Sitting of 15 July 1966

Preamble
The House met at Eleven o'clock
PRAYERS
[Mr. SPEAKER in the Chair]
BILL PRESENTED
  MERCHANT SHIPPING
  Bill to amend Section 92 of the Merchant Shipping Act 1894 presented by Mr. Eric Ogden; supported by Dame Joan Vickers, Mr. James A. Dunn, Mr. Peter Bessell, Mr. Kevin McNamara, Mr. John Tilney, Mr. John Rankin, Mr. Albert Murray, Mr. Roy Hughes, Mr. Edward M. Taylor, Mr. Gerard Fitt, and Mr. Richard Mitchell; read the First time; to be read a Second time upon Friday, 22nd July, and to be printed. [Bill 81.]
ORDERS OF THE DAY
  RESERVE FORCES BILL
  As amended (in the Standing Committee), considered.
  RESERVE FORCES BILL

    Clause 2.—(ESTABLISHMENT OF SPECIAL FORCE IN VOLUNTEER RESERVE.)
    11.6 a.m.
    The Under-Secretary of State for Defence for the Army (Mr. David Ennals): I beg to move, Amendment No. 1, in page 1, line 15, to leave out "special force" and to insert
    "force for home service (hereafter in this section referred to as ' the home service force')".
    Mr. Speaker: It may be convenient for the House to consider, at the same time, Amendments Nos. 2, 4, 5, 6, 7 and 10.
    Mr. Ennals: That is convenient, Mr. Speaker, because the effect of this series of Amendments is that we would cease to describe the T. & A.V.R. III—that is, the Territorials—as a special force, and instead would call it a home service force.
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    The Amendments are designed only to meet the views expressed by the Opposition in Committee. Hon. Gentlemen opposite argued that if we used the term "special force" it might be confused with the special constabulary or might create some confusion with the Special Army Volunteer Reserve. In Committee I promised to look into the matter to see if I could find a more acceptable form of words that would help to remove any possibility of confusion. Whatever words we write into the Bill, the force will be known as the Territorials. If there should be any opposition to the Amendment by hon. Gentlemen opposite, we would happily withdraw it, but we think that these words meet the point.
    Mr. J. Enoch Powell: I can hardly believe that the purpose or value of this series of Amendments is, as the Under-Secretary said, only to meet the views expressed by my hon. Friends and myself in Committee. I thought that it would be generally felt that the expression "home service" is a better description than "special force" for the purpose of this part of the new Territorial and Army Volunteer Reserve and that it would be regarded as both more accurate and less derogatory that it should be described statutorily as "the home service force" rather than "the special force". Although the manner in which the concession was made was, perhaps, slightly patronising, we regard it as an improvement.
    We recognise, and are glad, that this part of the new volunteer reserve will be known as the Territorials and will thus bear forward into the future that honoured description. Whatever is the term used in common parlance, it is nevertheless right that we should seek to find as appropriate, as decent and as acceptable a statutory term as we can to write into an Act of Parliament.
    Amendment agreed to.
    Further Amendment made: No. 2, in line 18, leave out "special" and insert "home service."—:[Mr. Ennals.]
    Amendment proposed: Amendment No. 3, in line 20, leave out "are appointed as" and insert "become".—[Mr. Ennals.]
    Mr. Powell: Does the Under-Secretary of State propose to offer an explanation of ibis Amendment?
    Mr. Speaker: I understood that several Amendments were being taken together.
    Mr. Ennals: I beg your pardon, Mr. Speaker. I should have explained that this Amendment was one to meet points made during debate when it was suggested that it would create some confusion if we had a form of words which was used in a different sense in another part of the Bill. I said in Committee that it was our intention to bring forward this Amendment.
    Amendment agreed to.
    Further Amendments made: No. 4, in line 22 [Clause 2], leave out "special" and insert "home service".
    No. 5, line 2 [Clause 2], leave out "special" and insert "home service".
    No. 6, line 6 [Clause 2], leave out "special" and insert "home service".
    No. 7. line 13 [Clause 2], leave out "special" and insert "home service".— [Mr. Elam's.]

    Clause 5.—(CALL OUT OF RESERVES IN CASE OF NATIONAL DANGER, ETC.)
    The Minister of Defence for the Army (Mr. G. W. Reynolds): I beg to move Amendment No. 8, in line 1, to leave out subsection (2) and to insert:
    (2) Where an order is made under subsection (1) of this section the occasion thereof shall forthwith be communicated to Parliament; and if Parliament is then separated by such adjournment or prorogation as will not expire within five days, a proclamation shall be issued for the meeting of Parliament within five days, and Parliament shall accordingly meet and sit upon the day appointed by the proclamation, and shall continue to sit and act in like manner as if it had stood adjourned or prorogued to the same day.
    Mr. Speaker: With this Amendment the House will discuss the Amendment to it, in the name of the right hon. Member for Wolverhampton, South-West (Mr. Powell), to leave out "occasion" and to insert "making".
    Mr. Reynolds: Almost all the Government Amendments on the Order Paper arise from points made in Committee. This is rather different from many of the others. Usually in Committee the Opposition try to bring in an argument that Parliament should have
    1898
    greater control over decisions, and in Committee there was discussion as to the ways and means by which it would be possible to inform Parliament of any action taken under these provisions to call out the Reserves. But though some arguments were designed to strengthen Parliamentary control, the further we got into the discussion the more difficult we realised that would be, because of the extreme difficulty of spelling out exactly what would happen. As the Clause is at present drafted, it means that Parliament in certain circumstances would have to be informed before the Order was made. The expression used is "Parliament", and immediately we have the problem whether that means both Houses of Parliament sitting or whether it means only one House sitting at any time. There could be different points of view.
    Another difficulty, which has arisen since our discussions in Standing Committee, is that if one has to inform Parliament before the Order is made, exactly at what stage is the Order made? I am advised that an Order would be made once the Queen had signified her assent to it even though the Secretary of State had not put his signature upon the paper. Clearly, we could not go before Parliament with the Order before approaching the Queen for her consent. That is another difficulty which has arisen since our discussions in Standing Committee.
    What we now propose is to put into the Bill provisions which unfortunately the House experienced in the last few weeks when the proclamation of emergency was made. Action has been taken on these lines in the last few weeks and, having looked at it, we feel that this is the best way of dealing with the problem now that it has been drawn to our attention. It will mean that the Order will be made and Parliament will be informed forthwith if Parliament is sitting. If one House is sitting, it will be informed, and the other House will be informed on the next occasion that it meets. We have made provision, if Parliament is not sitting, for Parliament to be recalled by proclamation within five days of making the Order. The original Bill provided a period of ten days, but there was some objection to that, and with modern communications it seems that five days is

    1899
    adequate time for the recall of Parliament. This fits in with the procedure which was followed during the last two or three weeks in the emergency.
    This is a matter which arises from our discussions in Committee and I hope that it meets the point which was then raised, although I am sorry that it meets the point in a different way from that which some hon. Members thought. I hope that hon. Members will accept this method, which has been used in the last few weeks and which will make sure that whichever House is sitting is informed forthwith once the decision is taken—or that Parliament is recalled within a period of five days to be informed of an occasion which necessitated the call-out of the Reserves.
    11.15 a.m.
    Mr. Powell: I beg to move, as an Amendment to the proposed Amendment—
    Mr. Speaker: Order. I have selected the Amendment to the proposed Amendment for discussion, but it will not be moved.
    Mr. Powell: I am obliged, Mr. Speaker. In fact it would be more convenient if I could make in one speech the three points which I wish to make upon the Minister's Amendment. As the Minister said, the normal activity of an Opposition is directed to ensuring that Parliamentary scrutiny of the Government's acts is preserved and widened and our debates in Committee on this point were an apparent exception to that general rule. They were, however, only an apparent exception and they conformed to another rule. They were an apparent exception because everyone knows that in the event of an Order of this kind being made, it is the general support for it which any Government would have to have from Parliament that is the control upon the executive, and we are concerned therefore, in getting the right wording here—not with the control of Parliament over the executive which would have to be exercised in such a case but in ensuring that we put on the Statute Book words which are intelligible injunctions to the executive, which it is practicable to carry out, and terminology which as far as possible is unambiguous.
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    Our debates in Committee brought out the fact that the new form of drafting which the Government originally brought forward in Clause 5 was defective in a number of respects, and I think that we can therefore claim that the work done in Committee was useful. I am sure that the Government are now right in adopting the much simpler approach which is embodied in the Minister's Amendment. I should like to put forward three points in connection with it for consideration at subsequent stages of the Bill because, unless it is your intention, Mr. Speaker, to certify this as a money Bill, we shall fortunately have the opportunity at subsequent stages to have further thought and to make further improvements.
    The first point to which I would draw attention concerns the word "forthwith" in line 2 of the new subsection. I take it that this word which, incidentally, by a later Amendment No. 11, is being substituted for the words "as soon as may be", is intended to mean and will mean that at the first opportunity after the making of the Order there shall be a communication of the fact to Parliament and that consequently in the case of Parliament not being adjourned or prorogued but being dissolved, and there being no Parliament, the force of the word "forthwith" would be that as soon as a Parliament came into existence again it would be the duty of the Government to inform Parliament of the Order.
    My second point is to draw attention to the word "expire" in line 3. It may be that there is precedent for use of the word "expire" in connection with Prorogation. I have not been able myself to make research into this matter, but I ask the Minister to check it before the Bill goes to subsequent stages because, whereas expiry is a natural and proper notion in relation to an Adjournment which implies absence for a period of time, it is difficult to see how "expire" can properly be anplied to Prorogation, which is an act of the Crown. I ask the right hon. Gentleman, therefore, to check whether there is already precedent for application of the word "expire" to Prorogation and, if not, whether he will consider whether some other formula would be appropriate.
    Third, there is the point to which our Amendment refers. At an earlier stage,

    1901
    the Minister drew attention to the inconvenience, or possible inconvenience, which the use of the word "occasion" in this context in earlier legislation such as the Reserve Forces Acts of 1950 might involve, namely, that the Government would have to spell out to Parliament the precise nature of the occasion which involved the making of the Order and that this would mean either that there would be a trivial formality, a purely formal use of words, or that the Government might find that they had to say things which were inconvenient or embarrassing in the international situation.
    I should have thought that, if we were looking at this question again, we need not import the difficulties which were believed to inhere in the word "occasion". Clearly, if such an Order were made, it would he within the right of either House of Parliament to stage a debate upon it. The parties would be guided by the nature of the political situation at the time, and any patriotic Opposition would nit wish to embarrass the Government in a national emergency by forcing a debate which might result in things having to be said publicly which were better not said publicly at that stage.
    It seems to me that, by using the word "occasion", we still land ourselves in the old potential difficulty and that the Minister might go further in simplification by using the term "the making thereof", "the fact of the making thereof", or some other formula instead.
    Mr. Reynolds: On the first point, I assure the House that "forthwith" does mean as soon as it can possibly be done, when the House is sitting or when it is recalled under the provisions of the Amendment. As I said earlier, the word "forthwith" is used here because we are following the precedent of the Emergency Powers Act, 1920, in which the word "forthwith" and, later, the word "occasion" are actually used, and we thought it desirable to adopt a formula which has been tried and used on several occasions. It is known to work well. There is a slightly different point regarding the word "occasion", and I shall come to that in a moment, but the word "forthwith" here is based upon that successful precedent. It means as
    1902
    soon as may be, as soon as we can bring the matter before the Houses of Parliament when they are sitting.
    As regards the word "expire", we are again trying to carry forward here the provisions of the 1920 Act, but I shall check the point raised by the right hon. Member for Wolverhampton, South-West (Mr. Powell) to make sure that it is all right.
    The position is the same regarding the word "occasion". It follows the 1920 Act. There could be the difficulties mention by the right hon. Gentleman in the calling up of Reserves and not wanting to give too much public information, but there is now a slightly different consideration compared with what we were discussing in Committee. In Committee, we were thinking of the House being informed before the Order was made. This would give very little time to formulate a proper report on the occasion. Now, however, the House is to be informed after the Order has been made, which will give a longer period, perhaps only hours on some occasions but several days on others, for the preparation of a report.
    Right hon. and hon. Members will be aware from newspaper and other reports that the Order has been made, and they will probably be aware from the same sources of what the occasion is. But the Government will be given an opportunity to express in their own form of words what the occasion is. I think that it can be done without giving information which ought not to be given, and we think it better to use the formula in the 1920 Act than to try to alter it for this particular type of action.
    Mr. R. H. Turton: The Minister's explanation regarding the word "occasion" is not very satisfactory. This is, of course, an escape from the muddle in which he was put before. First of all, he put down a form of words about informing Parliament which he had to agree, did not make sense. This suggestion was to try to provide for the proposal before the Cabinet to be communicated to the House rather than the occasion as referred to in the 1950 Act. I agree that he has now improved the Clause tremendously because it did not make sense before, but he has gone back to the word "occasion".

    1903
    I am not convinced by his argument that, after all, everyone would know about the calling up, it would be in all the newspapers, and so on. This is the very thing which the subsection is designed to avoid. Parliament should be told first. That is our right, and that is why we have the word "forthwith". If Parliament is told first, the occasion will not be generally known. We want Parliament to be told not of the occasion but of the making of the Order.
    I appreciate the difficulties at the Report stage, and I hope that the Minister will look at the matter again. We want it right. He has undoubtedly improved the Clause a great deal, but going back to the 1950 Act and using the word "occasion" is not an improvement.
    Amendment agreed to.

    Clause 6.—(CALL OUT OF RESERVISTS FOR WAR-LIKE OPERATIONS.)
    Amendment made: No. 10, in page 5, line 4, leave out "special".—[Mr. Reynolds.]

    Clause 7.—(PROVISIONS SUPPLEMENTARY TO SECTION 6.)
    Mr. Reynolds: I beg to move Amendment No. 11, in page 5, line 27, to leave out "as soon as may be" and to insert "forthwith".
    I think that it would be convenient, Mr. Speaker, to discuss at the same time Amendments Nos. 32, 33 and 34.
    The right hon. Member for Wolverhampton, South-West (Mr. Powell) referred to this Amendment when discussing Amendment No. 8. The main reason for it is to use the same wording in the two provisions. The effect is so marginal as to be non-existent, because the two expressions have the same meaning, but, having altered it in one place, we think it advisable to use the same expression throughout.
    Mr. Peter Blaker: We on this side welcome the Amendment, which has been made in response to a point we raised in Committee. It is true that the expression "as soon as may be" has appeared in past legislation, particularly legislation introduced by the party opposite, but it seems to me that it is an expression more appropriate to
    1904
    some election manifestos we have seen than to a Measure of this kind. I very much welcome the change.
    Amendment agreed to.

    Clause 10.—(DURATION OF SERVICE OF CERTAIN RESERVISTS CALLLED OUT ON PERMANENT SERVICE.)
    11.30 a.m.
    Mr. Turton: I beg to move Amendment No. 35, in page 7, line 46, at the end to insert:—
    Provided that where he is called out by virtue of section 6 (1) of this Act, he shall not be liable to sene for a period exceeding six months.
    This is our first major difference of opinion on Report. I want to explain the general position. Volunteers will be liable to be called up under Clause 5 in a time of great national emergency. They will still be liable to be called up under Section 25 of the Auxiliary Forces Act, 1953, again when they are required to defend their country. They can also be called up under Clause 6
    "when war-like operations are in preparation or progress."
    In the White Paper the Government define that contingency further by saying that
    "there is no intention to call them out under this liability unless major military operations are in progress or appear to be imminent and when a serious situation affecting vital national interests has arisen."
    Those are the three contingencies.
    There is also the position within the volunteers of the S.A.V.R.—the "Ever-Readies"—who are called out, not by Queen's Order, as the volunteers would be, but at the Minister's discretion. Their liability is limited to a period of six months.
    When the Bill was introduced no period was stipulated for call-up under Clause 5 or Clause 6. It was argued on both sides that it was a mistake not to have some limit within the Bill to the period of call-up. This is particularly important so that employers of volunteers should know what their obligation is when they are willing for a man to join the volunteers. It is also important for the self-employed volunteer to know the nature and extent of his liability.
    The Minister met some of these complaints by tabling an Amendment to

    1905
    Clause 10 limiting the periods of call-up to 12 months. This is satisfactory, certainly for any call-up under Clause 5. I cannot visualise somebody who has been called up under Clause 5 in a time of grave national emergency saying after 12 months, "I must stop now, because I have served my 12 months". This did not happen in the course of the last war with the Territorials.
    As to the third grade of call-up—
    "when war-like operations are in preparation or progress"
    I had always thought that this was a short-term emergency. I therefore suggest to the House that it is only right that the volunteers should have, as the "Ever-Readies" have, a limit to their period of call-up.
    In Committee the Minister defended his attitude on this question by saying that the volunteers would be called up by unit rather than by individuals, that it was right to have a six-months' limit to the liability of the S.A.V.R., but that as volunteers would be called up on a unit basis this was not applicable.
    I do not believe this to be a correct argument. If Clause 6 call-up is used, I very much doubt whether the majority of the call-up will be by unit. I believe that it will be by sub-unit or by individual. It must be remembered that the volunteers are not merely infantry volunteer units. Whether it is call-up by unit or by individual, it is very important that their limit of liability should not be greater than that of the S.A.V.R.—the "Ever-Readies".
    The White Paper draws this picture of what will happen in the case of call-up under Clause 6:
    "… it will be laid down in departmental instructions issued by the Defence Council that no member of the Army Volunteer Reserve other than Special Army Volunteer Reservists will be called out for warlike operations until full use has been made of Section A of the Regular Reserve …"
    I hope the Minister will correct me if I am wrong in interpreting this to mean that, in a short-term emergency, the first thing to happen will be that the "Ever-Readies" will be called up at the Minister's discretion. Then, if the "Ever-Readies" cannot deal with the position and if it tends to boil over, Section A of the Regular Reserve will be called up.
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    Finally, the Minister will, by Queen's Order, call out the volunteers.
    If this is a correct interpretation of how a Minister will exercise his responsibilities under the Bill, it is important that the last group to be called up, namely, the volunteers, should not have a longer liability for call-up service than the first group—the "Ever-Readies".
    Let us consider a battalion in which "Ever-Readies", Section A Regular Reservists, and volunteers are serving. As the "Ever-Readies" will have been called up first and as their liability is limited to six months, they will be gone after six months. The period of service of the Section A Regular Reservists, who will be called up before the volunteers, will expire before that of the volunteers. If the Queen's Order procedure is used under Clause 6 to call out the volunteers, an employer will know that the last people to return to his factory will be the volunteers. This is unsatisfactory.
    If a real national emergency arose as provided for in Clause 5, nobody would want to bother about the extent of the liability. After all, the Territorial Army hitherto was committed for indefinite lengths of time directly on a Proclamation. There was no trouble in the last war. We did not think in terms of 12 months or six months then. We are not talking about that. It is a mistake to have even that 12-month period under Clause 5. We are dealing with the narrow problem of Clause 6. As the Minister knows—we have exchanged words about this—the Territorial Council is not happy at the present state of the 12 months period. A number of the members of that Council believe that the right period for the volunteer is six months. We want to get as much good will for the volunteers as possible. I believe that this is the one real barrier to good will both amongst employers and to a certain extent amongst those who are responsible for the Territorial Army. I ask the Minister to think about this very carefully.
    I apologise that this is a starred Amendment. It was drawn co my attention late last night that the Amendment that I had tabled on this point was too wide and that it would have brought in others than the volunteers. That is why it has been altered. Nevertheless I

    1907
    beg the right hon. Gentleman to think carefully about this matter. I am not happy at the attitude of some employers to the new provisions of the Bill. Neither am I happy at the amount of publicity that the Minister has given to those provisions. There has been far too much obscurity. Therefore, if the Minister were to give way on this Amendment and make it clear that the limit of liability for the volunteers would be six months, I believe that it would do a great deal to enhance the popularity of these volunteers and encourage their recruiting.
    Colonel Sir Tufton Beamish: My right hon. Friend the Member for Thirsk and Malton (Mr. Turton), who has a very long experience of Territorial soldiering, has put the arguments for this Amendment very clearly, succinctly and persuasively. All I want to do briefly is to reinforce some of his arguments about which we feel strongly on this side of the House.
    We feel that if the need for reservists for a long period of active service overseas were so great that it was necessary to fall back on T. & A.V.R.II and call men up either as individuals or as units for 12 months, the emergency would be so serious that Clause 5 procedure ought to be invoked. This, as I see it, is the nub of the argument, although there are subsidiary arguments. There is thus no need under Clause 6 to call out T. & A.V.R.II. for more than six months.
    Suppose circumstances had arisen in which all available "Ever-Readies" had been called out and in which the section A Regular Army Reserve had been called out as well, and that things were getting pretty serious. Say 15,000 to 20,000 men had been called out in this way from the Regular reserve and from the "Ever-Readies", things would then indeed be pretty serious, and it seems to us that if it ever became necessary to call out considerable numbers of the Territorial Army volunteer reserve, such a serious situation would have arisen to call them out for a period of even six months that surely Clause 5 procedure would have to be invoked.
    I find it very difficult indeed to imagine any circumstances in which it would be necessary to call out men in the T. &
    1908
    A.V.R.II. under Clause 6 procedure other than as individuals. I recognise that this might be possible because certain people might be key people who would be fitted into key posts. My right hon. Friend talked about the possibility, of which the Minister made quite a lot of play at earlier stages of the Bill, of having to call out T. & A.V.R.II. as units under Clause 6 procedure, but I am not very impressed by this argument because if the time really came when so many Regular and volunteer reservists had been called out that it was necessary to call on whole units of T. & A.V.R.II, then surely there would be a serious national emergency and Clause 5 procedure could be invoked.
    11.45 a.m.
    My right hon. Friend has drawn attention to the fact that the "Ever-Readies", as I call them for simplicity, have only a six months liability in any one year. So far as we know—and I think the Minister will agree—the system of calling up "Ever-Readies" works very well. Six months proved a reasonable time for them to go out into a very hot climate and take part in what amounted to active service operations in Aden. I realise that they were called out as individuals. That is why I am making the point that if it were necessary to call out individuals of T. & A.V.R.II under Clause 6 procedure, this would be understandable. But I do not see how certain circumstances could arise in which any Government would want to call out whole units of T. & A.V.R.II for this long period under the Clause 6 procedure.
    I know all about the acclimatisation arguments which have been put forward, and I do not want to repeat the arguments that have been advanced previously. I know about the importance of specialised training, things like jungle warfare, and that sort of thing. But I feel that these arguments, which are outweighed to some extent by the great speed of modern air transport, are really arguments which apply much more to the calling up of whole units for service in difficult circumstances than to the calling out of a certain number of individuals.
    There is no doubt about the degree of disruption to industry and the consequent hostility of employers which might arise

    1909
    if large numbers of T. & A.V.R.II were called out in something which amounted to less than a national emergency. Any Government would want to avoid this. The Minister has said that it is most unlikely to be necessary to call out members of T. & A.V.R.II. He has called attention to the fact that they would come after section A of the Regular Reserve and after the "Ever-Readies". He said that it would be a serious affair if we had to call out T. & A.V.R.II units. That being the case, we find it very hard to understand why so far he has not been prepared to build into the Bill a six months limitation under Clause 6 procedure, knowing all the time that if it was required to fall back on a longer period for T. & A.V.R.II he could invoke Clause 5.
    Surely, in those circumstances a serious emergency would have arisen. He has said that it would be a serious affair to call out members of T. & A.V.R.II. This means national danger. It surely means Clause 5 procedure. It would mean that we were all in trouble, and this is something which the Territorial soldiers are the first to accept. When there really is a national emergency their liability is virtually unlimited.
    For understandable reasons. Mr. Speaker, you did not call an Amendment to do with the actual wording of Clause 6. and I would therefore be out of order in referring to this beyond saying that the circumstances in which the Minister has this power to call out members of T. & A.V.R.II for up to 12 months are very vaguely defined indeed —simply that they are
    "liable to be called out for permanent service in any part of the world when war-like operations are in preparation or progress."
    We realise that it is hard to think of any moment since 1945 when warlike operations have not been in preparation or in progress. This emphasises the great importance of limiting the period to a reasonable one.
    Therefore, we feel that there are powerful arguments for limiting to six months the length of time at a stretch for which a member of the new volunteer reserves can be called out, qualified as it is by the 12 months aggregate in Clause 10(3). That we fully accept. I hope therefore that when the Minister or Under-Secretary replies, we shall hear
    1910
    that he has had second thoughts and feels able to accept the Amendment.
    Sir Richard Glyn: I do not want to waste time by repeating the arguments so well put forward by my right hon. Friend the Member for Thirsk and Malton (Mr. Turton) and my hon. and gallant Friend the Member for Lewes (Sir T. Beamish), but one aspect of this matter has been greatly stressed. That is the effect of the Clause as it stands on employers whose cooperation is vital to getting the new T. & A.V.R.II to function properly.
    I do not think any worthwhile Territorial—virtually any Territorial—has any objection to having an unlimited liability under Clause 6 as well as Clause 5. He has always had an unlimited liability once he has been called out. He has never had a limitation put on the time and he would be the last to ask that we should insert one, but employers look at these things a little differently. They see that cases of national danger are dealt with under Clause 5 and that Clause 6 deals with circumstances of warlike operation which, as my hon. and gallant Friend pointed out, would apply to almost any time in the last 20 years.
    Employers also notice the sequence of call-up. First, the "Ever-Readies" would be called up with a limit of six months and, secondly, the Section A Reservists for a limit of 12 months and the T. & A.V.R.IIIs would be called out with no limitation whatever. Employers are wondering what would happen when the "Ever-Readies" were sent home after their six months and individual members of T. & A.V.R.II were called upon to replace them. The volunteers are very willing to go, but the employers have doubts.
    They also think perhaps that under the Clause as drafted the Section A Regular Reservist would be returned after 12 months and the "Ever-Readies", having been returned, and that this would tend to militate against the return of the T. & A.V.R.II Employers have a nasty feeling that perhaps the T. & A.V.R.II reservists would perhaps have to be kept for a long time because the other forms of Reserve have a statutory right to be returned after a limited time. It would be a tremendous help in convincing employers that they should not make difficulties about their employees

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    joining or remaining in the Territorial Army, particularly the T. & A.V.R.II, if they could be treated on something of the lines suggested by this Amendment, or if some other time limit could be inserted in the Bill. This is a very important point.
    Colonel Sir Harwood Harrison: I wish to reinforce what my hon. and right hon. Friends have said. I do so all the more because I was not on the Standing Committee. Having listened to the arguments in the House, I cannot see why the Minister cannot either agree to the Amendment or say that he will do something about making in another place a provision on these lines. Sometimes in this House and in the country we expect too much of our volunteers. The Minister cannot conceive of a situation in which he would want these men for more than six months; therefore why should that not be written in the Bill?
    There is always the risk of a situation arising which is not clarified and in which there is the temptation for a Minister to continue to draw on the good will of the volunteers. Without making any great political point of it, some of us on this side of the House are worried about defence matters. Some speeches by hon. Members opposite, no doubt very sincerely made, advocate a reduction in our forces. If this happened and such a situation arose there might be all the more pressure on the Minister of the day to draw on these Territorials. Therefore I cannot see why the Minister cannot give a pledge in regard to the six months period.
    Mr. Reynolds: If I may, I shall deal with one or two points before going into the general argument on this Amendment. The hon. and gallant Member for Lewes (Sir T. Beamish) referred to the fact that the Army has been involved in warlike operations ever since 1945. I entirely agree that the Army has been involved in what he and I call warlike operations since 1945, but the Law Officers advised many years ago that the majority of the things the Army has been doing which this House and the soldiers themselves would call warlike operations are not legally warlike operations which would justify calling up the reservists about whom we are talking. Internal
    1912
    security has been the main problem for the Army, particularly for infantry battalions, but that is not warlike operations within the meaning of this Clause and they would not allow the Government to use these powers for calling up volunteers.
    While it is correct to say in laymen's terms that the Army has been engaged in warlike operations, those operations have not been of the type which would allow the Government to call upon volunteers.
    Mr. James Allason: Will the hon. Gentleman give the legal definition of "preparation for warlike operations"?
    Mr. Reynolds: I can say quite definitely that it would not be the preparation for the type of. operation in which the Army has been engaged for most of the time since 1945—Suez and Korea yes, but not, for example, internal operations in Aden.
    The right hon. Gentleman suggested that there might be a situation in which first "Ever-Readies" could be called up, and a month or so later the T. & A.V.R.II, and then five months later the "Ever-Readies" might be back home again but individuals in T. & A.V.R.II would still have to soldier on. I can assure hon. Members that that would not be the case. The "Ever-Ready" gets his £150 bounty for a much higher liability and can be called out at any time by the Secretary of State for six months. But he is a member of the T. & A.V.R. as well, and if his unit is called out under Clause 5 or Clause 6, when he may have finished his liability as an "Ever-Ready", he would still have his general liability as a T. & A.V.R.II volunteer and would be held under Clause 5 or 6. I am not saying that would happen, but it could happen if he were a specialist or his job had not been finished. One would not wish to keep him a moment longer than necessary if there were not a job for him to do. Although I do not say that there would be any circumstances in which that would happen, it should not happen that an "Every-Ready" could be back at the bench in the factory before another man who had a lesser liability.
    I cannot accept the claim that one can always invoke Clause 5. I do not

    1913
    think it follows automatically that because something has gone on for which the warlike operations procedure can be invoked, and because it has gone on for five or six months, it is a Clause 5 emergency. There could be something happening 7,000 or 8,000 miles away which might make it necessary to have certain T. & A.V.R.II units, some of which are logistic units which fit an order of battle and might be required if a number of Regular teeth arm units had to go into operation; but I would not say that in these circumstances we could invoke Clause 5.
    Before the publication of the White Paper and of the Bill the Government had conversations with the Council of Territorial Associations, the Confederation of British Industry and the T.U.C. on the question of the liability of men to be called up and the length of time they could be expected to be retained. For a number of reasons which I explained in detail in Committee, which were also gone into on Second Reading, it was finally decided not to put a limit on the period of the call-out. To some extent, this was the result of a misunderstanding at the beginning about what the limit might mean. Some people thought that it meant a 12 month "Ever-Ready" liability, which was never the intention. It was agreed, however, by all three organisations consulted, and by the Government, not to put an actual limit on call-up.
    12 noon.
    During the Second Reading debate, some hon. Members opposite—and also a number of Government supporters, I think, although I am not sure about that —thought that it might be a good idea to have a limit, so when the Bill went into Committee I again asked the three organisations for their views. I must stress that these organisations did not come to me and say, "We have had second thoughts, and would like to discuss the matter again". Because I had been told that the subject would be raised in Committee, I said to them, "This matter will come up in Committee—have you any second thoughts, or different views now from those you had on the previous occasion?".
    1914
    As a result of those consultations, the Council of the Territorial Associations said that it would be satisfied to have a limit, but did not commit itself to what that limit should be. The Council said, quite rightly, that that was a matter for the Government in the light of the operational requirement. The T.U.C. and the Confederation said they had no objection to a limit, but I stress again that the initiative for a second consultation came from the Government, and was not a result of the other organisations suddenly asking for a change.
    The Amendment would cause difficulties in quite a number of circumstances, particularly for operations East of Suez. It would take some time to call up T. & A.V.R.II units, register them, and issue them with kit. In the majority of cases, they would have to undergo further full-time training before they could be committed to the operation. After being sent to the area, they would, in all probability—depending on the time of the year and so on—probably need a period of acclimatization before going into any sort of action. They would probably also need some training appertaining to the particular theatre of operations. The unit having been sent out, would later have to be brought back and disbanded before the six months was up, so that, outside Europe, the effective period would be only four months out of six. Therefore, while the Amendment refers to a limit of six months, it would mean that the unit would be effective and able to be used for a period of perhaps only four months. If the action was still continuing the unit would then have to be replaced by another in order to comply with the suggested six months' limit of service. That would place an unnecessary burden on those conducting the operation. It would, in all probability, mean that one would have to call up another T. & A.V.R.II unit, if it existed, and disrupt the careers of twice as many people as would be the case under the 12 month liability provided in the Bill.
    On those grounds, therefore, I cannot accept the Amendment. In Committee, however, the right hon. Gentleman made his main case for a limit—then of four months, and now for six months—by saying that he thought it crucial for

    1915
    recruitment into the T. & A.V.R.II. On Tuesday and Wednesday of last week I visited some Territorial Army units in camp at Sennybridge and Dartmoor. I talked individually with about 200 soldiers, non-commissioned officers and officers in two 25-pounder artillery regiments from the Newcastle area. The vast majority of those men were volunteering for the T. & A.V.R.II. Only one man out of the 200 to whom I spoke said that he could not do this, because his employer was not happy about the scheme. However, in the course of my conversation, I found that his employer was not happy about the Territorial Army in any case, which meant that even without this change the man would have been leaving the Territorial Army when his engagement ended later this year.
    One regiment had about 180 men in camp of whom about 36 were not eligible for transfer to the T. & A.V.R.II on grounds of age, and so on. That left about 144 individuals who were to be asked to give notice of their intention. When I was there, just after the end of the first week in camp, 130 of them had been interviewed and asked their intentions, and 129 of them had signified their intention to try to join a T. & A.V.R.II gunner unit that was being formed in the area. One man had indicated a wish to join a T. & A.V.R.III gunner unit that was being formed there. This may have been an exceptional case, but I can assure the House that in the country as a whole one finds evidence that in the vast majority of cases we shall have no difficulty at all in filling all the vacancies, even allowing for the 30 per cent. overbearing in the first year in T. & A.V.R.II units.
    Mr. Turton: But has the hon. Gentleman spoken to 250 employers? That is the difficulty. The men all want to try to join, but it all depends on the employers.
    Mr. Reynolds: Perhaps I did not make myself clear. With one exception, all the 200 men with whom I talked replied "No", to the question, "Is there any difficulty with your employer?" Only one man replied "Yes", but on further questioning him I found that his em-
    1916
    ployer was in any case being difficult about the Territorial Army. All the others maintained that there was no difficulty at all with their employer.
    I do not say that there is no difficulty in all cases. One or two cases of difficulty with employers were brought to my attention in Committee but, as I have said, the Government and the nationalised industries have set a lead by saying that they will give their employees the same facilities for joining the T. & A.V.R.II and T. & A.V.R.III as they now do for membership of the Territorial Army and the Army Emergency Reserve.
    I am sure that the vast majority of employers will follow that example by allowing their employees to join, though I know that some employers are being rather more difficult about the T. & A.V.R.II than about the Territorial Army. I am having informal discussions in the next week or two in order to see if we can find a way round. We shall do our utmost to make sure that employers are fully aware of their employees' liability, and if any employers, large or small, want further information about the liability involved and about the amount of time required for training the men, I hope that they will get in touch with the Ministry of Defence or will write personally to me. I will see that they get all possible information.
    I am sure that only a minority of employers will be difficult. As is inevitable in a major change of this sort, some employers will think that it is time to get out. That would probably have happened, no matter what the change was. If any hon. Member knows of any employer who may be refusing facilities to his employees I will be very grateful if he will tell me when I shall see what action can be taken. if any employer has doubts and will write to me personally, I shall be only too pleased to provide all the information necessary.
    I want to repeat that the invoking of this provision—and the hon. and gallant Member has quoted me as saying this in Committee—would be for something very serious. No Government would invoke it lightly. They would, in any event, have to be sure of the opinion of the House, and would have to bear in mind

    1917
    its effect on the economy and on individual careers. It is not a decision that any Government would take lightly. Further, if it became necessary to engage in military operations in any part of the world, I repeat that we would first use the Regular soldiers who were in that part of the world. They would be reinforced if required by other regular soldiers and units from that theatre or the United Kingdom. If it were necessary to get further individuals we have the "Ever-Readies", who get £150 a year for being available when required. It may well be that we shall from time to time have to make use of them. Then there is the Regular Reserve Class A.
    I repeat that there is no intention of calling out the T. & A.V.R.II units or sub-units until we have used all those other forces suitable for the job which has to be done, including the Class A of Regular Reserves. Thus, the T. & A.V.R.1I units will be the third line of reserve. But once we have called them out we cannot be fettered in having to look over our shoulders at the calendar no matter what the operation, no matter what its extent, knowing that we have to get these men back to England within a short period of six months and replace them by others.
    The period we lay down in the Clause is reasonable and I remind the House that the men will not necessarily be held for 12 months. They will be held for the shortest possible time but we must have the 12-month period in the Bill to enable us to plan properly and to enable any operations in which they are called out to be conducted efficiently.
    Mr. Powell: The Clause is one on which the Government have already had important second thoughts. As it first stood, there was no specific limitation upon the length of service. As the Bill comes back to the House, there is written into it, where Clause 6 procedure is concerned, an aggregate limit of 12 months' service of this kind during the period of engagement. I do not think that anyone doubts that that represents a very important modification of the Clause, and I would be very surprised if anyone doubted that it represents a very wise modification.
    1918
    It is fortunate that there is still opportunity for more mature consideration of the Clause as it stands because we on this side believe that, if it reaches the Statute Book in its present form without any limit less than 12 months upon a single period of service for the volunteer reservist under Clause 6 procedure, the Government will be making a grave mistake. They will be risking damage to the future viability of the volunteer reserve for the sake of what I would regard as an exercise in unrealism.
    My right hon. Friend the Member for Thirsk and Malton (Mr. Turton) said that the situation which would result in volunteer reservists being called out under Clause 6 procedure was of the nature of a short-term emergency. I believe that that is a wholly accurate appreciation. There are, broadly, two types of case in which the Government have said that they envisage that Clause 6 procedure would be applied to the volunteer reserve.
    The first is the N.A.T.O. simple alert. Let us consider that for a moment. It is a situation in which it was thought necessary to call up volunteer reservists, individuals and particularly units, in order to bring up to war strength the formations which we have upon the Continent of Europe. It would be a situation in which major steps would be in progress to put the forces of the Western Alliance upon a war footing.
    1 seriously submit that it is virtually inconceivable that such a situation should remain static for a period of more than six months without either being resolved, as one would hope, or else escalating further. I do not detect from the arguments which the Government have used in this debate or at previous stages that they seriously regard the N.A.T.O. commitment as the one which would require a volunteer to serve for more than six months under Clause 6 procedure. We should very soon be under Clause 5 procedure, I am sorry to say.
    So we come to the remaining case, that of operations outside Europe which fall under the description of the
    "… war-like operations …. in preparation or progress."
    For the purpose of the Bill we have no precedent under this head. We are

    1919
    called upon to use our imaginations for, although there have been two instances, we are told, since the warlike operations liability was first put on the Statute Book at the end of the century, when it has been used—in China in the 1920s and Palestine in the 1930s—surely neither of those situations is such as the Government would regard as involving the necessity to call out the T. & A.V.R.II.
    12.15 p.m.
    We are assured that they would not be called upon either as individuals or as units until all the reservists at higher readiness had already been exhausted, until all the troops available had been used and pulled in from other theatres, until the "Ever-Readies" had gone and subsequently if necessary put on a Clause 6 basis, and until the Class A Regular Reserves had been absorbed.
    So we have to envisage a situation outside Europe so serious that everything available has already been pulled into it and in that case we have to send out individuals and units of the T. & A.V.R.II. What we have to consider is whether it is realistic to suppose that, having done that, we would be able to go on in that situation for more than six months without other steps of a very different character having to be taken.
    I must say that we find that extremely difficult to envisage. We find that possibility so remote that we cannot believe that, for the sake of it, it is wise to resist a specific limitation to six months upon any single period of service which the T. & A.V.R.II might be called upon to render under Clause 6 procedure.
    In begging the Government in their remaining opportunities to think again and yet again about this, I would ask the Minister of Defence for the Army to remember that he has not only to consider the launching of the new force. We were very interested to hear the figures arising from his personal researches. We are all very anxious that this period of transition to something which we do not believe matches the need, should nevertheless be successfully accomplished, that we should launch the new force with the best chances of success.
    1920
    But it is not the commencement of the work but the continuing of the work for years and perhaps decades ahead which will be the test of the rightness of what we want to do. I am sure that there is a tremendous desire amongst those in the Territorial Army now, whatever doubts or criticism they may have, to get the new force successfully launched. In a sense the Minister has it most easy now. He will never have it so good again in recruiting the new volunteer reserves. When the present disposition to keep the unit going in some form at any rate, and to keep the spirit of the old Territorial Army is forgotten, it is in the long grind, year after year and decade after decade, of recruiting men in the new circumstances and on the new basis that these questions will be asked by employers. It is then that their doubts will have to be overcome and it is then that I fear that, if the Minister does not further modify this Clause, he will find that, for the sake of an almost inconceivable contingency, he has lamed those whose duty it will be in future to keep this force up to strength and to maintain its recruitment. That is why we on this side of the House feel that it is right to have a limit for the single period of service for the volunteer under Clause 6 written into this Clause, and I ask the Government, who have already modified their decision on this matter, to modify it once again.
    Mr. Reynolds: By leave of the House, when we had the Second Reading of the Bill and the debate on the White Paper, the right hon. Gentleman at one stage appeared to be envisaging massive conventional war in Europe, a possibility which virtually nobody else accepts. After his remarks now about the possibility of a N.A.T.O. simple alert and not being required for more than six months, I agree with him that it is most unlikely that people would be required under Clause 6 for a N.A.T.O. simple alert, for they would either be very quickly put under Clause 5, or fairly quickly back in their jobs at home again.
    The right hon. Gentleman gave the impression to some extent that by the time T. & A.V.R.II units went out, almost everything else we had would have been committed—everything in the theatre and everything in the United Kingdom and so

    1921
    on. I would like to clarify that by adding the word "suitable", because many of the units are specialist units of one kind or another.
    Amendment negatived.

    Clause 17.—(ESTABLISHMENT, ALTERATION AND WINDING-UP ETC. OF ASSOCIATIONS.)
    Sir T. Beamish: I beg to move Amendment No. 14, in page 13, line 32, to leave out from "shall" to the end of line 33 and to insert:
    "not be made unless a draft of the order or regulation; has been laid before Parliament and approved by a resolution of each House of Parliament".
    Under subsection (2), the Secretary of State is taking power by Order to make such changes in the provisions of Schedule I of the Auxiliary Forces Act, 1953, as he considers appropriate. This is a straightforward Amendment designed to provide a safeguard against arbitrary changes in the pattern of associations without an opportunity for any consideration by Parliament.
    There is no doubt that the Territorial and Auxiliary Forces Associations in the main have been doing an excellent job over a long time. That is common ground between both sides of the House. The flourishing state of the Territorial Army a year ago—and it was flourishing—bears tribute to their success. The same can be said for the period since 1945 and the period between the wars, when the associations did a remarkable job which we can all praise. This success was undoubtedly due in some measure to the balance of membership of the associations. Whether by experience or good luck, the balance of representation between military and Air Force on the one side and civilian on the other, between representatives of local authorities, employers and trade unions on the one hand and members with useful experience and good will on the other, seems to have been just about right. I think that we can also all agree about that.
    The Secretary of State has so widened his powers under subsection (2)—and in general we think it right not to oppose the widening of those powers—that he will surely not cavil at our suggesting that he inserts this safeguard into the Bill. This is especially necessary because the shaping of tile new framework of administra-
    1922
    tion will present new and various problems. We would like to be sure that the men on the spot, who have local knowledge, carry full weight in any decisions which are made and that the long arm of Whitehall is not encouraged to dictate a tidy answer which may not necessarily be the best.
    The main difficulties, springing from the far larger areas to be covered by the new associations, will concern how to keep the all-important local element interested and able to contribute to the future of the Volunteer Reserves and how to maintain a proper balance of representation between military and civilian members. As we know to our cost in the House, an over-large committee is not at all an efficient instrument and some formula will therefore have to be found, no doubt varying from area to area—because there is no rule of thumb which can be applied—which answers these two main problems, the size of the associations and their composition or balance.
    The local character of the associations must to some extent be lost as a result of amalgamations, but if local advisory committees are to be set up to replace each of the former associations and each is to be represented on the new associations, which we hope is in the Minister's mind, some of the most important features of the territorial aspect of the Volunteer Reserves can be preserved.
    We feel that the House of Commons, which has so many close and regular contacts with the Teritorial Army, as it has had in the past and will continue to have in the future, must have a contribution to make in these respects. I myself have belonged for 20 years or so to my own county association and I am only one of dozens of hon. Members on both sides of the House with such experience and who have always taken an interest in the Territorial Army. Hon. Members in this position feel that their advice is worth asking for if radical changes in the composition of the associations are contemplated. That is the first main reason why we suggest the Amendment, so that such changes can be made the subject of an affirmative Resolution.
    The other difficulty, which I will mention only briefly, is harder to solve. It

    1923
    is maintaining a proper balance of representation on the new associations. In some of the new areas there will often be few T. & A.V.R. units and many local authorities, because the areas are to be so much larger and the Volunteer Reserves are being cut roughly in half. It is good sense to lay down that a military organisation like this should be administered locally by a body of which at least half have military knowledge and experience of things military. At present, as the hon. Gentleman knows, the composition of the associations is very carefully laid down and based on very long experience. In the past, when radical changes have been made in the composition of the associations, almost invariably, ever since the early days in 1907, there has been an opportunity for Parliament to express its view about the changes. There have been many changes from 1907 to 1949. There were changes in 1924 and in 1950 and, of course, Schedule 1 of the 1953 Act is mentioned in this Clause.
    The present position in Sussex, for instance, which is a fairly typical county, is that we have a president and 74 ordinary members, of whom 32 are military, seven Air Force, eight to deal with pre-Service questions and connected with education and so on, 20 are civilian representatives and seven are co-opted. This sort of balance, based on years of experience, has shown itself to work very well.
    It must be sensible for local authorities, between whom and the Territorial Army there has been and must continue to be so much give and take, to be represented. The home defence role of the T. & A.V.R. III makes it essential that the authority responsible for civil defence should also be fully represented. The education authorities are closely involved, especially with the pre-Service and the junior branches and it is right that they should have a share in the local administration of the Volunteer Reserves. With the increases in training and call-out liabilities, it is more important than ever that employers and trade unions should be fully represented.
    Mr. Speaker: Order. We cannot on this Amendment discuss proposed changes, or what ought not to be changed.
    1924
    What we are discussing is whether they should come before Parliament by affirmative procedure.
    Sir T. Beamish: I merely wanted to discuss the present position as an illustration of the present balance by way of leading into my argument that it is important that if changes are made in future, Parliament should have the opportunity to consider them. However, I will not pursue that further. I meant it only as an illustration. All of these people who contribute in so many different ways to the Associations have been able to make or mar the success of the Volunteer Reserves. This will apply just as much in the future as in the past. No doubt the Minister will have discussed this question and the suggestions that we are making here with the interested parties, particularly the Territorial Army Council. We do not know what the Minister has in mind about the composition of this or how his mind may change in the light of experience with the new and enlarged associations.
    This is the main reason why we feel that the considerable amount of experience which can be found in the House of Commons should be taken advantage of when future changes are contemplated.
    12.30 p.m.
    I hope that the Minister will tell us what is in his mind if he cannot accept this Amendment. As Members of Parliament we have a right to ask for the reasons for these wide and quite exceptional powers being taken and to ask that they should be subject to the affirmative Procedure, so that Parliament may have the opportunity to keep closely in touch with this important question.
    Mr. Ennals: I am afraid that we cannot accept the Amendment. I was a little surprised that it had been put forward because it was not tabled at any stage in Committee. Nevertheless I will deal with it seriously. As I understand it the Opposition are not in any way challenging the powers given to the Secretary of State, but the Parliamentary procedure which is to apply. It seems to show a certain lack of faith in the Negative Resolution Procedure. Let us look at what the Orders we are talking about are likely to be concerned with.

    1925
    They will deal with changes in boundaries of T.A. Associations and in some cases they will deal with the winding-up of certain associations. There may be a need to change the constitution and to vary the proportion of representatives of universities, employers, trade unions, civic authorities, education authorities and so on. Under paragraph 5 provision is made for redundancy payments to Territorial Army servants whose posts may disappear or compensation for those who will be receiving reduced emoluments. In the case of major changes in the constitution of a local association, I can assure the hon. and gallant Gentleman that there will be the fullest consultation with the Territorial Army Council, and in any changes introduced by means of an Order we shall take the views of the Council very fully into consideration. This applies not only geographically but to the composition of local associations.
    The First Schedule of the 1953 Act provides for the presidency of associations, membership of associations, and the supplementary administrative details connected with them. The powers and duties of associations are unaffected. Changes in the First Schedule are most likely to affect membership and one must have representatives of employers, trade unions, universities and local authorities. However, we must also maintain the balance of those with military experience and we are fully aware of the importance, in any changes made, of retaining a proper balance in order to draw on the experience of those involved in this work.
    We would submit that variations in the proportion of members on these associations are not a reason for an affirmative Resolution Procedure. As for compensation, provisions will be made for this to be paid. This will be done under the system agreed for the Greater London Council reorganisation. We cannot and will not make any significant departure from this procedure. There have been and will continue to be consultations with the Trade Union Council and that with the staff side. Not only is the Amendment unnecessary but it could have unfortunate delaying effects. In the Bill the Regulations could take effect soon after they are made, whether Parliament has adjourned or not and would be sub-
    1926
    ject to annulment without retrospective effect for 40 days outside the Adjournment that is, till November or December. Under the Amendment they could not take effect until they had been laid and adopted, which would almost certainly be not until after the Adjournment, thus delaying the commencement of the reorganisation.
    I feel sure that hon. Gentlemen opposite do not want to see this happen. It is most important that we should be able to proceed with the task of reorganisation if we are to get the new, reorganised force off to a good start. There are many precedents for the procedure contained in the Bill which is now challenged by the Opposition. The rights of Parliament are fully protected by the Negative Resolution Procedure. The precedents for amending Acts of Parliament by instrument include the London Government Act, 1963, Section 84, the Defence (Transfer of Functions) Act, 1964, Section 3 and the regulations providing for compensation to redundant harbour officers, under the Harbours Act, 1964, Section 54(2). There are a number of honourable precedents. The procedure contained in the Bill provides ample opportunity for the House to express its views if it is dissatisfied with any decision taken or any Order made. I would further assure hon. Members opposite that before making an order the Secretary of State will enter into the fullest consultation with those experienced in this sphere so that we are able to use such experience, and that of the Territorial Army Council, before rushing ahead with anything.
    Mr. Powell: If I may venture to offer a word of counsel to the Under-Secretary it would be that he will get his business better in this House if, before he proceeds to read his brief out to the House he does not offer observations which appear to the Opposition to be patronising. It does not lie in the mouth of the Government, who have, quite rightly, had second thoughts on two successive stages of this Bill, to complain of a matter being raised on Report which has not previously been discussed in Committee. You in your wisdom, Mr. Speaker, and absolute discretion, have decided that the House should not on Report consider again a matter which you regarded as having been sufficiently discussed in Committee. It would be a poor thing if

    1927
    the Government are to tell us that we are not going to discuss matters on Report unless they have been raised in Committee.
    Moreover in many instances, of which this is one, it is sensible and rational for an Opposition to hear in Committee how the Government intend to use the powers they are taking in a Bill before they suggest at a later stage how the use of those powers should be hedged round. The Under-Secretary would have done better if he had spared us the initial part of his argument.
    It is true that under the negative Resolution procedure there is often the opportunity of having as large a debate as under the affirmative procedure upon the contents of orders or regulations. But it is by no means absolutely so, and, if the Government get deeper into the mess with their business which we have seen in recent days, we shall find more often that the 40 days opportunity for individual hon. Members and for the Opposition to use the negative procedure is out on grounds of time, especially since, in the last decade or so, we have had the limitation on hours for the moving of what we call Prayers. It is, therefore, by no means as absolutely true as it was a number of years ago that there is no practical difference between the opportunity for debate which is offered by the negative procedure and that offered by the affirmative procedure.
    What we on this side are saying about the Amendment is that there are some things which can be done by orders under the Clause that are so important that the House ought to have an unconditional opportunity of debating them—that, in order to get them, the Government should have to come to Parliament, and consequently, raise debate.
    I am prepared to accept from the hon. Gentleman that some of the matters—perhaps many of them—which might be dealt with by regulations under subsection (5) and some incidental matter which might be dealt with under subsection (2) do not in that sense call for the absolute right of opportunity of debate in the House. But I would seriously say that a major modification of Schedule 1, which is really the charter of the Territorial Army Associ-
    1928
    ations, is a matter which ought unconditionally to be debated in the House.
    I ask the Government, since, happily for them, they have further opportunities to improve the Bill, to consider that argument and to consider whether they can distinguish between the kind of order under the Clause which is a major modification of the charter in Schedule 1 of the 1953 Act, and the other orders and regulations which might be made under it. In the former case, we on this side insist that there is good ground for an absolute right to have the opportunity to debate. Therefore, let the Government use their time to draw this distinction and, when the Bill comes back to us, I hope that the opportunity for which we are asking will have been provided.
    Mr. Ennals: I thought that the right hon. Member for Wolverhampton, South-West (Mr. Powell) was a little ungenerous in his opening comments. If he will recall, the second thoughts which have led to the Amendments that have been presented by the Government today have been to meet the wishes of the Opposition; very reasonable assurances were given in Committee that we would look again at the representations that they made to us. It is a little churlish of the right hon. Gentleman to throw it in our faces when we have gone a very long way to meet the many points that were put forward by the Opposition in Committee.
    The right hon. Gentleman said that as large a debate can be granted on the negative as on the affirmative procedure, and that there are opportunities for Prayers to be taken, though it is true that the Opposition must choose on which orders to pray. But we cannot make any change in the procedures which are before the House, and we cannot accept the Amendment which has been proposed, for the reasons which I gave earlier.
    Amendment negatived.

    Clause 18.—(REARRANGEMENT OF CHARITIES IN ENGLAND AND WALES AND NORTHERN IRELAND ON DISBANDING OF UNITS.)
    12.45 p.m.
    Mr. Reynolds: I beg to move Amendment No. 15, in page 13, line 43, to leave out "is made to come" and to insert "comes".

    1929
    It might be for the convenience of the House if at the same time we deal with Amendments Nos. 16, 17 and 18 to the same Clause and with Nos. 22, 23, 24 and 25 to Clause 19, which produce similar provisions affecting charities in Scotland.
    Mr. Speaker: Apparently right hon. and hon. Members of the Opposition have no objection. So be it.
    Mr. Reynolds: This again was a matter which NA, as discussed at length in Committee, and it is because of that discussion and the undertakings which I gave to look at the matter that we bring forward these Amendments. They meet the points which were made in Committee, where a number of hon. Members expressed concern that the period of three months referred to in the Clause was not a sufficient period of time.
    The purpose of this group of Amendments is to increase the period during which the Charity Commissioners and the Minister of Finance in Northern Ireland may make an order setting aside the time provided whereby charitable property held for the benefit of a disbanded unit is to be held for the benefit of its successor unit.
    At present, in the Bill, this is for a period o' three months from the date of the Royal Warrant coming into operation specifying the successor unit. The Amendment provides that the period shall be from the time the Royal Warrant is made, which we anticipate will be towards the end of this year—probably in December—up to a period of six months after it has come into force. That is a considerable extension of the original period of three months and an extension beyond that for which the Opposition asked in Committee, which would have been just the six months period following the Royal Warrant coming into operation. We have agreed to take it back to the date from when the Warrant is made to six months after it comes into operation. As I say, in all probability, the warrant will be made by December of this year.
    As a result of the Committee's decision and further discussions which have taken place, this covers the point which the Opposition made, and I am assured by the Charity Commissioners and by the Scottish Law Officers that it gives ample
    1930
    time from their point of view for dealing with these matters.
    Mr. Powell: This series of Amendments, like the one which the House will be considering next, undoubtedly represents an improvement of the procedure under Clauses 18 and 19 of the Bill. It extends the period of time for the work, much of which will be arduous and complicated, and the considerations and discussions which will be necessary on the part of trustees and those interested as well as the Charity Commissioners. In connection with the next series of Amendments, it also conveniently divides into two sections the whole period which is available for the procedures so that those who might have objections to urge will have a better opportunity of knowing whether those objections are forestalled by the action of the Charity Commissioners in England or the Secretary of State in Scotland.
    It is a happy outcome of a good deal of complicated work which, with the fitful assistance of the right hon. and learned Attorney-General, we did in Committee that these improvements have been made.
    I should be grateful if the Minister would convey to his Under-Secretary of State that Amendments which are brought forward by the Government at Report stage are not made as an act of grace to the Opposition. They are not a kind of favour or Atalanta's apple which is tossed across the table in order to keep off pursuit.
    There is only one justification for Amendments being put forward by the Government, and I am sure that it is the justification here. It is that they regard them as improving the Bill. Whoever first thought of it, and however long it took to bring that fact home to them, that is the reason. They are doing their proper work, on justifiable grounds, presumably, and it is not good enough for the Under-Secretary to say, "You ought not to have any complaints. Look at all the concessions which we are making to you". The hon. Gentleman will find that that is not an attitude which will see him very far.
    I would take the opportunity afforded by these Amendments to make one other point, and I am sure that the

    1931
    Minister would agree that it should be on the record in relation to the proceedings of the Charity Commissioners under the Clause. There will be a larger number of interests of the new units which the old funds should be able to meet. I know, and the Minister will know, that many anxieties are felt about the use of these funds and about the purposes for which they will be required in the course of the transition from the existing to the new form of the Territorial Army.
    The Minister will probably think it right that I should place on record this morning his view, which he has been good enough to convey to me by letter, that in the matter of the war memorials of the existing units it should normally be possible to make provision for any fit disposal of those memorials, where they can no longer stand in existing premises, by the use of the funds which will be transferred or for which schemes will be made under Clauses 18 and 19.
    Nevertheless, the Minister has been good enough to convey to me and will be conveying to the associations concerned—and I think it right that this should be on record in this House—that where, exceptionally, that should not be found possible, the Government have not closed their minds to the possibility of public funds being used for that purpose. That is a matter which will fall to be considered under the charity provisions of these two Clauses. I hope that I have not strayed too far from the rules of order in alluding to it.
    Mr. Reynolds: I confirm what the right hon. Gentleman has said. I do not have the letter before me, but if I recollect aright the right hon. Gentleman's para-

    "of six months beginning with the date on which the warrant comes into force, apply to the court for an order providing that subsection (1) of this section shall cease to apply to the property or part; and for the purposes of the said subsection (5), in its application to proceedings under this subsection, an application for an order of the Charity Commissioners authorising such proceedings shall be deemed to be refused if it is not granted during the period of one month beginning with the day on which the application is received by the Commissioners."

    Mr. Speaker: With this Amendment we can discuss the Amendment to it, in line 6, leave out from "proceedings" to end of line 8 and insert:
    "if it is not granted during the period of one month beginning with the day on which the application is received by the Commissioners,
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    phrasing seems to be what I said to him. As to conveying messages to my hon. Friend the Under-Secretary of State, my hon. Friend particularly referred to the Amendments to Clause 1, which we have dealt with. The only justifiable ground for them was that they seemed to suit the Opposition.
    Mr. Anthony Kershaw: As the person who moved in Committee the Amendment which we are now discussing, may I say that I am glad, but not grateful to the Under-Secretary, that the Government have now seen the matter our way. I believe that as a consequence the Bill will be better than it was previously.
    Having said that, I hope that the Minister will not think me a little churlish in not being entirely satisfied even now. I believe that even the extra time allotted after the six months is not long enough for a complicated case concerning a charity. Perhaps even six days would be long enough for a routine case. Nevertheless, I believe that an improvement has been effected and I should like to say so.
    Amendment agreed to.
    Further Amendments made: No. 16, in page 14, line 6, leave out "of three months".
    No. 17, in line 8, leave out "to come" and insert:
    "and ending with the expiration of six months beginning with the date on which the warrant comes ".
    No. 18, in line 9, after "shall", insert "not apply or shall".—[Mr. Reynolds.]
    Mr. Reynolds: I beg to move Amendment No. 19, in page 14, line 20, to leave out from the beginning to the end of line 21 and to insert:
    shall be deemed to be granted unless the Charity Commissioners, by notice given to the applicants before the expiration of the said month, declare the application suspended for a period of three months"
    Mr. Reynolds: The purpose of Amendment No. 19 is to enable charities

    1933
    to apply to the court for an order against the automatic succession of property provided for in subsection (1) of the Clause during a period of six months from the date when the Royal Warrant comes into force instead of a period of three months. It provides that if no reply is received within one month from the Charity Commissioners to an application for leave to go to the court, the Charity Commissioners shall be deemed to have refused it, thus allowing the matter to go to a judge.
    Amendment No. 21—in page 15, line 16, at end insert:
    "and the words from and for the purposes' onwards were omitted "—
    is a similar but not quite the same provision affecting Northern Ireland.
    Sir Richard Glyn: This is a complicated point concerning a limited number of cases. Perhaps 95 per cent. of the cases which ensue will be covered by the Royal Warrant under Clause 18 and the trustees, after careful consideration, will accept the recommendation or direction, if we call it that, in the Royal Warrant and will see no reason to make application or take any other steps.
    I hope that in this regard the Royal Warrant may be published fairly early so that the trustees will have time to consider its decisions and directions well before the appointed day. This would obviously be a tremendous help to them because they are limited by the six-month limitation of time. It remains to be seen even now whether that will be sufficient.
    There will be cases—they are complicated—where trustees are not convinced that the Royal Warrant has arrived at a completely satisfactory solution. I understand that in these cases the trustees will have to apply to the Charity Commissioners and make an application to them which, in effect, is an application for leave to go to the Chancery Division where the case will be heard.
    Where the Charity Commissioners are able to make themselves 100 per cent. certain as to the merits or otherwise of the case, they will give an answer and we hope that the application would in many cases be granted. The Charity Commissioners are, however, difficult men to con-
    1934
    vince. They have a very high level of responsibility and, quite rightly, they do not give a decision on any point on which they are not completely satisfied.
    It is felt by many people that the Charity Commissioners may in many cases not be able to give a decision at an early stage, or, perhaps, for several months. I apprehend that that is why, according to the Minister's Amendment, if the Charity Commissioners have not given a decision on an application within a month it shall be deemed to have been refused. This would enable the trustees to proceed to a High Court judge and to ask from him permission to lay their case in the Court of Chancery.
    For reasons which I cannot assess, there is a certain reluctance among Members of Parliament, not least among those who practise in the law, to force citizens to have to go to court if there is any possible means of preventing the need for them to do so. I accept that in ordinary circumstances it would be necessary for a citizen to go to a High Court judge before going to Chancery unless he had the fiat of the Chancery Commissioners.
    The position in this case, however, is not quite the ordinary one. I do not wish to take up time by going into all the details, but the present position is a direct result of the decision of the previous Government, which created the circumstances in which these complicated trusts had to be made, and the new position is entirely due to the present Government, who are revising the position of units and, therefore, of the trustees concerned.
    I urge the Government to consider whether, in these circumstances, trustees—who, I think it was specified initially, must be the honorary colonel and the commanding officer of units, together with two others; these people were more or less drafted as trustees—should not be given every possible help in getting the matter straightened out with the least possible expenditure of time and money.
    1.0 p.m.
    I appreciate that the Amendment now moved by the Minister is intended to be helpful—curiously enough—in that it says that if an application has not been granted within a month it must be deemed to be refused. This. I apprehend, is because it would be extremely difficult for trustees to go to a High Court judge while the matter was still sub judice

    1935
    before the Charity Commissioners, because I think a High Court judge would resist any such application made to him in those circumstances, but the trustees are, of course, pinched for time by the six months' limit which the Minister is now setting, the Minister having created a difficulty in which these trustees are placed for reasons which may seem right to the Minister to impose, though I have myself doubts whether this is the case, and which will mean very great administrative difficulties in time to come.
    I think it may even be that the Government should look again at the period of six months for this purpose, when we have this position, on the Amendment moved by the Minister, that if the Charity Commissioners have not made themselves 100 per cent. certain within a month, with their high level of responsibility, that they feel able to agree to an application—some of us think it is going to be the case that they will not be able to do so—the application will automatically fail, and the trustees will have to take the trouble and expense of going to a High Court judge.
    I would suggest that the alternative way of doing this is to say that where the Charity Commissioners have not given a positive ruling, instead of its being assumed that the application has failed, it should be assumed that the application has succeeded.
    One realises that there will be borderline cases; one realises there will be cases where perhaps the application should not automatically be allowed to go through and that the Charity Commissioners, therefore, should have a power to impose a delay, and say, "Well, in this particular case we will not allow it automatically to go through within a month." They might be permitted to say that, possibly, in cases held up by some difficulty for some reason, which in such circumstances should have a longer time. That is provided for in the Amendment to the Amendment. Whether three months is the correct length of time, bearing in mind this arbitrary six months imposed by the Government on trustees, or whether it is not, is a matter of opinion, but that is the object of the Amendment.
    I am sure the Government would agree that there will be a minimum number of cases, if any, where trustees
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    are mischievously objecting to the recommendation in the Warrant. I feel sure they will agree that in such cases trustees will be sincerely motivated—where there is a real difference of opinion between them and other people, or, it may even be, there is a difference between the trustees themselves. It seems to me quite clear that if these trustees, people who did not choose to be trustees, and in some cases were drafted into that position by reason of their position in the Army, they are to have to go to a High Court judge merely because the Charity Commissioners have not been able to make themselves 100 per cent. certain within a month, a great number of people are going to be put to trouble and expense, and there will be the personal expense of attending the High Court, apart from expenses which probably would be charged against the trust. It seems unfortunate, to say the least.
    I hope the Government will have a look at it again to see if ways can be found of providing what the Amendment to the Amendment provides, if not by the acceptance of the Amendment, then by something like it, and to put the boot on the other foot, and to say that where the Charity Commissioners cannot make up their minds, instead of having the negative course of assuming refusal of the application, it should have the opposite effect, and the application should be allowed, except where the Charity Commissioners, for some reason, think there really is a doubt and want to have further time.
    That is the reason for the Amendment to the Amendment. I understand it is purely for discussion and that I am not permitted to move it.
    Mr. Reynolds: I can assure the hon. Gentleman that since the Committee stage we have gone into this very thoroughly with the Charity Commissioners and with the Law Officers, and I am satisfied that the procedure covered in this Clause as amended will be satisfactory to deal with the particular point he has made. I am certainly prepared to look at it and to make sure that it is covered, and I will write to the hon. Gentleman; or, I have no doubt, the matter could be raised in another place and answered there.

    1937
    The position, as I understand it, is that without the Government's Amendment, if the Charity Commissioners have not made up their minds the High Court judge would probably not only be reluctant to take any action but would probably be debarred from doing so. Under the Amendment, after one month they will be deemed to have refused and it would be possible to act under the Charities Act, 1960. As the hon. Gentleman's Amendment is worded it could mean that when the three months' suspension comes into being it could take us beyond the six months' period laid down in the Clause as now amended and make it impossible for anyone to get to a judge. That is a technical point on the Amendment.
    I think the only circumstances in which there would be likely to be difficulties for the Charity Commissioners in dealing with an application within one month would be if they themselves were still considering whether or not to make an order, in which case they would almost certainly be having discussions with the trustees of the charity about the matter.
    The Amendment makes it possible for an applicant who is impatient about the discussions and not prepared to go on with them to take an alternative course of action if he wants to do so, but as the hon. Gentleman said, and as I said in Committee, these are not simple matters. I went on to say that we were not dealing with simple people, but I am wrongly reported as saying that we were dealing with simple people. I hope that in due course that may be altered. We are dealing with people who, as the hon. Gentleman said, want to solve this problem, and some have very strong views on how it should be solved, and there may be differences of opinion between the trustees as to how it can be solved. I think the best that I can do is to repeat what I said in Committee and advise anyone concerned in such a matter that, if he has any doubts whatever, he should enter into discussions with the Charity Commissioners on the matter as soon as he possibly can.
    I am satisfied with the Clause as amended and as to be amended now by this Amendment. However, I will look at the point the hon. Gentleman has made.
    Amendment agreed to.
    Mr. Reynolds: I beg to move, Amendment No. 20, in page 14, line 45, at the end to insert:
    (7) Where subsection (1) of this section applies to any charitable property, the same jurisdiction and powers shall be exercisable in relation to the charity in question as would be exercisable if that subsection were not a provision of an Act of Parliament regulating the charity.
    The purpose of this Amendment is to ensure that any public funds held for the benefit of one unit and passed to be held for the benefit of its successor unit may be dealt with later in the normal way by the Charity Commissioners. I understand that if the Amendment were not made it might be considered that the successor unit would be held to be trustees regulated by Act of Parliament; in other words, that the new trust becomes one which is fixed by Act of Parliament and which would need Resolutions in Parliament to alter it. The Amendment makes it possible for future alterations to be dealt with in the normal way through the Charity Commissioners by declaring in effect that these are not regulated under Acts. I think it will make it much more simple for the carrying out of future alteration of trusts if it is desired to make the alterations.
    Amendment agreed to.
    Mr. Reynolds: I beg to move, Amendment No. 21, in page 15, line 16 at the end to insert:
    "and the words from ' and for the purposes onwards were omitted ".
    I referred to this when we were discussing an earlier Amendment. Although it is on a similar subject, it is not quite the same thing from the point of view of Northern Ireland. It assumes that the Attorney-General in Northern Ireland will reply and, therefore, no provision is made for not receiving a reply.
    Amendment agreed to.

    Clause 19.—(REARRANGEMENT OF CHARITIES IN SCOTLAND ON DISBANDING OF UNITS.)
    Amendments made: In page 15, line 41, leave out "is made to come" and insert "comes".
    In page 16, line 4, leave out "of three months".
    In line 5, leave out "to come" and insert:
    "and ending with the expiration of six months beginning with the date on which the warrant comes".
    In line 6, after "shall", insert "not apply or shall".—[Mr. Reynolds.]
    Mr. Reynolds: I beg to move, Amendment No. 26, in page 16, line 11, to leave out "any" and to insert "all or part of".
    Mr. Deputy Speaker: Would it be convenient for the House to consider, at the same time, Amendments Nos. 27, 28, 29, 30 and 31?
    Mr. Reynolds: That is convenient, since this series of Amendments is designed to make it possible for a charity to apply to the Court of Session for a direction setting aside the automatic process laid down in subsection (2), whereby the charitable funds of a disbanded unit are transferred during the period of six months instead of three months less a fortnight. This applies to Scottish law the point which we discussed on Amendments to Clause 18.
    Amendment agreed to.
    Further Amendments made: In page 16, line 11, leave out from "property" to second "that" in line 14.
    In line 14, leave out "before the expiry of that period" and insert:
    "at any time within the period of six months beginning with the date on which the warrant comes into force,".
    In line 16, after first "to", insert:
    "make such a direction as is mentioned in subsection (2) of this section in relation to that property or part and to".
    In line 16, at end insert "or part".
    In line 21, leave out "shall" and insert "may".

    Schedule 1.—(MINOR AND CONSEQUENTIAL AMENDMENTS.)
    Amendments made: In page 21, line 27, at end insert:
    5. In section 11(3) for the words "as soon as may be" there shall be substituted the word "forthwith".
    In line 38, at end insert:
    "and in section 6(1) for the words ' as soon as may be ' there shall be substituted the word ' forthwith'".
    In page 22, line 4, at end insert:
    12. In section 6(1) for the words "as soon as may be" there shall be substituted the word "forthwith".
    Motion made, and Question proposed, That the Bill be now read the Third time.
    1.13 p.m.
    Rear-Admiral Morgan Giles: Before we conclude our deliberations on the Bill, I draw the attention of the House to Clause 3(1) which states:
    "The royal naval volunteer reserve is hereby abolished".
    Hon. Members know that this is a formal disbandment because the Royal Naval Reserve, which is very much alive, has already taken on the functions previously carried out by the R.N.V.R., will continue its work and will no doubt do an equally good job. Nevertheless, this one, short, crisp sentence marks the end of a great and glorious chapter in Britain's naval history. The R.N.V.R.—or "Wavy Navy"—has often been described as comprising those who came in during war time to teach the Royal Navy how to carry out its business. I invite hon. Members to pause for a moment at the graveside of the R.N.V.R., to lift our hats and pay tribute to the many thousands of officers and ratings who, during two of the greatest wars in history, brought imperishable honour to the initials R.N.V.R.
    1.15 p.m.
    Mr. James Allason: This Measure was heralded as giving us a major reform of the Reserve position, and it certainly is a major reform because its main effect is that the Territorial Army is being seriously slashed, simply to have money.
    The Minister said earlier that he recently visited units of the Territorial Army. I take it that he visited them during the day and did not risk staying for the evening. I say that because he came back with his trousers on. The right hon. Gentleman took the precaution of visiting those units which are moving into T.A.V.R.II. I assure him that he would not have found himself very popular had he visited other units, which still feel bitter about the way they have been treated by the Government.

    1941
    The real key to the position lies in extending the liability of Class A of the Regular Army Reserve for the whole of the reservists' period of service. Little attention has been given to this, although it is a major reform. Pre-proclamation reservists—now called pre-Queen's Order Reservists—are welcome to any Government because it means that they can quite quietly be called up from their civilian occupations and moved into the front line without drawing attention or publicity to the fact that that is happening.
    The difficulty has always been to obtain a large enough number of pre-proclamation reservists and here, by one stroke, a very large number of them are being provided for the future by making the Class A of the Regular Army Reserve the normal reservists and virtually abolishing Class B. It seems so obvious that one might ask why it has not been done before. The answer is because of the fear of the effect that it would have on recruiting.
    In the Navy, Army and Air Force Reserve Act, 1964, the step was taken to extend the possibility of this to three years; that a man should be liable to serve for up to three years under Class A of the Regular Army Reserve. An undertaking was given, however, that the Army would not carry out that provision to the full but, if necessary, would do so only on new engagements after that date, and then for two years on Class A, thereafter moving the reservists into Class B.
    It must be realised that this is a heavy liability. After all, it means that a man who has left the Colours and has gone back to civilian life is liable to be tapped on the shoulder and told, "Do not tell a soul about this, but we want you back". It is reasonable for this to happen for a period of one or two years, but for it to go on for perhaps six or nine years is a serious liability on a reservist and I suggest that men will think very carefully before taking on this extra commitment.
    I greatly fear the effect of all this on recruiting. We know already that recruiting into the Regular Army is extremely unsatisfactory and I fear it will become a great deal more unsatisfactory with the introduction of this reform. It has been forced on the Government who, to save money on the Territorial
    1942
    Army, have lost a great deal of their Reserve strength elsewhere. This can be instanced in the T.A.E.R., the "Ever-Readies", a large element of which e; to be slashed. This is not surprising, because out of the reduced Territorial Army it will be difficult to provide the number of "Ever-Readies" who could be provided by the Territorial Army in the past.
    I regret the provision in the Bill that, within the Territorial Army, units shall be divided between volunteer and home service forces. It would have been much better had the liabilities of volunteer and home service forces existed within the same unit, so that a man could have selected the liability he felt able to undertake, while still remaining within his own unit. As it is, the Bill provides that a man who wants to undertake more or less than the full liability has to move. The real essence of the Territorial Army is its comradeship. It is a most excellent club. That feature is undermined by the Bill.
    This Measure provides a framework for damaging the Territorial Army and the Regular Army. Once this Measure is enacted, the framework will pass to the Ministers, with whom will lie the decision whether or not to do this damage. Let us hope that they will not do the damage I fear.
    1.21 p.m.
    Mr. Ennals: I do not share the pessimism of the hon. Member for Hemel Hempstead (Mr. Allason) about this Bill's future. When this Measure has passed into law I believe that in retrospect it will be seen to provide a long overdue and necessary reorganisation. Like my hon. Friend the Minister, I have visited Territorial Army units, where I have found that many people recognise that change is overdue, and welcome it. I did not at all find the spirit in the Territorial Army described by the hon. Gentleman.
    Since the White Paper was presented in December and the Bill was published in April, there have been changes. There has been a great deal of consultation with all those involved, including industry, the Territorial Army associations, the trade unions, and so on, while in Committee we have tried to meet many of the points that have been put forward. Although 1 regret some of the

    1943
    things said by the hon. Member for Hemel Hempstead today, I welcome the fact that this Bill has now passed substantially out of the region of party controversy.
    When I moved the Second Reading of this Bill I was chided for referring to the extravagance of the language then used by the Opposition, but in Committee, and again this morning, we have been able to take a constructive approach to this important Measure. Far from being patronising, I greatly appreciate the very constructive approach of hon. and right hon. Members in Committee. Many hon. Members on both sides have had a great deal of experience in the Territorial Army, and they have given that experience to the Committee. I believe that the Bill is all the better for it.
    I believe that we shall have a reserve that is better trained and better equipped, more compact, and with a clearer role. It will be the modern reserve that is required to support a modern army. There are inevitably difficulties in any change. In all walks of life there are some who resent change at all. That is, perhaps, too often to be found in many aspects of British society today. But the spirit with which commanding officers, officers and men of the Territorial Army have responded to the changing pattern and, as the Minister and I have seen in the camps we have visited, have signed their declarations of intent, is extremely encouraging for the future.
    Not only in the units visited by the Minister but in other units, a high proportion of the personnel now in camp are indicating that they want to join the T. & A.V.R.II, and I believe that many who may not be found a place there will want to give their service in the T. & A.V.R.III. In the camps I have visited, attendance and morale have been high, there has been a high standard of efficiency and discipline, and many of the uncertainties of the past have been removed as the issues before us have been clarified. I therefore believe that we shall have no difficulty in finding all the recruits we need for the Reserve we are now establishing. The Government are determined to ensure the success of this Reserve. We believe in this reorganisation, and will do everything in our power to make it successful.
    1944
    A big responsibility will fall on commanding officers taking over new or reorganised units, and a heavy responsibility also will fall on the commanding officers of the new Territorial units, whose role is less easy to define. With smaller buildings, less training and less equipment, those units will present a challenge to leadership.
    We hope that once the Bill is passed into law we shall secure the full support of the trade unions, the employers, the civic authorities, and all who can do so much to make a success of the new Reserve. We hope that the T. & A.V.R.II and T. & A.V.R.III will get off to a fine start, and that there will be genuine and enthusiastic support in this House for the outcome of our long deliberations.
    1.27 p.m.
    Mr. Kershaw: I very much welcome what was said by my hon. and gallant Friend the Member for Winchester (Rear-Admiral Morgan Giles). During our debate so far, it has been natural that we should have given far more consideration to the position of the Army than to that of the other Services, because the Army is so much more affected. Except for passing reference to a shadow reserve of the Navy, what my hon. and gallant Friend said is the first reference we have had to the R.N.V.R., and I heard it with great pleasure.
    We are about to bid farewell for the time being to this Measure. We on this side have done our best to improve it. I do not think that party controversy is entirely eliminated, because we retain doubts, but we have done our best to help in Committee, and will do our best to help outside the House, to make the Bill a success. We must do that, because it is the best Bill and the only Bill we have.
    We still regret various things in it. I share the regret expressed by my hon. Friend the Member for Hemel Hempstead (Mr. Allason) that it has made a difference between "territorial" and "volunteer". Those words appear separately, and this separation enshrines—and, I fear, petrifies —the difference between the various types of reserve. We should have preferred an organisation which would have had as a main feature a system whereby one tier of the Reserves would have enriched and nourished the next tier—sharing the halls,

    1945
    the training periods, the badges and the communal life which had been an integral part of the Territorial Army, and which up to now has done much for training and morale. We fear that the disappearance of all that to some extent will be harmful. We believe that, if such a system had been adopted, it would have avoided the disappearance of many famous regiments and units, and would also have avoided the almost surgical shock which the voluntary spirit suffered by the hasty and ill-judged decisions of the Government, especially those of 29th July last.
    We still feel that a system whereby the "Ever-Readies" have a six-month liability and the T. & A.V.R.II a liability of 12 months is illogical. It will be very hard to explain it to employers. The Minister contends that 12 months is the worst case, and that as, up to now, the Territorial Army has had an unlimited liability, people will not be put off by the new 12-month liability, but I believe that employers will plan on the basis of the worse case-12 months—and that it will be sensible for them to do so.
    I cannot follow the Minister in his argument that it will be units which will be sent away and that 12 months is the minimum period in which they can make themselves efficient. I hope that it will be units and they also would like it, but I fear that there will have to be individuals or very small sub-units, because one cannot think that these slots will be so convenient that units will be able to go without change. If there is no call-up, of course the attitude of employers may change just as it did over the Territorial Army, but it would be very optimistic to think that this will be the case.
    The Regular Army is under considerable strain today and this Bill is designed to facilitate a partial call-out. It is to make it very much easier than it was before and one must therefore assume that it would be used in that way. We have our reservations about it, and it would be true to say that we believe it will work only provided it is not used.
    I like very much the change in the title of the home service units, I hope that these units will be successful. I confess that the experience of the Minister of State over the week-end when he visited a unit where one out of
    1946
    130 gunners volunteered for T. & A.V.R.III does not make me think that the difficulties will be overcome very quickly. The training which these units will have is not sufficient. An eight-day camp, four training days and 27 drills is not enough for efficiency after this generation of the T.A. is over. The equipment is too little and entirely too old-fashioned. A unit cannot be relied upon to do a military job unless it has its own communications. To be mobile it must have wireless sets and cross-country vehicles. Plenty of the simple equipment of which I am talking, not of course of first-class type but of a simple type, is available and could be provided.
    Will the Government see that as soon as possible these new units engage in exercises for training to see that they can carry out their job? If the Government find that they are hampered by lack of equipment for training, will they come to the House and say that they want more money? I am sure that they will get co-operation from this side of the House.
    My hon. and gallant Friend the Member for Lewes (Sir T. Beamish) referred to the county associations, which are very important. We look forward keenly to seeing the regulations which the Secretary of State may make on representations, about the Territorial Councils. Up to now the details have been very meticulously provided. This Bill gives the Secretary of State carte blanche in this matter. I emphasise again the vital importance of adequate local representation on county associations.
    We are grateful for what has been done about charities. In Committee we found the problem a good deal more complicated than the Government or we thought it would be. The changes which have been made are very welcome. If, however, even now the Government find that more flexibility is necessary and they come back for more powers, those powers will be given willingly.
    In general it will be seen that I am not very pleased with this Bill. I believe it was born in haste and ignorance which inflicted unnecessary damage on the T.A. volunteer spirit. The existing Territorial Army could have been used as the basis for the reorganisation which I agree

    1947
    ought to have been made. We could have had a better force than we are having for the same cost.
    The fundamental error which the Government have made is to envisage that only one type of warfare will ever take place. That sort of assumption could be made only by an armchair strategist and that fiction could be held only by a professional lecturer. We have all learned over the past years that the one thing about war which is certain is that it is always uncertain. Nevertheless, I think the Minister has done his personal best, within the limits imposed upon him by the Chancellor and the Secretary of State, to make the Bill workable and a success. We wish the Reserve Forces, naval and R.A.F. as well as Army, every success in the new organisation.
    1.37 p.m.
    Mr. Reynolds: A number of statements have been made by the Opposition. Most of them were made for the record and it is not necessary for me to prolong the debate by answering them because we have discussed them at various stages of the Bill, but I wish to reply to some other points.
    I was asked if home defence units would get training as rapidly as possible so that they would be effective with their equipment and the training days provided for them. I can assure the hon. Member for Stroud (Mr. Kershaw) that it would be our intention to watch closely during the first 12 months to see how these units work. I hope that in future debates on the Estimates in the next year or two the Committee and the House will pay a great deal of attention to these matters. We
    1948
    shall have an idea then of how the units are working and of their effectiveness.
    I do not agree that we could have had a better force for the same cost. We could have had a different force, but probably the same idea of hon. Members opposite of a better force would be one with more teeth arms units, whereas the forces we are setting up are those actually required to meet known commitments. This country cannot provide for absolutely everything. We are providing to meet the kind of things which hon. Members opposite when they were in office provided for. In this respect we have not altered the rules, but the opinions of hon. Members opposite have changed. They never provided to meet every contingency. It was made perfectly clear in the 1957 White Paper that that was something which was not possible. Every Government have to make provision for the most likely contingencies they can guard against, because they cannot guard against every contingency right across the board.
    I am grateful for the assistance given in the House and in Committee and for the expressions which have been made I know that the Territorial Army will welcome the expressions of good will which will help units to meet the major changes which are now put upon them. I am convinced that the units and individuals in the Territorial Army will respond to this reorganisation in the way in which they have responded to many reorganisations which they have had to endure in the past.
    Question put and agreed to.
    Bill accordingly read the Third time and passed.

CRIMINAL APPEAL [MONEY]
Resolution reported,
That, for the purposes of any Act of the present Session to transfer the Court of Criminal Appeal's jurisdiction to hear appeals in criminal cases to the Court of Appeal, it is expedient to authorise the payment out of moneys provided by Parliament of—

(a) any increase in the moneys so payable under section 118 of the Supreme Court of Judicature (Consolidation) Act 1925 which is attributable to provisions of the said Act of the present Session relating to the registrar and any assistant registrar or deputy assistant registrar of criminal appeals;

(b) the cost of making records of proceedings at assizes or quarter sessions in respect of which an appeal lies by virtue of the said Act of the present Session to the criminal division of the Court of Appeal;

(c) the cost of making and supplying transcripts of any such records ordered by virtue of that Act to be supplied to the registrar of criminal appeals or the Secretary of State;

(d) the cost of providing, maintaining and installing at courts of assize or quarter sessions any equipment required for the purpose of making any such records or transcripts; and

(e) any sums ordered to be so paid by the Courts-Martial Appeal Court under that Act to persons attending to give evidence on appeals under the Courts-Martial (Appeals) Act 1951 or in proceedings preliminary or incidental to any such appeal.

Resolution agreed to.

CRIMINAL APPEAL BILL [Lords]
Considered in Committee.
[Mr. SYDNEY IRVING in the Chair]

CRIMINAL APPEAL BILL [Lords]

  Clause 1.—(JURISDICTION TO HEAR CRIMINAL APPEALS).
  1.40 p.m.
  Mr. Antony Buck: I beg to move Amendment No. 1, in page 1, line 17, at the end to insert:
  "and shall consist of the Lord Chief Justice of England sitting together with one Lord Justice of Appeal and one puisne judge of the Queen's Bench Division or of a Lord Justice of Appeal sitting together with two puisne judges of the Queen's Bench Division."
  This Amendment relates to and seeks to implement paragraph 85 of the Donovan Committee Report on the Court of Criminal Appeal, which is the main Report on which the whole Bill is based. This deals with the composition of the new criminal branch of the Court of Appeal. If I may set the background a
  1950
  little, paragraph 83 of the Report of the Donovan Committee recommends that the: Court of Criminal Appeal should be incorporated into the Supreme Court of Judicature. That recommendation is implemented in the Bill.
  Paragraph 84 of the Report suggests the way in which the new Court of Appeal should be divided between a civil division and a criminal division. Similarly, this recommendation of the Committee is implemented in the Bill. Paragraph 84 also suggests that the new criminal division of the Court of Appeal should sit in three courts—two most of the time, with the third court sitting from time to time as the volume of work demands.
  Paragraph 85 of the Report sets out the Donovan Committee's recommendations as to the composition of the new criminal division of the Court of Appeal. The paragraph provides that there should be a first court presided over by the Lord Chief Justice, assisted by a lord justice of appeal and one puisne judge from the Queen's Bench Division. It suggests that this court should be concerned principally with appeals, whether against conviction or sentence.
  The Committee goes on to suggest that the second and third courts should be presided over by a lord justice of appeal assisted by two puisne judges from the Queen's Bench Division. It suggests that these other two courts should be concerned principally with applications for leave to appeal, whether against conviction or sentence, although all three courts would be armed with the same power to deal with all matters which are at the moment dealt with by the Court of Criminal Appeal.
  It is a sensible recommendation that the new criminal division of the Court of Appeal should be constituted in the way set out in paragraph 85 of the Report. The reasons why this is a good recommendation are set out in later paragraphs of the Report. It is a good thing to have two judges of superior rank in the first court, because the bulk of the work of this court will be concerned with important questions of law and practice, and also often with questions involving the liberty of the subject, as, incidentally, will nearly all the work of the other two courts. This is the main reason for having the first court constituted of the

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  Lord Chief Justice, a lord justice of appeal and a puisne judge.
  The reason for having a lord justice of appeal presiding over the other two courts is to increase the prestige and the judicial standing of the new criminal division of the Court of Appeal. Further, these courts also will be considering very important questions of law and practice from time to time. As the Report of the Donovan Committee points out, the guidance of a senior judge will be both desirable and helpful.
  The reason for continuing to include puisne judges as members of the court is that thereby the court will have the benefit of their very great experience in the day-to-day handling of criminal cases and in the day-to-day sentencing of offenders. Another advantage which is highlighted in the Report of the Donovan Committee is the advantage to the puisne judge himself, in that he will gain experience from sitting in an appellate capacity.
  These reasons for so constituting the court should commend themselves to the Committee and should have widespread support. It is not absolutely universally accepted that this is the right constitution, but I think that Parliament will accept that it is right. Judging by what the present Lord Chief Justice and the Master of the Rolls have said in another place, it is certain that they will adopt the same attitude.
  We cannot be certain that future lords chief justices will take the same view. It is possible that they would revert to the old practice of having three puisne judges sitting. A future lord chief justice might be impressed with the idea of having a wealth of practical experience available to deal with the day-to-day matters of sentencing and trial of offenders; such a lord chief justice might want the court to be constituted as it is now. I suggest that such a constitution is not right and that the court should be constituted in the way recommended by the Donovan Committee.
  I raised this matter on Second Reading. The Under-Secretary of State dealt with the matter in winding-up. He said this:
  "It would be very rigid if we said that there must be so many judges of a particular standing who were on a particular appeal. Questions of illness might arise."
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  Of course questions of illness might arise. This is a hazard which confronts all courts at all times, but it is not a particularly major hazard. The possibility of an epidemic amongst the judges should not be dealt with by lowering the standard or calibre or status of the judges who sit in the new criminal division of the Court of Appeal. This is hardly an argument which will appeal to the Committee. The argument that it is necessary to lower the status of the court to keep pace with any possible flu epidemic which might arise is not worthy of the Under-Secretary.
  1.45 p.m.
  The Under-Secretary continued:
  "It might not always be possible to have the Lord Chief Justice and a lord justice and a puisne judge hearing an appeal which is an appeal against conviction."
  So be it. The Donovan Committee does not recommend that of necessity these matters shall be dealt with by the Lord Chief Justice, a lord justice and a puisne judge. These matters could be dealt with, if these senior judges are not available, by the second court or the third court which I have already mentioned, and which are referred to in paragraph 85 of the Report of the Donovan Committee. The hon. and learned Gentleman's argument falls, because the question does not arise.
  The Under-Secretary then said:
  "A certain amount of flexibility must be allowed ".
  The hon. and learned Gentleman has not backed that up with any argument which appeals to me. He then said:
  "The whole matter is amply covered by Clause I and it will be a matter for administrative arrangements to see how the Donovan recommendations will be dealt with in practice."—[OFFICIAL REPORT, 11 th July, 1966; Vol. 731, c. 1140.]
  Parliament should determine the way in which the Donovan recommendations are dealt with in practice and we should adopt this recommendation in statutory form, as we have adopted most of the remainder of the Report.
  These are the arguments which have been advanced against laying down in statutory form the composition of the court. We may have some new ones today, I have not found the arguments so far advanced against it convincing.

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  I am perfectly prepared to concede that the wording of my Amendment may not be totally satisfactory. It does not deal with the question of the need from time to time for there to be a court constituted of five judges or more. It is an absolute scandal that there is not available to us in the House of Commons a team of parliamentary draftsmen to assist us in framing Amendments. I have held this view during all the five years I have been in Parliament. Although I am a lawyer, I do not hold myself out as an able parliamentary draftsman. I doubt whether the Under-Secretary would hold himself out in this way. It is a highly esoteric art and we know that back benchers make mistakes in the niceties of drafting. I put forward this Amendment in the hope that its spirit will commend itself to the Committee. It is that the recommendations laid down in the Donovan Committee Report should be implemented in statutory form, and if the Committee, as I think likely, is swayed by the force of this, we would ask the Government to undertake on Report to draft an Amendment which meets this point.
  I should like to know what is the position of the Amendments generally which are now before the Committee. If the Committee is minded to accept the spirit of this Amendment, may I take it that the Government have not manoeuvred us into a position where there will be a substantial inconvenience and loss of this Bill for a prolonged period because the Committee wishes to accept this Amendment? I hope it will be possible to complete the various stages of this Bill by the end of this Session. If this is not the situation, something very disturbing will have arisen because the Government would then be saying to us, "We know you welcome the Bill. Everybody welcomes the Bill. Everybody wants to have it by the end of this Session, but we are afraid that you will not be able to have it by the end of the Session if you amend it." I hope the Government are not saying that, and I would welcome an assurance that the Committee has not been manoeuvred into a position such as have just outlined.
  I think this Amendment makes sound sense, perhaps not in precisely the form in which it is at the moment, but it is sound sense that we should implement
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  the Donovan Committee recommendations as to the composition of the court, just as we have in the remainder of the Bill implemented so many of the other Donovan Committee recommendations
  Mr. A. J. Irvine: I cannot bring myself to agree with this Amendment. It would have the effect, as I understand it, that there could never arise the possibility in any set of circumstances or at any future time of a court of the Criminal Division of the Court of Appeal ever consisting of three puisine judges. That, I think, would be a consequence of the Amendment. I should have thought that to spell that out in the Bill would be to impose what, for practical purposes, is an unnecessary and undesirable straitjacket to the courts.
  The second and third courts of the proposed Criminal Division will deal principally with applications for leave to appeal, whether against conviction or sentence. In these two courts important questions of law will admittedly arise from time to time, but the Report of the Departmental Committee points out that they will only occasionally arise. Sustained important issues of law will come before the first court in the Criminal Division where the Lord Chief Justice is sitting with another judge, and the two other courts in the proposed division, as I understand it, will be dealing with cases which, in the language of the Committee will only occasionally raise significant or important points of law. That being so, take the view that it would be quite undesirably inflexible not to permit a free discretion to the Lord Chief Justice to determine the constitution of the second and third courts of the criminal branch of the Court of Appeal, taking into account the circumstances for the time being.
  Factors of illness are very relevant. The distribution of work at assizes, with the prospect of Lords Justices sitting at the assizes, are matters making it desirable that there should be a considerable degree of flexibility allowed for the manning of the second and third courts of the criminal branch of the Court of Appeal.
  The Report of the Committee sets out as the purpose of its recommendation that the Lords Justices should sit in the criminal branch of the Court of Appeal to improve or raise the status of the courts. I fully understand that purpose

  1955
  and I agree with it as an objective, but I cannot really believe that the status and standing of the courts in the Criminal Division of the Court of Appeal will suffer at all if occasionally it happens that puisne judges are sitting together. They are judges experienced in criminal law. As I say, if they are sitting together on rare occasions in a court where only occasional points of law arise, it seems to me not to be a matter which will be in delegation of the status of the court, but a matter which it would be desirable to keep open as a possibility for administrative reasons and to take account of factors which may be relevant at any given time—factors of an enforcing kind making it desirable that that should be the constitution of the court.
  Mr. Percy Grieve: I support my hon. Friend the Member for Colchester (Mr. Buck) in moving this Amendment. I hope that I shall be in order, not having had the opportunity of taking part in the Second Reading debate, in expressing my own sincere welcome to this Measure taken as a whole, and in adding my congratulations to the very many more distinguished congratulations which have already been given both to the noble Lord, the then Lord Chancellor, to the then right hon. Member for Hampstead in having appointed this Committee, and to the Donovan Committee for the great care which it has put into its deliberations and for the results of those deliberations which have now been largely enshrined in this Measure. One would like also to congratulate the Government for having brought forward this Measure, albeit perhaps having taken rather longer to do so considering that the Committee reported as long ago as August, 1965.
  I support my hon. Friend for this reason. I am not one of those who criticise the present composition of the Court of Criminal Appeal. I believe that in saying that, I am very much at one with the members of the Donovan Committee who went out of their way to commend the work that has been done year after year by the members of the Court of Criminal Appeal, and with all those who took part in the debates in another place on this Measure as well
  1956
  as those who participated in the Second Reading debate in this House.
  There is no doubt that the puisne judges have had the great advantage in the Court of Criminal Appeal of bringing to the deliberations of that court their great experience gathered on circuit and at the Old Bailey of the day-to-day administration of the Criminal Law. For this reason, at first I was myself inclined to think, as many others were, that there was really no cause for making a change in the composition of the court. In one way or another, I have for many years had experience of the operations of that court, and, in all humility, I would do nothing but commend its work.
  As I understand it, the reason why a change in the composition of the court has been proposed is to raise the status of the court so that everyone may be aware that criminal appeals are treated no differently, or very little differently, from civil appeals and may be aware that judges of the status and standing of Lords Justices of Appeal are sitting in that court. With that argument, it being important that justice should not only be done but be seen to be done, I have no quarrel. Therefore, I welcome the change in the status of the court, with, as an incident of that change, the recruitment or appointment to it of Lords Justices of Appeal.
  2.0 p.m.
  The question then arises, should we in Parliament make sure that the Donovan Committee's recommendations are implemented in the letter? It is to that that the Amendment is directed because it does no more than enshrine the recommendation in paragraph 85 of the Committee's Report. The answer to that question, given by the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) this morning and given also by the hon. and learned Member for Lincoln (Mr. Taverne), the Under-Secretary of State, on Second reading, is based on the need for flexibility. Will it make the administration inflexible if paragraph 85 of the Report is made law? I see the force of that argument, but, as my hon. Friend the Member for Colchester said, the Amendment is not put forward as the last word in drafting. It would not pass the capacity of the Parliamentary draftsmen to insert as part of the Amendment a proviso that in

  1957
  certain circumstances the composition of the court should be varied but that as a matter of principle it should be as set out in the Amendment,
  the Lord Chief Justice of England sitting together with one Lord Justice of Appeal and one puisne judge …. or a Lord Justice of Appeal sitting together with two puisne judges ".
  If this Amendment to the Bill is not made, we shall, as regards the composition of the court, be acting like one who carefully dismantles a house and moves it, brick by brick, from England to America, re-erecting it on the other side of the Atlantic. The Court of Criminal Appeal is to be dismantled and re-erected as a division of the Court of Appeal. It is provided that in the new division, the new Court of Criminal Appeal, it shall be possible for lords justices of appeal to sit, but it is not provided that they shall sit. Thus, if I may continue my metaphor, the house re-erected on the other side of the Atlantic is very much like, and very little different in status from, the house as it was before. I submit that the Amendment meets the recommendations of the Committee and is worthy of the most serious consideration. I put it no higher than that.
  May I end with a personal word to the hon. and learned Member for Lincoln? I should like to say how very happy I am to see him sitting where he is as Under-Secretary of State and to make my public congratulations to him. He and I have a friendship which is one of those friendships resulting from battle in the hard and fierce fires of a by-election. I am very glad to see him there.
  Mr. S. C. Silkin: I oppose the Amendment. I would not wish to add anything to what was said by my hon. and learned Friend the Member for Edge Hill (Mr. A. J. Irvine) but for the fact that my reasons for opposing it are almost the reverse of his. In my view, it is most undesirable that there should be forced on the appellate system a rigidity which would prevent it, if the occasion arose, from having two or even three lords justices sitting together to deal with a case which merited so high a judicial standard.
  I find it difficult to believe that the incidence of sickness or other extraneous cause is likely to produce a situation in which it would be necessary or desirable
  1958
  that three puisne judges should sit in the criminal division. Sickness, of course, affects lords justices, but the Court of Appeal, although it calls upon a puisne judge from time to time, has never in my experience sat with more than two together with a lord justice. I cannot myself remember it sitting with more than one. One must not forget that lords justices are, in the ordinary course of events, puisne judges who have been promoted, They have, therefore, the very great experience that my hon. and learned Friend regards as being desirable in an appellate court on criminal matters, and, because of their ability, they have been advanced to the Court of Appeal.
  In the circumstances, I should much prefer to leave the matter as it is in the Bill, so that, when a case merited a really high-powered court consisting, if necessary, entirely of lords justices or of the Lord Chief Justice and two lords justices, there would be no bar to such a court being gathered together to hear the case.
  Mr. Mark Carlisle: This has been a useful debate enabling us to discuss the whole composition of the new division of the Court of Appeal, which, of course, is the most important aspect of the Bill and constitutes its whole purpose. If one looks at the Donovan Report itself, one finds that the first purpose for which it was set up was to consider whether the powers of the Court of Criminal Appeal should be transferred to the existing Court of Appeal.
  All the Amendment would do would be to put into legislative form the proposals made in paragraph 85 of the Donovan Committee's Report. The whole House will agree that in that section of the Report very good reasons are given for saying that the court should consist, first, of the Lord Chief Justice, a lord justice and one Queen's Bench judge, and second, of a court presided over by a lord justice. If the whole purpose of the Bill is to improve the stature of the criminal division of the Court of Appeal, it is important that a lord justice should always preside in that court. If we leave it open that the criminal division of the Court of Appeal may consist of three judges as at present, although we shall have passed a Bill the purpose of which is to improve the stature of the court in practice, its status and

  1959
  composition will remain exactly as they are now, and one may wonder, in that event, what purpose the Bill has achieved.
  I do not know whether the Under-Secretary of State will say that the drafting of the Amendment meets the proposals of my hon. Friend the Member for Colchester (Mr. Buck). The opposition to the Bill, particularly that put by the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) has very little merit. As the hon. and learned Member for Dulwich (Mr. S. C. Silkin) said, it is difficult to see any situation arising in which all the members of the court of appeal are struck down with illness, and it is difficult to see why greater flexibility is required than is proposed in the terms of the Amendment, which enable the court to consist of any of the lord justices and any two of the many judges of first instance.
  May I ask the Under-Secretary of State one or two particular questions about the composition of the court. I do it now rather than have to speak on the Question, That the Clause stand part of the Bill. I ask particularly how he envisages the proposal of the Donovan Committee as set out in paragraphs 89 and 94 of the Committee's Report. On Second Reading he said that he feels that the composition of the court is a matter for the administrative decision of the courts themselves. If one looks at the Donovan Report one sees in paragraph 94 that the Committee very strongly recommends first, that there should not be a permanent lord justice sitting on criminal cases, for to have one man sitting all the time on criminal cases is a bad thing, and secondly, that the lord justices assigned to the criminal division should change every few months. Does he envisage that happening or does he see the possibility of having a second permanent lord justice trying criminal appeals?
  The other recommendation made is that we should draw the lord justices who are to sit in the criminal division from those members of the court of appeal who have existing criminal experience. I am sure that the Under-Secretary of State agrees that this is a very important recommendation since one knows that the courts of appeal as at present constituted contain
  1960
  members who have been judges in the probate division or judges in the commercial courts and who have not, as such, ever tried any crime on assize. It is envisaged that the recommendation will be carried out and that the lord justices who sit in the criminal division of the court will be drawn, as is suggested, from a panel of six or seven of the existing members of the court of appeal who have that experience.
  The final point which I would raise on this issue is the proposal that those who are to sit in that capacity should be encouraged to go out from time to time either on assize or to the central criminal court to try crime throughout the country. This I believe to be equally important. I believe that the Under-Secretary of State will agree that it is important that the judges who are in charge of either of these courts should be in contact with what is happening in the criminal courts throughout the country, and they can get that experience only by going out themselves on assize. This will be a quite substantial change from the present position since I think I am right in saying that it is very seldom today that any lord justice, rather than the Lord Chief Justice, goes out on assize, and that is usually only to try civil work where there has been a shortage of judges due to illness or some other cause.
  Will the Under-Secretary of State deal with these points? How far does he see these recommendations being implemented? I ask him to say that he accepts the spirit of the Amendment and that he proposes that the criminal division of the court of appeal should be constituted in the way that the Donovan Committee recommended.
  2.15 p.m.
  The Under-Secretary of State for the Home Department (Mr. Dick Taverne): I certainly accept the spirit of the Amendment, because the Government and certainly myself accept the recommendations which were made in the Donovan Committee Report. I must, however, ask the House to reject the Amendment for the reasons which I gave on Second Reading and which I will elaborate a little now.
  The Bill is deliberately silent on the question of how each court will be composed, and I think that it is silent for the good reasons which were given both

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  by my hon. and learned Friend the Member for Liverpool (Edge Hill (Mr. A. J. Irvine) and by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), which were in a sense complementary. While one hopes to see the court or the courts constituted on the lines recommended by the Donovan Committee, there will be occasions when this is impossible, and it may be convenient occasionally for reasons of illness or of the absence of the Lord Chief Justice to have a court in which perhaps the Lord Chief Justice sits with two puisne judges or two lord justices sit with one puisne judge. Sometimes it is intended, in accordance with the recommendation of the paragraph 88 of the Donovan Report, that on a difficult point of law five judges will sit, and that would be precluded by the terms of the Amendment.
  What would happen if the Amendment were accepted? First, it rather suggests that there would not be a third court, which is one of the specific recommendations of the Donovan Report. If the Lord Chief Justice were ill—and illness occasionally strikes even the highest in the land—only one court could sit, which would he very undesirable and very unsatisfactory. No court of five judges could sit. There is at the moment from time to time a spare lord justice who may go out and try cases at first instance, but it would not be possible to use this spare lord justice instead of a puisne judge who was ill.
  I do not think that the argument about status is a very telling argument. Already by becoming the criminal appeal division of the court of appeal the status will be enhanced. If in practice most of the time when it is possible the recommendations of the Donovan Committee are adopted, the status of the criminal appeal division will be enhanced. But it is not necessarily a loss of status if, owing to the absence of one lord justice at a particular time, the Lord Chief Justice sits with two puisne judges, and it may well be desirable in certain cases to have more than one lord justice sitting.
  It seems to me that these matters can safely be left to the Lord Chief Justice and the Master of the Rolls to man the courts at their discretion, and I think that we can expect them to take account of the Donovan recommendations and to implement them wherever
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  possible. If it is thought that they could and would neglect the recommendations. that is not something which one can consider likely because it is in envisaged that under the powers of the Judicature Act, 1925, two lord justices will be appointed, and these will be lord justices with special criminal experience. If these two lord justices were there, it is quite inconceivable that they would not be used.
  There are, in addition, some drafting defects to the Amendment, but I think that the observation of the hon. Member for Colchester (Mr. Buck) is fair: back bench Members cannot always be expected to draft with perfection. The word "or" suggests that at one time one can have only three judges of the criminal appeal division sitting. Under the Bill all the judges of the court of appeal and such puisne judges as are requested to sit will compose the criminal appeal division, and they can form any number of courts of three judges under Clause 2.
  There were some additional questions —for example, what is the position about time and Amendments? If the Committee wishes to adopt an important Amendment, time will have to be found and it would no doubt be possible to see that the Bill is passed before the Recess. I would not deny that it would cause considerable inconvenience and would depend to some extent on what kind of Amendment it was, because there might be some Amendments on which further consultations were needed. I may have to make some remarks on this in relation to one Amendment already on the Order Paper.
  I was asked by the hon. Member for Runcorn (Mr. Carlisle)—we are both here in a relatively fresh capacity—whether a lord justice will sit permanently in the criminal appeal division. I have no doubt that the Lord Chief Justice and the Master of the Rolls will again take into account the recommendations of the Donovan Committee. It is intended that continuity and consistency should be given to decisions of the appeal division —something that has been missing all too often in the past—and no doubt the Lord Chief Justice and the Master of the Rolls will consider the desirability of having one lord justice permanently

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  concerned with criminal appeals and nothing else.
  I have been asked whether the lord justices have been encouraged to go out of London. The same answer applies. No doubt the courts in their administrative arrangements will take account of the recommendations of the Donovan Committee. This is not a matter one can legislate about and I think that the Opposition recognise this. We cannot lay down precisely what administrative arrangements should be made; that is something that can safely be left to the courts. The same observations apply to the subject matter of the Amendment.
  Mr. Buck: I am grateful to the hon. and learned Gentleman for what he has said. He stated that he accepts the spirit of the Amendment. I am surprised, therefore, that he does not take it away for the benefit of advice from the vast Ministry behind him, give it proper legal form and bring it back to the House on Report.
  I was disappointed not to carry with me the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine). I found that his reasons for speaking against the Amendment alarmed me somewhat as they did the hon. and learned Member for Dulwich. The sort of circumstances which the hon. and learned Member for Liverpool, Edge Hill adumbrated, whereby three puisne judges will sit, is something against which the Donovan Committee has come down. It would not enhance the status of this new branch of the Court of Appeal. It is to prevent the honing down of the calibre and quality of the court that I put down the Amendment.
  Mr. A. J. Irvine: I only want to emphasise that I would not regard it as desirable to have these three puisne judges in the Court of Appeal except on rare occasions. What I do not like about the Amendment is that it excludes the possibility for all time. J would not like anyone to think that I do not in principle agree with the desirability of Lord Justices in the court.
  Mr. Buck: This is where the hon. and learned Gentleman and I part company. I do not think that there are circumstances where it would be legitimate
  1964
  to have three puisne judges sitting. I can envisage circumstances in which an appellant would feel aggrieved that his appeal had only been heard by three judges of the same status as the judge who sentenced him, because justice must be seen to be done as well as done.
  In view of what has been said, and as I am conscious that the Amendment as drafted does not fully implement all the recommendations as to the composition of the court, I beg to ask leave to withdraw the Amendment.
  Amendment by leave withdrawn.
  Clause ordered to stand part of the Bill.
  Clause 2 ordered to stand part of the Bill.

  Clause 3.—(FUNCTIONS AND STAFF OF REGISTRAR OF CRIMINAL APPEALS.)
  Mr. Taverne: I beg to move Amendment No. 2, in page 4, line 12, at end insert:
  (3) The 1925 Act shall have effect as if the registrar and any assistant registrar of criminal appeals were included in Part 1 of Schedule 3 of that Act (officers to whom special provisions as to appointment, retirement and pension apply).
  (4) Without prejudice to the last foregoing subsection, the registrar, any assistant registrar and any deputy assistant registrar of criminal appeals shall be officers of the Supreme Court and, without prejudice to section 110 of the 1925 Act (attachment of officers for duties) shall be attached to the Court of Appeal.
  This is a privilege Amendment.
  Amendment agreed to.
  Clause ordered to stand part of the Bill.

  Clause 4.—(POWERS OF COURT OF APPEAL ON DETERMINATION OF CRIMINAL APPEALS.)
  Mr. S. C. Silkin: I beg to move Amendment No. 3, in page 5, line 8, to leave out "it is" and to insert:
  "a conviction on any part of the indictment mould be".
  On Second Reading there was general agreement, certainly shared by my hon. and learned Friend the Joint Under-Secretary of State, that it was desirable to widen rather than restrict, as far as we could legitimately, the powers of the criminal division of the Court of Appeal to allow appeals where the justice of the case so demanded. That is the reason

  1965
  for the Amendments to the 1907 Act which are proposed in this legislation.
  The purpose of this Amendment is to carry the process possibly even further in the sense that, as the provisions of the Bill stand, we shall have the situation that the Court of Appeal in deciding whether to allow an appeal or not will be required to do so if it thinks that the verdict of the jury should be set aside on the ground that
  "… under all the circumstances of the case it s unsafe or unsatisfactory …"
  That is to say, the court will be looking back to the verdict of the jury in considering, whether it is unsafe or unsatisfactory, rather than looking at the situation as it exists at the time the appeal is heard.
  If there is any doubt as to the effect of that provision, the view might be taken that the court would be bound to place itself in the shoes of the jury at the time the case was heard and say, "Could the jury possibly have felt that a conviction was unsafe or unsatisfactory at that time?" rather than look at the matter afresh at the time the appeal is heard and say to itself, "Do we think that it is unsafe or unsatisfactory?" That would be an undue restriction of their powers. It is to make it clear that it must look at the case as at the time of appeal and not through the eyes of the jury that I move this Amendment.
  Mr. Grieve: I had not intended to intervene on the Amendment but was on the point of asking the hon. and learned Member for Dulwich (Mr. S. C. Silkin) a question when he sat down. It is to ask him the question now that I rise to intervene.
  I am not very clear what the hon. and learned Gentleman wishes to arrive at in suggesting the words
  "a conviction on any part of the indictment …"
  Surely what the appeal division will be concerned with is not a conviction on any part of the indictment but a conviction on that part of the indictment that is the subject of appeal.
  An appeal may be directed to a conviction or to a given part of the indictment, but I am not clear whether the hon. arid learned Gentleman seeks to give the division power to decide the substance and subject matter of the
  1966
  appeal and look at all the surrounding circumstances. That would be going much too wide. But if that is not the objective of the hon. and learned Gentleman, I do not follow him when the Amendment proposes that the court should look at any part of the indictment
  2.30 p.m.
  Mr. Peter Archer: I rise to support the Amendment, not because I flatter myself that I can state the case better than my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), but because there is one aspect of the matter which he has put with his usual fairness and moderation and which I should like to repeat with less moderation and restraint. Before doing so, I wonder whether I can attempt, for myself at least, to answer the point put by the hon. and learned Member for Solihull (Mr. Grieve). It is certainly not the intention of this draftsmanship to place the whole matter at large, as it were. The words "any part of the indictment" might well have been left out. What is intended is to attempt to provide for the court some guidance on an issue which arises both on the body of this provision and on the proviso, that is.
  Whether the court is required to direct its attention to the merits of the appeal, or whether it is required, as it were, to do the thing in two stages; whether it is just that the appeal should succeed, or whether the jury, properly directed, would have thought that it was just. It is a question which the Donovan Committee considered at some length in paragraphs 151 to 161 of its Report, concluding, with very little hesitation, that the correct answer was that the court should be invited to direct its attention to the justice of the matter.
  Unhappily, over a period of about 300 or 400 years the mystique with which the jury has become shrouded in this country has resulted in a court directing its attention not to the justice of the appeal, but to the effect on the mind of a jury of a hypothetical proper direction, and so the type of questions which have been asked has been, "What would have been the effect on a jury of particular types of direction?". The result over the years has tended to be undue emphasis on legal technicalities to the exclusion of the justice of the appeal.

  1967
  The result has been, as the Lord Chancellor remarked in another place, that if it is possible to satisfy the court that there has been a technical misdirection, then, irrespective of the merits of the matter, the appellant might well go free, but if his only complaint is that he is wholly and entirely innocent, that might have little effect on the mind of the court. It is because I believe that procedure should assist the process of justice and not impede it that I rise to recommend the Amendment to the Committee.
  Mr. A. J. Irvine: I am very doubtful whether the language of the Amendment has the effect which it is intended to possess as it has been explained by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin). The emphasis upon "any part of the indictment" gives rise to the kind of anxiety which the hon. and learned Member for Solihull (Mr. Grieve) felt.
  I think that the Amendment is capable of an interpretation which would be regarded as very unsatisfactory by everybody, including my hon. Friends who have spoken on its behalf. It might well be interpreted as meaning—this arises from the expression "any part of the indictment"—that if there were some material irregularity in the trial relating, for example, to a charge of shop breaking in an indictment in which there was also a count for assault, any appeal allowed by the Criminal Division of the Court of Appeal would have to relate to both counts.
  In other words, in a case where there was a miscarriage related wholly to the shopbreaking, or an irregularity wholly in the evidence on the shopbreaking, and there was also a separate count for assault, the appeal on shopbreaking could not be allowed without there also being allowed an appeal on the assault. I do not think that anybody wants that, for it would be obvious nonsense. I fear that from mischance the language of the Amendment would be more likely to have that effect than the effect for which my hon. Friends are contending.
  Mr. Taverne: I am in some difficulty, because I do not understand the Amendment at all. I do not understand how it is to make the court look at the circumstances at the time of the appeal, as opposed to the circumstances at the time
  1968
  when the jury was considering its verdict What it does is to direct attention to any part of the indictment, apparently as opposed to the indictment as a whole. The remarks of the Donovan Committee in paragraphs 151 to 161 of its Report were directed at the proviso and how in the past the court had interpreted the proviso. Those remarks do not seem to have any relevance to the way in which the court will interpret the earlier part of Clause 4(1,a).
  Mr. Archer: The purpose of my comments on those paragraphs was to show that the same issue arose in this connection as arose on the proviso. The purpose of the Amendment is to invite the court to look at the "conviction", which is the important word in the Amendment, rather than the "verdict", which is what exists at the moment in the Bill.
  Mr. Tavern: I have obviously misread it or misinterpreted it, but I still do not understand how the effect striven for is achieved, because whether one looks at the conviction, or part of the indictment for which a person has been convicted, or at the verdict, does not seem to alter the matter. The question which the Criminal Anneal Division will have to consider is "Was the verdict of the jury unsafe; was the verdict of the jury unsatisfactory?". That seems essentially to meet the points made by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin).
  To some extent, I must agree with the remarks of my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) that it might well have a very strange effect. At the moment, if there are separate counts and an appeal is allowed as to part, it can be dismissed as to the other part. In that sense, the verdict of the jury is already separated by the Court of Criminal Appeal, but the effect of the language of the Amendment might be that if it is only on part of the indictment, on one of the counts, that the appeal is allowed, the whole of the conviction, the whole of the verdict, must be set aside. I cannot accept the Amendment, because I do not understand it. It does not seem to achieve what it sets out to achieve and its effect might be unfortunate.
  Mr. S. C. Silkin: Like the hon. Member for Colchester (Mr. Buck), I would not

  1969
  claim any particular ability in draftsmanship and if the drafting of the Amendment is liable to criticism, I would be only too happy for those far more experienced than I am to look at it again and to put it in a form which carries out our intention.
  What we are concerned with is that there should be no doubt that the Criminal Division, when deciding on an appeal, should not feel that it is in any way restricted by the feeling that it has to look at the matter simply through the eyes of the jury which heard the case, but should have that much wider elasticity which would enable it to look at all the facts and the circumstances as they are and as they existed at the date of the appeal.
  I have heard what has been said about the drafting, but I hope that my hon. and learned Friend will consider the principle behind the Amendment. With that hope in mind, I beg to ask leave to withdraw the Amendment.
  Amendment, by leave, withdrawn.
  Mr. Carlisle: I beg to move Amendment No. 4, in page 5, line 14, to leave out from "proviso" to end of line 15 and insert:
  "for the words 'consider that no substantial miscarriage of justice has actually occurred' there shall be substituted the words 'are satisfied that a reasonable jury properly directed at a trial conducted without irregularity would not upon all the evidence given have done other than convict'".
  It might be said on first sight that this is merely a drafting Amendment, but in my submission it is rather more than that. It is an attempt to clarify into statutory form, what, in practice, has been the effect of the proviso under the Criminal Appeal Act, 1907. I should go back briefly into the wording used in that Act and say how it comes about that this Amendment is brought before the Committee. Section 4 of the Criminal Appeal Act 1907, sets out the grounds upon which an appeal could be granted including:
  "that … there was a miscarriage of justice …"
  It noes on to say:
  "Provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has lethally occurred."
  1970
  As the Committee will know, the Donovan Committee recommended the removal of the word "substantial" from the proviso. As it would then have stood one was faced with the position that, if no other consequential Amendment had been made, the Section would have read that one of the grounds upon which an appeal could be allowed was that there was a miscarriage of justice, provided that the court should not decide in favour of the appellant if they considered that no miscarriage of justice had actually occurred. As the learned Attorney-General pointed out on Second Reading, that appeared to be a complete nonsense and led to the Government making an additional Amendment to that proposed by the Donovan Committee, by changing the words "miscarriage of justice" in the existing ground for granting an appeal for the words
  "…material irregularity in the course of the trial".
  It should be made clear that whereas that Amendment may have improved the elegance of the Clause, in practice its effect, as was apparently intended, was nil. In moving the Second Reading of the Bill, the learned Attorney-General said of the Amendment that the Government were taking out words and replacing them by another set of words which were considered to have the same effect. The point made by the noble Lord, Lord Pearson, in the House of Lords on Second Reading was that it was difficult to see that there could be any material irregularity which was not to some extent a miscarriage of justice. As I say, although the wording has been approved so that at fist sight it does not appear apparent nonsense, if one goes further into the words one finds that it is still an apparent nonsense and is producing two completely contradictory statements.
  In our Amendment we have attempted to remove the words of the existing proviso entirely and to set in their place what, in practice the court does, namely, not to allow an appeal, although a point of material irregularity may have occurred, or although there may have been a misdirection on law, if the court is satisfied that a reasonable jury, properly directed, would still have convicted. The Amendment to the 1907 Act as proposed by the Government, as the noble Lord, Lord Pearson, again pointed out in his speech, lessened the effects of the proviso

  1971
  by the removal of the word "substantial". As the noble Lord said, once any miscarriage of justice, however small it might be, had occurred, and it could be established that it was a miscarriage of justice, then the court would be prevented in any way from making use of the proviso.
  One knows that what has happened over the years since the Court of Appeal was set up is that the court has, to a certain extent, disregarded the strict interpretation of the words in the 1907 Act and has, in the words of the Lord Chief Justice in another place, done what it thought to be right in all the circumstances. The purpose of this Amendment is to put into words, into the Statute, what is the effect in practice of the proviso as it now stands. The words may appear familiar to all Members who were present on Second Reading. On 12th July the learned Attorney-General, explaining what the proviso means, said that the court would:
  "…dismiss the appeal if…. satisfied that a reasonable jury, properly directed, could not have done other than convict."
  2.45 p.m.
  When one comes to the words used by the hon. Member the Under-Secretary of State for the Home Department in reply to the hon. and learned Member for Southport (Mr. Percival) who asked him what he felt was the effect of the new wording of the proviso, it will be seen that he said:
  "There may be cases under the Clause as amended where, for example, there has been material irregularity in the course of the direction which was relevant, but, nevertheless, at the end of the day the Criminal Appeal Division, looking at the whole of the evidence will say that no reasonable jury properly directed could have failed to convict."
  It is those words, used by the Parliamentary Secretary and the Attorney-General which have been drafted into this Amendment. The Parliamentary Secretary continued:
  "This, in effect, is what the proviso means." —[OFFICIAL REPORT, 1st July, 1966; Vol. 731, c. 1112. 1139.]
  It is the opinion of this side of the Committee that since that, in effect, is what the proviso should mean, that in practice is what the proviso should say. That is why we move the Amendment.
  Mr. A. J. Irvine: The hon. Gentleman the Member for Runcorn (Mr.
  1972
  Carlisle) who has moved this Amendment has argued with great skill and, if I may use the word, plausibility, about a distinction without a difference. I have difficulty in finding any real merit in the proposed change. As the Bill is drafted, the question which a member of the Court of Appeal is required to ask himself relative to the proviso is, "Has no miscarriage of justice occurred overall?"
  The effect of this Amendment would be that he would have to ask the question, "Would a reasonable jury, properly directed, have convicted?" This is difficult and he will always answer these two questions in the same way. I cannot conceive of a situation in which any judge could think of answering one of them in the negative and the other in the affirmative. This is why I feel that the proposed language of the Amendment adds nothing to the Bill.
  What it does is to make it an obligation upon the member of the court to place himself, notionally, in the condition of a reasonable and correctly directed juror. But that is a metaphysical exercise, I should have thought, because the moment that he seeks to determine whether a miscarriage of justice has occurred, he is placing himself in the position of his concept of a reasonable juror. By the Amendment, we are calling upon him to carry out a metaphysical exercise closely akin to what would be his duty, anyhow, and introducing an unnecessary complication into the Measure.
  Mr. Grieve: I suppose that the debate is as devoid of political content as any debate in this Chamber could be. On both sides, we are seeking to arrive at the right use of language to achieve ends which we all have in common in the administration of justice.
  In that position, I am reminded of the French saying,
  "Le mieux est l'ennemi du bien."
  Very often, in seeking to improve a system which is already working well, one may be driven to analysing language and breaking down current expressions to a degree that one befogs oneself, and the last stage is probably worst than the first. I am not sure that something of that kind has not arisen in this Clause.
  I hope that I am not out of order in going beyond the words which we are

  1973
  discussing to consider the wording of the earlier part of the Clause where it was provided that the words "unsafe or unsatisfactory" should be substituted for the existing words in the 1907 Act. That exemplifies the point which I desire to make on this Amendment. In the debate in another place, the noble Lord, the Lord Chief Justice, said that that was precisely the test which the Court of Criminal Appeal had been applying for years, whether or not it was justified by the precise language of the Act of 1907.
  Similarly, the debate on this Amendment has been triggered off by the question whether the word "substantial" should be taken out of the old expression in the proviso to Section 4 of the Act of 1907 governing the word "miscarriage". Over 59 years, the expression "substantial miscarriage" has come to have a meaning which every man in the street can perfectly well understand, let alone every lawyer. It is a miscarriage of importance; such a miscarriage as would justify the court in interfering, if there was one, and in saying that it would not interfere if there was not one.
  It is because we have sought to break down the language and follow the recommendations of the Committee, that the expression "substantial miscarriage" has come to he analysed in this way. People ask themselves if the word "substantial" adds anything to "miscarriage". If there is a miscarriage of justice, ipso facto it must be substantial. Anyone would have said, as the noble Lord, Lord Pearson, said and as my hon. Friend the Member for Runcorn (Mr. Carlisle) said, that the Court of Criminal Appeal has applied the proviso when there has been any miscarriage, because "miscarriage" means a substantial miscarriage.
  The Bill seeks to omit the word "substantial", and so we have to look and see what sort of miscarriage is involved. In putting down the Amendment, my hon. Friends have sought to define what amounts to a miscarriage and what, through all these years, have amounted to a substantial miscarriage.
  I do not go along with the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) in saying that it involves the Criminal Appeal Division of the court putting itself in a metaphysical position. All who sit in judgment—
  1974
  judges in civil cases, recorders hearing appeals at quarter sessions—have to put themselves in the position of a jury. It is something which judges do every day. They direct themselves as to the law as judges and they approach the matter in accordance with the direction that they would give to a jury were they assisted by one.
  I support my hon. Friend the Member for Runcorn in moving the Amendment as an attempt to define the sort of miscarriage that we all have in mind. Like my hon. Friend, I am not wholly satisfied with the language of the Amendment. I only go so far as to submit it to the hon. and learned Gentleman the Under-Secretary as one possible definition of "miscarriage" which no doubt will require tidying up. For example, I am not at all sure that the word "could" should not be substituted for "would" in the penultimate line.
  It is a gallant attempt to define something which it is extremely difficult to define. To that end, it has my support, and I submit it with approval to the Committee.
  Mr. Taveirne: Despite the persuasive way in which the Amendment has been moved and supported, I must ask the Committee to resist. I do so for two reasons. The first is because it is not needed, and the second is because it contains a serious defect which goes beyond just a drafting defect.
  To begin with, may I say something about subsection (1) of Clause 4? The Donovan Committee looked very carefully at the proviso. From the way in which it has drafted its own paragraphs 161 to 166, it does not appear that any of the witnesses who gave evidence before it suggested that the language of the proviso should be revised. The Committee itself suggested cutting out the word "substantial". It said, in effect, that it is extremely well established what the proviso means.
  Formerly, under the old Section 4(1) of the 1907 Act there were three grounds for allowing an appeal, with a proviso at the end.
  The proviso could not operate on the first ground, because, if the verdict of a jury was unreasonable and could not be supported having regard to the evidence,

  1975
  one could not apply the proviso. There was some difficulty in applying the proviso to the third ground, dealing with a miscarriage of justice. Nevertheless, to some extent the courts did so, because the second ground, dealing with a mistake on the ground of a wrong decision of any question of law, would not cover the case of any serious misdirection of fact, and the court could use the third ground in order to make that a permissible ground of appeal. It nevertheless was very unsatisfactory. It will now be much more satisfactory.
  The hon. Member for Runcorn (Mr. Carlisle) mentioned Lord Pearson's doubts, but this point was carefully considered by the Donovan Committee. If I may pray in aid another eminent legal authority, Lord Tucker, who has enormous criminal experience, he said in the House of Lords that he very much welcomed the proposed reform of Clause 4 which, he thought, would very much strengthen the position of the Court of Appeal.
  The way in which it will work is that as to the first ground, the proviso would clearly not operate if a verdict was unsafe or unsatisfactory, and clearly one could not then say that there had been a miscarriage of justice. Certainly, the proviso would operate on the second ground of appeal. If there was a wrong decision on a question of law, the Court of Appeal could still say at the end of the day that although there was a wrong decision on a point of law, nevertheless there had been no miscarriage of justice and the appeal would be dismissed.
  3.0 p.m.
  The Court of Appeal can also now do so on the third ground of appeal as it is phrased, because it is possible for irregularity to occur in the course of the trial. If, for example, a judge has misdirected the jury on a question of fact and has wrongly quoted what the defendant said in court, or if, for example, the judge has asked far too many questions and interfered to far too great a degree, at the end of the day the Court of Appeal can nevertheless, despite those irregularities, say that there has been no miscarriage of justice because the case had been proved up to the hilt and, to use the words which are now suggested, no
  1976
  reasonable jury properly directed could possibly have failed to convict. Therefore, the Clause can easily be given meaning, and I adopt Lord Tucker's view that it strengthens the position of the Court of Appeal.
  The Amendment might well mean that the proviso could not operate in the case of the second ground of appeal, because there might well be a mistaken decision of law, and yet, if that was the case, the proviso might not be available for the Court of Appeal if it was drafted as it is at present. It might be that evidence was wrongly admitted but, if it was established, on the drafting of the Amendment it might well not be possible for the Court of Appeal to apply the proviso. For that reason the Amendment would be defective in an important respect. It is not merely a matter of drafting.
  Secondly, even if the defect were remedied—this is the other ground on which I resist the Amendment—quite apart from the fact that there would need to be consequential Amendments throughout the Bill, in Clause 10 relating to the position concerning Northern Ireland and in Schedule 1 relating to the powers of the Courts-Martial Appeal Court, why should one change language which, in effect, the Donovan Committee has clearly said is well established? What is the point of making a change if no practical effect is achieved?
  For these reasons, I ask the Committee to reject the Amendment. The matter is one to which the Donovan Committee gave careful thought. As to the proviso it is a matter which has been well established in interpretation. Therefore, nothing in particular would be gained by the Amendment.
  Mr. Carlisle: The Under-Secretary of State for the Home Department has said that the Donovan Committee did not recommend this change. The Donovan Committee did not, however, recommend the change in the body of the Clause—in other words, to change "miscarriage of justice" to "material irregularity".
  I cannot think that there is any strength in the hon. Gentleman's argument that the Amendment would not apply to misdirections in law. In the example given by the Under-Secretary, if the Court of Appeal found that evidence had been

  1977
  admitted which should not have been admitted, surely that would be an irregularity at the trial and the Criminal Division of the Court of Appeal would still be entitled to say that although it found that the irregularity had occurred, it was satisfied that a reasonable jury properly directed, which would cover the question of a misdirection at law, at a trial conducted without irregularity, which would cover the question of whether evidence had been admitted which should not have been admitted, could still not have come to any other verdict than guilty.
  It still seems to me and to my hon. Friends on this side that although, as the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) has said, this may to a certain extent be a distinction without a difference, we have attempted to put into statutory form the practical effect of the words of the proviso as admitted both by the Under-Secretary and by the Attorney-General on Second Reading.
  Although, obviously, not desiring to press the Amendment to a Divison I do not feel that it is right to withdraw it.
  Amendment negatived.
  Mr. Carlisle: I beg to move Amendment No. 5, in page 5, line 16, to leave out subsection (2).
  I suppose that this Amendment and the next on the Paper, could be said to be the two which are likely to lead to the most controversy. The hon. and learned Member for Dulwich (Mr. S. C. Silkin) have an Amendment, No. 6, in page 5, line 27, at end add:
  (3) Without prejudice to the provisions of section 5 of this Act a substituted sentence shall be deemed to be of greater severity than the sentence passed at the trial taken as a whole, if the maximum possible period of deprivation of liberty which the appellant would or might suffer by virtue of the substituted sentence would exceed that which he would or might suffer by virtue of the sentence passed at the trial taken as a whole."
  While mine and his may be said to be controversial I think probably mine is the most controversial of all.
  The position at the moment with regard to appeals against sentence is that, under the Criminal Appeal Act, 1907, on an appeal the Court of Criminal Appeal shall if it thinks that a different sentence should have been passed have the power
  1978
  to pass that different sentence. It has, in effect, a completely free discretion with regard to the sentence which should be passed on an appeal. The purpose of Clause 4(2) of the Bill is to inhibit that power to pass a different sentence by limiting it in a way that the Court no longer shall have power to increase sentence; and indeed—and I shall come to this in a moment, because I think the words are very much open to question, as, it is obvious, the hon. and learned Member for Dulwich and one or two of his hon. Friends do, too—it limits the Court in such a way that it cannot vary a sentence which may be said to impose a sentence of greater severity than the sentence originally passed.
  I do not doubt that if one reads with care the Donovan Committee's Report it can be fairly said that there are obvious arguments against the present position of the law on appeals against sentence; I do not doubt that there are strong and cogent arguments, as it says, that the law as it at present stands is capricious in that those who appeal may get their sentences put up if they appeal against their sentences, but if they appeal only against conviction they cannot have their sentences put up. I am not standing here to say that the law as at present laid out is perfect, but though there are obvious arguments for doing away with the power to increase sentence, I think the House will accept that there are also arguments why this power should be retained.
  The first and most obvious argument of all is the very grave fear, which, I believe, has been expressed on both sides of this House and in another place and by people outside who are interested in matters of appeal, that one of the effects of this Bill, if carried in this form, may be to lead to a great flood of wholly unmerited appeals, and that we may find that anyone now serving a sentence which he considers to be of substantial length will appeal, knowing that he has absolutely nothing to lose and everything to gain by making an appeal. It is the view of this side of the House, while in no way advocating that the power to increase sentence should be one which the court should regularly use, that it is wrong to withdraw that power entirely from the court. It should be remembered that although this was recommended by the

  1979
  Donovan Committee, that Committee also recommended that it should be merely experimental. One would have thought that that experiment was already being carried out by the practice at present used by the Court of Criminal Appeal —in view of what the learned Lord Chief Justice said about increasing sentence—without it needing to be embodied in statutory form in this way.
  It is often said that the strongest argument against allowing the power to increase sentence is that one would be punishing a person for making use of his right of appeal. This matter was gone into by the Donovan Committee and although, as I say, it recommended the abolition of this power, it made clear that the power had not been used for the purpose of punishing the appellant. The Act lays down the means by which this power can be used, and the Donovan Committee stated in paragraph 193 of its Report:
  "…it may be noted that the statute does not empower the Court to increase the sentence merely on the ground that the appeal is frivolous…. ".
  What it does do, on the other hand, is to give to the court power to bring some logic into a sentence when, on looking at the sentence, it believes that it is wholly wrong and is out of accord with other sentences by being far more lenient than it should have been.
  We believe that the retention of this power would not be used as a means of punishing people for appealing but that it would help to get uniformity of sentence, with the Court of Criminal Appeal giving guidance to courts by occasionally having to use its power to increase sentences where it believes that courts have passed sentences which are too lenient. I suggest, therefore, that this power does not have the grave disadvantage which has been attached to it in the past in that it would punish people merely because they have appealed.
  Having said that, I must, since I understand that the next Amednment, No. 6, has not been selected, consider what will he the position—
  The Chairman: Order. Amendment No. 6 has not been selected so the hon. Member cannot discuss it.
  Mr. Carlisle: I appreciate that, Sir Eric, and since the Amendment I have moved is designed to delete the whole of subsection (2), perhaps I may be allowed, having made my main point—which is that the power to increase sentence should be maintained—to comment on the position if the subsection is retained. The Clause states that the power of the Court of Appeal shall be limited in such a way that it cannot impose a sentence of greater severity. But what is a sentence of greater severity? Undoubtedly the courts have always had power, and have used it, to vary sentences. The Donovan Report specifically stated in paragraph 206:
  "The power of the Court to vary the kind of sentence originally imposed, e.g., by substituting a sentence of borstal training, or a hospital order with a restriction order, should be preserved, even though the latter might carry a liability to a longer period of detention than under the original sentence "
  It seems that if subsection (2) remains in the Bill, that will not be possible. Surely a sentence of borstal training, with a period of 18 months detention—with a possible maximum period of two years' detention—is a sentence of greater severity than one of three or six months' imprisonment imposed on a person under 21. If that is so, subsection (2) would not only prevent the increasing of prison sentences as we normally know them, but would prevent the courts from using their power to vary a sentence of the kind they believe should be varied.
  3.15 p.m.
  One then asks the question that was asked on Second Reading: if a £5,000 fine has been imposed and the Court of Criminal Appeal wishes to substitute for it a sentence of three months imprisonment, is that a sentence of greater severity? Will the court have power so to vary? Again, as we all know, a sentence of one day's imprisonment is a formal sentence by means of which no penalty is imposed. If the subsection remains, will the court be able to substitute a sentence of one day's imprisonment for a financial penalty, or must the passing of a sentence which deprives someone of liberty be looked upon as a sentence of greater severity?
  The Under-Secretary of State has commented that to find a precedent for the use of the words "greater severity" we had to look at the 1964 Act. It is quite

  1981
  true that those words are there used, but if we look at the notes made on the Act by the learned author of Halsbury we find the comment that these words are difficult of interpretation. By retaining this subsection we are wholly restricting the powers of the Court of Appeal, both on the general point that it should be entitled to increase sentence, or alternatively should be able to vary it. Although we all know that that power is seldom used, and although we all hope that it will continue to be seldom used, I submit that it would be wrong to retain the subsection and so restrict the power of the court in this way.
  Sir Barnett Janner: Although I appreciate what has been said by the hon. Member for Runcorn (Mr. Carlisle)—and those of us who have been concerned with matters of this description have had to weigh up this position very carefully—I have, as a practising solicitor, come to a different conclusion from what is implicit in the Amendment. I do not think that the hon. Member has quite appreciated the position of the individual who, having committed an offence of a minor or technical nature, is not prepared to accept the severity of the sentence as being satisfactory in the circumstances.
  In advising such an individual and weighing up the full circumstances of the case, one finds oneself with the very large responsibility of advising him to appeal —and I am sure that counsel have precisely the same matters to consider—knowing that there is a possibility of another court taking a more serious view of the offence, and imposing a heavier penalty.
  One does not want to allow people to escape through the mesh. Nevertheless, we have to weigh up the position and recognise that a judge has come to a decision. A judge has a tremendous responsibility on his shoulders. He may take a different view from another judge about what the amount of the penalty imposed should be, but the fact is that it is a Judge who comes to this decision. I do not say that every judge is 100 per cent. perfect—I do not suppose judges themselves say that—the fact remains that a judge with the qualifications necessary for him to be appointed to the Bench
  1982
  has considered that the penalty is as severe as it ought to be.
  I do not know whether counsel or a solicitor would be prepared to say that every other judge would take the same view. We all know in our experience that certain judges impose very severe sentences, much more severe than any of us would regard as reasonable. It is my opinion that the responsibility of advising an appellant is one which ought not to carry with it advice to take a chance on getting a more severe sentence when a judge, whoever he may be, has come to the conclusion that the sentence imposed was sufficient to meet the case.
  The judge has heard the whole of the evidence, had the winesses before him, and been in a position to weigh up the circumstances. Someone may reply, "That is all very well, but why in those circumstances not accept the fact that if a judge, who is bound to have these qualifications before he is allowed to sit on the bench, may allow the sentence to be reduced?" There is a question which we should weigh in the interests of the accused person. If other judges in the appeal court come to the conclusion that the sentence was too severe, we may be sure that it was too severe. There may be no question about that.
  I ask the hon. Member for Runcorn (Mr. Carlisle) to withdraw this Amendment. On balance, I think the view of my hon. Friends and myself is right in this matter. There is, of course, a possibility of opinions in this House at some time being taken into consideration by judges coming to a conclusion. If that were to occur an additional argument could be used for the purpose of suggesting that our point of view is right. That does not prevail yet, but I should not be at all surprised that one day that point of view may prevail and a judge would be able to take into consideration what prompted hon. Members to come to the conclusion they reached. It is not the law at present, but even as the matter stands it is perhaps an exercise of mercy—we are entitled to take that into consideration—that the opinion of one learned judge about severity ought not to be overruled by increasing the penalty. It is perfectly right that decreasing the penalty when other judges have come to the conclusion that that one judge was

  1983
  wrong in the severity of the sentence should remain.
  Mr. Archer: I agree with the hon. Member for Runcorn (Mr. Carlisle) that the Clause, as drafted, presents a considerable problem of interpretation. A later Amendment in the name of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) is directed to that. I also agree with the hon. Gentleman that the burden of his speech was probably the most controversial issue which arises in the course of these debates. I was disturbed to hear the hon. Gentleman advance as the major argument in favour of the Amendment that, if this deterrent were removed, it would open the floodgates to a vast number of appeals. If that principle were accepted, it would be disturbing indeed. In effect, it is saying that an unchallenged right is provided; no one seeks to remove it, but for administrative reasons citizens are deliberately discouraged from exercising it.
  This attitude could be applied to a frightening range of activity. Congestion on the roads could be relieved by agreeing that everyone would continue, as at present, to have the right of passage along the highway, but booby traps would be set at intervals of 100 yards so that those unfortunates who fell foul of them, and others, would be deterred from exercising their right. The cost of social benefits could be reduced by providing that one recipient in ten, chosen at random, should pay Income Tax on his benefit at the rate of 200 per cent. This type of argument is frightening. I hope that this principle will not be persisted in or extended.
  The only other argument which appears to have been advanced in favour of the Amendment is that, if it is just that a sentence which is too high should be reduced, it must equally be just that a sentence which is too low should be increased. The force of this argument must be immediately accepted. However, if this procedure is to be applied consistently, the method of applying it should be to give the prosecution an automatic right of appeal against sentences which it considers to be too low. If one is not prepared to apply the principle over the whole range of sentences—arid most hon. Members would shrink from such
  1984
  an application—it is wrong to apply it arbitrarily merely to those who have the temerity to appeal.
  There is one other rather worrying aspect of administration of the provision as it now exists. I refer to the way in which the court is led from time to time to give leave to appeal knowing full well that what it has in mind is that the sentence is too low, but without warning the appellant that that is what is in the court's mind. Again, the court cannot be blamed for this, because if this course were not adopted the existing power to increase a sentence would be of no effect. If appellants were warned at the outset, all that they would have to do would be to withdraw their appeals.
  However, it is a frightening thought that the court should have to proceed in this way. It does not commend the public relations of the legal profession. On Second Reading my hon. and learned Friend the Member for Lincoln (Mr. Taverne) used the word "guile" in describing this procedure and was the subject of a warning from the hon. and learned Member for Ruislip-Northwood (Mr. Crowder) that this might be construed as a reflection on the court. In fact, my hon. Friend's choice of words was complimentary language in comparison with the language used in the Donovan Report, which contains a reference to the court setting a trap and comes to the conclusion that this
  "is not an edifying spectacle."
  That is in paragraph 198. The principle itself is a worrying one. The way in which it has to be applied is even more worrying in my submission, and by far the fairest way to deal with this is to introduce what is obviously the intention of the Bill as now drafted but, one would have hoped, with some reconsideration to the actual draftsmanship.
  3.30 p.m.
  Mr. Grieve: One cannot listen to a debate of this kind, or to the hon. Member for Leicester, North-West (Sir B. Janner) who deployed his argument with all his customary humanity, without being strongly influenced by the arguments against the present position. I make that point at the beginning of my speech because I support this Amendment and the continuation of the present position.

  1985
  I agree at once with the hon. Member for Leicester, North-West that on the face of it there is something inhuman, something which seems almost like the setting of a trap, to say to all those who are convicted in criminal courts, "You may go to the Court of Criminal Appeal to appeal against your sentence" and then, when they get there, subjecting them to the risk of having the sentence, far from being decreased, increased. I shall not refer to the numbered paragraphs of the Donovan Committee Report, but that is the argument which finally prevailed with the Donovan Committee in recommending the abolition of this power in the Court of Criminal Appeal.
  I am developing my argument now as to why I think the power should be maintained, and I cannot agree with the hon. Member for Rowley Regis and Tipton (Mr. Archer). I cannot quote his exact words, but the note that I made while he was speaking was that the morality of this is not all one way. There would be a case in the abstract for leaving this power with the Court of Criminal Appeal, quite apart from practical considerations, because in the abstract it is a power which tends, at any rate, towards some measure of consistency in sentencing and consistency in sentencing is something which the whole of the legal profession and, I think, public opinion today has very much at heart. It is shocking to informed public opinion when it finds that man A receives in court B a heavier sentence than man C, having done very much the same thing, appearing in Court D.
  Of course, we all know that what appears when reported to be a very similar case may in its substance be a very different case. Nevertheless, there is a case for some measure of consistency in sentencing.
  Mr. S. C. Silkin: I am obliged to the hon. and learned Member for Solihull (Mr. Grieve) for giving way. I agree with him, of course, as I am sure we all do that consistency is desirable. If one follows that to its logical conclusion, would he not agree that it would result in the right being given to the prosecution to appeal against an inadequate sentence? If one does not want to follow it to its logical conclusion, what is the reason for singling out the man who has appealed?
  1986
  Could not the Court of Appeal in its criminal jurisdiction achieve the consistency it desires to achieve in such cases simply by saying, "We dismiss the appeal. In our view the sentence ought to have been much bigger"?
  Mr. Grieve: I agree entirely with the substance of the hon. and learned Gentleman's intervention. I was making the point as a very subsidiary one in supporting the continuation of the present power in the new criminal division of the Court of Appeal. I do not regard it as an overriding one by any means.
  In another place, the Lord Chief Justice dealt with this matter and said that the operation of the power was extremely capricious. He gave certain figures, pointing out that over ten years there had been
  "a quarter of a million sentences imposed at assizes and quarter sessions. During those same ten years, there resulted 17,200 applications for leave to appeal involving sentences". —[OFFICIAL REPORT, House of Lords, 12th May, 1966; Vol. 274, c. 838]
  In how many cases over that same period were sentences increased?—in 30. So the power is, in fact, very little exercised. We all know why. The first reason is that, if a sentence is likely to be increased, the legal advisers of the appellant—in the end, they nearly always have legal advice—will make plain that the appeal should be abandoned. Very often, the Court of Criminal Appeal itself gives a hint in advance that it is likely to happen. Further, the Court of Criminal Appeal as it now exists neither increases nor decreases sentences except when it comes to the conclusion that the learned judge has erred in principle. This meets the point made by the hon. Member for Leicester, North-West in saying that one judge may take one view of a proper sentence and another judge will take another view.
  This point is made in paragraph 187 of the Donovan Report:
  "It is not surprising therefore that the Court"—
  that is the Court of Criminal Appeal—
  "has formulated its policy on this matter in the following words, taken from R. v. Ball, 35 Criminal Appeal Reports. page 164:
  In the first place, this Court does not alter a sentence which is the subject of an appeal merely because the members of the Court might have passed a different sentence. The trial judge has seen the prisoner and heard his history and any witness to character he may have chosen to call. It is only

  1987
  when a sentence appears to err in principle that the Court will alter it. If a sentence is excessive or inadequate to such an extent as to satisfy this Court that when it was passed there was a failure to apply the right principles, then this Court will intervene'."
  It appears, therefore, that there is an argument from what I may call the morality of consistency in sentencing for keeping the power, but I do not base my argument for keeping it on that. The quotation I have just made and the figures I have given show that it is exercised, in a sense, so capriciously that that would not be a very good reason for keeping it. But, on the other hand, the figures show also that it is very little exercised, that a man appealing has, in fact, very little to fear. It is clear from the figures that it is very rarely done. Second, if it is done, it is done only as a matter of principle. Third, although I quite agree that one advises with great caution in matters of this kind, a man's legal advisers, if he is taking legal advice, will say, perhaps, "We think that you have a reasonable chance of having your sentence reduced and there is very little chance of it being increased". That is as far as legal advisers generally go, but it will indicate the position.
  The reason why I come down in favour of keeping the power is the practical one, which was put by my hon. Friend the Member for Runcorn (Mr. Carlisle) as the kernal of his case, that the Court of Criminal Appeal has been flooded with applications for leave to appeal. I shall not detain the Committee by giving the figures. The Lord Chief Justice has spoken on a number of occasions lately about the flood of work going into that court. Anyone who has experience of quarter sessions has seen how over recent years the number of appeals from justices to quarter sessions has been increasing. The tendency is for these appeals to increase enormously.
  If the new division of the court of appeal is not to be flooded with frivolous applications is there not a case for keeping this power—not as a power which is much exercised, for it should be plain that it has not been exercised, and not as a power which is designed to deter the appellant who has a strong case for getting his sentence reduced, but as a power calculated to deter the frivolous appeal.
  1988
  There were a number of other things which I wanted to say, but I have already taken up a considerable amount of the Committee's time this afternoon and I do not want to pursue these matters any further than I must. The argument will not be improved for being elaborated. I believe it to be a real argument of substance based on the facts of life as all those of us who practise the law will know them to be. I have been much influenced by the argument of the hon. Member for Leicester, North-West and others who have pressed the contrary arguments on me in the past, but I come down in support of my hon. Friend who moved the Amendment.
  Mr. John Lee (Reading): I am in total disagreement with my hon. Friends and strongly in agreement with the Amendment moved by the hon. Member for Runcorn (Mr. Carlisle). Most hon. Members on both sides of the Committee have expressed the opinion that there will be something wrong in the right of the prosecution to be able to appeal against an over-lenient sentence. I come down in favour of that, and my complaint is that the Amendment does not go far enough.
  At a time when we do not seem to be able to control crime, we find that misguided leniency in sentences seems to have influenced many judges into passing sentences, many of which are quite inadequate. One must not refer directly to cases, but there were cases, which I am sure my hon. Friend the Member for Leicester, North-West (Sir B. Janner) will recognise, in which derisory sentences were passed by the judge.
  I cannot think that the administration of justice will be greatly improved by the removal of this power and I agree with the hon. and learned Member for Solihull (Mr. Grieve) that the work of the Court of Appeal, as it will be constituted, will be greatly hampered, especially in view of the already large number of appeals, if people, influenced by this tendency towards leniency, are encouraged further and further to lodge appeals in this way. Clearly if we remove the deterrent of the possibility of an increase in sentence the court of appeal will be faced with a very difficult problem.
  I recognise that some hon. Members feel that there is something repugnant

  1989
  in the idea of a person being entrapped into appealing only to find that his sentence is increased. The proposal which I put forward is much more logical—that there should be a right of appeal against the sentence at first instance. The least we can do is to keep the existing system and have to this extent consistency of judgment, which means not merely the reducing of over-severe sentences but surely a levelling up of sentences which are too lenient. We must do that to bring about consistency in sentences.
  I find it rather incongruous that I should support an Amendment moved from the opposite benches, but I hope that the Under-Secretary of State will not lightly dismiss their arguments. Quite clearly the present situation is not very satisfactory, but in the absence of a more drastic revision I am afraid that it is probably far better for the existing law to stand than for it to be amended in the way proposed in the Bill.
  3.45 p.m.
  Mr. Taverne: I will not lightly dismiss the Amendment, although I must ask the Committee to reject it. This is one of those arguments where there is a great deal to be said on both sides. The balance of argument is delicate. The matter has been thoroughly examined in another place and exhaustively considered by the Donovan Committee, so do not wish to add a great deal to what has been said.
  I concede that there is great danger of the Court of Appeal being flooded. I have considerable sympathy with the point made by my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer) that one does not want to set unnecessary booby traps. One can extend the argument in all sorts of unfortunate ways but one has to take account of practical reality and that is why we have not ended the power to direct, in the case of an unmeritorious appeal, that the period spent waiting for the appeal shall not count towards sentence.
  On the other hand that danger can he overstressed. It is significant that the person mostly concerned with the business of the Court of Criminal Appeal—the Lord Chief Justice—is in favour of
  1990
  this reform so I think that one need not pay too much attention to that danger.
  Secondly, I concede that it is sometimes just to increase an inadequate sentence and that inconsistency of sentencing is undesirable, for it leads to a sense of injustice. But when it comes to the measure advocated in the Amendment there is no prospect of introducing consistency. The figure has been quoted of 0.17 per cent. of cases where sentences have been increased, and this shows how impossible it is to achieve consistency of sentencing. One of the only ways of doing this is by allowing the prosecution a right of appeal, because if the prosecution were allowed the right of appeal against sentence some such provision could be found. But that would be contrary to our tradition, which is that the prosecution is not concerned with the sentences awarded,
  It may be that it could be done by some general review power but we are:1 long way from that and it is not something that we could contemplate in the Bill. There are some who want it and it would have to be carefully examined. I should not like to see the Home Office reviewing every sentence with a view possibly to directing some sort of appeal. It is hard to see how one can achieve this kind of consistency of sentencing. In another place, Lord Dilhorne said that some improvement might be achieved by allowing an increase of sentence on any appeal, even if only against conviction. But that would affect only 10 per cent. of all sentences. It would put much additional work on the court without achieving the object desired.
  Mr. Carlisle: I see the strength of the point that if the court only had power to increase sentences in a few cases, we still would not get consistency with cases which had not come forward on appeal. But would not the hon. and learned Gentleman agree that the publicity attaching to increased sentences in the Court of Appeal would inevitably lead to consistent sentences because, through the publicity, other judges and chairmen of quarter sessions and recorders would know the views of the Court of Appeal about certain offences.
  Mr. Taverne: I would not be dogmatic on this, but the sort of case in which the court has interfered is usually

  1991
  that in which the sentence has been out of line with those generally given for that offence. Presumably, the sentences given in such cases were already widely known. There is something in the point put by the hon. Gentleman but it is not conclusive or one of the more telling points. If one did want to increase the scope for the increase of sentences by applying it to appeals against conviction as well, it would have the further disadvantage of possibly discouraging certain meritorious appeals.
  The Donovan Committee very carefully considered this, but felt in the end that the undesirable features outweighed the possible benefits of the power to increase sentence, and I hope that hon. Members will not differ from the conclusions of the Donovan Committee. Power to increase sentence involves the g setting of a trap, is an unedifying spectacle and is a deceptive procedure. The appeal may have been made because counsel has wrongly advised, or other legal advisers have been incompetent. Anyway it would not produce overall consistency. For those reasons, I believe that the Donovan Committee was right and that the undesirable features outweigh the possible advantages of keeping the power and for that reason I ask the Committee to reject the Amendment.
  I was asked to comment on the use of the word "severity". Of course the language of the Bill produces difficulties, because it will always be difficult for a court to decide whether one sentence in one case was of greater severity than another sentence in another case. I conceded that, but the fact is that this is a difficulty which the courts have had to face before. It is a difficulty which the courts have had to face not only under the 1964 Act, but even under the 1907 Act. Section 5(2) of the Criminal Appeal Act, 1907, says that where there are convictions on several counts and one of the counts is dismissed, the court must again direct its mind to the question of not imposing a new sentence which is a sentence of "greater severity".
  These are words which have been used before and I do not see any way of making a more specific provision, short of drawing up a most elaborate chart to show when certain sentences are more severe than others. It may be that in
  1992
  certain cases the court will be in a particularly difficult position when it is minded to substitute a sentence of borstal training and the original sentence was less than six months. It may feel unable to do so, because the result of a sentence of borstal training is that it may be for any period between six months and two years.
  Once one rejects the idea that a court will have power to increase sentence, one is inevitably left with this kind of difficulty. All one can do is to give general guidance and leave it to the court to decide in all the circumstances of the case and to direct its mind to whether the new sentence would be harder on the appellant than the old. I cannot see that one can do more.
  If one rejects the right to increase sentences, this is a difficulty which one must face and it is the only alternative to drawing up a most elaborate table or chart which would be quite unsuitable in the Bill.
  Amendment negatived.
  Mr. Buck: I beg to move Amendment No. 7, in page 5, line 27, at the end to add:
  (3) The criminal division of the Court of Appeal shall receive new evidence if that evidence is relevant and credible and if a reasonable explanation is given for the failure to place it before the jury.
  The Chairman: With this Amendment can be discussed the new Clause"—"Power to admit fresh evidence"—
  In the exercise of their powers under section 9 of the 1907 Act the Court of Appeal shall not be prevented from receiving any evidence by reason only of the fact that such evidence was, or could with reasonable diligence have been, available at the trial.
  Mr. Buck: We have had an amiable and useful debate, but the time has now arrived for the Under-Secretary to make a concession to the Committee. The Amendment and the new Clause have a similar effect. Up to this point we have discussed all the Amendments with great amiability and we now hope that as we approach the end of these debates for today—which must come in a few minutes—the Under-Secretary will send us all away for the weekend happy and contented that we have had a concession from the Government which will please hon. Members on both sides of the Committee. The hon. Member may say that

  1993
  there is something wrong with the drafting
  Mr. Taverne indicated dissent.
  Mr. Buck: I am reassured. For the first time this afternoon I am given an indication that there is nothing wrong with the drafting. There was nothing wrong with the drafting of Amendment 5, of course—but that was just "leave out subsection (2)". I am most relieved to hear that the drafting of my Amendment is in order. In that case there is no excuse for the Under-Secretary being unable to accept this Amendment.
  As the Committee will know the position is that the right of the Court of Criminal Appeal to hear fresh evidence is laid down at the moment under Section 9 of the 1907 Act. This Section gives the court what appears to be an unfettered discretion. If it thinks that it is necessary or expedient in the interests of justice, it may order any witness who would have been a compellable witness at the trial to attend and be examined, whether or not they were called at the trial. I am cutting my remarks because of the time and because I hope that we shall get a concession before we finish this at 4 o'clock.
  The Court of Criminal Appeal, not wanting to be turned into a court dealing with the matter de novo laid down regulations for the admissibility of fresh evidence. These included the provision that the new evidence, if it is to be admissible, must not have been available at trial and must be relevant to the issue and credible. The main difficulty arises from the fact that the court usually regards any evidence which was known and which could have been produced with reasonable diligence as being evidence available at the trail.
  Difficulties have undoubtedly arisen, as is pointed out in the Donovan Committee Report, when legal advisers seem to have been mistaken, in retrospect, in not calling evidence. In the Queen v. Kelly reported in 1965 the situation seems to be getting better. Evidence was not admitted there because it was regarded as not credible and the general issue was not fully dealt with save by obiter dicta. The Donovan Committee, at paragraph 136 recommended that new evidence should be admitted in the exact terms of my Amendment, that new evi
  1994
  dence should be received if it is relevant and credible and if a reasonable explanation is given for a failure to place it before the jury. We follow the Donovan Committee's recommendation here and I would like to hear the Under-Secretary say that he will accept my Amendment or the new Clause, both of which are sound good sense.
  Mr. Archer: May I congratulate the hon. Member for Colchester (Mr. Buck) on the official endorsement of his draftsmanship? I am quite happy to ask leave to withdraw my new Clause, subject to one matter. Before doing so I would like to make sure that the court would be expected to accept as a reasonable explanation of failure the fact that an accused who was unrepresented had failed to grasp some essential point or, if he was represented, that his counsel had made a mistake. In the interests of the clients of all of us who are members of the Committee, it is important that this matter should be in the discretion of the court and that it should not be inhibited by the interpretation of "a reasonable explanation".
  Mr. Taverne: All that I have time to say is that I regret that I cannot accept the Amendment moved by the hon. Member for Colchester (Mr. Buck). I concede that the drafting of it is unexceptionable, except that it involves consequential Amendments in the First Schedule relating to criminal appeal courts and will also involve consultation with Northern Ireland to see whether the same powers would be desired for the Northern Ireland Court of Criminal Appeal which the hon. Member is seeking to give to the Court of Criminal Appeal Division and the Court of Appeal here.
  I am not sure that I agree with the hon. Gentleman that a failure to provide anything of this kind was, as he suggested on Second Reading, a failure to implement the Report of the Donovan Committee, because the Report is not clear and paragraph 136 suggests that the Committee regarded this as a flatter which should be altered in practice—
  It being Four o'clock, The CHAIRMAN left the Chair to report Progess and ask leave to sit again.
  Committee report Progress; to sit again upon Monday next.

  MALAWI REPUBLIC BILL [Lords]
  Order for Second Reading read.
  Motion made, and Question proposed, That the Bill be now read a Second time.
  4.1 p.m.
  Dame Joan Vickers: In view of the fact that the Bill has been acted upon, and the hon. Lady the Minister of State for Commonwealth Relations has been to the Republic celebrations, it is rather impolite to the people of Malawi and to Dr. Banda—
  It being after Four o'clock, and objection being taken to further Proceeding, the debate stood adjourned.
  Debate to be resumed upon Monday next.

  PRICES AND INCOMES [MONEY]
  Resolution reported,
  That for the purposes of any Act of the present Session to establish a National Board for Prices and Incomes, it is expedient to authorise the payment out of moneys provided by Parliament of remuneration, allowances and other payments to, for, or in respect of, members of that Board, payments to meet expenditure incurred by that Board, and any administrative expenses incurred by any Government department in consequence of the provisions of that Act.
  Resolution agreed to.

  PLAY GROUPS AND NURSERIES
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. R. W. Brown.]
  4.2 p.m.
  Miss Joan Lestor: In May, 1965, my hon. Friend the Member for Hitchin (Mrs. Shirley Williams) in an Adjournment debate raised the question of the whole functions of the play group movement and the provision of nursery schools. In the reply to the debate and in subsequent contributions that were made, some confusion was shown as to the registration and the responsibility of both nursery schools and play groups, the confusion being as to which Ministry was responsible for them, and what their actual function was.
  1996
  During the course of the debate my hon. Friend made three points which I want to bring up again and develop a little further. The request was made that a grant should be given to the National Association of Pre-school Play Groups in order that they could further the development of facilities for the under-fives. I am happy to say that, since then, a substantial grant has been made by the Department of Education and Science to that organisation.
  Furthermore, a request was made that education inspection of play groups by the Department of Education and Science should take place and also that local authorities should be encouraged, if not compelled, to set up training courses for unqualified people who are running these facilities for the under-fives. Up to the present, those last two requests have not been adhered to.
  In 1960, a circular was issued, which most people in the play group movement are very much aware of, making it impossible for a local authority to open any more nursery schools or nursery classes. Since then, that has been amended to allow such a provision to be made so long as it results in the release of teachers into the teaching profession.
  I have checked the number of nursery schools or classes that have been opened to meet that need. They are not considerable in number. The main point which I wish to make is that on the relaxing of those conditions, the provision of those nursery schools or classes is made not in the interests of the children but in the interests of getting more teachers back into the teaching profession.
  As far as one can judge from literature and the considerable research which has been done into provision for the under-fives, it appears that about 2 per cent. of all children under the age of five at nursery schools attend schools which are under the control of a local authority. Far more than this number attend play groups or organisations registered under the Nurseries and Child-Minders Regulation Act, 1948, which very often are run by unqualfied people but are not under inspection by the Department of Education and Science. Thus we have what seems to me to be the ridiculous situation that establishments which are run and

  1997
  staffed by fully qualified people are subject to inspection by the Department and are subject to its code of standards, yet the considerably greater number of those which are not run by qualified people are not subject to inspection by the Department.
  One of the odd features is that if people wish to run a play group or to register under the Nurseries and Child-Minders Regulation Act to look after a considerable number of children, the registration is not of the person, but of the premises. The person and his or her qualifications are apparently of secondary consideration.
  I want to make it clear that I am in no way critical—far from it—of those who have banded together to try to fill the gap in the provision of facilities for the under-fives. The country owes a great dial to the development of the play group movement, which has done a magnificent job, particularly when it has been run by committees and parents, in trying to fill the gap. There are, however, some contradictions which need to be examined.
  We also have the situation under the Nurseries and Child-Minders Regulation Act, 1948, which was mentioned on the last occasion when this subject was raised. Premises are registered under that Act with the local authority. According to the amount of space and the extent of their sanitary facilities, it is decided how many children they may have in their care. That Act, however, covers a person who may have three or four children or who may have as many as 10, 15 or 20 children. I submit that a person who has in his or her care for a considerable part of the day a large number of children is doing much more than merely minding them. He is conducting an establishment which has a relationship with education. This also must be considered by the Department with a view to the setting up of a code of standards and standards of equipment, as well as, if not insisting upon qualifications for the people doing the work, at least providing the facility for them to be trained, at any rate by a short-term method, in ways in which to deal with very young children.
  In my constituency, we have had many complaints. I recently spoke to a lady who had been running a play group for
  1998
  about 15 children in her home. Complaints were received from neighbours on the ground of interference with the amenities of the residential area; the children made a noise and the neighbours disapproved. One has sympathy with them. On the other hand, here was a person—in some instances it might be a group of people—who, because we prevent the local authority from doing so, does her best to make this facility available to very young children because nothing else is available to them.
  With the shortage of halls and suitable play space for children, many individuals try to do this work in their own homes, where it is not a money-making venture but is usually non-profit-making, but they have had to close because of the lack of suitability of their premises.
  People who do this work successfully, particularly those who operate through the National Association of Pre-School Groups, could all speak of the number of children who turn up week in and week out but who have to be turned away because the provision which they are able to make is inadequate to cope with the numbers.
  I should like also to ask my hon. Friend to reflect on the way society i:, going in its whole attitude to the under-fives. The Education Act, 1944, included in its provisions for primary education the field of nursery schools. It said that nursery schools should be provided by the local authorities for all children between the ages of 3 and 5 who needed to go to them or whose parents wanted them to go to them. As we all know, this has never got off the ground, and now we have gone backwards and in fact arc prohibiting future development of this provision.
  When one looks at the way in which society is moving in relation to all sorts of buildings we are putting up one sees we are putting up blocks of flats where it is only out of the goodness of the heart that a local authority may decide to provide some sort of play space. In general, play space, is lacking, and so, if we are to believe—and I do believe—the considerable amount of research which has been done on this question, we shall find young children are suffering from isolation from playmates, and we shall find mothers, too, being affected because they are cooped up with young children whose

  1999
  demands and needs they are not able to meet in very small flats.
  Also we have reached the utterly ridiculous situation where now a local authority is obliged to provide a garage for a car, but not obliged to provide any sort of facilities for young children. In fact, in many blocks of flats which I know, where there was play space used by young children, it is now impossible for them to use it, because it is blocked by cars.
  There is something else which I have not seen mentioned in much of the literature on this subject, and that is the way in which the whole development of our housing is going. We now put young children in blocks of flats—and they are not allowed to keep pets. So there again, the role which pets played and which playmates played in the development of a young child is gradually being taken away from the child, simply because we have not the space—or the imagination, or sufficient sensitivity to the needs of young children—to incorporate these facilities in our general building programme.
  I should like the Minister to have some liaison or discussion with local authorities and with the Ministry of Housing and Local Government in order to see that play provision in large blocks of flats is absolutely compulsory upon the local authorities when they decide to build them, and to see that they are manned by trained people. in order to supervise the play of small children. We have the situation, too, of houses in multi-occupation where, again, large numbers of young children are not allowed to use the gardens, cannot play in the streets, and are now cooped up in one or two rooms, and have no contact or any relationship with other children till they start school.
  Bearing in mind, too, that large numbers of children are not starting school until after their fifth birthday, I should have thought there to be an even greater need in society today to recognise that an economy of this nature. at the bottom of the scale, is not in the long run going to be economic, but is probably going to face us with far greater problems, in the field of children's development, that we sensible enough and had enough foresight to see the dangers into which we were would have been faced with had we been running.
  2000
  We all have our priorities, and a great deal of attention has been paid by the Department and by this House in the past to the needs of specialist groups, and I suppose it is very difficult to measure the needs of one group against those of another, but when this was last raised in the House I know the expression was used, "The Department agrees in principle with the needs which have been expressed for some sort of educational recognition for the play group movement and the other changes being suggested"; but much investigation has gone on into the needs, for example, of our elderly citizens to find the best ways in which we can adapt our building schemes to meet the needs of those who occupy them, and we all of us have given much support to those ideas.
  As I say, to measure one priority against another priority is a very difficult thing, but one of the things I would ask the Minister to do, if it is within his power, is to hold an inquiry into the whole field of the needs of, and of the facilities available for, the under-fives. This has not been done officially, although it has been done by many individuals and groups. The play group movement has tried to bring to public attention the needs of the modern child and the absolutely deplorable state of the facilities which are at present provided. So much public attention is now being focused on this matter that something must be done, particularly since the problem will get worse, and not better, if action is not taken. If we do not soon begin to face up to the problem we will build up insurmountable difficulties which will be impossible to remedy.
  Much is being done these days to encourage married women to return to work. Unless we do something to solve the problems about which I have been speaking, we will see a great many more unregistered child minders. Local authorities experience difficulties in tracing the unregistered child minder and little, if any, check can be kept on the children who are farmed out to these people. It is the responsibility of this House in general and the Department in particular to see that it is made possible for adequate facilities to be provided.
  If we held a public inquiry into this subject and went into the matter in considerable detail, followed by a close

  2001
  examination of the problem and the making of recommendations, we would be going part of the way towards doing justice to our younger citizens who are at present severely deprived.
  4.18 p.m.
  The Minister of State, Department of Education and Science (Mr. Edward Redhead): I am sure that the whole House will join with me in commending my hoi. Friend the Member for Eton and Slough (Miss Lestor) for bringing this matter to our attention once again. We appreciate that she speaks from personal experience of these problems and has a commendable degree of enthusiasm for a subject which, I assure her, we appreciate is a matter of the utmost importance.
  My hon. Friend's remarks reflect the increasing pressure that is coming from many quarters for a substantial increase to be made in the provision of nursery schools classes, day nurseries and preschool play groups for children under five years of age. She rightly said that this pressure partly stems from the demands and needs of married women who wish to take up employment. It also stems—and this must be given paramount consideration—from the realisation that many children, particularly but not only those living in high flats or areas of social deprivation, need more by way of companionship and facilities for play than their home environment can provide.
  I hope that my hon. Friend will not think that I am being tediously repetitive when I give her my sincere assurance that my Department is sympathetic to these needs and fully accepts that nursery education, at least for part of the day, is beneficial to the majority of children and can be of special value to particular groups, including some handicapped children and the children of immigrants.
  This is a sphere in which, as my hon. Friend acknowledged, other Departments are concerned; the Ministry of Health, in connection with health and welfare of all children below school age, and the Ministry of Housing and Local Government, in connection with the provision of facilities for young children in high flats. It is perfectly true that under Section 8 of the Education Act, 1944, local authorities must
  2002
  "…have regard to the need for securing that provision is made for pupils who have not attained the age of five years."
  It has to be acknowledged, regrettably that, in practice, the shortages of buildings and, more especially, of teachers, have made it impossible for my Department to authorise a general expansion of nursery provision.
  Priority for scarce resources has had to be given—and, unfortunately, will for some time have to continue to be given—to children of compulsory school age and other developments in this sphere of education. The general policy, consolidated in Circular 8/60, has been to maintain nursery provision at the existing level but, as my hon. Friend fairly acknowledged, in 1964 Addendum No. 1 to that circular authorised a minor extension of nursery class provision where authorities could see that this would enable married women to return to the service.
  Addendum No. 2, issued in December 1965 allowed local education authorities further to expand their nursery provision on condition, broadly, that at any given time the number of married women teachers thereby enabled to teach at maintained schools was at least twice the number of qualified teachers employed in nursery schools and classes.
  I think that my hon. Friend is aware that by January 1966 a total of 53 new nursery classes had been established by 33 authorities. I frankly acknowledge that it is not a wholly satisfactory response and only touches on the fringe of the subject, but one is gratified to find some measure of response, and we hope that the effect of the further relaxation allowed by Addendum No. 2, which will not be known until the next annual review in 1967, will give further cause for gratification. Although these classes must give priority of admission to the children of married women teachers, there is a substantial margin of places for general use.
  Alternative provision for young children may be made in day nurseries run by local health authorities, in hospitals, and in factories for the benefit of the employees. These are not provisions for which my Department is directly responsible, but they make some contribution to the needs of the situation. Because these arrangements have been directed to meeting the increasing demand both from

  2003
  women who want to go back to work and those who want their children to have nursery education for its own sake, there has been in the last few years a notable increase in private arrangements for looking after young children. These may take the form of private nurseries, child minding and pre-school play groups, and such arrangements come within the province of my right hon. Friend the Minister of Health who is responsible for the administration of the Nurseries and Child Minders Regulation Act, 1948, which gives the local health authorities certain powers of inspection of such arrangements. I know that some public concern has shown itself recently about the standards of care of some child minders, and I hope that my hon. Friend will feel some measure of relief in knowing that my right hon. Friend the Minister of Health is currently giving consideration to this matter.
  My hon. Friend referred to the preschool play groups, in particular, most of which are run by parents on a self-help basis, and a few in areas of social need by the Save-the-Children-Fund. These are not within the scope of the Education Acts, because they usually do not take any children of compulsory school age, and are therefore not covered by the definition of independent school. Many of them could not meet the minimum staffing and accommodation requirements for registration under Part III of the Education Act.
  Nevertheless, I agree with my hon. Friend that the best of them compare favourably in aims and achievements with a good nursery. and the National Association of Pre-School Play Groups, which was formed in 1962, has been pressing for them to become a recognised part of the education system. I must point out that this would require legislation. However, my Department has been in fairly frequent touch with the National Association, and has recently agreed, as my hon. Friend acknowledged, to make it a grant not exceeding £3,000 a year for three years, to enable it to strengthen and enlarge the service to its constituent groups. I acknowledge that this grant was not made on the basis that it should be subject to any inspection of the constituent groups. That, however, was not possible because the power did not exist
  2004
  to make any such arrangements. Nevertheless, one of Her Majesty's inspectors is available for discussion with the Association and has given it a good deal of help and advice.
  —Pre-school play groups within the scope of the Nurseries and Child-Minders Regulation Act, 1948, are already open to inspection by local health authorities under that Act, but local education authorities have no powers in relation to pre-school play groups. A number of them have shown that they are prepared to allow their own inspectors to give practical help and some have used their further education powers to provide training courses for play group leaders. My Department is willing to help the Association as far as possible, but it has to be appreciated that any substantial change with reference to inspection would nevertheless require legislation.
  My hon. Friend referred to the lack of facilities for children living in high flats. I acknowledge that there is justification for concern about the problems which arise from this modern development of multi-storey blocks of flats, particularly in regard to children and young children especially. As she will appreciate, this is mainly the concern of the Ministry of Housing and Local Government, but I have taken note of the point she made and I will consider it further. Because of the divided degree of responsibility, there might be some discussion and consultation with local housing authorities and with the Ministry of Housing and Local Government on this aspect.
  Already where local education authorities are proposing to extend their nursery provision under the authority given by addendum No. 2 of Circular 8/60, they are given advice on matters of accommodation. We are ready at all times to assist local authorities in that regard. The question of the provision which ought to be made for children under 5 is being studied by the Central Advisory Council for Education which is also considering various aspects of primary education in general. It is likely that the Council's representations which are expected to be submitted later this year will contain recommendations on this point.

  2005
  It will be necessary, of course, for the Secretary of State to study these recommendations both on their own merits and in relation to the other recommendations which the Council no doubt will be making and to consult other Government Departments concerned before reaching any conclusion on what changes of policy, if any, are desirable in the light of available resources.
  It may well be that this would be the appropriate point in time at which further consideration could be given to my hon. Friend's suggestion that a specific inquiry over this field might be undertaken. To that I shall certainly pay attention and I shall bear it in mind. I express the gratification which I am sure the whole House feels to my hon. Friend for raising this matter and assure her that although I have not covered all the points to which she alluded she can acquit me of any intentional discourtesy or negligence and can accept the assurance of my personal sympathy in this matter.
  In the meantime, I hope that local education authorities will make the maximum use of the concession given by addendum No. 2 of Circular 8/60 allowing them to establish new nursery schools. I join with my hon. Friend in hoping that resources may become more lavish to enable us to meet what both of us
  2006
  would earnestly desire in the expansion: of this field of activity.
  4.29 p.m.
  Mr. Tam Dalyell: I add my voice to the plea for an inquiry, because I do not think that much of this is entirely a matter of finding the money. Of course when the Minister says, "In the light of available resources" all of us understand very well the great pressures on primary education and other social services, but I wonder whether it is entirely a matter of resources.
  For example, my hon. Friend the Member for Eton and Slough (Miss Lestor) raised the question of how it is that motor cars are allowed to he parked in areas which were normally available for young children to play in. Here is a situation where the Government I think could intervene meaningfully without any additional cost. In these cases what instructions have been given to the police? It seems utterly wrong that places which formerly were available for young children to play in should, without any consultation, be turned over to car parks. I, therefore, ask that an inquiry should be made into all aspects of this problem.
  Question put and agreed to.
  Adjourned accordingly at halt-past Four o'clock.

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