Lords Sitting of 29 March 1990

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

Russia: Chemical Weapons
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they have any information on the expansion or contraction of the Russian Government's preparations for chemical warfare.
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran): My Lords, we are not aware of any recent significant changes in the Soviet Union's chemical warfare capability.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that Answer. Can he confirm that Russia's capability in such deadly and terrible weapons is enormous and that it is difficult to believe in any serious move towards detente until a substantial reduction is made?
The Earl of Arran: My Lords, my noble friend is correct in being cautious, because the Soviet Union has the world's largest and most sophisticated chemical weapon capability. We continue to have doubts about Soviet claims about their chemical weapon capability but we hope that bilateral Soviet/US contacts will resolve the concerns.
Lord Graham of Edmonton: My Lords, the Government estimate that stocks of chemical weapons in Russia amount to 300, 000 tonnes. The Americans have recently announced that they are satisfied that the total is between 30, 000 and 100, 000 tonnes; the Russians have announced that the total is 50, 000 tonnes. Can the Minister give the Government's latest estimate of the total stock of chemical weapons in Russia? It is no good talking in general terms; the Government must have an estimate. Can they also give an undertaking that after the chemical weapons convention this country will cease to produce binary chemical weapons even though others may not cease to do so?
The Earl of Arran: My Lords, no chemical weapons have been produced in this country since the late 1950s. Our current estimate of the stock of chemical weapons in Russia is about 50, 000 tonnes. However, the Americans say that they are not optimistic about that and believe that the Russians could hold far more stocks.
Lord Mayhew: My Lords, does the Minister agree that it is almost impossible to judge the amount of chemical weapons or to monitor the amount? Can he reassure the House that as regards disarmament, Mr. Gorbachev has been extremely positive in words and deeds for a considerable period of time?
The Earl of Arran: My Lords, the noble Lord is correct in saying that it is extremely difficult to produce a true and authentic figure about the amount of chemical weapons stocks in the world. However, I assure him that good progress has been made in the recent bilateral discussions on chemical weapons. The memorandum of understanding which was agreed in September last year at Wyoming provided for a two-year experiment in data exchange and verification. The first exchange of information took place in December last year. However, in February the two nations agreed in principle to the destruction of chemical weapon stocks, reducing them to 20 per cent. of current US levels. Her Majesty's Government fully endorse and support those initiatives.
Lord Elton: My Lords, can my noble friend say whether his original Answer and that concerning the Wyoming agreement relate also to biological weapons, or is that another Question?
The Earl of Arran: My Lords, if I knew the exact answer I could say whether it related to this Question. However, I am not certain of the answer and therefore it could be another Question. In the circumstances I shall write to my noble friend.
Lord Monson: My Lords, does the Minister agree that the general public worries far too much about nuclear warfare and far too little about chemical warfare, which is a more likely possibility and could be almost as devastating in its consequences?
The Earl of Arran: My Lords, the noble Lord's assumption is correct. Chemical warfare has a far-reaching and lethal potential.
Lord Molloy: My Lords, the Minister said that there could be a follow-up of verification for the gradual abandonment of chemical weapons. Will that verification include on-the-spot physical examination and therefore reduce the possibility of cheating to nil?
The Earl of Arran: My Lords, the point made by the noble Lord is being discussed under the confidence and security building measures which are taking place.

Education: Licensed Teacher Scheme
3.7 p.m.
Baroness David Baroness David asked Her Majesty's Government: How many licensed teachers there are in maintained schools
Baroness Blatch: My Lords, a total of 44 licences have been granted since the arrangements were introduced in September last year.
Baroness David: My Lords, are the Government satisfied with that figure, which does not appear to show much enthusiasm for the scheme? Is the Minister aware that I tabled the Question because the

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LEAs are most incensed? Under the local education authority training grant scheme they were told last September to apply for grants for the training of licensed teachers and that they would receive answers by December. By 26th March, the beginning of this week, they had received no reply. I understand that replies were received today. Does it take the tabling of a Question in this House before the DES will respond? Can the DES be a little more efficient? How can local authorities plan their future expenditure if they must wait an additional three months: before receiving a reply?
Baroness Blatch: My Lords, I understand the frustration experienced when one is waiting for a reply. However, the scheme started only in September. While my initial Answer to the Question sounded a little gloomy, it is important to note that approximately 55 LEAs have now applied and the allocations were sent on 26th March. On that date a list of allocations to LEAs was also sent setting out the bids which were made by them. We shall find a different picture this time next year.
Lord Gainford: My Lords, can the Minister say whether there are initiatives for people aspiring to the teaching profession other than that mentioned in the Question?
Baroness Blatch: My Lords, the Government are taking seriously the present difficulty in recruiting teachers. There are a number of initiatives, including the licensed and the articled teachers schemes. There are special bursaries for teachers in shortage subjects and education support grants to help with recruitment and retention. Special assistance is being given to teachers for London. There is also an interesting innovation whereby ILEA entered into an arrangement for housing for teachers in London. Indeed, the Secretary of State intends to help with the housing of teachers in London. Help is also provided to encourage mature people to return to the profession and the Teaching as a Career Unit is helping substantially with the recruitment and retention of teachers. The campaign is most vigorous and I hope that in the future we shall see a buoyancy in the recruitment of teachers.
Baroness Blackstone: My Lords, can the Minister explain the Government's intentions on payment, first, of unqualified licensed teachers and how that will compare with a new graduate and, secondly, of licensed teachers once they are registered and how that will compare with graduate teachers' pay? There seems to be some confusion on this matter.
Baroness Blatch: My Lords, the pay for teachers while they are training will vary according to the experience of the particular person. Some come highly qualified and are already graduates when they enter teacher training. They will do the equivalent of a PGCE although it will be more school based. My understanding is that once a graduate is trained he will be treated as a graduate teacher. Non-graduates who achieve trained teacher status will be treated as non-graduate but qualified teachers.
Lord Campbell of Alloway: My Lords, may I ask the Minister whether she has any figures as to the number of licensed teachers who are trained to teach dyslexic children and whether there is a general sufficiency of such teachers? Or is that beyond the Question?
Baroness Blatch: My Lords, I do not have a specific answer to my noble friend's question. Nor do I suspect that it will be possible to single out a specific number of teachers. A large number of teachers are involved in special needs teaching and some of that will be for children with dyslexia. However, my noble friend may be interested to know that next week there is to be a specific debate on the teaching of dyslexic children. I shall try to bring as much data to that debate as I can.
Lord Ritchie of Dundee: My Lords, can the Minister enlighten me as to how those licensed teachers will receive their training bearing in mind that to have knowledge and experience of a subject is one thing, but to be able to teach it is very different especially to young people who do not wish to learn?
Baroness Blatch: My Lords, the particular training for a licensed teacher will largely depend on the knowledge which a teacher has at any time. A teacher may well come in with advanced qualifications in the first instance. It will then be a matter of teaching him to teach children. Therefore, the programmes will vary according to the particular teacher. However, I can assure the noble Lord that no licensed teacher will achieve qualified status unless he has the appropriate knowledge, the personal qualities for teaching, is competent and has classroom experience. It will not be until those factors are satisfied that the status of qualified teacher will be achieved.
Lord Dormand of Easington: My Lords, does the Minister accept that the teaching profession is as important as the legal or medical profession? The Government would not dare to attempt to impose such a scheme on either of those professions. When will the Government realise that learning to teach is not simply sitting next to Nellie? It takes a course of four years or a one-year postgraduate course. Is the Minister aware that one of the worst features of this ridiculous scheme is that it will be divisive within the teaching profession and that will be to the detriment of the pupils?
Baroness Blatch: My Lords, I hope that nothing I have said has downgraded the importance of the teacher in the school. I am not entirely in agreement with the noble Lord who believes that only people who attend a four-year training course are competent. I believe that there are considerable talents outside the classroom. With some training, those people will make excellent teachers. I am not competent to comment on the legal profession but my lay understanding is that there is an articled legal process.
Lord Peston: My Lords, I believe that my noble friend Lord Dormand of Easington is right in that

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many people are under the impression that you do not need any training to be a teacher. I ask the noble Baroness how many of the licensed teachers are likely to end up in the fee-paying schools to which noble Lords opposite send their children. As the noble Baroness has reminded us, the Government have many ad hoc expedients to deal with the teacher shortage problem. However, does not the noble Baroness agree that the Government should have a teacher supply policy overall and in particular, following my noble friend Lord Dormand, they should start to pay teachers properly?
Baroness Blatch: My Lords, all the initiatives which I have outlined in the course of answering this Question at least show that the Government take very seriously the issue of supply of teachers. All the imaginative and innovative steps that are being taken are designed to provide more teachers competent in the classroom.
On licensed teachers, they must be at least 26 years of age, they must have two years of higher education before coming into licensed teacher training and they must have GCSE in maths and English. That is a greater qualification than was required by many teachers who applied for teacher training in the 1960s.
Lord St. John of Fawsley: My Lords, will my noble friend agree that the one thing needed to be a good teacher is a teaching nature?
Baroness Blatch: My Lords, there is much in what my noble friend says.
Lord Beloff: My Lords, is the Minister aware, to take up the point made by the noble Lord, Lord Peston, that I— and no doubt others of my age who were at fee-paying schools a generation or two ago— was very satisfactorily taught by teachers whose only satisfactory qualification was a good degree, knowledge of the subject and a proper allowance of carrot and stick for those who, as the noble Lord, Lord Ritchie, reminded us, may not want to learn at all?
Baroness Blatch: My Lords, my noble friend makes an interesting point. We need to break the mould of view that only teachers who go to teacher training college for four years are competent to teach in our schools. There are many ways into the classroom. The important thing is a good knowledge of the subject, competence and an aptitude for teaching children.
Lord Peston: My Lords, is the noble Baroness aware that the noble Lord, Lord Beloff, has embarrassed me once before on raising the matter of his own education? For the second time I forbear to comment on the consequences of it. Have the Government changed their policy as regards the noble Baroness's last remarks concerning the desirability that the overwhelming majority of our teachers should be taught properly themselves and go to teacher training college?
Baroness Blatch: My Lords, it seems that the Government cannot win in the view of noble Lords opposite. The Government's policy is that teachers should receive a formal training for teaching. That is desirable. However, there is a particular problem at this time which has been identified by your Lordships; that is, a shortage in particular subjects and a reluctance for people to enter the profession. I believe that we have a list of imaginative schemes to get people into the classroom. At the end of the day, as long as they are qualified to teach our children, we should welcome those initiatives.
Baroness Seear: My Lords, does the noble Baroness agree that there is something rather peculiar about the fact that the noble Lords, Lord Peston and Lord Beloff, and myself all taught in universities without having had any training whatever to teach?
Baroness Blatch: My Lords, do not tempt me to comment on that!

Invisibles: Balance of Payments
3.19 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
What was the current balance for invisibles in the United Kingdom balance of payments in the last quarter of 1989.
The Paymaster General (The Earl of Caithness): My Lords, the United Kingdom's invisibles balance was £ 0–7 billion in deficit in the fourth quarter of 1989 partly because of erratically high contributions to the EC budget and exceptional insurance claims arising from disasters in the US.
Lord Jay: My Lords, are the Government not worried at all by the prospect that on the present Chancellor's own estimates by the end of this year this country's overseas borrowings will be £ 50 billion, mainly in the short-term, on which very high interest payments across the exchanges are now being paid? Those have already pushed us into deficit both on visible and invisible account for the first time in our peacetime history.
The Earl of Caithness: My Lords, as I said, there were exceptional factors in the last invisibles figures. The noble Lord will be pleased to know that the forecast published in the Red Book on Budget Day showed an invisibles surplus of £ 1–5 billion for 1990.
Lord Renton: My Lords, is my noble friend aware that an increasing number of foreigners, especially from the EC, have been bringing their money to this country in order that they may obtain justice in the High Court in London for which they have such admiration? Will that increasing factor be borne in mind as part of the invisibles earned by this country?
The Earl of Caithness: My Lords, I am grateful to my noble friend for that information of which I was not aware. That is not the only money coming into

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this country. Many overseas firms are investing in this country because we have a good record.
Lord Barnett: My Lords, in the light of the Minister's reply, can he explain why the monthly balance of payments figures are shown as being broadly in balance rather than showing a surplus?
The Earl of Caithness: My Lords, the latest figures for the past quarter included those exceptional items. The reason why they are heading the balance now is that the exceptional items are not included.
Lord Taylor of Gryfe: My Lords, will the Minister say when we last had a deficit in our invisibles and confirm that it is an alarming trend? Does it affect the standing of the City of London as an international finance centre? If so, is that caused by our isolation from the European financial institutions?
The Earl of Caithness: My Lords, I do not know exactly when we were last in deficit in invisibles. I believe that it was just after the war, if my memory serves me right. It is not a trend. There were exceptional factors and, as I said, the forecast for next year is in surplus.
Lord Stoddart of Swindon: My Lords, in his reply to ray noble friend, the Minister said that one of the major reasons for the deficit on invisibles was a large payment to the EC. Will he confirm that we are now contributing to the EC four times more than we take out? We pay in four times more than we take out. Will he also confirm that in addition to the invisible deficit our visible deficit was over £ 14, 000 million last year? Under those circumstances will he say what trading benefit we get out of the EC?
The Earl of Caithness: My Lords, I know that the House appreciates the noble Lord's concern with regard to the European Community, but his question is rather wider than that on the Order Paper. I shall be happy to answer him on another occasion.
Lord Diamond: My Lords, is the noble Earl's view that the policy of Her Majesty's Government is the same now as it was when the noble Lord, Lord Young, had responsibility on the Front Bench opposite for these matters and expounded the view that it does not matter how much your manufacturing trade falls, the slack will automatically be taken up by an increase in services?
The Earl of Caithness: My Lords, manufacturing and services both matter. The noble Lord will be pleased to know that manufacturing exports are rising rapidly; they were up 11–5 per cent. in volume terms in 1989 over 1988.
Lord Bruce of Donington: My Lords, is it not a fact that the factors mentioned by the noble Earl far from being a temporary aberration, threaten to be a continuing process over the years ahead? With regard to the net contribution by the British taxpayer to the European Community, the government estimate
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postulates nearly £ 2 billion across the exchanges for each of the next three years. Is it not also a fact that the high interest rates, which the Governor of the Bank of England recently said will probably continue for some considerable time, mean that we shall again pay across the exchange very high sums by way of interest on the hot money— around £ 40 billion— which is in the country at the moment in order to sustain the present rate of exchange? Will the Government say whether it is still their official view that invisibles will automatically cover any deficit on our visible trade?
The Earl of Caithness: My Lords, I stated the views of the Government clearly both this afternoon and in the Answer to the Question last week on exactly the same matter. The noble Lord referred to hot money, but that is a slightly outdated term. In our modem deregulated world of highly mobile capital the distinction between short- and long-term flows is not especially meaningful.
Lord Hatch of Lusby: My Lords, is there any reason to suppose that the figures given by the noble Earl from the financial statement— £ 1–5 billion surplus on invisibles this year— are any more likely to be accurate than the previous figures given on a variety of subjects? Following the question of the noble Lord, Lord Diamond, is he aware that the former Chancellor of the Exchequer told the Aldington Committee that, as manufacturing decreased, it would automatically be replaced by the proceeds of invisibles? How will £ 1–5 billion replace the £ 20 billion deficit which was seen last year in manufacturing?
The Earl of Caithness: My Lords, the noble Lord refers to the accuracy of forecasts. All economists agree that accurate forecasts are difficult to produce. Between the forecasts of the noble Lord and government advisers, my bet lies with the government advisers.
Lord Hatch of Lusby: My Lords, will the noble Earl answer the second part of my question, which was linked to the first? How are the invisibles to compensate for the deficit of £ 20 billion last year?
The Earl of Caithness: My Lords, the noble Lord is aware of the figures I gave on invisibles. He now knows that demand is slowing and therefore the deficit will reduce. That, together with increasing exports, will help.
Lord Jay: My Lords, is not the Minister also aware that the Chancellor in his Red Book predicts an overall current deficit of £ 15 billion this year? At that rate, by the end of the year we shall be approaching the South American system of borrowing overseas to pay the interest on our previous borrowings.
The Earl of Caithness: My Lord, I do not agree with the noble Lord's last remark. With regard to what he said concerning the Red Book, that is correct.

Pakistan and Nuclear Weapons
3.27 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether Pakistan now possesses nuclear weapons and whether they have urged Pakistan to join the non-proliferation treaty.
Lord Reay: My Lords, we are very concerned about the danger of a nuclear arms race developing in the sub-continent. Pakistan has, however, always asserted that it does not possess or intend to develop nuclear weapons. We take every suitable opportunity in our contacts with the Government of Pakistan to stress our continuing concern. As a depositary power the UK is strongly in favour of universal adherence to the non-proliferation treaty.
Lord Jenkins of Putney: My Lords, I thank the noble Lord for that Answer. Is he aware— I am sure he is— that since this Question was tabled it has become even more apparent that even when the treaty has been signed, as in the case of Iran, it is not being enforced? What steps are the Government intending to take to ensure more universal extension and, more importantly, the enforcement of the non-proliferation treaty?
Lord Reay: My Lords, the non-proliferation treaty came into force in 1970, since when 139 states have become parties. The fourth review conference will be held in Geneva from 20th August to 14th September and will be of particular importance as it is the last conference before the treaty comes up for extension. As a depositary power the United Kingdom is working actively for a successful outcome to the conference.
Lord Cledwyn of Penrhos: My Lords, is not the central point that neither Pakistan nor India subscribes to the treaty, and will Her Majesty's Government not take steps to persuade both those countries to do so? This is a particularly favourable moment to do so now that Pakistan has become a member of the Commonwealth.
Lord Reay: My Lords, we have in the past urged Pakistan to accede to the non-proliferation treaty, and the Pakistanis have made it clear that they will accede when India does so. We take every opportunity to encourage the Indians to reconsider their position, and we continue to encourage Pakistan to set an example by acceding first.
Lord Cledwyn of Penrhos: My Lords, have the Government taken further steps to that end since India became a member of the Commonwealth? Is this not an appropriate moment for Her Majesty's Government to take a positive initiative to get both these members of the Commonwealth together again?
Lord Reay: My Lords, this matter was last raised by my noble friend Lord Brabazon with both the Pakistani and the Indian authorities during his visit to the sub-continent in February.
Lord Mayhew: My Lords, is it not a major problem that a signature to the treaty is manifestly not enough? Iraq is a signatory of the treaty. Is it not further sad to hear from the international inspectorate that it had no evidence whatever that Iraq was building a nuclear weapons facility? Does not that strengthen the view that the best way forward might be the signing of a comprehensive test ban treaty? Is the noble Lord aware that the two nations who are, above all, preventing that are the United States and the United Kingdom?
Lord Reay: My Lords, in raising the question of Iraq, the noble Lord goes wider than the Question on the Order Paper, though I can understand why he should wish to do so. Iraq is a party to the non-proliferation treaty, as he said, and as such has undertaken not to develop a nuclear weapons capability. We expect Iraq to abide by its international legal commitments.
Lord Kennet: My Lords, do the Government remember after all these years— 20 years— that the non-proliferation treaty is in the nature of a compact between the haves and the have-nots? While the have-nots agreed not to obtain nuclear weapons, the nuclear weapons powers, including this country, agreed to proceed to multilateral nuclear disarmament. Is it realistic to expect everyone on the other side of the fence to observe the NPT while we do not do very much about it on our side?
Lord Reay: My Lords, I believe it is generally recognised that the non-proliferation treaty has been successful in discouraging states from developing nuclear weapons and declaring themselves as nuclear weapon states.
Lord Mellish: My Lords, how can the Minister say that with any conviction with the knowledge, according to the latest press reports, that Iraq, which is supposed to be a member of the treaty, is developing nuclear weapons and doing so rather well? What does the Minister have to say about that?
Lord Reay: My Lords, if the noble Lord would like to table a Question on that aspect, I shall be glad to answer it. I do not think that I can add much more to what I have already said.
Lord Jenkins of Putney: My Lords, in my first supplementary question, I believe that I referred to Iran when I meant so say Iraq; though the difference between the two countries is not all that great in this respect. Is the noble Lord aware of the old adage that example is better than precept? The Government's efforts might be more successful if we were to show ourselves that we are not very enthusiastic about nuclear weapons and are ready to begin the process of divesting ourselves of them. Would it not be a good idea not to proceed with Trident?
Lord Reay: No, my Lords, we do not believe that the situations are comparable. The position of the United Kingdom with regard to disarmament remains that if the United States and Soviet arsenals were substantially reduced, we would consider how to contribute to the nuclear arms control process.

Business
3.34 p.m.
Lord Denham: My Lords, subject to the progress of business, in particular the Third Reading of the Education (Student Loans) Bill, the Committee stage of the Law Reform (Miscellaneous Provisions) (Scotland) Bill may be adjourned at about 7 p.m. for about one hour. My noble friends Lord Hesketh, Lord Henley and Lord Strathmore and Kinghorne will move a number of Motions for approval of statutory instruments in the break.

House of Lords Offices: Select Committee Report
3.35 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move that the 2nd Report from the Select Committee on House of Lords Offices be agreed to.
Perhaps I may say a brief word in explanation of the first item on the report. It arises from the Employment Bill now before another place in which the provisions of Clauses 1 to 3 are specifically applied to the House of Commons but not to this House. These clauses make it unlawful to refuse a person employment on grounds of membership or non-membership of a trade union. The Offices Committee recommends that these clauses should also be applied to this House by amendment when the Bill reaches us.
There is other employment legislation in existence which has hitherto been applied to this House by analogy rather than in legislation. The Committee further recommend that we should ask the Department of Employment to find a suitable opportunity to apply these provisions also directly to this House to bring it in line with another place. I beg to move.
Moved, That the 2nd report from the Select Committee be agreed to (HL Paper 43).— (The Chairman of Committees.)
Following is the report referred to:
1. Application of Employment Legislation to the House of Lords
The Committee accepted recommendations from the Staff of the House Sub-Committee that amendments should be tabled to the Employment Bill now before the House of Commons so as to apply it directly to the House of Lords in the same way as it applies to the House of Commons; and that the Department of Employment should be asked to use the next convenient opportunity to include in an Employment Bill provisions applying to the House of Lords those aspects of employment legislation which at present apply directly to the House of Commons but not to the House of Lords.
2. Reports from the Finance Sub-Committee
The Committee were informed that the Finance Sub-Committee had agreed that in future their reports would be circulated in advance to the Offices Committee.
3. Staff of the House
A report from the Staff of the House Sub-Committee was made. The Committee agreed:—

(a) that the temporary additional post of Assistant Editor in Hansard should be made permanent from 24th March 1990; and

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(b) that the temporary part-time Architectural Archivist post in the Record Office should be extended for a further period of five years to March 1995.

The Committee also agreed to:

(c) the creation of a post of House of Lords Computer Executive at Grade 7 level, initially for a period of 5 years;

(d) the replacement of a Clerical Officer post in the Library by an Assistant Librarian post;

(e) the upgrading of the post of Chef from 94 per cent. of Catering Manager 2 to full Catering Manager 2 with effect from 1st March 1990;

(f) the regrading, with effect from 15th January 1990, of the Second Chef post in the Barry Room to 90 per cent. of Catering Manager 4; the creation of a post in the main kitchen of Second Chef at 90 per cent. of Catering Manager 4; the deletion of a post in the main kitchen at Industrial Band 16 and the deletion of a post in the main kitchen at Industrial Band 10, and

(g) the payment of a higher rate skill supplement to five Hansard Typists and five Hansard Screen Correctors in place of the existing lower rate skill supplement with effect from 1st January 1990.

In addition, the Committee gave discretion to the Clerk of the Parliaments to appoint an additional Clerk, should the need arise.
4. Parliament Office
The Committee were informed of the promotion of Mr. E. J. J. Wells to Senior Clerk.
5. Insurance for Lords
The Committee approved an increase in personal accident cover for Lords whilst engaged on Parliamentary duty.
6. Revised Scales of Pay and Allowances
The Committee approved increases in the rates of pay of the Chairman and Principal Deputy Chairman of Committees and confirmed the application of the following Civil Service memoranda to staff of the House of Lords:—

(a) DEO letter dated 2nd February 1990. (Remuneration of college based sandwich course students.)

(b) DEO letter dated 14th February 1990. (Special pay points for Grades 4 to 7.)

(c) DEO letter dated 1st March 1990. (Management delegation.).

7. Hansard Reporting Staff
The Committee authorised payment of revised late night allowances to permanent staff and revised attendance fees to temporary reporters.
8. Superannuation
The Committee were notified of the following awards made under the House of Lords Staff Pension Scheme:—

(a) Revised pension and lump sum to Mr. G. A. Preston, Assistant Counsel, who retired on 1st October 1989.

(b) Pension and lump sum to Mrs. E. Blackburn, Cleaner, who retired on 21st October 1989.

(c) Pension and lump sum to Mr. L. A. Ketcher, MBE, Senior Executive Officer, who retired on 1st January 1990.

(d) Pension and lump sum to Mrs. C. O'Brien, Head Linen Keeper, who retired on 16th January 1990.

(e) Transfer value payment to the London Residuary Body Superannuation Fund in respect of Mr. D. R. Pester, Assistant Librarian, who resigned on 16th June 1989.

(f) Transfer value payment to the Devonport Royal Dockyard Pension Scheme in respect of Mrs. L. E. Rivers, who resigned on 31st July 1986.

Lord Boyd-Carpenter: My Lords, although it is not mentioned in paragraph 5 of the report, will my noble friend confirm that the Offices Committee requested that investigation be made into extending the cover for Members of your Lordships' House on parliamentary duties to cover their journeys to and

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from this House? In view of the number of late sittings which your Lordships are suffering, that is perhaps becoming increasingly important.
Lord Aberdare: Yes, my Lords, I can confirm that that is so. It will be considered at the next meeting of the Finance Sub-Committee.
On Question, Motion agreed to.

Town and Country Planning Bill [H.L.]
3.36 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee (on recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on recommitment).— (The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee (on recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clauses 1 to 66 agreed to.
Clause 67 [Notification of applications for planning permission for mineral working]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
"Page 44, line 13, leave out ("so long as") and insert ("if).
The noble and learned Lord said: This is a minor drafting amendment, bringing the wording of Clause 67 (8) into line with that of Clause 65 (5). Perhaps I should add for the convenience of the Committee that these amendments are in relation to the Bills that are now being considered, and immediately after this, and which have arisen after the consideration of the Bills by the Joint Committee. The Chairman of the Joint Committee has seen these amendments and expresses his approval of them. I beg to move.
On Question, amendment agreed to.
Clause 67, as amended, agreed to.
Clauses 68 to 148 agreed to.
Clause 149 [Scope of Chapter 11]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 98, line 37, leave out ("in a case not falling within paragraph (a)")
The noble and learned Lord said: With this amendment, I shall speak to Amendments Nos, 3, 4 and 5. This group of amendments gives effect in the Bill to amendments made to Sections 192 (4) (b) and 207 of the Town and Country Planning Act 1971 by the Town and Country Planning (Blight Provisions) Order 1990. The amendments made by the order take account of changes to the rating system made by the Local Government Finance Act 1988 and will come into force on 1st April 1990. I beg to move.
On Question, amendment agreed to.
Clause 149, as amended, agreed to.
Clauses 150 to 170 agreed to.
Clause 171 [General interpretation of Chapter 11]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 3 to 5:
Page 115, leave out lines 14 to 19 and insert:
(" "annual value" means—
(a) in the case of a hereditament which is shown in a local non-domestic rating list and none of which consists of domestic property or property exempt from local non-domestic rating, the value shown in that list as the rateable value of that hereditament on the date of service;
(b) in the case of a hereditament which is shown in a local non-domestic rating list and which includes domestic property or property exempt from local non-domestic rating, the sum of—
(i) the value shown in that list as the rateable value of that hereditament on the date of service; and
(ii) the value attributable to the non-rateable part of that hereditament in accordance with subsections (2) and (3);
(c) in the case of any other hereditament, the value attributable to that hereditament in accordance with subsections (2) and (3); ").
Page 115, leave out lines 22 to 24 and insert—
(" "hereditament" means a relevant hereditament within the meaning of section 64 (4) (a) to (c) of the Local Government Finance Act 1988; ")
Page 115, leave out from beginning of line 32 to end of line 11 on page 116 and insert:
(" (2) The value attributable to a hereditament, or the non-rateable part of it, in respect of domestic property shall be the value certified by the relevant valuation officer as being 5 per cent. of the compensation which would be payable in respect of the value of that property if it were purchased compulsorily under statute with vacant possession and the compensation payable were calculated in accordance with Part I of the Land Compensation Act 1961 by reference to the relevant date.
(3) The value attributable to a hereditament, or the non-rateable part of it, in respect of property exempt from local non-domestic rating shall be the value certified by the relevant valuation officer as being the value which would have been shown as the rateable value of that property on the date of service if it were a relevant non-domestic hereditament consisting entirely of non-domestic property, none of which was exempt from local non-domestic rating.
(4) Land which (apart from this subsection) would comprise separate hereditaments solely by reason of being divided by a boundary between rating areas shall be treated for the purposes of the definition of "hereditament" in subsection (1) as if it were not so divided.
(5) In this Section—
"date of service" has the same meaning as in section 168;
"relevant valuation officer" means the valuation officer who would have determined the rateable value in respect of the hereditament for the purposes of Part III of the Local Government Finance Act 1988 if the hereditament had fulfilled the conditions set out in section 42 (1) (b) to (d) of that Act;
"relevant date" is the date by reference to which that determination would have been made;
and expressions used in the definition of "annual value" in subsection (1) or in subsection (2) or (3) which are also used in Part III of that Act have the same meaning as in that Part.").
The noble and learned Lord said: I have already spoken to these amendments. With the Committee's permission, I move them en bloc. I beg to move.
On Question, amendments agreed to.
Clause 171, as amended, agreed to.
Clauses 172 to 335 agreed to.
Clause 336 [Interpretation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 6:
Page 224, leave out lines 38 to 45.
The noble and learned Lord said: This amendment is designed to omit two definitions which have become unnecessary because the expressions defined do not appear elsewhere in the Bill. I beg to move.
On Question, amendment agreed to.
Clause 336, as amended, agreed to.
Remaining Clause agreed to.
Schedule 1 agreed to.
Schedule 2 [Development plans: transitional provisions]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 7 and 8:
Page 248, line 21, leave out (" ("the GLDP") ").
Page 248, line 22, leave out ("the GLDP") and insert ("that Plan").
The noble and learned Lord said: These two amendments to Schedule 2 are minor drafting amendments removing a definition which is unnecessary. I beg to move them en bloc.
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Schedules 3 to 11 agreed to.
Schedule 12 [Unexpended balance of established development value]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 9:
Page 287, line 1, after ("133") insert ("of this Act").
The noble and learned Lord said: This is another minor drafting amendment which makes clear that the Section 133 referred to in paragraph 10 (2) (b) is a section of the Bill and not of the 1954 Act. I beg to move.
On Question, amendment agreed to.
Schedule 12, as amended, agreed to.
Remaining schedules agreed to.
House resumed: Bill reported with amendments.

Planning (Listed Buildings and Conservation Areas) Bill [H.L.]
3.42 p.m.
The Lord Chancellor: My Lords, I beg to move that the House do now resolve itself into Committee (on recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on recommitment).— (The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee (on recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clauses 1 to 13 agreed to.
Clause 14 [Duty of London borough councils to notify Commission]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 1:
Page 9, line 27, leave out ("direct the local planning authority to grant") and insert ("give the local planning authority directions as to the granting of).
The noble and learned Lord said: The purpose of this amendment is to widen the wording of Clause 14 (2) (a) slightly so that it corresponds more closely with paragraph 6 (2) of Schedule 11 to the Town and Country Planning Act 1971 from which it is derived. It enables the commission not only to direct that listed building consent be granted but also to direct that it be subject to specified conditions. I beg to move.
On Question, amendment agreed to.
Clause 14, as amended, agreed to.
Remaining clauses agreed to.
Schedules 1 to 3 agreed to.
Schedule 4 [Further provisions as to exercise of functions by different authorities]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 2 and 3:
Page 62, line 32, after ("to") insert ("sections 4, 6, 7 and 8 of the principal Act (which make provision as to the exercise of planning functions in National Parks, enterprise zones, urban development areas and housing action areas) and to").
Page 62, line 43, after (" (1) ") insert ("Subject to sections 4 (3) and (4), 6, 7 and 8 of the principal Act").
The noble and learned Lord said: These are drafting amendments designed to make clear that paragraphs 2 and 4 (1) of this schedule are subject to certain provisions of the Town and Country Planning Bill. I beg to move the amendments en bloc.
On Question, amendments agreed to.
Schedule 4, as amended, agreed to.
House resumed: Bill reported with amendments.

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

Planning (Consequential Provisions) Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move that the House do now resolve itself into Committee (on recommitment) on this Bill.

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Moved, That the House do now resolve itself into Committee (on recommitment).— (The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee (on recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clauses 1 to 7 agreed to.
Schedule 1 agreed to.
Schedule 2 [Consequential amendments]:
The Lord Chancellor The Lord Chancellor moved the amendment:
Page 17, line 20, at end insert—
("The Town and Country Planning (Amendment) Act 1972 (c.42).
In section lOC (10) of the Town and Country Planning (Amendment) Act 1972, for the words "Section 2 of the Local Authorities (Historic Buildings) Act 1962" there shall be substituted the words "Section 58 of the Planning (Listed Buildings and Conservation Areas) (Act 1990".").
The noble and learned Lord said: This is a minor drafting amendment the effect of which is to convert a reference in Section lOC (10) of the Town and Country Planning (Amendment) Act 1972 to Section 2 of the 1962 Act into a reference to Clause 58 of the Listed Buildings Bill. The 1962 Act is repealed by this Bill and reproduced in the Listed Buildings Bill. Clause 58 of that Bill is the corresponding provision of Section 2 of the 1962 Act. I beg to move.
Lord Renton: As this is the last of the amendments that we are considering to these four consolidation Bills on planning, we should not let the occasion pass without acknowledging the formidable task that the draftsmen and the officials had. As members of the Joint Consolidation Committee found, they had a most punishing exercise to carry out. Though all consideration is necessary and welcome— and it was particularly so in these instances— it was made the more difficult because of our rather strange methods of legislation. Those concerned deserve great credit for what they have done on this occasion.
Lord Ponsonby of Shulbrede: In the absence of my noble friend Lord Mishcon, perhaps I may echo the words of the noble Lord, Lord Renton. We are very grateful to the committee which considers consolidation measures.
The Lord Chancellor: I am extremely glad to join both noble Lords who have spoken on this matter. It is a largely unsung but an extremely important responsibility to keep the statute book in order by consolidations. These four consolidations cover an extremely complicated area of the law. They have been carried out extremely well. I am very grateful to the Joint Committee which examined these matters. It found that, generally speaking, the consolidations are entirely satisfactory. It produced a certain number of amendments but they were small in comparison with the volume of work involved. I express gratitude to the Law Commission and its draftsmen who undertook the task and also to the
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Joint Committee for the work which it put in in order to make sure that the consolidation was appropriate.
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Remaining schedules agreed to.
House resumed: Bill reported with an amendment.

Pensions (Miscellaneous Provisions) Bill
3.50 p.m.
Bill read a third time, and passed, and returned to the Commons with amendments.

Education (Student Loans) Bill
3.51 p.m.
Read a third time.
Clause 1 [Loans for students]:
Lord Peston Lord Peston moved Amendment No. 1:
Page 1, line 6, after ("students"), insert ("over the age of 18 years").
The noble Lord said: My Lords, I move Amendment No. 1 which stands alone. However, in order to assure noble Lords that I am anxious to proceed as rapidly as possible, perhaps I may say that much which concerns me under Amendment No. 1 also arises under Amendment No. 11. I shall therefore not delay noble Lords very greatly when we reach Amendment No. 11.
On Amendment No. 1, your Lordships will recall that I remonstrated very strongly with the Government when they introduced an amendment connected with the Consumer Credit Act 1974. I argued that it was a very difficult matter. I thought that it was fundamental and I asked for more time. It was denied to me and to other colleagues who were interested in the matter. Three days have now passed and I have had time to try to understand the subject further. I shall raise certain matters which I believe will make very clear that as a result of three days' work I understand only how little I understand. I therefore remain convinced that I was right to ask the Government for more time to explore these matters further.
This is a probing amendment and it is not my intention to divide the House on it. The aim is to make clear some of the difficulties, in particular difficulties for someone like myself who is interested in education matters and student loans but who is a very long way from having expertise in matters to do with consumer credit.
First, let me say that my reading of what little I have been able to understand absolutely convinces me that we are not dealing with a minor and technical matter. I believe that the moment we open up the question of making loans to young people under 18 we are on a slippery slope. I am not sure which is the worst of the cliché s but that one will do for the

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moment. Let me therefore ask these questions. I shall put the points forward and hope for some response.
The noble Earl, Lord Caithness, instituted an amendment essentially to do with the provision of information to minors and its connection with consumer credit. That is what I understood the amendment to be about. I assumed— perhaps not immediately; it took me at least 48 hours to consider this point— that schools or some young people have already been sent documentation to do with the forthcoming loans scheme. Have they been sent such documentation to do with the forthcoming loans scheme? If any of those young people are under 18, have those who have been sending such documentation to sixth formers been acting illegally under the Consumer Credit Act 1974? I do not have to remind noble Lords that the Bill that we are discussing at the moment is not an Act. So the question that comes immediately to mind is: what has been going on? If they have not been sent any documentation whatever on the matter, there is a paradox— are they ready to respond to the scheme? Either way, that is the problem that emerges.
However, I have also been told that it is not a matter of documentation but of whether it is possible for the Student Loans Company to make loans to under 18 year-olds. I am told that the point is that it is not legally impossible for them to do something: the real problem is whether the debtor is under an obligation to discharge the indebtedness. I am also told that where that arises in connection with loans to minors from, say, a bank— not that I assume that that happens often— then a guarantee of indemnity is required from a third party. A commercial bank would certainly require that.
I have also been advised of many factors that I do not understand concerning what happens with guarantors of indemnity; what happens if they fail; the recovering of the loan and so on. I do not understand them. In a sense, that is all right because essentially all I need to ask is whether the issue has been thought through in connection with the Student Loans Company.
In England and Wales, a student of 17 years is fairly rare and he will be 18 before long. A student of 17 years and 10 months will become 18 two months later, say, by December in his first term. Does that affect his position vis-à -vis a loan? I do not put these questions forward on the assumption that there are no answers. I assume that there must be answers from experts. I put them forward in order to make it clear that it is not a trivial matter and that we ought not to have hurried our debate on it.
I have been informed— and I must emphasise that I do not normally proceed in this manner in your Lordships' debates; I endeavour to acquire some confidence in what I say but I do not have such confidence on this matter— that the situation in Scotland is also worse, and different. On Monday the noble Earl, Lord Caithness, remonstrated with the noble Lord, Lord Addington, on the question of Scotland. I was very disappointed that he did not remonstrate with me also. I deserve every bit of
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remonstration. Until I was told about these amendments, I had not thought of the problem of 17 year-olds. When I said that I was unprepared and ignorant, I really meant that. It had not occurred to me. I agree that perhaps I should have thought it through; but I had not. The fact that I had not thought it through reinforces my view that I should have been given more time to think it through rather than be told that everything is all right.
I gather that in Scotland more young people go to university at 17 than in England. The situation is therefore less atypical. I am also told that the legal position in Scotland is different. There are questions of having parental permission to take out a loan which have to be faced up to. Therefore in so far as the student loans scheme applies to Scotland, among the various pieces of paper to be discussed must be a paper referring to parental permission, and such matters. The exact advice that I have been given is that without parental consent in Scotland a loan to a minor is completely void and can be cancelled at any time. That is also rather worrying.
Let me repeat that I do not say that there cannot be answers. I do not say that the Government will not in due course be in a position to answer these matters. But I have to ask noble Lords generally whether we can have confidence that the Government have properly thought through the implications of the Bill for minors, having brought this forward at a late stage. Have they really thought through the problem as it would affect minors in Scotland?
I do not raise these as wrecking matters. I accept that if the Government wish to have a student loans Bill, they must have one. That is up to the Government. However, I believe that on such a matter the Government ought to have given us more time and ought at this moment to be able to offer rather more than definitive statements as answers to my questions. I beg to move.
Lord Boyd-Carpenter: My Lords, I have a great deal of sympathy with the noble Lord, Lord Peston, being puzzled by certain aspects of this matter. As I am sure will become very apparent to your Lordships, I fully share that puzzlement. It is difficult for your Lordships' House to discharge its duties as a revising Chamber when it has to deal with matters of this complexity at such extremely short notice.
If the noble Lord, Lord Peston— whose energy and enthusiasm are so manifest— is unable to sort out these matters between the time of the announcement and today, it is not unreasonable to infer that there must be a good many others of us who are in a similar position. I hope that my noble friend the Minister will realise that from the point of view of the treatment of this House and the treatment by the House of legislation this is not a satisfactory situation. It derives to some extent from the Government's extraordinary haste in dealing with the Bill. I do not blame my noble friend for that— I know that the decision does not lie with him— but had the Government allowed a little more time to review the matter they would have emerged in the end with a better Bill.

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I have only one point on the merits and I should be grateful if my noble friend would deal with it. If I understand the Bill aright— and that is a hypothetical question— all the provisions of the Consumer Credit Act 1974 remain in respect of those under 18— minors— unless they happen to be students. If they happen to be students of a certain category and kind as defined in the Bill they are taken out of the protection of the Consumer Credit Act. If that interpretation is right— and I should value my noble friend's answer— I should be grateful for an answer to the consequential question: what is the justification for that? If it is right to protect minors from the risk of becoming indebted when they are at an age where they may not fully understand the effect of the obligations they are taking on— and it has apparently been the position which our law has adopted since 1974— is it sensible or socially right to take out of that protection the limited number of minors who happen to be students? The question requires an answer.
4 p.m.
Lord Addington: My Lords, I feel obliged to speak to the amendment, not only because my name is to it but because in the small hours of Tuesday morning while we were still in Monday the noble Earl asked me why I had not noted the number of 17 year-old students in Scotland since I had left university there only recently.
I point out to the Minister that I had assumed that the Government would manage to correct such a fundamental error as a group of people being affected by the Bill illegally. I too have a limited knowledge of consumer credit. I made the assumption that the Government would at least base their provisions on the Bill working in conformity with the rest of the law of the country.
As regards those under the age of 18 becoming indebted, I am opposed to that. I have seen many quite appalling cases of 18 and 19 year-olds not being able to handle their finances satisfactorily in their first year at university. All those protections provided by law are probably not only necessary but should be strengthened in some way. Thus I put to your Lordships' House that the issue of minors should have been addressed long before this. We definitely need more information on it.
Baroness Young: My Lords, we shall all listen with great interest to the answers that my noble friend gives to the noble Lord, Lord Peston. He has raised at least four questions about the Consumer Credit Act. I rise to speak now because some parts of the answers were clearly given by my noble friend last Monday night. Perhaps I may say to my noble friend Lord Boyd-Carpenter that it is a pity he was not here to listen to the quite lengthy discussion which we had on that occasion.
Lord Boyd-Carpenter: My Lords, will my noble friend allow me to intervene? Does she agree that it is also a pity that important matters of this kind on an important Bill are, under the arrangements made, taken at an hour when it is sometimes difficult for noble Lords to be present?
Baroness Young: My Lords, of course I agree with the noble Lord, Lord Boyd-Carpenter, that it is unpleasant to have to sit on this Bill or indeed on any other Bills in the early hours of the morning. It is not the first time that this has happened under any government. I am quite certain, that, as on many other matters, it will not be the last time. If I may say so the noble Lord is being somewhat disingenuous in using that argument on this occasion.
Your Lordships' House is a revising Chamber. It is perfectly within the rules that the matter should come to your Lordships' House although I said on Monday night that I regretted that it should come up so late. I have not the slightest doubt that many people who were involved were somewhat irritated that it should come up at this late stage. However, come up it has.
My noble friend will no doubt have answers to all the questions raised but perhaps I may make two points which arose on Monday night. The part of the Consumer Credit Act which is affected by this legislation is one section of the Act whereby finance houses or banks are prohibited from seeking custom from minors. That is on the grounds that in seeking to lend money they would be making money themselves. The whole point about the Student Loans Company is that it will not make a profit. Therefore it stands in a different relationship to young people from that which would apply to a bank. That is the answer to the point on why a bank giving a loan needs a guarantor whereas the Student Loans Company is different. I shall of course listen to what my noble friend says.
The reason for this having to be in the Bill, as I understand it, is that it might just be said that although the Student Loans Company does not make a profit, at some stage it might receive more back in cash terms than it lent. Therefore there could be an element of doubt. It is to remove that doubt that this provision comes before your Lordships' House. It is an important legal point and it is quite right that it arose.
However, as was said on Monday night, we do not need to feel that this completely changes matters or introduces anything other than an important technical point. It does not in any way alter the principle of the Bill.
Lord Grimond: My Lords, on the handling of the Bill I do not think we have received an answer to the point originally raised by the noble Lord, Lord Beloff. It was that whatever notice was given to the Front Benches, no notice could have been given to people on the Back-Benches or the Cross-Benches. In a matter of this kind that is important, particularly for the Cross-Benches. I also believe that it is rather unfair to attack the noble Lord, Lord Boyd-Carpenter. We are all unpaid slaves in this place. It seems to me that on a matter of this importance we have some right to suppose that it will arise at a time when trains still run and we should not normally be in bed.
I wish to raise two points which I have no doubt can easily be answered. As I understand it, so long as there are students, minors of whatever age— and we know that one girl went to university aged

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14— for this purpose they will be entitled to enter into serious obligations. As I have said before, I do not think the fact that no interest is charged by any means; suggests that it is a minor matter. It is a serious matter which may hang over students until they are 50.
Am I right in saying that without any advice or understanding of what is happening anyone of any age, so long as they are students, can undertake the obligations attaching to the loan? Further, quite apart from consumer protection, I have no doubt that I am quite wrong but I seem to remember that at least in Scotland minors cannot be held to contracts into which they have entered, nor indeed to contracts entered into on their behalf. I am willing to be told that I am wrong about that but I remember as a trustee selling a house which belonged to a minor. I was told that up to the age of 21 he— or in that case she— had a right to repurchase it. No doubt I have misunderstood this, but quite apart from consumer protection, which I do not understand, we should be quite clear what are the covenanted rights of minors in both England and Scotland. We should know what precautions we are taking to see that minors understand the obligations which they take on under this Bill if they accept loans.
Lord Beloff: My Lords, following on from something that the noble Baroness, Lady Young, said, I think there is a further way in which my noble friend the Minister could assist the House. The noble Baroness said that doubt had arisen because the money that is repaid might be a larger sum, in view of inflation, than the original sum borrowed and thus people could consider that the Student Loans Company was making a profit. However, I do not believe that that is a factor that causes anxiety. I think it is universally accepted that the Student Loans. Company, as a wholly government-owned company, is not in the business of making a profit.
However, I remind the Minister that in Committee in another place the Under-Secretary refused to rule out the possibility of the Student Loans Company being privatised. Indeed at one stage he said that the company may have considerable assets which would facilitate privatisation. We know that as regards any future privatisation Bill, the possibility of the organisation concerned making a profit so that it can be sold into the private sector is an essential factor. Therefore I hope the Minister will state categorically that as long as the loans scheme lasts the Student Loans Company will remain wholly in the public sector. If he made such a statement, many of the worries about minors and other matters would be dissipated.
Baroness Elles: My Lords, I wish to put one point to my noble friend before he rises to reply to all the questions that he has been asked. It seems to me that very few people have read Section 50 of the Consumer Credit Act. That section makes it perfectly clear that the Student Loans Company would commit an offence if it sent to a minor,
"any document inviting him to—
(a) borrow money, or
(b) obtain goods on credit or hire".
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Four categories of borrowing or loans are referred to in total in that section. But surely the purpose of the provision is to protect the Student Loans Company from committing an offence when it circulates documents to minors inviting them to take up a loan which is in effect a form of credit. Therefore it is not the minors whom we seek to protect but the Student Loans Company, or whoever acts on behalf of that company in sending minors documents concerning student loans. I should make it clear that we are not just talking about 17 year-old students but also about the schools that will be sent literature informing them of the opportunity for their pupils to obtain student loans. It is that aspect of the matter that needs to be considered.
The matter of financial gain is the other side of the coin. It has been said over and over again that the Student Loans Company does not intend to make a profit. However, if someone brought a case against the company as regards having distributed documents and it was not protected, it could be shown that it had made a profit on its cash flow at a particular moment in time. I understand that no case has been brought before the courts under the terms of Section 50 of the Consumer Credit Act. Presumably the courts would decide whether financial gain had accrued to the Student Loans Company in this instance. My noble friend Lord Butterworth referred to that matter the other night.
The Earl of Caithness: My Lords, I was interested to hear the comments of noble Lords. Perhaps it would be convenient for the House if I separated Amendment No. 11 from this amendment because different arguments are involved. However, I shall try to answer the questions that your Lordships have posed.
This amendment would prevent the Secretary of State from making arrangements to provide students under the age of 19 with loans. It would thus deny loans to such students. It is particularly important that your Lordships are aware that we are talking about denying the opportunity of loans to those under 19. The amendment would therefore quite simply penalise those young people who are bright enough to be ready for higher education while they are still under the age of 19. We have often during our discussions on the Bill referred to the benefits that the loan facility affords to students such as a nil real interest rate on the outstanding loan.
Lord Peston: My Lords, I must interrupt the noble Earl as I wish to follow his argument all the way. I realise that it is my amendment that is being discussed, but I certainly did not think that the words "over the age of 18" had anything to do with the age of 19. I thought those words simply meant someone who was over the age of 18, for example 18 years plus one minute. I am rather lost here. If one says "over the age of 18", does that mean 19 years-old in law?
The Earl of Caithness: My Lords, I have read out the information that I have been given as regards the effect of the amendment of the noble Lord.
4.15 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I do not wish to interrupt my noble friend, but surely the words "over the age of 18" mean that one is over the age of 18 on one's 18th birthday plus one. Indeed, one could say that one is over the age of 18 at one's birth hour plus one. One does not have to wait until one's 19th birthday to be over the age of 18. One is over the age of 18 after one's 18th birthday. I should be astonished to hear a lawyer seriously argue to the contrary.
The Earl of Caithness: My Lords, I shall have to take further advice on that point. When it comes to debating legal matters with my noble and learned friend one has to be very sure of one's legal ground. However, I can say that that is the advice that I have been given.
The benefits of the loan facility have been referred to on a number of occasions. The loan facility is a benefit to students whether they are over or under the age of 18. As I said, the loan facility offers students a nil real interest rate on the outstanding loan and the generous provision we have built in for deferment of repayments where a borrower's income is no more than moderate. Further, there is provision for cancellation of the entire loan in certain circumstances and at a certain age. I therefore wonder whether the students who would have stood to benefit had the loans been available as we had hoped will welcome the fact that such an amendment is before your Lordships.
I now turn specifically to the points that have been raised. The noble Lord, Lord Peston, asked whether schools had been sent information on loans. He said in his most disarming way that if schools had that information they must be breaking the law but that if they did not have it they could not be ready to carry out the loans scheme. However, the situation is not quite like that, as I am sure the noble Lord is aware. That is an important point for my noble friend Lady Elles too.
It is true that copies of the leaflet have been sent to schools for the information of sixth formers and their teachers. However, that does not offend any of the provisions of the Consumer Credit Act. Section 50 of the Consumer Credit Act makes it an offence to send an invitation to borrowers with a view to financial gain. That is an entirely separate matter. As I said in the early hours of Tuesday morning, the key to that part of the Consumer Credit Act is whether a company has a view to financial gain. The leaflet on the student loans scheme was sent by the department with no view to financial gain. It was sent only to convey information. Therefore we are ready to implement the scheme, but we are not breaking the law.
As regards the requirement of parental consent for loans to minors in Scotland, in view of the purpose for which a student loan would be taken out there is every prospect that the Scottish courts would hold the debt to be enforceable as loans are taken out for the benefit of students. That point was raised by the noble Lord, Lord Peston. A parental acknowledgment or consent to the existence of the loan would enhance the prospects of enforcement,
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but my advice is that neither acknowledgment nor consent would be essential. Such parental acknowledgment need not constitute a guarantee. It simply acknowledges that the minor concerned has entered into a contract.
The noble Lord, Lord Grimond, said that he was not aware of the amendment. I must remind him that my noble friend the Chief Whip brought the amendment to the attention of the noble Lord the Chief Whip of the Liberal Democrat Party before the usual Thursday meeting so that he could bring it to the attention of those noble Lords whom he knew to be interested in the Bill.
The noble Lord, Lord Grimond, and my noble friend Lord Boyd-Carpenter raised the important point of whether the whole of the Consumer Credit Act now did not apply to students. The answer is no. Students will be subject to the provisions of the Consumer Credit Act except in so far as concerns Section 50. I spent a great deal of time at an earlier stage spelling out exactly what the difficulties were with Section 50. It is a difficult, complex and rather grey area of the law which has yet to be tested. The amendment which we tabled and which was agreed by your Lordships was for clarification, as my noble friend Lady Young reminded the House. It could be that the courts might have interpreted the matter differently from the way in which my noble friend Lord Beloff interprets it. It was for that very reason that we thought it necessary to clarify the situation.
I repeat that Section 50 of the Consumer Credit Act relates to the prohibition on sending documents with a view to financial gain. That was the point that we needed to clarify. The technical amendment was necessary to make sure that the Student Loans Company was not in the business of making a financial gain.
Baroness Phillips: My Lords, before the noble Earl leaves that point can he explain how the company can be run and pay salaries if it does not make a financial gain?
The Earl of Caithness: My Lords, the salaries are paid by the taxpayer, as I hope the noble Baroness will have understood from what I have said on numerous occasions both in Committee and at Report stage.
I hope that that reply satisfies my noble friend Lord Beloff. Whether the company is in public or private hands it is in the business of giving loans to students and not of making a financial gain. Therefore I believe that his concern is unfounded.
Baroness Seear: My Lords, I am sorry to interrupt because I know that the noble Earl has a great deal to get through. However, we are genuinely mystified by the question of privatisation. If the company were to be privatised it would be free to do what it liked. Can we be reassured that it will not be privatised? Once it is privatised the Government have no more control over it. Can the noble Earl explain the position and give some guarantee that that will not happen?
The Earl of Caithness: My Lords, no gain will be made out of the making of loans whether the company is owned by the Government or is in private ownership. Under whatever ownership, minors will continue to enjoy the protection of Section 50 of the Consumer Credit Act. The government amendment on that section makes it clear that no gain or profit will be made out of the loan scheme. That is the key point which I hope will resolve the concerns of the noble Baroness, whether the company is in public or private ownership.
I turn back to the question that was raised by my noble and learned friend Lord Hailsham who picked up the point of the noble Lord, Lord Peston. As I understand it now, a person is over the age of 18— which is what the amendment states— when he is 19 and over. A person is aged 18 during the entire 12-month period between his eighteenth birthday and his nineteenth birthday. That is the advice that I have received. Since I am up against my noble and learned friend I shall not quibble about it. I have tried to deal not so much with the wording and the technical nature of the amendment, although that has been an interesting debate in itself, but with the principle of what we are trying to achieve.
Lord Hailsham of Saint Marylebone: My Lords, perhaps I may ask my noble friend one question. If I am wrong— and I am just as fallible as anybody else -does he agree that it is purely a drafting point and that the wording of the amendment can be changed so as to give effect to what most of us believe is the existing situation, namely that you become 18 on your eighteenth birthday and after midnight you are more than 18?
Lord Hughes: My Lords, in view of the fact that the noble Earl is risking disagreeing with the noble and learned Lord, Lord Hailsham, perhaps I may ask whether the advice he has received is from a legal quarter, a civil servant or a draftsman.
The Earl of Caithness: My Lords, the noble Lord with his great experience, knows better than I where such information comes from. I am told that it is of the highest repute, as one would expect in your Lordships' House.
The effect of the amendment, whether the definition is 17 years, 11 months and 28 days or 18 years and one day, is to treat entirely differently two students who are on the same course at the same institution and who will enjoy the same lifetime advantages as a result of their higher education merely because one is over a certain age and the other is not. As I believe all noble Lords will agree, such discrimination is neither sensible nor fair. It would be a positive deterrent to young people taking higher education. That is at least one area of common ground. We all want to encourage young people to enter higher education. I believe that to discriminate against one group would be wrong.
Lord Jay: My Lords, can the noble Earl now answer the question that I asked earlier? Could this curious company be privatised without primary legislation or would it require primary legislation?
The Earl of Caithness: My Lords, I answered that question too fully on Report. I am sure that the noble Lord has read the answer in the Official Report with his usual diligence in view of his concern in this matter. As I understand it, it would not require primary legislation.
Viscount Eccles: My Lords, is it really worth worrying about the privatisation point? Here is a company which is going to make loans without inquiring into the financial status of the borrowers. It is bound to become insolvent.
Lord Peston: My Lords, it is extremely difficult to speak after that particular intervention. I thank the noble Earl for his reply and noble Lords for their contributions. I am not endeavouring to damage the Bill at this point. I am merely endeavouring to establish the point about scrutiny, revision and the need for time to think these matters through. What has emerged from our discussions is precisely that those are difficult areas.
I should like to say to the noble Baroness, Lady Elles, although she is not in her place, that I am not stupid. I am aware of what Section 50 of the Consumer Credit Act says. I am also perfectly well aware of the arguments which the noble Earl, Lord Caithness, has put forward. I find them extremely cogent. However, my problem is that once one opens up the area there is always the suspicion that one has to look at the matter in much greater detail and explore it further. I hope that the noble Earl does not feel that I have insulted him in any way by saying that I have not understood his arguments. My point is that when one enters a new field one's concern is where one will end up when it has been thought through. I have already given some examples of where we might end up.
I have made my point. I should have been happier if we could have dealt with the matter at our leisure at a more satisfactory time. There is nothing that we can do about that and I understand that there was nothing that the Government could have done. Having made those points, and perhaps adding "I told you so" in anticipation of the trouble that will emerge with the Student Loans Company, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blackstone Baroness Blackstone moved Amendment No. 2:
Page 1, line 6, after ("loans") insert ("amounting to no more than 50 per cent. of public support).
The noble Baroness said: My Lords, the amendment is grouped with Amendment No. 9 but I wish to speak to Amendment No. 2 first and wait to hear what the Government have to say about their own amendment, Amendment No. 9, before I comment on it.
This is the third time that I have moved the amendment. The first time was at the Committee stage, when the noble Baroness, Lady Blatch, said that she would take it back and draw the matter to the attention of her right honourable friend the Secretary of State. I moved it again on Report, when the noble Baroness said that she would come forward with a new amendment on Third Reading. She

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assured the House that she had expressed the Committee's views to the Secretary of State, but she felt that the amendment was inappropriate because the Government intend that loans should be more widely available than mandatory grants.
I recognise that there might be a problem in this amendment, but it is the issue of principle of which I want to remind noble Lords. The principle of the Bill is that it should be based on the concept of top-up loans. It therefore seemed to many Members of the Committee and again to many Members of the House at Report stage that it was appropriate to write into the Bill the provision that the maximum amount of student maintenance to which loans should refer was 50 per cent. It has always been the Government's stated intention not to go above 50 per cent. In the light of that, there was agreement on all sides of the House that it would provide some reassurance to the universities, polytechnics, colleges and their students that that was the case and that the Government were sincere in their intentions if the principle were written into the Bill. There is an overwhelming case for doing that. No one in any of the debates that we have had on the Bill has favoured going above the principle of 50 per cent. and abandoning the concept of top-up. I beg to move.
4.30 p.m.
Baroness Blatch: My Lords, I have to say that I admire the persistence of the noble Baroness in this matter. I hope that my reply will help her.
In a previous debate I undertook to bring forward an amendment that would meet the concern expressed both here and in another place about the possible long-term development of the scheme. I accepted that the Bill should contain a provision that would not allow the loan to exceed the value of the grant, in line with the policy set out in the White Paper. I hope that noble Lords will agree that I have kept faith with the commitment which I gave on Report. That provision is one of the amendments that we are due to reach later, as it applies to Schedule 2.
It may be helpful if I say a little at this stage about the Government's amendment, Amendment No. 9. Amendments Nos. 2 and 9 are grouped together, but I wish to speak to Amendment No. 9. As I explained before, the amendment in the names of the noble Baroness, Lady Blackstone, and the noble Lord, Lord Addington, does not meet the problem. It denies the loan to students receiving no grant. As I pointed out on Report, 50 per cent. of nothing is nothing.
The government amendment avoids that difficulty. It allows the loan to be offered to students receiving no grant. That is important. As the House knows, we intend eligibility for the loan to be cast more widely than eligibility for the grant.
The government amendment also deals with a second difficulty that the amendment before us at the moment does not address; namely, that the public support available to a student is not a single fixed total. There are three main rates of grant and a series of additional allowances. The government amendment is specific about the sum that the loan should not exceed. It would not allow the loan to be
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greater than the grant to that student. Thus, for a student in London the loan could not be more than the London rate of grant; for one elsewhere, it could not be more than the elsewhere rate of grant; and so on. Without that degree of precision it would be possible for the loan to exceed the value of the grant available to some students.
The government amendment has a third feature. I mentioned it in our previous debate. It includes a provision that would allow a successor government to exceed the limit, subject to parliamentary approval.
As the House knows, we do not expect the point where grant and loan are equal to be reached for a good many years. However, when that point is reached the government of the day might wish, in the light of circumstances at the time, to provide more than half a student's resources in the form of loan. We proposed that, if the government at that time decide to take that route, the loan regulations should require affirmative resolution if they involve a loan facility that exceeds the value of the grant.
Your Lordships know that our present intention is that, once the loan and the grant have reached parity, they should be uprated in parallel; but we must allow a government in the next century to act differently without needing to secure fresh primary legislation. The affirmative resolution procedure that we propose will allow the government of the day the necessary flexibility. At the same time it provides, through the affirmative procedure, for the proper opportunity for parliamentary scrutiny. There is therefore an assurance that both Houses will determine what happens beyond that level of parity.
In describing the government amendment that arises a little later on— Amendment No. 9— I have also explained why the amendment before us now does not have the desired effect. I hope that, in the light of that explanation, the noble Baroness and the noble Lord will withdraw their amendment.
Lord Kilmarnock: My Lords, before the noble Baroness, Lady Blackstone, decides what to do with her amendment, perhaps I may ask the noble Baroness, Lady Blatch, to clarify an interesting phrase which fell from her lips. She mentioned the Government's intention that eligibility for the loan should be cast more widely than eligibility for the grant. Will she tell us what categories of student she has in mind? Is she thinking of mature students or part-time students? That would materially affect the feelings of many of us about the amendment.
Baroness Blatch: My Lords, we have had extremely detailed discussions on who shall be qualified. Off the top of my head, I believe that a mature student who might not necessarily qualify for grant would have access to the loan facility. I cannot be precise at this moment, but we have mentioned many people who may have access to the loan facility for higher education but would not necessarily qualify for a grant.
Baroness Blackstone: My Lords, before the noble Baroness sits down, perhaps I may put to her one

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further question about which I am slightly uncertain. Can we be reassured that paragraph (b) of Amendment No. 9 will not make it difficult for any future government to extend the eligibility for mandatory awards, should they choose to do so?
Baroness Blatch: My Lords, I am receiving from the Box the right kind of nods which I hope will reassure the noble Baroness on that point. The imporant point is that the Bill now makes it possible not to go beyond that level of parity and that, should there be any intention to do so, it would be important for both Houses to have a view about what should happen beyond that level.
In reply to the noble Lord, Lord Kilmarnock, I should say that grants are available for one course only. I am afraid that I cannot read the writing in the note that has been handed to me. I believe that my first answer is correct. Some people will have access to a loan but will not necessarily qualify for a grant. I hope that the noble Lord will read Hansard and single out some illustrations of that point.
Lord Kilmarnock: My Lords, before the noble Baroness sits down, perhaps she will tell me whether she could write to me and summarise the position.
Baroness Blatch: My Lords, I shall indeed do so.
Baroness Blackstone: My Lords, I am grateful to the noble Baroness for bringing forward the amendment. I am extremely glad to be able to say that I find large parts of it highly acceptable. However, I have one reservation which relates to the final paragraph of the amendment where the Government yet again appear to want to provide a let-out whereby either they or a future government could go above the 50 per cent. figure in the Bill.
I was a little surprised to hear the noble Baroness say that some future government might want to abandon the parity principle as, until now, we have always had the reassurance that the parity principle was paramount. However, if a future government were to want to do that and to increase loans as a proportion of the total amount of maintenance, I should have thought that the right solution was to introduce primary legislation rather than to rely yet again on regulations. With that exception about which I am not entirely happy, although I do not wish to press the point further this afternoon, and in view of the government amendment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Lord Addington Lord Addington moved Amendment No. 4:
Page 1, line 15, at end insert ("and such conditions may include a provision in respect of students attending courses of higher education of longer than three academic years' duration that they shall incur no liability in respect of any loan given for the fourth year").
The noble Lord said: My Lords, we now return yet again to the problem of the fourth-year student. All students on courses longer than three years are at some disadvantage compared with those on
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three-year courses. That is for the simple reason that if any debt is incurred in the form of the new student loan, ultimately it will have to be paid back. With interest even at only the rate of inflation, the student will still end up paying a considerable sum of interest on the loan. The basic problem can be described by saying that if one receives a loan for four years rather than three years, there is not only the extra debt but also the extra period for paying interest on the debt that one has already acquired. Even if that interest is only levied at the rate of inflation, it has been calculated that the difference could be as much as 60 per cent.
I hope that that description puts in context the need for special help to be given to fourth-year students. There has been some small consideration for those whose courses last for more than four years. Why is there not some help for those who are taking a four-year
As I have said, as it seems to me on umpteen occasions the Scots are the group who will be most hard hit. On other occasions I have remarked at considerable length that Scottish students who do Highers, even though they do not undertake sixth-form studies do not have the same choice available to them as in most of the English and Welsh courses, which assume that the student has already acquired a certain amount of technical knowledge from A-levels. Therefore any Scottish student who does a three-year course without having taken A-levels is at a certain disadvantage. He is at a definite disadvantage in the first year especially in the first couple of terms.
If one accepts that some provision is to be given to those undertaking longer courses, why not for those who have four-year courses to follow? They also have a problem. It is possibly not quite of the same magnitude but it is a problem of the same type and they should be given some help.
The Government have constantly said that they would review the situation. I hope that they will review the whole scheme the whole time. One should try to get the thing right so that any review would be a matter of examining the scheme and noting how well it is doing. One should not be glaring at it and hoping that the problem will not erupt in one's face.
Groups other than Scottish students are affected. I accept that the Scots can do a three-year course but the Scottish Honours course takes four years and I suggest that we want to obtain the highest standard of education that is available.
Throughout discussion of this Bill the Government have said that they hope to encourage an increase in student numbers. I suggest that greater numbers with lower quality degrees will be no answer. We have teachers who are studying for the B.Ed. qualification and we have a chronic shortage of teachers. I suggest that anything that might deter even a few of them is something to be avoided like the plague at this time.
We ask the Government Front Bench for a real concession and help to be given to those who undertake four-year courses. I hope that we can make some progress and give assistance to those who are

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studying for longer than the basic three years. I beg to move.
Lord Peston: My Lords, I should like to say a few brief words on this amendment which is tabled in my name and that of the noble Lord, Lord Addington. I fully appreciate that when a scheme of this kind is introduced one faces the problem of what to do about what one might call, so far as concerns England and Wales, a non-standard three-year degree; namely, a four-year degree course. I do not say that in order to insult the Scots and infer that there is something abnormal about them. It is simply that they have the tradition of a four-year degree.
I should like to hear from the Government whether they feel that the four-year degree is somehow academically bad and they do not mind if this legislation acts as a disincentive to such degrees. I hope that they will not say that. The fact is that the student on a four-year degree course already incurs higher costs. To the economist the most obvious of those costs consists of the year of income forgone in order to spend time at college. If the noble Earl is about to say that this problem is very difficult to solve, I shall agree with him. However I think that those who, to say the least, do not regard a four-year course as illegitimate— to put it as mildly as possible— would like to have some reassurance from the Government in the form of an undertaking that they will at least look for a way of making a concession if they can. I understand that that is what the noble Lord, Lord Addington, is seeking. I add my voice to his I think that the Government to take this matter very seriously.
Baroness Seear: My Lords, in case it should be thought that this is only a Scottish question, I should like to underline the fact that the B.Ed. takes four years and it leads to not very well paid work. If one discourages teachers from taking a B.Ed. qualification, it flies in the face of all the needs of the education system at the present time.
Lord Rea: My Lords, in support of this amendment I should like to remind the House that a number of speakers supported this or similar amendments during all three previous stages of the Bill. Not only will there be a deterrent in the Bill as it now stands to those taking longer courses but also after they have finished the longer courses there will be an incentive for them to go into the more highly paid branches of their profession and perhaps neglect the lower paid ones. In my own field of medicine I think of medical research, public health and epidemiology which are rather poorly paid branches of the profession. They are, however, extremely important.
4.45 p.m.
The Earl of Caithness: My Lords, I understand the motivation behind this amendment. The noble Lord, Lord Addington, has been very persistent in bringing it to your Lordships' notice. It is intended to secure fair treatment for students following longer courses, particularly those in Scotland. However, I have to say that on the test of fairness I believe that it fails. It would mean that a student on a course of four
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years or longer would pay back less than he had borrowed from the taxpayer.
Those on four-year courses would pay back the same as those on three-year courses, even though they had borrowed more. On top of that they would continue to receive more by way of maintenance and tuition fee support than those on three-year courses. I wonder whether the noble Lord, Lord Addington, agrees with me that students on three-year courses might wonder why the funds available for higher education were to be loaded towards those on four-year courses in the way that he proposes.
We believe that a loan should be available to every student irrespective of the length of the course or its nature and that graduates should pay back in real terms the same sums as they have borrowed. That is fair to the taxpayer and fair to the graduate.
After very careful consideration we were able to vary, while keeping moneys repaid equal to moneys borrowed in real terms, the period over which a loan is repaid. As noble Lords will recall, I announced to the House at Report stage that we would be extending to seven years initially the repayment period for graduates who borrow under the scheme for more than four years. That will significantly reduce the size of the annual repayments that those graduates will face. That was a point which the noble Lord, Lord Rea, pressed on us at an earlier stage. I was perhaps a shade disappointed that he did not thank the Government for the major concession in meeting the concern that he had put before us.
As the loan scheme develops and loans increase in real terms, the standard repayment period and the extended repayment period for those on longer courses will be increased so that the repayments remain reasonable. I repeat what I and my noble friend Lady Blatch have said on many occasions. We shall continue to monitor the whole of the loan scheme. We shall look particularly carefully at those who are on four-year courses because of the concerns that have been expressed. If there is need to take action, one is able to act under the regulations.
Lord Addington: My Lords, the noble Earl has given me more or less the same answer as I have been receiving the whole way through this discussion. No further concession has been forthcoming. He spoke about someone receiving a loan over a four-year period and receiving the extra year's help in tuition fees and maintenance. I should like to point out that Scottish students have invariably spent one year less in school— or have done so very often. I should also mention the fact that the four-year course in Scotland is based on the Highers system. It is a system which is non-specialist. England is moving toward it and away from the specialisation of A-levels. I suggest that we may face that problem in the future.
Ultimately we are not addressing the problem that certain courses are of a four-year nature. Many of them lead to low paid professions and teaching is the classic example. As the Government have not been prepared to make any major concession on this matter, I have no option but to test the opinion of the House.
4.50 p.m.
On Question, whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 85; Not-Contents, 98.

DIVISION No. 1

CONTENTS

Addington, L, [Teller]

Jay, L.

Adrian, L.

Jenkins of Putney, L.

Airedale, L.

Kearton, L.

Ardwick, L.

Kilmarnock, L.

Aylestone, L.

Kirkwood, L.

Banks, L.

Llewelyn-Davies of Hastoe, B.

Beloff, L.

Birk, B.

Lloyd of Hampstead, L.

Blackstone, B.

Lloyd of Kilgerran, L.

Blease, L.

Longford, E.

Blyth, L.

Macaulay of Bragar, L.

Boston of Faversham, L.

McGregor of Durris, L.

Broadbridge, L.

Masham of Ilton, B.

Bruce of Donington, L.

Molloy, L.

Campbell of Eskan, L.

Morton of Shuna, L.

Carmichael of Kelvingrove, L.

Nicol, B.

Peston, L.

Dacre of Glanton, L.

Pitt of Hampstead, L.

Dainton, L.

Ponsonby of Shulbrede, L.

Darcy (de Knayth), B,

Porritt, L.

David, B .

Rea, L.

Dean of Beswick, L.

Richardson, L.

Diamond, L.

Ritchie of Dundee, L.

Donaldson of Kingsbridge, L.

Robson of Kiddington, B.

Dormand of Easington, L.

Sainsbury, L.

Dunrossil, V.

St. John of Bletso, L.

Ennals, L.

Saltoun of Abernethy, Ly.

Ezra, L.

Seear, B.

Falkland, V.

Serota, B.

Flowers, L.

Shaughnessy, L.

Foot, L.

Stallard, L.

Gallacher, L. [Teller.]

Stedman, B.

Gladwyn, L.

Stoddart of Swindon, L.

Graham of Edmonton, L.

Strabolgi, L.

Grimond, L.

Swann, L.

Hampton, L.

Tordoff, L.

Hatch of Lusby, L.

Underhill, L.

Henderson of Brompton, L.

Wallace of Coslany, L.

Hirshfield, L.

Whaddon, L.

Hooson, L.

White, B.

Houghton of Sowerby, L.

Wilberforce, L.

Hughes, L.

Williams of Elvel, L.

Hunt, L.

Willis, L.

Hylton-Foster, B.

NOT-CONTENTS

Aldington, L.

Cross, V.

Arran, E.

Cullen of Ashbourne, L.

Atholl, D.

Davidson, V. [Teller.]

Balfour, E.

Denham, L. [Teller.]

Bauer, L.

Derwent, L.

Belstead, L.

Eccles, V.

Bessborough, E.

Elton, L.

Blake, I,.

Fisher, L.

Blatch, B.

Fraser of Carmyllie, L.

Borthwick, L.

Eraser of Kilmorack, L.

Brookeborough, V.

Gainford, L.

Brougham and Vaux, L.

Gardner of Parkes, B.

Butterworth, L.

Geddes, L.

Caithness, E.

Glenarthur, L.

Caldecote, V.

Gray of Contin, L.

Campbell of Alloway, L.

Grimthorpe, L.

Carnegy of Lour, B.

Hailsham of Saint Marylebone, L.

Carnock, L.

Carr of Hadley, L.

Hanson, L.

Clanwilliam, E.

Harvington, L.

Colwyn, L.

Havers, L.

Constantine of Stanmore, L.

Henley, L.

Cottesloe, L.

Hertford, M.

Craigmyle, L.

Hesketh, L.

998

Hives, L.

Renwick, L.

Holdemess, L.

St. Davids, V.

Home of the Hirsel, L.

Saint Oswald, L.

Hooper, B.

Sanderson of Bowden, L.

Iddesleigh, E.

Selkirk, E.

Kitchener, E.

Sempill, Ly.

Lauderdale, E.

Shannon, E.

Long, V.

Skelmersdale, L.

Mancroft, L.

Slim, V.

Merrivale, L.

Stockton, E.

Milverton, L.

Strange, B.

Morris, L.

Strathclyde, L.

Mottistone, L.

Strathmore and Kinghorne, E.

Mountevans, L.

Munster, E.

Swansea, L.

Nelson, E.

Swinton, E.

Newall, L.

Terrington, L.

Nugent of Guildford, L.

Thomas of Gwydir, L.

Orkney, E.

Tombs, L.

Orr-Ewing, L.

Trumpington, B.

Peel, E.

Ullswater, V.

Plummer of St. Marylebone, L.

Vaux of Harrowden, L.

Whitelaw, V.

Quinton, L.

Wyatt of Weeford, L.

Rankeillour, L.

Yarborough, E.

Reay, L.

Young, B.

Renton, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.58 p.m.
The Earl of Caithness The Earl of Caithness moved Amendment No. 5:
Page 2, line 15, at end insert:
(" (5A) The power to make orders under subsection (4) above shall be exercisable by statutory instrument and no such order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.").
The noble Earl said: My Lords, I beg to move Amendment No. 5 and, with the leave of the House, will speak to Amendment No. 6. At Report stage earlier this week I promised to look carefully, with my right honourable friend, at the power given by Clause 1(4) to amend Schedule 1, and the comments made on that power by many of your Lordships. The feeling of the House, as I understood it, was that your Lordships would like some way in which to comment, if orders were made amending Schedule 1.
Amendments Nos. 5 and 6 provide for your Lordships to do just that. They make such orders subject to the affirmative resolution procedure. We anticipate that changes to Schedule 1 will be made in response to developments in the world of higher education; for example, to include new courses, rather than through any wish to restrict the provision of loans. We do not expect that frequent revision of Schedule 1 will be necessary, but, if such changes are to be made, this amendment will ensure that they are debated by your Lordships and by another place, and are subject to the approval of both Houses.
I hope that what I have said, and what is in the amendments, meets the concerns expressed by your Lordships— in particular, those of the noble and learned Lord, Lord Simon of Glaisdale, and my noble friend Lady Young. The Government Amendments Nos. 5 and 6 have exactly the effect intended in Amendment No. 8, which is in the name of the noble and learned Lord, and I hope that what I have said will satisfy him. I beg to move.
Baroness Young: My Lords, I am grateful to my noble friend for bringing forward this amendment, which meets one of the anxieties I raised at Report stage. I have no doubt that it will be greatly welcomed by the universities. I am very grateful to my noble friend for the work which I know he has put into the matter. I hope that he will pass on my thanks to my right honourable friend the Secretary of State for his support of these measures. I am sure that I speak on behalf of the noble and learned Lord, Lord Simon of Glaisdale, who may wish to say something further, and my noble friend Lord Rippon in thanking my noble friend for what he has been able to do.
Lord Simon of Glaisdale: My Lords, I too should like to express my thanks to the noble Earl the Paymaster General. As I had not heard from him as I expected to hear yesterday, I put down my Amendment No. 8, just ahead, I imagine, of the noble Earl's Amendment No. 5. There are only two differences, on both of which I hesitated. They concern where the amendments should appear in the Bill and whether the cautionary words at the beginning of my amendment are necessary. On both those points the draftsman is entitled to have his view maintained and vindicated. The noble Earl has been good as his word in Committee and rather better than his word at Report, as he merely said then that he would consult. I am most grateful to him.
Baroness David: My Lords, we are grateful for this concession. It has taken a long time to get but it has arrived. We are very pleased about it. The noble Baroness, Lady Young, said how pleased the universities would be. I would say that the universities, the polytechnics and indeed the colleges which are affected by Schedule 1 will be glad to have the reassurance that the amendment gives.
On Question, amendment agreed to.
The Earl of Caithness The Earl of Caithness moved Amendment No. 6:
Page 2, line 16, leave out from ("make") to ("shall") in line 18 and insert ("regulations under this section or Schedule 2 to this Act shall be exercisable by statutory instrument which, subject to subsection (7) below and paragraph (1A) of that Schedule, ").
On Question, amendment agreed to.
Lord Addington Lord Addington moved Amendment No. 7:
Page 2, line 38, leave out ("code") and insert ("regulations").
The noble Lord said: My Lords, this is a purely technical drafting amendment. It is designed to correct one very small error in a previous amendment agreed by the House. I beg to move.
Baroness Blatch: My Lords, this is indeed a technical amendment. The Bill now contains two sets of amendments that were passed on Report against the Government's wishes; those inserted by the noble Earl, Lord Russell, who unfortunately is not with us today, about amending the regulations which are the subject of the present debate; and those inserted by the noble Lord, Lord Peston, and the noble Earl, Lord Russell, about the treatment of some students for housing benefit purposes. Noble Lords will not be surprised to hear that the Government are considering the position in the light
1000
of those votes. I have no conclusion to announce today but do not wish to stand in the way of Amendment No. 7. Therefore we will accept the amendment.
On Question, amendment agreed to.
[Amendment No. 8 not moved.]
Schedule 2 [Loans for students]:
Baroness Blatch Baroness Blatch moved Amendment No. 9:
Page 4, line 40, at end insert:
(1A) The maximum amount prescribed under sub-paragraph (1) (a) above for the loan to be made to a student in any year shall not exceed—

(a) the amount specified as the ordinary maintenance requirement for students of the class or description to which he belongs by regulations having effect for that year under section 1 (1) of the Education Act 1962 (mandatory awards); or

(b) if no such amount is specified for students of the class or description to which he belongs, such amount as the Secretary of State considers appropriate for students of that class or description having regard to the amount specified as mentioned in paragraph (a) above;

but regulations, other than the first, made under sub-paragraph (1) (a) above may prescribe a higher maximum if a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.").
The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move. On Question, amendment agreed to.
Baroness Seear Baroness Seear moved Amendment No. 10:
Page 4, line 40, at end insert:
(" (1A) Before issuing regulations in respect of any academic year under sub-paragraph (1) above, the Secretary of State shall consult such organisations as appear to him to be concerned.").
The noble Baroness said: My Lords, at Report stage the noble Baroness agreed that the consultation is a very important part of the process when changes take place from year to year. We believe that it is very important that consultation with all interested groups before these changes are made should be on the face of the Bill. I beg to move.
Baroness Blatch: My Lords, this amendment would require the Secretary of State to consult,
"such organisations as appear to him to be concerned",
before making regulations governing the size of the loan and the terms on which they are to be made and recovered. As noble Lords will know, the Government are committed to monitoring the operation of the loans scheme, a point we have made at every stage of the Bill's progress through the House. The operation of the loan scheme will be monitored continually. We expect to consult widely and will take into account all views put to us before deciding whether the scheme can be improved in any material respect.
There is no similar statutory requirement to consult on the mandatory awards regulations, though in practice the Secretary of State consults the Committee of Vice-Chancellors and Principals, the Committee of Directors of Polytechnics, the local authority associations and indeed the National Union of Students. The annual review of grant rates and conditions takes account of a wide range of evidence from a variety of sources. Such

1001
consultations are valuable and effective even in the absence of a statutory requirement for them.
The Education Act 1962 does not commit the Government to taking account of evidence from particular groups before amending the regulations for grants, and there is no reason why such a requirement should be written on to the face of this Bill. Since 1962 the Government have taken account of a range of views in revising the grants regulations year by year. There is no reason why the same procedure should not apply in future for the parallel loans regulations. The Government are always receiving and responding to representations on student support and will continue to do so.
This amendment is both unnecessary and unwieldy. The Government will monitor the impact of the loans scheme and consult where necessary before making any regulations governing the making and repayment of loans. This is what happens with the grants scheme and, quite properly, this procedure will also apply to the loans scheme. I hope that in the light of that explanation the noble Baroness will feel able to withdraw the amendment.
Baroness Seear: My Lords, I am very sorry that the noble Baroness has responded in that way. Reference is constantly made to the 1962 Act but it provides no parallel. We are now moving into a position that is very much challenged by pretty well all the organisations concerned with education. That was not the case at all under the 1962 Act. There is a great deal of anxiety about the Bill and how it will develop over the years. The position is quite different from that of 1962. It is important to have on the face of the Bill the right to be consulted. One should not have to rely on the goodwill of the Government to consult but on the right to be consulted. I am afraid that, in the light of the noble Baroness's response, I shall have to divide the House.
5.8 p.m.
On Question, whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 104.

DIVISION NO. 2

CONTENTS

Addington, L.

Dacre of Glanton, L.

Adrian, L.

David, B.

Airedale, L.

Dean of Beswick, L.

Ardwick, L.

Diamond, L.

Aylestone, L.

Donaldson of Kingsbridge, L.

Baldwin of Bewdley, E.

Dormand of Easington, L.

Beloff, L.

Ennals, L.

Birk, B.

Ezra, L.

Blackstone, B.

Falkland, V.

Blease, L.

Flowers, L.

Blyth, L.

Foot, L.

Boston of Faversham, L.

Gallacher, L.

Broadbridge, L.

Gladwyn, L.

Bruce of Donington, L.

Graham of Edmonton, L. [Teller.]

Campbell of Eskan, L.

Carmichael of Kelvingrove, L.

Hanworth, V.

Hatch of Lusby, L.

Cobbold, L.

Henderson of Brompton, L.

Craigavon, V.

Henniker, L.

1002

Hirshfield, L.

Nicol, B.

Hooson, L.

Peston, L.

Houghton of Sowerby, L.

Pitt of Hampstead, L.

Hughes, L.

Ponsonby of Shulbrede, L.

Hunt, L.

Ritchie of Dundee, L.

Hylton-Foster, B.

Robson of Kiddington, B.

Jenkins of Putney, L.

Seear, B. [Teller.]

Kearton, L.

Serota, B.

Kilmarnock, L.

Shaughnessy, L.

Llewelyn-Davies of Hastoe, B.

Stedman, B.

Stoddart of Swindon, L,

Lloyd of Hampstead, L.

Swann, L.

Lloyd of Kilgerran, L.

Tordoff, L.

Longford, E.

Underhill, L.

Lovell-Davis, L.

Wallace of Coslany, L.

Macaulay of Bragar, L.

Whaddon, L.

McGregor of Durris, L.

White, B.

Molloy, L.

Williams of Elvel, L.

Monson, L.

Willis, L.

Mulley, L.

NOT-CONTENTS

Aldington, L.

Jenkin of Roding, L.

Allenby of Megiddo, V.

Killearn, L.

Arran, E.

Kitchener, E.

Atholl, D.

Lauderdale, E.

Balfour, E.

Long, V. [Teller.]

Bauer, L.

Lyell, L.

Belstead, L.

McColl of Dulwich, L.

Bessborough, E.

Mancroft, L.

Blake, L.

Merrivale, L.

Blatch, B.

Milverton, L.

Borthwick, L.

Morris, L.

Boyd-Carpenter, L.

Mottistone, L.

Brentford, V.

Mountevans, L.

Brookeborough, V.

Munster, E.

Brougham and Vaux, L.

Nelson, E.

Butterworth, L.

Newall, L.

Caithness, E.

Nugent of Guildford, L.

Caldecote, V.

Orkney, E.

Campbell of Alloway, L.

Orr-Ewing, L.

Carnegy of Lour, B.

Peel, E.

Carnock, L.

Plummer of St. Marylebone, L.

Carr of Hadley, L.

Colwyn, L.

Prior, L.

Constantine of Stanmore, L.

Quinton, L.

Cottesloe, L.

Rankeillour, L.

Cross, V.

Reay, L.

Cullen of Ashbourne, L.

Renton, L.

Davidson, V. [Teller.]

Renwick, L.

Denham, L.

Richardson, L.

Derwent, L.

Rippon of Hexham, L.

Eccles, V.

St. Davids, V.

Elton, L.

St. John of Bletso, L.

Erroll, E.

Saint Oswald, L.

Ferrers, E.

Saltoun of Abernethy, Ly.

Fisher, L.

Sanderson of Bowden, L.

Fortescue, L.

Selkirk, E.

Fraser of Carmyllie, L.

Sempill, Ly.

Fraser of Kilmorack, L.

Skelmersdale, L.

Gainford, L.

Slim, V.

Gardner of Parkes, B.

Stockton, E.

Geddes, L.

Strange, B.

Glenarthur, L.

Strathclyde, L.

Gray of Contin, L.

Strathmore and Kinghorne, E.

Grimthorpe, L.

Hailsham of Saint Marylebone, L.

Swansea, L.

Thomas of Gwydir, L.

Hanson, L.

Tombs, L.

Havers, L.

Trumpington, B.

Henley, L.

Ullswater, V.

Hertford, M.

Vaux of Harrowden, L.

Hesketh, L.

Whitelaw, V.

Hives, L.

Yarborough, E.

Holderness, L.

Young, B.

Hooper, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.16 p.m.
Lord Peston Lord Peston had given notice of his intention to move Amendment No. 11:
Page 5, line 10, at end insert ("; and (c) no interest shall accrue to a loan secured by a minor during the period when such a person is a minor.").
The noble Lord said: My Lords, during our debate on Amendment No. 1 I said that I had made all the relevant points. I do not want to cover the ground again but I forgot to point out that we should be looking at other legislation such as the Minors' Contracts Act 1987 which deals with lending to minors. It illustrates my point about how complicated the issue is.
Having made my points earlier I do not believe that noble Lords will welcome a further delay in the proceedings. Therefore, I shall not move the amendment.
[Amendment No. 11 not moved.]
Lord Henderson of Brompton Lord Henderson of Brompton moved Amendment
No. 12:
Page 5, line 14, at end insert:
(" (4) Regulations made under this paragraph shall allow special conditions to be set in respect of repayment of loans for disabled students or graduates.").
The noble Lord said: My Lords, the amendment is the same as that which I moved and withdrew on Report. However, there is one minor exception which I hope will appeal to the noble Earl. It provides that regulations may be made under this paragraph to allow special conditions to be set in respect of repayment of loans for disabled students or graduates. I have left out the words which appeared in my previous amendment; they were "in comparison with loans to other students". The noble Earl was right to take exception to those words and I hope that the amendment is acceptable in its present form.
The arguments were adduced at great length during previous stages and therefore I do not need to go into detail. Briefly they are, first, that a disabled student is likely to incur larger loans than a non-disabled student. Secondly, when the disabled student becomes a graduate he is likely to be poorer than graduates who are able bodied. He will be poorer partly because he will have incurred greater expenses, partly because he will have greater costs and partly because, on average, the disabled graduate receives a smaller income than the non-disabled graduate.
For all those reasons it appears to be unanswerable that special conditions should be set for the repayment of loans for disabled students. I beg to move.
Baroness David: My Lords, I support the amendment as I did on Report. The noble Lord, Lord Henderson, has made the necessary points and there is no need for me to repeat them. I hope that disabled students will receive the extra help. We all agree that what has been given is generous but, because of the difficulties that they will face when repaying the loans, that is not enough.
Lord Addington: My Lords, I support this amendment. The points have already been made. The disabled not only have a more difficult time as students, but they have a far higher probability of being unemployed and a far less chance of earning very high salaries. Thus I suggest that it is only fair that they receive special consideration.
Baroness Darcy (de Knayth): My Lords, I support this amendment. I hope that the Minister has been able to assist on this aspect. I wonder whether the Government have fully understood the point about the extra costs of disabled life. Even if a disabled person manages to obtain a job as highly paid as an able-bodied counterpart, and manages not to run up a higher loan, there are still the extra costs which are not fully offset by the mobility and attendance allowances. Those costs occur daily for the rest of your life.
Lord Milverton: My Lords, I also support this amendment.
The Earl of Caithness: My Lords, we announced on 19th March that there would be special provision for disabled people repaying their loans, in the form of a disregard of disability-related benefits for the purpose of assessing a disabled graduate's income for deferment.
Disabled people with low incomes will be protected by the deferment threshold at 85 per cent. of national average income. Those who continue to earn less than this generous threshold may expect to make no repayments, and to have their debts cancelled at the age of 50. Those two sentences cover the point of concern of the noble Lord, Lord Addington, as he has just expressed it to the House.
The disregard of disability-related benefits will ensure that disabled graduates are not lifted above the threshold by benefit income. Someone who received the mobility allowance would find that the disregard effectively raised his threshold to around 90 per cent., or over £ 12, 200 in today's terms. Anyone receiving disability-related benefits of over £ 40 per week in today's terms would enjoy a threshold above 100 per cent. of average earnings.
I repeat the assurances I gave at Report stage that this provision will be included in regulations, which the House will debate for their first use.
I now turn to the key point of what I have to say. The noble Baroness, Lady Darcy (de Knayth), said that she hoped that I had given this matter further consideration, as I have. What convinces me on my line of argument is that there is no need to insert in the Bill a measure permitting special provision to be made for repayments by the disabled. The Bill as drafted already provides for that.
I can reassure the House that an enormous amount of work has gone into this area. We were able to come back with a very generous package for the disabled which we have discussed on a couple of occasions. I understand the anxieties of the noble Lord, Lord Henderson of Brompton. We are very keen to monitor the situation and look at it. However, I return to my key point— that is, there is no need to insert this into the Bill because the Bill as drafted already allows for it.
Lord Henderson of Brompton: My Lords, the Bill may already contain the provision. No doubt the noble Earl can tell us where it is. However, this is not so material as whether or not the Government will make use of the provision. That is what we should like to have from the noble Earl. If he says he will make use of the provision, then there would be good reason to withdraw the amendment.
I hope that the noble Earl recognises that there is support from all sides of the House on this amendment. When he talks about the disregard of disability-related benefits, that is beside the point because all disabled people do not receive those benefits. For example, the deaf are very gravely handicapped but do not receive the same disability-related benefits as those confined to wheelchairs. Therefore, disregard is neither here nor there for them.
Unless there is an assurance from the noble Earl that the Government will make use of the regulations in the sense for which we have all pressed, I shall ask the House to divide.
The Earl of Caithness: My Lords, on the question of whether the Bill permits the disabled to be treated differently, I draw the noble Lord's attention to Clause 1 (6), and particularly the last line.
I cannot go further regarding what the noble Lord said today. He knows that we have responded very considerably towards meeting the anxieties of the disabled. I fear that we are not going to agree exactly on the final amount today. However, there has been a considerable shift in the Government's position, as I have been able to tell your Lordships. We shall continue to monitor the situation very carefully.
Lord Boyd-Carpenter: My Lords, before my noble friend sits down, perhaps I may ask this question. Is it not the case that however good and honourable are the present Government's intentions— and I am sure they are— if we put the words of this amendment into the Bill that will serve as a very useful handle should we have the misfortune to have a government who are less fair on this matter? There is a great deal to be said for having something on the face of the Bill which can be referred to if the government of the day, whoever they may be, do not make that sort of provision.
The Earl of Caithness: My Lords, with respect to my noble friend, I have heard him use the opposite argument; namely, if it is provided for in the Bill there is no need to write it on the face of the Bill a second time. On the question of the disabled, whatever may be the colour, complexion or belief of the government in power, the concerns of the disabled will always be very much to the fore as they are to the forefront of the mind of this Government.
Lord Hughes: My Lords, when I sat on that Bench opposite I was always very pleased when I was able to say that an amendment was not acceptable because it contradicted what we intended to do. On more than one occasion I refused to accept a brief which told me that I should not accept the amendment because it was already covered in
1006
another form in another part of the Bill. I told my advisers that there is nothing wrong with belt and braces.
Lord Henderson of Brompton: My Lords, I am extremely grateful for the support of the noble Lord, Lord Boyd-Carpenter, and of the noble Lord, Lord Hughes. I hope that the noble Earl will understand that it is the feeling of the House that special provision for the disabled should be written into the Bill. I appeal to him to accept that. I very much regret that if he does not, I shall have to divide the House. It would be most acceptable to the House if the noble Earl could nod his head, but I can see that he is not doing so and regretfully I ask the House to divide on this amendment.
5.27 p.m.
On Question, whether the said amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 92; Not-Contents, 85.

DIVISION NO. 3

CONTENTS

Addington, L.

Hughes, L.

Adrian, L.

Hunt, L.

Airedale, L.

Hylton-Foster, B.

Allen of Abbeydale, L.

Jenkins of Putney, L.

Ardwick, L.

Kearton, L.

Aylestone, L.

Kilmarnock, L.

Baldwin of Bewdley, E.

Llewelyn-Davies of Hastoe, B.

Beloff, L.

Birk, B.

Lloyd of Hampstead, L.

Blackstone, B.

Lloyd of Kilgerran, L.

Blease, L.

Longford, E.

Blyth, L.

Lovell-Davis, L.

Boston of Faversham, L.

Macaulay of Bragar, L.

Boyd-Carpenter, L.

McColl of Dulwich, L.

Broadbridge, L.

McGregor of Durris, L.

Bruce of Donington, L.

Milverton, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Monson, L.

Cobbold, L.

Morton of Shuna, L.

Congleton, L.

Mulley, L.

Craigavon, V.

Nicol, B.

Dacre of Glanton, L.

Perry of Walton, L.

Darcy (de Knayth), B.

Peston, L.

David, B.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L.

Diamond, L.

Renton, L.

Donaldson of Kingsbridge, L.

Richardson, L.

Dormand of Easington, L.

Rippon of Hexham, L.

Erroll, E.

Ritchie of Dundee, L.

Ezra, L.

Robson of Kiddington, B.

Falkland, V.

Saint Oswald, L.

Flowers, L.

Saltoun of Abernethy, Ly.

Foot, L.

Seear, B.

Gallacher, L.

Serota, B.

Gladwyn, L.

Shaughnessy, L.

Graham of Edmonton, L. [Teller.]

Simon of Glaisdale, L.

Stedman, B.

Grantchester, L.

Stoddart of Swindon, L.

Grimond, L.

Swann, L.

Hacking, L.

Tombs, L.

Hanworth, V.

Tordoff, L.

Hatch of Lusby, L.

Underhill, L.

Henderson of Brompton, L. [Teller.]

Wallace of Coslany, L.

Whaddon, L.

Henniker, L.

White, B.

Holderness, L.

Wilberforce, L.

Hooson, L.

Williams of Elvel, L.

Howie of Troon, L.

Willis, L.

1007

NOT-CONTENTS

Aldington, L.

Henley, L.

Allenby of Megiddo, V.

Hertford, M.

Arran, E.

Hesketh, L.

Atholl, D.

Hives, L.

Balfour, E.

Hooper, B.

Bauer, L.

Jenkin of Roding, L.

Belstead, L.

Killearn, L.

Bessborough, E.

Lauderdale, E.

Blake, L.

Long, V. [Teller.]

Blatch, B.

Lyell, L.

Borthwick, L.

Mancroft, L.

Brookeborough, V.

Merrivale, L.

Brougham and Vaux, L.

Morris, L.

Butterworth, L.

Mottistone, L.

Caithness, E.

Mountevans, L.

Caldecote, V.

Munster, E.

Campbell of Alloway, L.

Nelson, E.

Carnegy of Lour, B.

Newall, L.

Carnock, L.

Nugent of Guildford, L.

Colwyn, L.

Orkney, E.

Constantine of Stanmore, L.

Orr-Ewing, L.

Cottesloe, L.

Peel, E.

Cross, V.

Prior, L.

Cullen of Ashbourne, L.

Quinton, L.

Davidson, V. [Teller.]

Rankeillour, L.

Denham, L.

Reay, L.

Derwent, L.

Renwick, L.

Eccles, V.

Saint Albans, D.

Elles, B.

St. Davids, V.

Elton, L.

Sanderson of Bowden, L.

Ferrers, E.

Selkirk, E.

Fisher, L.

Skelmersdale, L.

Fraser of Carmyllie, L.

Stockton, E.

Fraser of Kilmorack, L.

Strange, B.

Gainford, L.

Strathclyde, L.

Gardner of Parkes, B.

Strathmore and Kinghorne, E.

Geddes, L.

Glenarthur, L.

Trumpington, B.

Gray of Contin, L.

Ullswater, V.

Greenhill of Harrow, L.

Vaux of Harrowden, L.

Grimthorpe, L.

Whitelaw, V.

Hailsham of Saint Marylebone, L.

Yarborough, E.

Young, B.

Hanson, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.35 p.m.
Lord Beloff Lord Beloff moved Amendment No. 13:
Page 5, line 28, at end insert:
(" (1A) The Secretary of State shall provide to such institutions full compensation in respect of all work required in connection with the certification or otherwise of a students eligibility, and such compensation shall be in addition to that made available for the work required in connection with the distribution of Access Funds.").
The noble Lord said: My Lords, those noble Lords who were here around midnight at Report stage heard the arguments for this amendment rehearsed at some length both by myself and by the noble Lord, Lord Flowers. I therefore need only rehearse them briefly today.
One matter that has worried me throughout the debates on the Bill is a tendency to underestimate the administrative costs. In so far as these proposals reflect extra administrative costs to the Government, that is a matter which they must balance against the advantages they believe the scheme confers on the country. My concern— a universal concern in the institutions of higher education— is that the universities and polytechnics will also bear considerable administrative costs. Those costs have already manifested themselves in relation to the
1008
community charge where they are involved in dealing with the students liable to pay it, but certification is probably a more serious and complicated business.
The noble Earl described the process to be followed by the student and the role of the university as regards certification. There will be extra administrators; no doubt extra typewriters, telephones, offices and so forth. Since this was not a measure forced upon the Government by the overwhelming enthusiasm of the universities and polytechnics, but a government measure which they asked those institutions to accept, surely the financial responsibility should be that of the Government.
Universities and other institutions of higher education have no free money. Many of them are in considerable financial difficulty. If money has to be paid to certify students for the student loans, it can only be obtained by cutting the universities' activity in some other respect— by reducing teaching staff or curtailing research. In other words, unless there is a guarantee from the Government that they will pay the extra administrative costs, they are asking universities to divert money from their primary concerns— teaching and research— to a secondary concern, administration.
In replying to the debate the Minister informed us that there was no need to worry. The Government would be consulting with the Committee of Vice-Chancellors and Principals and the Committee of Directors of Polytechnics. He said that in those discussions the question of who should pay the bill "would be on the agenda".
That is a slippery phrase. On a day when Chancellor Kohl is visiting London I seem to remember someone saying a little while ago, that German unification was not on the agenda. It now appears to be on the agenda. Similarly, if the noble Earl says that the matter of payment is simply to be "on the agenda", how do I know that it will turn out not to be on the agenda?
In other words, all we are asking is that the Minister should admit that it will cost the universities, polytechnics and colleges money; that they have no money to meet these costs and that the Government recognise their obligation to furnish resources to enable institutions to carry through the Government's own policy. I commend the amendment to your Lordships. I beg to move.
Lord Flowers: My Lords, I support the noble Lord, Lord Beloff. He has stated the general case very thoroughly and I do not want to repeat it. However, I should like to highlight what is involved. On Report the Minister said something about the process that is required but since then we have had the DES press release of 22nd March which amplifies that process.
It seems that the student applies through the college, which will have to certify him as a proper student on a proper course. The student will take with him as proof of identify his birth certificate, his mandatory award letter, if any, his bank or building society account number, and so on. However, what bothers me are the following words:
"The academic institution checks the documents the student brings with him. The student completes an eligibility form".

1009
Therefore, the college has to check the student's birth certificate, bank account number, and so on. I do not know what one does when checking such things. Perhaps that is perfectly reasonable but I wish I understood better what will actually be involved. Therefore I do not know what the costs will be and for that reason I hope that they will be covered by the Government, who are putting this demand upon the universities. We are already faced with the demand to administer access funds and in recent years at the Government's behest we have had to administer all sorts of schemes at the expense of our teaching and research, as the noble Lord, Lord Beloff, said.
Lord Adrian: My Lords, I spoke on this issue in Committee and on Report and I was grateful to the noble Earl the Paymaster General for saying on Report that the question of payments would be on the agenda of the meeting between the universities and the DES.
I put my name to this amendment because I hope that the Minister will indicate today how his thinking on the matter is developing. I know that it is only a few days since the Report stage was concluded but I am sure the House would be grateful to hear that the Government will not only place this matter on the agenda of the forthcoming meeting but will also come forward with an offer of financial support, preferably with an offer of new resources to support the administrative activities that this new scheme will involve.
Baroness Blackstone: My Lords, I support this amendment from these Benches. All of us who are involved in running higher education institutions know the difficulties of the current financial situation. We are speaking not just about universities but about polytechnics and colleges of higher education. As the noble Lord, Lord Beloff, so rightly said, this scheme could well mean the diversion of funds from the main responsibilities of higher education institutions, which are to teach our students, and to undertake research into supporting the Government in the administration of a scheme involving student maintenance. As I have already said that would be a highly undesirable situation in the context of so little funding being available for new developments in research and teaching.
In supporting Amendment No. 13 I shall not be moving my Amendment No. 15 since both amendments cover exactly the same issues and the wording of Amendment No. 13 is, if anything, better than the wording of my amendment.
5.45 p.m.
Lord Kilmarnock: My Lords, there is a report in today's issue of Nature — an admirable publication which some of your Lordships may read— which states:
"DES officials say they will discuss any arrangements to reimburse universities for additional costs with the Committee of Vice-Chancellors and Principals at a future date".
That must mean after the passing of this Bill. I think the House will agree that that is rather an
1010
unsatisfactory situation in which to allow the Bill to leave this House. For example, if the talks break down what will happen? I am sure the noble Earl will be able to assist us this afternoon and give some indication that the talks will take place under reasonable auspices.
Lord Boyd-Carpenter: My Lords, this seems to be a reasonable amendment. No one can allege that the universities have clamoured for the scheme. It is well known that the Government have decided, for better or worse and for their own reasons, to impose the scheme on them. That inevitably raises the basic question of who pays.
No one is clear— though we shall perhaps be clearer when my noble friend the Paymaster General has spoken— as to how much money is involved, but I put to him that he is facing a dilemma. If, as I suspect, the amount is substantial, it is wrong that it should come out of the universities' assets. If, on the other hand, it is trifling, it is putting no obligation on the Government and the taxpayer to ask them to shoulder it. Either way, it seems that there is a case, if the Government want to go ahead with the scheme, for not seeking directly or indirectly to make the universities pay for it.
Baroness White: My Lords, I draw the attention of the noble Earl to the fact that this coming year will be particularly arduous because it covers the entire body of students, as I understand it, and not just one year's entry, which will occur later on. We have to arrange— as we shall in our college— to deal with some 8, 000 students, though not all of them will be eligible for the loan system as some are from overseas. Nevertheless, it will be a very difficult job and if, as the noble Lord, Lord Flowers, indicated, we have to check a number of personal documents, whatever they may be, I cannot help thinking how much easier it would be for the Government to accede to the vice-chancellors' suggestion that it should all be done through the Inland Revenue.
However, the Government have not felt able to do that so they must recognise, particularly in this coming academic year, that they are putting a considerable administrative burden upon staffs, which some of us have been pruning— perhaps over-vigorously— over the past few years.
Viscount Eccles: My Lords, I do not want the universities to divert money to this scheme which they would otherwise spend on other forms of education. However, I do not see why they should be given a blank cheque to hire as many people as they like in order to administer it. Therefore, what should one do? I believe the answer is simple. The money should come from the access fund.
Lord Rippon: My Lords, I do not wholly agree with the argument put forward by my noble friend Lord Eccles. This has nothing to do with whether one is in favour of student loans. It is wholly reasonable that this amendment should be accepted by the Government for the reasons given by my noble friend Lord Boyd-Carpenter.
We all know that at present the universities are under tremendous pressure. Funds are not freely

1011
available for extra expenditure of this nature. It is not a question, if I may say so, of giving the universities a blank cheque. After all, the universities are subject to audit. Perhaps I should declare an interest as chairman of the audit committee of London University. But it certainly seems to me that the universities should be reimbursed for all expenditure necessarily incurred in carrying out duties imposed by government legislation.
Lord Nugent of Guildford: My Lords, I wish to put one more point to my noble friend. There is a certain logic in this amendment. The purpose of the Bill is to raise additional funds for the universities and the growing number of students. This is a measure which will be of assistance to the Treasury and the taxpayer in the long run. The universities are being asked to work the machinery when the Bill becomes an Act. It is only reasonable that the cost of working that machinery, which will benefit the Government, should be borne by them.
It is well known that universities are going to great lengths to work the machinery. My particular interest is Surrey University. It has set up a research park to earn itself fresh income in order to keep the university going. It would be very hard if the university had to use such hard earned funds in order to provide the machinery to work this scheme for the benefit of the Government. With his admirable mind, I am sure that my noble friend will see the logic of that argument.
Lord Swann: My Lords, I wish to give your Lordships the results of some calculations which I have done though they may well be wrong. I do not have my calculator with me. I have done a little mental arithmetic. I was considering what I would have thought if I were in charge of this scheme in the days when I was Principal of Edinburgh University. I do not believe for one moment that it could be carried out for less than about 10 minutes per student, and probably a lot more. Edinburgh University had 10, 000 students, so that is 100, 000 minutes per annum. That equals 16, 000 hours, which is 400 weeks; something like eight-man years would be involved each year. It would have involved quite a lot money as well as a lot of wasted time by intelligent people.
The Earl of Caithness: My Lords, at Report stage I described in some detail the role of the academic institutions in the student loans scheme. I said that, while that role will be important, it will also be limited, as indeed has been requested.
Academic institutions will identify their students, certify them as eligible and issue forms. Students will apply for loans directly to the Student Loans Company, through the post. The academic institutions will also be expected to inform the Student Loans Company if a student unexpectedly ceases to be eligible by leaving a course prematurely, and to store documents for auditing purposes.
Apart from that, the academic institutions will not be involved in any steps beyond certifying eligibility. I have listened carefully to what noble Lords have said at Second Reading, Committee and Report
1012
stages of the Bill about the matter of payment to the academic institutions.
Given what I had said, I was very surprised to hear what my noble friend Lord Beloff said. He said something to the effect that he did not know whether this matter would be on the agenda when I said that it would be. I can confirm the fact that the department's officials have already written confirming that payment is on the agenda. That subject will be discussed. I do not know whether or not I can convince my noble friend, but that is up to him.
Just as the Government were willing to make a payment contribution towards the cost of the scheme when it was to be run by the banks, so we will be willing to make a contribution to the institutions. Those payments will reflect the limited role in the certification process which we are asking the institutions to take on.
The issue will be discussed at official level at a meeting to be held next Tuesday. I do not think any of us can anticipate the outcome in detail, but I can assure your Lordships that the momentum of discussion will be maintained.
My noble friend Lord Beloff said that we were underestimating the administrative cost. The Government have said all along that the administrative cost of the scheme would be in the range of £ 10 million to £ 20 million. There is no reason to change that view. It is not the Government who have underestimated the cost, but the critics who have consistently overestimated it.
The noble Lord, Lord Flowers, raised the question of college checks. I shall go over that point again. The colleges will check the correct transcription of material on the birth certificate, the chequebook, etc., onto the eligibility certificate. These are details and how they will be worked out will be a matter for discussion between officials on Tuesday.
There is another point which I believe will be of interest to your Lordships. During the summer term, the Student Loans Company and the education departments will be organising a major information programme for the academic institutions. We shall work closely with the institutions at all stages. It is in our joint interests to ensure that students have swift and efficient access to additional resources this autumn.
Perhaps I may confirm the two main points. First, payment is on the agenda for the meeting on Tuesday. Secondly, and most important is the matter which is of concern to so many of your Lordships and that is that the Government are willing to make payments to the institutions, but it is the amount which has now to be decided.
Lord Beloff: My Lords, I am delighted to know that the matter is on the agenda and that there is not time now for it to come off. I am sure that my noble friend was right in assuring us that that was the case. He has also said— perhaps it goes some way to meeting the point made by the noble Lord, Lord Kilmarnock— that the Government contemplate, in the course of those negotiations, making a contribution towards the cost. In

1013
consequence, I might have been tempted to withdraw this amendment were it not for the fact that my noble friend prefaced his remarks by insisting that the costs of the universities were very limited because their function was very limited.
The noble Lords, Lord Flowers and Lord Swann, I suspect have more academic experience between them than most Members of your Lordships' House. Their remarks show that, even accepting the view— and we accept the Minister's word for it— that all that is required is the certification that students are who they say they are and that they inform the loan company should they cease to be students, nevertheless, a very considerable sum of money is involved.
The documents have to be examined and the students have to be interviewed. It is difficult to see how that can be done in any other way. So when the Minister suggests that the expenditure is not very large, one begins to wonder whether the offer made to the universities will come anywhere near the total cost to them of the operation. The Minister could accept the view of his noble friend Lord Rippon, or the opinion expressed by his noble friend Lord Boyd-Carpenter, and simply tell the House that the necessary cost to the universities of the certification process will be reimbursed with due audit by Her Majesty's Government. In that case the amendment would have served its purpose and I would feel able to withdraw it.
The Earl of Caithness: My Lords, with the leave of the House, I must point out that I did not say that the cost was not large. I said that the costs have to be quantified. I said that the Government are willing to make a contribution. One of the points of the Tuesday meeting is to assess exactly that issue. We have to discuss the matter with the institutions. We are in touch with them at the moment. If the officials put forward a good idea and say that, within that framework they can carry out what is required in a slightly different way and the costs will be so much; or if the officials say that it would be easier to use an alternative method, that will affect the cost. I cannot say what the cost will be. No way did I ever say that the cost would not be large. I do not know what the cost will be and that is what the Tuesday meeting will be concerned with. Your Lordships have a commitment from me that the Government will pay the money.
Lord Peston: My Lords, the noble Lords, Lord Beloff and Lord Rippon, laid down a very simple principle. It was not that the universities and colleges should be allowed to exploit the Government, but simply that the Government should agree that, whatever be the agreed audited costs, they were the costs that the Government should meet. I cannot understand how the noble Earl can possibly reject that suggestion. It is the noble Earl's scheme. Surely the Government would be willing to meet the agreed audited costs of the scheme. That is all that the noble Lord, Lord Beloff, is asking for, and I cannot see how the noble Earl can reject it.
6 p.m.
The Earl of Caithness: My Lords, with respect, that is not what the amendment states. It might well be one definition of how we assess the cost, but as all noble Lords will know, it is not the only way. However, I have given a very firm commitment to the House this afternoon.
Lord Boyd-Carpenter: My Lords, before my noble friend sits down, can he say whether the commitment that he has given to the House is that the Government will reimburse to the universities all costs of introducing and operating the scheme which can be shown to have arisen as the result of his discussions or otherwise? Will he undertake not— as he used the phrase— to make a contribution, but to pay those costs in full?
The Earl of Caithness: My Lords, what the Government are willing to do is obviously to meet the reasonable costs of this scheme. What I do not know is what those costs will be. I have made a very firm commitment that the Government are willing to make payments to the institutions. That has to be decided at the meeting on Tuesday.
Lord Flowers: My Lords, will the noble Earl accept the phase "audited costs", which means that they are real?
The Earl of Caithness: My Lords, as I said, that could be one of the methods by which we arrive at an assessment of the final cost. At this stage, to pre-empt the discussion that will take place would be wrong. I shall certainly draw to the attention of my right honourable friend the feeling in the House that that is what the preferred method would be.
Lord Renton: My Lords, before my noble friend sits down, is there not a difficulty there? Unless an amendment goes to another place which enables the matter to be put right, whatever view his noble friend may take, it will be too late for the matter to be put right unless we do something now.
The Earl of Caithness: My Lords, it is a question of getting the matter right. I put it to your Lordships that the best way of getting it right is to have a commitment from the Government that they will meet the costs. That I have given. The best way for that to be assessed and agreed is at a meeting between the parties. That will be on Tuesday of next week. It might not be the last meeting, but it will certainly be the first.
Lord Flowers: My Lords, I am sorry to interrupt again. However, the Minister is saying that at the meeting we shall form the estimated costs. I think that the House would be satisfied if the Minister undertook that the audited costs after the event would be met. Of course we must estimate the costs at this meeting which he has promised us— and I am glad that he has done so— but the real costs are the audited costs after the event. We need an assurance about them.
The Earl of Caithness: My Lords, I am not an expert on the definition of audited costs. However, I believe that "audited" proves the probity of the accounts. I know that the noble Lord, Lord Flowers, is keen to get this right, as are the Government. I am sure that he would understand that it would be wrong for me to prescribe at this stage, before the meeting, exactly the best method of assessing the final picture. That is rightly left for the discussions that will be held.
Let me say yet again that noble Lords have a commitment that the Government are concerned about this matter. We understand the points that have been made. That is why I was able to give the firm commitment that I have given this afternoon.
Baroness David: My Lords, before the noble Lord sits down, perhaps I may ask whether the meeting for Tuesday is absolutely fixed or will it take place only if the Bill has received Royal Assent by then?
The Earl of Caithness: My Lords, that is a different question to which I do not know the answer. As your Lordships will be aware, there are many meetings between officials and the higher institutions. As I have said on numerous occasions, we wish to continue to foster that situation. It is absolutely fixed, my Lords.
Baroness White: My Lords, will the noble Lord agree with the noble Lord, Lord Renton, that if we accept the amendment now there is still an opportunity in another place for members to say that they do not accept it? We then have the procedure between the Houses and so on. If we do not have this provision on the face of the Bill, we have nothing that will sustain us if, by unhappy chance, anything should go wrong with the discussions.
Viscount Eccles: My Lords, as I understand it, the Government are willing to pay the costs, but they wish to know what scheme will be brought in. It is no good saying that all schemes cost the same money. The scheme might be computerised; it might not. One must find that out first. If I were Minister, I should not be willing to trust all the universities to produce a good, efficient, economic scheme. We wish to know that factor before the taxpayer is asked to pay the money.
Lord Grimond: My Lords, will the Minister confirm that he said that the Government would meet the costs— that seems to be perfectly adequate— and not that they would make a contribution to the costs? He said at one point that the Government would meet them. We wish to qualify that by finding out what they will be and the method of meeting them which is to be decided. Will he confirm that he categorically stated that the Government would meet the costs. That is quite clear.
The Earl of Caithness: My Lords, I am extremely grateful to the noble Lord, Lord Grimond, and my noble friend Lord Eccles. I think that that covers exactly what I have been saying and meets very much the concerns that your Lordships have stated.
Baroness Seear: My Lords, if the noble Earl says that, why on earth does he not accept the amendment?
Lord Beloff: My Lords, I have listened to this further exchange. I think that the noble Earl misunderstands the amendment. The amendment does not commit the Government either to a particular sum of money, or (and this meets the case put by the noble Viscount, Lord Eccles) prescribes any particular way in which it should be administered. It merely puts on record the fact that the Government are committed to meeting the costs of the universities which, as the noble Lord, Lord Grimond, says, is what the noble Earl has said. I cannot understand why the noble Earl will not agree to an amendment which does not bind him to more than what he has stated, especially in view of the remarks of my noble friend Lord Renton that this would enable the issue to be considered when the Bill returns to another place.
The Earl of Caithness: My Lords, I am grateful to my noble friend for giving way. Perhaps I may say, with the leave of the House— because, with respect, we are on the point of becoming quite out of order— that the amendment provides for
"compensation in respect of all work required in connection with the certification".
In view of what my noble friend Lord Eccles said, it is working out those costs exactly that is important. On the advice that I have received, the amendment is very open ended.
Lord Beloff: My Lords, no. "Required" means required by Her Majesty's Government in order to carry out Her Majesty's Government's intentions. In the light of that answer,. I must seek the opinion of the House.
6.8 p.m.
On Question, whether the said amendment (No. 13) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 83.

DIVISION NO. 4

CONTENTS

Addington, L.

David, B.

Adrian, L.

Dean of Beswick, L.

Airedale, L,

Derwent, L.

Allen of Abbeydale, L.

Diamond, L.

Ardwick, L.

Dormand of Easington, L.

Atholl, D.

Dunrossil, V.

Aylestone, L.

Ennals, L.

Beloff, L. [Teller.]

Erroll, E.

Birk, B.

Ezra, L.

Blackstone, B.

Falkland, V.

Blyth, L.

Fisher, L.

Boyd-Carpenter, L.

Flowers, L. [Teller.]

Broadbridge, L.

Foot, L.

Carmichael of Kelvingrove, L.

Gallacher, L.

Geddes, L.

Cobbold, L.

Graham of Edmonton, L.

Congleton, L.

Grimond, L.

Craigavon, V.

Hanworth, V.

Dacre of Glanton, L.

Hatch of Lusby, L.

Dainton, L.

Henderson of Brompton, L.

Darcy (de Knayth), B.

Henniker, L.

1017

Houghton of Sowerby, L.

Peston, L.

Hughes, L.

Pitt of Hampstead, L.

Hunt, L.

Ponsonby of Shulbrede, L.

Hylton-Foster, B.

Renton, L.

Jenkins of Putney, L.

Richardson, L.

Kearton, L.

Rippon of Hexham, L.

Kilmarnock, L.

Robson of Kiddington, B.

Llewelyn-Davies of Hastoe, B.

Russell of Liverpool, L.

Saint Oswald, L.

Lloyd of Hampstead, L.

Saltoun of Abernethy, Ly.

Lloyd of Kilgerran, L.

Seear, B.

Longford, E.

Simon of Glaisdale, L.

Lovell-Davis, L.

Stedman, B.

Macaulay of Bragar, L.

Stoddart of Swindon, L.

McGregor of Durris, L.

Swann, L.

Molloy, L.

Tordoff, L.

Monson, L.

Underhill, L.

Mulley, L .

White, B.

Nicol, B.

Wilberforce, L.

Perry of Walton, L.

Willis, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Hooper, B.

Arran, E.

Jenkin of Roding, L.

Balfour, E.

Kinnoull, E.

Bauer, L.

Lauderdale, E.

Belstead, L.

Liverpool, E.

Bessborough, E.

Long, V.

Blake, L.

Lyell, L.

Blatch, B.

McColl of Dulwich, L.

Boardman, L.

Mancroft, L.

Borthwick, L.

Merrivale, L.

Brookeborough, V.

Milverton, L.

Brougham and Vaux, L.

Morris, L.

Buckinghamshire, E.

Mottistone, L.

Butterworth, L.

Mountevans, L.

Caithness, E.

Munster, E.

Caldecote, V.

Nelson, E.

Campbell of Alloway, L.

Newall, L.

Carnegy of Lour, B.

Nugent of Guildford, L.

Carnock, L.

Orkney, E.

Cocks of Hartcliffe, L.

Orr-Ewing, L.

Colwyn, L.

Peel, E.

Constantine of Stanmore, L.

Prior, L.

Cottesloe, L.

Rankeillour, L.

Davidson, V. [Teller.]

Reay, L.

Denham L. [Teller.]

Renwick, L.

Eccles, V.

Saint Albans, D.

Elles, B.

Sanderson of Bowden, L.

Elton, L.

Selkirk, L.

Ferrers, E.

Sharples, B.

Fraser of Carmyllie, L.

Skelmersdale, L.

Fraser of Kilmorack, L.

Stockton, E.

Gainford, L.

Strange, B.

Gardner of Parkes, B.

Strathclyde, L.

Glenarthur, L.

Strathmore and Kinghorne, E.

Gray of Contin, L.

Hailsham of Saint Marylebone, L.

Torrington, V.

Trumpington, B.

Hanson, L.

Ullswater, V.

Henley, L.

Vaux of Harrowden, L.

Hertford M.

Whitelaw, V.

Hesketh, L.

Yarborough, E.

Hives, L.

Young, B.

Holderness, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.15 p.m.
Baroness David Baroness David moved Amendment No. 14:
Page 5, line 40, at end insert:
(" (1A) The Secretary of State shall in making any provision in respect of the disbursement to institutions of funds to be made available as Access Funds issue guidelines to the Universities Funding Council and the Polytechnics and Colleges Funding Council on the criteria by which such funds are to be dispersed to these institutions, after consultation with such bodies as appear to him to be concerned.
1018
(1B) The institutions referred to in sub-paragraph (1A) above shall publish information on how they distribute these Access Funds to their students.").
The noble Baroness said: My Lords, the purpose of this amendment is to attempt to ensure that the allocation of funds by the individual education institutions has regard to fairness, financial hardship and individual need, and that the criteria used to enable this to take place are established in consultation with the appropriate bodies. The individual education institution will make public the methods it has used to distribute the funds.
On 26th March, the Secretary of State for Education announced a further £ 10 million for the access funds. This I understand will give the undergraduate sector £ 14 million, the postgraduate sector £ 6 million and the further education sector £ 5 million. Despite increases, these amounts are unfortunately still wholly inadequate to compensate for losses incurred as a result of the Government's proposed student financial support scheme.
In the White Paper the section on access funds includes the following:
"The Government hopes that the institutions will themselves work out imaginative arrangements for enhancing the value and scope of the funds, for example, by linking payments to sponsorship, helping students find paid employment, or making some payments on a repayable basis, as well as making grants."
In a letter to the chairman of the UFC on 23rd November, Mr. MacGregor said:
"The degree to which the funds assist access for undergraduates will depend on the skill with which institutions not only use the funds available but also develop imaginative ways of enhancing the value of them".
Quite how they will do that I do not know. Mr. Jackson, in Committee in January, quoted this statement from the White Paper as being desirable. It seems unlikely that if the payments were linked to sponsorship or were made in the form of loans, as the White Paper suggests, they could also be made on the basis of financial hardship and individual need.
I trust that in reply the Minister will tell us whether the White Paper statement and its corroboration by Mr. Jackson on 25th January still represent government thinking. On 19th March the noble Earl, Lord Caithness, stated (at col. 142 of Hansard), "The noble Baroness"— that is me—
"referred to access loans. They are not loans, they are payments".
I had made a slip-up because I certainly meant to say "funds". However perhaps I was not so wrong if the White Paper is to be followed.
Anyway, we hope that this line of thinking— the loan idea— will not inform the Secretary of State's guidelines on the criteria for the dispersal of the funds. Instead, attention should be paid to the issues of fairness, hardship and individual need. To establish the criteria that will address these issues properly, the consultation process mentioned in the amendment
"with such bodies as appear to him to be concerned"
will be absolutely essential. Consultation has been an issue of concern throughout the passage of the loans Bill. It is particularly important here to establish the specific criteria that will be used to

1019
allocate funds. The Minister accepted a previous amendment of mine on consultation, so I hope he will also feel able to accept this amendment.
A case in point which highlights the importance of consultation is that of an education institution which has made particular efforts and has been successful in increasing the proportion of students with disabilities who are taking courses, or perhaps which has a large number of four-year courses. If those institutions— there are a number of them— are allocated the same amount of funds as other institutions of comparable size, it is likely that they will be short of funds for other groups in need.
On 12th March the noble Baroness, Lady Blatch, said:
"Student parents will also be candidates for assistance from the access funds".— [Official Report. 12/3/90; col. [437.]
On 19th March the noble Earl, Lord Caithness, said:
"housing costs is one of the factors used in the distribution of access fund cash by the department". — [Official Report, 19/3/90; col. 45.]
There will of course be high regional housing costs in some areas. That has been mentioned several times during the passage of the Bill. Throughout the debates on this Bill there have been a number of claims by the Government that the access funds will be used to compensate for losses incurred by different groups such as mature students, students with dependants, students with disabilities and others. Those have all been mentioned. Hence it appears that the access funds are being used as a catch-all answer whenever the question of students losing out under the new system of student financial support is raised.
It is clear that the amounts of funds allocated are insufficient to compensate for losses suffered by all those different groups. Therefore there is a need for guidelines from the Secretary of State to establish the criteria for dispersal of the funds, and for those criteria to be worked out in consultation with the appropriate bodies. Furthermore, the use which the relevant education institutions make of the guidelines should be made public. That will help in assessing the adequacy of the access funds and give confidence and information to those students who may want help but who are not sure whether they qualify for it. This is an important matter. I beg to move.
Baroness Seear: My Lords, I wish to support the amendment. The noble Baroness, Lady David, has made most of the important points, but I wish to emphasise that it is important that the public, students as a whole and institutions should know from the centre what the broad principles for the administration of the access funds are to be. At the same time it is important that there should be adequate flexibility inside the different institutions because their needs will tend to vary considerably according to the students that they happen to have. Anyone who has been involved in this area knows that circumstances that one has not anticipated always arise. Therefore it is extremely important to have money available which one is free to use in order to meet unanticipated problems which crop
1020
up when an institution contains a variety of students with different needs and backgrounds.
I also wish to stress how important it is that the access funds should not be loans. The people who require access funds will have enough problems repaying the loans that they receive. However, graduate students will not receive any loans, so the access funds will be the only funds available to them. However, we are still hoping that the Government will not reverse the wise decision that the House made on housing subsidy. Unless that decision stands, graduate students will be in a bad position. Access funds will be the only way of assisting that particular important group of students. I hope there is no question of the access funds being provided as anything other than grants. I hope that guidance will be given so that the way in which the funds are administered is seen to be fair. That guidance should, however, include sufficient flexibility to meet the varying needs which inevitably crop up in different institutions.
Baroness Darcy (de Knayth): My Lords, I wish most warmly to support the amendment. I think it would be very useful from the point of view of students with disabilities, as the noble Baroness, Lady David, has already said. I look forward to hearing the Minister's reply.
Baroness Blatch: My Lords, there is no reference to access funds in the Bill. Therefore, for that reason, the amendment is technically defective. However, that is not the main point I wish to make. I believe the amendment is otiose for a number of reasons. My right honourable friend intends to issue guidelines on the distribution of the access funds not only to the two funding councils but also to LEA maintained and other institutions which fall outside the ambit of the funding councils. The amendment of the noble Baroness does not include the further education sector. However, I trust that is an oversight, rather than a desire to prevent the issuing of guidance relating to the further education access fund. The guidance has already been drafted and my right honourable friend intends to discuss it with the funding councils and others in the near future.
Concern has been expressed about the need to ensure that the funding councils should be asked to take account of students' accommodation costs in distributing the access funds to the institutions. I can assure the House that my right honourable friend's guidance will do precisely that.
There has also been some concern that institutions will not regard disabled students as eligible for access fund assistance because they retain entitlement to certain social security benefits. My right honourable friend will be willing to draw attention to this point in giving guidance to the administrators of the three proposed funds, if your Lordships feel this would be helpful.
As to the requirement that institutions should publish information on how they distribute the access funds to their students, the Government made it clear in the White Paper that institutions would have discretion as to the administration of the funds. We shall certainly be reviewing the operation of the access funds, as the White Paper made clear. We shall

1021
be asking the funding councils and the institutions to co-operate with us in that, by making available data on the use to which the money is put. From that the Government will expect to be able to publish data on the way the access funds are used.
But it would not be right to place a statutory obligation on the further and higher education institutions to publish individual statistics, although some may wish to do so. The operation of the scheme will be monitored, and the data will be published, centrally rather than piecemeal.
I believe that the noble Baroness, Lady Seear, said that she expected the access funds not to be loans and that they should always be grants. If institutions thought it appropriate to make a loan to a student rather than to give a grant because that student may just need time to become solvent and to overcome a crisis in his life, that would be an appropriate use of the funds and would extend their use. I envisage, however, that most payments of this kind would be in the form of grants. However, I should not like to think that the facility of a loan was necessarily excluded. However, that would be a matter for the institution concerned. The noble Baroness also referred to postgraduates. It is quite wrong to say that access funds will only be available to postgraduates. Their present grant arrangements will continue.
Baroness Seear: My Lords, I did not intend to say that in the least. However, I understand that one access fund is intended for graduates. Is that not correct?
Baroness Blatch: Yes, my Lords, That is correct. The amendment is technically defective but I also believe it is unnecessary and inappropriate. Therefore, I hope that the noble Baronesses, Lady David and Lady Seear, will feel able to withdraw it.
Baroness David: My Lords, I am disappointed with that reply. I am not at all surprised that the amendment is defective. The point about the further education sector was an oversight. However, I am glad that institutions will have discretion in this matter because they will have different needs. I am glad also that the operation will be monitored. Nevertheless, I am disappointed as regards what the noble Baroness said about loans because I thought these access funds were to be outright grants. If they are to be granted as loans, they will represent yet another burden on the students concerned.
However, it appears that there will be some guidance on this matter. One certainly hopes, for the sake of the students, that the institutions will know what kind of grants are to be given from the funds. That is an important point because otherwise students will not know whether to apply for funds and what to apply for. I shall certainly not press the amendment at this stage, but we shall watch very carefully to see what happens. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 15 not moved.]
6.30 p.m.
The Earl of Caithness: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.— {The Earl of Caithness.)
Lord Peston: My Lords, our deliberations are nearly at an end. I cannot pretend that I am at all happy with the Bill although noble Lords can claim to have removed or moderated some of its faults. In that connection I have heard that the Government propose to guillotine the debate on your Lordships' amendments in another place. I never criticise the other place but I do not see how noble Lords can with confidence do their job of scrutiny if it does not examine our amendments fully and seriously, albeit eventually to reject them.
The Government were surely right to call into question the existing system of student maintenance. In considering reform a relevant consideration is how the graduate repays and may further repay to the community some of the benefits which he or she has received from higher education. Unfortunately, the response to those problems represented by the Bill is a botched one.
Perhaps I may repeat some remarks that I made at this stage of the Education Reform Bill in 1988. There ought to have been a greater meeting of minds than there has been. There were arguments that the Government could and should have accepted. A good example is Amendment No. 10 on consultation moved today by the noble Baroness, Lady Seear. The Government defeated that amendment but in my view they should have accepted it. Another example is the amendment, narrowly defeated, moved by the noble Lord, Lord Beloff.
It has been apparent from the moment the Bill was introduced in your Lordships' House that the Government have been living from hand to mouth. They have found new difficulties almost every day and cobbled together new solutions as best they might. I hope that I may be forgiven for yet again harping on the obvious example, the amendment to the Consumer Credit Act. There have been others.
More importantly, the Government have not yet proved to anyone's satisfaction that they have a workable scheme. We are grateful to the noble Earl, Lord Caithness, for telling us, bit by bit, how the scheme might work. However, it is by no means clear that it will work or that there are any back-up procedures to deal with the many things that can go wrong.
Noble Lords must bear in mind that it is only from next week that consultations will begin with the universities and colleges on their part in the administration of the scheme. Without denigrating academic administrators, who anyway have other thankless tasks to perform, it is hard to believe that they can take on the issue of certificates and the allocation of the access funds in time for the new academic year. I hope that I do not have to remind Ministers that the new academic year starts in September. Happily, maintenance grants will continue to be paid by the local authorities in their usual efficient way.

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As for recovery of the loans on default and related matters, the position is even more vague and unconvincing. However, happily we may have a change of government before long which will avoid at least those traumas.
Much of the trouble arises from the nature of the Bill, which is in the form of powers to make regulations. Here the Government have moved. We are thankful that there will be significant use of the affirmative resolution procedure. We are also pleased by the Government's acceptance of the amendment of my noble friend Lady David on consultation and some of the amendments concerning the disabled. We are also grateful for our own amendments relating to data protection.
Having said all that, among those Peers who have participated in our debates the majority opinion must surely be that the Government would be best advised to think further, to modify their plans and not to proceed before the academic year 1991–92.
I must now change the subject. I have the pleasant duty of thanking all those colleagues in all parts of your Lordships' House who have taken part in our debates. We have heard well-considered contributions from the Cross-Benchers, who have made clear many of the worries of the universities. They have been extremely helpful in dealing with problems that arise for the disabled.
We have heard from the Social Democrats, at least from the noble Lord, Lord Kilmarnock, who has valiantly soldiered on, largely on his own on his Benches. The Liberal Democrat Front Bench has done its usual good job. I do not usually care to make invidious comparisons but I must in particular congratulate the noble Lord, Lord Addington. He is nearer the student stage than many of us. That is to his advantage. I hope that he can be persuaded to continue to participate in our debates on education and related themes.
On the government side the noble Earl, Lord Caithness, continues to impress. I must especially single out the noble Baroness, Lady Blatch, whose first Bill this is. At the risk of ruining her career, I can only say that in my opinion she has made an excellent start. I should also like to refer to two Tory Back-Benchers. The noble Lord, Lord Beloff, dislikes the Bill. He has shown great courage in opposing it. If I ever find myself in a similar position, which I hope I do not, I should hope to be equally courageous. Equally, although she is not presently in her seat, the noble Baroness, Lady Young, has given the Government critical but constructive support. In analogous circumstances I should hope to emulate her.
On behalf of the official Opposition I should like to thank all those organisations which have sent us briefing material. They are too many to name in their entirety. However, I must mention the National Union of Students, which has, I understand, assisted Peers of all political persuasions and none. It has correctly reflected the attitude of the overwhelming majority of students in opposing the Bill. In addition, the material it has sent us, which covers a wide range of topics, has been of the highest professional quality.
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It reflects very well on the National Union of Students as a serious body representing students.
As for my two colleagues, my noble friends Lady David and Lady Blackstone, I risk embarrassing them by saying that noble Lords on all sides of the House have remarked on the excellence of their contributions. It is not so much that they have helped me to do my job better but rather, as they have not hesitated to point out when I have loaded them with amendments, that they have been doing my job for me. For that I thank them.
I conclude by thanking all noble Lords for making these difficult and trying days a good deal more interesting and enjoyable than they otherwise might have been.
Lord Addington: My Lords, I should like to thank all those who have taken part in the debates on the Bill. I believe that we have helped to make it a more workable piece of legislation. Having said that, I must say that I am still totally opposed to the principle behind it. I believe that the idea of students paying in some way for their education in the form of a direct payment rather than through the tax burden which is placed on them is not an unreasonable one. However, this is not the way to go about it. However, it is the system that we are stuck with. I hope that we have made improvements to the scheme.
I should like to thank the noble Earl and the noble Baroness opposite who have handled the Bill with their usual courtesy and at times with a quite uncomfortable degree of skill. I hope that this will not be the last time that we cross foils and that the next time we score a few more points.
I thank those other noble Lords on all sides of the House who have joined in the debates. The noble Lord, Lord Beloff, has already been mentioned. He is a notable example of somebody who follows his convictions without being swayed by his colleagues.
Those groups which have helped us— the Committee of Vice-Chancellors and Principals, the AMA and particularly the National Union of Students— have all been extremely helpful. I should like to say to the NUS that, having seen its work here, I am sorry that I did not take an active role in it when I was at university, but it would have been difficult to fit that in with the academic work and about 15 rugby matches a week
I hope that when the Bill becomes law— if indeed it does— it will have a far better future than I perceive it will, but I doubt that. I should welcome any more workable system if it were to be placed on the statute book.
Lord Beloff: My Lords, with the British genius for understatement, the noble Lord, Lord Peston, remarked that I dislike this Bill. I am afraid that my dislike of it has at times been apparent and may even have caused some irritation among my noble friends. On the other hand, I do not wish to pursue, and it would be wrong to pursue at this stage, the reasons for the objections that have been voiced. I should rather repeat what I said on Second Reading; namely, that my worry was largely that the Bill would contribute to the alienation that has taken place

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between the Government and the academic community. It is perhaps evident from the notable contributions that have been made from all sides of the House by persons whose roots are in the academic community that that disquiet has not been allayed, but has rather been increased by the passage of the Bill through the House.
On the other hand, since the Second Reading debate, noble Lords have both elicited through their diligent attendance a great deal of information which will be of value to the academic institutions and have improved the Bill in some notable respects. Where those improvements have been made particularly in relation to the question of the affirmative resolution— they have been the acceptance by Ministers of the arguments put forward in earlier stages of the Bill— one can only accept them with gratitude. I can well imagine that the task of the noble Earl in steering a course between the wishes of the House and the instructions he might receive from other quarters has not been an easy one. I do not think that he will look back with great pleasure on his inevitable and compulsory immersion in the murky deep of Academe.
However, some amendments have been carried by the House and my plea to Her Majesty's Government is: do not use the other place to reverse them. The House has criticised the Bill, irrespective of party, on professional lines, from every quarter. There is no point in having a second Chamber composed largely of experts on particular topics and then brushing aside the amendments that they have persuaded their colleagues to make. If the Government were not merely to guillotine discussion but to whip the other place against the amendments which this House has passed, the alienation of the university community would be greater than ever. It could say that it had spent a great deal of time and trouble, as the noble Lord, Lord Peston, said, in briefing the noble Lords on the issues involved and had managed to persuade colleagues less directly involved than themselves in academic affairs. All of us in the universities owe particular gratitude to my noble friend Lord Boyd-Carpenter for his interventions. Members of the university community have done all that and might reasonably expect that the Government would accept amendments which do not in any way invalidate the latter's purpose in putting forward the Bill and which do not impugn the Bill's principles. They would then say that the Government were indifferent to their concerns.
I ask my noble friend the Leader of the House, who sins in Cabinet, to convey to his colleagues that this is an opportunity to bring about at least an element of reconciliation and that it would be a pity to throw it away in order simply to show that in the last resort the Executive, with a majority in the other place, can always get its way, whatever the criticism. This is a serious appeal from a convinced supporter of Her Majesty's Government to Members on the Front Bench in this House and I hope that they will heed it.
6.45 p.m.
Baroness Seear: My Lords, I should like to say briefly that I know my noble friend Lord Russell
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very much wishes that he could be here for the speeches on the Motion, That the Bill do now pass. He mentioned on Monday— it seems a long time ago— that he would be in the United States by this time, so he is not here to make the contribution that he would have very much liked to make. I know that he would have liked to pay tribute to the many people all around the House who have joined in debates on the Bill. It has been one of the pleasures, if one can describe so unsatisfactory a Bill as providing pleasure, that there has been so much cross-party and cross-Bench collaboration— for instance, between these Benches and the noble Lord, Lord Peston— though that is in no way to be taken as a precedent. However, on a Bill such as this, one is prepared to collaborate with absolutely anyone who will play.
I still regard this as a totally deplorable Bill. It is a great mistake that the advice of the vice-chancellors was not taken as to the way in which the necessary extra money— we all recognise that it is needed for the universities— should be raised, but that is water under the bridge. We are grateful— I know that my noble friend Lord Russell would have said this— to the noble Earl, Lord Caithness, for his patience and the good tempered way in which he has conducted proceedings on the Bill. He stands up to us admirably and without losing his temper. It might help if he also stood up to some of the people behind him who prepare his briefs and give him his instructions, but we understand full well the position of government Front Bench speakers in that regard.
I should like to echo the noble Lord, Lord Beloff, with regard to the great importance of trying to heal the breach with the universities and other institutions of higher education. They are the powerhouses from which the strength of this country must be drawn and the damage that has been done between the Government and the institutions of higher education goes very deep indeed.
Perhaps I may just put in one last plug; namely, that the Government should think seriously about what they are doing to the graduate students. There is a great danger that, because of the increased numbers, the teaching at undergraduate level cannot be as thorough and deep as it has been in the past, and that reliance for the development of the ablest people in this country will have to be placed on fourth-year students. I therefore beg the Government, when they consider the amendments which have gone through the House and those which have been put forward but have not been accepted, to bear seriously in mind the needs of graduate students if the quality of work coming from the universities is to be maintained. However, that is perhaps a Second Reading point rather than a point to be made on the Motion, That the Bill do now pass. Sadly, the Bill will now pass. We have done the best we can for it. It is a little better than it was, but that is not saying much.
Viscount Eccles: My Lords, I should like to begin by echoing what the noble Baroness, Lady Seear, said about my noble friend Lord Caithness. He has managed a difficult situation extremely well. I have taken a good many education Bills— I do not

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remember the exact number— through another place. If one is the Minister, one is at least supposed to understand something about education. It is a difficult subject because the experts on both sides of the Chamber are all certain that they know what is right. I do not know of any subject with which one has to deal in government on which there is such obstinacy among the experts. When I was in the ministry I had great trouble. I am sure that anyone dealing with an education Bill will know that I am right.
I find this Bill a disappointment. It is obvious that the future of our people depends on the breadth and quality of the education that we offer to all citizens all through their lives. This Bill does a little— a very little— to extend the entry to higher education. In my judgment it has been a lost opportunity.
To my recollection all students overspent their allowances, irrespective of how big those allowances were. I do not think that young people have changed very much. I expect that all students today overspend their maintenance allowances. Therefore the offer of a top-up loan will be very welcome. But in higher education the maintenance money is not a factor of importance in furthering the expansion of higher education. The real deterrent to higher education lies in the schools. Every year thousands of boys and girls have never been brought to the point of preparation where they could make it to a university or college. I have in mind especially children from poor homes where poverty and other disadvantages are handicaps which can only be overcome by good teaching in schools.
We make an error in spending our time on what is, as regards the future, the less important part of higher education. There are several areas of great weakness. One was identified by the noble Baronesses, Lady David and Lady Blackstone. In my view, they rightly showed us that money spent on part-time students is money well spent. The Bill does not cover that area. I think it is a great pity. We have to be content with the assurance from my noble friend on the Front Bench that the Secretary of State will take a further look at the importance of part-time students.
It is high time that we pressed upon the Secretary of State and all his colleagues the fact that they must provide very much more in the way of resources for education at all stages, and in particular for the 16 to 19 year-olds, among whom the recruitment takes place for universities and colleges. Unless they do that, we shall find that our economy will decline and there will not be the resources to maintain progress in the other social services. Therefore, if there were to be a vote, I should vote for this Bill half-heartedly.
Lord Kilmarnock: My Lords, I want to begin with the nice things— to thank the noble Earl and the noble Baroness, Lady Blatch, for their unfailing courtesy and for the extent to which they have tried to help in some of our concerns. But they have been operating under considerable constraints, as has already been pointed out.
What is interesting is that when the Government introduced the Bill in this House they started with
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a considerable advantage— namely, the general acceptance around the House that there should be a contribution from graduates to the costs of higher education. There was not a consensus on that issue two or three years ago. It is a considerable achievement of the Government that they have managed to gain acceptance for that point and that they have gained it from the Labour Party as well. During the course of the Bill through this House they dissipated the advantage from which they started.
There are only three points which stick in my mind and continue to cause me considerable worry— as much worry at the end of the Bill as they did at the beginning. First, I do not understand from where the easier access and increased participation are to come. As I pointed out at an earlier stage in the Bill the Government have made projections well into the next century in which they seem to have frozen the loan eligible student body at 427, 000. If that is to include some who are not eligible for grants, as the noble Baroness, Lady Blatch, told us, that could lead certainly to no increase and possibly to a flattening out in the student population. Possibly a few mature students may creep in under the Bill, but part-timers, as the noble Viscount, Lord Eccles, pointed out, are completely excluded. We have done abolutely nothing for them and they will be a very important element in the increase in higher education numbers that we all seek. I hope that the Government will come back to that point or at any rate keep a constant eye on it.
There was one new clause which I was amazed— and I remain amazed— that the Government did not accept: the new clause moved by the noble Baroness, Lady David, for an annual report to Parliament on the results of monitoring the scheme. We were told that monitoring would take place anyway and the facts would be available. There would have been no additional cost or additional demand on civil servants' time. It would have been so much better if the Government were simply to put on the table on an annual basis the results of the scheme. It is very regrettable that they did not accept that.
The noble Lord, Lord Peston, said that we should be making significant use of the affirmative procedure. That is a gain that we have made during the course of the Bill through your Lordships' House. But that will be of no use to us at all unless the Government listen. So my final hope is that they will bring an unbiased and objective eye to bear on the operation of this scheme and its effect on the various student groups. If it is not seen to be operating as the Government had hoped, I hope that they will be genuinely prepared to admit that they were wrong and look at the whole scheme again. Pending that, I am most grateful to the Front Bench opposite for the courtesy with which they have treated noble Lords during the course of this Bill.
7 p.m.
Lord Boyd-Carpenter: My Lords, the one point on which all noble Lords who have taken part have wholly agreed during the discussions of the Bill has been their admiration for the noble Earl the Paymaster General. He has handled the Bill with

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enormous skill, patience and stamina. I say that as one who from time to time may have given him a little minor trouble.
It is difficult work to conduct a good Bill through this House; but it much harder work to conduct a bad one. I hope that my noble friend Lord Renton will not disagree with my statement that the really great advocate is the man who can make a good argument out of a thoroughly bad case. In that sense too the noble Earl is a remarkably able advocate.
For me the Bill has been a sad experience because it is the first Bill in 11 years from what I regard as the best Government that this country has had for many years that I found myself from time to time quite unable to support. It seems to go against the philosophy of the party to which I belong by its emphasis on borrowing. It is virtually compelling a whole generation of our future leaders to resort to borrowing not, shall we say, for the purpose of a mortgage in order to acquire a house but simply for day-to-day maintenance. It will do much harm long after students have graduated and long after they have repaid or tried to repay the loan. The habit of thinking it right to borrow for their day-to-day maintenance will do an infinity of harm. Moreover, it is very contrary indeed to the whole spirit and approach of the Conservative Party. It is also, incidentally, quite contrary to what my right honourable friend the Chancellor of the Exchequer said in the Budget speech, when he made it clear that there was much too much borrowing in this country today and he would like to see it reduced. But here we have a Bill which is extending borrowing on a very considerable scale and I find it enormously regrettable.
The other point that has struck me forcibly— and I do not want to detain your Lordships long— has been the almost inexplicable hurry in which the Government have involved themselves in taking the Bill through. They have sat late night after night. Incidentally, I was rebuked by the noble Baroness, Lady Young, who I see is not in her place, for not having been in my place during one of those late night debates. But perhaps I can say that she is one of those people who operate best at night. For my part, I did not feel any obligation to inconvenience myself unduly for the sake of a Bill which I found myself quite unable to support and which I am extremely sorry that this excellent Government should bring forward.
What makes the hurry even more inexplicable— and this argument should appeal to a Treasury Minister on the Front Bench— is that this measure will result in no saving to public funds until well into the next century. Therefore to hurry in this way, to, in many ways, abort the legislative process on an important Bill, in order to get the Bill in operation by the autumn is the more inexplicable. There will be no saving until 2004 or 2005, and therefore there would have been no great difficulty in taking the Bill at the sort of pace at which it would have been easier and more appropriate to debate its immensely important clauses.
I so agreed with what my noble friend Lord Eccles said; and he speaks, as your Lordships know, with very great authority as a most successful former
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Minister for Education. There were opportunities for amendment which could have widened the Bill so as to do some of the very important things which need doing in our education system. All this has been prejudiced and lost by the haste with which it has been pushed through. I leave aside the inconvenience to your Lordships. But I suggest that this is just the kind of Bill in which the revising responsibilities of this House could have been most usefully deployed.
Apart from my noble friend, we number among our Members a number of vice-chancellors and former vice-chancellors and other people with immense experience in education. If we had had a more leisurely pace of discussion, we could undoubtedly have taken advantage of their knowledge and wisdom to improve the Bill very considerably. As it is, it goes from this House with one or two amendments which are undoubtedly improvements and it goes after very rushed discussion.
I can only conclude by saying that I profoundly hope that I am wrong in anticipating the harm that it will do socially; that I hope that I am wrong in referring to the missed opportunities; and that in any event I hope the Government will take the advice which my noble friend gave them to make every effort now to restore their relations with the universities.
There really is no doubt from the declarations of vice-chancellors and senior academics and from the views of students, undergraduates, student unions and the rest that this measure is intensely unpopular, and has made the Government intensely unpopular in the universities. To make this Government in their 11th year unpopular with the future leaders of this country is a very serious thing to have done. It could if not remedied be extremely damaging for the country in the future.
I hope that when my noble friend comes to reply he will indicate that not only he, but still more his right honourable friend the Secretary of State for Education, will make every effort in their power to mend their fences with the universities, to try to show some understanding of their feelings and of their apprehensions about this measure, to smooth its path as far as is possible and to get back to the good relations that there used to be.
I speak on that with some experience. When I was Chief Secretary to the Treasury in 1962 I was also Minister for the universities and we had a good and friendly relationship. The university heads would ring me up and I would ring them up and, though they never got as much money out of me as they would have liked, our relations were good and easy and we understood each other. That was a long time ago and there have been many periods since, I am sure, when relations have been good. They are not good today and it is up to Her Majesty's Government now to try to restore the position in the interests of the universities, of the future of this country and of the future of the Government.
Lord Adrian: My Lords, I am not sure that anyone on these Benches can speak on behalf of the Cross-Bench Peers but I should like, if I may, to take

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that risk and say that I am sure that they too are very grateful indeed to all those who have taken part in this debate and to add my thanks especially to the noble Earl the Paymaster General and the noble Baroness, Lady Blatch
Like most of us here I have grave reservations about the Bill even as it now stands. I have even more reservations about the Bill as I fear it may return to us from another place, and I very much want to echo what the noble Lord, Lord Beloff, has said about the amendments on housing benefits. It is an enormously important change that we have made in the Bill. It may not be very acceptable to the Government, but I have to say that it makes the Bill a great deal more acceptable to universities.
As the noble Lords, Lord Beloff and Lord Boyd-Carpenter, have said, to reverse those amendments by whatever procedure, but particularly by the guillotine procedure, will do incalculable damage to the relationships between universities and this Government. Speaking as one who is involved in universities and who, indeed, is not wholly unsympathetic to much of what the Government have done over the last 10 years, I would be enormously sorry to see that relationship made worse than it already has been made. I hope that the Bill can be left in that respect as it stands now as it is about to leave your Lordships' House.
The Earl of Caithness: My Lords, it is worth recalling that before we brought forward this Bill to your Lordships there was an enormous amount of discussion and consultation carried out, so much so that experience was sought from other countries around the world that were either doing a loans scheme, a grants scheme, a mixture of the two or some other form of finance to education. In that latter category there is only Australia, with a very new, novel and untested scheme. That led in due course to the White Paper which was followed by yet further consultation.
At the end of that we have produced a scheme which has been more carefully thought out and considered than any other alternative. Indeed it has been proven to be a better alternative than other suggestions. The Bill provides the legislative framework for the loans scheme to be put into operation and for the scheme to be improved and developed in the light of monitoring— a point which is of so much concern to your Lordships. The scheme is intended to increase participation in higher education, a fundamental point on which we are all agreed. I say to my noble friend Lord Eccles that we will encourage greater demand by increasing the resources available to students. We want to see that encouragement. That is why the grant plus the loan will be 25 per cent. higher than the grant alone this year. We will also remove the constraint on expansion by tapping a new source of funds— the anticipation of a student's future earnings as a graduate— thereby reducing the burden on parents from 1991–92 and on the taxpayer in particular in future years.
It is also worth reminding ourselves of the number of concessions the Government have made during
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the long hours of discussion on the Bill to meet concerns both in this House and in another place. What has been done is an enormous tribute to my honourable friend the Parliamentary Under-Secretary and, in particular, to my right honourable friend the Secretary of State. As those who have been involved will know, my right honourable friend has made considerable efforts to make the right communications with the higher education establishment. The noble Lords, Lord Flowers and Lord Adrian, will know this particularly well. My noble friend Lady Blatch and I said on more than one occasion that my right houourable friend's door was open, but of course consultation is a two-way process.
So what were the concessions made? There was the affirmative resolution procedure for first regulations under Clause 1 (2) (b) and paragraphs 1 and 2 of Schedule 2 and the orders under Clause 1 (4) amending Schedule 1. Those were of particular concern to my noble friend Lady Young, who played a valiant role in taking the Bill through the House, and to the noble and learned Lord, Lord Simon of Glaisdale. We met the concerns of the noble Baroness, Lady David, on consultation before amending Schedule 1. The concerns of the noble Baroness, Lady Blackstone, were met today when we limited the maximum of the loan to the value of the maximum grant with no departure from parity without use of the affirmative resolution procedure.
We put together a substantial package for the disabled in increasing the disabled students' allowance and disregard of disability related benefits when assessing income for deferment. The House has come to expect the expertise with which the disabled students' case was put forward by the noble Lord, Lord Henderson of Brompton, and the noble Baroness, Lady Darcy (de Knayth). The whole House benefited from the great wisdom and experience brought to our debates by the noble Lords, Lord Flowers and Lord Adrian. We were able to meet their concerns too by defining and limiting the role of the academic institutions.
Many noble Lords were concerned about the access funds. There was an increase in public expenditure with a doubling of the access funds. The noble Lord, Lord Addington, has been right to the fore in wishing to put forward the case of those on four-year courses and longer. We have not been able to agree on four-year courses although the position will be monitored. We have been able to meet the concern of the noble Lord and of my noble friends Lord Colwyn and Lord Haig with the extension of repayment terms for those who have been on longer courses. I agree with the noble Lord, Lord Peston, that the noble Lord, Lord Addington, has played an immense role. He has had the benefit not only of being at university more recently than other noble Lords but also of going to a Scottish university.
The noble Earl, Lord Russell, whom we much missed today— we hope he is having a nice time in America— was able to convince the Government that constraints on disclosure of information by the Student Loans Company was a necessary matter to incorporate into the Bill, and that we have done.

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We have made a mass of concessions to meet the concerns expressed by the House. To me it has been a most interesting discussion. I refer particularly to the discussion with the higher education establishment. It is something which I could not claim to have been in at Cirencester but I gather that it has now more of a university status since I left. Perhaps that is an omen. What has most impressed me has been the magnificent role played by the noble Lord, Lord Peston. He has been the thorn between the two blushing roses on the Opposition Bench. He has never ceased trying to put forward his points of view, with many of which I have been able to agree and make the necessary amendments.
The noble Baroness, Lady Seear, has been tireless in putting forward her points with very good effect. The noble Lord, Lord Kilmarnock, has fought a long and lonely battle from his Bench but with success on occasions too. I should like to thank all noble Lords for their contributions. Whether the Bill will go down in the battle honours of All Souls College is a matter on which I do not think I am the right person to comment. I thank my noble friend Lady Elles for her support. I pay a special tribute to my noble friend Lady Blatch. On her first Bill she has done better than anyone could have done in her position. She has done an enormous amount of work and has been a great help to me.
I should like to say, because I feel strongly, that I was disappointed that a number of commitments, concessions and undertakings— in fact more on this Bill than any other— which I gave in very good faith on behalf of the Government were rejected by your Lordships. We pressed the noble Lord, Lord Peston, very hard to reveal the plans of the Labour Party and to give us an insight into its policies, but, alas, the agency seems to have got the better of him. However, we saw just a glimpse of the noble Lord's general policies in his party's attitude to public expenditure and taxpayers' money. We were a little concerned on this side of the House— and I was especially concerned wearing my Treasury hat— that the taxpayers' money was there to be liberally doled out at whim.
I am extremely grateful to all noble Lords. I have had the enormous advantage of having an excellent team, supporting me from behind. I would say to some of my noble friends who have said that I have had a bad brief that, on the contary, I have had an excellent brief. It is an excellent Bill. I commend it to the House.
On Question, Bill passed, and returned to the Commons with amendments.

Business
7.17 p.m.
Lord Denham: My Lords, further to my business statement earlier today, it may be for the convenience of the House, in view of the progress on today's business, if I announce that it has been agreed through the usual channels that, with the leave of the House, we should proceed immediately with the orders which were due to be taken during
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the dinner break and then go straight on to resume the Committee stage of the Law Reform (Miscellaneous Provisions) (Scotland) Bill, with the proviso that we will not start that Bill before 7.30 p.m.

Law Reform (Miscellaneous Provisions) (Scotland) Bill
Lord Denham: My Lords, unless any noble Lord objects, I beg to move that the resumed Committee stage of the Law Reform (Miscellaneous Provisions) (Scotland) Bill be postponed until after the orders to be moved by my noble friends Lord Henley, Lord Hesketh and Lord Strathmore and Kinghorne.
Moved accordingly, and, on Question, Motion agreed to.

Community Charge Benefits (General) Amendment Regulations 1990
7.19 p.m.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley) rose to move, That the draft regulations laid before the House on 13th March be approved [13th Report from the Joint Committee].
The noble Lord said: My Lords, by leave, I also intend to speak to the Community Charge Benefits (General) Amendment No. 2 Regulations which were laid before Parliament on 22nd March 1990.
The House discussed the Community Charge Benefits Regulations 1989 last July and we do not need to discuss these amending regulations in the same depth tonight. I do not think the House would welcome at this hour a line by line explanation of each of their provisions since many of the changes are technical.
However, the regulations make a number of important changes which affect a number of groups of people. They provide for an increased disregard of £ 10 per week for war pensions and war disablement pensions, which was announced last July. They also provide that the special payments of £ 40 a week to war widows whose husbands served before 1973, which were announced before Christmas, shall be disregarded totally when assessing claims for community charge benefit. In relation to community charge benefit, they provide for the complete disregard of all payments from the MacFarlane (Special Payments) Trust to Haemophiliacs who are suffering from an HIV infection. They provide for a doubling to £ 10 per week of the disregard of regular charitable and voluntary payments which was announced in January.
I should also tell the House that the regulations provide certain consequential changes to community charge benefit arising from the community charge transitional relief schemes which will come into effect in April. These schemes reduce the community charge bills of people who will be affected adversely by the changeover from rates. The regulations provide that benefit entitlement is assessed on the

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basis of the community charge net of any transitional relief.
I now turn to the second set of regulations which bring into effect the increased upper capital limit which was announced by my right honourable friend the Chancellor as part of the package of measures to assist savers. For income support and family credit the new capital limit will be £ 8, 000. For community charge benefit and housing benefit the upper capital limit will be doubled from £ 8, 000 to £ 16, 000. These regulations cover that increase for community charge benefit.
The change has been widely welcomed in Parliament and in the country. It will be fairer to savers with low incomes. The new limits recognise the conscientious efforts of people on low incomes who have built up savings for their retirement. The change will benefit 195, 000 individual charge payers of which 150, 000 will be pensioners. The increased cost as regards community charge benefit will be £ 35 million out of a total cost of £ 120 million for all income-related benefits.
The new limits will work in the following way. All capital up to £ 3, 000 will be ignored completely. People, whether individuals or couples, whose capital is greater than £ 16, 000 will not be entitled to community charge benefit. The actual income received by the person in respect of this capital is ignored when assessing community charge benefit. However, for every £ 250 worth of capital above £ 3, 000 an income of £ 1 a week is assumed and taken into account in calculating benefit entitlement. The maximum tariff income that can be assumed will be £ 52 a week; that is when one is just under the new higher capital limit.
These regulations introduce important changes to the community charge benefit scheme and I commend them to the House.
Moved, That the draft regulations laid before the House on 13th March be approved [13th Report from the Joint Committee] .— (Lord Henley.)
Baroness Turner of Camden: My Lords, I thank the Minister for his explanation of the regulations. However, he will not be surprised to learn that there is little connected with this monstrous system of taxation that can be welcomed by this side of the House. Yesterday we had a debate in which some of the legitimate criticisms were voiced from all sides. I do not wish to cover that ground again today. Although the Government have been compelled by public agitation and concern to make the concessions in the regulations they do not appear to benefit as many people as was indicated.
As the Minister said, there are provisions under which savings above £ 3, 000 are counted as income. He has explained that every £ 250 of savings over £ 3, 000 counts as £ 1 of income and that is used to reduce the amount of benefit that people will receive. I understand that savings of £ 10, 000 will count as being equal to a weekly income of £ 28 and will be added to whatever other income people receive. As a result, many will receive only limited help and will lose eligibility completely before they reach the new
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£16,000 figure. Therefore, it is not as great a concession as it at first appears.
Moreover, millions of people will be much worse off when paying the community charge than they would have been had the present rating system continued. I wish to quote a typical example. In addition to his state pension a pensioner has a small occupational pension. At the time of retirement he or she has commuted part of that pension, as is possible under most occupational schemes, and has received a small lump sum which has been put aside. That may well be more than £ 16, 000 which he or she has saved for a time when it may be needed; for example, one of the partners may become ill and require residential care. As we all know, that can be expensive and I welcome the report in today's newspapers indicating that the Government intend to do something about that. However, that is another debate. It is probable that the other partner in such a couple will not be in receipt of anything other than a state pension. They are people in modest circumstances; the lower middle-class, thrifty people who often vote for the government opposite. Their modest home will probably not have a high rateable value. Under the community charge provisions, as a result of the Government's doctrine of joint and several liability, both partners must each pay a flat rate charge irrespective of the fact that only one has any real income. The head of the household will be responsible for the payment of both partners.
I mention that with feeling because it is happening in my area. I am personally affected, although millions of people will be worse affected. The community charge in my area— that is Camden— has been assessed at £ 534 a head, whereas rates on my relatively modest flat were only £ 700. The only way in which one could be better off under those circumstances would be if one lived alone. I wonder whether the Government are out to encourage divorce and single occupancy.
Nor is it possible to blame the local council; it did not invent the notion of joint and several liability— the Government did. Even with my supposedly high spending council, an increase in rates from £ 700 to almost £ 1, 100 in one step was unlikely to take place. Nor is the charge likely to remain even at that figure. The Government have placed extra responsibilities on councils for care in the community and education and they must be paid for. Therefore, we can expect no amelioration. Moreover, we are paying more in our area— an extra £ 75 into the Government's safety net— in order to subsidise other councils such as Wandsworth where the poll tax bills are being reduced.
The community charge remains a most unfair system of taxation. The Government need not delude themselves by thinking that people are blaming the so-called high spending councils for the charges; clearly they understand that they are due to the system now being introduced for which the Government are responsible. There may be some gainers under the new system but in the main they are the better-off— those living in property with a high rateable value rather than those living in a low rateable value property who, if it is occupied by more than one person, must inevitably pay more.

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I prophesy that the Government will have to come back with more concessions, creating even greater confusion, as the full meaning of the community charge becomes apparent. I have not heard a single complaint about the local council in my area, even though it has a reputation for being high spending. Indeed, it is now viewed with more sympathy because it must cope with even more under constantly escalating Government pressure, although it does not have the resources to do so. The charges for those services are being shifted from the better off to those in more modest circumstances.
Of course I welcome any concessions but the system is wrong and unfair. Such modest concessions as we have had appear to benefit the very poor— if you are homeless you will not have to pay at all— but ordinary people in modest circumstances are being hit hard both by the community charge and by the level of interest rates. I prophesy that there must be more concessions.
Before I began to look at various papers in connection with these regulations I received material from the Disability Alliance pointing out that, although severely mentally handicapped people are exempt, those suffering from severe physical handicap are not. Clearly that is unfair and it is one of the issues which must be re-examined. We are heading towards a period when there will be even more concessions as various interest groups begin to press their cases. The whole scheme is ill-judged and misconceived. I prophesy that it will lead to great trouble for the Government. We do not oppose the regulations because they give limited relief to certain groups, but the scheme simply will not do.
Lord Henley: My Lords, like the noble Baroness, Lady Turner, I do not intend to be drawn on the general subject of the community charge. We have had ample time to discuss and debate it in this House. But having said what she did, the noble Baroness immediately proceeded to do the opposite and hardly touched on the orders. However, I am glad that she ended by giving a welcome to them.
The noble Baroness said that there would be fewer gainers than we claim. That is not the case. There are estimated to be something in the region of 25, 000 individuals, of whom 15, 000 are pensioners who will gain from the higher limit if their capital is between £ 14, 000 and £ 16,000.
The noble Baroness also mentioned the disabled. Disabled people who are receiving an incapacity benefit and the long-term sick qualify for a disability premium which is included in the applicable amount in addition to the personal allowance. Therefore, disabled people will continue to receive community charge benefit at a higher level of income than those who are not disabled and whose circumstances are otherwise the same.
In income related benefits it is normal to take all sources of income into account. However, an exception is made for particular types of income for disabled people like the attendance and mobility allowances which are disregarded totally. That disregard recognises the importance of that source of income for disabled people.
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Lastly, on the general subject of the treatment of capital in income related benefits, it has always been the case ever since 1948 that there has been some form of tariff income, first in supplementary benefit and now in income support and community charge benefit. The increase to £ 16, 000 will provide very welcome relief to a large number of people.
On Question, Motion agreed to.

Community Charge Benefits (General) Amendment No. 2 Regulations 1990
7.31 p.m.
Lord Henley: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 20th March be approved [14th Report from the Joint Committee] .— {Lord Henley.)
On Question, Motion agreed to.

Gas and Electricity Industries (Rateable Values) (Amendment) Order 1990
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, I beg to move.
This order is part of the secondary legislation under the Local Government Finance Act 1988 needed to implement the new system of business rating which takes effect from 1st April. It fixes the rateable values of parts of the electricity industry and corrects a small error in the order that deals with British Gas.
When we debated eight orders covering the majority of the industries in December, certain decisions on aspects of the structure of the electricity industry remained to be taken and issues about the valuation of other parts of the industry were still under consideration. This order ties up the loose ends.
Moved, That the draft order laid before the House on 26th March be approved [14th Report from the Joint Committee.] — {Lord Hesketh.)
On Question, Motion agreed to.

Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1990
7.34 p.m.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne rose to move, That the draft regulations laid before the House on 6th March be approved [13th Report from the Joint Committee.]
The noble Earl said: My Lords, the House will know that similar regulations increasing the corresponding eligibility limits in England and Wales are also before the House— the regulations adjusting the legal aid financial limits to take account of inflation and reflect the overall levels in changes in social security benefits. The legal aid financial eligibility limits are normally uprated annually when the Department of Social Security raises the levels of

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social security benefits. That assists administration because applicants on certain income-related benefits automatically qualify for legal aid.
Before us today are two sets of draft regulations raising the eligibility limits for civil legal aid and advice and assistance which will come into force on 9th April. The Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1990 raised the lower disposal income limit for civil legal aid— that is, the level below which no contribution from income is payable— from £ 2, 515 to £ 2, 645 per year. The increase in the upper income limit— that is, the level above which legal aid is not normally available— is from £ 6, 035 to £ 6, 350 per year. The upper capital limit above which legal aid is not normally available is increased from £ 6, 000 to £ 6, 310. There is no change in the lower limit.
The Advice and Assistance (Financial Conditions) (Scotland) Regulations 1990 raised the upper income limit from £ 128 to £ 135 per week. The capital limit above which advice and assistance is not available increases from £890 to £935. The scale of contributions for applicants with disposable incomes between the upper and lower income limits for advice and assistance is also changed by the regulations. Generally, the changes represent an increase of around 5–2 per cent. which matches the uprating level of the income-related social security benefits. The uprating of eligibility limits for legal aid does not include housing because housing costs are deducted from disposable income in the assessment of eligibility for individual cases.
Recipients of income support and other income-related benefits are permitted to have £ 3, 000 in disposable capital before any income is assumed to be generated which would affect the level of benefit paid. It seems sensible to continue to use that limit as the threshold of capital contributions for legal aid which is why the lower capital limit is unchanged.
I hope that I have sufficiently explained the purpose of the draft regulations to allow the House to appreciate their importance. Other improvements have been and are being made. We have set up a procedure for payment of legal aid for the purposes of appeal from the legal aid fund in respect of appeals against conviction and sentence which are won after refusal by the Scottish Legal Aid Board. That will take effect on 1st April this year.
I have briefly described the legal aid financial conditions regulations. I believe that those represent significant improvements. I commend the regulations to the House. I beg to move.
Moved, That the draft regulations laid before the House on 6th March be approved. [13th Report from the Joint Committee.] — (The Earl of Strathmore and Kinghorne.)
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for the trouble he has taken in his detailed explanation in view of the brief explanation on the Order Paper. When one picks up the draft instruments they tend to be rather complicated without the assistance of the parent
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legislation. I have contacted a number of people on this including my colleagues in the other place and I have no objections. I am quite happy that these orders should be approved.
The Earl of Strathmore and Kinghorne: My Lords, I thank the noble Lord for his comments.
On Question, Motion agreed to.

Advice and Assistance (Financial Conditions) (Scotland) Regulations 1990
7.37 p.m.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 6th March be approved [13th Report from the Joint Committee] .— {The Earl of Strathmore and Kinghorne.)
On Question, Motion agreed to.
Water Undertakings (Rateable Values) (Scotland) Order 1990
Caledonian MacBrayne Limited (Rateable Values) (Scotland) Order 1990
Forth Ports Authority (Rateable Values) (Scotland) Order 1990
Industrial and Freight Transport (Rateable Values) (Scotland) Order 1990
Mines and Quarries (Rateable Values) (Scotland) Order 1990
Glasgow Underground (Rateable Values) (Scotland) Order 1990
British Waterways Board (Rateable Values) (Scotland) Order 1990
Docks and Harbours (Rateable Values) (Scotland) Order 1990
Mercury Communications Ltd. (Rateable Values) (Scotland) Order 1990
British Telecommunications plc. (Rateable Values) (Scotland) Order 1990
British Railways Board (Rateable Values) (Scotland) Order 1990
British Alcan Primary and Recycling Ltd. (Rateable Values) (Scotland) Order 1990
Lochaber Power Company (Rateable Values) (Scotland) Order 1990

British Gas plc. (Rateable Values) (Scotland) Order 1990
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne rose to move, That the draft orders laid before the House on 6th March be approved [13th Report from the Joint Committee].
The noble Earl said: My Lords, these 14 orders all relate to the revaluation of non-domestic property affected from 1st April. Twelve of the orders prescribe the level of rateable value to apply to the so-called formula valued industries with effect from 1st April. The remaining two orders continue the present de-rating, albeit at a lower level, for industrial and freight transport lands and heritages, and for mines and quarries.
The 12 formula valuation orders relate to certain public utilities most of which are currently valued by formula. The orders prescribe either the rateable values or the rules to be used in determining the rateable values for those undertakings with effect from 1st April, the effective date of general revaluation of non-domestic property.
Orders relating to the valuation of the corresponding undertakings in England and Wales have already been approved by your Lordships. In drafting the orders before you today the aim has been not only to arrive at levels of assessment consistent with those that might have been made by conventional means, but also to harmonise the approach with that adopted south of the Border.
Where the necessary information exists, a method similar to the contractors' basis of valuation has been adopted. This approach, which is used by the assessors in valuing properties for which no rental evidence is available— such as oil refineries and petrochemical complexes— starts with a net cost of building or replacing a property. That cost, after appropriate allowances, is converted to an annual sum by applying the decapitalisation rate.
For the gas and telecommunications industries it has been possible to use their net current cost accounts, suitably adjusted to derive a rateable value in this way. The water undertakings' rateable values have been derived from comparison with those set for the statutory water companies in England and Wales. In the case of the canals, ports and railways industries, no current cost accounts information is available. The rateable values of those industries have been determined by reference to that percentage of turnover which represents a fair assessment, taking account of the percentages applicable to other types of industry whose values have been set on a conventional basis.
Those rateable values imply significant changes in rates bills for some industries. Where appropriate, the values have been adjusted to provide the same level of protection as has been afforded to other ratepayers. With the exception of canals and statutory docks and harbours, the orders apply only in respect of 1990–91. Revised orders will be required for subsequent years. This is largely because the levels of industrial de-rating to apply in years subsequent to 1991 have yet to be decided.
The assessments and provisions contained in these orders have been worked out as a result of extensive discussions with the industries involved, with the Convention of Scottish Local Authorities and with the Scottish Assessors' Association. They have also been the subject of public consultation. We believe that they represent fair and reasonable assessments for these industries.
Turning to the two de-rating orders, I remind your Lordships that manufacturing industry in Scotland has benefited from de-rating for many years. The purpose of this de-rating is to equalise the rate burden on this sector north and south of the Border, thus avoiding any competitive disadvantage in Scotland resulting from the different valuation in rating systems.
It is clear that, as we move towards full harmonisation with England and Wales, the need for industrial de-rating will disappear. Over the interim period it is intended that reductions in the level of de-rating do not disadvantage Scottish industry. As a first step towards a national rate in Scotland, my right honourable and learned friend the Secretary of State has reduced poundages next year by 6.25 per cent.— equivalent to a reduction in rates paid by industry and commerce of £ 80 million. This allows for a reduction in the level of de-rating to 35 per cent. in 1990–91, and this will be reviewed for future years in the light of further progress towards harmonisation.
The Mines and Quarries (Rateable Values) (Scotland) Order 1990 provides for the same level of de-rating for these subjects and also contains certain provisions relating to their method of evaluation which also apply in England and Wales.
I beg to move that the 14 Motions standing in my name on the Order Paper be agreed to en bloc. I commend them to the House.
Moved, That the orders laid before the House on 6th March be approved [13th Report from the Joint Committee.] — (The Earl of Strathmore and Kinghorne.)
Lord Carmichael of Kelvingrove: My Lords, I again thank the Minister for his explanation and agree that it would be better to take the 14 Motions en bloc. I should like to read his statement with considerable care once it has been printed in the Official Report. It appeared to me as though, in some of the assessments, he was walking very close to what is derided as a "roof tax", when he spoke about capital value and construction value in certain cases as being the only way to make an evaluation.
I certainly understand the reason for the gradual phasing out of the de-rating system. In terms of the European Community it would be quite anomalous to have special rates for special industries in Scotland, although the original reason for de-rating was to compensate for some of the problems in heavy industrial areas. Those problems arise not only from distance, but because the standard of living in heavy industrial areas— the quality of life— tends to be lower as a result of the sheer size and the by-products of heavy industry.
I will certainly look at what the noble Earl has said. I understand that he said there would be a

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benefit to industry of £ 80 million. I may not have heard him clearly or perhaps I was thinking of something else, but I felt it would ultimately be a disbenefit to industry. However, I am sure that that is a point which can be sorted out later. In the meantime I am pleased with what he has said. I will read the Official Report with considerable interest and say that on this side of the House we have no objection at this stage to the orders going through. We may have something to say on a general question— we cannot do anything about the orders— or come back in general debate to some of the points that the noble Earl raised.
Lord Strathmore and Kinghorne: My Lords, I thank the noble Lord for his contribution. I confirm that I did say £ 80 million.
On Question, Motion agreed to.

Law Reform (Miscellaneous Provisions) (Scotland) Bill [H.L.]
7.47 p.m.
The Lord Advocate (Lord Fraser of Carmyllie): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.— {Lord Fraser of Carmyllie.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD GRANTCHESTER in the Chair.]
Clause 20 [Rights of audience in the Court of Session, the House of Lords, the Judicial Committee of the Privy Council and the High Court of Justiciary]:
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 223A:
Page 23, line 32, at end insert ("but may not make any rule which would, by comparison with any corresponding rule applying with respect to the sheriff court, directly or indirectly inhibit the freedom of a solicitor to appear in court or to undertake all the work preparatory to his appearance in court.")
The noble Lord said: This is an amendment referring to the making of rules by the council of the Law Society in regard to practice, and it relates to page 23, line 32. The idea behind it is that the council should not be able to make any rule which directly or indirectly inhibits the freedom of a solicitor to appear in court or to undertake all the work preparatory to his appearance in court.
The noble and learned Lord the Lord Advocate drew my attention to his Amendment No. 225B. Perhaps I may leave that for the moment. I should also explain that, although my name appears to Amendment No. 225A, which proposes the abolition of Clauses 10 and 11, it was placed there inadvertently. It would be inconsistent for me to move both Amendments Nos. 223A and 225A.
The situation in Scotland is that solicitors conduct 90 per cent. of the jury work in the sheriff court. That allows them, once they become a solicitor advocate, to continue to carry out the work preparatory to their appearance in court, which they
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do now. I appreciate that there may be criticism of that approach, but it is important to remember that the issue will cover a very small percentage of those practising in the courts in Scotland. I beg to move.
Lord Morton of Shuna: Late on Tuesday night the noble and learned Lord the Lord Advocate accepted Amendment No. 223 in principle— that the rules should correspond as nearly as possible to those that apply to advocates. The difficulty with this amendment is to compare it with the amendment accepted in principle and I do not think that they can fit together.
However, the problem with the amendment now moved by the noble Lord, Lord Macaulay, is the concept that a solicitor in a sheriff court normally takes statements and precognitions from witnesses and sees them, and to apply that rule to the High Court and the Court of Session. The obvious difficulty is to apply it to the rule accepted in principle, because advocates have a complete prohibition against such behaviour.
The main objection in principle to this amendment, I suggest, is that what it is doing, and what perhaps Amendments Nos. 225B and 257B are doing, is to say that the sheriff court rules should prevail over the Court of Session rules. That appears, at least to me, to be totally wrong in principle. The Court of Session and the High Court are the highest courts in civil criminal business and the sheriff court is the lowest court. It is wrong that in that sense the tail should wag the dog.
It is perfectly natural that in the lower court you should have a less rigid standard and allow various procedures which are not suitable for the highest court in the country. It is proper that the highest court should control its own rules. It appears to me at any rate that one would have the lowest common denominator applying to the rules of procedure. If that is taken to its logical extent one would have the rules of procedure and conduct in the district court ruling the sheriff court, the Court of Session, the House of Lords, the Judicial Committee and the Privy Council. That would be totally wrong. It is the highest courts that should set down the rules and the lowest courts should modify them accordingly. Therefore, on principle, I oppose this amendment.
Lord McCluskey: I also rise to oppose the amendment. I concentrate on the point just mentioned, that it is designed to allow solicitors both to precognosce a case and then to conduct the case, perhaps even to see witnesses in the course of the case and to reprecognosce them.
Paragraph 3.16 of the Government's Green Paper states:
"A particular point of principle is the need to ensure, in High Court or Court of Session cases, that those who plead in court should not have been involved in the investigation of the evidence".
That was a particular point of principle. When the White Paper was published less than six months later it stated:
"A particular matter most appropriately dealt with in this way by professional rules concerns the degree of separation required between the person precognoscing witnesses before the evidence comes before the court, and the person questioning them in court".

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The White Paper then referred to the original views which were expressed and which I quoted and then continued:
"After further consideration the Secretary of State has decided that this preliminary view requires to be refined".
Therefore, what started off as a point of principle became in the end a preliminary view. The word used is "refined", whereas in truth it has been totally abandoned. I have seen no justification for that abandonment of the point of principle and I am opposed to it.
There is another matter. After the reference to the Secretary of State deciding that the preliminary view requires to be refined, the White Paper continues:
"and that the proper concern of the profession is to observe the principle that no one, including the person to present the case in court, should do or say anything which would have the effect of, or could be construed as, inducing a witness (or the client) to tailor lis or her evidence",
and so on. That is a ridiculous proposition because there is no conceivable way in which that can be policed. How on earth do you enforce that principle except by banning face-to-face meetings or telephone conversations between the advocate, on the one hand, and the witness, on the other? Is there somehow to be a third party present or are all these meetings to be tape-recorded so that that principle can be given effect to?
I am opposed to this amendment principally for that reason. I should like an explanation from the Government for the departure from a point of principle to this alleged and enenforceable principle to which I have drawn attention.
Lord Eraser of Carmyllie: The idea that the Law Society should seek to achieve uniformly high standards of conduct on the part of solicitors, regardless of the court in which they are practising, is clearly one with which I agree. But I can conceive that, to relate effectively to the rather different practices of the sheriff and supreme courts, it may be necessary to have different sets of rules with slightly different provisions.
I recognise a potential risk that the Law Society might be persuaded into rules which were unnecessarily restrictive. That is why we have provided in subsection (10) that the Secretary of State should have to approve any rule which makes this differentiation. If it should be the case in some particular respect that the interests of justice properly require a differential rule then, if the Secretary of State is persuaded, the rule will be made and become effective. If he is not so persuaded— and at present he does not have any circumstance in mind which would fit this criterion— then the rule will not take effect.
While there appears to be no difference between the noble and learned Lord and myself as to objective, the formulation in the Bill is more cautious in providing for an eventuality as yet unforeseen.
I have been asked about the change that has occurred between the Green Paper and the White Paper. I recognise that there is an interrelationship between the amendment in principle which I accepted on Tuesday night, Amendment No. 223,
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and the present amendment. We are concerned to ensure that there should be no diminution in the responsibilities laid on those who appear before the courts and that they should properly discharge that duty to the courts. Undoubtedly we have been influenced by the fact that the Law Society of Scotland, in responding to the paper, had this to say (paragraph 3.M.2):
"We have endeavoured to ascertain the origins of this so-called rule or principle but without success. It appears to have emerged from the complementary professional responsibilities of the solicitor and advocate in litigation. It was the function of the solicitor to interview potential witnesses. This was, of course, perfectly natural as the solicitor was taking instructions from and advising the client… The advocate, in his role as specialist pleader brought an objective and detached view to bear upon the case. This entirely practical separation of functions of solicitor and advocate although subject to many exceptions appears now to have been elevated to the status of an irrevokable rule or principle".
That principle is sometimes erroneously described as the Philips principle because it was a practice among advocates in Scotland that predated the Philips report by decades, if not centuries. We are anxious to see whether there is a way of approaching this matter that does not put it in quite that fashion but nevertheless imposes on solicitors as a code of conduct that they should to all practical purposes observe much the same approach.
Noble and learned Lords will appreciate that there are many exceptions in Scotland. One is entitled, even if one appears as a pleader in court, to interview and consult with one's client, whether or not that client is to be a witness as to fact. It would be wholly improper for any advocate interviewing or consulting with his client to fashion his client's evidence to meet the case or to influence the way in which his client gives evidence. As I understand it, there are similar provisions which will enable an advocate and a pleader in court to have a direct face-to-face interview with an expert witness who is coming before the court. Therefore, it is not an absolute rule. What we will be concerned to discover, given that inter-relationship which I accept is there between Amendments Nos. 223 and 223A, is whether the matter can be resolved. That is why I indicated that I wanted to take away Amendment No. 223A for further consideration.
8 p.m.
Lord, Emslie: The noble and learned Lord the Lord Advocate has explained the Government's thinking in this matter. I am still a little concerned about how this code of ethics can possibly be policed. One must not confuse the right of the advocate to consult his client because he does so in order to get his client's instructions and to make up his mind about his client. It is also perfectly proper for an advocate to consult an expert witness. The purpose of that exercise is to be properly instructed so that the advocate can cross-examine the expert witness for the other side.
What is not at all proper, because detachment is the key to advocacy in the Supreme Court, is to interview witnesses as to fact. If you allow the possibility of witnesses to fact being precognosced by the person who is going to hold himself out as an advocate, then you are running a very grave risk of

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a breach of the code of ethics which you will never be able to trap. The only safe way— I speak from a very long experience of advocacy and on the Bench— is to have a neat little rule which forbids it. It will not do any harm. If you do not have the rule, it will not do any good.
Lord Morton of Shuna: Along with the noble Lord, Lord Macaulay, I believe that I am the only person in this Committee who has been both an advocate and a solicitor. The problem is that in the sheriff court it is perfectly proper to see your client and witnesses to take statements and all the rest of it. But that refers to the lower court which is not dealing with the most serious crime. The lower court deals with crimes which, in my day, involved a maximum sentence of two years. It is now a maximum sentence of three years. One was dealing with civil cases which admittedly had no upper financial limit, but in fact there was regularly a fairly low limit compared with the average case heard in the Court of Session.
The important point is that the serious cases, such as rape and murder, had to be treated with the kind of detachment of which the noble and learned Lord, Lord Emslie, has spoken. Having experienced both systems, I am quite convinced— I shall be interested to hear the experience of the noble Lord, Lord Macaulay— that the necessity for detachment justifies the rule. It means that one gives the client in serious cases a higher standard of care and provides a higher standard when arguing his case. Those factors are to the benefit of the client. I shall be very sorry indeed to see this rule depart from the Court of Session and the High Court. In considering this matter, I hope that the noble and learned Lord the Lord Advocate will bear in mind the distinction between the two courts.
Lord McCluskey: I wish to add one point which I should have mentioned previously. It explains the origin of the phrases used in the Green Paper. The Royal Commission considered this matter, particularly in the criminal context, and that is the subject with which I am most concerned. The conclusion stated at paragraph 1553 is:
"We think it may well be correct that the relative detachment of the advocate from the client which exists by reason of the nature of his function could in some types of serious criminal charges form a valuable safeguard".
The Royal Commission unanimously concluded that that would be a valuable safeguard. The Government will have to show some good reason for accepting a departure from a rule which maintains that safeguard.
Lord Fraser of Carmyllie: I hope that I have made my position clear. I understand very clearly what the noble and learned Lord, Lord Emslie, has said about the importance of maintaining objectivity, detachment and of ensuring that there is no risk of witnesses being influenced intentionally or otherwise. That view is correct. I have indicated that I wish to find a way of resolving this problem other than that suggested by the noble and learned Lord which is by maintaining the rule as it stands.
Lord Macaulay of Bragar: In moving the amendment on behalf of the Law Society it was
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foreseeable that there would be a perfectly proper reaction to it. Behind the present reform of the law there is the prospect of anyone who becomes a solicitor advocate being highly trained. He will not be given that responsibility— it has been called a privilege— unless he is seen to be a fit and proper person to deal with certain matters.
In modem times we are running into a certain amount of inconsistency. It has been implied on more than one occasion that the sheriff court is such a terrible place where inferior people practise inferior law and perhaps achieve inferior results. We have even heard the word "contamination" used as regards witnesses in connection with this argument. If that is the situation it is surprising to say the least that over the period of 25 years in which I have been associated with the courts, I can remember only two cases coming before the court in which solicitors were alleged to have acted improperly in the course of precognoscing witnesses and also of presenting a case where the consequences might be that a person may be imprisoned for a period of up to three years.
The Court of Session and the High Court are superior courts where a different type of training and technique are required. Nonetheless it is perhaps time to look at these practices and to review them as time goes on. I am grateful to the noble and learned Lord for his reply. In the light of our discussions I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Grantchester): If Amendment No. 223B is agreed to I cannot call Amendment No. 223C.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 223B:
Page 23, leave out lines 33 to 36 and insert:
(" (7) Where a solicitor having an appropriate right of audience in any of the courts mentioned in subsection (1) is instructed to appear in that court, those instructions shall take precedence before any of his other professional obligations, and the Council shall make rules—
(a) establishing the order of precedence of those courts for the purposes of this subsection;
(b) securing, through such of their officers as they think appropriate, that, where possible, any person wishing to be represented before any of those courts by a solicitor holding an appropriate right of audience is so represented.
(7A) Subsection (7) does not apply to an employed solicitor whose conrtact of employment prevents him from acting for persons other than his employer.").
The noble and learned Lord said: The purpose of this amendment, which replaces subsection (7) of this clause, is to give a clearer indication of the way in which the council is to be required to fulfil its obligation to secure representation by a solicitor advocate for any person wishing to employ one to act for him. It is appreciated that subsection (7) as presently drafted could put the council in a difficult position when the number of solicitor advocates was very small, as it is likely to be for at least a short time after the legislation is implemented.
This amendment therefore requires the council to make rules to establish the precedence which one set of instructions must take over another where the two are in conflict. Such rules will doubtless equate

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broadly with similar rules made by the Dean of the Faculty in relation to advocates. Any such rules made by the council would be subject to the approval of the Lord President. The council will remain under a duty to secure representation for any person wishing to employ a solicitor advocate although the draft now recognises that this may not be possible in every case.
In meeting the obligations imposed by this amendment, the council will be ensuring that a level playing field exists between advocates and solicitors with rights of audience in the Supreme Courts. It would clearly have been unacceptable for advocates to be subject to the cab rank rule while solicitors with such rights of audience were free to pick and choose the instructions they wish to accept. The Law Society fully accepts its responsibility in this regard and this amendment will allow it to meet that responsibility in so far as it is able, given the numbers of solicitor advocates available. The new subsection (7A) disapplies the rule that the council will make relating to precedence of instructions from solicitors who are employed.
Given this amendment, I hope that the noble Lord will be able immediately to indicate that he will not be pressing Amendment No. 223C.
The issue of precedence is covered in the Faculty of Advocates' most recent guide to professional conduct published in 1988 at paragraph 4.5.1. A precise list of the precedents of the courts is given, although in succeeding paragraphs the flexibility that is allowed in such circumstances is spelt out. One would envisage that the Council of the Law Society would be making arrangements which, if not identical, were similar to those.
Lord Emslie: I am bound to say that I am a little concerned about this amendment in so far as it deals with the matter covered in new subsection (7a) — the question of the precedence of courts inter se. As a matter of construction, in this subsection we are dealing with the order of precedence as between the Court of Session and the High Court simpliciter inter se.
With the greatest respect to the noble and learned Lord, that is not the question. There are far more important questions that are subsumed by that initial question. For example, a critical issue is: what is the order of precedence as between the First and Second Division of the Court of Session in the Inner House? What is the order of precedence as between an Inner House commitment and an Outer House commitment? What is the order of precedence as between an Inner House commitment and a High Court commitment of first instance? What indeed is the precedence of the High Court as a Court of Appeal in competition with any court of first instance and indeed in competition with either of the divisions of the Inner House? All these questions have to be addressed.
The language of this new subsection does not permit them to be addressed. For that reason I consider that it would be wise if the noble and learned Lord agreed to consider this matter again. Much more needs to be done than has been covered in the subsection as drafted.
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Another matter that causes me concern is that the duty is placed on the Council of the Law Society to establish the rules of precedence among the courts— not just the Court of Session and the High Court, but the various divisions and echelons of the various courts that are encompassed within the High Court and the Court of Session.
I have always understood that among the courts for which the Lord President and the Lord Justice General are responsible— it is the same man but under two hats— the ultimate decision is a decision of the Lord President and the Lord Justice General. As in a question with the Faculty of Advocates, the matter is readily regulated in discussion between the Lord President, the Lord Justice General and the Dean. How can it be that the Council of the Law Society should be left to make rules of precedence among courts inter se without doing so on the advice of the Lord President, or the Lord Justice General, depending on what it is? What is necessary is that the magic words "with the advice of the Lord President" must be introduced in the context of the council's function of making the rules to which new subsection (7A) is directed.
There also has to be flexibility in devising the rules. A good deal turns on the relative importance of cases in different courts and perhaps at different levels. In the College of Justice the intervention of the Dean of the Faculty is a valuable asset, and in discussion with the Lord President a decision can be taken as to what the council's duty is. Even if the general rule says that he should be in one place, in discussion between the president and the dean it may be decided that his duty lies in another place.
I merely point out these matters to the noble and learned Lord in the hope that he will understand that a good deal more needs to be done if good sense is to be made of a perfectly laudable intention. I have no doubt that it is very desirable that the rules of precedence among the courts should be perfectly understood by everybody with a right to practise in them. Once cannot have one rule for the advocates and another for the solicitors. The rules must be the same; and the only persons who can determine which rules should apply and what the rules should be are the Lord President and the Lord Justice General. I am using the plural of the verb because there are two offices held by the same person.
Lord Renton: I should have thought that a part-heard case in almost any court should have very high precedence indeed. If orders of precedence are being arranged, there should be a provision to ensure that counsel and/or solicitors involved in cases which for one reason or another become part heard should have a prior obligation to attend to finish those cases.
8.15 p.m.
Lord Morton of Shuna: Perhaps I may deal with the problem that I see arising on subsection (7) (b). That gives the Council of the Law Society the duty of making rules,
"securing, through such of their officers as they think appropriate, that, where possible, any person wishing to be represented".
That is fine so far as it goes. However— adverting to a matter that the noble and learned Lord, Lord

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Emslie, and the noble Lord, Lord Renton have just raised— the relationship between the advocate and the solicitor instructing him is totally different from the relationship between the solicitor and his client. The solicitor has a contractural relationship with his client. That means that if he has to break it he is in breach of contract.
How is the obligation of a solicitor who has a contractual obligation to attend a meeting of trustees which meet each year on the second Thursday of February to be placed with a duty to appear in court? Which takes precedence? What happens to the breach of contract if the court takes precedence? If the court does not take precedence, what happens to the level playing field between the advocate and the solicitor? It is a difficult problem which does not appear to have been faced by the Government in considering the matter. But it a very real problem both for solicitors and for anybody who wishes to see a level playing field between the solicitor advocate and the advocate.
Lord Macaulay of Bragar: I understand that the amendment is the result of fairly prolonged discussion between the Law Society and the department of the noble and learned Lord. The spirit behind the amendment is appreciated.
However, having heard the criticisms of it from the noble and learned Lord, Lord Emslie, and others who have spoken, I hope that it will become clear that, in the wording and the extent of the clause, the amendment is not in a satisfactory condition and that it might be proper to see whether the points that have been raised and the wording might be re-considered. I shall not rehearse the points again; we have much to do tonight. Perhaps the wording in Amendment No. 223C:
"so far as is reasonably practicable".
could be taken into account and included.
There is one other matter which disturbs members of the solicitor branch of the profession of solicitor advocates. They perform a dual role— one day they act as solicitors and one day as solicitor advocates. If the solicitor advocate acts on instructions spelled out in Amendment No. 223B and, for example, leaves a client in a civil case in Perth to attend a criminal case in Edinburgh, he may leave the client in the lurch at the behest of the council. The client may then lose the case or run into additional costs through the proof being postponed and similar problems. In that situation who will pay the costs? At the moment, broadly speaking, an advocate who is instructed by the dean will be covered for any liability from having acted on the part of the dean.
As the noble and learned Lord, Lord Morton, has pointed out, there is a contract between the solicitor and the client. The Law Society is anxious about this and perhaps the noble and learned Lord the Lord Advocate would be willing to take the amendment away and examine it again. Perhaps he should give serious consideration— as I am sure he will— to the question of liability arising out of the operation of this section resulting in damages.
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On one of the points made by the noble and learned Lord, Lord Emslie, I am advised that the rules of the Council of the Law Society always need the consent of the Lord President. That is my information.
Lord McCluskey: Perhaps I may add three points to what has been said. First, I do not understand the concept of a solicitor being instructed in the same way as counsel is instructed. When counsel receives a letter of instructions requiring him to be in a particular place at a particular time, he is instructed. I do not know what comparable concept would apply in relation to a solicitor. That must be taken on board in the reconsideration.
Secondly, for the advocate it is not just a question of which court. The noble and learned Lord, Lord Emslie, has dealt with that. If an advocate is at a planning inquiry or some other tribunal and a case in which he was instructed to appear in a criminal court in Scotland, in the court of first instance, calls in the Appeal Court, he is required to appear in the Appeal Court. His Appeal Court work will take precedence over work in the planning inquiry. That concept does not appear in the wording of the amendment.
The third point echoes one which I made in relation to solicitors' practice rules. The Faculty of Advocates includes firms which have been practising for some centuries in all the courts in Scotland. Their practice rules must be the model for this clause. I invite the noble and learned Lord the Lord Advocate to examine them. I am dismayed beyond belief to hear the noble Lord, Lord Macaulay, say that this amendment is the product of deep and serious consideration and thought. If that is the truth then the Lord help us all.
Baroness Carnegy of Lour: As a user of the services of solicitors, I hope that the fact that we have no solicitors from Scotland in the House of Lords will not mean that noble Lords forget the point of view of the customer of solicitors. I was rather dismayed to see how far the noble and learned Lord had strayed from the Bill. I am concerned at what will happen.
I heard the arguments on the English Bill and was concerned when the same arguments were deployed there. What will happen if I make an appointment with my solicitor to discuss something? He may also be a solicitor advocate doing both kinds of work. I may find that precedence has been given to his having to plead in court. This is not entirely about the way in which the court works. It affects the public who use solicitors in other ways. They are not the same as advocates; they do a different job as well.
The balancing argument must be remembered. The likes of myself cannot deal with it because I do not know enough about how the court works since I have simply been an honorary sheriff. I do not know enough but I know what it feels like to be the customer. We must remember the client. I hope that noble and learned Lords will not all leap up and answer me. I ask my noble and learned friend to bear that in mind; the night is not young and I do not wish to hold things up.
Lord Morton of Shuna: Perhaps I may answer the noble Baroness, in spite of her request that I should not do so.
A noble and learned Lord: Perhaps we should all stand up!
Lord Morton of Shuna: Perhaps I might be the one to do so, having been a solicitor. The basic difference is that the solicitor can choose whom he has as his client. As an advocate one receives a letter of instruction and whoever the client is, one appears. The solicitor can choose and make his appointment.
The noble Baroness is perfectly right. It will be extremely difficult if appointments made by a solicitor are suddenly, because of the precedence of the court, all washed away. One of the major difficulties of getting through court business, as the noble and learned Lord, the Lord Advocate will no doubt say, is the availability of court time. It is essential that court time be used as fully as possible.
Lord Fraser of Carmyllie: I do not wish to take up time but some important matters have been raised here. Yes, I have been in consultation with the Law Society on matters that have been brought up by noble and learned Lords. We dealt most particularly with what was to happen in the circumstance where a solicitor advocate had to respond to an instruction to appear in court. We discussed what happened in relation to other professional obligations that he had already taken on. It was for that reason that at the beginning of subsection (7) the amendment says about those instructed to appear in audience in any of the courts mentioned,
"those instructions shall take precedence before any of his other professional obligations".
I am open to criticism and I shall look at the wording again if that does not properly meet the point that has been made. It is certainly meant to ensure that if the solicitor has other professional obligations and instructions to appear in court, those instructions to appear in court secure precedence.
The other point about which the Law Society was concerned referred to the early days of the introduction of solicitor advocates. There may be no solicitor advocates and a request could be made that where possible one should be provided to appear in one of the courts mentioned. That is the reason for the wording in subsection (7) (b). If there are no solicitor advocates, clearly they cannot be instructed.
I shall certainly look at the provision again. I am not anxious to establish anything that is significantly different between the provisions for advocates in Scotland and the new breed of solicitor advocates. The important point is that, as I said in my opening remarks, any rules that are made are subject to the approval of the Lord President.
I also indicated that I am aware that in the 1988 Guide of the Faculty of Advocates an order of precedence is set. It indicates, for example, that the High Court of Justiciary exercises its appellate jurisdiction before that of the inner House of the Court of Session. I assume that that is a matter that was settled with the court before the Faculty of Advocates introduced it.
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Furthermore, as my noble friend Lord Renton indicated, there may be important issues as to how we deal with a partially heard case. Those provisions in the Faculty of Advocates Guide include that point and seek to cover it. Again that is what I anticipate would be provided for by the Council of the Law Society in rules that would be approved by the Lord President.
Lord Emslie: If I understand what the noble and learned Lord the Lord Advocate said, he will not take the amendment away and consider it. I fully understand what he has said. However, I do not understand what he said about the importance of establishing an order of precedence. As I understand it, he said that in any case any rules made by the Council of the Law Society are subject to the approval of the Lord President. The poor old Lord President will have a difficult job if subsection (7) (a) remains as it is.
Surely what the noble and learned Lord ought to do in this subsection is to give clear guidance to the Law Society as to what kind of content the rules must aim at. As the Lord President in Scotland for 17½ years I have been on the receiving end and have found it extremely hard. I know perfectly well that to have a series of half-baked rules based on inadequate premises makes the Lord President's job far more difficult than it need be. It is difficult enough, in all conscience.
8.30 p.m.
Lord Fraser of Carmyllie: I certainly did not want to indicate that I would not reconsider this matter. However, as I said, the Faculty of Advocates has set out an order of precedence. I suppose it would be possible to set out an order of precedence on the face of the Bill, but I think that would be wrong. The court itself should consider that matter in discussion with the Law Society. If it disapproved, it is open to the Lord President to refuse to accept that measure. However, in opening I said that the rules would doubtless equate broadly with similar rules made by the Dean of Faculty in relation to advocates. I put that in that slightly cautious way because there may be some differences, but to all intents and purposes I would expect them to be identical.
Lord Emslie: I hope I shall be forgiven for intervening again. We know perfectly well that the faculty has rules about the order of precedence and the obligations of an advocate in relation to instructions to appear in particular courts. However, there must be flexibility here. This subsection does not prescribe that the Law Society's rules shall as nearly as possible correspond with those which apply to advocates. I am making this point to be helpful and I am sure the Committee will understand that. Surely what one could do to make a much better job of this subsection is to state that the council shall make the rules to which the new section is directed on the question of precedence of courts inter se with the advice of the Lord President. At the end of the day he is the ultimate authority.
Lord Fraser of Carmyllie: If it will bring matters to a conclusion, I agree to look at that point.
Lord Grimond: I hope the noble and learned Lord the Lord Advocate can assist me on a matter which no doubt I should be able to find out for myself. I understand that an advocate such as a barrister is not liable in negligence. Will a solicitor advocate be liable? Can one sue a solicitor advocate for negligence?
Lord Fraser of Carmyllie: What is proposed is that where there is immunity from suit for advocates, that would apply equally to solicitor advocates.
Lord McCluskey: I have one other point to make in reply to what the noble Baroness has said. It is not a criticism. The noble and learned Lord, Lord Morton, has said that he was a solicitor for 12 years. The noble Lord, Lord Macaulay, was a solicitor for some years and I am also a fully qualified solicitor. However, none of us appears here to represent advocates. We are not advocates either. I used to be an advocate but I am now a judge. My concern is not the interest of the Faculty of Advocates but the public interest. I hope that I view this matter from a position of some impartiality because I am not a practising advocate. However, in so far as solicitors have a legitimate interest in this, I hope we can give a voice to it from our own experience as some of us have been solicitors.
Lord Macaulay of Bragar: In case the wrong impression is getting around, I should add that it should not be thought that advocates do not have administrative troubles also when they are called upon at the last minute and have to cancel meetings with clients at great mutual inconvenience. It should be borne in mind that the advocate solicitor is a creature of statute. Anyone who seeks that status will know precisely the difficulties in administering a practice and appearing in the High Court.
The Deputy Chairman of Committees: The Question is that Amendment No. 223C be agreed to. As many as are of that opinion say "Content". To the contrary "Not-Content". I think the Contents have it. Clear the Bar.
Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the Contents have it.
On Question, amendment agreed to.
[Amendment No. 223D not moved.]
The Deputy Chairman of Committees: "If Amendment No. 224 is agreed to, I cannot call Amendment No. 224A. I now call Amendment No. 224 standing in the name of the noble and learned Lord, Lord McCluskey.
Lord Emslie Lord Emslie moved Amendment No. 224:
Page 23, leave out lines 40 to 42.
The noble and learned Lord said: The amendment stands also in my name so, with the leave of the Committee, I hope I can speak to it. Amendment No. 224 relates to subsection (9) of new Section 25A. My difficulty is to discover what possible justification there can be for giving power to the
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Secretary of State, with or without the advice of the director general, to intervene in a matter which is concerned with the training regulations to be made by the Council of the Law Society with the approval of the Lord President.
The object of training regulations is to train people to the required standard. As far as I can judge, it cannot be said that the intervention of the Secretary of State is necessary to protect the public interest unless it should be suggested that the Lord President, in exercising his function of approval or disapproval, does not have the public interest very sharply in mind whenever he has to act. No doubt we shall be told by the noble and learned Lord, Lord Fraser of Carmyllie, that these additional powers in subsection (9) are simply one instance of a place where the new power is to be found and why the new power is thought to be for the public good.
So far as I can judge, no one has ever suggested that the Lord President, in the exercise of his function of approval or disapproval, has failed to have the public interest firmly in mind. It should be borne in mind that the subject matter of the Secretary of State's suggested intervention is rules concerning training courses which solicitors must undergo in order to be equipped to perform to an acceptable standard in the courts in which they would like to have rights of audience.
The same point is made under an associated amendment of mine, Amendment No. 225A, which is concerned with subsections (10) and (11). Those subsections deal with the conduct rules which are to be made by the council of the Law Society with the Lord President's approval.
I have a preliminary question because I do not understand what subsection (10) means. I find it hard to think of any possible justification for the Secretary of State's intervention in matters which are concerned solely with rules of professional conduct owed by an advocate or solicitor under the statutory right of audience to the court and to himself in the conduct of his career. There may, however, be some long-term good which it is thought that subsections (9) and (10) will serve. If I could be persuaded that that were so I should take a certain view about the amendment standing in my name.
For the moment, however, what worries me is the degree of intervention of the Executive in the operation of the courts and those who practise in them. I hope that the noble and learned Lord the Lord Advocate will be able to allay my anxieties about those matters as he has occasionally done in the past about other matters. I beg to move.
Lord Renton: Before my noble and learned friend replies, perhaps I may say that the difficulty that I as an English laywer find is this. Subsection (10), at the bottom of page 23, raises a situation which would conflict with the situation envisaged in the Government's new amendment which has now been added to the Bill— Amendment No. 223B. In that amendment we talk of precedents in certain courts. Here we find that comparisons are to be made with the work in the sheriffs court. Here we have a reference to directly or indirectly inhibiting the freedom of a solicitor to appear in court or undertake

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all the work preparatory thereto. Then we find that there may be consultation with the Director General of Fair Trading, who will generally not have a clue.
Lord McCluskey: Perhaps I may intervene. Those provisions will be transformed by the amendments which stand in the name of the noble and learned Lord the Lord Advocate. It might therefore be better if we were to allow the noble and learned Lord the Lord Advocate to proceed to the next amendment. In that amendment he brings in provisions which oust the present subsections (9) and (10) and replace them with considerations which are quite different. It may be that at this time of night we should not discuss the present subsections (9) and (10) at all. I suggest that that would be a simpler way to proceed.
Lord Renton: I naturally respect and am grateful for the intervention of the noble and learned Lord, Lord McCluskey. I was merely trying to help so that, when he came to reply, the noble and learned Lord the Lord Advocate might be able to reconcile provisions which I find it difficult to reconcile. Like the noble and learned Lord, Lord Emslie, I find subsection (10) in itself very difficult. I should not go so far as to say that it is incomprehensible, but the working of it will be difficult.
8.45 p.m.
Lord Fraser of Carmyllie: The overriding objective of the reform of the legal profession has been to secure the provision of services which satisfy necessary consumer standards but are not unduly restrictive. It is for that reason that the Secretary of State and the Director General of Fair Trading, whose perspectives go much wider than the legal profession itself, have been accorded a significant role. The purpose of giving a role to the Secretary of State and the director general is so that any differences which do arise can be fully dealt with. I hope that in most if not all cases it will be possible for any differences to be resolved without recourse to the formal provisions of the clause and that those will serve largely as a reminder of the wider public interest which the Secretary of State and the director general will bring to bear.
The noble and learned Lord, Lord Emslie, asked me if there was something further behind the provision and whether there was any relationship with other provisions. If he looks at an amendment which I have put down in relation to Clause 23— Amendment No. 257B— he will see that there is a provision on comparable lines which deals with the Faculty of Advocates.
I indicated previously at Second Reading that the purpose of that amendment is to ensure that rules relating to the Supreme Court conduct of advocates are treated in exactly the same way as those made by the council of the Law Society, for the purposes of ensuring that any disparity between those rules and corresponding rules in the sheriff court gives rise to no more restrictive a regime than is necessary in the interests of justice. The DTI White Paper Opening Markets: New Policy on Restrictive Trade Practices, which sets out the Government's proposals
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for forthcoming legislation on restrictive trade practices, makes it clear that any professional rule which has been approved by a government Minister will not be subject to challenge by the proposed competition authority. It may be that the noble and learned Lord feels that there is undue interference by the Secretary of State, but, in the context of the reform of legislation that would have a certain—
Lord Morton of Shuna: Are we discussing Amendment No. 257B now or shall we come to it later?
Lord Fraser of Carmyllie: I was asked by the noble and learned Lord to explain whether there was anything further behind the provision. I thought that the clearest way to explain the matter— and in view of the question of the noble Lord, Lord Morton, I must have made a mistake— was to fix it in the context of what was proposed for the Faculty of Advocates.
Lord McCluskey: I am anxious that the debate should proceed in an orderly fashion. I draw the Committee's attention to the fact that Amendment No. 224, which we are currently discussing, takes out subsection (9). In the following amendment the noble and learned Lord the Lord Advocate proposes to take out the same subsection. Similarly, my Amendment No. 225 takes out subsection (10), and the noble and learned Lord the Lord Advocate's amendment. Amendment No. 225B, also takes out the same subsection. The end result is that we have to look at the new provisions which the noble and learned Lord proposes to put into the Bill. The new provisions are those to which he referred late on Tuesday night, about the consultation with the Director General of Fair Trading which precedes a decision by the Secretary of State. That is the matter that we ought to be discussing. I see no point in discussing subsections (9) and (10), which we are all agreed ought to depart from the Bill.
Lord Emslie: For my part, I think that I now understand what the Government are trying to do, which is to do good by stealth, having been told what the objective is. If I am satisfied that subsections (9) and (10) may result in the avoiding of greater danger of interference by a new or planned competition authority I shall be happy to accept the assurance that I have been given about the underlying thinking and to beg leave to withdraw Amendment No. 224. I have spoken to Amendment No. 225A, but we shall no doubt come to that in due course. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: I call Amendment No. 224B. If this amendment is agreed to, I cannot call Amendment No. 224A.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 224B:
(" (9) The Council shall, after any rules made under subsection (5) have been approved by the Lord President, submit such rules to the Secretary of State, and no such rules shall have effect unless the Secretary of State, after consulting the Director in accordance with section 64A, has approved them.").
The noble and learned Lord said: On the first day in Committee, we dealt with this amendment and Amendments Nos. 225B and 156A which explained the involvement of the director general. I hope that I explained the position there fully. I beg to move.
Lord McCluskey: The noble and learned Lord the Lord Advocate refers to an occasion when he was kind enough to accept an invitation from me to explain in advance his thinking on new Clause 64A and 64B. The Committee will see that, under the provision that we are now discussing, the rules, after being made by the council and approved by the Lord President, are to go to the Secretary of State. He then consults the director in accordance with Clause 64A. Committee Members will find that listed under Amendment No. 275H in the Marshalled List of Amendments. Clause 64A is on page 18 of the Marshalled List. The Committee will see that it states that, before considering any rule, the Secretary of State shall send a copy of the proposed rule in question to the director. The director will consider it purely from the point of view as to whether it restricts, distorts or prevents competition to any significant extent. It then comes back to the Secretary of State. Under Clause 64B, the Secretary of State considers the advice of the director and
"whether the interest of justice require that there should be such a rule".
He may approve or refuse to approve the rule.
My objection to that situation, which is brought into effect by the amendment that we are now discussing, is that it makes the Secretary of State the final and therefore the sole arbiter of what the interests of justice require. I do not believe that that can be right. The interests of justice in relation to the conduct of litigation and the conduct of practitioners who engage in litigation must be a matter for at least sharing with the Lord President who acts on behalf of the court and consults the other judges and then makes Acts of sederunt or, as Lord Justice General, makes Acts of adjournal along with the other judges. That is my objection to the present amendment as it stands. It brings into force Clause 64A and therefore Clause 64B.
Lord Renton: Four agencies will have to take decisions or at least be consulted before finality is reached as to the way in which a solicitor in Scotland is to exercise a right of audience. I have had to deal with many solicitors in Scotland in their ordinary advisory capacity and helping to deal with estate matters, and I find them admirable people. I should not have thought that it was fair to impose upon them this tremendous palaver. It is fair enough to involve the Council of the Law Society; that is their governing body which is democratically elected by them and is, I hope, a trusted body. Then there is the Lord President. It is right that the chief judge of Scotland should have the opportunity of approving the rules and no doubt he generally does so. But then, after that, they must go to the Secretary of State who may not be a lawyer at all. Fortunately, the present Secretary of State is a member of the Bar and understands everything. Then the Director General of Fair Trading must be consulted as well.
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Are we not being a little over-zealous in trying to achieve justice for the consumer which could be achieved just as well by more simple means and at less public cost?
Baroness Seear: Perhaps I may be greatly daring— I feel that it is greatly daring in this legal society— and ask the noble and learned Lord the Lord Advocate whether he believes in the doctrine of separation of powers. All along, the Government appear to put the Executive over the judiciary. That is completely contrary to the doctrine of separation of powers. Does the noble and learned Lord believe in that doctrine?
Lord Fraser of Carmyllie: Yes, I do, but it is clearly not entirely absolute and it is a matter of allowing rights of audience. It is not a matter of trying to interfere with the constitution of the court or any such matter.
Perhaps I may say to the noble and learned Lord, Lord McCluskey, that I hope that he at least liked this point about new Clause 64B; namely, that, where the Secretary of State goes at it to approve it, first, it is only advice that he receives from the Director General of Fair Trading and, secondly, he has to apply a test of the interests of justice. Those are the circumstances in which he looks at the matter. That is an appropriate way to address the matter.
On the noble and learned Lord's point as to whether it should be a joint decision between the Lord President and the Secretary of State, I should like to look at that matter again. However, for the reasons that I have already explained, it may be important that the Secretary of State is involved in the process.
Lord McCluskey: I am obliged to the noble and learned Lord for saying that he will look at the matter again, but I must warn the noble Baroness, Lady Seear, that it is dangerous to make the point that she made. I made that point on Second Reading and was told that I was being mischievous, so I have not made it again tonight.
However, there is a deep constitutional point here which the Government seem not to appreciate; namely, that for the first time in our history a Government Minister— an elected Minister, the Secretary of State for Scotland— comes in to overrule the Lord President and the Lord Justice General in relation to the conduct of persons inside the two courts. That is unprecedented. It is, as I shall point out a little later, not permitted by the Act of Union unless for the better administration of justice, and I do not yet hear an argument which persuades me that the Secretary of State has suddenly become the guardian of the administration of justice. He is so interested in this Bill that he has not even sent along the person whose name appears on the back of it; namely, the noble Lord, Lord Sanderson of Bowden.
When the Secretary of State, whoever he may be— whether for trade and industry or foreign affairs— considers the matter, he addresses his mind to great issues of policy, but most of those matters are first processed through echelons of civil servants who are asked to consider the interests of justice. I ask the Government to think deeply about the

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constitutional novelty of what is proposed in a Bill entitled the Law Reform (Miscellaneous Provisions) (Scotland) Bill.
The noble and learned Lord the Lord Advocate left us in a state of considerable confusion on the previous occasion. I understood from what he said as regards the previous amendment, when we called a Division but did not appoint tellers, that he would withdraw his amendment in order to consider it. It is unfortunate that he gave us such an indication or led us to believe that. It may be entirely my fault. It is a late hour, I am an old man and I sometimes find it difficult to follow what is going on in the House at this hour of the night. However, if the noble and learned Lord the Lord Advocate intends to move the amendment, he should make it clear that that is his intention. If he intends to withdraw it, he should make his intention equally clear.
Lord Fraser of Carmyllie: With respect to the noble and learned Lord, there is a clear distinction between those matters. If I wanted to withdraw the amendment, I should say so explicitly. If I was not prepared to consider the matter and was not prepared to move on it, the Committee could decide whether it wished to call a Division. I have indicated— this is a perfectly standard process— that I have listened to a point that has been made to me. I wish the amendment that I am moving to become part of the Bill, but I am giving the noble and learned Lord an indication, because of the point that he has made, that I shall look at it. If I consider that it should be amended, I shall amend it myself If I fail to do so, it is clearly open to the noble and learned Lord to repeat his objection at a later stage.
9 p.m.
The Earl of Selkirk: When the noble and learned Lord is considering that matter, will he also consider another point which I find rather difficult? Can a man work hard at being an advocate and a solicitor at the same time or is that a quite impossible proposition? As I see it, it has grave difficulties. I do not understand how it can happen. I do not know what all this is about because one-third of the whole faculty consists of former solicitors. When I was "Boots of the Bar" I was with another man at that time who had previously been a solicitor. He afterwards became the Lord Justice Clerk.
Is there a practical way to do this or is one trying to break up a stone wall which cannot be broken? If so, we are wasting our time completely. I do not think it is practicable. I do not think that it is in the interests— and I thought that that is what we were studying— of the administration of justice. That is the main point. Apparently we are trying to put a solicitor into an advocate's hole and fit them together. That creates problems.
So far as I can see the noble and learned Lord has not worked the matter out at all. I have no clear explanation of how it is to be done. There are plenty of men with solicitors' experience in the faculty at the present time. To a large extent there always have been. What are we trying to do? Are we trying to copy an English method? Is that all that the noble
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and learned Lord is trying to do? If so, I think that we should be told so, quite frankly.
Lord Renton: My Lords, if the English method is to be copied, perhaps I may say that it is not a desirable precedent.
Lord Fraser of Carmyllie: My Lords, perhaps I may respond very briefly. No, we are not trying to make solicitors and advocates identical. If that were to be done, we should simply say that all solicitors were to have rights of audience in both the Court of Session and the High Court of Justiciary. We are not setting out to develop such a scheme. We say that there are those solicitors who if they have the requisite training and qualifications may secure those rights of audience while still remaining solicitors.
I should envisage that the 6, 000 or so solicitors in Scotland, as the noble Earl indicates, will be perfectly content to stick to their business of soliciting. However, there will be some— a cadre of those— who I think will wish to take advantage of those rights of audience and provide a choice to clients who may wish to employ them.
On Question, amendment agreed to.
The Deputy Chairman of Committees: If Amendment No. 225 is agreed to, I cannot call Amendment No. 225B.
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 225:
Page 23, line 43, leave out subsection (10).
The noble and learned Lord said: I shall not take any time on this amendment. It raises exactly the same point. I think that what is required is to make it clear not just that the advice of the Director General of Fair Trading is confined to matters of competition policy but that the new Sections 64A and 64B which are now introduced into the Bill in advance, as it were, are ultimately rewritten so that the Secretary of State, having consulted the director in matters of competition policy, on that basis and on that basis alone can interfere with a rule that has passed the Lord President; but he should have no general jurisdiction to do so in the interests of justice. I shall make that point when we come to Amendment No. 275H. In the meantime I do not seek to move this amendment.
[Amendment No. 225 not moved.]
The Deputy Chairman of Committees: If Amendment No. 225A is agreed to I cannot call Amendments Nos. 225B or 225C.
[Amendment No. 225A not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 225B:
Page 23, line 45, leave out from ("State") to end of line 3 on page 24 and insert:
(" (10A) Where the Secretary of State considers that any rule submitted to him under subsection (10) would directly or indirectly inhibit the freedom of a solicitor to appear in court or undertake all the work preparatory thereto he shall consult the Director in accordance with section 64A.").
The noble and learned Lord said: I beg to move.
Lord McCluskey: I do not propose to divide the Committee on this matter. The fact that we allow this to go into the record— I shall not oppose this provision being inserted into the Bill at this stage and thus appearing in the Report print of the Bill— does not mean that I agree with it. I need not go on repeating that point.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 225C:
Page 24, line 7, leave out ("that subsection") and insert ("section 64B").
On Question, amendment agreed to.
[Amendment No. 226 not moved.]
Lord Emslie Lord Emslie moved Amendment No. 226A:
Page 24, line 19, at end insert:
("(12A) Where a complaint has been made that a solicitor has been guilty of professional misconduct in the exercise of any right of audience held by him by virtue of this section, the Council may, or if so requested by the Lord President shall, suspend him from exercising that right pending determination of that complaint under Part IV.").
The noble and learned Lord said: This amendment is designed to introduce a necessary and simple additional subsection to the new Section 25A. I understand in advance from the noble and learned Lord the Lord Advocate that he is minded to accept the amendment which I propose. If that is so, in the interests of saving time I shall not delay the Committee by explaining the purposes which lie behind it. I should have thought that the purposes were obvious but perhaps we should leave it to the noble and learned Lord to state his position on this matter. I beg to move.
Lord Morton of Shuna: Before the noble and learned Lord says anything, perhaps I may say a sentence or two. There should surely be a parallel power to this in Clause 22, if it is to be passed as a clause, and in Clause 21, because the power to suspend the non-legal advocate, if I may so describe the Clause 21 power, is just as important— or the non-Scottish advocate has the power to suspend the solicitor advocate.
Lord Macaulay of Bragar: Before the noble and learned Lord answers perhaps I may make a short point on the content of this amendment. I suggest that it is too draconian in its terms at the moment. If the noble and learned Lord will reconsider it, there should be some basis for the suspension rather than a complaint, because a solicitor could be bedevilled with complaints suggesting that he was guilty of professional misconduct when he was nothing of the kind. At the end of the day he could be suspended from practice and suffer considerable loss. I should have thought that there should be some reasonable basis for accepting the complaint before suspension; otherwise all sorts of damage could be done to perfectly honest individuals who are carrying out their practice.
Lord Fraser of Carmyllie: I am indeed content to accept the amendment in the name of the noble and learned Lord, Lord Emslie, which I believe gives the
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council an important power to deal promptly with instances of alleged professional misconduct on the part of solicitors exercising rights of audience in the supreme courts. It allows the council to act swiftly in the interim, while allowing the tribunal proper time to deal definitely with the complaint. It is, of course, in the public interest that the administration of justice should not be impeded by repeated inappropriate conduct on the part of a solicitor-advocate in court.
So far as the noble Lord, Lord Macaulay, is concerned, as it appears that the council may suspend someone when a complaint has been made, I envisage that it would undertake suspension only where it was a very serious complaint. However, when the complaint comes from the Lord President, when the senior judge in Scotland makes that request, I should have thought it indeed wholly appropriate that the council should be under an obligation to require that suspension. So far as concerns the point in relation to the other two clauses, I cannot immediately answer the noble Lord but I understand the force behind what he says.
Lord Emslie: May I come back, in the light of what the noble Lord, Lord Macaulay of Bragar, had to say? At the moment, the Dean of Faculty can order the suspension of any advocate against whom a complaint of professional misconduct has been made, pending resolution and disposal of that complaint. The object of this exercise is to introduce an equivalent power. It cannot be the Dean of Faculty who will exercise it. There is nothing equivalent to the Dean of Faculty in the Law Society of Scotland. The only person who can properly exercise the power is the Lord President of the Court of Session. He is in the best position to judge the necessity for instant suspension and the urgency with which that ought to be ordered. I do not know. I am attempting to explain the thinking behind this, and I am indebted to the noble and learned Lord the Lord Advocate for what he has said about the content of the amendment.
On Question, amendment agreed to.
Lord McCluskey Lord McCluskey moved Amendment No. 227:
Page 24, line 20, leave out subsection (13).
The noble and learned Lord said: If noble Lords consult the Bill, they will see that on page 24, at line 20, we have the first manifestation of a particular subsection which appears in various places. It reads:
"Where a function is conferred on any person by this section he shall exercise that function as soon as is reasonably practicable".
This amendment is connected with a number of others which seek to bring about the demise of a similar subsection in other clauses of the Bill.
There are a number of points connected with this. One is that the Lord President is already heavily understaffed and the new duties which are imposed upon him by this and other clauses impose a real burden upon him. We shall have occasion later to refer to that. But to impose upon him a duty to act as soon as is reasonably practicable may not be a duty to act very soon, because the Lord President has not the staff or facilities to act very quickly in relation to a matter of this kind.
But this provision, and its counterpart in other clauses, raises in my mind five questions and I shall put them simply to the noble and learned Lord the Lord Advocate. The questions are: why, where, who, what and how? To elaborate to a small extent in relation to the first question, why include this provision? What is the justification for it? What is the reason for it? The second question is: where? Where did this provision come from? Where shall I find a precedent for a provision in a statute which lays upon the Lord President, the Director General of Fair Trading, the Council of the Law Society and the Secretary of State this particular duty? And who is it that Parliament is asked not to trust to act with due expedition? Is it the Lord President who cannot be trusted to act with due expedition, is it the Council, is it the director general, or is it the Secretary of State? In other words, which of them cannot be trusted? Is it not rather insulting to public servants of this kind, and to the council, to be so suspicious?
The next question, the what? question, is: what is the hurry? No solicitor has had the right to plead in the Scottish Supreme Court since 1532, yet once this provision is brought into force everyone has to rush madly about doing things as soon as is reasonably practicable.
Finally, there is the how, question: how is this to be enforced? If the council of the Law Society drags its feet, can a solicitor sue the council? If the Lord President is thought by the council to be taking an undue amount of time, can the council sue the Lord President? Or can anyone sue the Secretary of State? So is this intended to be enforced in some way, or is it just brutem fulmen as so much of the rest of the Bill is? So may I ask the noble and learned Lord the Lord Advocate please to explain why this very funny provision finds its way into this clause and other clauses? I beg to move.
Lord Eraser of Carmyllie: Certainly this provision is not meant to be insulting to any of those who are required to discharge duties and functions under this clause; when it comes to the granting of rights of audience to solicitors in the supreme courts. I have little doubt that all those mentioned will deal with the matter promptly. Nonetheless, the scheme for granting rights of audience and maintaining proper procedures in relation to how these rights are exercised is necessarily a little complicated and involves several office holders or bodies. The provisions about prompt dispatch of functions have been inserted as a reminder to all concerned of the importance of securing in practice the extended rights of audience conferred in law by these clauses. I appreciate, as the noble and learned Lord said, that the Supreme Court of Scotland has operated without solicitors for some time. Nevertheless it seems to the Government correct that there should be proper dispatch in this matter.
The noble and learned Lord raised another point which he raised for the first time during the course of his Second Reading speech. I can see why he would not like this provision imposed on the Lord President of the Court of Session at the same time as an identical provision is laid on him in Clause
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21. Prompted by the vary fair point that he made at Second Reading, there has subsequently been contact with the Lord President. The point about the overload on him in relation to these matters has, I hope, been resolved in this way. The Secretary of State has undertaken that Clause 21 as a whole should not immediately be brought into play and certainly should not be brought into play at the same time as Clause 20. It is hoped that by approaching it in this way the noble and learned Lord's concern about overloading the Lord President will be met.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, is he saying that Clause 13 is nothing more than a prompter or reminder? Is that not a new concept in legislation? If that is all it is, it is surplus to requirements, and no doubt the responsible persons appointed to do these jobs will not require reminding.
9.15 p.m.
Lord Morton of Shuna: I wish to make very much the same point. Just to avoid anyone being hurt by this provision, what will happen if a solicitor feels that the director general or the Secretary of State is being slow? How is a court to judge if it is a court that is to do it? If the Secretary of State or the director general says, "I will get round to this as soon as I possibly can but I have rather a lot to do", who in the court will be able to judge whether or not he is telling the truth? It is an impossibility. Surely we do not need to clutter up legislation with pious hopes.
Lord Fraser of Carmyllie: I do not think I can expand on what I have said. The noble and learned Lord, Lord Macaulay, has picked up my wording. It is inserted as a reminder to all concerned of the importance of securing in practice the extended rights of audience which are being conferred by this clause. That is all that is intended.
The Earl of Selkirk: The rights would not disappear if they were not used for two years, would they?
Lord McCluskey: I do not know whether to laugh or cry when I hear these answers. Parliament cannot be asked to enact a provision which lays duties upon public office holders such as the Lord President, the Secretary of State and the Director General of Fair Trading— I do not include in that category the Law Society— when at the same time the Lord Advocate stands at the Dispatch Box and says, "I have no doubt that these persons and the council will act properly". If he has no doubt, why is Parliament being asked to enact a provision of this kind? This is absurd. I do not understand.
It gets worse, of course, because the same provision appears in relation to the barefoot pleaders, if I may call them that, who are to be enfranchised to plead in our courts by Clause 21. Whereas the statute says that everyone is to act as quickly as they can, the Lord Advocate is standing at the Dispatch Box saying, "But I give you this promise; the Secretary

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of State will not act for a long, long, time". As a matter of fact, I do not believe that he will ever act at all.
I do not know whether to laugh or cry when I hear these answers. It is a serious matter. I ask the Lord Advocate to think very carefully whether he needs to advance with his chin so fully exposed to the kind of attack which I am sure he will meet in another place where he will not be treated with the kindness to which he is accustomed to receiving in this Chamber.
Lord Fraser of Carmyllie: The noble and learned Lord will be aware that I was equally conscious that I was leading with my chin on this matter. It is the Government's view that this provision should be included in the clause. If he wants to laugh rather than cry I would be happy enough with that. But I invite him to withdraw the amendment.
Lord McCluskey: In a previous incarnation, if I may say that, I stood at the very same Dispatch Box where the noble and learned Lord now stands. When I felt utterly ashamed of the proposition which I had advanced and which had been torn apart from in front, from the side and from behind me, I used to say that I would speak to my right honourable friend. I am sure that the Lord Advocate could have said that. However, I do not require him to stand up and say that on this occasion because I hope he will say it another 10 or 20 times before the evening is out. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 20, as amended, shall stand part of the Bill?
Lord Emslie: My noble and learned friend Lord McCluskey and I have given notice of our intention to object to the Question. It is no secret that I have always been deeply anxious about Clause 20. It is a poor clause for three reasons. First, the provisions introducing new Section 25A are unnecessary in Scotland. Any solicitor who believes that he can learn to become an advocate can, if he applies himself and undergoes the training of pupillage, readily become a member of faculty and be admitted to the public office of advocate.
There are no artificial obstacles whatever to a solicitor becoming an advocate in Scotland. In some areas his position is better than that of an entrant who has not been a solicitor because under the regulations of the faculty he is required to undergo pupillage for a period of only six months. There is also the associated thought that the more solicitors who become advocates the greater will be the litigants' choice of persons to represent them in the supreme courts. So much for the lack of necessity in support of Clause 20.
Secondly, the clause carries an obvious risk about which I shall speak briefly in one moment. Let it be clearly understood that I hold no brief here to speak in the interests of the Faculty of Advocates. I have never believed that if Clause 20 passed into law it would materially injure the faculty; the quality of its members will see to that. However, I believe that
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there is an obvious risk of impairment to the quality and efficiency of the administration of justice. On Second Reading I explained the importance of the court's performance of its responsibilities and the fact that it should be listening to advocates of quality. There should be a continuing mutual respect and trust between the Bench and the Bar and also mutual respect and confidence between advocates. Without that quality of representation and trust, time and expense tend to be wasted. There is always a risk that the end product— that is, the judgment— will never be as good as it should be.
In my experience, advocacy at supreme court level is and ought to be regarded as a specialist skill. It can be developed to the required standard only by the sound initial training which advocates receive; furthermore, by the full-time commitment to the function of advocacy under the influence of the College of Justice. That is the position as regards advocates.
Contrast that with the position of solicitors, who by definition will continue to practise as such often with the cares of partnership upon them. Even if they receive adequate initial training as good as pupillage— and I rather suspect that to be the intention of the Bill— one cannot expect them to spend their whole time in the performance of the functions of an advocate in the supreme courts because they will only be instructed by their clients and because they will have the distractions of a general practice of solicitors which, so far as one can tell, they do not intend to give up. If they do, they should join the Bar. Part-time advocacy is not good for the courts, and I suggest to the Committee that therefore it cannot be good for the litigant either.
The third criticism of Clause 20 is that the justification now presented for it is flimsy in the extreme. The explanation on Second Reading was— and this is an echo of what appears in the White Paper— that if Clause 20 passes into law, it will give to some clients of some solicitors a wider choice of representation in the Supreme Court of Scotland.
I do not propose to develop that criticism. On Second Reading I suggested that the choice to which the noble and learned Lord the Lord Advocate addressed himself was hardly a choice worth having. A client who allows his own solicitor to conduct proceedings on his behalf in, for example, the Court of Session will inevitably be making an uninformed choice and will not have the advantage of the informed choice which is now available on the advice of a solicitor.
In the course of addressing the Committee, I have reached the conclusion that however strongly I feel about Clause 20, and its deficiencies and absence of principle to support it, I should not at this stage divide the Committee. However, it was right, it seems to me, that I should at least make it perfectly clear what are my views about this clause and the dangers which appear to me to be inherent in its survival.
Lord McCluskey: I also do not propose to divide the Committee on this matter because the clause which we are asked to approve is an entirely different

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animal from that which came into court. It came in as a kind of zebra and is going out like a camel or a dromedary. Eventually we shall have to discover what sort of animal we have. At present I am not quite sure.
I want to ask the question which goes to the heart of the matter. I do so at the risk of incurring the wrath of the noble Baroness, Lady Carnegy, who said that we had an extended debate on this subject on Second Reading and that she would not wish us to reiterate all the arguments. With respect, I disagree with the noble Baroness on that.
On Second Reading we debated an enormous Bill with provisions about licensing, international arbitration, judicial factors, charities, rights of audience and conveyancing. It was impossible to develop the argument fully in the 12 minutes which I understand to be allowed on Second Reading— although I believe that there is no rule in this Chamber that one cannot speak for hours.
I do not propose to take up a lot of time this evening, but I should like to make a few points. First, before the publication of the Green Paper, there had been no support for this at all as the noble Lord, Lord Hughes, the chairman of the Royal Commission, pointed out. Paragraphs 15.43 onwards consider two questions: whether there should be fusion, and if there was no fusion, whether there should be extended rights of audience. I do not propose to repeat what was said by the noble Lord, but the greater part of the evidence was in favour of retaining the present divided profession.
The arguments for and against fusion are then considered and I need not go into those. The noble Lord went on to say that the conclusion that the profession should remain divided did not deal with the question of rights of audience. However, that was considered by the Royal Commission and the proposal that there should be extended rights of audience to solicitors was rejected on the view that there was a danger that that might inevitably lead to the demise of the Faculty of Advocates and bring in fusion by the back door.
It so happens that I agree with the judgment of my noble and learned friend Lord Emslie, that the Faculty of Advocates will survive. That is one reason I emphasise the point that we are not here to defend the chicks against the storm; they will survive perfectly well. The question is in the interests of justice.
The principal advocate of this change not taking place was the present Lord Chancellor. He was Dean of the Faculty of Advocates in 1976 and onwards and presented evidence on behalf of the faculty both orally and in writing at great length against fusion and rights of audience. I felt it would be unfair some years later to repeat what he said, had it not been for the fact that at the Committee stage of the Courts and Legal Services Bill the Lord Chancellor repeatedly emphasised that he stood by what he said. I should like to remind your Lordships of what he said.
The Royal Commission put quite specific questions to the Faculty of Advocates. The first
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question to which I should like to draw attention is No. 56:
"What would be the advantages and disadvantages if solicitors had a right of audience in all courts?"
The Lord Chancellor, as Dean of the Faculty, replied:
"This question really raises, in a different form, the issue of fusion of the two branches of a profession. The Faculty considers that it would not be practicable to permit solicitors to be heard in all courts while retaining a separate Bar."
The answer continues, but I shall not go into it in detail.
I come to Question 45 which concerns fusion. I can now deal with the matter of fusion, because the Lord Chancellor, as Dean of the Faculty, said that they led to the same thing. He said:
"While the Faculty is aware that there is pressure for fusion from some quarters… it does not believe that… the existence of a divided profession in this country is the cause of any dissatisfaction among members of the public."
I make it clear that I read that short, but I hope I do not read it unfairly.
He added— again I read selectively:
"The Faculty … believes that it lies with those who assert that the Faculty should be abolished to demonstrate public dissatisfaction with the way that the profession is organised at present and also that fusion would provide the public with a substantially better service taken overall."
Again I emphasise the point that it was he who said that extended rights of audience of the kind now proposed ultimately lead to the danger of fusion.
The Lord Chancellor then made the point that my noble and learned friend Lord Emslie has repeatedly made, that such a proposal could:
"in turn also lead to a general lowering of the standard of pleading and presentation both in the Supreme Court and elsewhere. In cases of a routine nature this might not matter very much, but in more difficult cases the consequences to the litigant could be very serious…
The benefits of the collegiate structure of the Faculty of Advocates would be lost. The advantages of this system in a small country such as Scotland are considerable."
There are many more passages, but I do not propose to take your Lordships through them. Your Lordships will find that those passages persuaded the Royal Commission unanimously to reject both fusion and extended rights of audience. If that is what the evidence led to, what is the Government's justification for this sudden change of mind? We need to be told, because no one has ever answered the question.
We guess that because of events in England over which we in Scotland have no control— Scotland in this regard is another country— the Government have decided that they cannot make the changes in England and allow the Scots to continue a system which would be a kind of reproach to the way they developed in England; so they will do it in Scotland. Worse still, I learnt over the weekend that the Government propose to introduce the same system in Northern Ireland. Whereas we have the advantage of being able to come to the Committee and discuss the matter line by line and clause by clause, in Northern Ireland no such right is to be accorded. The whole matter will be put in an order and voted upon yea or nay. No one will be allowed to change a word of it. That is deeply distressing.
I asked the president and the secretary of the Law Society of Northern Ireland what the position was

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and whether there was dissatisfaction. They said there was not. They did not ask me to take their word for it. They had been invited on to a programme by the BBC to discuss the state of dissatisfaction with the position there. The BBC made its own inquiries of the Consumers' Association and others. They all said that they were perfectly happy as things stand. Therefore, these provisions are to be introduced into Northern Ireland and Scotland for no reason that I can understand. The Government have never given a reason.
I do not know, even now, who supports these proposals. The Law Society of Scotland supports the principle of extended rights of audience but states in its briefing to me,
"As drafted the Bill will impose obligations impossible to fulfil".
The Scottish Consumer Council supports the proposals but its document contains only eight lines of bald statement in relation to training and nothing else. It is obvious that the Scottish Consumer Council has not come to grips with some of the issues now before us.
I should like to know from the Lord Advocate who, prior to the publication of the Green Paper for Scotland in the spring of 1989, made representations to the Government that the system ought to be changed either in respect of rights of audience or, indeed, the other matters that go with it. I particularly want to know— I shall certainly repeat the question until I receive an answer— who on earth suggested the whole prospect of allowing to plead in our courts the barefoot pleaders, the persons with no legal qualifications at all.
There is one other option that the noble Lord, Lord Grimond, and I discussed yesterday. I hope the noble Lord does not object to my mentioning it on the Floor of the Committee. If we are right in thinking that someone has judged that what is good for England must be good for Scotland, why do we not have a provision in the Bill to let the English get on with it for two years, five years or 50 years, and at the end of that time assess the experiment to see how it works? If it works for England then we can adopt it for Scotland. In the meantime, we should leave out Clause 20.
Lord Grimond: As my name has been mentioned, perhaps I may be allowed to add a few words to the debate. I am most grateful to the noble and learned Lord, Lord McCluskey, but I do not want to pre-empt what I hope to say on Monday, when I hope to have the noble and learned Lord's support. As regards the present situation, I speak as someone who is not averse to widening the rights of audience. However, I must repeat what I said at Second Reading: the ordinary person's view about the law is, first, that it is too expensive; secondly, that the delays are sometimes inordinately long; and thirdly, that it is uncertain.
I have to say that during these debates I have heard nothing which encourages me to believe that this Bill will tackle any of those mischiefs. I can see grave dangers to the College of Justice which we are only justified in incurring if the mischiefs to which I
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have referred are clearly tackled in the Bill. However, from what I have heard so far I cannot see that this Bill will necessarily make the law cheaper, quicker or more certain in Scotland.
To pre-empt what I might say on Monday, I have to say that I suspect the Bill has been introduced largely because of troubles in England. If there were not an English Bill before the House there would not be a Scottish Bill. It cannot be said too often that the sheriff court and the lower courts in Scotland are, in my experience— I have had some experience both as a Scottish Member of Parliament and, for a short time, as an English barrister, but I have no experience of the supreme courts— an efficient and relatively cheap way of dispensing justice and give widespread satisfaction compared with most of the courts in this country.
Lord Ackner: Reference has been made to England, so perhaps I may make a few comments. The reference to trouble in England is a media creation. There is a desire by the solicitors to increase their rights of audience merely because they are to lose their conveyancing monopoly. They were content with the position and content with the Royal Commission under the chairmanship of my noble and learned friend Lord Benson, which published its recommendations 10 years ago and which this Government have successively approved.
At no stage in the English Bill did my noble and learned friend the Lord Chancellor suggest for one moment that there was any basis for saying that alterations made to the rights of audience would be a basis for contemplating any reduction in expense. He was unable to say that for two very good reasons. First, the Royal Commission had said that it would prove more expensive and it had gone into the matter in detail. Secondly, he had to concede that the Government had embarked on no studies, no research and no form of consideration of the expense factor.
In the English Bill the only suggestion for dealing with expense was to hive off from the High Court a whole mass of potential litigation to the county courts. The House learnt to its surprise that the county courts were in such disarray at the moment that they were incapable of dealing with their present workload let alone any additional work. We invited my noble and learned friend the Lord Chancellor— and I imagine that Members of the Committee here will have no greater success with my noble and learned friend the Lord Advocate— to indicate why there had been this volte face, unresearched, and the result of no consultation, unless it was because of the populist clamour that something should be done about the so-called restrictive practices of the lawyers.
I add one final point. I met a circuit judge at a dinner two days ago. He had just come back from America. He had been invited there in order to visit the various places where they were opening Inns of Court in order to follow the philosophy, which is enjoyed both north and south of the Border, of a divided profession. The American former Chief Justice has always been a strong adherent of the philosophy that specialisation resulted in greater

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efficiency and reduced costs. The message that the circuit judge brought back was that the Americans thought we were quite mad to start going into reverse and copying their situation with all the disadvantages which will result.
Lord Fraser of Carmyllie: From where the noble and learned Lord, Lord McCluskey, sits, he may be unconcerned about incurring the wrath of my noble friend Lady Carnegy by repeating what he said at Second Reading. However, from where I stand it might be more politic of me to make a short response to this matter, otherwise I shall be repeating what I said at Second Reading.
We recognise that this is a major reform. It does not slavishly follow what is introduced in England. It starts from a materially different point. In Scotland at present something like 90 per cent. of jury trials are already conducted by solicitors. In civil matters in the sheriff court, where there are rights of audience, the jurisdiction of the court is very extensive. It is correct to say that the Royal Commission did not come down in favour—
Lord Simon of Glaisdale: I am very sorry to interrupt my noble and learned friend. Not only did the Royal Commission not come down in favour, it came down against the proposition.
Lord Fraser of Carmyllie: I was about to say just that. I am anxious to point out to noble and to noble and learned Lords that before the Royal Commission was the question of looking at extending the rights of audience essentially against a background when fusion was in the air. What is now being considered is not to give extended rights of audience to all, but only to certain solicitors of particular competence.
It is for that reason that we have spent as much time as we have on the matter. I do not quarrel with the amount of time that we have used. The purpose is to ensure that those solicitors who acquire extended rights of audience under this Bill and this particular clause, should be those who have sufficient quality and competence to make their appearances before the courts truly appropriate. There is absolutely no desire whatever to see the business of the respective courts in any way slowed up or damaged. The noble and learned Lord, Lord Emslie, with his 17 years' experience as Lord President, has had a great deal to contribute to the administration of justice. We should not like to see the advances and improvements made during his time set back. It is for that reason that I obviously have to pay particular regard to what he said.
There has been some support for this proposal in Scotland. It may be that the Scottish Consumer Council dealt with it shortly, but nevertheless it approved of it. As I understand it, all the major political parties in Scotland see in principle now that there should be an extension of rights of audience, although I accept that on all sides there are concerns that we should introduce it carefully and properly so that the administration of justice is not damaged.
The Law Society has had some concerns. One revolved around difficulties which I trust have now been resolved by an amendment that I moved earlier.
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However, I suggest to the Committee that the clause should not be divided against. I readily acknowledge that there have been a number of amendments moved which have materially improved the clause as it stands and in at least one respect— which I believe has been important to the noble and learned Lords who contributed to our debates on Clause 20— I have said that I shall look to see how their proposal might be met.
With my thanks to those who have contributed to the various debates on Clause 20, I beg to move.
9.45 p.m.
Lord Morton of Shuna: Before the noble and learned Lord sits down, can he explain his figure of 90 per cent. of jury trials taking place in the sheriff court? He will be very well aware that the judges of the Court of Session, through the offices of the then Lord President of the Court of Session and the Lord Justice Clerk, made submissions on the White Paper which showed that those figures were entirely wrong. Is the noble and learned Lord saying that the figures of my noble and learned friend are wrong?
Lord Fraser of Carmyllie: If the noble and learned Lord will give way, I shall stand corrected on the figures. The fact of the matter is that in comparison with England, where I understand that what rights there are at present for solicitors to appear in jury trials are non-existent or very limited, in Scotland there is an extended right for solicitors to appear before juries. That is further extended by recent legislation which allowed me as Lord Advocate to direct that some cases which would attract a sentence of as much as three years' imprisonment ought to be heard in the sheriff court. I should have thought that many people would have considered that that was a very wide right of audience.
Lord Morton of Shuna: I am surprised that the noble and learned Lord repeated the figure of 90 per cent. when it has been specifically challenged by the Lord President and the Lord Justice Clerk. He did not inform the Committee that those figures were so challenged; nor did he suggest where the figures were wrong.
Lord McCluskey: With the leave of the Committee, perhaps I may say one or two words. The purpose of our flexible procedure at Committee stage is to allow Members to ask the Minister questions and to seek answers to those questions. I did not ask the Minister who approved this proposal. I told him that the Scottish Consumer Council approved it in a bald statement of eight lines long. I asked him: who suggested it? That is the question to which I wish an answer. Who suggested this provision before the publication in England of the three Green Papers?
Secondly, no one imagines for one moment that what is provided for in Clause 20 slavishly follows the provisions in England. Indeed, that is a matter of deep complaint from that very consumer council. It wants an advisory committee set up on the same lines as that which was set up in England.

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I also think that the noble and learned Lord the Lord Advocate should have answered the points raised by the noble Lord, Lord Grimond, and echoed by the noble and learned Lord, Lord Ackner. Have the Government studied whether or not the introduction or implementation of Clause 20 will reduce the cost of litigation to anyone? If the answer is yes, with what result? If the answer is no, we should be told.
Finally, the time is 10 minutes to 10. It is unfortunate that as I came into the House tonight to attend this Committee an English Member stopped me and said, "I can assure you that an English Bill of this importance would not be treated in this fashion". I cannot comment on that; I simply narrate to the Committee what was said.
Clause 20, as amended, agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 228:
After Clause 20, insert the following new clause: ("Complaints to Tribunal.
.At the end of section 51 (3) (b) of the 1980 Act (Complaints to Tribunal) there is inserted—
"(bb) the Dean of the Faculty of Advocates in respect of the conduct of a solicitor exercising a right of audience under and in terms of section 25A of this Act; ".").
The noble and learned Lord said: I understand that this amendment is acceptable to the Government. I should explain it so that at least this part of the Bill may be understood by anybody who wishes to know its purpose.
Section 51 of The Solicitors (Scotland) Act provides for a limited number of people who can complain to the discipline tribunal. They are the Council of the Law Society and various other people, including the Lord Advocate, any judge, any auditor and the lay observer who is to be transmogrified into the ombudsman.
The purpose of the amendment is to add the Dean of the Faculty of Advocates to the list. This is necessary because he has the discipline power over the Faculty of Advocates which will provide the majority of the advocacy in the higher courts. There is nobody else who can easily fulfil the function that is necessary so that a solicitor with the right of advocacy should be under somebody's discipline with somebody to make the complaint to the discipline tribunal. I beg to move.
Lord Fraser of Carmyllie: I am content to accept the principle of the new clause. As I understand it, it was suggested by the present Dean of Faculty. It is an important and worthwhile clause. However, I should like to reflect further on the precise wording and the best location in the Bill for the provision. I undertake to come back at Report stage with an amendment which has a like effect.
Lord Morton of Shuna: Certainly. I only inserted it where I was informed by the Public Bill Office I could insert it. The noble and learned Lord may insert it where it fits more suitably. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Rights to conduct litigation and rights of audience]:
Lord McCluskey Lord McCluskey moved Amendment No. 229:
Page 24, line 23, at beginning insert ("Notwithstanding the terms of the Act of Union or of Article XIX of the Treaty of Union set forth therein").
The noble and learned Lord said: The amendment introduces into Clause 21 the barefoot pleader clause. The opening words are:
"Notwithstanding the terms of the Act of Union or of Article XIX of the Treaty of Union set forth therein".
This is not unconnected with Amendment No. 269. My noble and learned friend Lord Ackner will be interested to know that I am endeavouring to answer the question that he repeatedly asked the noble and learned Lord the Lord Chancellor when we were discussing the Courts and Legal Services Bill. Why is it that laymen are to be appointed to the Bench in England, but are not to be appointed to the Bench in Scotland?
This is what I would call a probing amendment. In England and Wales the laws of competition in the market apparently require not only that laymen be allowed to practise in the highest courts but that they should also be eligible for appointment to all the highest judicial offices. That is in Clause 50 of the Bill introduced at Committee stage in this House.
However, in Scotland, although laymen are to be allowed to practise in the highest courts, they are not to be allowed to become judges in these courts. Why should these laymen who are granted rights of audience under Clause 21 be denied the ambition to become judges? Is this some new, subtle form of discrimination?
Lord Fraser of Carmyllie: I had thought that the Lord Chairman of Committees had called Amendment No. 229 regarding the concern of the noble and learned Lord about the Act of Union.
Lord McCluskey: I am speaking to Amendment No. 229. If the noble and learned Lord had listened, he would have heard me explain that this amendment is not unconnected with Amendments Nos. 269 and 239. The same point is involved, as he will discover if he contains himself a little longer.
English lawyers and others have asked why it is that the Scots are to be denied the chance to reach the Bench. This is the position as I understand it. I hope that the noble and learned Lord the Lord Advocate will be able to confirm that this is the right answer. Since 1532 the administration of justice in Scotland has been in the hands of the College of Justice. An authoritative article by a former professor of constitutional law at Edinburgh University states:
"The College of Justice is the collective name given to those persons who take part in the administration of justice in the Court of Session. The membership of the College of Justice was declared by an Act of Severance passed on 23rd February 1687".
That was the provision that was in force at the time that the Treaty of Union was signed and incorporated into two Acts of Parliament, one of the English Parliament and the other of the Scottish

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Parliament. Article XIX, which was the important enactment, states:
"The Court of Session or College of Justice do after the union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the laws of that Kingdom, and with the same authority and privileges as before the union".
The Court of Session and the College of Justice are seen to be the same thing. Now we come to the point upon which the noble and learned Lord the Lord Advocate no doubt seeks to found. Article XIX continues:
"subject nevertheless to such regulations for the better administration of justice as shall be made by the Parliament of Great Britain".
Under that fundamental constitutional document, the Parliament of Great Britain has a right to alter the constitution of the College of Justice only for the better administration of justice. The same provision is made in relation to the qualifications which may be made for capacitating persons to be named ordinary Lords of Session. They also,
"may be altered by the Parliament of Great Britain".
The treaty continues with another important point. It states:
"The Court of Justiciary do also after the union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the laws of that Kingdom and with the same authority and privileges as before the union, subject revertheless to such regulations as shall be made by the Parliament of Great Britain".
At the heart of this provision is the fact that changes may be made by this Parliament if they are seen to be for the better administration of justice. This Parliament, however, did not exist at the time of the treaty.
It appears to me that the Government are prepared to argue either that solicitors can become or do become members of the College of Justice, or that, if they are licensed under Clause 20, they become advocates in the sense in which that word was used in Article XIX, or that their licensing will somehow lead to the better administration of justice. I can understand those arguments although I do not agree with them. However, the Government are not prepared to argue in respect of laymen that making them judges will lead to the better administration of justice in Scotland. I believe that is the answer to the question that has been asked and has not been answered.
I want the noble and learned Lord the Lord Advocate to answer the following questions in relation to this amendment. First of all, does he agree that Article XIX has a bearing on this clause? Secondly, is he saying that lay persons who acquire rights of audience in the Court of Session are to become members of the College of Justice? Thirdly, does he maintain that this clause is,
"a regulation by Parliament for the better administration of justice"?
If it is, why are qualified laymen to be denied promotion to the Bench? Those are the questions that this amendment raises. I hope that I shall receive an answer to them tonight. I beg to move.
10 p.m.
Lord Fraser of Carmyllie: I apologise to the noble and learned Lord. I did not hear him say that he was
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speaking to other amendments at the same time and they are certainly not grouped. The purpose of Amendment No. 229 is to ensure that the provision of the clause should take effect notwithstanding the terms of the Act of Union between England and Scotland in 1707 and in particular of Article XIX of the Treaty of Union.
As the noble and learned Lord rightly pointed out. Article XIX preserves the constitution, authority and privileges of the Court of Session following the Union. The clause, however, in providing for persons other than lawyers to obtain rights to conduct litigation and rights of audience in relation to court proceedings does not affect the constitution, authority or privileges as such of the Court of Session itself.
Furthermore, the noble and learned Lord has anticipated me in saying that, even if the view were taken that the provisions of the clause did so affect the Court of Session in some way, Article XIX of the Act of Union gives Parliament the power to make regulations for the better administration of justice. It may be that the noble and learned Lord and others do not agree that what is being put forward in terms of Clause 21 achieves the better administration of justice in Scotland. Nevertheless, it is clear from the terms of that article that that is a matter of judgment for Parliament itself.
Among the broad objectives of the clause are to allow members of the public a wider choice of representation in relation to proceedings in court and to allow persons other than lawyers who have an expertise in a specialised area of law to obtain rights of audience or rights to conduct litigation after satisfying the Secretary of State and the Lord President in terms of the requirements of the clause. Those objectives are in the interests of the better administration of justice, and I conclude that the provisions of the clause do not conflict with any provisions of the 1707 Act.
I understand why the noble and learned Lord is particularly concerned with the possible introduction of individuals other than solicitors or new solicitor advocates into the supreme courts of Scotland, namely the Court of Session or the High Court. I appreciate that he is aware of the point, but it may help if I emphasise the matter at this stage. In providing for the extension of rights of audience in Clause 21 we are not only looking at the extension of rights of audience into the Court of Session or High Court. It may well be that one of the professional bodies or other persons who seek rights of audience may do so in a very much more limited area, seeking rights of audience only in the sheriff court.
A question which the noble and learned Lord has also put to me in the context of this amendment relates to the appointment of anyone who might have secured rights of audience in the High Court or Court of Session under Clause 21. He asked why they are not being given the opportunity to become senators of the college and to become judges. That is a hypothetical question. We are not seeking to do that. It has been a policy decision in Scotland that that should not take place. When I do not propose that that should happen I am not sure how fruitful

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it is for me to discuss with the noble and learned Lord whether that would be prohibited by Article XIX.
Lord McCluskey: Before the noble and learned Lord the Lord Advocate sits back in his seat perhaps I can ask him to answer my question, which he did not answer. Is he saying that lay persons who require rights of audience in the Court of Session are to become members of the College of Justice?
While the noble and learned Lord thinks about the answer to that question perhaps I may say this to him. He said that a policy decision had been taken in Scotland. We know that a policy decision has been taken in Scotland because the Bill does not empower it. I did not ask what the decision was. We know the answer to that. The question is, why. Why is it that barefoot pleaders can sit in the House of Lords if they are Englishmen but cannot do so if they are Scotsmen? What happens if a Scottish case reaches the House of Lords and there are five barefoot Englishmen sitting as the judges? Are they to be allowed to decide Scottish cases, or have the Government not thought about that? I want to know why.
Lord Fraser of Carmyllie: With one breath, the noble and learned Lord and others indicate that we are doing this only because it is being done in England. When it comes to Scotland, my right honourable friend the Secretary of State for Scotland has taken his own policy decision.
Lord McCluskey: But why?
Lord Fraser of Carmyllie: That is a matter for the Secretary of State. As the noble and learned Lord wants me and the Secretary of State to keep such persons out of the Court of Session— he does not even wish to see them appearing as pleaders— I find it inconceivable that he wants them to be there as judges. If he were arguing that they should be there, I could see why he might press me to explain why I am not prepared to see them there. He does not want them there and, in those circumstances, the matter should rest there.
Lord Renton: Does my noble and learned friend agree that he is the Government's spokesman in this House? There is collective responsibility of the Cabinet of which my right honourable friend the Secretary of State for Scotland is a member. It goes without saying that this is a Scottish Bill which the Secretary of State, as well as my noble and learned friend the Lord Advocate, is responsible for presenting to Parliament. The Bill is in the name of the Minister of State for Scotland, who is one of the team in the Secretary of State's department. I assume that, when the Bill goes to another place, it will bear the name of the Secretary of State. We in this House are just as much entitled as the other place to know the reasons for the Government's decisions, unless there is a strong security, or rather confidential, feature about them. However, there is no such confidential or other matter involved in this. It is a fundamental and indeed constitutional matter on which we are entitled to an answer.
Lord McCluskey: Perhaps I may say in supplement of that that it is vital that we have an answer. The one thing that we cannot do is to summon the Secretary of State to the Bar of the House and say to him, "The Lord Advocate won't tell us. The noble Lord, Lord Sanderson of Bowden, hasn't been seen within the walls for some considerable time, so will you kindly tell us?" We cannot do that. The Lord Advocate is the Government when he stands at the Dispatch Box and he must answer that question.
It is vital that the noble and learned Lord should answer it for this reason: the question was put repeatedly to the noble and learned Lord the Lord Chancellor, who happens to be a member of the Cabinet as well as a member of the Government, and he declined to give the answer. He speculated for all kinds of reasons which one can follow through. It is an interesting pursuit. But the House is entitled to know the answer. If the noble and learned Lord the Lord Advocate is not prepared to give it on this amendment and if he needs time to read what is coming to him from the worried-looking officials who are sitting in the background I shall give him time because we shall return to the matter in relation to other amendments. The Committee is entitled to have an answer from him.
Lord Ackner: Perhaps my noble and learned friend will bear in mind the fact that the present situation carries with it a rather unattractive innuendo. South of the Border, the layman who has achieved rights of advocacy is apparently fit to obtain judicial office for an unexplained reason. A similar layman north of the Border, having achieved rights of advocacy, is not fit. There must be some explanation for that.
Lord Fraser of Carmyllie: I can only say yet again that, on these matters, my right honourable friend the Secretary of State for Scotland is entitled to take policy decisions that affect Scotland alone. He does not have to decide to follow what is being done in England any more than my noble and learned friend the Lord Chancellor, in introducing his legislation, had to follow what was being taken on board in Scotland.
It has been the decision of the my right honourable friend the Secretary of State for Scotland that, although he is prepared to put forward a scheme, subject to all the safeguards that we shall discuss in due course, so that such lay persons may have rights of audience, he does not consider it appropriate to permit them to take that final step and sit as Senators of the College of Justice. The noble and learned Lord may think that there is less than completeness in the driven logic of the situation. But the fact of the matter is that he has not taken that step.
If I appear slightly startled, it is because, as I understand it, that is exactly what the noble and learned Lord would consider is the position that my right honourable friend should adopt. I do not think that I can elaborate on it other than to say that the noble and learned Lord asked me one question which I do not think I have answered; namely, that about the members of the College of Justice. Yes, if they have rights of audience in the Court of Session, it would follow that they become members of the College of Justice.
Lord Macaulay of Bragar: Before the noble and learned Lord sits down, perhaps I may say that the noble and learned Lord, Lord McCluskey, has raised the spectre of what he calls, I think, five ex-bare-footed pleaders sitting in this House judging a Scottish case. It is a very interesting thought. I do not think that the question has been answered. I must say I had not thought about it until I heard the noble and learned Lord raising the point, if that is what he was raising.
If it comes as a novel proposition to the noble and learned Lord the Lord Advocate, will he go back to the noble and learned Lord the Lord Chancellor and try to exercise some influence on him about that situation? It is perhaps a pretty frightening prospect.
Lord Eraser of Carmyllie: Perhaps I may briefly respond to that. No. If there are those who become Members of this House and sit on appeals that come from Scotland, it has never been the practice to look behind their elevation to the highest court in the land to discover whether or not they have had any experience either as judges or as pleaders which would help them to decide upon the law of Scotland. The opposite also holds true. I find the prospect of five of those so-called barefooters sitting in judgment in this House a little on the fanciful side, shall I say? However, if they have, by their experience and abilities, come all the way up through the courts to sit here in the highest court, it does not seem to me as a Scots lawyer that I should look behind that experience and ability.
Lord Emslie: I should like to ask a question. Perhaps I did not hear what the noble and learned Lord said. Does he intend to tell us that there is anything in this Bill which will make any solicitor who acquires a statutory right of audience a member of the College of Justice? Is he going to suggest that there is anything in this Bill which will make what the noble and learned Lord, Lord McCluskey, calls a "barefoot lawyer" a member of the College of Justice? The two things are quite distinct. To have a statutory right of audience is one thing; to be a member of the College of Justice is quite another. If he can point out to me anything in this Bill which innovates upon the constitution of the College of Justice, I shall be glad to hear it.
Lord McCluskey: There is one matter that I want to mention. Today is the fourth birthday of my grandson. Occasionally he is a naughty little boy and when I say to him, "Don't do that", he replies, "Why not?" to which I answer, "Because I say so". That is the answer that we keep hearing from the noble and learned Lord the Lord Advocate. I keep asking, "Why is this being done?" and he says, "Because the Secretary of State decided to do it".
The Committee will note that I have asked this question time after time and have not been given an answer, That is absolutely and totally unsatisfactory. Were it not for the lateness of the hour, I should certainly divide the Committee on this amendment, but I promise that I shall be back again with this matter.
Baroness Carnegy of Lour: Before the noble and learned Lord withdraws his amendment it occurs to me that the government of the day have not included the so-called barefoot pleaders as potential judges because they think that the people of Scotland would prefer it otherwise. They do not think that it would be appropriate. I understood that and that is my feeling.
If the noble and learned Lords, who, if I may say so, have been bullying the noble and learned Lord the Lord Advocate in a most unattractive way, feel that they want barefoot pleaders as judges, they should table an amendment at Report stage and the House will vote on it. I shall probably vote against it but I do not know and I shall listen to the arguments. However, to go on like this is honestly not what the people of Scotland would want. I have a funny feeling that in this instance the Government may well have got the matter right in the view of the people of Scotland.
10.15 p.m.
Lord McCluskey: The noble Baroness intervened while I was technically still on my feet. May I just say that she has given an answer. Surely as a respected Member of this House of many years' standing she must agree with what I say, that the answer as to why the Government are acting as they are ought to come from the Government. It should not be left to Back Benchers.
Lord Fraser of Carmyllie: I have said now repeatedly in this extended debate that the Secretary of State considers that it is not appropriate. He is the policy Minister in Scotland. I do not think there is anything between what I have said and what the noble Baroness has said.
Lord Emslie: I wonder whether the noble and learned Lord would answer the question which I put with specific reference to the College of Justice and the potential membership of that college of persons who acquire in one way or the other statutory rights of audience.
Lord Fraser of Carmyllie: I stand corrected. I do not want to develop the point and I can discuss it with the noble and learned Lord later. But I understood that, for example, a solicitor is a Writer to the Signet. Is that person not a member of the College of Justice?
Lord Emslie: It is in the Act of Union.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 230:
Page 24, line 23, leave out ("or other").
The noble and learned Lord said: This amendment is in the names of my noble and learned friends and myself. It is apparent that whoever this barefoot lawyer may be is totally unclear. There is something perhaps to be said, though apparently we get no reason, apart from that the Secretary of State thinks it should be so without telling us why. Surely we are entitled to know what other bodies are in the mind

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of the Secretary of State if he thinks it is appropriate that a non-professional other body should have a right of audience. Surely we are entitled to know who they are.
My noble and learned friend at Second Reading suggested some potentials, and I do not want to cramp his style if he wishes to add to the list. But "Any professional or other body" is so imprecise that we are surely entitled to know, if the Government have anybody in mind, at least who that other body might be. I beg to move.
Lord McCluskey: My reason for putting down this amendment in association with my noble friends was to get answers to certain questions. One of them I asked on Second Reading and I did not get the answer then. But the questions are these, and I hope that it is not bullying to ask the Lord Advocate of Scotland, who holds one of the five great offices of state of Scotland, a question in the House of Lords.
First, which bodies have in Scotland expressed an interest prior to the publication of the Green Paper in having these rights of audience? Secondly, which bodies, if any, suggested these rights of audience? Thirdly, whom does the noble and learned Lord the Lord Advocate have in mind? I understand it to be suggested that possibly patent agents might be such persons.
I introduced into this House and conducted the Committee stage and other stages of the Patents Bill in the late 1970s. At that time what the patent agents wanted to do was to take all the patent work from Scotland to London where they believed it belonged, because there is very little work indeed in Scotland. So I do not know whether the patent agents are the ones that the noble and learned Lord the Lord Advocate has in mind.
It has also been suggested that it might be insolvency practitioners. It may be, but in any event I say no more than that both of these are professional bodies. We want to know who are the non-professional bodies that will be given a right to come in as barefoot pleaders. That is what I am interested to know.
But the real deep question, and the one to which I must have an answer at the risk of being accused of bullying, is this. Which body, and in particular which non-professional body, is to be accorded the right to license its members to conduct criminal jury trials in the High Court of Justiciary in Scotland? That is what the Bill permits. It may be that the Lord Advocate has in mind nothing more than that CAB people will appear in the district court or the sheriff summary courts. If that is so, that is what the Bill should say. But who on earth are the people who are to appear as non-lawyers conducting criminal jury trials in the High Court of Justiciary in Scotland?
Lord Grimond: I support the amendment. The provision is extremely widely drawn. It refers to other bodies which are not professional bodies. I do not know whether there is a definition of professional body. The provision may have been inserted because there is no such definition. But as it stands it can
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mean a body with no qualifications, with no standards of conduct and with no rules. If that is the case I should like to know why the provision does not say "any body". If any non-professional body can apply for audience, why cannot any person do so?
Lord Morris: I want to ask the noble and learned Lord, Lord McCluskey, a question. In the dim and distant past he was a member of a previous government. Am I right to assume that he has given my noble and learned friend the Lord Advocate notice of his questions? In the interests of good debate and order, am I right in assuming that he has done so? I sincerely hope that he has.
Lord Renton: The noble and learned Lord is not obliged to.
Lord McCluskey: Whether or not I am obliged to, the answer is, yes, I have. The noble Lord, Lord Morris, attended the Second Reading debate and took part in an earlier debate on this matter. If he reads the report of the Second Reading debate he will find that I asked the specific question; which body does the Lord Advocate have in mind to be able to license its members to conduct criminal jury trials in the High Court of Scotland? I asked that question. The other questions that I have asked are implicit in the amendments to which I have already referred relating to the better administration of justice and to the appointment of laymen to the High Court. These amendments arise later on. They are all connected and that is why I mentioned them.
I should have mentioned one other point. When the noble and learned Lord the Lord Chancellor was Dean of the Faculty of Advocates he addressed himself to this very question. Question 52 asked: is it considered that any existing monopoly should be maintained, and if so, why? On page 83 of the official note of the proceedings, the noble and learned Lord addressed himself to the particular question of whether or not there should belay pleaders. He came to the conclusion that that should not happen. He said in regard to solicitors:
"It is thought that the fact that some solicitors are capable of presenting cases to a high standard does not of itself justify opening the superior courts to the solicitors' profession as a whole".
The conclusion was that the existing monopoly provides a reasonably satisfactory solution. He then went on to consider the specific matter of the lay pleaders and said finally:
"We feel that, having regard to the availability of legal aid, there is no compelling reason for opening lower courts and tribunals to lay representatives. The proper functioning of all judicial bodies does require a basic understanding of the procedure and of relevancy. However hard this might bear on occasional individuals, the overall administration of justice might be seriously imperilled by lay representation".
I repeat that phrase:
"the overall administration of justice might be seriously imperilled by lay representation".
That was the view of the Lord Chancellor when he was Dean of the Faculty of Advocates. That is the view to which he said he still adhered when answering questions in relation to the Courts and Legal Services Bill. This is a matter of great

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importance. I am not bullying the Lord Advocate. I am asking proper questions which go to the heart of a Bill of great importance. I hope that that will be acknowledged by the Committee.
Lord Macaulay of Bragar: The side note to Clause 21 reads:
"Rights to conduct litigation and rights of audience".
That is commendable and I take no objection to the principles outlined. I am aware that lawyers are now being criticised for not being up to the mark in specialist fields such as social security. It is almost impossible for a lawyer to keep up-to-date with all the legislation that is being passed. It may well be that there are bodies, or persons representing them, which are better informed on a factual basis— and sometimes on a legal basis— than are lawyers.
Would it not be better to limit those initially being given the right to conduct litigation to members of a professional body— earlier the noble and learned Lord mentioned accountants— and see how the scheme works when such people obtain the extended rights of audience? If the scheme works— and only time will tell— no doubt other bodies which wish to obtain the right to conduct litigation will make their voices heard if they believe they can do the same as the professional bodies.
The Earl of Selkirk: Anyone who wishes to train can become a member of the Faculty of Advocates. It depends on one's intelligence, ability and so forth. One is putting forward a special class of people, somewhat ill-defined, and saying that they will have special entry. Can we have an explanation of that? Why should certain people at a certain age have special entry? They merely have to present themselves and they can become members of the faculty. Indeed, they can also become solicitors. What then is the advantage.
If the noble and learned Lord reads The Scottish Legal Profession: the Way Forward, a document which was published three or four months ago, he will see that the Secretary of State said that many such ideas came from England. He said that there were other consultations but we do not know with whom. They do not appear to have been with those in Parliament House, although I may be wrongly informed. From where does the inspiration come and who put forward the ideas? We are studying the administration of justice, as is the Secretary of State, and a litle connected logic would not be wholly out of place.
The Earl of Balfour: Before we go much further I wish to draw the Committee's attention to Amendment No. 245A at the top of page 7. I did not want to intervene earlier because it was clear that Amendments Nos. 229 and 230 could be easily incorporated into the new clause. However, shortly I shall become completely lost if we carry on with Amendment No. 231 and others.
The new clause, which will be introduced by my noble and learned friend, will become part of the Bill and whatever discussions we have on the old Clause 21 will not make much sense. I am not fully
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familiar with the proceedings of the Committee but it appears that we shall quickly become lost if we talk about new or old Clause 21.
Lord McCluskey: The noble Earl asked a proper question but I differ from him. If we go straight to Amendment No. 245A there is no way in which we can deal with the individual points as is possible if there are individual amendments. We should deal with the clause as a whole and that would be all. The only way in which we can discuss the particular matters is to do so in the way in which they are now set forth. After seeing Clause 21 I deleted those of my amendments which could be dealt with properly in relation to Amendment No. 245A. The only way in which we can deal with individual points in Committee, as distinct from on Report, is to do so in this way. I ask the noble Earl's indulgence.
10.30 p.m.
Lord Eraser of Carmyllie: I readily understand my noble friend's confusion. However, as was said by the noble and learned Lord, Lord McCluskey, if a new clause is introduced it is correct that various points which may re-emerge should be discussed at this stage.
Perhaps I may say to the noble and learned Lord that I have sat on the Front Bench while a sort of crossfire has gone over my head. I am not concerned whether or not the noble and learned Lord bullies me. What I am concerned about is that I hold high executive legal office in Scotland and the noble and learned Lord is a serving judge in Scotland and is a senator of the College of Justice. It would be utterly unbecoming of me in my capacity as Lord Advocate to be seen to be either sharp or in political disagreement with the noble and learned Lord. That holds true whether it is in this House or outwith. The proper attitude for me, in a legal context, is deference to a senator of the College of Justice. There may be times, as happened to me the other night, when I resort to silence rather than involving myself in a political battle.
If the noble and learned Lord had been at this Dispatch Box— as he once was and where he served with some distinction— and I had been on the other side, the relationship might have been rather different. Now he is a senator, I treat him with that regard.
This clause is unnecessarily restrictive. I readily accept that if there are to be any bodies coming forward to take up the opportunity provided by Clause 21, I should expect them to come within the classification of being a professional body. Patent agents were mentioned and there may be the possibility— although they have not approached the Secretary of State or myself— that accountants see that there are certain areas of law in which they can act as may be the case with insolvency practitioners, and so on.
I emphasised— and I say this to the noble Earl, Lord Selkirk— that the powers given here to acquire rights of audience are not only in relation to the Court of Session or the sheriff court or the High Court. They could also be rights of audience which do not exist at present to appear in the lower courts.

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I have in mind particularly the sheriff court. The only group of persons of which I can think which might explain my standing here is that there has been a tentative approach made to the Secretary of State from those persons who have a great deal to do with the law of adoption. As the noble and learned Lord will appreciate, where adoption matters are dealt with in the sheriff court, they are not dealt with in an adversarial pleading fashion but in a rather different manner as the best interests of the child are properly considered.
It may be that such a group of persons could very satisfactorily provide a good service in the sheriff court. They may not happily fall into the description of a professional body and that is why the word "other" is allowed for.
While there is not a long list of those who wish to come forward, it is difficult to elaborate on it. However, it is for that reason that it goes wider than "professional body". Thus, I invite the noble and learned Lord to withdraw his amendment.
The noble Lord, Lord Grimond, rather strayed into discussion of his Amendment No. 231. Where the word "natural" is used, that is a term of legislative art which makes the distinction between an individual person and a body corporate which may also be described in a statute as a person. The word "proper" as proposed in his amendment does not make the same distinction and therefore would not be an appropriate replacement.
Amendment, by leave, withdrawn.
Lord Grimond Lord Grimond had given notice of his intention to move Amendment No. 231:
Page 24, line 24, leave out ("natural") and insert ("proper").
The noble Lord said: In view of what the Lord Advocate has already said, I shall not move this amendment.
[Amendment No. 231 not moved.]
Lord Morton of Shuna Lord Morton of Shuna had given notice of his intention to move Amendment No. 232:
Page 24, line 25, leave out ("members of the public") and insert ("other members of that body").
The noble and learned Lord said: I repeat that this amendment is not to be moved on the ground that we can look at this matter when we come to look at the new clause.
[Amendment No. 232 not moved.]
[Amendment No. 233 not moved.]
Lord McCluskey Lord McCluskey moved Amendment No. 234:
Page 24, line 35, at end insert—
(" (v) what is to happen if in the course of the proceedings there are raised matters of law in relation to which neither membership of such a body nor the training referred to in paragraph (b) hereof confers any knowledge or expertise, ").
The noble and learned Lord said: This amendment raises a point of which I gave notice to the Lord Advocate at Second Reading. I trust that he has had plenty of time to produce an appropriate answer. The point is a fairly straightforward one which any lawyer can understand, but it is also not difficult for anyone else to understand.
The point is that one might have a situation in which a person is very well skilled, for example in relation to an insolvency or patent case, and so becomes qualified to act in relation to proceedings of that particular type. He comes into court and finds that the defence which is raised is nothing to do with that branch of the law in which he has special skills; it is in relation to fraud or something of that kind. I have a number of examples from the insolvency and bankruptcy Acts, but at this time of night I will not go into them in detail.
I do not suggest that this amendment is technically sound— it is no doubt technically highly deficient— but my point is that there has to be some way of dealing with the situation which arises when a person, having been allowed to practise in a limited class of proceedings, comes forward and finds himself faced with legal questions which his training does not qualify him to deal with. That is my point, and I should be interested in the answer.
Lord Fraser of Carmyllie: The noble and learned Lord's amendment is defective in that it does not have a question mark at the end of it. I appreciate that there are groups of specialists who wish to have rights of audience and that surrounding that area of specialisation other legal issues may arise.
There are two answers to the question asked by the noble and learned Lord. First, if a body came forward with its eye on a specific narrow range of legal work, when the Lord President looked at the scheme proposed I envisage he would expect it to show an expertise in the surrounding areas of law, not only in the one at the core of its interest.
Secondly, there are clearly difficulties from time to time. However, it would be vain and foolish to pretend, particularly in the present day, that lawyers are competent and confident in every area of law. There may be times when they encounter difficulties and need to get out of appearing in a particular case.
That is all I can say. If for example, I go back to my adoption law proposal, it is unlikely in such circumstances that those who appear would need expertise in patent law. From what the noble and learned Lord said, however, I am sure that there are areas where one needs to know a bit more than the core subject. That matter can be properly dealt with in any scheme prepared.
Lord McCluskey: It is a pity that I did not go into the details of the insolvency and bankrupty Acts in order to illustrate my point. Those Acts contain provisions which make certain things a criminal offence. In this Bill an insolvency practitioner may perhaps appear as an advocate in a criminal court dealing with insolvency matters. I could give example after example of circumstances in which he may appear for the defence in a case of alleged breach of one of the sections of those Acts and find that he was simply unable to deal with the matters, which fall totally outwith his training and experience.
It is an astonishing answer that the Lord Advocate gives, that the only body which has expressed an interest— I take it that is since the publication of the Green Paper— is a body connected with adoption in

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the sheriff court. If that is the position, why on earth are we conferring these rights in civil and criminal courts, right up to the highest courts in the land, on all kinds of people none of whom has expressed an interest? I am disappointed but I do not propose to pursue the matter at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 234A:
Page 24, line 38, after ("training") insert ("and educational").
The noble Lord said: This is a short amendment and I should have thought that its purpose was obvious. Unless a person is properly educated he cannot be trained. It would perhaps partly answer the question posed by the noble and learned Lord, Lord McCluskey, on his previous amendment as to how the professional body, or member of it, can be gauged as having the requisite educational requirements. This would, of course, cover training in the law relating to his particular expertise. At least it will go some way towards meeting the problem posed by the noble and learned Lord. I beg to move.
Lord Renton: While I have some sympathy with the amendment— I hope this is not too small a point to take— with great respect I think education should come before training.
Lord Fraser of Carmyllie: Subsection (2) (b) (i) already makes clear that any application submitted under this clause would require details of the training requirements which the body would impose upon its members if it were to be successful. I therefore suggest that the first two of these amendments are unnecessary. The word "training" here is not confined to "practical training" and is therefore wide enough to encompass the acquisition of knowledge as well as skills.
In this respect we have a difference from the Solicitors (Scotland) Act 1980, Section 5 of which refers both to "practical training" and to "education". Because of the unqualified reference to "training" there is no need to refer here to "education". Amendments Nos. 234C and 234D would likewise add little.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord for that answer. To reply to the observation of the noble Lord, Lord Renton, I made the point that a person has to be educated before he can be trained. If the amendment were to be taken on board, that could be corrected.
I am not happy with the answer given by the noble and learned Lord but I do not propose to press the amendment. I should also have discussed Amendment No. 234B, to which the noble and learned Lord also replied, but in view of the lateness of the hour I do not intend to take up the time of the Committee on that matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 234B to 234D not moved.]
The Chairman of Committees: I call Amendment No. 235. If this amendment is agreed to, I cannot call Amendment No. 236.
Lord McCluskey Lord McCluskey moved Amendment No. 235:
Page 25, line 13, leave out subsection (3).
The noble and learned Lord said: I can be brief on this amendment. The Committee will see that subsection (3) empowers the Secretary of State to regulate,
"such other matters as may be prescribed by [him] ".
I believe that to be a classic example of what was frequently referred to in the Courts and Legal Services Bill as a Henry VIII clause. We are giving the Secretary of State power to do we know not what.
I do not know why that power is there. I do not believe it is the practice of this Chamber to accord such powers to the Secretary of State unless he tells us what they are for. I am anxious to hear from the Lord Advocate what powers are covered by those words. I beg to move.
Lord Fraser of Carmyllie: The purpose of the amendment is either to remove entirely the power given to the Secretary of State under subsection (3) to prescribe in regulations further matters to be included in any draft scheme submitted by an applicant body under this clause, or to pass the responsibility for so prescribing to the Lord President. The Committee will readily appreciate that to remove this power entirely would be a potentially dangerous step.
The list of matters to be included in any draft scheme is not exhaustive and it is important that the Secretary of State should have a long stop power to add further requirements should circumstances develop in such a fashion as to demand this. I cannot accept that the court would be an appropriate body to exercise this task, since the breadth of the court's responsibilities cannot be compared with those of the Secretary of State. For instance, I return to the amendment moved by the noble Lord, Lord Macaulay. If there were problems about training and if questions of education arose, it might be appropriate for the Secretary of State, by way of regulation, to include such matters.
Lord McCluskey: I shall study that answer in due course. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 235A had been withdrawn from the Marshalled List.]
10.45 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 236:
Page 25, line 15, leave out from ("the") to end of line 16 and insert ("the Court by Act of Sederunt or by Act of Adjournal").
The noble and learned Lord said: Members of the Committee will see that what is proposed here is that the draft scheme submitted under this clause is to include proposals
"in relation to such other matters as may be prescribed by the Secretary of State".
My noble and learned friend Lord Emslie and I have put our names to this amendment. The prescription

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should be by the Court of Session, that is to say, the judges, by Act of Sederunt or, as the case may be, by Act of Adjournal. If these matters are to be of importance they should certainly be regulated, along with the Secretary of State, by the Lord President and the other judges. I beg to move.
Lord Fraser of Carmyllie: I thought that we were addressing this matter when speaking to the last amendment.
Lord McCluskey: Perhaps I have not made myself plain. I did beg to move Amendment No. 236 which stands in my name and that of my noble and learned friend Lord Emslie. That is the amendment that I have spoken to; it is also the amendment that I moved.
Lord Macaulay of Bragar: In answering Amendment No. 235 moved by the noble and learned Lord, Lord McCluskey, I believe that the noble and learned Lord the Lord Advocate made reference to subsequent amendments which have not been moved at the moment.
Lord Fraser of Carmyllie: The noble and learned Lord said that he would read what I had said in relation to the last amendment. I had covered what I thought we were dealing with in a coupled fashion; namely, his Amendment No. 236.
Lord McCluskey: Perhaps one of the reasons why matters are becoming somewhat unsatisfactory is that we had understood that proceedings were to end at 10.45 p.m. A number of other Members of the Committee have retired in that belief. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCluskey Lord McCluskey moved Amendment No. 237:
Page 25, line 16, at end insert:
(( ) "The Lord President shall have power to engage such additional staff as he considers necessary for the performance of his duties under this section.").
The noble and learned Lord said: I understood that the noble and learned Lord the Lord Advocate would deal with this matter and we spoke about it earlier. The point is a general one. The wording of the clause is perhaps unsatisfactory, but the meaning is plain. Clauses 20 to 22 place additional responsibilities on the Lord President. My noble and learned friend Lord Emslie was going to deal with this matter because, having been Lord President for 17½ years, he could speak with some feeling on the fact that his staff consists of one typist. He has the assistance of two part-time counsel who assist in the drawing up of rules, the regulation of fees and other matters of that kind. He is to be given a great many additional responsibilities as regards all these matters. It is very important that the Government should recognise that. We should get some undertaking from the Government.
The other point is that, in giving that undertaking, I ask the Lord Advocate to indicate to what extent
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he believes that there will be additional work involved. In other words, does he think that there will be such a demand from professional and other bodies for schemes of this kind and for rights of audience under this clause that extra staff will be required by the Lord President? If the noble and learned Lord does not think that, then what is it all about?
Lord Grimond: While I agree with the purpose of the amendment, is it customary to embody such provision in legislation? I never remember seeing anything like it before in an Act. Does the Secretary of State not have power to authorise the Lord President to have the staff and expenses necessary for carrying out an Act of Parliament?
Lord Macaulay of Bragar: I rise briefly to support the amendment. In so doing I draw attention to the fact that in Schedule 1, paragraph 8, in setting up the Scottish Conveyancing and Confirmation Practitioners Board, it is said that,
"The Board may employ such officers and servants as they think fit, on such terms as to remuneration and conditions of service as the Board may determine".
We find a similar provision in relation to the ombudsman in Schedule 2, paragraph 10, although it is the Secretary of State who appoints the staff there. It seems to me that the Lord President is being put in the position notionally— it may not work out that way— of setting up another department equivalent to the board or the ombudsman. It would be only fair in order to take the burden off the shoulders of an individual that he should be allowed to consider whether extra staff are necessary to carry out the legislation imposed.
Lord Renton: On a financial matter of this kind one would expect to find some reference in the Explanatory and Financial Memorandum under the heading "Financial and manpower effects of the Bill". Although the extra cost expected under various other clauses is mentioned, there is no mention of the extra cost to the Secretary of State, the Director General of Fair Trading or indeed the Lord President as a result of the two clauses which the noble and learned Lord mentioned, namely, Clauses 20 and 21, which will establish a very considerable administration.
Lord Fraser of Carmyllie: The amendment seeks to provide the Lord President with a power that he simply does not need. I accept that the duties imposed on the Lord President by this Bill may give rise to further work for his office. He does not, however, need a power in primary statute to engage additional staff, presumably at some cost. That may be, as the noble Lord, Lord Grimond, appreciates, a rather startling idea. If, however, the Lord President feels that it is necessary, he can approach the Secretary of State, who is responsible under the Administration of Justice (Scotland) Act 1933 for the appointment of staff of the Lord President's private office, and that has to come from general taxation. However, I think that it would be an undesirable precedent to give the Lord President a power in this way.

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Perhaps I may also repeat that, with regard to Clause 21, in view of what has been said to the Lord President about commencement, I hope that any extra work that is imposed upon him will at least be levelled out.
Lord McCluskey: That is a satisfactory answer. I am happy to accept it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 237A:
Page 25, line 16, at end insert:
(" (3A) The Secretary of State shall by regulations made under this section make provision

(a) requiring applications under subsection (1) above to be adverlised;

(b) for draft schemes to be published or otherwise made available for inspection by members of the public; and

(c) for the making and consideration of objections or representations by members of the public or interested bodies.").

The noble Lord said: This is an amendment to ensure that the Secretary of State shall, by regulations, make provision for applications under this section to be properly advertised and published so that the members of the public can give the Secretary of State their views on the nature of the application. It may be that some members of the public might have more knowledge about the matter and about the individuals involved than the Secretary of State or anyone else. It is an amendment made in the interests of the public and public involvement and indeed to promote a public interest in the clause.
This amendment is grouped with Amendment No. 242B, the purpose of which is to ensure that having advertised and received representations in accordance with the regulations proposed under the new clause, the Secretary of State will take the public response, if any, into account in making a decision.
Lord Fraser of Carmyllie: I understand the point that the noble Lord is making. There is some risk that in the way it is approached it might appear that a scheme is being approved in a somewhat clandestine manner. Obviously it is not our intention to do that. Nor would it be our intention to set up a too elaborate arrangement or set of complicated duties with regard to intimation, advertisement and the like. We certainly would not want a measure such as one finds frequently under such legislation as the town and country planning provisions. However, I understand why there might be a desirability to have some intimation, perhaps to such bodies as the Faculty of Advocates and the Law Society. I should be grateful if the noble Lord will withdraw the amendment and let me take it away for further consideration.
Lord McCluskey: Before the noble Lord withdraws the amendment, perhaps I may say that we shall shortly come to some amendments which will take
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me a considerable time to develop if we deal with them tonight. Accordingly I am happy to say that I support the principle of this amendment.
Lord Macaulay of Bragar: In putting the amendment forward I was not suggesting that there was anything clandestine in the actions of the Government. I am happy with the answer that has been given by the noble and learned Lord and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 237B not moved.]
Lord Emslie Lord Emslie had given notice of his intention to move Amendment No. 237C:
Page 25, line 43, at end insert:
(" (c) in determining whether or not to approve any such scheme the paramount consideration to which the Lord President shall have regard is whether or not the acquisition and exercise by such persons of such rights would, in his opinion, be likely to further the administration of justice".).
Lord McCluskey: Perhaps the Lord Chairman of Committees could assist me. The noble and learned Lord, Lord Emslie, has left the Chamber because he wished to catch the train back to Edinburgh tonight. He understood that this matter would probably not be reached because the Committee was likely to rise. That does not matter because he intimated to me that he was quite content that the amendment should not be proceeded with since the same matter is covered by Amendment No. 239. We can deal with Amendments Nos. 237C and 238 quite quickly but certainly not Amendment No. 239.
[Amendment No. 237C not moved.]
Lord McCluskey Lord McCluskey had given notice of his intention to move Amendment No. 238:
Page 25, leave out lines 45 and 46.
The noble and learned Lord said: I do not propose to move this amendment because it does not appear in the new clause. Therefore there is no point in discussing it.
[Amendment No. 238 not moved.]
Lord McCluskey: I intend to move Amendment No. 239 if the Committee continues to sit.
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.

Nottingham Park Estate Bill [H.L.]
Returned from the Commons with amendments; the amendments considered and agreed to.
House adjourned at four minutes before eleven o'clock.