loudly and clearly?
Lord Trefgarne: My Lords, the most important thing that we must do before the time will be right is to ensure that inflation is under control. That was why my noble friend just gave the answers that he did.
Lord Williams of Elvel: My Lords, we welcome the progress made towards a single market. However, is the noble Lord aware that, as we drive around the country, we see posters which carry such strange inscriptions as:
"The single market est arrivé"?
Is the noble Lord aware that there is such a poster outside the railway station at Llandrindod Wells which reads:
"El mercado unico 1st gekommen"?
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Those posters appear to emanate from what used to be known as the department for enterprise, but has now, I believe, reverted to the name of the Department of Trade and Industry. Is the purpose of the posters to teach the citizens of Llandrindod Wells a new form of Esperanto and, if so, are they succeeding in their purpose?
Lord Trefgarne: My Lords, I am happy to say that I was born in Llandrindod Wells. I have derived great benefit for the advertisements to which the noble Lord referred, which, as it happens, I was intimately involved in preparing.

Human Fertilisation and Embryology Bill [H.L.]
3.4 p.m.
Read a third time.
Clause 7 [Reports to Secretary of State]:
Baroness Hooper Baroness Hooper moved Amendment No. 1:
Page 3, line 42, leave out from ("shall") to end of line 4 on page 4 and insert ("prepare a report for the first twelve months of its existence, and a report for each succeeding period of twelve months, and shall send each report to the Secretary of State as soon as practicable after the end of the period for which it is prepared.
(2) A report prepared under this section for any period shall deal with the activities of the Authority in the period and the activities the Authority proposes to undertake in the succeeding period of twelve months.").
The noble Baroness said: My Lords, this amendment has been brought forward by the Government in response to a point raised by the noble Earl, Lord Perth, at Report. It seeks to meet concerns which he and other noble Lords have raised that the authority should give notice of its plans for the year ahead as well as a report of its activities for the previous 12 months.
While the Government do not believe that the authority would wish to act in such a peremptory way, they are happy to allay such concerns and I believe that that should be satisfactorily achieved by this amendment. Its effect will be to specify that the authority, in producing an annual report, which will of course be laid before Parliament, shall deal not only with activities during the past year but with planned activities during the next year. That is a sensible arrangement which I am sure that the authority would have chosen to adopt of its own volition in order to ensure that the public and Parliament are fully informed of what it plans to do. However, the amendment puts that matter on record on the face of the Bill. I beg to move.
The Earl of Perth: My Lords, I wish to welcome the amendment and say thank you to both the noble and learned Lord the Lord Chancellor and to the noble Baroness, Lady Hooper, for having given effect to an anxiety of mine and, I think of others in the House; namely, that we should know as far as possible every detail not only of what the authority has done in the past but of what it plans for the future. The amendment gives effect to that. It gives us a chance, if after Report we think it appropriate,

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to debate the matter ourselves or to allow another place to do so. I am deeply grateful.
On Question, amendment agreed to.
Clause 9 [Licence committees and other committees]:
Baroness Hooper Baroness Hooper moved Amendment No. 2:
Page 5, line 6, leave out subsection (8) and insert:
("(8) Subject to subsection (8A) below, a licence committee shall arrange for any premises to which a licence relates to be inspected on its behalf once in each calendar year, and for a report on the inspection to be made to it.
(8A) Any particular premises need not be inspected in any particular year if the licence committee considers an inspection in that year unnecessary.").
The noble Baroness said: My Lords, in moving Amendment No. 2, I shall speak also to Amendments Nos. 3, 4, 21 and 23.
The government amendments result from points raised by my noble friend Lord Caldecote during Committee and Report stages. He wanted to ensure that licensed premises were inspected at least annually. He wanted the legislation to ensure that the authority must appoint:
"competent inspectors in such numbers and with such qualifications as the Authority considers necessary to enforce the conditions of the licences granted to the premises and any other relevant provisions"
of the Act. This is also the purpose of Amendment No. 21 which is in his name on the Marshalled List.
After consideration, the Government have concluded that it would be helpful to place an obligation on the authority to ensure that those of its staff who carry out inspections for licensing purposes are of suitable character and are properly qualified by means of training and experience. Amendment No. 23 goes a long way to meeting my noble friend's concerns. However, we do not think it necessary to add further to the Bill about the numbers of its staff that the authority will involve in carrying out its inspection functions. Paragraph 8 of Schedule 1 already gives the authority sufficient powers to appoint the staff it thinks it will need to carry out its functions, its principal function being to operate the licensing system, which, of course, includes inspecting premises which will be licensed under the Bill or are seeking a licence. I hope that my noble friend Lord Caldecote is therefore assured on that point and will feel able to withdraw his amendment.
We do, however, consider that my noble friend's other point on frequency of inspection is not covered to the same degree by the existing provision in the Bill. Whereas it is clear that a responsible authority would ensure that inspections were carried out by properly qualified persons, whether members of the authority or members of its staff, it does not follow from the Bill as at present drafted that such inspections should normally be carried out each year. It is clearly the desire of the House, and the Government fully understand this, that the licensing provisions of the Bill should be strictly enforced. Amendment No. 2 therefore provides that a licence committee must arrange for licensed premises to be
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inspected once a year, unless the committee considers an inspection unnecessary. While it is clearly important that the authority ensures that the terms of a licence are complied with, the Government consider that a licence committee should have the discretion to dispense with the requirement in cases where it is clear to the committee that an inspection is unnecessary in that particular year.
Amendments Nos. 3 and 4 are consequential to Amendment No. 2. I beg to move.
Lord Ennals: My Lords, broadly speaking, I support the proposals made by the noble Baroness and believe they are an improvement, as was the first amendment that she proposed.
However, I have two concerns. The first, in Amendment No. 2, relates to subsection (8A) which contains the phrase:
"if the licence committee considers an inspection in that year unnecessary".
Obviously, that flies in the face of the concept contained in the amendment of the noble Viscount, Lord Caldecote; namely, that a licensed premises should be inspected at least annually. Perhaps the noble Baroness will give the circumstances that she has in mind in which the rule of an annual inspection, which I thought at one moment she seemed to support, would be thought to be unnecessary. Would it not be difficult for a committee with a large number of premises under its supervision to decide that it did not need to have them inspected without inspecting them to see if they needed to be inspected? Perhaps the noble Baroness could comment on that point?
My other point related to Amendment No. 4:
"An inspection in pursuance … may be carried out by a person who is not a member of a licence committee".
As I understood it, an inspection would normally be carried out by more than one person. We have spoken of the possibility that there might well be included a doctor, a scientist and a lay person. Does this amendment relate to a person who might be part of an inspecting team? Perhaps she could say a little more about what lies behind the Government's thinking on the reference to:
"a person who is not a member of a licence committee".
Viscount Caldecote: My Lords, at an earlier stage of this Bill I moved amendments relating to inspection, as my noble friend Lady Hooper said. At Report stage my noble friend undertook to bring forward an amendment at Third Reading to give effect to the substance of my amendments.
I am most grateful to my noble and learned friend the Lord Chancellor and to my noble friend Lady Hooper for the trouble that they have taken to look at this point. The undertaking has been fully carried out in Amendments Nos. 2, 3, 4 and 23. They seem to me to be entirely satisfactory and to have achieved the objective of my amendments, albeit in a slightly different way. I do not therefore intend to move Amendment No. 21. I repeat my gratitude to my noble and learned friend and to my noble friend for the great care and trouble that they have taken with their advisers to deal with the point which I raised.
Baroness Phillips: My Lords, I should like to follow up the remarks of my noble friend on the Front Bench. It seems rather curious that an inspection is to be carried out by a person. It is almost: casual. It is as though someone just drops in to deal with what is a highly complicated business. After all, we are not exactly talking about a person who is serving fish and chips. The amendment states that:
"Any particular premises need not be inspected … if the licence committee considers an inspection … unnecessary".
That is very unusual legislation. I am sure that the health and safety regulations and matters of that character are not dealt with in such a casual way. It is almost as though the committee will say that there is no point in anybody going. Or is it a matter of seeing who will volunteer to go? It is extraordinary legislation and I am sure that if we look at the Acts relating to inspection of premises for any reason we shall see that this is quite new.
3.15 p.m.
Baroness Hooper: My Lords, with the leave of the House, we are operating on the premise that the authority which is to be appointed will be a responsible body that will take account of the kind of anxieties expressed by your Lordships. Our intention is and always has been not to impose a straitjacket on this highly responsible body.
In response to the question asked by the noble Lord, Lord Ennals, there could be some circumstances in which inspections would be unnecessary on an annual basis. For example, the centre which has applied for a licence or has a licence might be closed for a large part of the period. I am glad that my noble friend has recognised that our amendment covers the position.
With regard to Amendment No. 4 and the point raised about "a person", this must be read in conjunction with paragraph 8 of Schedule 1 which, as I have already pointed out, gives the authority powers to appoint the staff that it considers it will need to carry out its functions. We should expect the inspecting group to be composed of suitably qualified people. This amendment simply allows the possibility of "a person" to be part of that group if he is not a member of the licence committee. I trust that noble Lords will accept my response to the questions that have been raised.
Baroness Lockwood: My Lords, I wonder whether the Minister will clarify the wording in subsection (8A)? Does it mean that any particular premises need not be inspected in one particular year? The wording is "any particular year". Would it be possible, for instance, for the authority to determine that the premises will not be inspected this year and then next year also to determine that they will not be inspected, or will it be confined to one year only?
Baroness Hooper: My Lords, my understanding is that it would relate to one particular year. After all, licences will be issued for a certain number of years. I would expect that the extent, if any, of the discretion to be used by the authority would be covered in the authority's annual report, to which
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we have also just spoken, in terms of what it has done in the past year and what it plans to do in the future years.
On Question, amendment agreed to.
Baroness Hooper Baroness Hooper moved Amendments Nos. 3 and 4:
Page 5, line 10, after ("subsection") insert ("or subsection (8) "). Page 5, line 12, at end insert:
("(10) An inspection in pursuance of subsection (7) or (8) above may be carried out by a person who is not a member of a licence committee.")..
The noble Baroness said: My Lords, with the leave of the House, I should like to move that these amendments be taken together. I beg to move.
On Question, amendments agreed to.
Clause 12 [General conditions]:
Baroness Hooper Baroness Hooper moved Amendment No. 5:
Page 6, line1, leave out ("payment in money or money's worth shall be made") and insert ("money or other benefit shall be given").
The noble Baroness said: My Lords, in moving Amendment No. 5 I shall speak also to Amendments Nos. 6 and 22. During the Report stage of the Bill I moved two amendments. One made it a condition of all licences granted by the authority that no payment in money or money's worth could be made or received in respect of any supply of gametes or embryos unless the payment was authorised by directions. The other provided that, where a person to whom a licence applies or the nominal licensee makes or receives any payment in money or money's worth, other than a payment authorised by directions, in respect of any supply of gametes or embryos, he would be guilty of an offence.
During the debates on these amendments, the noble and learned Lord, Lord Donaldson of Lymington, expressed his concern that the words "money or money's worth" might not cover the case in which a woman is offered private treatment or some special preference if she agrees to donate eggs while undergoing sterilisation. I am grateful to the noble and learned Lord for bringing this matter to my attention. In response, the Government have put down Amendments Nos. 5, 6 and 22.
Amendments Nos. 5 and 6 make it a condition of all licences granted by the authority that no money or other benefit shall be given or received in respect of any supply of gametes or embryos unless authorised by directions. This will be a matter for the authority to consider but it is hard to envisage that it will countenance any significant payments to donors; but it may, for example, choose to allow the reimbursement of their incidental or travelling expenses. Amendment No. 22 is consequential to Amendments Nos. 5 and 6 and provides that where a person to whom a licence applies or the nominal licensee gives or receives any money or other benefit not authorised by directions, in respect of any supply of gametes or embryos, he is guilty of an offence. I beg to move.
On Question, amendment agreed to.
Baroness Hooper Baroness Hooper moved Amendment No. 6:
Page 6, line 3, leave out ("the payment is").
On Question, amendment agreed to.
Clause 13 [Conditions of licences for treatment]:
Baroness Hooper Baroness Hooper moved Amendment No. 7:
Page 7, line 9, leave out ("whose gametes or embryos are to be used") and insert ("providing gametes or from whom embryos are taken for use").
The noble Baroness said: My Lords, this amendment makes clear that it shall be a condition of all treatment licences that suitable procedures should be maintained for determining which persons are to provide gametes or from whom embryos are to be taken for subsequent use in treatment services. In the Bill as at present drafted the words:
"whose gametes or embryos are to be used"
may be taken to imply ownership of gametes and embryos in a way that the Bill generally seeks to avoid. Schedule 3 of the Bill sets out the system of consents which will be needed before gametes or embryos can be used for any purpose. The amendment ensures that Clause 13 (6) is drafted in accordance with the system of consents. I beg to move.
On Question, amendment agreed to.
Clause 24 [Directions as to particular matters]:
Baroness Hooper Baroness Hooper moved Amendment No. 8:
Page 13, line 49, at end insert:
("(10) Where the Authority proposes to give directions specifying any animal for the purposes of paragraph 1 (1) ((f) or 3 (4) of Schedule 2 to this Act, it shall report the proposal to the Secretary of State; and the directions shall not be given until the Secretary of State has laid a copy of the report before each House of Parliament.").
The noble Baroness said: My Lords, the amendment deals with another point raised by the noble Earl, Lord Perth, during the debates on the Report stage of the Bill. The amendment would operate when the authority proposes to give directions specifying an animal other than a hamster for the purposes of paragraph 1 (1) (f) or 3 (4) of Schedule 2 which deal with treatment and research licences respectively. The amendment requires the authority to report that proposal to the Secretary of State and directions shall not be given until the Secretary of State has laid a copy of the report before each House of Parliament. In practice, this will mean that Parliament will be aware of any such proposal which is made by the new authority.
Having considered carefully the debate last week, I think there was substance to the points made by the noble Earl, Lord Perth, and that it is right that Parliament should be put in this position should the authority propose to make a direction of this kind. I hope the noble Earl and other noble Lords will feel that this amendment effectively meets their concerns on this difficult matter. I beg to move.
The Earl of Perth: My Lords, again I have to say how grateful I am for the amendment which has been put forward. I was very worried that there was not an adequate safeguard to ensure that before any
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change were made, if ever any change is to be made, in the type of mixing, of human sperm with other than that of a hamster, we should be aware of it and have the chance to comment upon it. I know that the noble Lord, Lord Walton, was readily agreeable to accepting the same principle. I want to thank the Government for having given effect to this provision. These few words achieve exactly what we wanted.
On Question, amendment agreed to.
Clause 27 [Meaning of "mother"]:
Lord Walton of Detchant Lord Walton of Detchant moved Amendment No. 9:
Page 14, line 42, at end insert ("unless the embryo placed is not created from the egg of the woman, or the egg placed is not that of the woman, and before the placing in her of the embryo or egg the woman has consented not to be treated as the mother of the resulting child").
The noble Lord said: My Lords, the noble Lord, Lord Meston, has sent his sincere apologies to your Lordships' House for not being able to be present in the Chamber this afternoon to move the amendment. He spoke to me this morning and asked me to explain the substance of the amendment and to move it on his behalf.
The position is as follows. A recent case has caused considerable concern. It involved a lady who did not possess a womb— or a uterus— but who did have functioning ovaries. She was able to have ova, or eggs, removed from her ovaries which were then fertilised in vitro by her husband's sperm and another lady willingly volunteered to carry the baby on behalf of the couple. The result was that the surrogate lady carried the baby, the birth was normal but, of course, the child was genetically that of the original lady from whom the ova were removed and of her husband. However, the legal position was such that at the end of the day they were not able to have the child without going through the full legal process of adoption, even though the surrogate mother willingly undertook to carry the child. Even at this stage, the noble Lord, Lord Meston, wanted this issue to be brought to the attention of your Lordships' House so that the point might be taken into consideration in future legislation. I beg to move.
Lady Saltoun of Abernethy: My Lords, I rise to express my support for the amendment. It seems to me that as the situation stands at present the law is in danger of looking an ass. I very much hope that the noble and learned Lord will feel able to meet the concerns of my noble friend.
Lord Prys-Davies: My Lords, I, too, should like to support the amendment. It seems to us to address a gap in the Bill.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, it is certainly true to say that the amendment addresses a situation. Clause 27 provides that where a woman carries a child as a result of embryo or egg donation, she is to be treated as the mother of that child to the exclusion of all others. The amendment would qualify that rule by

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providing an exception where the woman has consented in advance not to be treated as the mother. Such an arrangement might be sought by couples who wish to commission a surrogate mother to carry their child.
The amendment would not achieve what I suspect is the aim; that is, to ensure that the genetic parents of a child born to a surrogate mother have full parental status. Under the Bill as drafted, where an embryo is created by in vitro fertilisation and transferred to the womb of a "host mother", the genetic parents will be both treated as donors. Neither will have parental status as regards the child, by virtue of Clause 27 (1) and Clause 28 (5) (a).
The reason that donors will not have parental status is that in the vast majority of cases they are anonymous and have no social relationship with the child. Parenthood involves, among other things, liability to maintain the child and this policy safeguards those who, in a public spirited act, donate eggs or sperm for the treatment of others, from such liability. The effect of the amendment would therefore be that where the woman had, in advance, consented not to be treated as the mother of the child, the genetic mother would be, in law, the mother. But because of Clause 28 (5) (a), the genetic father would not be treated as the father. I am sure that is not what those who support this amendment intend. As the noble Lord, Lord Walton, said, the amendment has been put forward rather late in the proceedings on the Bill simply to raise the issue.
I should now like to turn to the major matters underlying the amendment. The policy in Clause 27, that the carrying mother should be treated as the mother of a donation child to the exclusion of all others, was recommended by the committee chaired by the noble Baroness, Lady Warnock, and was outlined in the White Paper, Human Fertilisation and Embryology: A Framework for Legislation (Cmnd. 259). To take the opposite view might fulfil the intentions of those few people who enter into "womb leasing" arrangements, but such a policy would have numerous disadvantages.
Such a view ignores the practical, physical and emotional realities of the post-natal situation and the fact that the only person who can be guaranteed to be present to care for the child at its birth, unless death intervenes, is the carrying mother. It would take no account of the emotional attachment which arises as a result of carrying a child through to term, sometimes at significant physical cost and the "bonding" that occurs between the carrying mother and the child during pregnancy and at birth. Moreover, it ignores the physiological consequences in the mother, such as lactation.
In in vitro fertilisation and egg donation cases, the genetic blueprint of the child is that of the donor. But the flesh and bone that forms the body of the child is entirely formed by the carrying mother. The donor is responsible only for a single cell or small group of cells which is introduced to the mother. I find it difficult to reconcile that with the view that the child is to be regarded as the child of the genetic parent in that situation. It must be wrong and it is at variance with Clause 33 (1) which makes surrogacy
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unenforceable in law. In principle the amendment makes a surrogacy arrangement enforceable in law by preventing the ordinary result of carrying the child to have its consequence as a result of an antecedent agreement such as is mentioned in the clause.
In view of these strong emotional attachments and the physical consequences, there may well be circumstances in which a surrogate mother does not wish, having carried the child, to hand it over. If the amendment were to be agreed to, I think that the consequence would be that she would be forced to do so. As experience surely has shown, there may also be circumstances in which the commissioning parents prove unwilling to accept the child, for example if it were born handicapped, perhaps as a result of the carrying mother's conduct or an accident during pregnancy. There must never be any doubt about who is responsible for the child. Clause 27 is intended to put that question beyond doubt. By introducing the notion of consent, the amendment would remove that certainty. That can hardly be in the interests of the child. As I say, that would certainly have the effect of giving a surrogacy arrangement the appearance of enforceability.
As a matter of policy we have said that that should not be so and that is one of its consequences. In the White Paper the Government made clear their intention that legislation should not give any encouragement to the practice of surrogacy arranged privately or on a non-commercial basis. In Clause 33 the present Bill provides that surrogacy arrangements are to be unenforceable in law. That is not just because the practice of surrogacy creates a situation in which the interests of the child can never be guaranteed, but also because of the difficulties which the surrogate mother herself may face. For example, she may have to pretend to family and friends that she is carrying her own and her husband's child, and, after the child is born and she has given it to the commissioning parents, she may have to pretend that she has lost the child.
Dr. John Dawson, head of the British Medical Association's professional and ethics committee, was quoted in a newspaper on 4th March as saying:
"We would be appalled if we thought there was going to be a trend towards the widescale use of surrogate pregnancy in this country.".
The Government agree with that view.
Commissioning couples and surrogate mothers should be aware of the pitfalls involved in these arrangements. This is recognised in the ethical guidelines issued last week by the British Medical Association. Under those guidelines, doctors will be required to ensure that couples understand that surrogacy agreements are not enforceable, that the surrogate mother will be the child's legal mother, and that they will have to adopt the baby if they want to become its legal parents.
I should like to stress that the arrangements allow that. Therefore, if there is no obstacle and all goes as originally planned, that legal procedure is available by which a legal relationship can at that stage be established between the genetic parents and the child.

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The BMA has advised that couples will be advised to seek legal advice and be warned that they may not be allowed to adopt a baby born to a surrogate mother. All parties should enter into such an arrangement with their eyes open and with the welfare of the child uppermost in the minds of everybody involved.
I believe that very few people enter into surrogacy arrangements even in comparison with the few who seek the infertility treatments which the Bill will regulate. The rules laid down by the Bill are intended to benefit those who receive infertility treatment involving donation and the children born to them. Clause 27 as drafted will, in my view, in by far the majority of cases reflect not only the intentions of all involved but also the social reality. The few cases where that proves not to be the case can properly be left to the law of adoption and I believe should be so left.
I am very grateful to the noble Lord, Lord Meston, for raising this point and to the noble Lord, Lord Walton of Detchant, for taking up the torch in the noble Lord's unavoidable absence. However, I strongly suggest to your Lordships that the policy as provided in the Bill is the sound policy. In the very few cases where a difficulty of the kind which this amendment addresses arises, the law of adoption applying after the birth appears to be the best way of solving the problem.
I entirely accept that this is an extremely difficult issue and an important one to be addressed. However, I believe that that is addressed in the Bill and is best left in that form. I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment. Of course, this issue may well arise as the Bill goes through another place. It is an important general issue, as is the whole question of surrogacy which will no doubt receive attention as the Bill is further considered.
3.30 p.m.
Lord Walton of Detchant: My Lords, I am grateful to the noble and learned Lord for his very full and detailed consideration of this problem. In agreeing with the noble Lord, Lord Meston, that I would draw this matter to the attention of your Lordships' House, I told him that in my view it raised very considerable complex legal and moral issues.
I say in passing that I too take the view that I do not wish to see any major extension of surrogacy arrangements in this country— a measure to which I personally should be very much opposed. Nevertheless, the problems in this case were such that I believed that your Lordships should be aware of them. With that explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 10:
Page 14, line 45, at end insert:
(" (3) Subsection (1) above applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs.").
The noble and learned Lord said: My Lords, I shall speak also to Amendment No. 16. Clause 27
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provides that where a woman carries a child as a result of embryo or egg donation she, the carrying mother, is to be treated as the child's mother to the exclusion of all others. Clause 28 (2) provides that where a child is born to a married woman as a result of gamete or embryo donation, her husband is to be treated as the child's father unless it is shown that he did not consent.
These amendments will clarify the territorial application of these clauses. The effect will be that where the law of England and Wales, Scotland or Northern Ireland applies to determine the status of parents and children born as a result of donation, it will be immaterial whether the treatment took place in the United Kingdom or elsewhere. If we do not amend the clauses in this way, I am advised that they will be construed as applying only to treatment in the United Kingdom.
That would give rise to some odd results. Let us suppose that an English or Scottish married couple, domiciled in the United Kingdom, go to live abroad for a short time and obtain treatment and the child is born after their return. The child will not in law be theirs because Clause 28 (2) would not apply as the treatment had taken place outside the United Kingdom. The effect would be that the child was, in effect, rendered fatherless. Strictly speaking, the donor would be the father, but he is most likely to be anonymous.
This is not a desirable result. The answer is that in circumstances such as those I have described, Clauses 27 and 28 should operate to determine who, in law, are the parents. That is the purpose of these amendments.
Perhaps I should add that, as concerns Clause 28, these amendments will only have effect as regards married couples. If the House agrees to Amendment No. 12 the effect will be that unmarried men will in certain circumstances be treated as fathers of donation children. But for reasons which I will explain when we reach that amendment that will only apply where the woman was treated by a person to whom a licence applies. The licensing system can of course operate only within the UK. I beg to move.
Lord Ennals: My Lords, I warmly welcome this amendment from the noble and learned Lord. I had not recognised that there was a defect and therefore I am grateful to him for recognising that. The reason that I welcome the amendment is, first, that I believe that anything which removes uncertainties about whether the mother is the mother of the child and the child is the daughter or the son of the mother must be good. With the amendments written in during Report stage, where the interests of the child were always to be taken as paramount, it seems to me that the bonding between mother and child is as important, if not more important, in those births which are not identical to normal and regular births. Therefore, I believe that by strengthening the law in that respect the noble and learned Lord the Lord Chancellor has made an important contribution to that relationship.
Baroness Phillips: My Lords, I support the noble and learned Lord the Lord Chancellor on this point but I am rather puzzled. If the woman receives

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treatment in another country, is there a law which says that she must inform the authorities of that fact when she returns to the United Kingdom? Otherwise, who will know and how will they know?
The Lord Chancellor: My Lords, that is the point. If it came to be discovered, that would create an uncertainty about the status of the child. If nothing is found out about that and all is kept private, no problem arises because the child is seen to be born in the normal course of events and no query is raised on that. On the other hand, if a query were raised this amendment would apply and settle the matter.
I am very grateful to the noble Lord, Lord Ennals, for his comments on this amendment. I believe that it removes the possibility of uncertainty in this area.
On Question, amendment agreed to.
Clause 28 [Meaning of "father"]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 11:
Page 15, line 10, leave out ("subsections (4) and (5) ") and insert ("subsection (4) ").
The noble and learned Lord said: My Lords, this amendment is simply to improve the drafting. I beg to move.
On Question, amendment agreed to.
3.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 12:
Page 15, line 13, at end insert:
(" (2A) If no man is treated, by virtue of subsection (2) above, as the father of the child but—

(a) the embryo or the sperm and eggs were placed in the woman, or she was artificially inseminated, in the course of treatment services provided for her and a man together by a person to whom a licence applies, and

(b) the creation of the embryo carried by her was not brought about with the sperm of that man,

then, subject to subsection (4) below, that man shall be treated as the father of the child.").
The noble and learned Lord said: My Lords, Clause 28 provides that where a married woman carries a child as a result of treatment involving gamete or embryo donation, then her husband is to be treated as the father of that child unless it is shown that he did not consent to the treatment.
In speaking to Amendment No. 12 I should also like to speak to Amendments Nos. 13 and 14. These amendments, in effect, extend the provision of Clause 28 so that where an unmarried couple receive treatment together the male partner will be treated as the child's father. During the Report stage of this Bill an amendment of a similar nature was proposed by my noble friend Lord Ashbourne and by the noble Lord, Lord Robertson of Oakridge, supported by others. I undertook to consider further the matters raised by the amendment and my noble friend and his supporters kindly withdrew it.
The conclusion I have reached is that if it is to remain possible for unmarried couples to receive the benefit of treatment to bring a child into being, both should have imposed upon them the responsibility for the child. I was most concerned that this proposal should not be seen as encouraging unmarried people
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to use infertility treatments, thus perhaps undermining marriage, or leading to children having unsuitable social fathers because of the difficulty in distinguishing partners to stable relationships from more transitory ones. On reflection, having regard to the other provisions of the Bill, these considerations should not deter us from inserting this amendment.
With regard to encouraging unmarried couples to seek treatment, the result of this scheme will be that the man becomes responsible for maintaining the child. That will, if anything, discourage the irresponsible use of the treatments by unmarried couples. Moreover, because the man is not married to the mother of the child, he, like any unmarried father, would receive no benefit in the sense of acquiring parental rights, but only the duty to maintain the child. He could acquire such rights by obtaining a court order under Section 4 of the Family Law Reform Act 1987, or under the equivalent provision of the Children Act 1989 when it comes into force, but the existing demarcation between married and unmarried parents will be preserved.
As to the man being unsuitable, as I have said, the imposition of a duty to maintain should discourage irresponsible men and particularly those whose relationship with the mother is not enduring. Furthermore, as a result of amendments which this House agreed to during Report stage, those providing treatment will be required to have regard to the welfare of any child who may be born as a result of the treatment and any other child who may be affected by the birth. That will be an added safeguard against the risk of unsuitable fathers.
Conferring fatherhood on the man in these circumstances will have three further benefits for the child. First, an advantage to the child will be that he will be able to seek support from the man's estate if the man should die. Secondly, as the noble Lord, Lord Ashbourne, pointed out during the Report stage, under the Bill as drafted children born to unmarried couples would, in law, have no father. These amendments will mean that there will be fewer fatherless children. And, thirdly, the formal recognition of the man's fatherhood may help to cement and strengthen the relationship within the informal family and reduce the risks of breakdown and its consequences for the child and, indeed, too often the taxpayer. That may well lead to a more formal enduring relationship instead of the informal one from which it started.
These amendments will create a new subsection, the effect of which is limited to those treated together by a person to whom a licence applies. The effect of that limitation is that all persons who seek fatherhood in this way will be subject to the regulatory framework provided by the Bill. In particular, as I have already said, the clinic providing the treatment will have to take account of the welfare of the child. And both parties will be given an opportunity for counselling so that they will be fully aware of the legal and other implications of their actions.
However, the unsupervised use of artificial insemination techniques outside the statutory scheme, including treatment outside the jurisdiction

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of the United Kingdom, will not be covered by the new provisions. Without the regulation provided by the Bill, it would be extremely difficult to be certain about who is the mother's partner and who is to be treated, for the purposes of this amendment, as the father.
In my view, these amendments give effect to the very important principle that the responsibility travels with the benefit and I commend them to the House. I beg to move.
Lady Saltoun of Abernethy: My Lords, I am most grateful to the noble and learned Lord for this amendment. It goes a considerable way towards meeting very grave concerns as to the fate of the donor child of an unmarried couple should any misfortune overtake the mother and consequently the grave risk that the child might be taken into care because he has no family to care for him. I am extremely grateful to the noble and learned Lord for the amendment.
Lord Kilbracken: My Lords, I welcome this amendment, but perhaps the noble and learned Lord will explain exactly why paragraph (b) is necessary. It seems to me that if the man's own sperm is used, that is all the more reason to treat him as the father instead of his being disqualified by that paragraph.
Lord Ashbourne: My Lords, I too should like to support this amendment and say how grateful I am to the noble and learned Lord for moving it. It will undoubtedly reduce the number of fatherless children being created. I commend the amendment to the House.
Lord Ennals: My Lords, I should like to say a brief word with regard to the amendment because once again the noble and learned Lord the Lord Chancellor has achieved a very difficult task. When this issue was first debated I took a different view from that of the noble Lady and the noble Lord who has just spoken. One noble Lord accused me of preaching against the significance and value of marriage. I was not doing that; I was seeking to emphasise— perhaps unsuccessfully— the importance of the responsibility which is placed upon someone recognised as a father whether or not that father is married. Quality of parenthood cannot always be judged by whether or not a father and mother are married.
We should seek to minimise, as this amendment does, the number of fatherless children who are born. I make the same remarks about this amendment as I did before; the closer the link between the father and the child, however unusual are the circumstances of the birth, the better will be the family life of that group and the higher will be the quality of life for the child. Therefore, like other noble Lords who have spoken, I am grateful to the noble and learned Lord for this amendment.
Lord McGregor of Durris: My Lords, I too am grateful to the noble and learned Lord for the amendment, which provides a very acceptable
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solution to the moral, legal and social problems which arise in a very difficult and occasionally inescapable situation.
The Lord Chancellor: My Lords, perhaps I can, first, answer the noble Lord, Lord Kilbracken. Unless the condition in paragraph (b) is fulfilled, this amendment is not required. If the man's own sperm is used, the common law makes that man the father. The reason therefore for inserting paragraph (b) is to make clear that it is only required in the case covered by (b).
I should like to thank all noble Lords who have spoken in support of this amendment. As the noble Lords, Lord Ennals, and Lord McGregor, have both said, these are very difficult issues. They were brought to our attention and debated at all stages of the Bill. As the debate has developed, so solutions to the important problems have become reasonably clear. I am glad that those who started with perhaps somewhat different points of view are able to see this as at least a possible solution— it may not be the only one— which goes a long way towards meeting all the concerns that have been expressed.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 13 and 14:
Page 15, line 15, after (" (2) ") insert or (2A").
Page 15, line 17, leave out ("Subsection (2) above does") and insert ("Subsections (2) and (2A) above do").
The noble and learned Lord said: My Lords, I spoke to these amendments with Amendment No. 12. With your Lordships' leave, I move them en bloc.
On Question, amendments agreed to.
Lord Kilbracken Lord Kilbracken moved Amendment No. 15:
Page 15, line 37, after ("time") insert ("or parties to a marriage who at that time had been living apart for not less than three years or were legally separated,").
The noble Lord said: My Lords, this amendment seeks to take a little further a point I raised on Report and to which the noble and learned Lord said that he would give favourable consideration. The amendment seeks to extend the exclusion from being a father to states where not only have couples been legally separated but where they have been living apart for a period of not less than three years. I felt that if the former point was to be considered favourably it should also be extended to cases such as this. I beg to move.
The Lord Chancellor: My Lords, as the House knows, and as the noble Lord has explained, subsection (2) of Clause 28 provides that where a child is born as a result of donation to a woman who is party to a marriage, the mother's husband will be treated as the child's father unless it is shown that he did not consent. Subsection 6 (a) makes clear that the references to the parties to a marriage do not include parties to a marriage dissolved or annulled at that time.
The noble Lord, Lord Kilbracken, has had further thoughts and comes forward with an additional suggestion. He suggests that if the Bill includes parties who are legally separated— that was the

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position at Report stage— it should also include couples who have been living apart for not less than three years. That demonstrates that one can indicate many conditions which would help to show that consent had not been granted. I had not finished considering the first aspect when along came this second aspect. For all I know, there are a third and further aspects to come yet. Possibly a more radical solution is required. I have not been able to complete my consideration, but if the noble Lord is content to leave the matter with me I can assure him that, though the Bill will pass from this House today, the point will not pass out of our consideration. We shall see how we can deal with it.
There may be scope for some machinery which will deal with this question of consent in a way that will be easy to refer to, but I am not in a position to offer my solution to this problem today. The noble Lord's development of the subject shows that it is not as. easy as at first sight it appeared to him when he moved his amendment on Report.
Lord Kilbracken: My Lords, I am grateful to the noble and learned Lord. I realise that he may not have completed consideration of the amendment I tabled on Report. However, this is the last opportunity I have of suggesting this development. Therefore, while I have no intention of pressing the amendment in any way I hope that this additional point will receive consideration for inclusion, perhaps in another place. In the light of the undertaking that the noble and learned Lord has so kindly given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 16:
Page 15, line 42, at end insert—
(" (7) This section applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo of the sperm and eggs of her artificial insemination.").
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Clause 29 [Effect of sections 27 and 28]:
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 17:
Page 15, line 46, at end insert—
("Provided that this subsection shall apply only in relation to deeds or other instruments or documents executed after the commencement of this Act by a person, other than a person who is by virtue of section 26 and 27 of this Act to be treated as the mother or father of the child, and in the case of a deed or other instrument made in the exercise of a special power of appointment shall apply only where the deed or other instrument creating the power is executed after such commencement.").
The noble Lady said: My Lords, this amendment was withdrawn at Report stage because, in rejecting it, the noble and learned Lord the Lord Chancellor said:
"For those reasons I cannot accept the amendment at present. Perhaps the noble Lady … will want to consider the matter. I
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am certainly willing to consider it further".— [Official Report, 6/3/90; col. 1152.]
I do not know whether the noble and learned Lord has had time to consider the matter any further, but I have, as has my noble and learned friend Lord Jauncey who is unavoidably prevented, by illness, from being here today.
We have read very carefully what the noble and learned Lord the Lord Chancellor said on Report. My noble and learned friend asked:
"Why should testators and trustors have imposed upon them beneficiaries of whom they might never have conceived and, had they conceived, whom they might not have wished to benefit?"— [col. 1151.]
The noble and learned Lord the Lord Chancellor replied:
"The main reason is that, whereas adoption and legitimation were matters with which the testator or grantor of the deed might be presumed to be familiar, this is a different situation. It is a technique, in effect, for producing a child who is very closely connected with the person in question".— [col. 1152.]
I assume the person in question to be the testator or trustor. Is the child born by sperm donation of the testator's or trustor's daughter-in-law, or the child of his daughter, born by egg donation very closely connected with him? I do not think that he is. If I were a testator and had, in my ignorance of these techniques, left property, possibly family property, to my grandchildren who I naively assumed would be my descendants by blood I should be spinning in my grave with fury at the prospect of a person who is no blood relation of mine taking under my will. Similarly, had I made a trust on the same naive assumption and discovered that, on the passing of the Bill, under the terms of the trust deed my estate would go to the donor child of my eldest son's wife, I should certainly not feel kindly disposed towards that lady. Perhaps I could break the trust and start all over again, but that is easier said than done.
On Report my noble and learned friend gave as examples the Succession (Scotland) Act 1964, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968, the Family Law Reform Act 1969, and the Family Law Reform Act 1987. In all those Acts rights of succession granted to adopted or illegitimate children only applied in the case of deeds executed after the coming into force of the Act.
I am aware that in Section 27 of the Family Law Reform Act 1987— the section concerned with donor children— this precedent was disregarded. I believe that it went by default because no one spotted the implicit effect of the clause when the Bill was being debated in this House. I have read all the Hansard reports of the debates on the amendments to that clause at all stages of the Bill in this House. That aspect was never mentioned at all; nor was it the subject of any amendments. However, the then Lord Chancellor, the noble and learned Lord, Lord Hailsham, recommending the clause to the House at Second Reading, said:
"If need be, the clause can be amended later if it gives rise to difficulty".— [Official Report, 27/11/86; col. 652.]
I suggest that the time has come to amend that clause instead of using it as a precedent. I contend that both that clause and the Bill we are discussing

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may foist retrospectively on a testator or truster a beneficiary he is likely not to have wished to benefit. I beg to move.
4. p.m.
Lord Keith of Kinkel: My Lords, I support this amendment and I am particularly glad to do so in view of the unavoidable absence today of my noble and learned friend Lord Jauncey of Tullichettle. Perhaps I may give a somewhat exaggerated example by way of illustration of the kind of situation with which this amendment is designed to deal. Let us suppose that a noble Earl dies before this clause comes into operation. He is survived by his widow and he leaves two sons, James and John. Under his will he bequeathed to his widow for life his castle and, after her death, to James, whom failing, his sons in order of seniority, whom failing, to John and his sons in order of seniority.
James pre-deceases the widow leaving one son whom his wife conceived by donation. John is still surviving and inherits the title. If this amendment is not passed the result will be that the donor child of James will inherit the castle to the exclusion of John. That is not the kind of situation which is just, right or proper. The testator died without having in contemplation this particular provision to be passed in the future which confers right of succession on this category of child.
That is an extreme example but others of a similar character could well occur. As my noble friend Lady Saltoun has indicated, and as was indicated at earlier debates in the passage of this Bill, there are provisions in various Acts which confer rights of succession on illegitimate and on adopted children. All these Acts contain provisions which save the effects of deeds executed before the legislation came into effect.
I am aware that Section 27 of the Family Law Reform Act 1987 does not have a similar saving clause in relation to rights of succession conferred on donor children. As my noble friend Lady Saltoun has said and as she discovered through her researches, that legislation went through without this particular point of principle being raised and without it being debated in this House. If that is to be a future precedent it is very unfortunate that it should come about without a debate.
I observe in passing that Section 27 of the 1987 Act applies only in England. It does not apply to Scotland, and I believe I am right in saying that there is no similar provision for Northern Ireland. No distinction in principle can reasonably or properly be drawn in connection with this point between adopted, illegitimate and donor children. It is said that if the amendment were passed it would discriminate against donor children. At the moment and without the amendment, there is discrimination in favour of donor children, particularly in relation to adopted and illegitimate children.
I believe it is said that whereas the process of adoption and legitimation might be familiar to a testator who died before the relevant legislation, the possibility of a donor child inheriting would not be
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in his contemplation. That is a very good reason for agreeing to this amendment. Clearly, one should not bring about a situation where someone inherits who was not in the contemplation at all of the testator in question because it never occurred to him that this piece of legislation might be proposed and passed.
One cannot reasonably infer from that kind of situation that a testator or truster would have wished to include donor children among his beneficiaries. There are some instances and I gave an illustration on opening. That is clearly one of them. Further, it should be kept in mind that this is a purely transitional provision. There is no question of any discrimination in the long run against any category of child. Quite a serious point of principle is raised here and I seriously commend this amendment to your Lordships.
The Earl of Erroll: My Lords, this amendment was tabled at an earlier stage. Because mainly Scots spoke to it, I believe that your Lordships thought that the amendment applies to Scotland. In fact, it applies to anyone in England as well. There has been a great deal of concern as regards some legislation that it should not be made retrospective. I know that that argument has been used by the noble and learned Lord the Lord Chancellor to prevent certain amendments to various Bills because they might be retrospective.
Without this amendment this legislation clearly is retrospective. I am a trustee of an accumulation and maintenance trust which could be affected by this legislation. The trust was set up a few years ago for the granchildren and it could go to one or several of them. I know that it is certainly not the intention of the grandparents who made that accumulation and maintenance trust that it should go to grandchildren born as the result of donation. The simple reason is that it is a family property involved, with strong emotional ties. Therefore, I believe that this amendment is necessary to the Bill.
Lord Ennals: My Lords, I would not wish to see an amendment passed or any piece of legislation enacted which discriminated for or against a child because it had been born as a result of insemination. Discrimination either way is wrong. Once it became known that, in terms of inheritance, there was to be discrimination against a child because of the circumstances of its birth, that immediately challenges the admirable amendment that the noble and learned Lord the Lord Chancellor presented.
The interest of this Bill concerns the child. If we create circumstances in which a child is discriminated against because of circumstances over which that child— or for that matter that embryo— had no influence whatever, it would become most unfortunate legislation.
The Earl of Erroll: My Lords, before the noble Lord sits down, can he deal with the point of adopted and illegitimate children? At present they are discriminated against legally and acceptably in this fashion.
Lord Ennals: My Lords, if we have a Bill that deals with those issues I might intervene, but they are not affected by this legislation.
Baroness Phillips: My Lords, I am not thinking of voting either for or against this amendment which highlights the stupidity of this piece of legislation. If two people are concerned with the birth of a child the position is clear, but if two others are introduced there will be trouble. The issue is irrespective of whether the property concerned is a castle or something that has been left to the grandchildren. I became very worried about this matter and I shall have to reframe my will. I ask myself who is going to have my estate, always assuming that the Government leave me anything to bequeath and that the inheritance tax has not increased.
There is something totally ridiculous about this legislation. I am sorry to say that. I am not referring to this particular amendment, which highlights the unreality of this legislation. I shall say this again when we come to debate whether the Bill do now pass. I cannot let the opportunity go by now without saying something on the subject.
Lord Roskill: My Lords, happily the noble Baroness is still with us, and I hope that she will remain with us for a long time. She can deal with the contingency to which this amendment is directed by a suitable alteration to her will and no doubt she would wish to do so. The noble Lord, Lord Ennals, raised the question of discrimination. There is bound to be discrimination one way or the other. Either one will discriminate against the donor child or one will discriminate against those whom it was the intention of the original creator of the trust or testator to benefit.
Perhaps I may give an example slightly less grand than the one involving castles given by my noble and learned friend Lord Keith of Kinkel. It is a perfectly straightforward case of parents or grandparents, father or mother, long since dead, who some years ago sought to benefit their grandchildren and perhaps great grandchildren after their deaths. They created a common form trust. It may or may not have been an accumulator. They died, leaving a son. The son married and had children. The grandson married, but the daughter-in-law who had absolutely no blood relationship with the creators of the will trust then had a donor child. There was no blood relationship of any kind. The whole purpose of trusts, will trusts and so on is to give effect to the intention of those whom the creators of the trust intended to benefit. It is the duty of the courts to do so unless Parliament otherwise intervenes. If this provision goes through unamended it will prevent the intention of those who created the trusts being given full effect. People will come in and benefit whom it was never intended to benefit.
It is perfectly possible to put this right for the future by suitable amendment of wills and trust deeds produced hereafter whether under the law of England or, although I am not competent to talk about it, the law of Scotland. What it is not competent to do is to alter retrospectively trust deeds or wills which may well have been entered into
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decades ago. That is what this provision unamended will do. It will lead to discrimination against those children who were intended to benefit originally. I support the amendment.
The Lord Chancellor: My Lords, the question that arises under this amendment and what is in a way fundamental to its consideration is what a testator or truster would have done if faced with the knowledge that a child was born to his son or daughter by one of these treatments. I said at Report that these techniques were not previously contemplated and that I would find it difficult to believe that it is clear that a parent would want to say that a child born to his son or daughter by this technique was not to inherit with other children born to that son or daughter. That is what I had in mind at that stage. This amendment would take out altogether the possibility of these children being in the deeds.
The problem with which Clause 29 (3) seeks to deal is one of the construction or interpretation of enactments and private deeds and instruments. The problem as I see it with the amendment is that it would limit the rule only to future enactments and instruments. That would be unfortunate enough, in my view, if Clause 28 were an entirely new provision. But it is not. We now have to contemplate three eras, as it were. The first time is before the passing of the Family Law Reform Act 1987, when there was no statutory provision governing the paternity of children born by donation and therefore no need for a rule of construction.
In passing, perhaps I should say a word about the strictures of the noble Baroness, Lady Phillips, on the Bill. I believe that the noble Baroness would like to see these treatments controlled and that therefore she would like to see the Bill enacted; otherwise there would be no control of the treatments. The precise terms on which the Bill should proceed is another matter. I think she may be going too far, having regard to her own wishes, in wanting to destroy the Bill altogether.
Then came Section 27 of the 1987 Act, which conferred social fatherhood in AID cases on the woman's husband. No special rule of construction was included in that Act. I accept that the point was not discussed at that stage but Parliament passed the law in relation to England and Wales. No special rule of construction was included in that Act to exclude children born in this way.
Now we have the clauses of this Bill which in major part repeat Section 27 of the 1987 Act but extend it to all children born by donation to a married woman. On this occasion we have decided to provide a rule of construction. However, unless we are to make distinctions between existing AID children whose paternity is governed by Section 27 of the 1987 Act and future children whose paternity will be governed by Clause 28 of this Bill this Bill, we cannot limit the rule of construction to future cases only. Some rule is required in relation to the past. We have therefore settled so far on a broad rule unlimited in its application by reference to time.
The suggestion has been made, in particular by the noble Earl, Lord Erroll, that such a rule is

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retrospective and unfair especially to past testators and those who have executed trusts and other instruments. I doubt that in practice there will be unfairness. The rule in Clause 29 (3) is not an iron rule. It will not prevent a person, if he so wishes, distinguishing between children born by donation and others.
4.15 p.m.
The Earl of Erroll: My Lords, we are talking about deeds that have already been executed and cannot be changed. This amendment deals purely with deeds and so on that are already in existence. The amendment does not apply to future deeds. The Bill as drafted applies to such deeds retrospectively. The people who executed them cannot change them.
The Lord Chancellor: My Lords, I am well aware of that point and I am seeking to deal with it by saying that Clause 29 treats the child as related to the mother or father in question. But I am making a different point now. I am saying that that does not exclude the possibility that a person seeking to construe an existing deed might be able to show that it did not contemplate a child born by donation but restricted the children to children who were born by natural methods. It will be perfectly open to any person to argue that the terms of a past or indeed a future instrument showed a contrary intention to that of Clause 29 (3) and therefore excluded children by donation. This seems to be the correct approach and it applies whether in regard to the large estate referred to by the noble Baroness, Lady Phillips, a castle or whatever may be at issue.
To provide otherwise would mean presuming that testators and others in the past would have wished to exclude from their benefit children born as a result of donation. That is the essence of the amendment. I believe that it is impossible to tell in respect of those who made these deeds in the past whether or not that would necessarily be so. If there are indications in the deed which show that, there is nothing in the clause to exclude such considerations.
If this amendment were passed it would lean towards discrimination against children born by donation. My noble and learned friend Lord Roskill said that you have to discriminate against one or the other. I think that that really is a fundamental truth. If you accept an amendment of this sort, you have to discriminate against one or the other. If that is the problem that is faced, I believe that there is no particular reason why one should discriminate against children born by donation. But I believe that the clause as drafted enables the argument to be open on the terms of any particular deed, or instrument, that the intention of the testator as set out in the deed or instrument would exclude such children. If that is right, then that would be the proper effect.
To provide otherwise, as I say, would lean towards discrimination against children born by donation so that in the same family siblings might be treated differently on a technicality, and it would make the law unnecessarily complicated by distinguishing between the three areas to which I have referred.
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The three times— the three eras, if one likes— would be the period before the 1987 Act so far as England and Wales are concerned, that during the existence of the 1987 Act, and then that from the time when this particular Act comes into effect.
I am certainly willing to consider this matter further to see whether a better arrangement can be made than we have in this clause. It may be that some saving language would be possible, but certainly as it seems to me at the moment this particular amendment goes the whole way towards discriminating against children born by these treatments, and I believe that that is wrong. On the other hand, I would certainly be willing to see whether there is some way in which it would be even clearer that it is open to argument on a particular deed, or other instrument, what the conclusion should be.
I certainly cannot recommend your Lordships to accept this amendment as it stands. I have sought to consider the matter quite carefully in the light of what was discussed at Report stage and the illustrations given by my noble and learned friend Lord Jauncey of Tullichettle at that time. I am extremely sorry that he is not able to be with us today for reasons of illness. I am sure that I speak for all your Lordships when I say that we hope that he will soon be restored to his place among us again. In the light of these explanations I hope that the noble Lady may feel able to withdraw the amendment.
Lady Saltoun of Abernethy: My Lords, I have listened carefully to what the noble and learned Lord has said. I have to say that I simply do not see how someone interpreting a will, or a trust, made many years before this Act— or indeed possibly before some of the techniques now in use were ever thought of— could possibly decide whether or not someone who had not mentioned the possible existence of a donor child in his will, or his trust deed, wished a donor child to take under that deed or did not wish the donor child to take under that deed. With great respect, I think that the most reasonable interpretation would be that he probably did not wish the donor child to take under that deed.
While I am extremely grateful to the noble and learned Lord for saying that he would consider this matter again and see whether it would be possible to do anything, at the same time I really feel that this is a matter of principle, that retrospectivity is involved here, and that I should very much like to test the opinion of the House.
4.25 p.m.
On Question, whether the said amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 65; Not-Contents, 133.

DIVISION NO. 1

CONTENTS

Ackner, L.

Broadbridge, L.

Belhaven and Stenton, L.

Brougham and Vaux, L.

Brain, L.

Butterfield, L.

221

Carnock, L.

Murton of Lindisfarne, L.

Cawley, L.

Norfolk, D.

Clitheroe, L.

Perth, E.

Cullen of Ashbourne, L.

Pitt of Hampstead, L.

Erroll, E.

Radnor, E.

Falkland, V.

Raglan, L.

Gisborough, L.

Rankeillour, L.

Grantchester, L.

Robertson of Oakridge, L.

Gray, L.

Romney, E.

Griffiths, L.

Roskill, L.

Hailsham of Saint

St. John of Fawsley, L.

Marylebone, L.

Salisbury, M.

Halsbury, E.

Saltoun of Abernethy, Ly.

Hanworth, V.

[Teller.]

Havers, L.

Selkirk, E.

Hylton-Foster, B.

Sherfield, L.

Keith of Kinkel, L. [Teller.]

Simon of Glaisdale, L.

Killearn, L.

Slim, V.

Kinloss, Ly.

Somers, L.

Kinnaird, L.

Strabolgi, L.

Kuntsford, V.

Strathcona and Mount

Lauderdale, E.

Royal, L.

Lyell, L.

Swinfen, L.

Massereene and Ferrard, V.

Templeman, L.

Middleton, L.

Terrington, L.

Monckton of Brenchley, V.

Teviot, L.

Morris L.

Tryon, L.

Morton of Shuna, L.

Whaddon, L.

Mottistone, L.

Wilberforce, L.

Mountgarret, V.

Winterbottom, L.

Mowbray and Stourton, L.

Wynford, L.

NOT-CONTENTS

Addington, L.

Graham of Edmonton. L.

Alexander of Tunis, E.

Grey, E.

Allerton, L.

Grimond, L.

Alport, L.

Grimston of Westbury, L

Annaly, L.

Hayter, L.

Arran, E.

Henderson of Brompton, L.

Attlee, E.

Henley, L.

Auckland, L.

Hives, L.

Aylestone, L.

Holderness, L.

Balfour, E.

Home of the Hirsel, L.

Belstead, L.

Hood, V.

Bessborough, E.

Hooper, B.

Blackstone, B.

Houghton of Sowerby, L.

Blatch, B.

Hughes, L.

Blyth, L.

Jay, L.

Bonham-Carter, L.

John-Mackie, L.

Borthwick, L.

Joseph, L.

Brabazon of Tara, L.

Kaberry of Adel, L.

Bruce of Donington, L.

Kilbracken, L.

Butterworth, L.

Kimball, L.

Caldecote, V.

Lawrence, L.

Campbell of Croy, L.

Listowel, E.

Carmichael of Kelvingrove, L.

Llewelyn-Davies of Hastoe, B.

Carter, L.

Lloyd-George of Dwyfor, E.

Cledwyn of Penrhos, L.

Lockwood, B.

Cocks of Hartcliffe, L.

Long, V.

Colnbrook, L.

McGregor of Durris, L.

Constantine of Stanmore, L.

Mackay of Clashfern, L.

Cottesloe, L.

Mackie of Benshie, L.

Darcy (de Knayth), B.

Margadale, L.

David, B.

Molloy, L.

Davidson, V. [Teller.]

Mountevans, L.

Dean of Beswick, L.

Munster, E.

Denham, L. [Teller.]

Nathan, L.

Dilhorne, V.

Nelson, E.

Dormand of Easington, L.

Nicol, B.

Ellenborough, L.

Norrie, L.

Ennals, L.

Northbourne, L.

Ewart-Biggs, B.

Northfield, L.

Faithfull, B.

Nugent of Guildford, L.

Fanshawe of Richmond, L.

Orkney, E.

Ferrers, E.

Orr-Ewing, L.

Fraser of Carmyllie, L.

Parry, L.

Fraser of Kilmorack, L.

Pender, L.

Galpern, L.

Peston, L.

Glenamara, L.

Ponsonby of Shulbrede, L.

Goold, L.

Porritt, L.

222

Prys-Davies, L.

Taylor of Blackburn, L.

Quinton, L.

Taylor of Gryfe, L.

Reay, L.

Thomson of Monifieth, L.

Robson of Kiddington, B.

Thurlow, L.

Sainsbury, L.

Tordoff, L.

St. Davids, V.

Trefgarne, L.

Sanderson of Bowden, L.

Trumpington, B.

Sefton of Garston, L.

Turner of Camden, B.

Sempill, Ly.

Ullswater, V.

Shackleton, L.

Underhill, L.

Shannon, E.

Vaux of Harrowden, L.

Shaughnessy, L.

Waldegrave, E.

Skelmersdale, L.

Wallace of Coslany, L.

Stedman, B.

Walston, L.

Stockton, E.

Warnock, B.

Stodart of Leaston, L.

Wedderburn of Charlton, L.

Strange, B.

Wigram, L.

Strathmore and Kinghorne, E.

Williams of Elvel, L.

Winstanley, L.

Suffield, L.

Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.34 p.m.
The Duke of Norfolk The Duke of Norfolk moved Amendment No. 18:
Page 16, line 12, after ("dignity") insert (", coat of arms").
The noble Duke said: My Lords, with your Lordships' permission I shall speak also to Amendment No. 19. We have dealt with a complicated matter upon which your Lordships have just voted. This matter is simple and relates also to inheritance. At the moment the inheritance rules in this country provide that inheritance is by blood descent when born in wedlock. That is how, for instance, one succeeds to being a Member of your Lordships' House. By the amendment I wish to include "coat of arms" as applying also to England and Wales. It is already included in Scotland in subsection (5). We stupidly left it out when referring to England. The result of the amendment being accepted would be that the position in England would be the same as that in Scotland. The subsection would read:
"dignity, coat of arms or title".
I beg to move.
Lord Teviot: My Lords, my name is also down to the amendment moved by my noble friend the Earl Marshal. I shall give a textbook answer and I hope that your Lordships will bear with me. Coats of arms fall within the jurisdiction of the High Court of Chivalry. Since 1521 the court has always been held before the Earl Marshal or his surrogate. The Earl Marshal's right to adjudicate was recognised and confirmed by letters patent of King James I in 1622 and his grandson King Charles II in 1672.
The court last sat in December 1954, and my noble and learned friend the Lord Chancellor relied on the statement of Lord Goddard, sitting as the Earl Marshal's surrogate in that case, that in his opinion the right to bear arms is a dignity. That statement was an aside or technically an obiter dicta— a judge's expression of opinion which is not essential to his decision and therefore without binding authority.
Perhaps I may draw your Lordships' attention to another statement made by Lord Goddard in that case when he said:

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"The surrogate of this Court and the advocates who practised in it were always civilians and there seems every reason why the practice which obtained in the Courts of the Civilians should apply here".
That means that the High Court of Chivalry is a civil as opposed to a common law court. That means Roman civil law as opposed to English common law. Dignities and titles of honour are a matter of common law. That is why I have the gravest doubts that coats of arms, which come under the jurisdiction of the High Court of Chivalry— a civil law court— are covered by the word "dignities" when dignities are subject to the common law.
My noble and learned friend the Lord Chancellor referred to earlier statutes; for example, the Adoption Act 1976, the Legitimacy Act 1976, and the Family Law Reform Act 1987. He said that if coats of arms were specifically mentioned now those statutes might be put into a certain amount of doubt. If a mistake or an omission were made in the past, there is surely no reason to compound it now. We must consider the present legislation. My noble and learned friend has expressed his willingness to include coats of arms, which are generously included in the kingdom of Scotland. I urge your Lordships to define a dignity as including coats of arms.
The Lord Chancellor: My Lords, there is no difference between us on what the result would be so far as concerns coats of arms. We are all, I believe, agreed that they should be treated under this provision. The only question is whether they need to be separately mentioned or whether they are already covered by the word "dignity". The most modern answer to that point of which I am aware is that given by Lord Goddard sitting, as my noble friend said, as the Earl Marshal's surrogate in the case to which I referred— Manchester Corporation v. The Manchester Palace of Varieties in 1955.
I should like to make it clear that dignity includes coats of arms. I am not keen to include it expressly in the Bill because it is not in the other statutes to which reference has been made where it was obviously intended to be included under dignity.
Therefore, if we insert the provision here it is apt to be thought that the word "dignity" in these Acts does not include a coat of arms. I do not believe that that is what either of my noble friends the Duke of Norfolk or Lord Teviot would like. The question is therefore rather a technical one, and no less an authority than the late Lord Goddard, has been produced. He was sitting in the right place, in the Court of Chivalry, bound by that court's rules. I appreciate perhaps as much as anyone here the distinction between the common law of England and the law derived from civilians. I have views about the matter which I need not express at this moment.
On the other hand, consistency in the way in which these matters are dealt with is important. I believe that consistency dictates that we should not insert that provision. If there is any better authority available than the late Lord Goddard I should be happy to reconsider the matter.
The other possibility is to effect some amendments to the earlier statutes. But it would be difficult to
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affect the earlier statutes in this statute, for reasons which are clear about its scope. Therefore, unless my noble friends wish to create doubt about the scope of the provision for "dignity" in the other statutes, they would be well advised not to press the amendment.
As concerns Scotland, the matter is clear. We have inserted the provision because we believe that in Scotland it is wise to make it express. So far as I know, there is no corresponding problem there on other statutes. When it comes to settling policy, if a court ever had to consider the matter I believe that would be helpful in reaching the view that this expression was omitted by Parliament in the light of Lord Goddard's statement of the position. There is no policy difference between us; it is only a question of the best and clearest way in which to express that policy in all the circumstances.
The Duke of Norfolk: My Lords, with the assurance from the noble and learned Lord that Lord Goddard's use of the word "dignity" included "coat of arms" I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
4.45 p.m.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 20:
Page 16, line 25, at end insert:
(" (5A) In implementation of the provisions of subsections (4) and (5) above where any question arises in legal proceedings as to the right of any person to succeed or transmit a right to succeed referred to in subsections (4) and (5) above, the Licensing Authority may be required by the Court to certify that such person has not, according to their records been born as a result of any egg or sperm donation.").
The noble Lady said: My Lords, at Report stage I withdrew an amendment to give the College of Arms or the Lord Lyon King of Arms the right to obtain relevant information from the licensing authority where any question arose under Clause 28 (3), now Clause 29 Subsections (4) and (5). I withdrew the amendment because I accepted the argument of the noble and learned Lord the Lord Chancellor that it was so widely drawn that it would have enabled those two august bodies to obtain confidential medical information far in excess of their requirements, with no obligation of confidentiality.
However, I return to the point that, without some power to elicit from the licensing authority a bare minimum of information as to whether a person might or might not be a donor child and therefore excluded from the right to succeed or transmit the right to succeed under Clause 29 Subsections (4) and (5), no court will be able, should a dispute arise, to determine that person's right to succeed or otherwise.
Upon carefully reading what the noble and learned Lord said in col. 1483 of Hansard of 13th March, I cannot help thinking that he and I envisage the situation from different ends. He said:
"If there is a question about a particular treatment and succession, the person asking the Lord Lyon or the College of Arms to make a grant or declaration could well be asked to deal with the matter. After the age of 18 a person affected has the

225
right to obtain such information. In that situation the College of Arms could make it a condition that the information should be disclosed by the person making the request in order that a check can be made."
I think that the noble and learned Lord envisages a situation where a donor child claims a title, honour, dignity, coat of arms or whatever, possibly or possibly not aware of being a donor child.
I envisage the situation where the heir apparent is a donor child and the next heir, having reason to suspect this, challenges his right to succeed. I presume that where the donor heir apparent has reached the magic age of 18, the body having the duty to decide the case could require him to divulge such information as he had obtained from the licensing authority in support of his claim. However, where the donor or suspected donor heir apparent is a minor, possibly a baby, it would appear that the next heir, possibly an uncle, possibly a cousin, would have to wait for up to 18 years before he could prove or disprove his right to succeed in place of the donor heir apparent. That must surely be a very unsatisfactory state of affairs and not one calculated to make for happy family relationships, particularly where property may devolve along with the honour, dignity, title or coat of arms.
The noble and learned Lord said at col. 1479 of Hansard on 13th March:
"The amendment would not affect the question of succession to peerages which is, of course, a matter for your Lordships' House".
In the case of Scots peerages, the Committee of Privileges accepted in January 1964 the matriculation of arms appropriate to that peerage as sufficient evidence of entitlement to that peerage for the purpose of issuing a writ of summons, unless the Lord Chancellor had information which, in his opinion, threw doubt upon the validity of the entitlement. If the Lord Chancellor cannot obtain information for possibly up to 18 years, it seems rather hard on the rightful heir, should the heir apparent turn out to be excluded after all that time. I beg 1o move.
The Earl of Erroll: My Lords, I also put my name to this amendment because your Lordships decided by Clause 29 of the Bill that certain matters should be excluded so that donor children or grandchildren could not succeed to them.
There is no point in having a law unless it can be enforced. There is absolutely no point in having the clause unless it is somehow possible for the barest minimum of information required to make this clause effective to be made available to the courts or someone in order that a proper judgment can be made under it.
The noble and learned Lord the Lord Chancellor was worried that many cases might arise where people were forced to produce evidence that they were not donor children or, alternatively, that there would be vexatious cases. Inserting in the amendment that this applies only where any question arises in legal proceedings limits the provision immediately to only those matters where evidence has already been acquired from some other source or aspect that there may be some doubt as to
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the genetic parentage of the person who claims the title, honour or property. I think that goes a long way towards answering one objection of the noble and learned Lord the Lord Chancellor to the previous version of the amendment which went at an earlier stage.
As my noble friend Lady Saltoun said, it is ridiculous to wait 18 years. We could have problems because I seem to remember that in Scotland if certain things such as clan chiefships are not challenged successfully within 20 years they automatically devolve upon the person who claims them. In the case of a father dying when the child was very young, say a year old, it is possible for a question to have to await resolution until the child is 18 years old. By the time the information can be obtained, the time limit might have run out. That could give rise to a lot of misgivings as to how one should pass on dignities and titles and decide at what stage they had devolved upon the heir apparent. Such a measure as this would strengthen the hand of the court to obtain that information and ensure a speedy resolution of these problems so that proceedings were not dragged out. I cannot see why making the minimum of information available to the court could possibly be objectionable. We are not seeking information to reveal the identity of the parents, but merely to state whether it is all right for the person involved to inherit. That is the only information that needs to be divulged.
The Lord Chancellor: My Lords, as the noble Lady, Lady Saltoun, has pointed out, this amendment brings us back to ground that we have to some extent trodden before. It would require that where a dispute arose in the course of legal proceedings about a person's right to succeed to a dignity, title of honour or entailed property, the licensing authority would be required to provide where appropriate a certificate stating that according to its records the person had not been born as a result of egg or sperm donation. We are therefore considering an amendment which is concerned with the disclosure of information. Of course, if the person had been born after donation the authority would not be able to provide the declaration and one supposes the conclusion would be drawn by the outside world that the child had been born as a result of donation. For the reasons I have explained on earlier occasions "after" does not in fact necessarily mean "as a result of, but the inference would be there. That is rather a technical aspect of the matter. In other words, the authority is not really in a position to certify exactly what is provided there. That is the first point.
As I pointed out on Report, under the Bill as it stands, the disclosure of information held by the licensing authority is very strictly controlled. Clause 31 provides for the special case where the Registrar General is concerned with a claim that a man is not the father of the child. With this one exception, release of information which shows that an individual was or may have been born as a consequence of treatment services may be made only to a person who was or may have been born as a result of licensed treatment services in two types of case. The first is when, after age 18, the child seeks

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information about his or her genetic origins. The second is if the child needs information about whether he or she and an intended spouse are genetically related. There is no provision for the disclosure of information to individuals who are "third parties", if I may use that expression.
It is important that we should be clear that Clauses 27 to 29 of the Bill do not affect the fact that dignities and titles of honour pass through the blood line. We must also remember that the information which we are discussing is personal medical information and we must therefore ask ourselves if its disclosure can really be warranted when the price to pay is interference in the rights of the individual to privacy. It might also be helpful to consider what, in real life, leads to infertility treatment. A couple only seek treatment when they have not succeeded in having a baby by natural means: that fact will often be known to their family and friends. When undergoing infertility treatment there is likely to be a long journey between referral to a specialist and having a baby. Drug treatment and corrective surgery may be among the steps along the way to egg or sperm donation. By the time the journey has been completed the wider family will often be aware of the treatment. Yet an isolated infidelity, a night— or less— of adultery, could easily remain unknown forever to everyone except the two people involved. We have no way of compelling disclosure of the traditional method of corrupting the purity of the blood line.
In view of that I think it would be wrong to invade the privacy of a record kept by the licensing authority to check on the intimate details of a modern method which will, in most cases, already be known in substance to the family.
I have already mentioned the point about the certificate that is predicated by this amendment. The best thing to deal with is the question of whether a person was or may have been born in consequence of treatment services. The certificate would tend to undermine the presumption that a child conceived in a marriage is a child of the marriage— a presumption which can be important in holding a family together.
It is also important to note that there are other ways of obtaining information about this matter than going to this public record. The people who are involved, the parents for example, are witnesses who could be forced to attend the court and give evidence in the situation that is contemplated here. In a sense, the records of the licensing authority are only records of matters which will be available to be attested by others.
I referred to the age of 18 as being the age at which a person could obtain access to the information concerned. However, as regards someone else proving this information, which is the point with which the noble Earl, Lord Erroll, was particularly concerned, the information which is available would also be available to the court, whether or not the child whose antecedents were in question had reached the age of 18. It seems to me that the evidence involved in this issue, as in any other issue, would be available.
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The only question that arises here is whether the register that is compiled for public purposes in order to control these treatments adequately— that is the purpose of the licensing authority— and which is essentially private in relation to the individuals concerned, should be made available to the court. Nothing has been said as regards the fact that in a good case there may be other evidence available which may be better, more direct and first-hand than the evidence in question.
I suggest that the same approach would be taken in cases involving donation as would be taken in any other case where there is a question about the right of succession. Information about the circumstances surrounding the birth would be useful but not conclusive in reaching a decision. That information would have to be considered as a matter of inference from all the surrounding circumstances. It is not as if the register was the only way of dealing with this matter. I hope that the noble Lady may feel in the circumstances that she should not press her amendment.
Lady Saltoun of Abernethy: My Lords, before the noble and learned Lord sits down, I should say that I am still not quite clear how he would envisage enforcing Clause 29 (4) and (5). He said that a minor would have parents who could be forced by a court to disclose information. However, in such circumstances certainly one parent would be dead, and very possibly both. I am not quite clear how, in those circumstances, the clause would be enforced.
The Lord Chancellor: My Lords, it does not necessarily follow that the parents would be dead when the question arose, as the earlier amendment of the noble Lady shows. The question might arise, for example, in relation to a trust under an existing deed. However, the evidence that would be available in the ordinary case of a question about an illegitimate birth would be available in the same way in this case. I do not think that one should make special provision for this situation just because we happen to have created a record for the purpose of controlling these treatments.
The amendment of the noble Lady seeks to use these records for another purpose; namely, for determining a matter of succession. The purpose of these records is to ensure that the treatments are being properly supervised by the licensing authority to ensure that the conditions set out in the Bill, and as set out by the licensing authority in its carrying out of the Bill, are being properly complied with. That is the principal purpose of the records. The records are made available for the child himself or herself to determine his or her own status in this matter so far as the records can be helpful for that purpose. They may also provide information about whether a prospective spouse is or is not genetically connected with the person in question.
The amendment goes outside that purpose and I believe, that, just as in other cases where questions of this sort arise, the evidence that should be used is evidence that is available from some other source.
5 p.m.
Lady Saltoun of Abernethy: My Lords, I think that I understand what the noble and learned Lord is getting at. I am not altogether happy, but in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 21 not moved.]
Clause 37 [Offences]:
Baroness Hooper Baroness Hooper moved Amendment No. 22:
Page 22, line 2, leave out from beginning to ("authorised") in line 3 and insert ("gives or receives any money or other benefit not").
The noble Baroness said: My Lords, the amendment was spoken to with Amendment No. 5. I beg to move.
On Question, amendment agreed to.
Schedule 1 [The Authority: Supplementary Provisions]:
Baroness Hooper Baroness Hooper moved Amendment No. 23:
Page 26, line 34, at end insert:
(" (1A) The Authority shall secure that any employee whose function is, or whose functions include, the inspection of premises is of such character, and is so qualified by training and experience, as to be a suitable person to perform that function.")
The noble Baroness said: My Lords, the amendment has been spoken to with Amendment No. 2. I beg to move.
On Question, amendment agreed to.
An amendment (privilege) made.
5.1 p.m.
The Lord Chancellor: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.— (The Lord Chancellor.)
Lord Kennet: My Lords, I predict that the Bill which now leaves us will need major amendment or repeal quite soon. I shall give the reasons. The first is the lack of knowledge we have suffered from in discussing the Bill. We lack knowledge of three areas. I shall take them in turn.
The main benefit that we have been offered in return for breaking our taboo on using humans for experiments has been the circumvention of infertility. However, we have been given no proper information on the prevalence, the causes or the nature of infertility in this country. The Warnock Committee did not find that evidence, perhaps because it did not look for it. The Medical Research Council does not have it, nor has the interim licensing authority. The only available paper, of 1985, is statistically primitive: infertility is defined as not conceiving within 12 months of attempting to do so, and it therefore shows a substantial number of "patients" going on to conceive normally, without
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any treatment. Figures are now, incidentally, to be collected by OPCS, but that can be no substitute for a medically informed survey. The lifetime of any law made in such ignorance is likely to be short.
The second area of ignorance is the possible drawbacks of IVF/ET treatment. We have had no information of any medical follow-up of IVF/ET children or of their families, although in 1987 the Medical Research Council was saying that that would be desirable. The noble Earl, Lord Jellicoe, who is chairman of the MRC, has very courteously written to me recently saying that a joint survey with the Economic and Social Research Council might indeed be a good idea. I am glad of that. However, at the moment there is, I understand, no centrally held information, or if the data are there, they have not been analysed. They ought to be, before the law is made. We also have no account of any psychological problems after IVF/ET procedures, either successful or unsuccessful. I gather, from the papers of the great Euro-meeting on these issues held in Paris last October— of which again we have heard nothing— that those problems have been studied in other countries.
The third area is costs. We have had no account of the inclusive costs of the procedures— neither the ILA nor the MRC seems to have them: all they have disclosed is the marginal cost of securing a pregnancy in one NHS clinic, in the Hammersmith Hospital. That includes the cost of salaries, drugs and materials, but no other overheads. The true cost would also include the apportioned share per healthy baby born of accumulated research costs, the cost of special post-natal care whether in the clinic or later, of extra care for the higher incidence of multiple births, of any defects which may later turn up, and of anything else one can think of. I have asked both the MRC and the ILA for the UK costs comparable to the £ 25,000 published by Wagner and St. Clair in the Lancet last October, but they have not been able to produce them. They have produced only the Hammersmith Hospital's figure of £ 1,600 per pregnancy achieved. Why is there that colossal gap?
So on all those three points we have passed this Bill in the dark, and ignorance makes bad law.
We should note that we have heard very little indeed from those practitioners in the field who believe that much of what is now being done is both bad science and bad medicine. We have heard so little that we have forgotten the existence of those practitioners. I shall not try to express their argument for them, but I appeal to them to have it put in the House of Commons before it is too late, and put with all the vigour with which the pro-researchers have put their case. We passed this Bill because of a barrage of exhortation from the pro-researchers, to which there can be no objection, but one-sided information makes for bad law.
The Bill is incompatible with the Helsinki Declaration of 1964, as revised in 1975, which makes recommendations guiding medical doctors in bio-medical research involving human subjects. It says:
"the interest of science and society should never take precedence over considerations related to the wellbeing of the subject".

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The declaration also requires the:
"investigator or the investigating team to discontinue the research if in his/her or their judgment it may, if continued, be harmful to the individual".
The research which the Bill, as it leaves this House, proposes to permit is conclusively harmful to the embryos.
The Bill is also out of step with the law of comparable countries. Information about that is contained in the Gunning Report, published by the Government only last month, when the Bill was well on its way. Belgium, Canada, Italy, and the United States have not yet come to grips with the problem. Australia, France, Norway, Spain, the Netherlands, and Germany have all in one way or another decided to permit less embryo research than this Bill allows, or none at all. Only Sweden permits as much as this Bill. Our practitioners will have a good flow of business from abroad, but a law which contains major discrepancies with the law of one's friends and neighbours is a bad law.
The Bill is flawed in logic, and public opinion has a way of catching up with illogicality in time. The flaw is this: the humanity of the human being between conception and various subsequent, genetically programmed, events such as its implantation or the emergence of the primitive streak, has been obscured by the use of the neologism "pre-embryo". The purpose of that coinage has been to obscure the fact that the conceived embryo at one day or six days is no less human, and no less genetically complete, than at 14 days or 14 years. If you kill him or her before 14 days you kill a genetically complete and thus unique human being as surely as if you killed him or her at 14 years.
Lord Ennals: Absolute nonsense!
Lord Henderson of Brompton: My Lords, I wonder whether the noble Lord, Lord Kennet, will forgive me. The rules about speeches on Third Reading have been contravened by almost everything that he has said. I wish he would confine himelf to reviewing the Bill as it has been treated in this House, at great length, rather than making these points, which he might well have made at Second Reading, instead of in a very long speech at Third Reading. It is quite out of order.
Noble Lords: Hear, hear!
Lord Kennet: My Lords, I am of course in the hands of the House in this matter as in all others, but reviewing the Bill is precisely what I am doing and I have only one or two more points to make. I hope that the House will bear with me while I make them.
We should put one question to ourselves: will biology textbooks now be rewritten using the newspeak word "pre-embryo"?
Lord Ennals: My Lords, that word is not in the Bill. My noble friend brought in that word. That is the first time that it has been mentioned in the debate.
Lord Kennet: My Lords, it is true that it is not in the Bill, but it was used in the Warnock Report and in discussions.
Baroness Warnock: My Lords, I am sorry to interrupt. That word was not used in the Warnock Report. We certainly did not use the word "pre-embryo".
Lord Kennet: My Lords, I must apologise to both noble Lords who have spoken. I have made most of my points. Only a few remain. The House decided not to address the question of whether an IVF embryo is a person or a chattel, despite the fact that it has already tied the courts in knots in Australia and the United States. A Bill lacking foresight is bad law. Parliament should have settled the matter rather than leaving it to the courts.
Most of all, I believe that the Bill is bad law because it enjoins deceit. People who are not the genetic parents of individuals are to be deemed to be their parents. The Bill enjoins the concealment from individuals until the age of 18 of their own identity and enjoins the writing of false names on birth certificates. There is enough lying and concealment in the world without Parliament making it a duty to lie.
The best hope is that the Bill will prove easy to alter in the future, preferably immediately in the House of Commons. If not, we shall surely have to replace it within a few years.
5.15 p.m.
Lord Ennals: My Lords, I welcome my noble friend to the Benches on which he now sits, but that is the only welcome I have for anything that he has said this afternoon because I totally disagree with every word that he has said.
As to the knowledge of the House on this subject, none of us is an expert, but we have sought to do our homework. It was as long ago as 1982 that the noble Baroness, Lady Warnock, was asked to establish her committee and it was in 1984 that the report was published. There was a succession of White Papers, debates and Bills and we have at our disposal a great deal of evidence if we are prepared to take it. We have been able to draw upon the experience of the Interim Licensing Authority and of individual researchers. Any of us could have visited, as many of us did, the research centres which will be licensed by the Bill. I ask my noble friend: did he visit any of the research centres? If he did not, and his silence suggests that he did not— —
Lord Kennet: My Lords, perhaps my noble friend will give me an opportunity to say that I did.
Lord Ennals: My Lords, in that case I am surprised that my noble friend is so ignorant. He said that we are all ignorant. We have had the benefit of the advice of the noble Lord, Lord Walton, who has brought into the House refreshingly genuine knowledge. All the rest of us have learnt as we have gone along. We have also had the benefit of the advice of the Medical Research Council. We have tried to understand the Bill as best we can. I want

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to say how delighted I am— I express this as a personal point of view, not on behalf of all my colleagues; I have said that every time I have risen to speak— that we are passing the Bill to another place in a substantially improved form on the Bill that we received.
I want, first, to thank and congratulate the noble and learned Lord the Lord Chancellor.
Noble Lords: Hear, hear!
Lord Ennals: The noble and learned Lord is already held in high regard in this House, both personally and for his professional qualifications. His reputation has even been enhanced by his performance during our debates. We have seen him at his very best— clear in his presentation of a difficult subject and firm in his handling of contentious issues. Every time that he took away an issue which was of concern to a noble Lord and came back with it, he came back with it in an acceptable form, sometimes bringing together those who had profoundly disagreed when the issues were first debated. We have today had an example of the way in which he has enabled the Bill to be improved as we have gone along. I thank him deeply for what he has done because part of our task is to send to another place a Bill in the best possible form.
In congratulating the noble and learned Lord, I must of course congratulate his noble friend Lady Hooper who, in a personal sense, has had a difficult problem and has dealt with it in just that humane and modest way that we expect of her. If I give her that applause, it gives me some hope that we shall see those same qualities when we deal with some of the difficult issues in the National Health Service and Community Care Bill.
The Bill will bring hope that medical science will be able to make a major contribution to those twin scourges of infertility— I almost said infidelity; that has perhaps been touched on in the last debate— which affects roughly 10 per cent. of couples, and the large number of children born with major genetic defects to their own disadvantage and the disadvantage of their parents who bestow upon them so much love but whose lives are tragically affected. If we can bring some relief in the future, that will be a relief for all of us.
I thank God that new obstacles were not created to dash those hopes. I take great pride in the quality of the embryo research effort in this country. I have felt it a privilege to have worked during the passage of the Bill with some of those who are at the forefront of the research— men and women of the highest integrity. It would have been a tragedy for them if we had told them to pack up shop and move on to some other field. I understand that there is a shortage of accountants in the National Health Service. They could have been retrained, but they would instead have taken their skills abroad. I am glad that they are refreshed. I hope that, when the Bill goes to another place, it will be improved yet further, if that is possible.
I am also pleased that we have established a well-conceived system of statutory controls. That
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has brought satisfaction to all sides of the House who want to ensure the continuance of that strange work. I am thinking of the contributions made by my noble and very friendly friend Lady Phillips who finds it all very confusing and difficult to understand and accept. Like all of us, she wants to see the research strictly controlled by legislation.
Baroness Phillips: My Lords, perhaps I may correct my noble friend. I do not find the matter confusing; I find it totally repugnant and unnecessary.
Viscount Caldecote: My Lords—
Lord Ennals: My Lords, I have a long way to go yet. This is a very important Bill. I am pleased that we have dealt with that part of the Bill.
On the issue of research or no research, it is another area of satisfaction that the forces of progress— with a capital "P" if one wishes or a small "p"if one does not— led to two resounding voting victories of 232 to 80 and 216 to 80. Their importance is not just that they followed significant and well-informed debates, but that they give to another place a certain leadership in the strength of feeling and conviction which has existed in this House. Had the attempt to ban research gone ahead— and indeed the attempt, with which we had expected to deal last week, to ban research on the preparation of contraceptive vaccine to meet needs at home and abroad, particularly as it affects third world countries— we should have seen another major victory. We have not heard from the noble Lord the Chief Rabbi as to why he decided not to proceed with his amendment. We do not know whether it was a change of heart or a serious rethink, or whether it was the prospect of a heavy defeat. But I suspect that it might have been the latter and I do not blame him. To me it is no wonder that these major victories have taken place because of the sincerity and conviction of all Members of this House. Although I disagreed with the noble Duke, the Duke of Norfolk, on many amendments, I want to say how much I felt that his interventions were guided by sincerity and conviction. He conveyed that to us all. In our debates none of us has lost respect for the point of view presented from another side. It has been done with such dignity and conviction. That too must make us all proud.
I have only one disappointment; namely, that the Bill goes to another place with a heavy price tag on funding the authority. As we improved the Bill, we added to the costs of the research. As we insisted that there should be annual reports, properly trained and qualified inspectors and many other conditions, we piled costs on to the authority. We did so rightly because we want to ensure that the work is done properly. But we have done nothing to assist the new statutory authority, the clinics which they will license and inspect, and the patients who will be treated. I am very concerned about it.
There is to be a chairman of the authority and a full-time secretary who will have to be paid. There could not be fewer than 10 members of personnel. There will be sums needed for computing, supplies,

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telephones and other sundries. We are talking in terms of at least £ 300,000 or £ 400,000 for the running of the organisation. When it comes to the inspections if we send, as I think we must, a clinician, a scientist, a lay person and a secretary, we are probably talking of about £ 500 a visit. Every time that we improved the Bill, we added to the cost. It is very sad that the Government have not given an inch on providing more resources to enable this hopeful research to be carried out, and the costs not piled on to the patients.
We had an assurance from the noble Baroness that National Health Service patients would not have to pay. I am afraid that in most cases it means that many National Health Service clinics will find their work restricted. If the patients do not pay— and I am glad that they do not— the health authority has to pay. The health authorities are strapped for funds for other aspects of patient care. By the care with which we set up our licensing authority we may have made it more difficult for this work to progress as it should do.
I am grateful to the noble Baroness for receiving the representatives of those who have argued from all sides of the House that there should be no fees. We have not at all changed our views. Clearly the noble Baroness has not changed her views. She has not given an inch. She said that they were a listening government and they listened. That is all they did.
We must now consider the costs that we have imposed and how all this will be paid for. We must not have a situation in which the work which should expand will be forced to contract because of the overall costs. That is my only sadness about this legislation. My hope is that in another place it will be looked upon very seriously.
Finally, my thanks go to all those who are involved in this fascinating and, in my view, deeply moral research. My thanks go to the new statutory health authority for the many thousands who will be able to afford treatment that may greatly improve their future. I hope that another place will show the same sense that noble Lords have shown by not allowing this issue to be befogged by a debate on abortion, however important it may have been. I think that we have been wise. I hope that the other place will show the same wisdom.
I nearly tabled a manuscript amendment to the Long Title of the Bill on Third Reading, but then I thought "No, it will create trouble. They will not like it". So I did not do so.
Lord McGregor of Durris: My Lords, at this stage in our consideration of the Bill I feel that we should discharge some debts of gratitude. First, our thanks go to the noble Baroness, Lady Warnock, for the report of her committee which defined many of the significant issues of this tangled subject in such a manner that they could be determined, as they had to be determined, by public policy. Her report was certainly the forerunner of the White Paper of 1987.
Secondly, we owe a debt of gratitude for the high sense of responsibility which has been demonstrated by the bio-medical and scientific community in its
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acceptance of a main recommendation of the Warnock Committee's report in establishing the voluntary licensing authority for human in vitro fertilisation and embryology and subjecting research workers to a self-disciplinary regime under the authority's rules and guidance. Under the chairmanship of Lady Donaldson that authority became the model for the licensing authority which will be created by the Bill.
Throughout the passage of this Bill many noble Lords have emphasised the critical importance of the statutory authority in providing for Parliament and the public regular and reliable information about the research and therapies which it will license. Such information will be the foundation for building general confidence in the control system and giving security that the provisions of the Bill will be rigorously enforced.
Finally, I should like to thank the noble and learned Lord on the Woolsack for his fairness and neutrality from his speech on Second Reading onwards. His cooling stream of even-handed and lucid exposition, did much to ensure that our debates achieved a dignified atmosphere of tolerance for conflicting views. I should also like to associate myself with what the noble Lord, Lord Ennals, said about the sincerity and fairness with which the noble Duke dealt with his opponents on this issue. It is to be hoped that the example of this House will be followed in another place.
The Government deserve high praise for bringing forward this important legislation which I hope and expect will result in much reduction of suffering of parents and children in the future.
Viscount Caldecote: My Lords, the noble Lord, Lord Kennet, raised many issues with which we have been grappling over the past few weeks. We have wrestled with our consciences and with very difficult medical and legal issues. I agree with the noble Lord, Lord Ennals. I believe that we have greatly improved this Bill during its passage through this House.
The big issue has been about research on embryos. We said yes to that question, subject to strict control and regulation. But in connection with the importance of strict control and regulation, several people have commented to me that it is not much good having regulation and control because clever people can get round the conditions of such regulation. They can easily be avoided. Illegal activities can be concealed by clever scientists. Such have been the arguments. I believe that that is a view held by many people in this country.
It may be true, and I do not know to what extent it is true, but, to a small extent anyway scientists and research workers in this field may, under the provisions in the Bill, have had tremendous responsibility imposed upon them. The vast, overwhelming, majority of scientists and those involved will discharge their responsibility legally and honestly. But, of course, there are a few black sheep in every sector of society. The onus is on the scientific and the medical community and on their professional bodies to expose and disown anyone who tries to contravene the provisions of the Bill

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either in the spirit or in the letter or who tries to chip away at its changes.
It is most important that this should be done both for the sake of the high reputation of the scientific community and also in the interests of the nation as a whole. I hope that that plea will be taken to heart because so much of what we have done during the passage of the Bill through your Lordships House has been to ensure that the provisions of the legislation will be strictly enforced.
Lady Saltoun of Abernethy: My Lords, I, too, should like to thank the noble and learned Lord and the noble Baroness for their inestimable patience in replying so fully to such manifold and varied amendments; for their attempts to meet our many concerns where they and the Government saw fit to do so; and for their scrupulous fairness and even-handedness throughout the proceedings. I should especially like to thank the noble and learned Lord for the pains he has taken with regard to the welfare of children born as a result of gamete donation where the parents are not legally married. I hope that by this evening, as a result of announcements made by the Chancellor of the Exchequer in another place, there will be a lemming rush of cohabiting couples to the altar or at least to the registry office.
As the noble Lord, Lord Ennals, said, we have improved the Bill considerably but that is not to say that there is no room for improvement. I hope that Members of another place who may contemplate trying to amend the Bill further will read the Hansard reports of our debates on similar points. I also very much hope that the Government will look again at the question of wills and trusts made before the Bill is enacted. I think that there is an unacceptable element of retrospectivity in that area. I further hope that the noble and learned Lord will keep a very sharp eye on the functioning of Clause 29 (4) and (5) because I have serious misgivings as to whether those exclusions, so generously conceded by him, will turn out to be enforceable. Finally, I should like again to express, my grateful thanks.
5.30 p.m.
The Earl of Longford: My Lords, I spoke for a few moments on Second Reading— which seems a long time ago— but I have not troubled the House since that time. Before the Bill leaves this House I should like to offer a few remarks. I speak not as a theologian, a scientist or a lawyer, but as a rank and file Christian and what the noble and learned Lord, Lord Hailsham, on some occasions has called "the man in the pew". I speak without the authority of any of the Churches and, if they were represented today, perhaps they would repudiate me. As I said, I speak as the man in the pew.
However, what does the man in the pew do in such a situation? He is faced with all these incredibly difficult topics which carry him into the very depths of law, theology and science. No doubt he follows his conscience; but his duty is to inform his conscience. I think that he will, if he belongs to a Church, pay much attention to the guidance given by the head of his Church. It was not difficult for me to be
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convinced by a very powerful argument against research on embryos presented by Cardinal Hume last week. However, if I came before the House and simply repeated his words I might be regarded as an obsequious acolyte. Therefore, I would rather turn to the Church of England, to which I belonged about half a century ago.
Thus I turn to the Church of England. Powerful speeches have been made by the most reverend Primate the Archbishop of York and the right reverend Prelate the Bishop of London. However, the problem for the man in the pew is that they took diametrically opposite positions. Therefore he is still left thinking for himself.
There is one aspect about all this which must be cleared up. At one stage the noble and learned Lord, Lord Hailsham, introduced the evocative name of Galileo. We were given to understand that if we voted against research on embryos we would be adopting the attitude of the Pope who silenced Galileo. We were even told we might be following the example of those who strangled Wyclif for translating the Bible. Such terrible examples were presented to us.
In one of his interventions, the noble Lord the Chief Rabbi pointed out that everyone who had taken part in the debates was in favour of banning research and that it was just a question of when we did so. Everyone is in favour of introducing criminal law but, again, it is just a question of when it is to be done. One of the champions in this respect is my much admired noble friend and active leader, although in an unofficial sense today, Lord Ennals. He would ban the embryo research after 14 days. Therefore everyone is on the same footing; it is just a question of when it is done.
Thus the man in the pew is left feeling very uncertain. He may turn to the most reverend Primate the Archbishop of York and take note of something he said. As we know, the most reverend Primate was a scientist before he became an archbishop. In regard to an amendment put forward by the noble Duke, the Duke of Norfolk, he said that he would ban research after 14 days because at that point, but not before, one can say,
"that those cells will eventually develop, again given the right conditions, into a human person".
He meant that the research should be banned but not before 14 days.
On the other hand, great scientists have pointed out that the embryo is in one sense living from the beginning. On Second Reading I quoted a famous scientist who said that from the very beginning it represented what he called "nascent life". That is the point of view which I take. Therefore, in my opinion, if research is carried out on an embryo from the beginning it is research on nascent life. Thus, as the noble Baroness, Lady Warnock, said on an earlier occasion, in the end this is not a question of facts; it is one of values, and we must all follow our values.
A prominent man, one of our leaders— or a potential leader, if not actual at present— has told us that he cannot imagine any circumstances in which he would take a certain course. Some noble Lords may know to whom I refer. He is a very

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prominent gentleman. Likewise, I cannot imagine any circumstances in which I would support the Bill. There is tremendous room for argument. Such honest people— Christians, non-Christians or whatever— can disagree so much on the ultimate merits of one course or the other.
There is one point upon which I am most dogmatic. I am quite sure that the right reverend Prelate the Bishop of London was right when he implied— although he made very plain what he thought— that if the Bill is passed the pressure from scientists to carry the period of research beyond the 14-day limit will never stop. Whether or not it is resisted will depend upon how sure we are: whether we are wiser when that issue arises than we are today. In the meantime, I can only hope that for once the House of Commons will show itself to be wiser than this House which, with all its vast merits, is not infallible.
Lord Ashbourne: My Lords, I rise to welcome the Bill as it introduces an element of regulation in an area where regulation is sorely needed. If noble Lords will cast their minds back, they may remember the debate which took place on the Warnock Report in the summer of 1984. I recall the occasion well. It was on the last day before the Summer Recess. The Bishop of Norwich, as he was then, Maurice Wood, said how remarkable it was that there were 40 or 50 noble Lords who had put their names down to speak in the debate when it was the last day of the Session and when in normal circumstances people would be slipping off to their castles in Scotland. Indeed, I expect that the noble Baroness, Lady Phillips, would certainly have slipped off to fill her moat or oil her drawbridge. And yet, the interest was such that there were 40 or 50 Members in your Lordships' House. I have been disappointed. As the Bill has gone through this House it seems to me that it has developed into what I may describe as a medical extravaganza. By that I mean that we have gone into the medical details in incredible detail. It is quite clear to me that many of your Lordships are three or four volumes ahead of me in Teach Yourself Gynaecology, obstetrics or whatever it may be.
As noble Lords will know, we are made up of three elements: body, mind and spirit. I believe that the House has not done itself justice by focusing on the medical aspects to almost the complete exclusion of the other two elements.
Furthermore, I have been very disappointed that the clear spiritual lead which I had hoped might come from the Church of England has been so evidently lacking in this Bill. It is true that the most reverend Primate the Archbishop of York made a powerful speech on Second Reading. It is for noble Lords to judge for themselves, but it seemed to me that he spoke more as a medical specialist than as a Primate.
Noble Lords: Oh, no.
Lord Ashbourne: My Lords, that was my view. As I say, noble Lords must judge for themselves, but that was my judgment on the matter. I felt that that
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was a grave shortcoming and may have been the reason why our discussions developed into a medical extravaganza at the expense of the mental and spiritual facets of the problem.
I end by saying how much I appreciate the wise guidance and counsel of the noble and learned Lord the Lord Chancellor. As has been said before, he has steered us adroitly and skilfully through the many ramifications and pitfalls of the Bill. We are all tremendously grateful to him for that and for the way in which that was done.
Lord Robertson of Oakridge: My Lords, I too welcome the fact that we have legislation to control human fertilisation and embryo research. I also join with other noble Lords in thanking and paying tribute to the noble and learned Lord the Lord Chancellor for his sensitive piloting of this measure.
I certainly agree with the noble Lord, Lord Ashbourne, about the absence of a clear spiritual lead from the Church of England on a matter which has involved some of the most important ethical questions since the Abortion Act 1967. I hope that the consequence of this Bill is rather more happy than the consequence of that Act, but that is another matter.
There are a number of flaws in the Bill; namely, the creation of embryos for research purposes only and the surprising fact that there is no lower age limit on donors. That seems to open the way to schoolboy donors, which I believe we shall find to be unappetising and unsuccessful.
I concentrate my remarks on the central issue of the Bill, which has tended to be submerged by unnecessary preoccupation with detailed amendments. That issue is whether it is morally acceptable to perform experiments on embryos which can have no therapeutic consequences for them.
I listened very carefully to the debates and, unless I am mistaken, no Member of your Lordships' House has said that he wishes to jettison the time-honoured principle that a human being should not be used as a guinea pig. If that is so, embryos can only be used for research if they are not human beings and if we do not see in them the beginnings of human life. The emphasis is on people who wish to do research to prove their point. It is no good thinking that human life is not present in the embryo. You have to be absolutely 100 per cent. sure.
To emphasise that point I offer your Lordships an illustration of what I mean. Imagine that you are an army recruit doing bayonet practice on a sack which you know is filled with straw and nothing else. You would have no compulsion about plunging your bayonet into the sack. However, if a seed of doubt were to be sowed in your mind that there might be a chance— albeit a very slim chance, perhaps one in a 1,000— that there could be a live child in the sack, not even the most ferocious sergeant major could persuade you to use your bayonet on the sack.
I fail to see how, in the face of the biblical and scientific evidence, anyone can be 100 per cent. sure that the embryo is not the developing human being made in the image of God which I consider it to be.

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Accordingly, I do not believe that we have been right to incorporate into this Bill a clause legalising research on the human embryo.
5.45 p.m.
Earl Jellicoe: My Lords, I only wish to make a few brief, simple and, indeed, simplistic comments and I do not intend to make a Second Reading speech. First, I should like to associate myself with what other speakers have said in thanking the Ministers responsible for their handling of this very difficult Bill. Above all, I thank the noble and learned Lord the Lord Chancellor on the Woolsack for his masterly piloting of it.
Secondly, I shall be giving up the chairmanship of the Medical Research Council in a few months' time after eight years' service. I feel very honoured to have been able to serve that council. In that time I have seen a good deal of its work in the field of molecular biology, cardiology and expanding our knowledge of that mysterious mechanism, the human brain. I cite those entirely as examples.
I have also seen a good deal of the work in the field of embryo research. I have been deeply impressed by the quality of that research, as have other noble Lords. I have been equally impressed by the quality of the researchers— the men and women engaged on that research. I have been impressed by their dedication, their seriousness of purpose, their gravitas— if I may use that word— and not least by their respect for the sensitiveness of others who may take a different view as to the viability of that research. I am very glad to be able to say that those dedicated men and women will be much heartened by the discussions and decisions in your Lordships' House. I hope that they will mirror discussions and decisions to be taken later on in another place.
That said, I add only one small caveat. Those who, like me, favour this research favour it subject to one very strong qualification; that is, that it is subject to the strict control of the proposed new statutory authority. I must confess— and here I am following the noble Lord, Lord Ennals, and my noble friend Lord Caldecote— that I am just a bit worried about the attitude which I think I detect in the Government towards the proposed new statutory human fertilisation and embryology authority, be it as to arrangements for the transfer of responsibility from the Interim Licensing Authority to the new statutory body, be it as regards the adequacy of the resources which that new authority will be given, be it financial, be it as regards people or be it in the context— again mentioned by the noble Lord, Lord Ennals— of the levying of fees. I have a certain distinct anxiety on that score.
I very much hope that between now and when this Bill becomes law— as I hope it will— the Government will give close attention to this matter and will hearken to the advice of somebody who has almost more practical experience in this field than anybody else, Lady Donaldson, who has successfully chaired the interim licensing authority since its inception. I should also like to repeat my thanks to my noble friends the Ministers responsible for the Bill for the way in which they dealt with it.
The Earl of Halsbury: My Lords, I rise with some trepidation to join issue with a man I much respect and whose absence from our proceedings I regret but who, for constitutional reasons, cannot be here. I refer to an article in The Times of Friday last by the Cardinal Archbishop of Westminster, which attributes motives to your Lordships by which I do not believe your Lordships were activated during the course of our debates, which debates were of a very high quality. He produces the theory that your Lordships were activated by myth. He describes these myths as follows:
"The first is the notion that freedom to experiment on human embryos is necessary to help infertile couples".
I have been at great pains to explain that in helping infertile couples IVF is a procedure of last resort. It is an experimental procedure, not on an embryo but on an ovum which turns into an embryo, which will either be implanted and, it is hoped, lead to the production of a human baby or, alternatively, will die in vitro after between seven to eight days. I do not accept therefore the first myth to which the Cardinal refers as being either characteristic of your Lordships' opinions during our debates or of the capacity of your Lordships for myth-making.
I also took some trouble to explain that there was an alternative to IVF, known as GIFT. It is not unique. Both I and my noble friend Lord Walton proposed amendments to bring GIFT within the provisions of the Bill. It is therefore not right to describe your Lordships' frame of mind in those over-simplistic terms.
The Cardinal continues in the article:
"The second myth is that embryo experimentation is necessary in the fight against inherited genetic diseases".
I and others have taken great pains to explain that the diagnosis and establishment of the genetics of these diseases are not performed by research on embryos, but on somatic tissue. Genetic tissue can be obtained in abundance because for every birth there is an after-birth, if one is interested in experimenting on embryonic material. It is only in the matter of selection that experiments on embryos are carried out. Selection and implantation are themselves experiments on embryos. I very much regret that my amendment to try and define "experiment" for the purposes of the Bill was not acceptable to the Government. The second "myth" therefore in which your Lordships are alleged to believe is again an over-simplification.
The Earl of Perth: My Lords, perhaps the noble Earl will give way. Is it really appropriate for the noble Earl to comment on an article which appeared in a newspaper which has been referred to and which is of great importance? In a sense it relates to the Bill, but the Cardinal is not here to reply. It is something I would commend to noble Lords to read, and to reach their own conclusions, and leave it at that. It was the article of Friday 16th March.
I hope that the noble Earl will think my suggestion is a better course, rather than trying to answer an article which many noble Lords may not have read and which does not directly relate to this Bill at this moment.
The Earl of Halsbury: My Lords, as to whether I should give way or continue I am in the hands of the House. I arranged with the noble Duke that he would follow me and be the spokesman for the Cardinal, who is not present. I am certain that his counsel will weigh heavily in your Lordships' deliberations.
The third "myth" attributed to your Lordships is described as follows:
"The third, and probably the most mistaken and dangerous, notion is that the medical and scientific establishment is not violating the sanctity of human life, but taking welcome advantage of the new-found possibility of researching into fertilized cells before they attain human status".
I do not believe that that is true of the medical profession. It is not my belief and I disclaim the attribution of that belief to myself. The period of gestation of a human being cannot be divided into two stages, in one of which it is not human and in the other of which it is. Everything involved is human. A sperm is human; an ovum is human; an embryo is human; and the fetus which results is human. They are all human through from beginning to end. It is quite wrong to suppose that you can divide the period of gestation into these stages.
I assure the noble Earl, Lord Longford, that extending experimentation beyond 14 days— because we have allowed the thin end of the wedge to enter— in the light of present knowledge is not possible. Embryos do not survive more than seven to eight days in vitro.
Lord Winstanley: My Lords, there is one point which has not been sufficiently emphasised in this debate and for that reason I rise to speak.
In Britain we live in a mixed and pluralist society containing different people of different backgrounds with different beliefs, many of whom will inevitably be wholly opposed to the work discussed during the debates on this Bill. However, the Bill does not oblige anybody to participate in this work. That point needs to be underlined. What does the Bill do? It merely enables research— which has been going on for 20 years now— to continue, but to continue under statutory, strict and careful control. It does not compel anybody to participate or acquiesce in that research; it merely allows it to continue.
I believe it is right that that research should continue, but it must be controlled, supervised and monitored by a statutory body. It is that which we have introduced in this Bill. By doing so we have done a service to all; not merely to those who support the Bill enthusiastically, but even to those who were opposed to the Bill. There is no conflict in my mind between people opposing this kind of research and yet believing that it is right that the Bill should go through.
I can pay no higher tribute to the noble and learned Lord the Lord Chancellor than to say that in all of his many admirable and lucid speeches on this Bill it has not been possible to tell precisely what his own views are. I can pay him no higher compliment. I hope that the Bill continues in the same way.
6 p.m.
Lord Houghton of Sowerby: My Lords, if I may say so we are in danger of becoming a little too cosy about this Bill. When the Bill leaves our care for a stormy passage elsewhere, it will meet with misrepresentation, abuse, and a ferocity which no sergeant major in my experience has shown. There is no ferocity to compare with that of doctrinaire and fanatical religious persuasion. We will get that on this Bill. It is only passing out of our care temporarily. It has to return and we are all deeply concerned as to its future progress through Parliament.
I rise for one purpose only, and that is to appeal to noble Lords in this House, who have influence elsewhere, to try and transfer to another place and to bodies outside some of the knowledge, experience and restraint shown in the controversy over this Bill in the past few weeks. It has been a model of how a working Parliament should carry out its business. However, it is not one that is easily copied by the representative House of Commons.
I shall not take up the time of your Lordships' House quoting from a recent circular sent to members by the Society for the Protection of the Unborn Child. It has just had a mammoth lobby outside this place. We all saw it last week. The instructions that have gone out to its members in that connection and for the future warfare on this Bill are indeed disturbing.
There are noble Lords who, wittingly or otherwise, have given their names to declarations made by the All-Party Parliamentary Pro-Life Group and by the Society for the Protection of the Unborn Child. Surely they should have considered with greater care before giving their names to tendentious propaganda and misleading and savage comments about the Bill and its proposals, not to mention the attitude towards this House. In those circumstances I hope that the 23 noble Lords who signed the SPUC manifesto, which was published in The Times and the Independent newspapers in January 1988, will not repeat it. I sincerely hope that any Members of your Lordships' House who are members or officers of the All-Party Parliamentary Pro-Life Group will endeavour to persuade the group to restrain its activities to the same sense of responsibility as we have shown in this House.
This is an important Bill. It is a turning point in medical research and in the destiny of mankind. Nothing like this Bill has previously been placed before Parliament. That is why there is deep concern about it. I have supported the Bill throughout its progress, and I still do. I hope that what is good in it and in its intentions will be seen before any of the disquieting aspects emerge. Surely we all mean that, now that the Bill has reached this stage. But this is not the end of the road. The Bill has to come back here if it is amended in another place. We have allowed free entry of the House of Commons to this Bill on the subject of abortion, so it will certainly come back here, probably containing an amendment on abortion and other amendments.
The time may come when we have to be steadfast as well as self-congratulatory on our activities on

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this Bill. I hope there will not be any weakness if that occasion arises on this important matter. Therefore, I take leave of this Bill with very grateful feelings indeed to all concerned who have taken part in the debates upon it. The noble and learned Lord the Lord Chancellor fully deserves all that has been said about him.
At this moment my thoughts go to the noble Baroness, Lady Warnock, who probably brooded over this problem before we had given it any serious attend an. In those circumstances I am sure she must feel that the end of her task has at least brought the ship into port; but what happens to the ship when it sets sail next week, we cannot be sure. However, our good will and our influence should go with it. Whether or not we agree with the Bill, we should certainly try to have some regard for the reputation of Parliament on this shambles that we have witnessed in Parliament over these moral issues for the past 10 years.
Let us get these matters in order at last and conduct our business in a spirit of high responsibility. In those circumstances I believe that we can part with this Bill with an easy conscience in the sense of duty done; otherwise, we are only passing into another phase of parliamentary controversy, abuse and mischief on matters of great importance to the people.
The Duke of Norfolk: My Lords, perhaps I may be permitted to endeavour to restore a moment of calmness. First, I want to thank the noble and learned Lord the Lord Chancellor. I honestly believe that he made a considerable difference to our debates as a mastermind. He was able to explain matters that we wanted to understand and he did so all the time. We owe him a great debt of gratitude. I know that many noble Lords have already said that, but I must say it too.
The noble Lords, Lord Ennals and Lord McGregor, kindly said something nice about me and I should like to say something nice about them. However, I fundamentally disagree with them on the simple point— I cut out all repetition about the embryo being a human being, and so on— that research on embryos has cured genetic diseases. So far no research on embryos has cured a genetic disease. That point was made by my noble friend Lord Walton, or at least he agreed with it. I believe that the only way to cure genetic diseases is to have research on, as I put it, grown-ups— on born, live people.
There is very good news in that respect, As recently as 8th March, Professor Sir David Weatherall, at a lecture to the Royal College of Physicians, said that progress has been made on blood diseases such as haemophilia and thalassaemia. This is to correct genetic abnormality by inserting healthy genetic material into adults who have these diseases and who have consented to the treatment.
The second example of light at the end of the tunnel is Professor Le Jeune who is trying to neutralise the influence of the extra 21st chromosome that causes Down's Syndrome by treating born patients who have this affliction. There is an attempt to try
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to deal with the third extra chromosome which should not be there.
Thirdly, Professor Williamson hopes to cure cystic fibrosis, using gene therapy, by correcting the defective gene in the lung cells of those patients born with this disease. All these experiments are carried out without using embryos. I understand that medical authorities have set up the Clothier Committee of which I gather the noble Baroness, Lady Warnock, is a member. The purpose of that committee is to set ethics on gene therapy being practised on adults. That illustrates that we are moving towards curing genetic diseases by experimenting on those who suffer from them and not by the sterile path of believing that it can be done by experimenting on embryos. I greatly welcome that progress and I hope that when the Bill goes to the Commons it will become better knowledge and more often quoted in debates.
I am grateful for the way in which your Lordships have taken my speeches in this Chamber. I remain in total agreement about certain points. I should add that I do not speak for the Cardinal. I am not the Cardinal's poodle and I should like to make that quite clear. The Cardinal may have poodles in this House but I am not one of them. He is a great man, a great cleric and a great spiritual leader, and I am sorry that the article caused such concern to the noble Earl, Lord Halsbury. I do not think it was as bad as he suggested and I hope that he will treat it as an article that was not intended to be all that controversial.
The Earl of Lauderdale: My Lords, one person to whom gratitude has not been expressed this afternoon but who has played a considerable part in keeping us informed on this delicate and difficult matter is my noble friend Lord Jellicoe. I do not agree with him and have not done so since the moment he used a description of the embryo, "a mere dot". However, he went to considerable trouble to make sure that anyone interested could visit one of the schemes of in vitro fertilisation. I took advantage of that invitation and I was much instructed. I came away deeply impressed with the sincerity, moderation and sense of responsibility of all who are engaged in that research.
Other noble Lords have referred to my noble and learned friend the Lord Chancellor but I must add my own little piece. I salute him for his wonderful clarity, his sparkling ingenuity in dealing with amendments and for such exemplary impartiality that none of us can have known his own views from anything he said. I also express my thanks and of all those who support, and who overtly support, the Pro-Life Group, for the leadership shown by my noble friend the Duke of Norfolk. He has been moderate; he has gone to great trouble to brief himself on the subject. He has worked himself to the bone to make himself very familiar with the subject and to deploy his arguments. We are greatly in his debt.
At the beginning of this process my noble and learned friend the Lord Chancellor invited us all to make up our minds, each one consulting his own conscience. He used the words "in stillness". Despite

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the cosy mood to which the noble Lord, Lord Houghton, referred— though he quickly broke it himself— of the debates in this matter, my conscience requires that before we send this Bill to another place so I make my protest as briefly as I can.
Quite apart from organised lobbies and so on, the public at large are surely horrified at the enormity of what is proposed, albeit by a three-to-one majority. I believe that this has opened a Pandora's Box of difficulties for the future. My conscience requires that I say that I believe that this legislation is playing God in the most intimate and sacred centre of life itself. If the embryo were not human then experimentation would have little purpose. Thanks to what we have consented to here, life may now be created simply for laboratory experimentation, however noble the purposes of that experimentation may be. The ethics of human vivisection have been condemned ever since classical Alexandria, and I believe that they are implicitly at work here. In exchanging the ethics of the farmyard for those of the family, I believe that human debasement has plumbed new depths. By what astonishing intellectual devices have scientists folded about themselves the mantle of prophecy and have actually foretold what is going to be discovered. The Hippocratic oath has been turned inside out. On the pseudo-moral plane the best we can offer is that prospective patients for treatment services are to be offered what is called "counselling". But counselling in terms of what ethics? What version of right and wrong? That is left open to chance.
I speak not as a Roman Catholic, though I am mistaken for one sometimes. I am simply a traditionalist Anglican. I applaud the final paragraph of the article written by Cardinal Hume which reads as follows:
"This is an issue of life and death, of fundamental human dignity and of the basic and unconditional respect we are bound to have for one another. Until recently our society has consistently recognised these values. Without them it will in future suffer incalculable damage".
6.15 p.m.
The Earl of Perth: My Lords, your Lordships have decided that the human embryo can, up to 14 days, be used for medical research. I remain deeply sad at the consequences for the future of this position. I wish to express one very strong hope, and it is this: if the Bill goes through more or less in its present form in another place I hope that it will in no way discourage or lessen the other avenues of medical research as instanced by the noble Duke who spoke about experimentation on grown-ups. Because medical research is possible on embryos, it would be tragic if there was less research conducted into other avenues. I wish to make that point most strongly.
I was further dismayed at the rejection of the amendment tabled by my noble friend Lord Jakobovits, the Chief Rabbi, at Report stage which prohibited the creation of human embryos specifically for experimental research. I do not quite understand what the noble Lord, Lord Ennals, said in that respect. I believe he said that it was a pity
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that my noble friend Lord Jakobovits did not follow it up. The amendment was taken to a Division and it was defeated.
Lord Ennals: My Lords, I am most grateful to the noble Earl for giving way. There was a third amendment tabled by the Chief Rabbi which he did not move and which he did not take to a Division. That would have prohibited research in an attempt to improve or create a vaccine for contraceptive purposes. He did not press that amendment.
The Earl of Perth: My Lords, I still believe that he did all that was appropriate, but I am not going to speak for the Chief Rabbi. I am extremely unhappy at what is going forward to another place. I shall not rehearse my reasons for that. It is well known that I am a Roman Catholic and, like a lot of other people of other faiths, I have been upset at what is going forward.
I commend what should not have been debated here; namely, the article written by Cardinal Hume. However, I leave it at that. I have expressed my unhappiness. I want to thank the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Hooper, as many others have done, for listening to all the suggested amendments that were put forward from all sides of the House. It was very noticeable that not only did they listen, but where they thought that there was any good reason for what we were asking, again and again they would say: "Please let us think about it; let us take the matter away and see whether we can produce an amendment to give effect to what you are saying at another stage". That happened again and again. I, and I am sure all noble Lords, are extremely grateful for that.
I refer, for example, to two amendments about which I was most anxious in relation to the licensing authority. My concern has been very well put forward in amendments today. I am happy at the thought that Parliament will have a chance in future to comment on whatever the licensing authority is doing. I believe that is of great importance and significance. I am most grateful to the noble and learned Lord the Lord Chancellor and to the noble Baroness, Lady Hooper, for having done what we asked of them.
Earl Jellicoe: My Lords, before the noble Earl resumes his seat I wish to give him this assurance: he expressed the hope that if Parliament in its wisdom were to decide that research on the early embryo should be continued, subject to strict statutory control, this would not diminish other research which is designed to improve genetic conditions.
I cannot speak for the medical community as a whole. The noble Lord, Lord Walton, is better able to do that. I shall chance my arm and speak for the Medical Research Council. I can give the noble Earl my assurance, as chairman of the council, that in no way will this legislation diminish the kind of research which we would be keen to undertake into those conditions.
6.20 p.m.
Lord Walton of Detchant: My Lords, I do not wish in any way to prolong what has already been an exceptionally lengthy debate. I had no intention of speaking at Third Reading today, but I wish to make one or two points. The first relates to the article to which my noble friend Lord Halsbury has referred, written by my friend Cardinal Hume. I share with him the honour of being an honorary freeman of the City of Newcastle upon Tyne, a city from which we both come, and I also share the honour of being a lifelong supporter of Newcastle United. I have to say, however, that I disagree most profoundly with his views as promulgated in the article to which reference has been made. He is fully aware of that because we have discussed it on a number of occasions.
I also wish to make the point, as I have said before during our debates, that I myself am a committed Christ: an. I am a lifelong member of the Methodist Church and have authority to say that the Methodist Church is making public before long a report in which it will express views almost identical to those expressed by the most reverend Primate the Archbishop of York in relation to this issue. It will confirm the view of many other theologians, including several of the Roman Catholic faith, who are in no doubt in their minds that the group of cells produced by the fertilisation of a human ovum by a human sperm within that first 14 days does not develop the individuation in which the first evidence of an individual can be discerned until the primitive streak appears on the 14th day. But it would not be my wish to prolong this argument, save to reply to the noble Duke, the Duke of Norfolk, about the issue of the treatment of genetic disease.
Of course every member of the medical and scientific community wishes to see treatment developed for genetic disease. There are indeed many inherited diseases for which treatment is now available; for example, the condition of phenyl-ketonaria which causes severe mental retardation if not identified and treated early in life. There are many other conditions where treatment has become available as a result of research. I would certainly support research being done towards the treatment of genetic disease by gene replacement. This is already happening, as has been said, in diseases like thalassemia, the blood disease to which Sir David Weatherall referred. But in some of the most devastating genetic diseases this will not be possible for at least another 10 or 20 years. In the interim, the prevention of inherited disease by embryo research is becoming feasible and is a possibility. Behind it lie the hopes of many parents who have had disabled children.
Surely it is preferable to identify within that group of cells resulting from fertilisation the presence of a harmful gene and to allow that group of cells to degenerate naturally than for the woman to carry a child with a major, fatal, crippling disease. Surely it is preferable to allow the pregnancy to proceed to 10 or 12 weeks and then to see whether or not the gene is present and carry out an abortion at that stage.
With these few remarks I hope that the Bill, which has been so widely and I believe wisely amended in
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your Lordships' House with, if I may add to all that has been said, the wonderful advice and support of the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Hooper, will have a fair wind in another place.
6.24 p.m.
The Marquess of Salisbury: My Lords, I should like to make some comments on the results of the Bill as it goes forward in its present state. I start with an obvious remark. Without conception this Bill would not have been necessary. We spent the whole of the several days discussing it dealing with the results of conception. Indeed, without conception, noble Lords would not be here.
At Second Reading the most reverend Primate the Archbishop of York set out the process of gradual evolution. He said in this connection:
"The 14-day rule, with all the safeguards surrounding it, seems to me to be a workable basis for such a consensus".— [Official Report, 7/12/89; col. 1022.]
Thus he pointed out that the proposed 14-day rule is in the nature of a compromise. That does not seem to me a very sound way of dealing with the origins of life. It could have major implications for the future. Moreover the decision was not reached as a result of a deliberate attempt to settle this important point but merely as a result of the desire to allow scientific research. Does this decision now mean that life does not begin until after the 14th day?
The most reverend Primate emphasised that he was speaking purely for himself when he said:
"I think it is fair to say that the Church of England has not yet taken a definite position on these matters". — [Official Report, 7/12/89; col. 1019.]
Surely the Church of England ought to have done. It ought to have a view on this important matter. I cannot but wonder whether it has funked the issue and is deliberately waiting before expressing a view until after the Bill becomes law. It is not a very happy record for the Established Church. I rather fear that it is one more nail in the coffin of this more or less moribund institution.
One can but compare the attitude of the Roman Catholic Church, which was very definite in the views which your Lordships rejected so decisively. I should like to add my tribute to those already paid to my noble friend the Duke of Norfolk, who I thought presented his case with great sympathy and moderation. Despite all that has been said— I listened carefully to the views of the noble Lord, Lord Walton, and of other noble Lords— I still believe that the view expressed by the noble Duke is a sound one.
I should also like to refer to the decisions taken with regard to AID. First, the proposals seem to be based on a fiction. It is simply not true to say that a child born by AID is legitimate. The fact that the mother carries the child does not mean that it is genetically hers any more than it would be in the case of a surrogate mother. Yet the law now says that it is. Perhaps I may give an example of what might happen. A case involving this issue comes before the courts. We know that, despite advice to the contrary, many litigants will bring such a case. The judge in his summing up will be bound on this

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issue to direct the jury that the child has to be considered legitimate, knowing that, in the accepted sense, this is not true. The jury, knowing this also, will have no option but to find accordingly.
Secondly, the Bill makes it difficult or impossible to trace the real parents. It also gives parenthood a new dimension. No longer is it only a genetic connection with children born of mothers. Children like many others will want to know who their parents and grandparents are. The House took the view that it was not in their interests to know. I find that hard to accept. Indeed, one very experienced social worker told me the other day that she and many of her colleagues felt that this was one of the worst aspects of the Bill.
Thirdly, children treated as legitimate are entitled to inherit property. One reason given is that the testator might have wished to include them had he known what was in the Bill. In this connection I must differ from the view expressed by the noble and learned Lord the Lord Chancellor. It seems to me much more likely that the settlor would have excluded the cuckoo in the nest. Fourthly, there would be two categories of AID children— those catered for under the main provisions of the Bill and those who have special rights of inheritance, who are treated differently.
The need for this Bill has arisen for two reasons. One is because the advances of science have made some regulation essential. I think that everyone in this House has accepted the need for it. The second reason, I would suggest to your Lordships, is that the teachings of the Church no longer have the support of the vast majority of the population. In the past, although the rules were often broken, they were accepted as the standard, and breaches were frowned upon. So long as this was so, it proved a satisfactory arrangement. There are many ifs and buts on this matter that are really not suitable for legislation, and what we have decided in the last few days must of necessity have been decided on a degree of uncertainty. However, since the Church has largely lost its influence, Parliament has stepped in. It remains to be seen whether the decisions we have made will turn out to be wise ones.
There is one area to which I would refer as particularly important, and this is the survival of the family unit. This to my mind is of paramount importance. It is already under pressure, and I fear that this Bill will not help it. Certain provisions that have been made force me to this conclusion. One is allowing for AID to unmarried women, and the other is allowing AID to unmarried couples, however long they have associated together.
For all these reasons, while I hope that the Bill will find the answers to the many questions to which it addresses itself, I fear that it may raise more problems than it solves.
The Lord Chancellor: My Lords, this is a highly important and complex Bill and one which the Government introduced after a long consultation and deep and careful consideration. It follows from the work of the committee chaired by the noble
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Baroness, Lady Warnock, which reported in 1984. I should like to join those of your Lordships who have thanked the noble Baroness, Lady Warnock, and her committee for the valuable work which they did then. There followed two further rounds of consultation before the White Paper was published in 1987. The issues have been exhaustively debated in public. Our debates in this House therefore have been the culmination so far of a long but nonetheless essential period of preparation.
It is right to begin by reminding ourselves of the existing position. At present there is no statutory control at all on the new scientific and medical procedures which have developed in the past decade or so in relation to in-vitro fertilisation and gamete and embryo donation. When some who have spoken have suggested that the Bill is undesirable, I think we have usually meant in some of its aspects. I do not believe that anyone in your Lordships' House believes that it is wise to go ahead without a statutory regulation of these matters.
Nor at the moment is there any adequate statutory framework governing the status and legal position of children born as a result of such treatments. We may differ, and in some cases differ quite markedly, about the form of statutory provision and especially on issues of embryo research. But I believe I am speaking for the whole House when I say that it is both necessary and right that this vacuum should be filled, and that there should be an adequate statutory framework in these new areas of scientific and medical development.
It is for this reason that while, in your Lordship's House and in another place, the Government have listened and will continue to listen very carefully to all that is said on matters of detail and remain committed to the principle that the question of embryo research should be decided through free votes, nonetheless, the policy that there should be an Act governing this area of our national life is a Government committment. The Government are anxious to secure, through the debates and decisions in this House and another place, a settled and acceptable framework on these matters.
It is partly for this reason, and partly out of respect for your Lordships, that my noble friend Lady Hooper and I have listened carefully to all the anxieties that your Lordships have expressed, and have endeavoured to find, so far as that is possible, common ground on these difficult issues. It has not been possible to find common ground on all issues. There are some that are still the subject of debate. They are matters of detail. Let me just take one example.
The noble Lady, Lady Saltoun, earlier today took to a Division a question about existing settlements and wills. I had said that we might consider that further, but we had a Division about it at the present stage. Of course that does not preclude our examining these matters further in the hope that, out of the differing views expressed today, it may still be possible to distil a common ground which would satisfy both parties.
On the principal issues in relation to research, and the extent of research, there are diametrically

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opposed views which it would be impossible to believe could give rise to a common ground. The reason for that, perhaps particularly in the spiritual dimension, is that very different views have been expressed. As one of my noble friends remarked, the Church of England has indicated that not all of those who hold high office in that Church have the same view on these matters. We have had the benefit in our debates here of hearing these different views cogently expressed. Your Lordships have had the benefit of the spiritual dimension as appreciated by these Members of this House and others in considering these questions.
It is against the background that I have just described that I go on to consider briefly the main features of the Bill as it has emerged from the long and thoughtful debates which your Lordships have given to this measure. The Bill seeks to establish a licensing authority' to control and license centres providing certain infertility treatments and, subject to the views expressed in another place, centres undertaking embryo research. This system of control is the centrepiece of the Bill and the new authority will have a very significant and sensitive task to perforin in ensuring that the licensing system operates effectively, and that the public has full confidence in its independence and soundness of judgment in a field of fast moving medical and scientific development. The Government fully support that, and I hope that the very slight doubt expressed by my noble friend Lord Jellicoe on that matter will be resolved.
Thanks to your Lordships' thorough consideration of the authority and its functions, and in particular to my noble friends Lord Jellicoe and Lady Platt of Writtle, the noble Lords, Lord McGregor of Durris and Lord Ennals, and the noble Earl, Lord Perth, the Bill now provides that the authority's reports will be produced annually, and that they should be prospective as well as retrospective. Following the raising of the subject by the noble Viscount, Lord Caldecote, the Bill now provides for annual inspections of licensed premises, and that the people who carry out the inspections should be of such character and so qualified by training and experience as to be suited to perform that function. I could not leave an account of the role and functions of the new authority without pausing to pay tribute to the work of the voluntary (now interim) authority under the distinguished leadership of its chairman, Dame Mary Donaldson.
I am sure that in our work on this Bill we have a great occasion for gratitude to that authority as well as to the scientific and medical community that have voluntarily placed themselves in this field under the guidance of that authority. That is a measure of the responsibility shown in this delicate area by those engaged in this work.
It is not on the issue of embryo research that opinions are most widely divided; and most strongly held. It was the conclusion of the House that the possible benefits of research on human embryos justified its being conducted up to 14 days subject to the strict controls provided in the Bill. The careful scrutiny to which your Lordships subjected the Bill, and the amendment put down by my noble friend
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Lady Elles, which the House debated, have ensured that it is now drafted to make clear that the controls on research apply from the beginning of the fertilisation process until the 14-day period has expired. Both those who spoke in favour of research and those who took the contrary views— that the possible benefits of research could not justify the violation of the humanity of the embryo— debated their arguments lucidly and with admirable calmness and tolerance.
I was also pleased to see that support which the noble Lady, Lady Saltoun of Abernethy, and the noble Lords, Lord Robertson of Oakridge, Lord McGregor of Durris and Lord Ennals, gave to the amendment relating to the welfare of children. It is clearly a matter which should be most seriously considered by those providing infertility services regulated by the Bill. That will be dealt with in more detail in the code of practice which the authority is required to prepare under Clause 25. That amendment also fits in well with the Children Act 1989, which your Lordships considered in much detail last Session, which makes the welfare of the child the paramount consideration. The Bill also provides that all patients receiving treatment must be provided with the opportunity to receive counselling so that they are fully aware of the implications of the procedure they are undertaking. That is the primary purpose of the counselling. That, too, will help those concerned to focus on the future welfare of any child who may be born as the result of treatment.
A further issue which commanded a great deal of your Lordships' attention was that of information to be given to the children who were, or may have been, born as a result of the treatment regulated by the Bill and to third parties. With the exception of the special case where the registrar general is concerned with a claim that a man is not the father of a child, release of information is for the benefit only of the person who was or may have been born as a result of licensed treatment services in two types of case. The first is when, after the age of 18, the child seeks information on his or her genetic origins. The second is if he or she needs information about whether he or she and an intended spouse are genetically related. That basic policy of the White Paper that only non-identifying information should be revealed, and then only to the person born as result of the treatment to which the information relates, has found favour with the House, subject of course to the possibility that as matters develop that information may be enlarged.
This is an important Bill which deals with questions of great moral, ethical, spiritual and religious significance for our society. It is indeed fitting that those issues have been addressed by those in the House who lead or represent religious opinions such as the most reverend Primate the Archbishop of York, my noble friend the Duke of Norfolk, the noble Lord, Lord Jakobovits the Chief Rabbi and many others. These have often been difficult matters which have aroused much interest and attention. I believe, however, that your Lordships' House has explored very carefully the many issues involved and has debated them skilfully and with a thoroughness

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that ensures the Bill is now ready for its passage to another place.
I should like to thank all the noble Lords, the noble Lady, Lady Saltoun, and the noble Baronesses who have participated in the consideration of this Bill. It would be invidious to mention individual contributions more than I have done already, but I have always been impressed by the unfailing determination of the noble Lord, Lord Kilbracken, to improve the drafting of the Bill, and of the noble Earl, Lord Halsbury, and the noble Lords, Lord Walton and Lord Zuckerman, to increase our scientific and medical understanding. It is through their efforts that the Bill leaves the House much improved and that is a tribute to the skill, courtesy and tenacity with which all the debates have been conducted.
My noble friend Baroness Hooper has been the Minister with primary responsibility for the Bill. It has been my great privilege to promote the Bill with her on behalf of the Government. I should like to thank on her behalf, and mine, all of your Lordships who have kindly made reference to our efforts. We have sought to obtain the maximum possible agreement on these delicate matters so that the statutory control goes forward on the basis of the maximum possible agreement.
Some of your Lordships have remarked that I have sought to be impartial on the issues where the Government have said that a free vote is appropriate. I have sought to maintain that impartiality. It was clear to me that the main issues would be decided by a large majority. I have felt it right therefore to preserve my own counsel. There is always the possibility that matters will return to the House in a delicate situation, and there may be advantages in that from my point of view. I have therefore imposed that degree of self-restraint on myself. I have the greatest pleasure in moving that the Bill do now pass, without in any way committing myself on the issues upon which a free vote has been given.
On Question, Bill passed, and sent to the Commons.

Law Reform (Miscellaneous Provisions) (Scotland) Bill [H.L.]
6.45 p.m.
The Lord Advocate (Lord Fraser of Carmyllie): 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.— (The Lord Advocate.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ALPORT in the Chair.]
Clause 1 [Information as to recognised charities]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 1:
Page 1, line 12, after ("Advocate") insert ("any").
The noble Lord said: Amendment No. 1 has been grouped with Amendment No. 6. For the convenience of the Committee it might be appropriate to add Amendment No. 2 to the group because it relates also to Clause 1.
The purpose of this part of the Bill, which deals with charities, is said in the Explanatory and Financial Memorandum to provide for the protection of charities in Scotland. The Bill deals with the regulation of charities. The long-term objective is to identify charities in Scotland, to provide a check on their activities and to provide information on those activities to the Lord Advocate in the public interest and to a lesser extent to members of the public. It is therefore important that no relevant information should be withheld from the Lord Advocate.
Amendment No. 1 is a one-word amendment. It releases the Inland Revenue from any restriction on disclosing to the Lord Advocate what might previously have been regarded as confidential information. With the amendment the clause would read:
"No obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise shall prevent the Commissioners of Inland Revenue … from disclosing—
(a) to the Lord Advocate, any information"—
instead of, as the clause now reads "information".
The purpose of that small amendment is to give statutory force to the requirement that the Inland Revenue must give "any" information requested by the Lord Advocate and not merely some information. It is important that the Inland Revenue should not be allowed to take advantage of any loopholes in the statute through which it might avoid disclosure of all material matters relating to the malpractices of charities which is what I understand Clause 1 (1) (a) strikes at. I have no particular reason to think that the Inland Revenue would behave in that way, but it can be, as we have all experienced, an awkward squad— if I may put it that way— with which to deal. It would be unfortunate if the absence of a statutory requirement led the parties into expensive litigation. The amendment will remove any doubt about that matter.
The purpose of Amendments Nos. 2 and 6 is to supplement the information in general which is already required to be given to the Lord Advocate and to any person who makes inquiries to the Inland Revenue. At the moment any person will be supplied with the name of any recognised body and the address last used by the commissioners for any communication. The amendments would add the words:
"and the names and addresses of places from which the said body claims, or has claimed, to operate and the names and addresses of any persons concerned, or claiming to have been concerned, in the management or control of the said body".
That is of some importance from the criminal point of view where suspicion exists of long-term fraud and where a far-reaching inquiry may be required. That is from the public interest point of view on the part of the Lord Advocate. That information will also assist a member of the public who may not be involved in a criminal investigation but may just

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wish to judge the status and quality of the charity to which he wishes to donate or from which he wishes to receive money. He may need to judge whether he wishes to become involved with that charity. I beg to move.
Lord Morton of Shuna: I hope that this amendment is not acceptable to the Government because it seems to me to be unnecessary. The purpose of the first amendment, I should have thought, was covered by the lines that follow, that it is restricted to information regarding misdemeanours, if I may put it like that.
I see no real point in the Inland Revenue being under a duty under the Act to give the names and addresses because without that information the Lord Advocate would certainly ask for and obtain it. The position is all covered. It seems to me that the Bill is complicated enough without adding to it.
The Earl of Balfour: I wish to say a word on Amendment No. 6. There are a number of charitable bodies where the trustees may be ex officio under the legislation for trusts in Scotland. I do not wish to go into detail but I belong to one society which is partly charitable. In the last 20 years we have had at least 10 different trustees. That is why I feel that Amendment No. 6 creates rather a complicated issue.
Lord Fraser of Carmyllie: I am sure that the noble Lord appreciates that on this clause it is important that the Inland Revenue should be discharged from the duty that it owes of confidentiality in respect of this information. As the noble and learned Lord, Lord Morton, indicated, the provision in Clause 1 (1) (a) is more than sufficient for my purposes.
There is a further consideration which will apply to the next amendment that we shall consider, Amendment No. 2, that the Inland Revenue does not hold all the information in the form that is set out in the amendment. It could not provide all the addresses that are suggested. The scheme we put forward is that the Inland Revenue should be relieved of the duty of confidentiality. Once the name and address of the body concerned has been acquired from the Inland Revenue, information can be obtained from the body itself of the kind which the noble Lord is considering and which is dealt with in the next amendment.
It may be a little obscure at this point but where, for example, the names of trustees are sought the information on the current trustees may not be with the Inland Revenue. If noble Lords turn to Clause 4 (3) there is reference to the Secretary of State determining what should be the contents of a report. Should there be any difficulties about obtaining these names and addresses, then steps could be taken by that route to ensure that the information is made available to members of the public.
As regards my interest in Clause 1 (1) (a), in regard to information it is important that the Inland Revenue should be relieved of the duty of confidentiality. I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that explanation and for his assurance to your Lordships' Committee that he is satisfied that he has sufficient powers under the clause. I take on board the points made by the noble Lord, Lord Morton, and the noble Earl, Lord Balfour. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 3:
Page 1, line 16, at end insert—
(" (b) to any person who is maintaining a register of bodies recognised as charitable with supporting information including the address, accounts and the names of trustees and the purposes of the trust").
The noble Earl said: The amendment examines the charity side from a slightly different angle. The central issue through most of the early passages in Clause 1 of the Bill is for the benefit of the Lord Advocate. I am not opposed in any way to the Lord Advocate obtaining information, but it is not the only side of a charity; there is another side. The side which I am trying to outline in Amendment No. 3 is that the charities available in Scotland should be better known so that people can obtain benefits from them or perhaps make a contribution to them.
I shall leave the curious position of charities in Scotland for my more learned colleagues to explain if at any time they wish to do so. I shall not attempt it myself. The only people who really know what charities exist are the Inland Revenue. Nobody else knows. I think it is important that the Inland Revenue should be free to pass on the information that I mention in the amendment; that is, information including addresses, accounts, the names of trustees and the purposes of the trust so that these can be put together in a register.
I do not say that my amendment is ideal for that purpose but it covers the issue. I should be happy to accept any amendment or make any change which my noble friend wishes to suggest, provided it goes towards making a Scottish register. That is important and it is in the interests of all trusts, all charities or whatever they may be, that this should happen. The provision is far-reaching; this has never been done before. I believe now is the opportunity for it to be established. I do not need to say any more at this hour. I beg to move.
Lord Mackie of Benshie: I have great sympathy with the purpose of the amendment. In a recent case I tried to help someone who was looking for support for a very good purpose. I had great trouble in finding out where anybody existed who could help. I failed miserably to obtain that help and I have no doubt that if there had been a register I should have been able to do something.
Lord Taylor of Gryfe: I wish to add my support for the purposes of the amendment. I have been a trustee of at least two charities in Scotland and believe that people who know their way around can generally find the appropriate charities to support their interest. However, the people who are perhaps

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in the greatest need do not necessarily know their way around the charities. As a result they fail to obtain the benefits for which the charities are available. In the circumstances, I hope that we can obtain some reassurance that a proper register will be available. It would be of great advantage to the people who require assistance.
Baroness Carnegy of Lour: I agree with the spirit of the amendment. I said on Second Reading that I felt that it was important to have a register in some form. I have since spoken to a number of people and also thought about it. I do not know whether my noble friend Lord Selkirk would agree, but what is needed is not just an enormous list of every charity in Scotland arranged alphabetically. That would be a confusing document. What is really needed is a list of the kinds of charities that people will want to look up, probably grouped according to interests. There would be charities interested in youth work, disabilities, old people, overseas aid and similar subjects. Such a register would have to be composed by a body which was capable of making this form of grouping. It would be necessary to anticipate what people were likely to seek when they consulted the register. I do not know how this situation could be arrived at— whether the amendment would cater for it. However, it seems to me that that is what is needed. It would not necessarily need to be a register of every single charity.
7 p.m.
Lord Cameron of Lochbroom: This amendment is grouped with Amendment No. 20 which stands in my name and that of the noble Lords, Lord Morton of Shuna and Lord Macaulay of Bragar. However, the debate has opened somewhat wider than Amendment No. 3 and it takes in the purpose which Amendment No. 4, which is in my name, also covers. It may be for the convenience of the Committee if I speak to that amendment and to the related Amendments Nos. 19 and 140.
As has already been pointed out, for the first time in legislation we are attempting to produce a scheme for supervision of charities in Scotland. It is important to realise that, as the Bill stands, what is proposed is merely the production of an index to be in the hands of the Inland Revenue. It is rather like a telephone directory in that if one does not know the name one is seeking it is of no use.
We can look South of the Border to what already exists in England and Wales. I take comfort from what is stated in the Government White Paper which followed the Woodfield Report. Chapter 3 of the White Paper deals with the register which is kept by the Charity Commissioners. One sentence of that paragraph encapsulates all that we have been talking about. Paragraph 3.4 states:
"The Register provides potential donors and other interested members of the public with access to basic information on the existence of registered charities, their purposes and their administrative structure".
We should observe the word "purposes". In that same part there is reference to the kind of volume of inquiries that such a register receives. It is said
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that the register includes in the order of 170,000 entries and that,
"the Commission has received roughly 30,000 enquiries a year from members of the public relating to information on the Register".
That quite clearly indicates the scope of the interest of the public South of the Border.
I must draw the attention of the Committee to the fact that some Members of the Committee will have received a memorandum from the Law Society of Scotland on this matter. That memorandum makes reference to the fact that solicitors who administer trusts and who attempt to seek charitable bodies to which to make donations can find no reference point from which to begin their inquiries. The suggested index does not provide any such reference point. The inquirer is given no clue as to the nature of the body or bodies which he is referred to, even if he knows their names. Indeed the only information he can obtain which is of any assistance is through his own research thereafter by writing and paying fees to such of the recognised bodies whose names and addresses have been given to him. That is not sufficient and I venture to suggest that the commissioners of the Inland Revenue have that information. I cite Section 9 (1) of the Charities Act 1960 which provides that the commissioners of the Inland Revenue may furnish the Charity Commissioners,
"with information as to the purposes of the institution and the trusts under which it is established or regulated".
Since at least 1960 the commissioners of the Inland Revenue have been accustomed to gather in that information.
In those circumstances it seems important to have a register in our own jurisdiction where the consultative document and the White Paper issued by the Secretary of State as the precursor to this measure suggest that of the order of 15,000 charities exist and that around 400 new charities each year are being established. Therefore, as the noble Baroness, Lady Carnegy, said, it is important that we should have a register. That register should be flexible.
What I have sought to do in Amendment No. 4 is to provide for the fact that the commissioners of the Inland Revenue cannot provide the register itself. Therefore, it must be provided by a body or bodies which have been designated by the Secretary of State. That is the purpose of Amendment No. 19. The flexibility there is that there may be more than one body which is designated to carry out that task. Therefore there may be a general register or one which is intended to reflect a distinct class or classes of charities.
The body which is designated to carry out that task, may be a voluntary body, such as the one of which I have the honour to be president, the Scottish Council for Voluntary Organisations. The noble and learned Lord on the Woolsack was my immediate predecessor as chairman of that body. The body may also constitute someone from within a government department. I believe that a registrar exists at the moment for educational endowments within the Scottish Office. It seems to me that the proposal would cover many of the anxieties which Members of the Committee have already expressed.

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I now turn to another aspect of this matter which is encompassed in Amendment No. 20. In that amendment I seek to give powers to a specific authority, a local authority, to carry out a not dissimilar exercise. But here the division is not necessarily that of class but one of geography. It takes its origin and genesis from Section 10 of the Charities Act 1960. I make no bones about the fact that the amendment reflects precisely the terms of that section. In that section Parliament has already provided in England and Wales the basis upon which the index is to be prepared, and for the publication of that index as well as its availability for public inspection and other matters. It provides that a voluntary organisation may be used as an agent to provide the index.
The noble and learned Lord the Lord Advocate may counter that by saying, "Ah yes, but we have similar powers in the Local Government (Scotland) Act 1973". He may instance Sections 87 and 88. However, a careful perusal of those sections will reveal that that is not their purpose. They deal simply with the services offered by charities, among other bodies and do not deal with the basic point of information of the kind which is dealt with in Section 10 of the Charities Act 1960. Parliament recognised that as in the Local Government Act 1972 one finds precisely the same powers accorded to English local authorities. Therefore it cannot have been considered that those sections were simply duplicating what had already appeared in 1960.
I apologise for having taken up the time of the Committee, but I believe that this is a most important point. I entirely agree with what has been said by the noble Earl, Lord Selkirk, that this is a glaring omission in the Bill. It must be covered in some way and I have suggested another way of covering it which is not dissimilar to that which the noble Earl has produced. However, there is a sting in the tail in my Amendment No. 19. I am really leaving it to the Secretary of State to undertake the burden of this designation, and with it the hope that perhaps some money will be available from Government funds to enable that to be done.
We are looking to legislation which is intended for the future to regulate the whole of the charity scene. In my submission, powers of this kind are essential in such a Bill. When I come to Amendments Nos. 4 and 2C I shall consider my position in the light of the response of the noble and learned Lord the Lord Advocate to Amendment No. 3.
Lord Morton of Shuna: Perhaps I may briefly add a little to what my noble and learned friend has said in support of the necessity for an index of charities. The purpose of this part of the Bill is to assist charity— to assist people who wish to give money to charity and to assist those who are entitled to receive money for charity. However, it seems to me that the list— wherever it is held and whoever compiles it— is an essential item of any such provision. It also seems to me that it is quite easy for the Inland Revenue either to prepare the list itself, including the purposes of charities, or to make the information available to anyone who should receive it.
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Under Clause 1 (7) of the Bill any charity which wishes to operate will require a certificate. Before issuing the certificate the Inland Revenue will have to be satisfied as to the purpose of the charity, otherwise it would not be a charity. Therefore, at the time of issuing the certificate the Inland Revenue knows the purpose of the charity. It can put that information onto computer or microfiche, or record it in some other way so that it is available. I should have thought that it was not beyond the wit of this Committee to suggest that since all the charities which are now recognised will want a certificate there is no difficulty whatever in producing a list of charities within the time which is no doubt to be allowed for this part of the Bill to come into force.
Lord Macaulay of Bragar: I should like to support what has been said by he noble Earl, Lord Selkirk, concerning Amendment No. 3 and by the noble and learned Lords, Lord Campbell of Lochbroom and Lord Morton of Shuna.
As has already been pointed out twice in Committee, the purpose of the Bill is the supervision and regulation of charities. The absence of a national register of charities leaves a large gap in the structure. I endorse the view that it should not be beyond the ingenuity of the Civil Service and others to get together and give Scotland a proper list of charities to which the public can have access. Such a list would allow the public to see readily what is going on in the charitable field so that they can make any inquiries they wish to the Inland Revenue in connection with alleged charitable activities by named bodies. Therefore, I support the spirit of Amendment No. 3.
I believe that the noble Earl, Lord Selkirk, recognised that Amendment No. 3 is rather widely framed. It would give to any person maintaining a register of charitable bodies the right to such information. That would mean that if 60 people decided to keep a register of charities in Scotland they could pester the Inland Revenue for details of the charities. That would lead to great duplication of effort. I believe that it would be more satisfactory if the amendments were taken on board by the Government and the matter was looked at seriously with a view to meeting the concerns that have been expressed in Committee.
The Earl of Balfour: I should like to make one comment on Amendment No. 20. The last subsection of the proposed new clause states that:
"A local authority may employ any voluntary organisations".
Do we really want local authorities to take on board the job of maintaining an index? Local authorities might seek information from voluntary organisations. However, in many cases such organisations are run by people who are unpaid and provide their services voluntarily. Very often the only person in a charity who deserves to be paid is the secretary; that is the most difficult position to fill. I feel that the suggested new clause, "Index of local authorities", is not drafted satisfactorily.
7.15 p.m.
Lord Fraser of Carmyllie: As I believe has been appreciated, as the consideration of the amendment has proceeded we have ranged rather more widely than the matters encompassed by the amendment. The amendment and those which follow centre on the issue of whether or not there should be an index or register to facilitate greater access to charities in Scotland. While I do not accept my noble and learned friend's description of that as being a glaring omission from the Bill, it is primarily intended that there should be supervision of charities in Scotland which I believe we all appreciate has been a glaring omission from the law in Scotland for some considerable time.
The Government indeed symphathise with the idea behind the amendments that a directory or index of charities in Scotland would be very useful. As the noble Lord, Lord Campbell, indicated, there are some 15,000 charities in Scotland which have been recognised by the Inland Revenue. In the scheme put forward in this part of the Bill disclosure by the Inland Revenue of the names of those charities which it recognises is the key to unlocking the information which is essential in order to build up a directory. I suggest that that disclosure, combined with the requirement under Clause 4 for charities to publish an annual report and accounts, will enable anyone wishing to publish a directory to identify candidates for inclusion.
While it is no doubt correct, as the noble and learned Lord, Lord Morton, indicated, that if the Inland Revenue recognises a body as charitable it ought to know something about the purposes for which it is established. However, I should be cautious about suggesting that the Inland Revenue would necessarily have all the information that would be useful to those who wish to find out more about an individual charity. As the noble Lord, Lord Mackie of Benshie, indicated, there are often individuals who wish for very good reasons to have information about such charities. It is unlikely that the Inland Revenue would know when meetings of a charity were being held. More particularly, it would be unlikely to know the size of grants which a charity might make to individual applicants and the information that it requires of applicants for grants. We suggest that by providing a right for members of the public to obtain copies of a charity's objects directly from the charity itself, together with the information which it is suggested should be provided under Clause 4, there is a greater opportunity to provide a directory of charitable bodies which would contain the information that members of the public might want.
To do as the noble and learned Lords, Lord Morton and Lord Cameron, have suggested and require the Inland Revenue to release, in addition to names and addresses of registered bodies, a summary of their principal objects would be a major undertaking for the revenue. As I have indicated, it may well be that the information would not be very helpful. Prudent drafters of trust deeds for charitable purposes generally include two or three broad heads of charity to preserve, for good enough reasons, maximum flexibility for the trustees. As I understand
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it, in most instances the name of the charity is likely to be more informative than the objects of the trust itself.
It may help if prior to the first listing of charities all such bodies received a letter explaining the intention to publish. I hope that, given that suggestion, noble Lords might consider withdrawing their amendments. We are willing to consider including in the mailing a questionnaire, the completion of which would be voluntary, with a view to assisting the compilation by others of a directory.
I have asked Scottish Office officials to arrange further meetings with the Inland Revenue and the organisation to which reference has already been made— the Scottish Council for Voluntary Organisations— to explore the possible involvement of the SCVO in such a venture. The Inland Revenue will also consider, in the light of the volume of inquiries, making much more widely available copies of the microfiches containing the index.
As I indicated, it seems to me that it is a matter of first unlocking the information from the Inland Revenue and then seeing how we can best put together, without imposing it on the Inland Revenue, a directory which will contain all the information desired by those who have indicated their support for it.
Turning to Amendment No. 20, I appreciate that the noble and learned Lord, Lord Cameron of Lochbroom, has modelled his amendment on Section 10 of the Charities Act 1960, and has also made reference to the provision under Section 88 of the Local Government (Scotland) Act 1973. Although there may well be a duplication in England, it appears to me that, if any local authority in Scotland wished to take on the responsibility of providing a local directory in its local public libraries, for example, it is already so empowered to do.
My noble friend Lady Carnegy of Lour and the noble Lord, Lord Mackie of Benshie, envisaged that in a small district council such as Angus there are often a large number of small local charities. It would be helpful if that information were to be collated by the local authority— something that has not happened or has been difficult to complete in the absence of information from the Inland Revenue. I believe that that can be done, and it is an objective well worth pursuing.
Given the various bodies that are interested in that field, the correct way forward at this time is to have the further investigation and discussion that I suggested, to see whether a scheme can be properly developed which will allow that information to be made available. With that explanation, I hope that the noble Lords will consider that their amendments can be withdrawn.
Lord Kirkhill: Perhaps the noble and learned Lord can help me. I have asked this question before. Some noble Lords may have decided what they will do, or not do, with the various amendments that they have tabled. The noble and learned Lord has used such phrases as "We shall consider" and "We hope to

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discuss matters with". We want to know whether the Secretary of State for Scotland will be involved and whether he will designate a body.
Lord Fraser of Carmyllie: I do not suggest at this stage that there should be designation of a body, but I thought that I had given a pretty clear hint of a body that might be suitable for taking on just such a task.
Perhaps I may emphasise an important point which the noble Lord may not have picked up. Although the Inland Revenue is in possession of a considerable amount of information which might be useful to those who seek to put together such a directory, it does not have all the information that will be useful. For example, it might not know at any particular time who are the current trustees. It might not have had contact with a body for some time and information might therefore be restricted. The Secretary of State becomes involved as a result of the provisions in Clause 4. Clause 4 (3) states:
"The Secretary of State may, by regulations, prescribe—
(a) the form and content of the balance sheet and income and expenditure account and of the report".
I envisage that information would be provided within that report which would be of use to those who sought to make application to the charity for a grant.
Lord Mackie of Benshie: Perhaps the noble and learned Lord will help me on this point. A number of years ago, the citizens of Kirriemuir left money to provide a ton of coal a year for the poor of the parish and a pound a year to the local pipe band in addition to a number of other similar requests. Has that trust been registered?
Lord Fraser of Carmyllie: I do not know about that trust. It is certainly conceivable that it is registered and, from the noble Lord's description of the provision of fuel for the poor in Kirriemuir, it appeals at first blush that it has every possibility of being accepted as a charitable trust. However, once this part of the Bill is in place, it will be possible not only for organisations but for individuals to make inquiries and to discover whether it has been so registered.
Lord Carmichael of Kelvingrove: We are all grateful to a certain extent to the noble and learned Lord the Lord Advocate for his reply, but there is a feeling that he has for some reason or another failed to grasp the nettle. Why is it that in England the charity commissioners are required to keep that register whereas he has suggested that, in Scotland, local author: ties might do that? That puzzles me. Will the local authorities have power to demand from the Inland Revenue lists of all the charities in Scotland? The noble and learned Lord then went on to speak of the SCVO perhaps doing that job. As an outside, non-statutory body, would it have power to ask the Inland Revenue to supply the information?
The noble and learned Lord the Lord Advocate appears to be making rather heavy weather of the matter. There are books on the subject. I have been associated with a number of organisations which
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have looked for charitable donations. They are reasonably well indexed. The books list what I believe are called grocery charities and chocolate charities, for example. They are helpful as far as they go, but there is always a feeling that some charities might have been missed. As has been suggested, lawyers often look for places to which people wish to make donations. In addition, there is the possibility that good, reputable bodies, which need money for specific purposes, cannot easily find out where to go. A local authority might be suitable for the smaller charities such as the noble Lord, Lord Mackie of Benshie, mentioned. However, there is a plethora of larger charities, for example, universities and medical charities. There are all kinds of groups to which one could go.
Why can we not have a single register such as exists in England? It puzzles me that the noble and learned Lord the Lord Advocate is seeking a voluntary organisation for that purpose. One presumes that a grant would be made to the voluntary organisation for that purpose unless there was a charge for making inquiries, which I do not believe applies south of the Border. Perhaps the noble and learned Lord will enlighten me on that point. From what was said after the noble and learned Lord, Lord Cameron, spoke, other noble Lords seemed a little disappointed in the Minister's reply. I certainly was. I am sure that his intention is good. Will he not take back the amendment and consider it a little more thoroughly?
Lord Fraser of Carmyllie: I have told noble Lords that there are reasons for discussing the matter further. If the noble Lord consults the paper which we prepared before the legislation was introduced, he will see that we made it clear that we did not wish to go down the road of establishing a charities commission such as that which obtains in England at present. I think that those who have some familiarity with it will appreciate that the Charity Commissioners have had very real difficulties and have been subjected to considerable criticisms in recent years. A slavish following of that model did not appear to me to be the most appropriate way of proceeding.
What in my view is worthy of further exploration is whether there would be any value in somebody simply keeping a list— I see the attraction of someone drawing it together who has a real interest in charitable matters— precisely for the reason given by my noble friend Lady Carnegy. Simply to have a complete list of 15,000 charities in Scotland setting out their purposes might be of pretty limited value to those who wished to obtain grants from those charities.
It seems to be much more desirable— and this is why I think there should be much more opportunity given for discussion with a body like the SCVO— to have such a directory or register broken down, as my noble friend would wish, into charities that are interested in, say, overseas aid, mental health or whatever it might be. That might be of greatest value to those who wish to make application to those charities. It seems to me that that is the way in which this matter should be approached.

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I should like to clarify one final point. When I indicated that local authorities might be involved, it would certainly be in duplication, if they so chose, of their own local authority. I do not suggest— I accept that that is the criticism that the noble Lord made— that it would necessarily be appropriate to make the only registers that one can get at the ones that are made up on a local basis. I am sure that the noble Lord could readily rattle off a considerable list of charities which had an all-Scotland or all-United Kingdom application and which are not simply there for a local purpose.
7.30 p.m.
Lord Morton of Shuna: The noble and learned Lord the Lord Advocate suggested that the need for this Bill was the supervision of charities, as if the majority of charities was some kind of group of delinquents. I suggested to him that what was needed was help for charities. It did not appear to me from anything said by the noble and learned Lord that he was taking any course other than being the teacher keeping the naughty boys in line.
However, the need is there. The charities which are doing a good job should be assisted to do a better job by having that type of list readily available. I cannot see the difficulty. The Inland Revenue will have to issue the certificate and therefore will have to know the charitable purpose. The Government should realise that it is a help to know which charities deal, say, with medical research, which deal with education, which tackle poverty and so on. That kind of basic division is of interest.
If the noble and learned Lord will take that point on board and consider putting out a list— as he appeared to suggest at Second Reading when he spoke about the Inland Revenue having all this information on microfiche— we can take the matter a little further without prolonging this debate.
Lord Fraser of Carmyllie: Perhaps I am bound to tell the noble Lord that regrettably supervision in Scotland has been sadly lacking. I do not in any way suggest that anything other than a tiny minority of charities in Scotland may be abusing their positions. At risk of repeating myself, I emphasise that we shall look very carefully at making much more widely available the information that is held on microfiche so that it is available to those who want access to it.
I believe that if there is to be a directory which is of value to people who seek grants and so on, as the noble Lord appears to want, then much more information will be needed. I see that the noble Lord shakes his head. However, I should have thought that the information contained in a report, such as the type of grants available and the amounts that will be given, would be just the kind of information that individuals want. In my time as a Member of Parliament, that is the information for which I was repeatedly asked. I was asked, "I know that there is such and such a trust. Is it worth my while applying? Will I only get £ 25 or a contribution that will make a significant difference?" I believe that it is that kind of information that would be very useful to the public in Scotland.
Lord Grimond: Am I right in thinking that such a registry is in existence, at least for England? It is a private enterprise registry which indicates where one can obtain grants for various purposes. Would it be worth inquiring whether that covers Scotland, or indeed encouraging a similar registry in Scotland?
Lord Fraser of Carmyllie: I do not know about any English one. I find it difficult to believe that it would have the full information, given the duty that is imposed upon the Inland Revenue not to reveal information. It cannot be all-revealing. There are many respectable and worthwhile charities which go out of their way publicly to make clear their purposes and what funds they have available.
The Earl of Perth: The noble Lord, Lord Grimond, is quite right. In England there is a charitable list. One could set up a charity and want it to be secret, but one cannot do things that way. One has to answer certain questions. I know about this in a very small way because my wife and I set up a small charitable trust. Very soon we had a request from the registrar to explain it, which is a voluntary procedure. The first year we paid no attention to it; the second year we found that we had to act.
I do not see why, if that has been the experience in England, the same should not happen in Scotland. All the information is there. As the noble and learned Lord the Lord Advocate said, it first has to be unlocked. He said that one could do that. But then— and I did not fully understand it— he spoke about having a meeting with the Inland Revenue and the charities. I do not know when he contemplates that meeting taking place. Will it be during the course of this Bill, in six months' time or when?
The other point that I would like to make concerns his words— I noted them very accurately— "anyone wishing to establish a register". Is that trying to dodge the fact that we are inclined to think that it should properly be done by the Scottish Office itself or some other body under the direction of the Scottish Office? I hope that he will be able to help us on those questions.
The Earl of Selkirk: I should like to thank the noble and learned Lord for supporting the purpose of this amendment. I think that we have to make somebody do it. But that is the problem. I do not know how far the Scottish Office is prepared to go. However, I see no reason why this should not be commercially viable. It is a book that many people want. Goodness knows the number of magazines and so on that come every day into our offices. It is quite appalling. This is something that could well be done. I could even give the noble Lord the address of someone who would do it but that would be in England.
Will the noble and learned Lord undertake to find out what the Scottish Office will do and whether the Inland Revenue is prepared to play? It would mean some work for them. I do not think that they would maintain the register themselves.
The noble and learned Lord said that a register is not of much use. However that depends on the

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editor. If the editor knows how to put it together he will turn it into a useful book which many people will want to have. I shall have no difficulty in withdrawing this amendment if my noble and learned friend will promise to look at these problems and bring forward a scheme to put a register into operation. I want him not just to talk about it but to do something. If he does, I shall be glad to withdraw the amendment.
Lord Fraser of Carmyllie: As I have already indicated, I cannot come forward with what the noble Earl wants as a complete scheme. I have repeatedly said that the information held by the Inland Revenue is held on a list or index— whichever word one wants to use— on microfiche in Edinburgh. That complete list will be available to anyone who calls at the offices and wishes to see it. I may be wrong but I should have thought that further information in greater detail was wanted. I urge that upon noble Lords. But I believe that there is better access to that information through other provisions. However, if it is simply a matter of obtaining the information from the Inland Revenue, large portions of which may be out of date or quite inaccurate, that information on the microfiche index will be available in Edinburgh.
Lord Mackie of Benshie: Is not the noble Earl, Lord Selkirk, asking the noble and learned Lord to go a little further in this respect and take charge of the indexing and the setting out of the list— that is, apart from just publishing the list itself?
Lord Morton of Shuna: Is not the difficulty about which we are talking that subsection (1) (b) of the clause does not permit someone like me to look at the list? It seems to me that it only permits me to ask about one particular charity.
Lord Fraser of Carmyllie: I am getting very close to the risk of being repetitive. I thought that I had just clearly indicated to the noble Earl that if he chooses to spend his leisure time at the offices of the Inland Revenue in Edinburgh, he will be able to see the listing of charities on microfiche. That may not be spelt out in the clause, but I would not have thought that that was truly a criticism of the drafting of the clause.
The Earl of Selkirk: On the understanding that the noble and learned Lord the Lord Advocate will take steps in this direction and produce something, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Karl of Strathmore and Kinghorne: I think that we have reached a convenient moment at which to adjourn. Perhaps I may suggest that we do not return until 8.30 p.m.
[The Sitting was suspended from 7.41 to 8.30 p.m.]
[Amendments Nos. 4 to 11 not moved.]
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 11:
Page 2, line 16, after first ("person") insert ("upon tender of such reasonable charge as the body may stipulate").
The noble and learned Lord said: I speak also to Amendment No. 67. This is designed to discover whether there may be a lacuna in the subsection referred to. It would be unfortunate if a person were able to complain to the Lord Advocate when he had requested information but had failed to tender the reasonable charge. When he had not so tendered it would be unfortunate that he should be able to complain. I beg to move.
Lord Fraser of Carmyllie: I accept the spirit of the amendment put forward by the noble and learned Lord. The amendment is introduced to ensure that a charity should not be in danger of being listed for failing to produce a copy of its trust deed until it has been paid for the reasonable cost of its production. With the undertaking that I shall bring forward an amendment to achieve that aim, I hope that the noble and learned Lord will withdraw the amendment.
Lord Cameron of Lochbroom: I am most grateful and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved.]
The Earl of Selkirk The Earl of Selkirk moved Amendment No. 13:
Page 2, line 22, leave out ("Court of Session") and insert ("court")
The noble Earl said: It seems to me that all cases should not necessarily go to the Court of Session, simply for reasons of expense. I should like to leave the choice to the Lord Advocate whether the case should to to the sheriff court or the Court of Session. The object of this amendment is to leave that choice entirely with him.
Lord Macaulay of Bragar: This amendment is grouped with Amendment No. 26, which is in similar terms, and also with Amendment No. 136 which covers the same ground. With the leave of the Committee, I speak to Amendment No. 136. That amendment makes an amendment to Clause 10 about where applications should be made. Instead of the Court of Session it suggests that in addition a sheriff court should have jurisdiction over the place in which the trust has its principal place of business at the time of the application.
This amendment relates to charities with an annual income of £ 1,000 or less. The clause refers to proposed expenditure of capital and enables the Lord Advocate to go only to the Court of Session to stop the expenditure within the terms of the clause. The general view taken is that with a trust income of £ 1,000 per annum or less there will not be much money in the fund in any event, and to restrict the access of any application, particularly an application at the instance of the Lord Advocate which the trustees may have to defend, may make great inroads into the trust funds. In fact, we are all agreed that the object is to preserve the trust funds.

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Broadly speaking, this theme of Court of Session and/or sheriff court arises throughout this part of the Bill. It may save some time if the noble and learned Lord the Lord Advocate could indicate whether the Government are prepared to take away that issue of venue of applications and consider whether, where Court of Session appears, they will consider extending access to the sheriff court at the discretion of the trustees.
I appreciate that the suggestion covers amendments to Clause 8, but if the noble and learned Lord can give that undertaking in relation to Amendment No. 136 and other similar amendments, I should be prepared to withdraw them in the course of the proceedings.
Lord Fraser of Carmyllie: I am grateful to the noble Earl for bringing forward this amendment. The thinking of the Government is in line with that of the noble Earl and, indeed, that of the noble Lord, Lord Macaulay. In principle we accept these amendments. It is my intention to provide by amendment on Report for a choice of court in all cases where I have power to apply for an interdict or order. Those occur at Clause 1 (5), Clause 2 (3), Clause 4 (11) and Clause 10 (4).
I must make clear one proviso as regards Clause 6. In view of the complexity of the controls allowed for there and the serious nature of the penalties which may be imposed under that clause, the Government intend to insist that in relation to that clause specifically the jurisdiction of the Court of Session should remain exclusive.
The Earl of Selkirk: I am most grateful to my noble and learned friend and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 15:
Page 2, line 23, after ("Advocate") insert ("or any person who has made a complaint in terms of subsection (4) above").
The noble Lord said: This amendment allows any person who has made a complaint under Clause 1 to make an application as well as the Lord Advocate. Since the Bill gives any person power to ask for the accounts, it seems illogical that he should not have the follow through power to take the matter to the court. I beg to move.
Lord Fraser of Carmyllie: The amendment seeks to provide that any person who has a complaint that a body has failed to provide under subsection (4) a copy of its founding deed may apply direct to the court to interdict that body or a person involved in the management or control of that body from engaging in any activity specified in the application to the court.
The subsection, as the noble Lord indicated, provides that I may apply to the court for interdict. I would not be in favour of giving this power to any other person. What needs to be appreciated is this
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If there has been what might be described as a minor breach of what is required under the clause, in those circumstances under subsection (4) it would be open to me to require of the Inland Revenue that the failure be noted on the record held by it.
If under subsection (5) it were permitted for any other person to go to the courts, there is a serious risk of confusion. If it is a minor matter, the scheme is that it should be dealt with by noting; and if it is an issue of interdict, it should be left to me. Otherwise, it is not difficult to envisage a curious circumstance in which an individual might come before the court seeking interdict and the Lord Advocate of the day would come into court opposing it saying, "This is a matter that has been satisfactorily dealt with by way of a note".
Lord Cameron of Lochbroom: Before the noble and learned Lord sits down, perhaps he will confirm that nothing in this subsection will derogate from the common law, so that if an individual was able to show an interest, he would still be entitled to use the remedy of interdict if that were appropriate.
Lord Fraser of Carmyllie: So far as the common law is concerned, there is nothing in these provisions which is intended to deprive any individual in Scotland of the rights that he would have before the courts.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for that explanation. But it seems to me to be a rather unusual state of affairs when one compares subsection (4) with subsection (5). In subsection (4) the Lord Advocate,
"on a complaint being made to him by such person, may direct that the fact of such failure shall be noted".
However, the reason that this amendment was inserted was that when we come to subsection (5) there is no obligation, mandatory or otherwise, on the Lord Advocate to take any note of any desire on the part of the person who has complained to interdict the body or person presumably continuing in the activity complained of. That is why the amendment has been tabled.
Lord Fraser of Carmyllie: If the noble Lord wishes me to consider whether it might be made clearer that following on a complaint under subsection (4) I might take the more draconian step of approaching the court for an interdict, I shall undertake to consider that and write to him if necessary, to ensure that it is clear that such a complaint might lead the Lord Advocate of the day to take such steps.
Lord Macaulay of Bragar: I am grateful for that reply, and I am satisfied with that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 16:
Page 2, line 23, after ("body") insert ("if incorporated").
The noble and learned Lord said: When speaking to this amendment— if the grouping is correct— I should also speak to Amendments Nos. 27 to 29, 94 to 96 and 98.
What has been omitted from this provision is the recognition that many bodies which are charities are unincorporated and are not legal persons. The court therefore has no power to interdict them because the court can only interdict a legal person. My noble and learned friend and I sought to correct this by inserting "if incorporated". I raised this matter at Second Reading. The absence of an amendment dealing with it means that the noble and learned Lord the Lord Advocate does not consider there to be anything in it. However, I can assure him that my noble and learned friend and I consider there to be quite a lot of difficulty in it. I beg to move.
Lord Fraser of Carmyllie: I understand now for the first time what the noble and learned Lords are driving at. I confess that I had taken from it a rather different message: that they sought quite specifically to restrict powers of interdict to bodies which were incorporated, and they were not dealing with unincorporated bodies. That is clearly contrary to my intention. I wish to be in a position to take action against a wider range of bodies than that. Given the point that the noble and learned Lord raised, I shall look at that again. With the greatest respect, I am not entirely sure that I agree with what he says, but given the power of the heavy duo in the middle, I should like to look at this matter again.
Lord Cameron of Lochbroom: I am grateful to the noble and learned Lord for looking at it again. However, does he really think that either the Court of Session or the sheriff court can interdict a committee or a trust? The only way that can be done is to interdict the trustees or the individual members. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 17:
Page 2, line 27, after second ("body") insert ("not being an exempt charity")
The noble and learned Lord said: This amendment should be grouped with Amendments Nos. 21, 23 to 25 and 141. It deals with exempt charities. In this amendment, they fit into two classes: one is Church charities, and the other is small charities.
The difficulty with regard to small charities is that there are many of them which are not registered with the In and Revenue because they do not see any need to do so. They raise their money by collections, by sales of work and so on. They are not interested in covenants. To put the whole paraphernalia of this part of this Bill on a committee which runs a sports day in a village each year, or something of that nature, is absurd. It is also absurd to put it on to a charity with a very small income because the whole
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income will be absorbed in the auditing of its accounts.
The small charity level we have suggested is one which has no permanent endowment or income from property amounting to more than £ 500 a year. That suggestion was merely plucked out of the air with some view on the similar provision in the 1960 English Charities Act, which has an exemption, and applying an inflationary table to that figure.
There must be some point at which small charities are exempt. I do not claim that our figure is right, but there must be a point when it is not worthwhile to take this sort of issue. The Church is in a different position. It is different from almost all other charities in that it is the members of the Church who subscribe the money which is used to run the Church. That makes it different from charities concerned with prevention of the cruelty to children or the cruelty to animals organisations or the relief of poverty abroad, where one gives money to a charity and has no say in what happens to it. Anybody who is a member of a Church gives money to it and there is a regulated body which deals with it. The noble and learned Lord the Lord Advocate and I are both sons of the manse and we know the position in regard to the Church of Scotland. It has a special position in that it is, of course, protected by the Act of Union. It is also covered by the Church of Scotland Act 1921. One has the amazing situation in the Bill that, apparently, the Lord Advocate is assuming to himself a power to go to the Church of Scotland and inquire whether it is fulfilling its trust purposes. Moreover, any person can go to the Church of Scotland, or any other Church, and inquire about the deed constituting the trust. That may well be difficult, whether one starts with the Westminster Confession, or the Church of Scotland, or the Bible, or wherever. I do not think that that is intended.
There is also the statutory problem that I know has been raised and noble Lords will have seen what the Church of Scotland has circulated about the statutory powers which Parliament has given to the Church of Scotland, or recognised that the Church has always had in the 1921 Act. One would not have thought it necessary in a Bill to control charities to raise a Church/government conflict on powers. However, that is special to the Church for Scotland and the same issue arises in a different way with all the other Churches. Almost every minister or priest is, ex officio, the trustee of his parish fund, or congregational fund, however it is done. There is a statutory inside-the-church organisation. It seems that this is a necessary exception if this part of the Bill is to have any practical effect.
There is a matter of practicality. I am told that the number of trustees— of course, they change every year— for the Church of Scotland alone would be 65,000. By the time one adds all these elders and members of congregational boards and ministers, and changes them about each year, the eight people in the Lord Advocate's office who are supervising all this will be in some difficulty. As a matter of practicality, it cannot work. It is not necessary, and as the Procurator of the Church of Scotland suggested, quite absurd. Therefore, I hope the noble

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and learned Lord will undertake to take this away and reconsider it.
If he does do so, I would say that what is listed in the clause is far from complete if one compares it with the exemptions in the English Act, because that excludes, among others, universities and friendly societies and various other organisations. Clearly, if a little more thought had gone into the drafting of this Bill, and someone had looked at the English provisions, they might have thought of the difficulties that no doubt will arise. I suggest it is absurd that where Parliament has laid down— or the national Church has laid down by its legislative process— control of the accounting there should be another control added to it. I beg to move.
Lord Campbell of Croy: This group of amendments, so ably presented by the noble and learned Lord, Lord Morton, covers mainly the Churches but also includes, in paragraph (e) of Amendment No. 21, the very small charities. Perhaps I may say immediately that I agree with what the noble and learned Lord said in that respect and I hope the Government will have some arrangements for what one might call a de minimis principle so that there is a cut-off point for small charities.
I should like to deal with the main part of the amendment as I see it— exempting churches from these provisions. Of course, it is not only the Christian Churches because Amendment No. 21 refers to,
"or other body established for the advancement of religion".
I therefore presume that synagogues, mosques and similar institutions are covered.
The Christian denominations in Scotland have got together in this respect and clearly are worried about the effects of the Bill. As I understand Amendment No. 21, which is the effective amendment in the group, the exempted charities will be the Churches themselves, or their equivalents in other religions, but not trusts set up by the Churches unless they deal with buildings.
I declare an interest because I am chairman of a trust of the Nairn Church of Scotland parish church. I have sympathy with the aims of the group of amendments. I am sure that we would not wish the Churches and other religious institutions to be encumbered with unnecessary and time-consuming tasks and burdens. I also ask why they should be exempted from a system which is to apply to other respectable and respected bodies which need to keep administrative staff to a minimum; that is, other charities with which this part of the Bill is dealing.
The question raised suggests that the system proposed in the Bill will be a considerable burden to those who come within it. Therefore, I ask my noble and learned friend the Lord Advocate to consider carefully the position of the Churches and other religious institutions as they would be affected by this part of the Bill. Perhaps he will also tell the Committee whether he foresees a great deal of extra
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work being created by the Bill which might impose the burdens on the Churches which at present concern them.
To summarise, therefore, I agree entirely on the point about the very small charities and I hope the Government will consider that aspect. However, I am in two minds about exempting Churches because I understand their concern and I have a sympathy for the purpose of the amendment; but I am sorry to think that that has been caused by a feeling that the Bill will impose a heavy burden, because that burden will fall on other charities as well.
Lord Mackie of Benshie: I too am wholly in agreement with the purpose of the amendment. I believe that the Churches are a special case. The memorandum from the Scottish Churches Committee gives the members. They are enormously respectable: the Church of Scotland, the Roman Catholic Church, the Scottish Episcopal Church, the Methodist Church, the Baptist Union, and so on.
However, the wording of Amendment No. 21 refers to,
"any Church or other body established for the advancement of religion".
There are some enormously suspect bodies of that sort. I give an international example; the church established by Mr. Moon in Korea, which now has a hereditary head appointed by himself. It raises enormous amounts of money by very doubtful means. Clearly such a church should not be exempted. In fact, that is exactly the sort of charity which should be looked at extremely closely. I do not think I need to say more. The Minister takes my point absolutely.
In addition, the phrase "any Church" is the wrong expression. The phrase should perhaps be "a Church recognised by the Lord Advocate". I do not know how it should be worded but certainly the present definition cannot be right.
The Earl of Balfour: I raise one further point. I do not want to pour cold water on the amendment tabled by the noble and learned Lord, Lord Morton, but I ask the Committee to look at the wording in paragraph (d) of Amendment No. 21:
"maintaining, repairing or managing ecclesiastical buildings".
As I understand the position, the repairs and maintenance of such buildings are not usually considered in connection with the charitable side of its activities. If a church has a building and maintenance fund, that is subject to tax, as opposed to the welfare side of its activities. I hope that repairs can be exempted from tax. With all these wonderful buildings, be they art museums, churches or anything else, the cost of upkeep is an ever-increasing burden. As I say, as I understand the position they are not exempt from tax and certainly not from VAT, when necessary repairs have to be done.
9 p.m.
Lord Grimond: I have the greatest sympathy with this amendment and certainly with the very important point that has been raised about the churches. I certainly support what the noble and

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learned Lord, Lord Morton of Shuna, has said about them, subject to the provisos of my noble friend Lord Mackie. I hope that we shall not forget about small charities. I have some connection with them. We already have considerable difficulty in getting people to run them. I hope that this Bill will not impose any more and unnecessary burdens on them. If that happens, I am certain that we shall lose what voluntary aid we have. I am sure that the Minister will bear that in mind.
Lord Macaulay of Bragar: As regards small charities, Members on this side of the Committee support the amendment. The figure of about £ 500 a year seems to be reasonable. It has the added advantage, with reference to the earlier part of the debate, of excluding these small charities. The register that was discussed would become a little smaller. It would make it easier for the Government to establish their own records.
Amendment No. 21 raises real practical difficulties. One of those is that once an exception of this kind is made within the context of a Bill of this nature, there is bound to be set up some form of jealousy among other groups such as those mentioned by the noble Lord, Lord Campbell of Croy. People who are running a perfectly respectable charity might look at the exemption and ask themselves why another organisation should get it rather than them. That would seem to drive a hole in the protective wall, so to speak, and in the regulatory procedures.
If I may say so, the noble and learned Lord, Lord Morton, has not told us that the Church of Scotland is absolutely protected by the Act of Union and that the Act presents a bar to the burden of this kind of legislation being placed on it. Neither has it been indicated that there will be any particular administrative difficulty in the church dealing with the matters involved in the Bill. I refer in particular to the question of producing accounts and the deeds of trust and whatever may be required. Like other Members of the Committee, I have other reservations about this particular amendment. I shall listen with interest to what the Lord Advocate has to say in response.
Baroness Carnegy of Lour: There is one further point which has not been made. In attempting to differentiate between the churches and other charities and in saying why they are different, the noble and learned Lord, Lord Morton of Shuna, said that the Church of Scotland had a particular position. He referred to other churches as being somewhat different. He said that the churches were different to other charities because their members subscribed to the money which financed them.
I remind him and the Committee that bodies like the Girl Guides Association and the Scouts Association are entirely funded by their members paying subscriptions. I refer also to the Women's Royal Institute and many other organisations which I can think of. I do not believe that difference will wash. It is a very difficult problem. I can understand why the churches feel as they do. They also wrote to me. I am very sympathetic.
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We have to be extremely careful what we do about this issue. It may be that the constitutional position of the Church of Scotland precludes the same treatment as that given to other churches. My own church, the Episcopal Church, and I should think also the Roman Catholic Church, is not in that position. I am not sure whether the law may treat them differently. I shall be interested to hear what my noble friend has to say on the matter.
The Earl of Perth: I want to make a few remarks on the question of churches. I believe that they are in a different category to other charities and that in some form or another that difference should be recognised. It is not so much a question of their being burdened by new responsibilities or anything else: the fact of the matter is that the parishioners of any particular individual group of churches will already discipline themselves. If something goes wrong one can be quite sure that the minister or the parishioners will know about it. They will put the matter right themselves.
I do not wish to put this in too derogatory a sense, but I feel sure that they will feel anxious if Big Brother is overlooking what they are up to. In some way or another the churches are almost locally governed already. That is particularly true in England and Wales. They follow very closely what is happening to their money and the charity which is given to them. I hope that fact will be taken into account in any amendment even if the amendment moved by the noble and learned Lord, Lord Morton of Shuna, is not accepted.
Lord Fraser of Carmyllie: Other than setting up a directory I believe that this is the most important point which arises during the Committee stage on Part I of the Bill. I hope I shall be forgiven for taking a minute or two to explain the position as I see it. I indicate immediately that I understand the aim of the new clause and the amendments and what lies being the idea; namely, that clearly very important religious organisations in Scotland may be afforded special treatment.
Officials from the Scottish Home and Health Department and the Crown Office recently held a useful and informative meeting with the Scottish Churches Committee. I understand that it has as its chairman and secretary the Church of Scotland, though the committee is by no means restricted exclusively to the Church of Scotland itself. The purpose of that meeting was to explore the problems which might arise if the Bill were to be applied in its entirety to religious bodies. It was the noble Lord, Lord Mackie, who put his finger on the great difficulty here.
While these many great and fine churches are central to our national life, if anyone wishes to set up a scam or a fraud it is not unknown for people to retreat behind the pursuit of a religious objective. I make no comment on any particular organisation but it is not unknown in the Crown Office to hear complaints of fraud and the like in relation to bodies which hold themselves to be religious. The noble Lord, Lord Mackie, is absolutely right in his appreciation that if any church or other body

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established for the advancement of religion were to be exempted, a coach and horses would be driven through Part I of the Bill. It would mean that anyone with an ulterior purpose would simply have to contain among a number of other purposes the advancement of religion. Part I of the Bill would not then apply.
I appreciate the fact that the Scottish Churches Committee which discussed these matters also understands the difficulties. It is right to place on record that it is also sensitive to the fact that religious organisations other than Christian ones might well be afforded a comparable degree of respect and arguably even privilege. It is important that these often unpleasant cult-like sects should not escape control. The noble and learned Lord, Lord Morton, referred to what is undoubtedly the special constitutional position in Scotland of the Church of Scotland. Like him, I am a member of that Church. But in the 1990s I have to confess that I would be very uneasy about conferring on the Church of Scotland exclusively a special status in dealing with these matters. There are equally fine and equally important other religious bodies in Scotland whose position ought properly to be recognised.
A distinction needs to be drawn between taking action to intervene in a church's affairs or to enforce compliance, and simply including the churches within the purview of those provisions concerned with disclosure, accounts and my right to investigate. I have in mind to consider before the Report stage government amendments which will enable major churches, both Christian and non-Christian, to function without fear of state intervention but which will retain appropriate control over lesser bodies with religious objects. I am aware that the Procurator of the General Assembly of the Church of Scotland has suggested that I might find myself in an invidious position if I were to exercise the powers vested in me under this part of the Bill and that I might have to appoint a minister to administer the sacrament in a parish. I do the best I can to reassure him that I have no such megalomaniac tendencies in that direction. They are difficult issues and I am sure that they are appreciated. I should like the opportunity to consider them further. In those circumstances I hope that the noble and learned Lord will agree to withdraw the amendment.
The noble Earl, Lord Balfour, referred to the maintenance of church buildings and asked about their eligibility for tax relief. Expenses which are in furtherance of religious objects— that would include buildings— are eligible for income tax relief. I think he must have had in mind the position regarding VAT. Value added tax is payable on such repairs and maintenance.
I turn now to the amendment concerned with small charities. I appreciate the de minimis point which is advanced in the amendment. But it would be inappropriate to approach it in the way suggested by the noble and learned Lord by fixing a figure on the face of the Bill. Powers given under Clause 3 (4) would allow for small charities to be exempted, for example, from accounting requirements. It is certainly intended that there should be very much
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less demanding requirements for such bodies. I would suggest, understanding what he is driving at, that that is rather a better way forward than the way that he has suggested.
Perhaps I may pursue one example that the noble and learned Lord gave. A single purpose charity that the law would recognise as a charity might not necessarily be a charity that wanted to hold itself out as a charity— which is at the centre of this Bill— and would not be one that would seek to have itself registered or recognised by the Inland Revenue.
9.15 p.m.
Lord Morton of Shuna: Of course I shall not press the amendment until I see what the noble and learned Lord has said. I am grateful to him for answering the point raised by the noble Earl, Lord Balfour, about tax on the maintenance of church buildings. The amendment was specifically drafted with a view to include religions that were not Christian. I quite see that there may be some difficulties with certain groups of people who call themselves religions. However, the special position that I was attempting to put about Churches— I shall deal with the special position of the Church of Scotland later— is that they have rules and they have set government, set procedures. In many of the Churches this is done by legislation— quite often by private legislation through these Houses of Parliament. If they set down one way of doing accounts, for example, does this mean that under this scheme everyone has to produce two sets of accounts: one to fit one body, and the other to fit the other body of legislation?
Putting it shortly, the difficulty about the Church of Scotland is that Parliament recognised in the 1921 Act the Church of Scotland's position as having exclusive— that is exclusive from the courts— authority in matters of government and discipline in the Church. If the Bill goes through as it is one is going right into straightforward argument as to the constitutional levels between one and the other. I do not think anybody suggested that the noble and learned Lord was going to appoint a Minister. He was going to appoint a judicial factor who would have the duty of conducting sacraments, and that would be a very surprising idea. I would be interested to know whom he would select to do it.
This is a particularly fraught issue. It is an important issue. I hope that something constructive may come out of it. It is perhaps unfortunate that this part has come through with so little time for real thought among those with a crucial interest in it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 18:
Page 2, line 34, at end insert ("and a recognised body shall be entitled to describe itself as "a Scottish charity" ").
The noble and learned Lord said: Clause 1 (6) defines the term "recognised body", which is used throughout the Bill, as a body established under the law of Scotland or managed or controlled in or from Scotland, which has been given intimation by the Commissioners of Inland Revenue that tax relief

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will be due under Section 505 of the Act of 1988. The amendment makes clear that bodies which have been so recognised may represent themselves as Scottish charities.
This amendment takes account of representations which were made by the Law Society of Scotland— for which I am grateful— to the effect that as "charities" and "charitable" are used without definition throughout the Bill it is desirable to make plain that the legislation is concerned with the broad tax meaning of charity and not some common law concept. By stating on the face of the Bill that a recognised body is entitled to represent itself as a Scottish charity this intention is made evident. I beg to move.
Lord Morton of Shuna: I wonder what the point of this is. Why should anybody suggest that something that is recognised by the Inland Revenue and has a base in Scotland should never call itself other than a Scottish charity if it wanted to? Why does Parliament need to give it permission to call itself a Scottish charity? I rise not to suggest merely that this is unnecessary, but to ask the noble and learned Lord to explain what he asserted at Second Reading— if my memory is right at col. 210— that this made no change in the Scottish law of charity.
As lie will know, the recognition by the Inland Revenue means that it applies the English law of charity. What we are doing in this clause is to say that only a body established in Scotland which fits the English definition of charity can all itself a charity. Is this really what we are doing? What is left of the Scottish law of charity, which all the teachers of Scots law say is different from the English law? Where are we going?
There are various bodies which the courts have recognised in various litigations over the years as having; charitable purposes, but, because of the word "only" in the Inland Revenue legislation, they do not receive Inland Revenue recognition. Will it be an offence to call oneself a charity if one does not have recognition from the Inland Revenue? I believe that that is what the Bill's intention is. Can one get around that by saying, "Oh, our purposes are charitable"? If so, who will be able to understand the difference between saying, "I am a charity." and saying, "My purposes are charitable"?
Throughout the Bill we are missing any definition of what we talk about as a Scottish charity. We are missing any explanation as to whether anything of the existing old Scottish law of charity will exist after the Bill is passed, if it is passed.
The Earl of Selkirk: I agree with what the noble and learned Lord, Lord Morton of Shuna, has said. I do not know whether someone will ask the question, but may we have a definition? As far as I am aware, there are at least three separate forms of charity. They should be defined at some point. Perhaps my noble and learned friend will consider that matter.
Lord Fraser of Carmyllie: I should love to consider that point. However, I am reminded of the leading case or charity law in Scotland, The Glasgow Police
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Athletic Association, which came to this place back in 1952 and 1953.
Lord Morton of Shuna: Perhaps the noble and learned Lord will not mind me reminding him that was not a definition of the Scottish law of charity. It was a case which provided that one had to apply English law to obtain Inland Revenue exemption.
Lord Fraser of Carmyllie: If the noble and learned Lord had given me a moment, I should have given him the quotation, which was:
"It has never yet, for example, been found possible to define in generally accepted terms what is the precise meaning of a charity in Scottish law".
If the noble and learned Lord goes back through the authorities he will find that their views are wide-ranging. One extreme is that the law of charity in Scotland is restricted to the relief of poverty. I believe that was in Baird's Trustees. It goes through to the late Sir Thomas Smith's explanation that in Scotland it was not uncommon to find that the word "charitable" is used as a synonym for "public trust". The noble and learned Lord will appreciate that there is no clarity of definition.
I suppose that we are altering the law of charities in Scotland to this extent: if there is to be a body that wishes to represent itself or hold itself out as a charity, it must secure that recognition by the Inland Revenue. However, I do not consider that there is anything in the Bill which, for example, would alter the power of the court, or the favour that the court in Scotland shows to charities, to ensure that a trust is not more quickly described as void for uncertainty because its objectives are charitable. That is unaltered. Nor indeed, when we come to the later parts of the provision, will the power of the court to apply its cy prè s jurisdiction be altered by what is contained in this part of the Bill.
Lord Morton of Shuna: Of course I accept that the cy prè s scheme has nothing to do with the matter, because a public trust does not necessarily have to be charitable, despite the late Professor Smith. We do not have a definiton of "charity". We could have one. What we now have is English Law.
The noble and learned Lord has not dealt with the point about what happens to bodies such as the Trades House of Glasgow. In the 1970 case it was held that its main purposes were charitable, but it could not obtain Inland Revenue recognition because that was not its only purpose. Will they commit an offence if they say, "We are a charity"? They do not do so up to now. But will they not commit an offence when they say, "Mainly, our purposes are charitable"? If so, does the noble and learned Lord think that the people of Scotland will understand the subtle distinction?
On Question, amendment agreed to.
[Amendment No. 19 not moved.]
Clause 1, as amended, agreed to.
[Amendments Nos. 20 and 21 not moved.]
Clause 2 [Non-recognised bodies]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 22:
Page 2, line 41, leave out ("charity") and insert ("recognised body").
The noble and learned Lord said: This amendment raises the same issue as we have discussed before. Clause 2 (1) states:
"A non-recognised body shall not be entitled to represent itself or hold itself out as a charity."
The aim of the amendment, which is linked with Amendments Nos. 23, 24 and 25, is connected with the idea of an exempt charity. I shall not press the amendment but obviously the noble and learned Lord must work out for himself whether we are suddenly changing the meaning of a word in ordinary use and saying that it is an offence to use it unless a body has a certificate from the Inland Revenue.
The small committee which runs the local village sports day or sets up a little fund to redecorate a hall, or some similar activity, may well say, "We are a charity doing this; we are a charity for public benefit". Everybody will agree with that. Will the members of that committee be sent to prison for a month, or what will they do? How do we publicise the fact that people must suddenly appreciate that the dictionary meaning of "charity" has changed?
There is a big problem here on which we touched when we dealt with the last amendment. We are suddenly confining the word "charity" in Scotland to something which the Inland Revenue seems to understand but which is purely English law. Everybody who has been concerned with it says that it is so complicated that it cannot be defined, but they can define which body falls or does not fall within the definition. Therefore in order to obtain a reply from the noble and learned Lord, I beg to move.
Lord Fraser of Carmyllie: I do not think that I can usefully add anything to the debate which I have already had with the noble and learned Lord about what is or is not a charity in Scotland.
Perhaps I may restrict my observations to this amendment. I do not believe that it would be very relevant to the public in Scotland to be told that a body was a recognised body. People would wish to know whether or not it was a charity. That is exactly the complaint that comes from people repeatedly by asking, "Is this group or are these people those who responsibly represent a proper charity?" That is exactly what we are trying to do. We are trying to restrict those people who hold themselves out to be or represent themselves as being a charity. We hold them to the test that the Inland Revenue would apply. This may be an incorporation of English law into the law of Scotland, but I should have thought that the test set out in the case of Pemsel was what the popular mind would recognise as being a charity.
9.30 p.m.
Lord Morton of Shuna: I think most of us would have some difficulty in recognising someone as charitable who, for example, left his books to the
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officers' mess. However, the noble and learned Lord will discover from Pemsel's case that that constitutes an act of English charity. It surprises the Scots, but perhaps that does not matter. Surely the answer is to stipulate that a charity must be certificated, or some such provision so that to be recognised by the Inland Revenue a charity must have a certificate. I believe this is a serious problem which the noble and learned Lord and those who instruct him have not considered. All I can do now is to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 23 to 29 not moved.)
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 30:
Page 3, line 6, leave out subsection (4).
The noble and learned Lord said: Clause 2 (4) states:
"any person concerned in the management or control of a non-recognised body which represents itself or holds itself out as a charity shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale".
I suggest that that provision is totally unnecessary as the common law can deal adequately with that matter. If someone was trying to obtain money that would constitute a case of fraud or attempted fraud, and if he was not trying to obtain money there is no point in the offence. It is unnecessary to add additional offences when the common law deals adequately with them. I beg to move.
Lord Macaulay of Bragar: This amendment raises an issue which arises in later parts of the Bill. Speaking from this side of the Chamber, I oppose the amendment. I think it is proper that if we are setting up a statutory code of conduct so to speak, people examining it should know precisely from reading the Bill just what they can or cannot do and what the penalties would be for contravening the provisions of the Bill.
The Earl of Balfour: With great respect to the Deputy Chairman, I should point out that if this amendment is accepted, Amendments Nos. 31 and 32 cannot be moved.
The Deputy Chairman of Committees (Lord Ampthill): The noble Earl is perfectly correct. I apologise to the Committee. I should have mentioned that if Amendment No. 30 is agreed to, Amendments Nos. 31 and 32 cannot be moved.
Lord Fraser of Carmyllie: With that helpful indication, it will be apparent that I join the Opposition Front Bench in saying that I consider that if we are to have these provisions it is important that there should be some policing of them. We must therefore necessarily provide some sanctions. I think it is right that we should have those, although I would say to the noble and learned Lord that I accept that there will clearly be some circumstances where the common law would provide an offence under which to charge those persons who are representing themselves to be a charity. Nevertheless, in spite of that, as the noble Lord, Lord Macaulay, has said, I

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think it is still appropriate that we should have these policing powers.
Lord Carmichael of Kelvingrove: I wish to ask the noble and learned Lord a simple question. It has been suggested that one should be able to understand what is meant by the Bill by reading it, and also the penalties involved. However, I think I shall not be alone in not knowing exactly what level 4 is. I know the principle behind it, but for my own sake and perhaps for the sake of one or two other Members of the Committee, I hope the noble and learned Lord the Lord Advocate will tell us where we can find reference to the different levels. Perhaps he could also say, when they are changed, whether it is in line with inflation or for some other reason. It is a simple point but it causes some confusion.
Lord Fraser of Carmyllie: The matter arises under Amendment No. 31. Perhaps I may more appropriately reply to the noble Lord's question in connection with that amendment.
Lord Morton of Shuna: I am sorry that both the Opposition and the Government seem determined to create totally unnecessary offences. No doubt the courts will be able to deal with them as they see fit. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 31:
Page 3, line 9, leave out ("4") and insert ("5").
The noble and learned Lord said: Clause 2 (3) provides that any person involved in the management of a body which has not been recognised which represents itself to the public as a charity shall be guilty of an offence. Clause 2 (4) sets the penalty at a fine, on summary conviction, not exceeding level 4 on the standard scale, currently £ 1,000.
In view of the amount of money which might be involved that could prove only a relatively minor deterrent. The amendment seeks therefore to provide for a fine up to level 5 on the standard scale (£ 2,000) or to imprisonment for a period not exceeding six months, or both a fine and imprisonment. As a further deterrent there is provision at Clause 6 (4) for further sanctions against the body by the court, on application.
The noble and learned Lord, Lord Morton of Shuna, said at Second Reading that he thought that the Bill contained too many offences— and he has just repeated that remark— and suggested that that would add to the difficulties in finding people to take on the task and duties of trusteeship. It might therefore be helpful to the Committee if I take this opportunity to comment on the various amendments which I should like to make affecting offences and penalties in the Bill and to explain the reasoning behind them.
Besides the provisions mentioned above, there are three other possible offences in the Bill, contained in Clauses 5 (7), 5 (8) and 7 (3). Clause 5 (7) provides that it shall be an offence to fail to comply with a
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court order to provide information to my nominated officer. Clause 5 (8) provides that a person who wilfully alters, suppresses, conceals or destroys any record which he is required to provide under this section will similarly be guilty of an offence. Clause 7 disqualifies certain persons.
I hope that the Committee will accept that those offences are reasonable. As I have said, it really is not possible to police any system or supervision without some sanctions. Such sanctions have an important role under the charities Acts in England and Wales. Trusteeship of a charity is an onerous task and should not be entered upon lightly. Those involved in trusteeships have nothing to fear from those provisions provided they operate in a trustworthy manner. I beg to move.
Lord Morton of Shuna: Can the noble and learned Lord explain whether, if there is a body of trustees and somebody in the trust represents that the trust is a charity, every trustee is guilty of an offence? That, as I read it, is how the clause is framed. If that is so, has he considered Section 3 of the Trusts (Scotland) Act 1921? If he has considered it, why has he not amended it?
Lord Cameron of Lochbroom: Perhaps I too may put two questions to the noble and learned Lord the Lord Advocate. He mentioned further offences in the Bill, particularly those in Clauses 5 (7) and 5 (8). Clause 5 (7) simply makes a criminal offence of what is plainly a contempt of court. The civil courts have a speedy way of dealing with those who fail to comply with any order which has been made. It seems to me to be otiose to add a criminal sanction as well, particularly as that would involve the necessity of raising further proceedings rather than dealing with the failure to obtemper the order in the particular civil process in which the failure appears.
My point in relation to Clause 5 (8) is a matter of criticism of an amendment which appears under the name of the noble Lord, Lord Macaulay. It bears to be an offence by any person who wilfully alters any record. That is a deliberate alteration of a record which he may be required but is not necessarily required to furnish.
I fail to understand how any criminal offence can be committed by wilfully altering something which, at the end of the day, one is never required to furnish or transmit under Clause 5. It appears to me that perhaps that offence, which I suspect is intended to preserve the deliberate destruction or alteration of records for which a requirement has been made, is a more understandable offence, although I should have thought that it might have been dealt with under the common law. I raise those points at this time because it may save time later.
Lord Macaulay of Bragar: The amendment standing in my name is Amendment No. 66 and the same principle applies. Perhaps I was reading it slightly differently from the noble and learned Lord, Lord Cameron of Lochbroom. I was reading the word "may" in the sense of having been required in terms of the subsection because it follows on from

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the requirement by the nominated officer and the subsequent failure. My amendment states:
"Any person who wilfully alters, supresses, conceals or destroys any record which he may be required to furnish".
If it is meant to be a consecutive, chronological series of events, the word "may" could be changed to "has been". I shall be interested to know what the noble and learned Lord the Lord Advocate has to say on the matter. I should have said that, as a matter of consistency, I again hold to the principle that statutory sanctions should be imposed within the framework. No doubt the common law can run alongside it, but it does not do any harm to have that provision as part of the Bill.
Lord Fraser of Carmyllie: We are moving quite widely around the provisions regarding offences. I hope that I have followed them all as I should have done. I take the point made by the noble and learned Lord in respect of Clause 5 (7) that failure to comply with an order of a court would attract a sanction from that court. I might look at that point again. I see what the noble and learned Lord was driving at.
On Amendment No 66, to which we appear to have drifted, I again take the point made by the noble and learned Lord. As I understand it, Clause 5 (8) would allow for an offence to have been committed whether or not there had been a requirement. However, if that is not clear, I wish to clarify it and shall look at it again.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 32:
Page 3, line 10, at end insert ("or to imprisonment for a period not exceeding 6 months or to both such fine and imprisonment").
On Question, amendment agreed to.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Lord Morton of Shuna: Perhaps I may raise the question of this clause standing part of the Bill, although I know that we are trying to make progress because of delays on the other matters. However, the noble and learned Lord the Lord Advocate did not deal with the issue— I am surprised at the noble Lord, Lord Macaulay, agreeing so heartily with this point which I tried to raise in dealing with Clause 2 (4) — that someone will apparently be guilty of an offence because someone else has done something about which he does not know. That person will have done nothing. If one person in a trust holds out that the trust is a charity, all trustees are, according to subsection (4), guilty of an offence and liable to go to prison. Is that what the Government intend? I cannot ask the Opposition whether that is what they intend. It seems a surprising intention. It is quite contrary to Section 3 of the Trusts (Scotland) Act 1921, which states that a trustee is liable only for his acts and not for the acts of others. Is that truly what the Government mean, or has the whole question of criminal intent gone and this is an absolute offence if somebody does it?
9.45 p.m.
Lord Fraser of Carmyllie: Perhaps I may briefly answer that question. First, however, I should apologise to the noble and learned Lord. He raised this matter in the last amendment and I omitted to answer him. One has to understand the scheme that we are setting up. If one is to hold oneself out as a charity, one has to go to the Inland Revenue and secure the recognition that is allowed for under this Bill. The terms used are:
"any person concerned in the management or control of a non-recognised body which represents itself or holds itself out as a charity shall be guilty of an offence".
It is absolutely right that if one is to be part of a body which is not recognised, one should ensure that there are not others in the management or control of that body who are holding it out as being a recognised body.
Lord Morton of Shuna: I may be being obstinate. I am sorry; no doubt I am. However, there are trusts which meet once a quarter. There are trusts which have ex officio trustees in them and they have a director. If the director by mistake says, "We are a charity", do all the trustees find themselves automatically liable to imprisonment for something for which they have had no responsibility and could not avoid because someone else did it? If that is what the Government intend, so be it. It is quite draconian. Do we really want to discourage everybody from ever becoming a voluntary trustee for any form of charity or public trust?
Lord Macaulay of Bragar: Perhaps I may make one observation. The noble and learned Lord, Lord Morton, said that I endorsed this clause with enthusiasm. I must say that I was endorsing the principle of having statutory offences within the Bill, not necessarily with enthusiasm but as being necessary. Having heard what the noble and learned Lord had to say about the use of the word "concern", I must express some reservations. I should like to think about what it entails. The use of the word "which" governs the body rather than the person— any person who holds the body out as a charity. That may be the point which the noble and learned Lord, Lord Morton, is making. Speaking for myself, having heard the argument, I can see some substance in that criticism.
On Question, Clause 2, as amended, agreed to.
Clause 3 [Duty to keep accounting records]:
Lord Grimond Lord Grimond moved Amendment No. 33:
Page 3, line 12, leave out ("or control").
The noble Lord said: This is a purely probing amendment to which no doubt all Members of the Committee, and certainly all legal Members, know the answer already. However, I should be grateful to the noble and learned Lord the Lord Advocate if he could just clear my mind on this point, which arises several times in this Bill and has already come up in discussion on a previous clause.
What is meant by "control"? Our last debate may have some bearing on this matter. The clause says:
"any person concerned in the management"—
I take that to be the director, the executive committee, the secretary and so forth—
"or control".
I suppose that the control of a charity normally rests in the trustees. But all charities do not have trustees. If there are no trustees, who exercises the control? By joining whatever body or office exercises control, one is taking on considerable responsibilities and may become liable to certain penalties. I took on what is normally called the presidency of a certain charity. Before I knew where I was I found myself summoned to appear before the Court of Session. It had nothing to do with charity. I was summoned for wrongful dismissal. I said, "It is nothing to do with me". They said, "You are the president of this outfit" I had some difficulty in wriggling out of that situation.
It is not only a question of fault in the management of the charity itself; there are other responsibilities. I am sure that the Government can easily tell us what the word "control" means here. Of course it may differ from body to body, but I think it is essential that those who are taking on charitable work for the highest motives should be made aware of what they are letting themselves in for. I would never join another charity now without being quite certain about what I was supposed to be doing. Therefore I ask the Government, at least for my sake, to make clear what the word "control" means in the Bill. I beg to move.
Lord Fraser of Carmyllie: If the amendment moved by the noble Lord, Lord Grimond, was to be allowed it would restrict the duty to maintain accounting records and prepare annual accounts to those concerned with the management of a charity. This is narrower than the requirement under the Bill which lays the duty on those concerned with the management or control of the body. If restricted to management there may be a risk that a situation could arise where the managers have been dismissed leaving only the controllers in place. I concede that that may not be a very likely situation, but it may be prudent to retain the words "or control" against the possibility of unscrupulous controllers dismissing managers to avoid any obligation being imposed by the provision. It is for that limited purpose that the wording has been used.
Lord Grimond: I am much indebted to the noble and learned Lord the Lord Advocate. However, my mind is still not clear on the matter. Who are these controllers who are in control if the management is not responsible in this respect?
Lord Fraser of Carmyllie: I do not think I can elaborate on the response I have just given. As I indicated, it may be that people would seek to delegate the management to someone else, although they were effectively in control. However, if the noble Lord's amendment was allowed, thus restricting the provision in this way, only those responsible for the management would suffer.
Lord Mackie of Benshie: Perhaps the noble and learned Lord could be a little more explicit on the
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matter. For example, would the noble Lord, Lord Grimond, as honorary president of a charity, be liable for such matters? It is quite important that we should be told what sort of office bearers would be liable.
Lord Fraser of Carmyllie: I do not want to protract the argument any longer than I need to, but I do not think that I can give a check list of what offers the noble Lord ought to accept. It would be for him or anyone else who became involved in such organisations to determine whether the office he assumed was one which imposed upon him some degree of control or, alternatively, management. The purpose of the provision is that one should not be able to escape from one's responsibilities by appointing managers and then pulling out of the organisation.
Lord Grimond: I am most grateful to the noble and learned Lord the Lord Advocate. I cannot say that I am convinced by his arguments or that my mind is much clearer. Nevertheless, as it is late at night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: Before calling Amendment No. 34 I should remind the Committee that if it is agreed to I cannot call Amendment No. 35.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 34:
Page 3, line 17, leave out from ("time") to end of line 20.
The noble and learned Lord said: The amendment deals with accounts and in a sense it is linked with amendments to which I shall be speaking at a later stage. However, perhaps I may leave speaking to those amendments until that time. Subsection (1) (b) is really unnecessary, if accounting records disclose with reasonable accuracy at any time the financial position of the body at that time. At that stage, before one starts to look at what annual accounts are to be produced, that is all one needs. Therefore I suggest that it is unnecessary in this part of the clause to include paragraph (b) which deals with the balance sheet and expenditure account. The main argument about accounts is dealt with by Amendment No. 43, to which I shall speak later.
Lord Fraser of Carmyllie: The amendment moved by the noble and learned Lord seeks to remove the requirement under Clause 3 (1) (b) which requires bodies to keep accounting records enabling them to meet the accounting requirements specified in Clause 4. The maintenance of proper and adequate accounts is central to the Bill's object of ensuring that charities are publicly and openly accountable for their actions. The removal of the requirement at Clause 3 (1) (b) would be in effect to permit charities to keep records in any way they chose irrespective of whether they were capable of enabling compliance with the requirement at Clause 4. This would have a seriously detrimental effect on the effectiveness of the Bill.
I hope that that is a sufficient reply to the noble Lord although I agree that the more important point on accounts arises in relation to the amendments which he has tabled. I hope that he will accept that his amendments are inferior to those which I shall move.
Lord Morton of Shuna: If one looks at Amendment No. 43 one can see that I am there abolishing balance-sheets and income and expenditure accounts. Therefore, I do not want them in in Clause 3 (1) (b). Having given that sort of warning shot, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 35:
Page 3, line 18, leave out ("balance sheet and income and expenditure account") and insert ("statement of accounts").
The noble and learned Lord said: With the leave of the Committee, I shall make reference also to Amendments Nos. 44 and 45, 47 to 50, 53, 57, 59, 61, 63 to 65, 68 and 71. Amendment No. 44 introduces a phrase, "statement of accounts" which it defines in terms of the existing Clause 4 (1) (a), (b) and (c). It thus paves the way for the introduction of the lower level of accounting requirements thought essential for the smaller charities. Consequently, there is a new definition of accounts which has the effect of removing the rather lengthy references to:
"balance sheet, income and expenditure account, and report"
which occur in various places throughout the clause. There are consequential amendments to change these references to the shortened form "statement of accounts". One of those consequential amendments is Amendment No. 35.
The amendment also introduces the important proviso at subsection (1B) which we are seeking to introduce which will enable my right honourable and learned friend the Secretary of State for Scotland to prescribe different accounting requirements for classes of recognised bodies.
Amendment No. 45 is an important amendment because it enables my right honourable and learned friend to give to such classes of recognised bodies as he may prescribe— and we particularly have in mind here small charities— a choice of preparing either full accounts in accordance with the provisions of subsection (1A) or of producing a simple statement of balances and a receipts and payments account in accordance with (1B). Whichever kind of account the body elects to prepare, the accounts will be required to include a report as to their activities having regard to their charitable purposes.
I would bring to the Committee's attention the fact that by the terms of subsection (2) the balance sheet and income and expenditure accounts are required to show a true and fair view. This is not required in the case of the modified accounts under (1B), "true and fair" being an accounting term of art.
Subsection (3) enables my right honourable and learned friend to make regulations which prescribe the form and content of the statement of accounts, any additional information required by way of notes to the accounts, and requirements as to auditing the accounts. I wish to make clear that it is the Government's intention that there should be a threshold above which it will be a requirement for accounts to be examined by a professional auditor while those below the threshold will only require examination by an independent examiner.
Lord Morton of Shuna: Perhaps I may add Amendments Nos. 43 and 46 and others in the name of my noble and learned friend Lord Cameron and myself to the rather lengthy list given by the noble and learned Lord so that we can discuss them all at the same time.
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The amendment relates to the type of accounts, and it seems to me that there is an issue of principle. We shall have to look at the detail and perhaps come back on the issue of principle. If one has the lower level of accounting suggested in Amendment No. 45— which is what, in essence, we sought to set out in Amendment No. 43, both having reports and statements showing income, expenditure and assets— there is no difficulty with regard to audit.
That is what we set out in Amendment No. 43; and, as I understand it, what is set out in Amendment No. 45 is the normal account charge and discharge system that trusts use. They are normally audited by fully qualified chartered accountants. Why is it necessary to insist on Companies Act type of accounting? That is the purpose of Amendment No. 43. Certainly larger charities will use that form of accounting anyway. Why is it not sufficient merely to have simple accounts? Other organisations, for the most part, are already companies limited by guarantee; they come within subsection (12) of Clause 4 and therefore already account in that way. Why do we need to add this additional cost to charities so that in effect the charitable purpose becomes the benefit of chartered accountants? On the whole they do fairly well and there is no need for this rather exotic level of accounting.
There is also no need for the Secretary of State to classify the standard of accounting. It is part of a scheme which is becoming more complicated and more onerous for people who are taking on these jobs largely unpaid and largely in their spare time. If the noble and learned Lord and the Government want to abolish voluntary charities and people acting as trustees, they are going the best way about it. It seems to me that they are taking far too heavy a hammer to crack this particular problem.
10 p.m.
Lord Cameron of Lochbroom: Perhaps the noble and learned Lord the Lord Advocate can set out whether the Government, in the regulations proposed for accounts, would have in mind following the spirit of the statement in the White Paper Charities: A Framework for the Future. It states that the Government believe that all statements of accounts should give details of grants made by charities out of their income or property, and that in particular they should disclose the names of institutional beneficiaries together with the amount of grant paid.
If that is considered to be important for openness, which is what is said in the paragraph concerning England and Wales in the White Paper, perhaps we should know what the Government policy is for Scotland in that regard.
Lord Fraser of Carmyllie: The noble and learned Lord has added a further amendment to the very lengthy list which I considered might be appropriate. I agree that it might be helpful if I deal with it now by commenting on what he has said, on Amendment No. 43 and others that come with it.

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I have spoken to the amendments which I considered should be accepted. However, it might be helpful if I were to stress that the type of accounts which Clause 4 will require is based on the Standard of Recommended Practice Reports (SORP) which was prepared by the Accounting Standards Committee and which is contained in their SORP No. 2 report on accounting for charities. At the same time the committee issued an accompanying guide, Accounting by Charities: A Companion for the Smaller Charity — I emphasise the word "smaller".
Over the past few months an informal committee of accounting experts and officials, including officials from the Charity Commission, the Home Office and the Scottish Office, have been giving detailed consideration to these reports and it is our intention to have similar legislative requirements North and South of the Border. If the amendments I have put before the Committee are accepted, that will provide for the production of accounts complying with those recommended. The amendment tabled by the noble and learned Lords will make that more difficult to achieve.
I should like to confirm, however, that much of the detail included in the noble and learned Lords' amendments will be covered in the regulations which my right honourable friend the Secretary of State will make under the provisions of Clause 4. I understand that it is my noble and learned friend's intention to circulate these regulations in draft form to interested bodies for comment before they are laid.
There is one important point in the noble and learned Lords' amendments on which I should paticularly like to comment. Subsection (2) of the amendment requires disclosure in the report of any institutional beneficiaries and the identity of the recipient. It is the intention of my right honourable friend the Secretary of State to include such a requirement, but this will have to be subject to qualification. Some charities involved in giving international relief have pointed out that disclosure of such information could in certain circumstances put the lives of their agents at risk. This is a particular risk in cases where international aid may be going to both sides engaged in a civil war. It is not difficult to think of one country where that is happening. Clearly, that is a point that will have to be carefully considered in drafting regulations.
I singled out that point because I do not think that there is a great deal between us. That example seems to me to indicate how carefully regulations will have to be prepared, following the best accounting advice.
The Earl of Selkirk: Does my noble and learned friend recognise that there is a terrible problem of accounting? Some people are good at accounts. I happen to be very bad, and I know it. This can make a big difference. It is all very well to talk about accountants. I have a great respect for them. They are well trained. However, there are many small bodies for whom the simpler the requirement, probably the more honest it is. The noble and learned Lord has taken that point because to go back to
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the standards we had previously is not absolutely necessary in certain cases.
Lord Mackie of Benshie: As I said previously, nearly all the small bodies with which I am connected have their accounts audited by a friendly bank manager or a solicitor but not necessarily by a firm of accountants. Some form of accounting does take place in small bodies.
Lord Fraser of Carmyllie: I am grateful for that observation. I suggest that a choice might be given to a trust or the trustees because they may have friendly people who can help them to present their accounts in the best possible form. At the same time provision should be made for smaller charities to do this without the same degree of accounting detail that might be necessary for, say, a very large charity— one can think of a number— whose income and capital runs into thousands, if not millions, of pounds. In such circumstances clearly such large charities should be subjected to the most strenuous of accounting requirements.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 36:
Page 3, line 27, after ("preserved") insert (", without prejudice to any requirement of any other enactment or rule of law,").
The noble and learned Lord said: Clause 3 (3) requires a recognised body to keep accounting records for six years from the date on which they are made. The amendment is simply a saving provision of the general law. I beg to move.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna had given notice of his intention to move Amendment No. 37:
Page 3, line 27, leave out ("for six years from the date on which they are made").
The noble and learned Lord said: We have made this clause rather longer than it need be. Not having opposed the previous amendment, I do not think I can move this one. The sense is the same except that the Government have taken three lines to say something for which I would have taken one line.
[Amendment No. 37 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 38:
Page 3, line 30, after ("where") insert ("and the person is by whom").
The noble and learned Lord said: Clause 3 (4) presently empowers my right honourable friend the Secretary of State to make regulations prescribing the place where accounting records are to be kept. In the interests of clarity the amendment seeks to empower my right honourable friend also to prescribe who shall keep the records; for example, the trustees or the agents of the trustees. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 39:
Page 3, line 31, after ("bodies") insert ("including bodies which have been wound up or have ceased to be active").
The noble and learned Lord said: Clause 3 (4) enables my right honourable friend the Secretary of State to prescribe by regulation where accounting records should be kept. Typically that will be at the address of any of the trustees or the treasurer of a trust or at the office of an agent. The amendment ensures that the regulations may extend to the records of bodies which have been wound up or which have ceased to be active. The purpose of this amendment is to ensure the obligation under subsection (3) to preserve the records for six years continuously beyond the winding-up of a body. I beg to move.
Lord Morton of Shuna: Does the noble and learned Lord really mean that the trustees of a trust which has been wound up will have to keep the records? They will have ceased to be trustees at that point. I read the subsection to mean that the trustees had to send the records somewhere so that they would be available. It seems an extraordinary suggestion that the regulations are to say that some poor trustee will have to keep the records of an organisation which has ceased to exist and that he will have to do so for six years or longer.
Lord Fraser of Carmyllie: The purpose is not to impose this duty on any particular trustee but indicate the type of places where the records might be kept. That might be either with the trustee or, as I have indicated, with the treasurer. I anticipate that in such circumstances the greatest likelihood is that the records will gather dust in some solicitor's safe.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 40:
Page 3, line 32, after ("that") insert ("any such recognised body or").
The noble and learned Lord said: This amendment is to provide for more flexibility in what the Secretary of State may do by regulations. In any individual case which may be special he can provide for exemption as well as in a class or classes case. I beg to move.
Lord Fraser of Carmyllie: As the noble and learned Lord has clearly indicated in moving this amendment, there is already provision to exempt classes of a recognised body from the requirements of this section. I cannot conceive of any circumstances where he might wish to exempt any particular body other than possibly the Church of Scotland, which we discussed in connection with another amendment. If that is what is in mind, I rest on what I said earlier; namely, that we have to look at the matter in a broader context.
Lord Cameron of Lochbroom: I am not going to press the matter. Perhaps the noble and learned Lord might wish to consider the matter. We are making provision for legislation which is to cover all kinds of
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situations which we cannot perceive at the moment. I believe that this is a flexibility which is available in the English Act. I do not press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 41:
Page 3, line 34, after ("section 4") insert (" (1) (a) and (b) ").
The noble and learned Lord said: The purpose of this amendment is simply to provide that exemptions shall not apply to the provision by a recognised body— that is to say, one which would appear on the register or index— of a report. That is linked up with something which the noble and learned Lord the Lord Advocate said earlier today in relation to where information is to be obtained. He said that material regarding the purposes of a recognised body might not be available from the Commissioners of Inland Revenue, but that it could be obtained through the medium of a report from a recognised body. In that event it would seem to be self-defeating that the Secretary of State could then kick away the prop— which would be the only means whereby the interested body or party could find out what the purposes of the recognised body were.
There might be an answer to this but I should be grateful if the noble and learned Lord could give an explanation. I beg to move.
10.15 p.m.
Lord Fraser of Carmyllie: The effect of this amendment would be to restrict the exemptions which my right honourable friend the Secretary of State for Scotland could make with respect to Clause 4 to the preparation of a balance sheet and income and expenditure account. As I have already indicated, under my Amendment No. 44 I shall be seeking the approval of the Committee to provide a choice for smaller charities to prepare accounts which will not comprise a balance sheet and income and expenditure account. It may be that my right honourable friend will wish to exempt classes of bodies from that requirement too. That might fit in with what the noble and learned Lord, Lord Morton, indicated with regard to the smallest of charities. The acceptance of this amendment would preclude that.
Lord Cameron of Lochbroom: I shall read what the noble and learned Lord has said. I simply observe that Clause 4 provides for the preparation by a recognised body of three things, two of which are concerned with accounting and the third of which is a report on the activities of the body, having regard to its charitable purposes. It would seem unfortunate that that should be exempted. I can understand the exemption in relation to accounts. However, I do not take the matter further. I beg leave to withdraw the amendment on the understanding that the noble and learned Lord will consider this.
Amendment, by leave, withdrawn.
Clause 3, as amended, agreed to.
Clause 4 [Annual accounts and report]:
[Amendments Nos. 42 and 43 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 44 and 45:
Page 3, line 37, at end insert ("a statement of accounts.
(1A) Subject to subsection (1B) below, the statement of accounts of every recognised body shall comprise— ").
Page 3, line 41, at end insert—
(" (1B) As regards such class or classes of recognised body as the Secretary of State may, by regulations prescribe, a recognised body may elect that in respect of any financial year its statement of accounts shall, instead of the requirements of subsection (1A) above, comprise—
(a) a statement of balances as at the last day of the year;
(b) a receipts and payments account; and
(c) a report as to the activities of the body, having regard to its charitable purposes.").
On Question, amendments agreed to.
[Amendment No. 46 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 47 to 49:
Page 4, line 2, leave out ("balance sheet and income and expenditure account and of the report") and insert ("statement of accounts").
Page 4, line 6, leave out ("and") and insert ("statement of balances,").
Page 4, line 7, after ("account") insert ("and receipts and payments account").
On Question, amendments agreed to.
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): I have to tell the Committee that I need to call Amendment No. 51 before I call Amendment No. 50 because of infelicity in the marshalling.
[Amendments Nos. 51 and 52 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 50:
Page 4, line 12, leave out ("balance sheet and income and expenditure account and report") and insert ("statement of accounts").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 53:
Page 4, line 16, leave out ("balance sheet and income and expenditure account and report") and insert ("statement of accounts").
On Question, amendment agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 54:
Page 4, line 18, leave out ("10") and insert ("3").
The noble Lord said: Amendment No. 54 refers to the period within which the recognised bodies have to produce their accounts for the preceding financial year. Clause 4 (6) allows the recognised body up to 10 months from the close of the financial year to have the balance sheet, income and expenditure account and so on prepared. Under Clause 3 the obligation on the bodies requires them to keep accounting records showing from day to day all sums of money received, and so on, and the record of the assets and liabilities of the body. It seems to me that 10 months is an extraordinary time to allow a charity to produce proper accounts.
The amendment is designed to reduce the period within which the information can be made available to the public and to anyone wanting the information to three months rather than 10. I do not say that three months is exactly right, but a leeway of 10 months after the end of the financial year, particularly in relation to any unscrupulous people running charities for the wrong reasons, gives these people ample time to depart with, or dispose of, the assets of the body and flee outwith the jurisdiction. I beg to move.
Lord Fraser of Carmyllie: Ten months is not a period that was selected at random, as it were. It is the period permitted for the production of accounts under the Companies Acts. Larger charities are as large, or larger, than many companies. On that basis it was considered reasonable that they should have the time to prepare their accounts. I would certainly suggest to the noble Lord that the three-month period that he has suggested was a tight period. If 10 months has been the accepted period in relation to companies legislation, I would suggest that it is the one that we ought to hold to here.
Lord Mackie of Benshie: In fact in three months there is plenty of time to skip— if he wants to— as well as 10 months.
Lord Macaulay of Bragar: I am obliged to the noble Lord, Lord Mackie of Benshie, for that observation. That was precisely the point I was trying to make, but perhaps I made it rather badly. I am not very happy about the proposition of equating charities, particularly the charities that might be under investigation, with large companies. I shall not press the amendment, but the Lord Advocate may wish to give the period some further consideration between now and the Report stage. I beg leave to withdraw the amendment.
Amendment by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 55:
Page 4, line 19, leave out ("Lord Advocate") and insert ("the court, on the application of the recognised body shall, on cause shown").
The noble Lord said: This amendment relates to the same subsection. It is designed to remove the Lord Advocate's discretion to allow a further period of time and to put that discretion in the hands of the courts. There must come a time in the regulation and supervision of charities when the Lord Advocate should not be allowed to stand alone making important decisions which might affect not only the future of the company but people affected by the activities. If the amendment is agreed to, the phrase the "Lord Advocate" would disappear and the Bill would read:
"Where any recognised body fails, within 10 months, or such longer period as the court, on the application of the recognised body shall, on cause shown allow … ".
The purpose of that provision is to put the obligation on the recognised body which has failed to come up with the accounts within what the noble and learned Lord the Lord Advocate considers a reasonable time; namely, 10 months. The body

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should be forced into the courts so that people with an interest in what is happening within the charity that has failed to produce the accounts within 10 months following the end of the financial year will have a chance to hear in public why such a simple accounting exercise has not been complied with. I beg to move.
Lord Fraser of Carmyllie: While I accept that the amendment is not strictly consequential upon the previous one, I had anticipated that if the noble Lord had been successful in achieving a three-month period he would have wanted this further arrangement, before involving the courts, to allow a further extension if the three-month period could not be met. It is a somewhat unnecessary amendment which goes against the thrust of his earlier amendment. It would allow for a further extension by the court rather than restricting power to me where a 10-month period is allowed for under subsection (7). If the body cannot do it within 10 month;;, it is appropriate that the matter should be left to the Lord Advocate to deal with without necessarily involving the courts. It is merely a matter of administration.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for that explanation. If the charity is to have a leeway of 10 months, it is difficult to see what criteria the Lord Advocate might apply when judging whether an extension should be allowed, what the length of that extension might be and the reasons for it. With the greatest of respect, that is something which the court, being neutral in the matter, might be better fitted to determine rather than to leave the decision to be made by the parties who have failed to comply with the legislation and the Lord Advocate who may be interested in investigating the body.
It may be counter-productive if the Lord Advocate comes to suspect that the body is up to no good if then he is asked to allow that same body a further period of time to produce accounts which might never be produced if the time is allowed. The amendment is in a similar position to the previous one. It is put before the Government for consideration. They may wish to give it further thought between now and Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 56 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 57:
Page 4, line 20, leave out ("balance sheet and income and expenditure account or report") and insert ("statement of accounts').
On Question, amendment agreed to.
[Amendment No. 58 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 59:
Page 4 line 23, leave out ("balance sheet and income and expenditure account or report") and insert ("statement of accounts'').
On Question, amendment agreed to.
[Amendment No. 60 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 61:
Page 4, line 26, leave out ("balance sheet and income and expenditure account or report, as the case may be") and insert (a "statement of accounts").
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 62:
Page 4, line 29, leave out subsection (8).
The noble and learned Lord said: There is just one point I wish to raise with regard to the amendment. In the subsection— I use the words in line 41— there is provision that the persons,
"responsible for the management or control of the body shall be personally liable jointly and severally for the expenses incurred"
in preparing a balance sheet and income and expenditure account by a person appointed by the Lord Advocate. It is not clear who those persons are who are to be personally liable. Is it intended that they should be the persons referred to in subsection (7)? I merely observe that the requirement in subsection (7) is persons concerned in the management or control of the body and not persons responsible for the management and control of the body. I do not know whether that difference of wording tends to have any importance or whether it is a reference back to subsection (8) (c):
"any person concerned in the management or control of the body to give … such information".
It would be unfortunate if it made those persons who are not the same as those in subsection (7) responsible for the expenses incurred in a failure to carry out a requirement. I ask in the spirit of inquiry; I do not intend to press the amendment. I beg to move.
Lord Fraser of Carmyllie: The noble and learned Lord is correct that subsections (7) and (8) should be the same.
Lord Cameron of Lochbroom: I am happy, and I have no doubt that this can be put right at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 63 to 65:
Page 4, line 29, leave out ("balance sheet and income and expenditure account") and insert ("statement of accounts").
Page 4, line 31, leave out ("do so") and insert ("prepare a balance sheet and income and expenditure account, or, in the case of a body to which subsection (1B) above applies, if it appears to such person more appropriate to do so, a statement of balances and receipts and payments account").
Page 4, line 32, leave out from ("for") to end of line 33 and insert ("that purpose").
On Question, amendments agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 66:
Page 4, line 44, at end insert—
(" () Any person who wilfully alters, suppresses, conceals or destroys any record which he may be required to furnish or transmit under this section shall be guilty of an offence and

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liable on summary conviction to a fine not exceeding level 4 on the standard scale or to imprisonment for a term not exceeding 3 months or to both").
The noble Lord said: This amendment was dealt with at an earlier stage. I do not propose to press it at this time of night. However, I ask the Government to take note that there is apparently no penalty in Clause 3 in relation to destroying or concealing accounting records. The importance of accounting records is that they often constitute valuable evidence not only for obtaining a conviction but for clearing an innocent party in the running of a charity. It may be that the Government will give consideration to inserting a similar provision as appears in Clause 5 (8), subject to the reservations which were expressed in the debate earlier on.
[Amendment No. 66 not moved.]
[Amendment No. 67 not moved.]
The Deputy Chairman of Committees (Lord Cocks of Hartcliffe): I have to call Amendment No. 69 before Amendment No. 68 because of incorrect marshalling.
[Amendment No. 69 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 68:
Page 5, line 3, leave out ("balance sheet and income and expenditure account") and insert ("statement of accounts").
On Question, amendment agreed to.
[Amendment No. 70 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 71:
Page 5, line 12, leave out ("balance sheet and income and expenditure account and report") and insert ("statement of accounts").
On Question, amendment agreed to.
[Amendment No. 72 not moved.]
Clause 4, as amended, agreed to.
Clause 5 [Powers of Lord Advocate to investigate charities and to suspend trustees]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 73:
Page 5, line 29, after ("purposes") insert ("including a reasonable complaint by a person having an interest, financial or otherwise, in the administration of the aforementioned bodies").
The noble Lord said: This amendment might conveniently be dealt with together with Amendments Nos. 83, 85, 91 and 99 which deal with the same type of amendment in different parts of the Bill.
The purpose of the amendments is first to widen public interest in the operation of charities, and to encourage the public to take an active interest in any suspected misconduct or mismanagement of a charity as indicated in the Act. It is to widen the class of persons who, having suspicion or proof of such misconduct or mismanagement which is reasonably based, may take that information to the
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Lord Advocate for his consideration and, if necessary, investigation; further, to enable the complaint, if deemed reasonably based, to be investigated, thereby ensuring that the cost of investigating does not fall on the individual with the suspicion. I appreciate that the wording of the amendment may not be satisfactory in the use of the phrase,
"having an interest, financial or otherwise",
as that is always a difficult phrase to interpret. However, its aim is really to highlight the fact that a person need not be a donor or a recipient in connection with a charity to have an interest or otherwise in it. Someone may have a connection with similar charities or societies in the same field— for example, charities concerning children, animals, housing or other matters— and have an interest in seeing that the similar charity is properly run. I beg to move.
Lord Fraser of Carmyllie: I appreciate that the amendment of the noble Lord is intended to be a clarifying amendment to make clear that I may make inquiries in consequence of a complaint from a person having an interest in the body. However, the clause provides that I should be able to act on information from any source, be it a person with an interest in the charity, the Inland Revenue or whoever it may be.
As I have said, while I appreciate the purpose behind the amendment, it is in my view unnecessary as regards the powers that I require. However, it may be worse than that. It might be construed as restricting my ability to make inquiry generally or as a limitation of particular purposes only to where the complaint is from a person with an interest in the body.
As I understood it, the noble Lord also considered it helpful to make some comment on Amendments Nos. 83, 85, 91 and 99. The basis of Clause 6 is that the court may take various actions on application by the Lord Advocate. These powers are sought specifically to enable me to act in the public interest. If we were to accept the amendments tabled by the noble Lord, members of the public would have a direct power to ask the court to act. In asking the court to act, I would be bringing before the Court of Session— as I indicated, I would hold it at that— information received from members of the public or that as Lord Advocate I had received from the Inland Revenue in terms of Clause 1 (1) (a).
In many instances I would have carried out full and thorough investigations under Clause 5. I very much fear that if we extended these particular powers to members of the public it could lead to some overloading of the court and could detract from the structured approach which I believe we have sensibly adopted in Clause 6. I am concerned that confusion would be more than likely to arise as there is no obligation in the amendment for service upon me of a copy of the application. In those circumstances, I invite the noble Lord to withdraw the amendment.
Lord Macaulay of Bragar: I am obliged to the noble and learned Lord the Lord Advocate for that explanation. However, I should say that the purpose

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of the amendments was not to allow members of the public direct access to the court. Perhaps it is not happily worded but the reasoning behind the amendment was to allow members of the public to feel free to approach the Lord Advocate so that he may take up a complaint and follow it through, whether under Clause 5 or 6. However, having heard the explanation that the noble and learned Lord has given, I appreciate particularly the argument in relation to restriction. Perhaps we shall have to give the matter further consideration if that approach is to be pressed. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 74:
Page 5. line 44, after ("any") insert ("wilful").
The noble and learned Lord said: This amendment seeks to add the word "wilful" to line 44, where there has been any wilful misconduct. There can of course be accidental misconduct or unintentional misconduct, depending on one's view. If these draconian measures are to be taken, in my view they should be taken only if one can say that there has been deliberate misconduct rather than a failure to act, so to speak. That is the purpose of the amendment. In Part II of the Bill there is a frequent use of the word "wilful" where it is quite clearly appropriate. In my view, it would be equally appropriate here.
I should also like to speak to Amendments Nos. 76 and 77. They are rather different in a sense. Amendment No. 77 is purely consequential on Amendment No. 76.
As presently written the Bill gives power to the Lord Advocate to suspend a person involved in the management of a body. The amendment suggests that he should apply to the court and the court should make the decision as to whether or not the suspension is appropriate. For that rather draconian power there should be supervision of the Lord Advocate and that supervision should be undertaken by the court. I beg to move.
Lord Fraser of Carmyllie: A balance has to be struck between protecting the individual and protecting the assets of the charity and the public who support it. It may be of little comfort to either the charity or the public if money is frittered away through incompetence and I was unable to act because such action is not "wilful". The object of my having powers to suspend by order is to enable me to act immediately in order to protect the property of a charity or a purported charity. The purpose of that suspension might be to establish whether or not that action was wilful.
My powers are, however, very limited. I may only suspend for 28 days, during which time I am able to undertake investigations. If I wish the person to be suspended beyond that period or to seek more permanent remedies, I must apply to the Court of Session. I acknowledge that that is absolutely right. I believe that those powers strike a reasonable balance between protecting the public interest and protecting the rights of the individual concerned. They are
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powers that will not be exercised lightly, but they appear to me to be necessary powers if I am to meet effectively my responsibility to act in the public interest.
Lord Morton of Shuna: I recognise that a balance has to be struck. As the noble and learned Lord is well aware, he can get to the court at any time. Within recent years he has gone to the court at an even later hour than this in the evening in order to obtain an interdict. Therefore if any Lord Advocate wished to go to court for a temporary suspension he could do so without any great difficulty. I should hope that the noble and learned Lord might reconsider whether he has the right balance. In the hope that he will at least look at the issue, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 75:
Page 5, line 47, after ("property") insert ("including its funds").
The noble Lord said: Amendment No. 75 adds the words "including its funds" after the word "property" in this clause. It is intended to provide clarification. It might be considered superfluous and that the word "property" includes funds. However, the word "property" is not defined in the Bill. It might be safer for all concerned, particularly if the Lord Advocate is to take the actions which have just been discussed, if it is made clear that the funds are included in property. Usually, the greatest assets requiring protection are the funds rather than property, which many charities do not have. I beg to move.
Lord Fraser of Carmyllie: This amendment seeks to extend "property" in Clause 5 (2) (a) (ii) to include "funds". To give effect to this amendment, similar consideration would need to be given to the use of the word "property" throughout Part I of the Bill. I consider that "property" is wide enough to include "funds" and on that basis I would invite the noble Lord to withdraw the amendment.
Lord Macaulay of Bragar: I am obliged for that explanation. However, I still think it might be worth while, as on so many other clauses, at this stage to give consideration in the absence of a definition to including the word "funds" in this clause and if necessary throughout the Bill. But, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 76 to 78 not moved.)
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 79:
Page 6, line 41, leave out ("3") and insert ("5").
On Question, amendment agreed to.
[Amendment No. 80 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 81:
Page 6, line 45, leave out ("4") and insert ("5").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 82:
Page 6, line 46, leave out ("3") and insert ("6"). On Question, amendment agreed to. Clause 5, as amended, agreed to.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at fourteen minutes before eleven o'clock.