Sitting of 25 September 1975

Preamble
The House met at half past two of the clock: The DEPUTY PRINCIPAL CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers— Read by the Lord Bishop of Saint Albans.

BADGERS AND BOVINE TUBERCULOSIS
Lord HOUGHTON of SOWERBY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they have taken to remove misapprehensions regarding the badger as a carrier of bovine tuberculosis and to make clear that any threat of infection in particular areas will be given full publicity and that elsewhere the full protection of the Badgers Act 1973 holds good.
Lord MELCHETT: My Lords, throughout the current year my right honourable friend the Minister of Agriculture, Fisheries and Food has made a number of Press statements concerning the problem of tuberculosis in badgers in parts of South-West England, and statements have been made by Government spokesmen in another place, and by myself in your Lordships' House. My right honourable friend issued a further Press notice yesterday on the occasion of the first meeting of the Consultative Panel on Badgers and Tuberculosis.
In those localities where badgers have to be destroyed, appropriate notice will be given to those concerned. The protection of the Badgers Act 1973 continues to apply in all areas.
Lord HOUGHTON of SOWERBY: My Lords, is the noble Lord, Lord Melchett, aware that I am grateful for the steps which the Government have taken to make the position absolutely clear? However, is he aware that this connection between the badger and bovine tuberculosis is a serious setback to the
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security of the badger, which for many years has had a very rough passage indeed? Some protection began in 1973, but now the badger is exposed to all the silly prejudice which has attached to it for so many years. Will the noble Lord constantly remind agricultural interests and those who live and work in the country that apart from badgers in infected areas, which will be clearly notified, elsewhere the badger should be allowed to live in peace, and the protection given to badgers by the Act of 1973 should continue?
Lord MELCHETT: My Lords, I certainly agree with everything said by my noble friend Lord Houghton of Sowerby. I should like to emphasise that this problem occurs, as he has said, in only a very small area of the country. In any event, should any farmer, landowner or occupier of land feel that tuberculosis is being spread in their area by badgers, the only sensible thing they can do is to get in touch with the Ministry of Agriculture, because the only effective way in our view of containing the problem is by the use of gas. Only Ministry of Agriculture authorised personnel are permitted to use gas, so there should be absolutely no excuse for any landowner killing badgers in any area of the country.
Baroness SUMMERSKILL: My Lords, may I ask the noble Lord, Lord Melchett, whether he has given national publicity to those areas which are considered infected by the badgers?
Lord MELCHETT: My Lords, on every occasion that I, or any other Government spokesman, have mentioned the subject, we have laid great stress on the fact that this problem occurs only in limited areas of the South-West. We have a problem of communication, mainly because this is a much better story in saying that the Government are gassing innocent badgers than to explain carefully what the problem is and the sensible steps we are taking to prevent the problem, steps which are fully supported by all those who have in mind the interests of the badgers as well as the cattle.
Lord HAWKE: My Lords, is it not unfair that the badger should be gassed on suspicion? Is it not possible to catch a badger to see whether he has in fact got tuberculosis before gassing him?
Lord MELCHETT: My Lords, that is typical of the sort of reaction which does no good to the badger. We have said in considerable detail on many occasions that the evidence is overwhelming. If the noble Lord, Lord Hawke, would care to read the Press statement, a copy of which is in the Printed Paper Office, he will see for himself that in the last few weeks further evidence has been released. If people would accept the position for what it is and get on with the job of explaining the limited nature of the problem, a great deal more good would be done.
Lord CLIFFORD of CHUDLEIGH: My Lords, as a farmer in the South-West, and one who has six badger sets within a quarter of a mile of my own house, I should like to give all the support I can to the statement that the Minister made in his first Answer.
Lord FOOT: My Lords, I associate myself entirely with what has been said by the noble Lord, Lord Houghton of Sowerby, in welcoming the Press statement made yesterday. In view of the fact that the Ministry of Agriculture have now taken powers to themselves to use the method of gassing, which I agree may well be the most humane method of dealing with the infected badger, would the Minister be prepared to ask the Advisory Council, which is now in being, whether they would consider making a recommendation to the Government as to whether, now that these powers have been acquired, it might be possible to make illegal the taking of badgers by means of wire nooses, except under the auspices of the Ministry of Agriculture?
Lord MELCHETT: My Lords, of course, the progress of the gassing is not only under the close scrutiny of the Ministry of Agriculture, but also under the very close scrutiny of the Consultative Panel. I think probably it would be a matter for that panel to make any recommendations, or to consider anything outside the ambit of gassing. I am sure the noble Lord will acknowledge that the wide and full representation on the panel will make it possible to give serious and constructive consideration to any of the problems which might arise in respect of badgers.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I was under the impression, and perhaps the
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Minister would correct me if I am wrong, that killing badgers by wire nooses, or by any other method, is illegal already.
Lord MELCHETT: My Lords, the noble and learned Lord, Lord Hailsham of Saint Marylebone, is not entirely correct. There are exemptions from the protection given by the Badgers Act to landowners, occupiers, and persons authorised by them to take badgers, but only in limited circumstances; that is, if the badgers are doing serious damage to land, crops, poultry, or to prevent the spread of disease. In that case, the method by which the badger is taken is also controlled by the Badgers Act.
Lord SEGAL: My Lords, with reference to the badger population, can my noble friend say whether any other form of treatment can be made available for badgers suffering from bovine tuber culosis?
Lord MELCHETT: My Lords, I wish there were, but, unfortunately, the cattle which have tuberculosis have to be slaughtered. It is our view, and, as I say, this is supported by the very wide range of interests represented on the Consultative Panel, that the same thing applies to badgers. The only way of eradicating the disease from badgers and from cattle is by killing badgers in this small area of the country.
Lord BROCKWAY: My Lords, could the Minister say whether in the South-West of England, where the Army is in control of the land—particularlyin the Tyneham area, where the badger problem has arisen—the Army have authority to take steps, or must they also appeal to the Agriculture Ministry?
Lord MELCHETT: My Lords, only authorised officials of the Ministry of Agriculture may use gas.
The Earl of ARRAN: My Lords, is the Minister aware of the extension of the gassing of badgers to the County of Dorset, an area which has not so far been considered? I think the Minister himself mentioned only South Gloucestershire and Avon.
Lord MELCHETT: My Lords, as the noble Earl knows, when we had extensive discussions on this matter during the Committee and Report stages of the Bill I made it very clear that there were two

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types of area where gassing would be carried out. One would be an experimental area where there would be a long term follow-up to see how effective the method was, and I understand that operations have not yet started in that area. The other type of operation which would be conducted was what I described as "fire brigade action", where very serious breakdowns had occurred in herds and where there was clear and overwhelming evidence of infected badgers in the immediate locality. My understanding is that that is the position in the area in Dorset to which the noble Earl refers. I understand that the Consultative Panel are perfectly happy with the action the Ministry have taken in that area.
Baroness SUMMERSKILL: My Lords, could my noble friend tell me, or otherwise he can write to me, how the incidence of bovine tuberculosis among humans in the South-West of the country compares with that in the South-East?
Lord MELCHETT: My Lords, I have a feeling that there is not very much difference, because the cattle which have bovine tuberculosis are all slaughtered before they can pass it on to humans. It may interest my noble friend to know that during the past year approximately twice as much compensation has been paid for cattle slaughtered in the very small area of the South-West as has been paid for the whole of the rest of the country.
Lord VIVIAN: My Lords, may I ask the noble Lord the Minister whether the Ministry of Agriculture have been notified of a very bad area in the toe of Cornwall of 5½ square miles area? The cattle farmers there are very worried indeed.
Lord MELCHETT: My Lords, I am afraid I do not know the answer to that.

GUYANA CONFERENCE
2.44 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what conclusions were reached at the Conference of Commonwealth Finance Ministers in Guyana.
Lord JACQUES: My Lords, copies of the Communiqué issued by the
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Commonwealth Finance Ministers have been placed in the Library. At their Georgetown meeting the Ministers discussed a wide range of international economic and financial issues including in particular those considered in the Interim Report of the Commonwealth Group of Experts. Copies of the Report of this Group of Experts, who were appointed by the Commonwealth Heads of Government meeting at Kingston in April, have also been placed in the Library.
Lord BROCKWAY: My Lords, may I ask the Minister whether he is aware that I—and, I think, others—will be disappointed that no Statement of these conclusions is being made to the House and that the Communiqué and Report are simply being left in the Library? While welcoming the new approach of the West to the Third World, may I ask whether it is not the case that, at this Conference, the British representatives opposed the proposal for indexing export and import prices, the ownership of natural resources in the Third World and control of multinational companies? Will Her Majesty's Government revise their view about those issues?
Lord JACQUES: My Lords, we commended the Report as a valuable contribution to a constructive dialogue in the critical area of international economic relations; but, like some other Governments who were represented, we indicated that we had reservations on some of the ideas and proposals. Nevertheless, there is much in the Report with which we would agree.

STUDENT ACCOMMODATION
Lord BALERNO: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will either instruct or request the appropriate local authorities in the United Kingdom to make available more residential accommodation for students and to treat this matter as one of the greatest urgency; and whether they will also ask these local authorities to report, in due course, on the number of students so accommodated.
The PARLIAMENTARY UNDER-SECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk): My Lords, we hope that where possible local authorities will provide accommodation for single young people as part of their general housing programmes, but it would not be appropriate to urge them to give students priority over other groups in more pressing need.
Lord BALERNO: My Lords, while thanking the Minister for her not very informative reply, may I ask her whether she recalls that on 10th June 1974, during the Second Reading of the Rent Bill, it was explicitly stated by the Government, at column 288 of the Official Report, with regard to student residential accommodation that the proper providers of student accommodation were the local housing authorities, and that this House was on that occasion led to believe that millions of pounds had been allocated to this purpose? Would the Minister not agree that more than a year later it is right and proper to discover the extent to which this expenditure is contributing to meeting the acute shortage of student accommodation in certain universities?
Baroness BIRK: My Lords, I think that we first have to be clear that the shortage of student accommodation is only part of the shortage of housing accommodation generally. So far as students are concerned, 45 per cent. of them are accommodated in residential halls and in hostels. In addition, in most universities in this country the accommodation officers are in close touch with the local authorities, and a great deal is being worked out between them. But it is quite impossible to spirit houses out of the ground, and in our present economic situation priority has to be given to where there is the most pressing need. Here families must have priority over students.
Lord BALERNO: My Lords, I thank the noble Baroness for her further answer giving information of which I and the universities of this country are fully aware. But might I, with all respect, point out to her that she has not replied to my supplementary question about why the statement made by her colleague in 1974 has not been implemented?
Baroness BIRK: My Lords, the conditions have changed very considerably, as I pointed out, and students have been absorbed in different ways. All that is possible has been done, but it is quite impossible to do something which takes away from the housing stock generally. I would add that one of the important points is that there has been a complete change in the accommodation that is wanted by students. They now want self-contained accommodation on their own, and the movement away from lodgings and "digs" has continued. The implication of the noble Lord is that it is the Rent Act which is responsible for the position, but I am tired of the idea that the Rent Act should he made the bogy for something which is a much wider question.
Lord BALERNO: My Lords, might I assure the noble Baroness that it is not the Rent Act alone, and ask her whether she would be so kind as to look back at what her colleague really did say when he made a definite and explicit statement that the local authorities would assist in finding student accommodation, and that millions of pounds were being allotted for that purpose? To the best of my belief—and I should be clad if she could deny this—there has not been one single unit of student accommodation furnished for the coming year after that statement made by her colleague.
Baroness BIRK: My Lords, I shall certainly look into it and, if I may, I shall write to the noble Lord about it. Since then the Minister for Housing has made a statement and has encouraged local authorities, as soon as possible, to build housing where they can for young single people and students would be included in this.
Lord SANDYS: My Lords, while recognising the problems that the Government are encountering in their housing priorities, is it not a fact that the Government, in their enforced policy on the University Grants Committee, have not so far provided any arrangements for 1977 or beyond?
Baroness BIRK: My Lords, this is still under consideration and, as I am sure the noble Lord is aware, so is the whole problem of finance for the universities generally. The universities and polytechnics are doing all they can, so far as

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self-help is concerned. Indeed, I heard this morning of one university where members of the staff have offered to take in students temporarily in order to help. There really is as co-operative an effort as possible. But it is difficult in the present housing situation to be able to give students any really special advantage.
Lord WALLACE of COSLANY: My Lords, is my noble friend aware that it is probably far better, from a student's point of view, if local authorities, university authorities and the people of the district concerned get together to provide decent lodging accommodation, where the background of a good home influence and a good landlady would probably be far better for a student than university accommodation?
Baroness BIRK: Yes, my Lords.

BOMB ATTACK ON BP PIPELINE
2.54 p.m.
Lord CAMPBELL of CROY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a Statement about the bomb attack against a British Petroleum pipeline installation in Perth shire on Tuesday 23rd September.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): My Lords, at 2.50 a.m. on Tuesday 23rd September a bomb exploded near Kinfauns, Perth, which severely damaged a valve control centre connected with the oil pipeline running from Cruden Bay to Grange mouth. Debris from the blast was blown on to a main road which is about 50 ft. away. Fortunately, no one was injured nor was there any damage done to the pipeline itself.
Responsibility for the attack was claimed by an organisation which calls itself the "Tartan Army" which also claimed responsibility for a similar attack on a valve installation at Crook of Devon, Perthshire, on 12th September. Nothing is known of this organisation or its purpose in making these attacks which are being investigated by the police.
Lord CAMPBELL of CROY: My Lords, I thank the noble Lord for his reply in which he gave information on this recent incident. Will he confirm that this is the pipeline system to be opened by Her Majesty the Queen in a few weeks' time? Is he aware that the body who telephoned to claim responsibility for this incident stated that it was to help the SNP, the Scottish Nationalists? Although the SNP have stated that there is no direct connection, does the noble Lord agree that the SNP's objective of breaking up Britain—with Scotland and Wales as separate countries, and with the hysterical manner in which this is often purveyed—is unfortunately likely to stimulate violence of this kind by some misguided people?
Lord KIRKHILL: My Lords, I confirm that indeed this is the pipeline which Her Majesty the Queen will open at Dyce on 3rd November. As to the more general remarks of the noble Lord, Lord Campbell of Croy, regarding the SNP, I could of course agree with him that it is unlikely that the Tartan Army has support from members of the Conservative and Unionist Association, or from adherents of the Labour Party in Scotland.
Lord BYERS: My Lords, in the interests of justice, is it not a fact that last night the SNP made an impassioned plea to the Tartan Army to stop this nonsense because it is doing nobody any good?
Lord KIRKHILL: My Lords, I can only repeat that the well-known major political Parties in Scotland—that is, the Conservative and Unionist Association, the Liberal Party, and the Labour Party—are in no way involved.
Lord CLIFFORD of CHUDLEIGH: My Lords, would the noble Lord confirm that the first attack is not referring either to the noble Lord, Lord Fulton, or to myself?
Lord KIRKHILL: My Lords, I would make no reply to that.
Lord BROCKWAY: My Lords, I have no sympathy with the SNP, but surely the Minister should accept the statement that was made last night by that Party altogether repudiating this violence, and not limit his exceptions to the three other Parties.
Lord KIRKHILL: My Lords, I have certainly taken note of that, and I am aware of the Chairman's statement.
Lord CAMPBELL of CROY: My Lords, will the noble Lord agree that, while the SNP have, as I indicated, said that there is no direct connection, there is the danger that the policies, and the way they are being presented, could cause misguided people to indulge in violence of this kind? Will the Government diligently pursue the investigations to find the culprits?
Lord KIRKHILL: My Lords, in general terms within the area of nationalist influence in Scotland at the present moment a lunatic fringe undoubtedly exists, and it now appears that it is beginning to perpetrate outrages.

EMPLOYMENT PROTECTION BILL
2.59 p.m.
Lord JACQUES: My Lords. I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do again resolve itself into Committee.—(Lord Jacques.)
Lord CULLEN of ASHBOURNE: My Lords, this may be a convenient moment for me to put the record straight. In the Official Report of last Monday, 22nd September, in Committee on this Bill, at columns 104 and 105, two inter ventions made by my noble friend Lord Hawke were ascribed to me. Since my noble friend's views were not in accord with mine, and since I spoke both before and after his interventions, it appears that I changed my mind not only once but twice. I understand that the Official Report is being corrected, but as I in tend to return to the subject on Report I felt obliged to make my position clear at the earliest opportunity.
On Question, Motion agreed to.
House in Committee accordingly.
[The BARONESS TWEEDSMUIR OF BELHELVIE in the Chair.]
Clause 90 [Duty of employer to consult trade union representatives on redundancy]:
The Earl of GOWRIE The Earl of GOWRIE moved Amendment No. 79A:
Page 74, line 21, leave out ("an employee") and insert ("employees").
The noble Earl said: We now come into the region of the Bill in which we are going to discuss the procedures for handling redundancies—the situations that can occur when an employer proposes to make employees redundant, and recognises an independent trade union in respect of those employees and the requirements on the employer to consult the trade unions as soon as possible. I will speak to this Amendment by itself but I will, with the agreement of the Committee, take together with it some of my subsequent Amendments, although I would not wish the Committee to think that this is part of a general debate on Clause 90, which I shall come to later.
The procedure for handling redundancies is of course based on the EEC Directive of 17th February 1975 relating to collective redundancies. The provisions of Clauses 90 to 98 of this Bill, however, go further than the Directive in two important respects, and the purpose of my Amendment is to bring the Bill into line with the Directive in one of those respects. It will be noted that the Directive refers to "collective redundancies" and it means by this 10 or more employees being made redundant at one time. It is not concerned with individual redundancies as such; its concern is with the consequences of a number of employees being made redundant in the same place at the same time. It therefore provides for consultation with recognised trade unions and prior notification to the public authority, particularly of course to assist in finding alternative work.
In our view, however, the Government have used this vehicle to provide for compulsory consultation on every single redundancy. Although it is obviously good practice to do so—and we do not contest this—and where trade unions are recognised this is almost always done, one must question whether it is appropriate to apply the full force of the law in the case of individual employees who are made redundant. In other words, where there are sensible rules where groups of employees over 10 in number are concerned, is it right to apply these rules individually? This would include the

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provision in Clause 90(5) which requires notification to be in writing and to specify all the details listed in subsection (5) (a) to (e) and the legal penalties which can follow a failure to observe the statutory procedure. The effect of this procedure on, to take one industry as an example, the construction industry, where employees of different sorts are taken on and laid off almost daily, would surely be ludicrous. I beg to move.
The LORD PRIVY SEAL (Lord Shepherd): The noble Earl, Lord Gowrie, is correct to say that this clause is fulfilling the spirit of the regulations of the European Economic Community, but it has always been stressed that the Regulations in this respect are the minimum that the EEC expects of Member countries and there are a number of circumstances where countries have thought it right to go beyond the minimum. The Government have felt it right to try to give to the unions and to officials who may have to deal with redundancies the maximum period in which matters can be dealt with and problems eased, and I should not have thought any noble Lord would object to that. I should make it clear that an employer is required to consult the union at the earliest opportunity in respect of all employees, but there are no formal time limits imposed on the employer by this legislation. The time limits are set out in subsection (3), and in a later Amendment the noble Earl is seeking to reduce the period. We will come to that in time.
If the noble Earl will refer to subsection (8) he will see—because he referred to the construction industry, which, as he said, has special problems in respect of redundancies—that we have provided that if in any case
"… there are special circumstances which render it not reasonably practicable for the employer to comply with any of the requirements of subsections (3), (5) or (7) above, the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances."
Naturally, it is for the employer to show to the appeals board that he has taken reasonable steps.
At this time of high unemployment and risk of redundancy, whether of one, 10, 100 or even more, I should have thought it right and proper that we should seek to ensure that what happens
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is what most good employers now do, which is to consult within the district with the unions and the authorities who are responsible for matters arising from unemployment and redundancy and to give notification of the circumstances in which people are being made redundant, including the numbers likely to be involved and the type and character of the work for which those people were trained, all to help to ease the problems and hardships of redundancy.
This is the sole purpose of this group of clauses, and I should have thought that the spirit behind them would be fully endorsed by the Committee. True, in certain circumstances, certain of the provisions may appear perhaps to he harsh—"cumbersome" might be a better description—but subsection (8) clearly means that if an employer is unable to fulfil the requirements of subsection (2), then if he has acted reasonably he would be absolved from any responsibility under the Statute. I would have hoped the noble Earl would have thought this a reasonable approach. Most good employers today fulfil, on a voluntary basis, the sort of consultation outlined in these clauses. We believe that this should be in the Statute, but we have provided this formula or basis by which an employer, if he cannot fulfil the requirements, and if he can prove he has acted reasonably, will be absolved from responsibility.
3.9 p.m.
Lord BROWN: I urge my noble friend to ask the Secretary of State to examine this proposal again because there are depths to this matter which may not yet have come to the surface in this discussion. It is commonplace for people, especially individuals, who are made redundant to want to avoid having the matter discussed with a representative, even when the person concerned is a member of a trade union. It is sometimes regarded by an individual employee as an invasion of his privacy, and years of experience on my part and on the part of others has shown that when a person is leaving his employment, either on the grounds of redundancy or through dismissal because he has proved inadequate—and the line between these two is some times very blurred indeed—in many in stances the individual will say, "I don't want this discussed with my trade union representative or shop steward". I can

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recall dozens of cases where this has happened, where people have required the departure to take place quietly. It seems to me that this clause would make it essential for an employer to discuss each case with a trade union official. This would have to be done in spite of the objection of the person who is being made redundant or dismissed—I am aware that the clause refers to redundancies—and I feel that there might be pressure on some people to ask to be dismissed rather than being made redundant. I wonder whether this could be looked at again.
Lord SHEPHERD: My noble friend has asked me a question which is clearly valid where a single individual is involved. There may be reasons why he would wish this not to be known either to his union or anybody else. I can imagine such circumstances and I shall certainly see what can be done here. I do not feel that my noble friend is speaking against the general principle which is involved here. Clearly, if there were a group of employees one could not go round consulting them because, at that stage of notification, those who were to be made redundant might not yet have been identified. That may be part of the negotiation or consultation between the union and the employer. I can see difficulty there, but I shall certainly look into the question of what protection could be given to an individual who might wish, for a number of reasons, that it should not be known that he had been made redundant. I can see difficulties, but I naturally respond at Committee stage to a point of this nature, particularly as it does not involve what may be called the spirit or the principle which underlies the Bill.
Lord HAWKE: I believe that, if the tribunal is reasonable, subsection (8) should provide an answer to most cases, but it occurs to me that there may be some conflict of interest in cases of bankruptcy. I wonder whether the noble Lord would look into that at a later stage? I understand that, in bankruptcy, the arrears of pay of employees have a first call on the assets, but I am not quite sure whether the 90 days extra pay would have the same priority. If the employer complies as reasonably as he can with the requirement here, he might be paying over to employees redundancy
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pay which would in practice be robbing the creditors. I am not sure of the law in this case, but perhaps the noble Lord would look into this.
Lord SHEPHERD: I believe that the noble Lord is quite accurate. In cases of bankruptcy, employees' pay has one of the first calls on whatever assets can be recovered. I would only say to the noble Lord that, if he will look at Clause 90, he will see that what we had in mind was that an employer, on becoming aware or on deciding that redundancies were likely to arise in his company, should notify and comply with the period specified here. Clearly, if there is a bankruptcy or some special reason why the redundancies have to be brought into effect before that time expires, this would be a matter for the tribunal to take into account. But the spirit of Clause 90(2) is that employers in such cases should notify the respective union within 60 days or, in another case, within 90 days. It is to notify and then to consult. There is no other matter behind it.
Lord DRUMALBYN: Akin to that point, may I ask whether the word "employer" would cover a receiver? Would the receiver be considered to be in the position of an employer? A similar point arises here to that made by my noble friend Lord Hawke.
Lord SHEPHERD: Though I have not yet been bankrupt or involved in a company which has gone bankrupt and not being a lawyer, I suspect that a receiver can be brought in when a company may have only relatively few days to survive but that there are other occasions when he may be running a business for many months. I should have thought in that case that the receiver would become, de facto, the employer and that if redundancy were necessary he would carry out the obligations set out in subsection (2). Clearly, if a receiver were in and were exercising his judgment on behalf of the creditors of the company—who may be the employees of the whole company—if he had to take certain action and could not give the notice, I should have thought that this would fall for consideration under subsection (8).
Lord DRUMALBYN: The receiver may have to take some fairly speedy decisions if he is to save the company. The

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issue may be whether the company is to be saved or whether the clause is to be observed.
Lord SHEPHERD: That is what I had in mind in concluding my last remarks to the noble Lord. I think that it would fall within subsection (8).
The Earl of GOWRIE: It is a melancholy thought that the situations in bankruptcy which could lead to the kind of difficulties referred to by my noble friends Lord Hawke and Lord Drumalbyn may be with us at this moment and in the foreseeable future. Clearly, therefore, it is very important that we should get this right. I hasten to say to the noble Lord, Lord Shepherd, that I am not, with the present Amendment, speaking against the general principle here. The spirit of the clause, which is the spirit of the EEC Directive, is one with which I agree. Nor do I feel that the noble Lord, Lord Shepherd, is being unreasonable, though I think he may be being a little cumbersome in his use of words. I should have thought that my Amendment would cover subsection (8) more or less in one letter, let alone syllable, whereas the noble Lord insists on taking five sentences to do so. However, he has given an assurance to the noble Lord, Lord Brown, on another point which is of interest to us and that is good enough for me. I therefore beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.19 p.m.
The Earl of GOWRIE The Earl of GOWRIE moved Amendment No. 79B:
Page 74, line 30, leave out from ("begin") to the end of line 31.
The noble Earl said: With the leave of the Committee, I should like to take Amendments Nos. 79C, 80A, 85A and 85B with this Amendment. These Amendments deal with the second aspect in which the Bill lays down tighter obligations than the EEC Directive. As originally drafted, the Directive provided that when 10 employees were made redundant consultation with the unions and notification of the public authority should take place one month before the dismissals took place. Discretion was to be given to the public authority to delay the date of dismissal for a further month for various reasons. When the Council of Ministers came to consider
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the final draft of the Directive, they decided to fix the period firmly at one month and deleted all provision for extension. This was clearly the most sensible decision.
For smaller firms, a minimum two months' notice when 10 people have to be made redundant could be very difficult indeed. Of course, those employees entitled to longer notice based on length of service would, in any case—and under the Amendment—still be entitled to it. In times of recession—and these, alas! are the times in which we live—smaller firms live very much from con tract to contract. Contrary to what many people think, very few firms willingly break up a satisfactory labour force. Employers do not lightly rush into making people redundant. Rather, they hang on to them until the last moment, often until long after they have real economic need for them. The cost of two months' notice on top of this may prove damaging to the undertaking and of course it will be psychologically damaging to the job security of the remaining workers.
On the other hand, if notice has to be given early, it could also prove damaging through loss of morale and the voluntary departure of essential employees who see the chance of more secure employment elsewhere might follow. Again, I am talking mainly in the context of small firms. In our view, a minimum period of one month for consulting the unions and notifying the employees is clearly adequate, particularly since any long-serving employees who are entitled to longer notice under their contracts will still retain their rights. The Amendment would not affect the period of three months' notice required when large numbers of 100 or more workers are to be made redundant. I beg to move.
Lord SHEPHERD: In many ways this is a continuation of the argument we had on the previous Amendment, but I hope that I may be forgiven if I speak for a little longer than last time, because I do not appear to have satisfied the noble Earl on this matter. He is quite right. These Amendments would cut by half the consultation and notification periods for redundancy of between 10 and 99employees, and give unions and the Secretary of State alike only 30 days' advance warning of redundancy. It has been argued that 30 days should be adequate,

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in the case of all but the largest redundancies, for consultation with the unions to take place and for the employment services to make any necessary arrangements for the redeployment and retraining of the workers concerned.
It has also been argued by the noble Earl that a number of employers—particularly small ones, and the construction industry—would find it extremely difficult to forecast all but the largest redundancies more than 30 days in advance. While it is true that 30 days' notice might be inadequate in some cases, it is perfectly possible to envisage situations in which a longer period of time could be necessary. Where consultation is concerned there has to be time for the union to be able to digest the information provided, to make any necessary inquiries, and to formulate its own representations to the employers.
Likewise, where there are a number of redundancies, or where the problems of redeployment are considerable, the employment services might well need more than 30 days to make arrangements, where necessary, for redeployment and possibly retraining. But the Government have always recognised that there are bound to be cases when it is not practicable for the employer to notify the Department of Employment, or to start consultation with the unions on proposed redundancies, within the periods required by the Bill. Provisions to meet such circumstances are made in Clause 90(8), to which I referred on the previous Amendment, and also in Clause 91(6) which provide that if there are special circumstances which render it not reason ably practicable for the employer to comply with any of the consultation or notification requirements, the employer must take all reasonable steps to comply with the requirement.
Apart from the defence of special circumstances, the Bill allows an element of flexibility through the exclusion of short-term employment in Clause 107(7), and through the Secretary of State's powers to modify the provision, either generally or selectively, in Clause 97(4). There is also provision in Clause 98 allowing exemption or modification where there is a jointly agreed industry scheme providing no less favourable treatment for
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employees than that required by the Bill. The measures of flexibility outlined are intended to meet special circumstances, irrespective of the industry concerned.
The likelihood of an employer finding himself in special circumstances may clearly be greater in one industry—the construction industry is very much in our minds. It follows that employers in such an industry may need to have recourse to the special measures available somewhat more frequently than other employers. In many instances, where it would be practicable for employers to give the required periods of notice, there is no reason why they should not do so. A number of employers already give as much, if not longer notice than is already required in the Bill.
I hope that the noble Earl will recognise that although these periods of notification, both to the trade union and to the Secretary of State or his representatives, are longer than required under the EEC Regulations, they are what good employers seek to achieve when they have the opportunity to give such notice. But we have provided some flexibility and have provided a loophole by means of which a good employer, having taken all reasonable practicable steps to make notification, but is not able to comply with these dates, would not be held liable.
I hope that the noble Earl will feel that in legislating like this we should not be legislating only for the present but also for the future. We are here setting a generous time. I must admit, in terms of the unions for consultation, though perhaps at this moment not all that generous a time for the employment services in order to mitigate the problems of redundancy, the finding of new employment, and retraining. But we think that the time indicated in subsection (3) is about right. But having said that, we have made provision that, where an employer s unable to comply, he has available to him certain subsections within the Bill which would absolve him from that responsibility, provided that he had acted reasonably.
The Earl of GOWRIE: The noble Lord, Lord Shepherd, in his argument made much play with the point that the Bill allowed reasonable flexibility. I think

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that his phrase was, if I have copied it down correctly,
"… measures of flexibility intended to meet special circumstances regardless of the industry concerned."
I do not really disagree with him, but I regard it as an astonishingly clumsy way to do it. The Bill is inflexible in the subsections pertaining to my Amendment and then, as it were, recognising its inflexibility, it proceeds to put in a blanket flexible subsection—subsection (8)—in order to cover eventualities, particularly the type of eventualities in the construction industry, which I mentioned in the earlier debate.
I accept that, and I accept that subsection (8) may have to do. But before withdrawing the Amendment, I cannot resist the conclusion that this is simply another instance of the amount of double think in the Bill. First, the Bill starts out with provisions which appear to be union directives, and then there is a covering clause which appears to be the wiser, second thoughts of the Government. I think that the Bill could have been amended in the way that I have suggested more sensibly in the first instance. But since the noble Lord has made the case very well for subsection (8), I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 90 agreed to.
Clauses 91 and 92 agreed to.
Clause 93 [Entitlement under protective award]:
3.40 p.m.
Lord SHEPHERD Lord SHEPHERD moved Amendment No. 86:
Page 78, line 30, at end insert—
("(3A) In respect of a period during which he is employed by the employer an employee shall not be entitled to remuneration under a protective award unless he would be entitled to be paid by the employer in respect of that period, either by virtue of his contract of employment or by virtue of Schedule 2 to the Contracts of Employment Act 1972 (rights of employee in period of notice), if that period fell within the period of notice required to he given by section 1(1) of that Act.")
The noble Lord said: Clauses 92 and 93 of the Bill entitle employees, of a description to which a protective award relates, to remuneration if they have been
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dismissed or are to be dismissed as redundant. The intention behind the clauses is to safeguard the position of the employee by ensuring that during the protected period he is no worse off than he would have been if his employer had duly observed the requirements of the Bill. Clause 93 disentitles employees from receiving remuneration under the protective award, however, if they have been fairly dismissed for reasons other than redundancy, if they have left their jobs or refused to take suitable alternative employment without good reason or, having taken such employment, have left without good reason. The provisions are, however, silent on the subject of the employee who is still in employment during any part of the protected period. There is a danger here that an employee could go on strike or otherwise be absent in circumstances in which he would not be entitled to be paid under his contract of employment, and yet still be entitled to remuneration under the protective award. It is to rectify this anomaly that this Amendment has been introduced.
The Committee will have noticed that as well as referring to payment due under the employee's contract of employment, the Amendment refers to payment due under Schedule 2 to the Contracts of Employment Act 1972 which relates to the rights of the employee in the period of notice to which he is entitled under Section 1(1) of the Act. This equation of the protected period with the statutory period of notice is very just as the employee who has been notified that he is one of those to be dismissed as redundant during the protected period is still under notice even where the period of warning that he has been given is longer than either his statutory or his contractual notice. The Amendment will ensure that where an employee is still in employment during the protected period he will be entitled to remuneration under the protective award only in those circumstances in which he would have a right to be paid by his employer, either under his con tract of employment or under the provisions of Schedule 2 to the 1972 Act—whether or not the protected period falls within the period of notice to which he is entitled under that Act. This means that where he is available for work but no work is provided for him by his employer, where he is absent because of

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sickness or injury, or where he is on holiday in accordance with the terms of his contract he will be entitled to payment. I beg to move.
On Question, Amendment agreed to.
On Question, Whether Clause 93, as amended, shall stand part of the Bill?
Lord DRUMALBYN: May I draw attention to line 37 on page 79, and ask whether (b) has been omitted?
Lord SHEPHERD: If the noble Lord has spotted a printing error, I will certainly see that it is put right for Report.
Clause 93, as amended, agreed to.
Clauses 94 to 99 agreed to.
Clause 100 [Power to confer jurisdiction on industrial tribunals in respect of damages, etc., for breach of contract of employment]:
Lord JACQUES: Amendments Nos. 88, 89 and 91 are drafting Amendments which do not alter the sense of the words in the clause. I beg to move Amendment No. 88.
Amendment moved—
Page 85, line 3, after ("order") insert ("being in either case a claim satisfying the relevant condition or conditions mentioned in subsection (3) below").
On Question, Amendment agreed to.
Lord JACQUES: I beg to move Amendment No. 89.
Amendment moved—
Page 85, leave out lines 20 to 23 and insert ("An order under this section may make provision with respect to any such claim only if it").
On Question, Amendment agreed to.
3.37 p.m.
Lord MELCHETT Lord MELCHETT moved Amendment No. 90:
Page 85, line 26, leave out ("claimant's") and insert ("employee's").
The noble Lord said: If I may, I should like to take with Amendment No. 90 Amendments Nos. 92, 93, 94, 95 and No. 129. The new clause and the related new Schedule which Amendments Nos. 95 and 129 respectively introduce make pro vision for cases where the employee or employer dies before a complaint under the Bill or under the 1974 Act has been
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made or while such a complaint is being dealt with. First, the provisions enable the personal representative of a deceased employee to initiate or pursue a complaint on the latter's behalf; and second, they enable an employee to pursue a complaint against the personal representative of a deceased employer.
Special provisions for dealing with cases where the employee or the employer dies already exist in relation to the Redundancy Payments Act 1965. The present provisions are drafted on similar lines to Section 23 and Schedule 4 of that Act. The need to insert such a provision in the Bill was suggested by cases heard under the unfair dismissal provisions of the 1974 Act. Under that Act there have been a few cases in which the representative of a deceased employee has sought to present or to pursue a complaint of unfair dismissal on behalf of the deceased employee. In general, tribunals have construed the existing provisions as enabling a personal representative to proceed with a complaint presented before the death of the employee. However, it appears unlikely that the 1974 Act can be construed to enable a representative to initiate such a complaint, as opposed to pursuing a complaint presented by the employee before his death. Furthermore, an employee has no right to pursue a complaint against the representative of a deceased employer, although he may succeed in such a complaint if the representative enters an appearance.
There is thus a need to make special provision, which this Amendment does. There seems no good reason why under the unfair dismissal provisions, any more than under the Redundancy Payments Act, the accident of timing of the death of the employee or employer should deny to the complainant or to the complainant's dependants, the benefit of any compensation due in respect of events occurring before the death. Where an employee has died before completing a complaint under the unfair dismissal provisions the amount of compensation in question may be substantial in relation to the total estate, for example, where it includes a sizeable element in respect of wages lost since the dismissal.
This general case has equal validity in relation to certain new rights to be conferred by the Bill. Under some provisions of the Bill the amounts of compensation

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awarded may be considerable; for example under the new provisions on insolvency, and for a CAC award following an employer's failure to disclose in formation for collective bargaining purposes.
However, we think it would be wrong to confine the scope of a new provision to those rights which may involve the payment of substantial amounts of compensation. In general, personal representatives are, in our view, unlikely to pursue complaints for the sake of very small sums of the kind which may be awarded, for example, where an employer has refused to allow the employee time off to perform public duties. But by the same token, it would be hard to justify excluding the possibility of recovering compensation in such a case, particularly where it represented a significant sum in relation to the complainant's or, as the case may be, the dependant's, total income or resources. Moreover, such a complaint might be linked with an unfair dismissal claim which would make it particularly difficult to justify different treatment of the other provisions. The new Schedule accordingly provides that a complaint may be initiated or pursued by the representative of a deceased employee or, as the case may be, against the representative of a deceased employer under any of the provisions of the Bill as well as under the unfair dismissals provision of the 1974 Act. We would expect the number of cases brought as a result of the new provision to be small. The provision that a complaint may be brought against the personal representative of a deceased employer is relevant only where the employer is not a corporate body. It is thus unlikely to produce a great number of cases.
Turning now to Amendments Nos. 90, 92, 93 and 94, the new clause and the related Schedule ensure that any claims which can be made under the Bill by an employee can he made by a personal representative. These four Amendments are consequential on the new provisions. The wording of Clause 100 would be inappropriate in view of the language of the new Schedule in a case where the employee had died, because it refers specifically to the complainant. Changing "complainant" to "employee" ensures that there is no possibility of the pro visions on "Death of employee" not
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applying, should it be necessary, in a case under Clause 100. As amended, the clause would therefore allow a personal representative or such person as the tribunal may appoint to act on the deceased person's behalf when the provisions of Clause 100 conferring a limited breach of contract jurisdiction on industrial tribunals is brought into force by an order under Clause 100(1). I beg to move.
The Earl of GOWRIE: What the noble Lord, Lord Melchett, said sounds all right to me; but, as I think the Committee will agree, it also sounds fairly complicated and fairly dense stuff. I should therefore like to greet it with modified rapture, look at it carefully and return to it if need he; but it seems to me at the moment that there will be no need to do so.
On Question, Amendment agreed to.
Lord JACQUES: I have already spoken to this Amendment. I beg to move Amendment No. 91.
Amendment moved—
Page 85, line 31, leave out ("an order under this section") and insert ("the order").—(Lord Jacques.)
On Question, Amendment agreed to.
Lord MELCHETT: I wonder whether it would be convenient to take Amendments Nos. 92 to 94 en bloc. I spoke to them all when speaking to Amendment No. 90. I beg to move.
Amendments moved—
Page 85, line 35, leave out ("to the claimant")
Page 85, line 36, leave out ("the claimant")
Page 85, line 37, leave out ("to the claimant").—(Lord Melchett.)
On Question, Amendments agreed to.
Clause 100, as amended, agreed to.
Lord MELCHETT: I beg to move Amendment No. 95 formally.
Amendment. Moved—
After Clause 100 insert the following new clause:
Death of employee or employer
". The provisions of Schedule (Death of employee or employer) shall have effect in relation to the death of an employee or employer."—(Lord Melchett.)
On Question, Amendment agreed to.
Clause 101 agreed to.
Lord MELCHETT: I spoke to this new clause in some detail when I was advising the Committee to leave out Clause 34 which this new clause replaces. I beg to move.
Amendment moved—
After Clause 101 insert the following new clause:
Entitlement to unemployment benefit and recoupment of that benefit and supplementary benefit.
".—(1) Section 139(1) of the Social Security Act 1975 (submission of regulations in draft to the National Insurance Advisory Committee) shall not apply to regulations made under that Act and contained in a statutory instrument which states that the regulations provide only that a day in respect of which there is payable a particular description of any payment to which this section applies shall not be treated as a day of unemployment for the purposes of entitlement to unemployment benefit.
(2) The Secretary of State may by regulations make provision for all or any of the purposes mentioned in this subsection with respect to payments to which this section applies and which are subject of a reference or complaint to, or claim before, an industrial tribunal, that is to say—

(a) enabling the Secretary of State to recover from an employer, by way of total or partial recoupment of unemployment benefit or supplementary benefit, a sum not exceeding the amount of the prescribed element of the monetary award;

(b) requiring or authorising the tribunal to order the payment of such a sum, by way of total or partial recoupment of either benefit, to the Secretary of State instead of to the employee;

(c)requiring the tribunal to order the payment to the employee of only the excess of the prescribed element of the monetary award over the amount of any unemployment benefit or supplementary benefit shown to the tribunal to have been paid to the employee, and enabling the Secretary of State to recover from the employer, by way of total or partial recoupment of the benefit, a sum not exceeding that amount.

(3) Without prejudice to subsection (2) above, regulations under that subsection may—

(a) be so framed as to apply to all payments to which this section applies or one or more classes of those payments and so as to apply both to unemployment benefit and supplementary benefit or only to one of those benefits;

(b) confer powers and impose duties on industrial tribunals, on the Supplementary Benefits Commission and on insurance officers and other persons;

(c) confer on an employee who is aggrieved by any decision of the Commission or any tribunal or person as to the total or partial recoupment of supplementary benefit in pursuance of the regulations (including any
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decision as to the amount of benefit) a right to appeal against the decision to an Appeal Tribunal constituted under the Supplementary Benefit Act 1966 and for that purpose apply Section 18(2) and (3) of that Act (appeals) with or without modifications;

(d) provide for the proof in proceedings before industrial tribunals (whether by certificate or in any other manner) of any amount of unemployment benefit or supplementary benefit paid to an employee; and

(e) make different provision for different cases.

(4) It is hereby declared for the avoidance of doubt that the power to make regulations under Section 114 of the Social Security Act 1975 for the determination of questions arising in connection with that Act includes power to make regulations for the determination of any question arising as to the total or partial recoupment of unemployment benefit in pursuance of regulations under subsection (2) above (including any decision as to the amount of benefit).
(5) Where in pursuance of any regulations under that subsection a sum has been recovered by or paid to the Secretary of State by way of total or partial recoupment of unemployment benefit or supplementary benefit—

(a) Section 119(1) and (2) of the Social Security Act1975 (repayment of benefit revised on review) shall not apply to the unemployment benefit recouped; and

(b) the following provisions of the Supplementary Benefit Act 1966, that is to say. Section 23 (recovery of cost of supplementary benefit from persons liable for maintenance) and Section 26 (recovery of benefit and other sums in cases of misrepresentation and non-disclosure), shall not apply to the supplementary benefit required.

(6) Any amount found to have been duly recovered by or paid to the Secretary of State in pursuance of regulations under subsection (2) above by way of total or partial recoupment of unemployment benefit shall be paid into the National Insurance Fund.
(7) This section applies—

(a) to a payment of wages or compensation for loss of wages;

(b) to any payment under this Act by an employer to an employee or a payment by an employer to an employee of a nature similar to, or for a purpose corresponding to the purpose of, any payment under this Act.

(8) In this section—
"monetary award", in relation to an industrial tribunal, means the amount which is awarded, or ordered to be paid, to the employee by the tribunal or would be so awarded or ordered apart from any provision of regulations under this section;
"the prescribed element", in relation to any monetary award, means so much of that award as is attributable to such matters as may be prescribed by regulations under subsection (2) above;

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"supplementary benefit" means benefit under the Supplementary Benefit Act 1966; and
"unemployment benefit" means unemployment benefit under the Social Security Act 1975."—(Lord Melchett.)
On Question, Amendment agreed to. Clauses 102 and 103 agreed to.
Clause 104 [Amendments of the Health and Safety at Work, etc. Act 1974]:
3.45 p.m.
The Earl of GOWRIE The Earl of GOWRIE moved Amendment No. 97A:
Page 87, line 13, leave out from ("which") to ("remove") in line 15.
The noble Earl said: We now come to the section of the Bill which, if I may put it this way, is presided over by the spirit of the noble Lord, Lord Robens. We are debating safety and health at work. Specifically, in my Amendment we are to debate the Government intention in this Bill to restrict the appointment of safety representatives to those appointed by recognised trade unions—and I want to say at the beginning that I can think of nothing in this Bill, much of which is contentious, with much of which we disagree, which has caused more furious disagreement, resentment or anger on this side.
We are strongly opposed to paragraph 2 of Schedule 14 under this clause, which seeks to repeal Section 2(5) of the Health and Safety at Work Act; that is to say, it seeks to repeal that Act as it was amended by your Lordships last summer. This section empowers the Secretary of State to make regulations providing for the election of safety representatives by the employees as a whole. This House, under an Amendment moved by the noble Baroness, Lady Seear, provided that it should recognise employees as a whole as opposed to the appointment of safety representatives from recognised trade unions only. This departure from the Robens' recommendations appears to be based on the idea that safety can be a matter for sectional interests alone. We accept that an effective role, perhaps the paramount effective role for the trade unions, is desirable where they are the sole means of representing employees. But employees in a non-unionised or a partially unionised situation should have
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equal rights of representation under the Act. This Act is designed by the Government to cover all forms of employment.
The practical implementation of the Government's change will give trade union representatives the statutory right to upset existing arrangements which encompass any non-union employee at the work place. I said on Second Reading, and I would remind the Committee, that there are 11 million non-unionised employees in this country. The TUC have already stated in public that in their view the prerequisite for safety participation is union membership, and some unions are already acting on this basis in advance of the change in the law.
Safety has always attracted a number of dedicated men in industry. Are these people to be dumped and their enthusiasm and knowledge lost to industry if they do not happen to be union members, or if they are weakly or partially unionised? The Robens Report, in advocating universal joint consultation procedure said:
"A general obligation of this nature would, we believe, have very considerable persuasive force in those areas of industry and commerce where joint arrangements are not already well developed. At the same time it would not inhibit the development of various forms of joint endeavour going beyond what is usually comprised in the expression 'joint consultation'."
It should be noted also that union organisation is often lowest in those sectors which employ a higher percentage of female labour. Women, in my contention, are therefore more likely to suffer from the removal of this legal right to representation.
It has been argued that only trade unions can properly train safety representatives. We would all wish for proper training; but this cannot be considered an adequate justification for exclusive rights. We doubt whether the trade unions could possibly provide so totally comprehensive a training service. In practice, companies themselves will probably, and do probably, bear most of the burden. Safety legislation is surely too important to allow it to be used to assist trade unions to forward sectional ambitions—too important for legitimate politics, if you like. This is one provision favouring the trade unionist as against the non-trade unionist which must not be allowed to pass.
I recognise that we are in one part of a much wider debate on worker participation, on industrial democracy and the like. All thinking people will agree in principle that employees should be more involved in decision-making in undertakings, though there are of course differing views as to how far this can reasonably go. The accent must be on the employees of the undertaking—all employees and not just trade unionists. Where trade unions are recognised throughout the undertaking, the two could be synonymous; but it is surely un democratic and unacceptable that where there is a mixed situation—and there are many such—these rights should be given only to trade union members.
If Section 2(5) of the Health and Safety at Work Act is repealed, and unions insist on a safety committee in a factory, will their safety committee look after the interests of the non-union members? What happens if the works is unionised but the office staff is only partially unionised? What if the office staff is represented by what the works union does not regard as a real trade union—that is to say, what is commonly called a staff association? In my contention health and safety is too important an arena to bring these difficult questions of union representation into play in this manner. In asking the Government to think again and not repeal Section 2(5) of the Health and Safety at Work Act, we are not taking anything at all away from trade unions, except possibly the arguments that they could use in a recruiting campaign—that is to say, join a trade union and you can get on a safety representative committee. Under this clause the Government take away protection only from non-union members. This is what we contest, and this is what we find wrong. I beg to move.
3.52 p.m.
Lord BROWN: I apologise in advance for the fact that I propose to make a rather long comment on this Amendment. I support it. My reasons for support are not entirely associated with the Amendment to the Health and Safety Act. Without wishing to lessen the importance of health and safety, if the deprivation of the rights of non-union people to serve on that committee was the only thing which might be at stake,
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I do not think I should be as deeply concerned as I am. What I am concerned about is that this may well be taken as a precedent for a Bill which I think we can probably expect. I have no inside knowledge of this, but the Secretary of State for Trade has recently set up a Committee to study the subject of participation, and I assume that we are going to have another Companies Act which in some new way will take care of that subject in the future.
If the principle is to be that those who are not members of a recognised trade union should not be allowed to take part in general participation in the future, then this would be very sad indeed. In old style joint consultation, as was first brought into existence during the last war, we all know that there were two sides. There were a number of representatives, usually of trade unions, balanced by an equal number of what was called the management. A modern look at participation demands that the councils which give effect to the whole principle of participation should be many sided; they should reflect the views of every strata of the employment hierarchy in which they all work. It is very important that this be so. Participation is really broadening the base of government of individual companies, and it is not adequate that managers should sit on such a body as managers, because in the presence of the chief executive, who no doubt will sit there, they must agree with him as managers. It is essential that office staff, junior managers, middle managers, senior managers, technicians. technologists, et cetera. are represented properly by those who can speak on their behalf, and, as in the case of shop stewards, are elected to such participating bodies from properly formed constituencies. I am talking about the practice which is not widespread in British industry, but where it has taken place it has proved to be the very "guts" of participation.
It is true that union membership has not penetrated as yet into many areas, particularly what one might call the higher areas of the employment hierarchy. The growth of trade unionism is proceeding very rapidly in those areas. Nevertheless, if the Government arc going to say to people in companies which have chosen so far not to join unions, "You

485
will not therefore be represented on these bodies", that is a very serious matter indeed. The views of people representing foremen, technologists, managers and senior managers, are a very important ingredient indeed in the discussion of the policies which must be made by those works councils. The object of those councils is to be the internal law-making body of a company, to deal with all the details surrounding conditions of employment and many other things. To exclude such people from those discussions as representatives so that they can speak with complete freedom—which they would not be able to do if they appeared as part of the management team—is an extremely important omission of vital principle. It is on the grounds of the precedent set by the Bill as it stands that I ask the Government to think again about this matter.
Of course I have sympathy with union members, union officials and union general secretaries who make the argument that for years men have risked their livelihood to argue the case for reasonable conditions and proper pay. In the past it has meant that people who joined unions risked their livelihood in that way and were heroes of the day. The argument has been that those who do not join unions have had the benefit of those arguments all along, and they should not be allowed to take part in the negotiations and discussions with management, unless they see fit to join a union. But today the argument is no longer valid. It does not require an individual who wants to argue for the rights of his fellow employees to risk his livelihood. This is particularly so in the light of many of the provisions of the Bill in front of us. I suggest that this simple Amendment should be accepted by the Government largely on the ground that if the Bill stands as it is, then an unfortunate precedent may be created for a further Bill dealing with the much wider question of participation in general.
3.59 p.m.
Baroness ROBSON of KIDDINGTON: It will come as no surprise to the Comimttee, in view of the action taken by my noble friend Lady Seear during the discussion of the Health and Safety at Work Act last summer, that we on these Benches wholeheartedly sup-
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port the Amendment so ably moved by by the noble Earl, Lord Cowrie. I shall not add many words to this. I want to reiterate one or two of the points which have been made. When thinking about this Amendment the most important point is to remember what was mentioned by the noble Earl, Lord Gowrie: at the moment fewer than 50 per cent. of the workpeople in this country belong to trade unions. I was very grateful to him for pointing out that it is in the part of industry where women are largely employed that the union organisation is at its worst. But it is also true of many small industrial companies and places of work where unionism is not as strongly present as we would all wish.
I agree wholeheartedly with the noble Lord, Lord Brown, when he expressed his fears about this type of legislation in which the Government are at present engaged, when we look forward to legislation for joint consultation and democracy in industry. I cannot help feeling that the repeal of this section of the Health and Safety at Work Act could be the thin end of the wedge and show us the lines on which the Government are proposing to proceed when they present us with the next document. At the same time, I said—I believe it was the day before yesterday—that I cannot understand the lack of faith in the trade union movement that seems to be inherent in the Government's action.
If the trade union is seen to be representing the true interests of the work-people in any workplace, and if its leaders are active, they will without doubt be the people who will be elected to the health and safety committees. It is up to the unions to prove that they are working for the good of all the people in a particular industry. If they do that they have nothing to fear but, as I say, there are many cases where trade union representation is a minority within a works and it is only right that the employee individually should be able to elect his own representative. I feel that, to a certain extent, on this occasion the Government are using the safety and welfare of people at work for political manoeuvring, when I believe it should be a matter of the most common concern to us all, and should certainly be a matter of concern to every employee within every undertaking.
Lord WIGG: The argument which the noble Baroness has just put forward is a typically Liberal argument. It is divorced from any contact whatever with reality. I am not surprised: it is common form. Turning to the noble Lord, Lord Brown, over the last few days or so I have come to have regard for his great interest and knowledge of this subject, but I must say that his speech today has not convinced me that logic is his strong suit. To take an Amendment, which was clearly expounded by the noble Earl, Lord Gowrie, put forward arguments which required to be met and ask the Government to take account of their substance, and then turn the argument on to its head and say that the simple practical approach contained in this clause and Schedule 14 is "the thin end of the wedge"—to quote the noble Baroness—to influence the principle upon which worker-participation in industry is to be worked out (I am looking for a polite word to use), does not convince me.
The simple facts are that whether or not there is effective union representation does not affect the issue. There are measures which are required for the effective working of industry in a factory, and in the working out of those pro visions you need responsible people. I do not argue, and I do not believe that any responsible trade union leader—this does not include me—would argue that there are no responsible people who are not members of trade unions. Of course there are; but there are a considerable number of employers who judge their duty to their workpeople and indeed to their business wholly in terms of the balance sheet, so that they have been known to cut the corners. It has happened in the past that they were able to secure the people that they wanted, since there was not this provision to do jobs, which may not have been done according to accepted standards. So the unions are saying not that they should be members of a trade union but that they want to be sure that the people appointed recognise trade unions and are not, to put it bluntly, "bosses stooges". I put it in this extreme way only in order to minimise the number of words that I shall use. What the trade unionists, out of their great experience, are seeking to ensure is that whoever is appointed shall
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have their approval. It can be done by consultation. They could certainly appoint people, if you like, who are antipathetic to the whole trade union movement: but this provision ensures that the situation is not going to be stacked the other way. That seems to me to be the simple practical issue, and I hope that the noble Earl, Lord Gowrie, will accept that there is some substance in what I am saying. It may well be that the Government could perhaps look again at this provision and find a formula which would meet the views of the Party opposite. But to argue, as was done today both by the noble Lord, Lord Brown, and the noble Baroness, Lady Robson of Kiddington, that this is the thin end of "the wedge" in order to influence the principle on which workers' participation shall be subsequently worked out seems to me to be just dotty, dotty.
Lord BALFOUR of INCHRYE: I want to add my voice to appeal to the Government to think again on this Amendment. This is the first time I have dared to open my mouth during the long debates we have had, but I have always wished to raise it on this Amendment. The pursuit of safety is not the monopoly of trade unions, nor of the 11 million workers who are not members of trade unions. The pursuit of safety is some thing which is, or should be, dear to the heart of everyone engaged in industry. I happen to have been Chairman for a good many years now of an organisation which is pursuing safety in the air. I grant you it is something rather different from the organisation which may develop from this Bill but nevertheless it is analogous, and the contribution towards safety made by those who were members of the union, the British Airline Pilots' Association and by those who were not members of the union, was tremendous. As a committee, we took no note of whether somebody was a trade unionist or not. All we wanted was to get the maximum contribution from an individual born of his experience and knowledge in the pursuit of safety. I feel strongly that the proposals in this Bill will deny a contribution to the pursuit of safety from many people who may not be members of trade unions.
Lord BROWN: There was some justice in the criticism made by the noble Lord, Lord Wigg, that I had turned the

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argument on its head because I had used a possible future hypothetical situation to support this Amendment. But let me try to convince him and others that this can be argued in its own right. Let us take an instance—which is not uncommon—of a factory which is introducing a new process, where various technicians, superintendents, middle-managers and so on have become aware of the fact that the process contains certain possible dangers. This is not uncommon. The manager of the department may well have raised with the plant manager, who no doubt has raised it with the managing director, the idea that very considerable delay should elapse and further sums of money should be spent before the new process is introduced, and this has been turned down. The people who know and have some insight into these dangers are at, let us say, middle management level. They are not members of trade unions and have not a representative on the safety committee. As individuals they have done their best. But one can advise one's seniors in the most vehement terms but, after going as far as possible, be turned down. It is said: "I have listened carefully, but I am not doing what you ask". That is the end of the matter for somebody in the role of manager.
However, it will be quite different if those middle ranks are allowed to elect a representative and feeling is widespread among technologists and managers that process ought to be delayed. The person who is the representative speaks anonymously as such and says, "Speaking for a large number of people at middle level in this company I tell you here and now that the feeling is that this process is dangerous," and that is a different matter. I wanted to add this argument about this Amendment in terms of safety committees, rather than base it purely on the hypothetical possibility that it would interfere with participation in the future.
4.11 p.m.
Lord HEWLETT: I should like to add my support for the Amendment, in the sense of the expression that it should be a perfectly open election of the best people to represent all the employees of any enterprise. The question of safety is not a monopoly of the trade unions; it is not a monopoly of management. It is for the good of all participating in the industry who are present in the works,
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plants, offices and the like. I must take issue with the noble Lord, Lord Wigg, over this Dickensian approach towards British management. I think he suggested there were managers or even directors who thought they might like to cut corners on safety, with a view to personal advantage of the company on the balance sheet—or perhaps he means the profit and loss account. This really is quite wicked. We must not say this sort of thing, any more than from these Benches we should say that there are elected representatives of trade unions who are out to do this, that or the other and destroy industry and so forth. There may be an individual case. One can think of a number of cases in recent past months. But to make the general lambaste that it is a management attitude to cut corners on safety is quite woeful and out of touch with the truth.
As I have said before in your Lordships' House, I happen to be directly connected with the chemical industry. Perhaps the noble Lord, Lord Wigg, has forgotten that, as to the most ghastly accidents which, alas!recently occurred, the proprietors were both nationalised industries—one Dutch State Mines and, the other, one of our own nationalised industries. Are we going to stand here and suggest it was the wickedness behind the ownership there that determined there should not be adequate supervision which it is alleged in the report caused the accident? Of course not. I beg your Lordships when speaking on matters of this kind—even if your Lordships have had such close control and interest in industry as has the noble Lord, Lord Wigg, whose industrial career escapes my memory at the moment—to show a far greater degree of restraint and not to suggest, in some quasi-Dickensian approach to industry, that there are wicked entrepreneurs out to risk the lives of and damage to their employees.
We are people of conscience in industry, whether we be on the shop floor or in management. Every association with which I have been connected, including those such as the Confederation of British Industry and the British Institute of Management, and indeed the institute of which I am president, the Plastics and Rubber Institute, are all desperately anxious that the maximum degree of safety should be paramount

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in the consideration of enterprises and in industry itself. I do not suggest for one moment that the unions are any more or less interested in safety than is management. We are all desperately interested and contributions from this House should. I submit, acknowledge that attitude.
Lord WIGG: When I was speaking, I did not have in mind such saintly characters as the one who has just spoken—of course not. My knowledge of sainthood and of perfection is extremely limited, like my knowledge of industrial relations. But I have a working-class background and I come from the same part of the world as the noble Lord, Lord Hewlett, and I know something of the management of companies. I am a kindly person and I am not concerned here with raising individual cases. What I want to do is speak about the Amendment. The noble Lord, in his anxiety to paint him self as a figure for a stained glass window —I almost bow at the idea when I look towards him—spoke about election. There is no question at all of an election. All that the trade unions want to do or have ever done, is born of their experience. They know the noble Lord and they know the kind of people who operate British industry.
Of course there are very good people among them. They have come to realise that there is virtue in handling the very expensive product of labour properly, but it was not always so. The last 200 years of the Industrial Revolution, particularly as it has affected the West Midlands, are not a picture of saintly characters who are out to look after their workers. I know only too well from my own family how the workers were treated by the Lord Hewletts and their kind. That is what brought me into politics. And if it is wicked to say it, I am going to continue being wicked. I would rather be wicked than be a humbug.
Here is a provision born of trade union experience. It may well be that that experience is now being invalidated, completely invalidated, by noble characters like Lord Hewlett. But the trade unions do not believe it. Perhaps they ought to believe it, but they do not. I long ago learned that when I was speaking to miners in my constituency I was really
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talking, not to them but to their grand dads I was speaking about the way their fathers and grandfathers had been treated. Of course that kind of treatment has long since vanished, but the social memory is there. It is atavism with which we have to deal. That is what I have been saying for the last two days. It may be myth. I am prepared to agree that 99.9 per cent. of it is myth, but in terms of grappling with problems we have to treat the myth as if it is reality.
This provision does not concern election. This clause requires that safety representatives be appointed by the trade unions. It may be utterly illogical. The noble Lord, Lord Balfour of Inchrye, made a point about the aircraft industry. There is one fundamental difference. In an aircraft, whether one is a pilot or a humble steward, one has a vital concern about safety, so the position is a little different. It is a new industry, also, and is not tied down with memories of the past. But when we are dealing with safety in mines and factories, we should remember that many factories are still the products not of the present clay but of the last century. We are dealing here with a fact that must be taken into account. which is that there will be greater confidence if those who are appointed are appointed by trade unions.
May I say to the Government that what I should like to see is this. I was convinced by the logic of the noble be found which will satisfy the Benches opposite and do what the trade unions obviously want to Earl, Lord Gowrie. I stand by what I have said, wicked or not wicked. It may well be that a formula can do. Try to seek the formula. I have nothing against that, but what I am not gong to respond to is the kind of argument we get from the Liberal Benches. On that point I reject Liberalism, because I have been a victim of it.
Baroness SUMMERSKILL: Not being in the world of industry, I would not for one moment plead any special knowledge of some of the subjects that have been mentioned. But the passionate outburst we heard just now absolutely amazed me. I will take only one series of diseases, the dust-borne diseases. Can the noble Lord. Lord Hewlett, say that employers in the past have had any sleepless nights about the high incidence of

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pneumoconiosis, silicosis, and byssinosis—all diseases which could have been reduced in incidence if more machinery of the extractor kind had been provided? There is evidence that, although it is known that these diseases could have been prevented, cynical employers did nothing about it. Can the noble Lord uphold what he has said in the light of this unmistakable evidence?
Lord HEWLETT: I am speaking of the present. We can go right back to the Industrial Revolution or, indeed, to the earliest forms of organisation long before what I take as the start of the Industrial Revolution—1761 and the building of the Bridgwater Canal. We are serving neither this House nor the country in any way if we insist upon being totally anachronistic in our approach. I am speaking as a post-war person in industry. I am not talking about the wicked 1880s, or the 1890s, or the 1930s. We would do very much better to talk about present and future conditions than to have this mania for going back into the past. The noble Lord, Lord Wigg, suggested that the safety committee representatives would be the stooges of the employers. It is that type of totally anachronistic approach towards the attitude of managers and directors in industry which is wrong so far as my own present knowledge is concerned. I have had only 25 years in industry, dating from 1975 back to 1950. Perhaps there is some other period that I should have experienced, but it is more to the point to talk of the experience one has had and not of what one has read about or been conditioned to think about which took place in the past. I am merely asking for the modern day approach. That is all.
Baroness SUMMERSKILL: Of course I am not talking about the last century. Does not the noble Lord do any reading on the subject before he comes and makes these passionate outbursts? I am talking about the last 20 years. May I suggest to the noble Lord that he should go back and do a little reading and then he will know his subject.
Lord STRANGE: I apologise for jumping up and down like a jack-in-the-box, but I have got zig-zag vision and I can see only one place at a time; then I have to turn round to see another
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place. So I apologise to everybody. I will not say much and detain you long. It is far too important and critical a debate to do that. My grandson works on a building site. He does so because he is very happy in his work. He was victor ludorum at Eton for two years in succession, which is a minor record. He runs, jumps and throws and does all of those things. He works on a building site because he gets more money there than he would earn in any other way and he likes it. I asked him, "How do you go on about strikes?" and he said, None of us would join a union. We are out for money and we do not want to go on strike." That is the solution given by an ordinary boy to the problem, and many other people are thinking his way. Young people want to get on and they are thinking like this. At my age I do not suppose I shall ever be employed by anybody, but if I were younger I might think the same.
4.23 p.m.
Lord MELCHETT: We have had a fairly lengthy debate on this Amendment and it would be true to say that it is ground we have gone over a great many times before. Therefore, I do not intend to speak at any great length. I regret to have to say to my noble friend Lord Wigg, whose support I much appreciate, that after this long time I do not think there can be any possibility of any common ground between the Government's position and that of noble Lords opposite on this issue. The Government's intention throughout has been to limit the statutory safety representative provisions to safety representatives appointed by trade unions. There are a number of reasons for this.
First, it is thus made clear to trade unions that they are to shoulder more responsibility and to play a more active part in promoting the health and safety of the work place. As the noble Earl, Lord Gowrie, said, this is a responsibility that the TUC are anxious that the unions should discharge. Secondly, the unions are the bodies best organised to take on these responsibilities and in our view it would seriously weaken these provisions if we gave statutory rights and responsibilities to those who cannot make full use of them. Thirdly, if the legislation requires an employer to undertake consultations with his employees otherwise

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than through the normal channels, in many cases it will undoubtedly lead to serious industrial relations difficulties. Fourthly, the present provisions in the Health and Safety at Work Act, Section 2(5), have had the effect of giving legal rights and thus responsibilities to safety representatives who will not have an organisation to back them and to assist them in exercising these responsibilities. In practice, we just do not accept that employee representatives can be called to account by their constituents in the same way as democratically elected union officials. Fifthly, any apparent discrimination between the provisions for union and for non-union employees is more apparent than real because there is nothing to prevent the making or continuance of voluntary arrangements between an employer and his employees. This is a point I should like to make particularly to my noble friend Lord Brown, who, I think inadvertently, said that this was an attempt to prevent non-union employees from playing any part in health and safety at work. That is not at all the intention. Here we are talking solely about the granting of statutory rights. In our view, unless workpeople in completely non-union firms are well organised to take advantage of the rights which are conferred on them by Section 2 of the Health and Safety at Work Act, these rights will, in practice, be useless. Lastly, the Government's concern is to improve the standards of health and safety for people at work. Placing the responsibility firmly on trade unions is, in our view, a logical and an essential step towards this end.
The Earl of GOWRIE: Despite the great disagreement between the two sides, may I pay tribute to the crisp way in which the noble Lord, Lord Melchett, brought us back to the issues which are immediately before us. The noble Lord said that the main motive behind the Government's Amendment of the Health and Safety at Work Act was to encourage trade unions to take more responsibility, to initiate new moves in the safety and health field. We have absolutely no
quarrel with this; we would seek to encourage it. In sum, what we are objecting to is that the Government wish to do something negative as well as to undertake this positive maneuver. They wish to take away the right of someone who wants to take such responsibilities. My noble friend Lord Balfour of Inchrye mentioned the question of aeroplane pilots. Surely we would be in an absurd situation if those who fuel or service aeroplanes were able to elect safety representatives but pilots were not able to do so.
The noble Lord, Lord Melchett, also said that it would be bad to give rights and responsibilities to bodies or to people who cannot make full use of such rights and responsibilities. I simply cannot accept this argument. Apart from anything else, it would invalidate the principle of universal suffrage. He also said to his noble friend Lord Brown—who in earlier sections of the Bill has given me a quite sufficiently rough time for me to welcome wholeheartedly his support on this occasion since we know that the noble Lords speaks with great experience—that there was nothing against voluntary arrangements being made between management and non-unionised groups of employees. If this is true, why bother to repeal the section in the first place? Is it not surely the point that by repealing Section 2(5) of the Health and Safety at Work Act, the Government are taking away the rights of some people—perhaps half of the working population, as the noble Baroness, Lady Robson, pointed out—to insist on a safety committee for no other reason than that they are not trade unionists? It does not prevent the making or continuance of voluntary agreements, but it takes away the right of workers to ask for them. There is a serious division of opinion here and I think that we should reflect it in the Lobbies.
4.30 p.m.
On Question, Whether the said Amendment (No. 97A) shall be agreed to?
Their Lordships divided: Contents, 95; Not-Contents, 44.

CONTENTS

Aberdare, L.

Amulree, L.

Balfour of Inchrye, L

Abinger, L.

Armstrong, L.

Barnaby, L.

Amherst, E.

Balerno, L.

Belstead, L.

Berkeley, B.

Harmar-Nicholls, L.

Rockley, L.

Bourne, L.

Hawke, L.

Sackville, L.

Brentford, V.

Henley, L.

St. Aldwyn, E.

Bridgeman, V.

Hewlett, L.

St. Davids, V.

Brookeborough, V.

Killearn, L.

Salisbury, M.

Byers, L.

Kimberley, E.

Sandford, L.

Campbell of Croy, L.

Kinnaird, L.

Sandys, L.

Cathcart, E.

Lauderdale, E.

Savile, L.

Clwyd, L.

Long, V.

Selkirk, E.

Cowley, E.

Loudoun, C.

Skelmersdale, L.

Cullen of Ashbourne, L.

Macleod of Borve, B.

Somers, L.

Daventry, V.

Malmesbury, E.

Stanley of Alderley, L.

de Clifford, L.

Mancroft, L.

Strange, L.

Denham, L. [Teller.]

Merrivale, L.

Strathclyde, L.

Drumalbyn, L.

Middleton, L.

Strathcona and Mount Royal, L.

Ebbisham, L.

Monck, V.

Effingham, E.

Monson, L.

Strathclyde, L.

Emmett of Amberley, B.

Mowbray and Stourton, L. [Teller.]

Suffield, L.

Falkland, V.

Terrington, L.

Foot, L.

Northchurch, B.

Teviot, L.

Fraser of Kilmorack, L.

Norwich, V.

Thurlow, L.

Gage, V.

O'Neill of the Maine, L.

Vernon, L.

Gainford, L.

Orr-Ewing, L.

Vickers, B.

Garner, L.

Platt, L.

Vivian, L.

Goschen, V.

Porritt, L.

Wakefield of Kendal, L.

Gowrie, E.

Rankeillour, L.

Ward of North Tyneside, B.

Grenfell, L.

Reading, M.

Wieoder, L.

Gridley, L.

Rhyl, L.

Wise, L.

Grimston of Westbury, L.

Robson of Kiddington, B.

Young, B.

Hailsham of Saint Marylebone, L.

NOT-CONTENTS

Aberdeen and Temair, M.

Goronwy-Roberts, L.

Melchett, L.

Arwyn, L.

Hale, L.

Pannell, L.

Aylestone, L.

Harris of Greenwich, L.

Peddie, L.

Bernstein, L.

Henderson, L.

Phillips, B.

Birk, B.

Houghton of Sowerby, L.

Pitt of Hampstead, L.

Brockway, L.

Hughes, L.

Ritchie-Calder, L.

Buckinghamshire, E.

Jacques, L. [Teller.]

Segal, L.

Champion, L.

Janner, L.

Shepherd, L. (L. Privy Seal)

Collison, L.

Kirkhill, L.

Stedman, B.

Crook, L.

Leatherland, L.

Stewart of Alvechurch, B.

Crowther-Hunt, L.

Lee of Asheridge, B.

Strabolgi, L. [Teller.]

Donaldson of Kingsbridge, L.

Llewelyn-Davies of Hastoe, B.

Summerskill, B.

Feather, L.

Lloyd of Hampstead, L.

Wallace of Coslany, L.

Gaitskell, B.

Lovell-Davis, L.

Wigg, L.

Gardiner, L.

McLeavy, L.

Resolved in the affirmative, and Amendment agreed to accordingly.
4.39 p.m.
Lords SANDYS Lords SANDYS moved Amendment No. 98:
Page 87, line 15, leave out from ("unions,") to ("and") in line 16.
The noble Lord said: In rising to move this Amendment I would ask that we might also consider with Amendments Nos. 130, 131, 132 and 133. I should like to open my remarks by paying tribute to the comments of my noble friend Lord Gowrie, in his opening remarks on this clause, because your Lordships owe a great debt of gratitude to the noble Lord, Lord Robens of Woldingham, and his Committee in enunciating the principles which lie behind his comment upon the state of affairs.
I do not wish to repeat many of the valuable arguments which my noble friend Lord Gowrie has set before your Lordships in regard to this clause, but I should like to state that this Amendment, which interlocks with the previous one, relates exclusively to the law in regard to safety which applies to farm workers and those of cognate activity. Before us, we have the Health and Safety at Work etc. Act 1974. I should like to commend to your Lordships the present state of the law in this regard, because there is a very real feeling that what was established last year for the benefit of farm workers was something of which we can be proud. Every year we have, perhaps, rather too large a legislative harvest, but one of the particular features of the legislative harvest last year was this Act. Noble Lords in this House and

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Members in another place can feel proud that they have done something to assist in promoting a system which is worth while and should endure.
With regard to farm workers, at the present moment the Ministry is responsible for both drafting regulations and Codes of Practice, and their enforcement. It will be remembered that at the same time the Ministry is responsible for training. This should be very closely associated in your Lordships' minds with the practice of good safety. I have asserted, and feel extremely confident, that the industry as a whole recognises the present situation established in the Act, and the compromise reached with much difficulty last year was an important step towards higher standards of farm safety, which is common ground to all sides of your Lordships' Committee.
I was sad when the noble Lord, Lord Wigg, suggested that we should treat myth as a reality, because I do not believe that this is the right approach here. Some rather snide suggestions and assertions have been made in discussions in another place that agriculture is out on a limb and separated from the possible advantages to be derived from the thinking of the Safety Commission. Farm workers in fact will benefit considerably from the views of the Safety Commission. I would beg that your Lordships should look at Sections 12, 13 and 14 of the Health and Safety at Work etc. Act 1974. For instance, if I may weary your Lordships, though I will not quote at too great a length. Section 13 says:
"the Commission shall have power … to make agreements with any government department …".
It does not say, "the Commission shall override other Government Departments", but says that it shall make agreements with other Government Departments. This is very much in the spirit of the wording of the Act.
If I may further trespass on the patience of your Lordships, Section 14 is very important, because should something go wrong in industry, and particularly, perhaps, with regard to the Amendment in the agricultural industry, the Safety Commission have power to set up an inquiry into any accident, occurrence, or situation. Sections 29 to 32 empower the Minister of Agriculture and the Secre-
500
tary of State in Scotland to make all the necessary arrangements to perform their functions as drafting and enforcement authority for the safety regulations. We ought to consider the numbers concerned, because the farms associated with these regulations are approximately—and here I quote the Minister's own figures—65,000 farms where hired workers are employed and nearly 180,000 family farms, smallholdings and the like where there are no employees.
Taken together, these Amendments will replace the state of the law as it is at present. We believe the intentions of the Government are misguided in this regard. We believe it would be very worthwhile to leave the situation exactly as it is at the moment, for this excellent reason, that safety is being very well safeguarded by the officials of the Ministry. The Under-Secretary of State for Agriculture himself has responsibility for the Steering Committee. He is well provided with union representation on his Committee. The farm safety officers have the confidence of farmers, and in our view it is a situation which can command confidence not only inside but outside the industry.
Furthermore, I submit the present situation has a head start over other industries. Regulations have been advanced, while Codes of Practice, if not fully implemented, are at least in draft, and the situation is far in advance of what it could possibly be were the Safety Commission entirely responsible, as the Government have in mind. I beg the Government to re-examine the position, since I think there is a very strong argument for leaving this well alone.
4.46 p.m.
Lord MIDDLETON: This matter was thrashed out thoroughly in a debate in this House 14 months ago, and I will not weary your Lordships by spending too much time picking up the threads of the argument. Briefly, however, when the Government first introduced the Health and Safety at Work etc. Bill, agriculture was recognised as being special among industries, and its Minister was to retain his responsibility for farm safety. There was then the last-minute turn-around, and when the Bill reached this House last year, agriculture was no longer special; the responsibility

501
for farm safety was to go to the Health and Safety Commission. My noble friends and I were unconvinced that farming would become any safer by this organisational change, and so last year the Bill was amended to restore the responsibility to the Ministers of Agriculture. This decision was upheld in another place. As the noble Lord, Lord Sandys, told us, we now see in the Employment Protection Bill a short sentence in Clause 104 which, with its supporting Schedule 14, seeks to reverse the decision taken by both Houses of Parliament only a year ago.
I do not know anyone in the agricultural industry who is not concerned and distressed that their health, safety and welfare should become a kind of political football. It is not a Party matter at all. Everyone wants farming to be made safer. All are now agreed about the way in which the Inspectorate will operate. The point at issue is a purely administrative one—shall the Minister of Agriculture or shall the Health Commission have ultimate responsibility?
If one holds the view, as I do, that the Minister will do it as well, and probably better, then one must justify that by giving reasons why one disagrees with the Robens Committee recommendations on farm safety in saying that agriculture is a special case and should be treated differently from, for instance, coalmining or the construction industry. The chief reason given by the Government last year, before they changed their mind, was the special structure of the industry, where one had a multitude of small units scattered up and down the country. The existing method of carrying out inspection, instruction and enforcement of the farm safety regulations was, and is, very practical and economical. There were some 350 field officers whose duties took them to farms. While carrying out their other duties, they functioned as safety officers. This dual-purpose field inspectorate was responsible to divisional safety officers, and back to regional officers of the Ministry.
The organisation was adapted for the special structure of the industry, and for practical purposes one could use no other. It was thought that it would be anomalous to have field officers responsible to their own Ministry for part of their duties but to the Health Commis-
502
sion for another part. For instance, if the field officer came to check your crop acreage he would be doing it for his employer, the Ministry of Agriculture, but if in so doing he noticed a piece of defective machinery, he became an agent of the Commission and ultimately responsible to another Minister. Therefore, the argument ran, leave the system unaltered and let the Minister of Agriculture continue making and enforcing safety regulations backed up by the resources and the wide expertise of the Health Commission, which would always be available to him. Also, agriculture was special in having its own Department, its own Minister, already responsible for a fully functioning and trained inspectorate armed with specialised knowledge and expertise. Another speciality of the industry was that the employers—I think the noble Lord, Lord Sandys, referred to this—and self-employed actually out-numbered employed persons. On half the farms there were no employed persons at all.
But when all this was said one still had an open mind, and one listened a year ago last July with great care to the noble Lord, Lord Hughes. He took enormous trouble, and I must pay tribute to the courtesy with which he treated my noble friends and myself, and the trouble he took in explaining how, if the Commission were to be in charge of farm safety, the regulations would be made and enforced. The Bill would enable, though not require, the Secretary of State for Employment to use the Ministry of Agriculture safety staff in its entirety on an agency basis. The chain of responsibility would go from the field officer right back to the most senior civil servant at the Ministry of Agriculture, but at that point, and in safety matters only, the Permanent Under-Secretary would be responsible not to his boss, the Minister, but to the Health Commission. Yet the Minister of Agriculture would still retain the power to make safety regulations. It seemed to be a grave reflection on the capacity of Ministers of Agriculture to assume that they would not possess the efficiency, vigour and impartiality which it was hoped would be the hallmark of the Safety Executive. The fear of Departmental partial interest, and perhaps inertia, persuaded the Robens Committee and the unions, and at a later stage

503
the Government, not to trust future Agriculture Ministers with the responsibility for farm safety, and that fear is embodied in Clause 104 which we are looking at today.
Is it justified? Is farming getting safer? The accident figures are still distressingly high, but they are declining and not increasing. What the defects of the present system of inspection and enforcement were we were not told in the debate last year, but if it was defective in any way then, as I said last year, it may not be a matter of organisation; it may simply be a matter of numbers of inspectors. Since that matter was last debated, the Ministry of Agriculture can hardly be accused of lack of vigour over safety matters. The new cadre of full-time area safety inspectors has been created, and 60 of them took up their appointments, after special training, as early as last December; I believe there are now 75, so inspectorate numbers have increased. The Ministry of Agriculture last year set up a special steering group under the Secretary of State, to advise him and keep Departmental measures under review. I believe this group has been extremely active. I believe that the Ministry of Agriculture is better qualified than the Safety Commission to be responsible for safety measures specific to agriculture. I am sure your Lordships were right to insist last year that the Minister's responsibility should remain. Farm safety activity in his Department since then confirms this belief, which is also held by the farmers, and in view of the numbers in the industry who are self-employed, 64 per cent. of those who work on farms, their view should be given the most careful consideration.
The Secretary of State for Employment referred to us last year as the "comic old nobility" and the "built-in reactionary majority that performed monkey tricks" in insisting on amending the agricultural provisions of the Health and Safety Bill. There is nothing comic about a farmer having his ribcage crushed by a tractor or being gored by a bull; there is nothing comic about a farm worker having his legs sprayed by some chemical or having his lungs clogged with dust. Nor is there anything comic about the real concern that animates everyone in the industry that everything
504
that can be done to reduce accidents shall be done. And there is nothing comic about trying to get the administrative machinery properly set up. I believe the Government are wrong in this matter of organisation. The wording of this proposal is set out in the later Amendment No. 133. I am sure that the kind of compromise it seeks to achieve commends itself to farmers, and, I sincerely hope, will commend itself to the National Union of Agricultural Workers. The good industrial relations which are such a benefit to agriculture are very precious. I beg them and the Government to consider very carefully whether perhaps in the end this may be the most satisfactory solution.
4.57 p.m.
Lord MELCHETT: Once again these arguments have been rehearsed many times, and I am sure noble Lords would not want me to speak at any great length. I should like to make two points to support the Government's view; first, to emphasise the need to avoid perpetuating a totally unjustified discrimination against agricultural workers; and, secondly, to emphasise the disadvantages and dangers of leaving agriculture in a special position in health and safety legislation. I am a fanner, and I simply cannot imagine that any modern farmer can really believe that there is not a large and growing area of common ground between agriculture and the remainder of industry. The Health and Safety Commission and the Health and Safety Executive are specifically and solely concerned with health and safety matters. The Government consider it right in principle that this new health and safety organisation should assume responsibility for health and safety in agriculture in the same way as for all other industries. We remain firmly of this opinion, since the safety hazards met on most farms are already similar to many common industrial hazards and this similarity is increasing all the time; for example, dangers from machinery and electrical equipment, toxic and dangerous substances such as some pesticides, fungicides and fertilizers, and dust. The so-called common accidents, slipping, falling, cuts and so on, are just as common, if not more so, on the farm as in the mine or the factory. Even the dangers which face those handling animals can be equated with those met with by

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workers in zoos, slaughterhouses, markets, transport industries and the docks.
Amendment No. 133, proposed by noble Lord opposite, which would require the Health and Safety Commission to report to the Secretary of State and the Agriculture Ministers is, in our view, unnecessary. The Commission is already required to make to the Secretary of State, as soon as possible after the end of each accounting year, a report on the performance of its functions during that year. In addition, full consultation between the Commission and the Agriculture Departments is already established practice. The Agriculture Departments must be consulted about any proposals for regulations or codes of practice which will or could possibly affect agricultural health and safety.
I do not want to go into great detail about the arguments; as I say, they have been covered before. The noble Lord, Lord Sandys, spoke of the power of the Commission under the Health and Safety at Work Act, Section 14, to direct investigations and inquiries. I should like to draw his attention to the last few lines of subsection (2) of Section 14, where it says—and it is here talking about the power of the Commission to direct investigations—
"The Commission … shall not do so in any particular case that appears to the Commission to involve only matters relating exclusively to agricultural operations."
The noble Lord, Lord Sandys, spoke of the progress being made in the agricultural industry since the passing of the Act. This has been reasonable rather than remarkable progress. The Robens Report followed by preparations for the Health and Safety at Work Bill, and the passing of the Act itself, together gave an impetus to health and safety in agriculture in exactly the same way as they did elsewhere. Apart from setting up the Farm Safety Steering Group, which could, and perhaps should, have been done many years ago, what has been achieved is comparable in our view with achievements in previous years, and is certainly not in any way more outstanding than what has been achieved in the rest of industry.
The noble Lord, Lord Middleton, spoke of some statistics. I too, would direct your Lordships' attention to some statis-
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tics An examination of the figures that I shall give directs attention, perhaps even more strongly than I have already done, to the common ground shared by agriculture with other industrial work. As an example, in the three years 1972 to 1974 a comparison of fatal accidents in agriculture and factories shows the following. Falls from ladders and stairs resulted in five deaths in agriculture and 35 in factories, which is an incidence rate per 100,000 workers of 0·3 in agriculture and 0·2 in factories. Fatalities due to electricity were 11 in agriculture and 47 in factories, which is an incidence rate of 0·2 per 100,000 employees in factories, and 0·6—three times as many—in agriculture. There were four deaths in agriculture due to poisoning or gassing, and 23 in factories; twice as many deaths per 100,000 employees in agriculture as in factories. These figures speak for themselves. I am tempted to ask noble Lords opposite just how many extra agricultural workers need to die to put the agricultural industry in the cosy special position which noble Lords opposite seem so keen to perpetuate.
Lord HAWKE: Would the noble Lord say what practical steps will be taken as the Bill stands? I understand that there will be two services; the agricultural inspectorate and the Ministry of Nealth inspectorate. Presumably they have to be amalgamated in some way. Will the agricultural experts inspect factories and the factory experts inspect agriculture, or are they to be kept separate, or are the agricultural ones to be made redundant?
Lord MELCHETT: I can give the noble Lord an assurance on that point. The chairman of the Health and Safety Commission has himself given an assurance that he is determined to maintain the momentum created in recent months by the work of the Farm Safety Steering Group. The Commission proposes to establish a series of advisory committees for the major industries, and has suggested that one of these should cover health and safety in agriculture. The chairman has said that he would want to see the Farm Safety Steering Group continue its work until such time as it might be carried forward by more general arrangements acceptable to the agricultural industry.
Lord HAWKE: Has the noble Lord any idea which is the cheapest method of carrying out this work—the agricultural inspectorate or the new health and safety committees, and so on?
Lord MELCHETT: I think I have made it clear that the Government are in no doubt that the most efficient way of protecting the health and safety of agricultural workers is by including them in the general provisions of the Health and Safety at Work Act.
Lord COLLISON: The noble Lord will remember that when we were debating the Health and Safety at Work Act I spoke strongly, complaining about the exclusion of agriculture at that time. It would therefore be churlish of me—and I do not want to repeat the arguments I used then—if I did not put on record my appreciation of what is now proposed, and assure my noble friend on the Front Bench that this will be welcomed by the Agricultural Workers' Union.
5.5 p.m.
Lord SANDYS: I should like to refute some of the arguments which the noble Lord, Lord Melchett, has stated. We on this side of the Committee feel particularly distressed that the Government have adopted this position. The noble Lord, Lord Melchett, is a practical farmer whose views we must respect, and we must naturally also respect the views of the noble Lord, Lord Collison, who has pre-eminent knowledge of his former union, the National Union of Agricultural Workers, whose approbation—if that is not too strong a word—towards the Bill as it stands is acknowledged on this side of the Committee.
There are arguments here which may be set against what the noble Lord, Lord Melchett, has said. May I quote my own humble experience on a county agricultural executive committee in regard to safety some years ago. I think that safety statistics are misleading by comparison with industry. There is one fundamental reason for this. In a factory one has what might broadly be termed a predetermined situation. Line management can promote processes which are predictable in many instances. The same can hardly be said to be the case on farms, where very often a large number of decisions have to be made by individual workers
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whose skill and expertise are very much part and parcel of the job. Perhaps one can quote from situations which exist, and very often accidents happen to very skilled workers. It is the unpredictable that happens on the farm. It is not necessarily clumsiness or a lack of knowledge of the situation. It is the unpredictable.
Lord MELCHETT: I apologise for interrupting, and I do not want to prolong the debate, but I wonder whether the noble Lord would accept that exactly the same arguments apply to building workers—particularly jobbing building workers who are away from their firm on all the jobs they are doing—and other contractors such as window cleaners, and so on.
Lord SANDYS: In this industry I do not feel that my experience is necessarily so wide. I accept that the degrees of risk may be somewhat similar, but once again we are short of statistics for comparison in this case. The noble Lord quoted his statistics for agriculture and industry as a whole, and I accept that there are probably building trades associated with industry among those figures.
The noble Lord, Lord Melchett, suggested that there were strong disadvantages for farm workers, and the noble Lord, Lord Collison, reflected that in his own view. I attempted in my earlier arguments to suggest that this was not a position which we felt was altogether true. The Health and Safety at Work regulations permit the flow of ideas from the Health and Safety Commission to reach the Ministry of Agriculture and their officials. The chain of communication is such that the advice and knowledge of the bodies can be extremely helpful and can interchange.
The noble Lord, Lord Melchett, cast doubt on the progress made within the agricultural industry, and I think he was a little unfair to reflect that not much had been achieved in previous years. Those who have been members of a Farm Safety Committee would feel that this was an unfair reflection on their activities. I do not wish to prolong the debate. We feel strongly on this matter, and I much regret that we will have to resort to the Division Lobby in order to solve the situation.
5.9p.m.
On Question, Whether the said Amendment (No.98) shall be agreed to?
Resolved in the affirmative, and Amendment agreed to accordingly.
5.19 p.m.
Clause 107 [Excluded classes of employment]:
Lord SANDYS Lord SANDYS moved Amendment No. 99:
Page 88, line 40, at end insert:
("( ) The following provisions of this Act do not apply to any employment in an undertaking in which immediately before the effective date of termination there were in the aggregate
Their Lordships divided: Contents,85: Not-Contents,53.

CONTENTS

Aberdare, L.

Gowrie, E.

Rankeillour, L.

Amherst of Hackney, L.

Grenfell, L.

Reading, M.

Armstrong, L.

Gridley, L.

Redesdale, L.

Auckland, L.

Grimston of Westbury, L.

Rhyl, L.

Balerno, L.

Hailsham of Saint Marylebone, L.

Ridley, V.

Barnby, L.

Rockley, L.

Belstead, L.

Hanworth, V.

St. Aldwyn, E.

Berkeley, B.

Harmar-Nicholls, L.

Salisbury, M.

Birdwood, L.

Hawke, L.

Sandford, L.

Bourne, L.

Hewlett, L.

Sandys, L.

Brookeborough, V.

Ironside, L.

Savile, L.

Campbell of Croy, L.

Killearn, L.

Selkirk, E.

Cathcart, E.

Kimberley, E.

Skelmersdale, L.

Clwyd, L.

Kinnaird, L.

Somers, L.

Cowley, E.

Lauderdale, E.

Stanley of Alderley, L.

Cullen of Ashbourne, L.

Long, V.

Strange, L.

Daventry, V.

Loudoun, C.

Strathclyde, L.

de Clifford, L.

Mancroft, L.

Strathcona and Mount Royal, L.

De L'Isle, V.

Merrivale, L.

Denbigh, E.

Meston, L.

Suffield, L.

Denham L. [Teller.]

Middleton, L.

Terrington, L.

Digby, L.

Monck, V.

Thurlow, L.

Drumalbyn, L.

Monson, L.

Tweedsmuir, L.

Dundee, E.

Mowbray and Stourton, L. [Teller.]

Vernon, L.

Ebbisham, L.

Vickers, B.

Emmet of Amberley, B.

Moyola, L.

Vivian, L.

Falkland, V.

Northchurch, B.

Ward of North Tyneside, B.

Fraser of Kilmorack, L.

O'Neill of the Maine, L.

Wise, L.

Gainford, L.

Porritt, L.

Young, B.

Goschen, V.

NOT-CONTENTS

Aberdeen and Temair, M.

Foot, L.

Pannell, L.

Amherst, E.

Gaitskell, B.

Peddie, L.

Arwyn, L.

Gardiner, L.

Phillips, B.

Aylestone, L.

Goronwy-Roberts, L.

Pitt of Hampstead, L.

Bernstein, L.

Hale, L.

Platt, L.

Birk, B.

Harris of Greenwich, L.

Ritchie-Calder, L.

Boothby, L.

Henderson, L.

St. Davids, V.

Brockway, L.

Houghton of Sowerby, L.

Segal, L.

Brown, L.

Jacques, L.

Shepherd, L. (L. Privy Seal.)

Champion, L.

Janner, L.

Stedman, B.

Collison, L.

Kirkhill, L.

Stewart of Alvechurch, B.

Cooper of Stockton Heath, L.

Leatherland, L.

Strabolgi, L. [Teller.]

Crook, L.

Llewelyn-Davies of Hastoe, B.

Summerskill, B.

Crowthcr-Hunt, L.

Lloyd of Hampstead, L

Wallace of Coslany, L.

Donaldson of Kingsbridge, L.

Longford, E.

Wigg, L.

Douglass of Cleveland, L.

Lovell-Davis, L.

Wigoder, L.

Feather, L.

Melchett, L.

Winterbottom, L. [Teller.]

Fisher of Camden, L.

Norwich, V.

(including the dismissed employee) less than four employees who had been continuously employed for a period of not less than thirteen weeks, whether they are, or had been, all employed at the same place or are or had been employed at different places, that is to say sections 37 to 44, 53, 62, 63to 71, and 90 to 98.").
The noble Lord said: This Amendment duals with excluded classes of employment and I can deal with it briefly. Under Part II of the Bill, which is concerned with the rights of employees, and under Part IV, which is concerned with the procedure

511
for handling redundancies, there is a particular case for small businesses. On an earlier Amendment to Clause 93, on which my noble friend Lord Gowrie referred to the problems of smaller firms, the situation was cognate with that here. We feel strongly that there is a case with small businesses, especially in the farming industry where there are extremely few employed persons and in some cases none at all, that there should be this exclusion which should apply as written into the terms of the 1974 Act. If noble Lords wish me to develop the argument at length I am prepared to do so, but I feel that what I have said is probably sufficient, I beg to move.
Lord MIDDLETON: No one wants to create a category of second-class citizens just because they are employed in very small businesses, but small firms are in considerable difficulties at this time and it cannot be denied that many of the provisions of the Bill will increase the problems of small employment units. I believe that one should balance the not excessive hardship that employees in very small firms may suffer by being excluded from the rights given under the sections listed in the Amendment, against the additional burdens that would be placed upon the small employers. These people make a not inconsiderable contribution to providing jobs, and there must be many to whom this extra statutory duty may be decisive in making the decision whether or not to retain or recruit employees.
As my noble friend Lord Sandys pointed out, the four-man business will, for instance, include most farmers who are employers of labour. To take an example from agriculture, Clauses 90 to 98 impose a duty on an employer to consult with a trade union in a prescribed manner on making anyone redundant. This seems rather absurd in the case of a farmer employing two or three men. If he has to make a man redundant, there is nothing much that the National Union of Agricultural Workers can do about it. It cannot force a farmer to go on employing a man if he cannot afford it and it does not normally act as an employment exchange in finding alternative work. The Government promised in Committee in another place to have special consideration for the small businessman and I join with my noble friend Lord Sandys in
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hoping that they will feel that the Amendment will give them the opportunity to do just that.
Lord HAWKE: I wonder whether the questions which I am about to ask could be answered on the present Amendment, though they are not entirely relevant. This would save time rather than that I should ask them on the Question, That the Clause stand part. How does subsection (7), combined with Clause 90, affect seasonal employment? I can see that any seasonal employment which is for a fixed term of 12 weeks or less is excluded from the provisions of Clause 90. On the other hand, I do not feel that 12 weeks is a long enough period to cover a great deal of what one might call seasonal employment. In this connection, I can think of hotel work in the seaside resorts, which would be for perhaps six or seven months; of canning factories, which I believe work for parts of the year; sugar refineries have a season, too. Other people will be able to think of all sorts of employment which is for a season. The employer does not know precisely when that season will end when he takes on a person, but the implied contract is that the employee will stay until the job is finished for the season. It may very well be that the job will be for more than 12 weeks. However, seeing that the employee is, strictly speaking, a seasonal worker, I should have thought that he ought to be excluded from the consultations and so on which have to be carried out under Clause 90, because he knows perfectly well that his work will be completed at the end of the season and that he will not be required further.
Lord COLINSON: I must protest again about the proposed exclusion of farm workers, though I realise, of course, that, as compared with farm workers, a very much larger number of people in other employments will be affected. Once again, what is happening is that farm workers are being made into second-class citizens. Those words were used by the noble Lord, Lord Middleton, in speaking to the Amendment. The history of farming and farm workers is that all along the line they have initially been left out when advances have been made. They were left out of the original Social Insurance scheme for pensions and sick pay. Up to now they have been left out of the

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general provisions for accident prevention, and now it is proposed that they should be excluded in this way. I mentioned earlier that I had spoken strongly about their exclusion from the safety and welfare provisions when the Bill was introduced in 1974. I did not want to repeat myself and I have done so a little, but I must stress that I feel very strongly about proposals of this kind which are aimed at putting farm workers into a different position from most other workers in this country.
5.29 p.m.
Lord JACQUES: The Amendment seeks to exclude from five of the provisions of the Bill employees whose employer has less than four employees. The first exclusion which it seeks is exclusion from the maternity provisions. I should have thought that farmers would not be very much involved with this particular provision. I remind the Committee that the individual has to be in the employment for two years before there is any payment at all. Then, the payment is only for six weeks and it is by no means full wages. It is nine-tenths of the wage less the State allowance, which is at present £9.80 a week, so that it is considerably less than full wages for a limited period of six weeks. I must also stress another point. Is this exemption to be claimed if there is a proposal to pool the payments for maternity so that all employers pay a small percentage of the payroll? In those circumstances, would exemption still be claimed for the small firm? I believe that that must be faced up to.
As to re-engagement, I can understand that in the case of the small business there is a little difficulty in regard to re-engagement after a period of absence on the part of the employee. But I must point out that here again this will apply only to those who have been in the Service for two years, those who have given notice on the eleventh week before the confinement, and even afterwards, when they want to return, they have to give notice when they are doing so, and the employer can postpone the return up to a period of four weeks.
Industry, including the small firm, is already facing up to far greater difficulties in this area. Absences arising from
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ordinary sickness are far greater than absences due to maternity are likely to be. Because there has been this inevitable absence during sickness in the past, there has grown up means whereby temporary employees are available. For example, in the case of clerical work there are agencies which provide temporary employment to cover sickness, maternity or any other absence. Therefore facilities for the temporary replacement of employees who are absent sick can be applied in the case of maternity, and are there.
A second area of the Bill where the exclusion is sought is that concerning time off to look for work or to make arrangements for retraining. Surely because an employee works for a small firm he should not be denied the facility to look for other work if he is made redundant. This facility applies only where the employer has made the employee redundant. It does not apply in any other case. An application for time off must be reasonable and the maximum that can be allowed with pay is two days. Surely it is petty to claim exemption for small firms in a matter of this kind.
There is another area where exemption is sought. This is that small firms should be exempt from giving a written statement of reasons for dismissal. Surely if the employee of a large firm has a right to a written statement of reasons for dismissal, the employee of a small firm obviously has the same right. There is no good reason for discriminating between the two.
The fourth area with which we are dealing relates to unfair dismissal. I am sure that it would be patent to everybody that if someone is unfairly dismissed it does not matter a damn whether it is a small firm or a large firm that is involved; that employee is unfairly dismissed! The Amendment seeks to exempt the employee of the small firm not from complaining but from having any remedies. Let us be clear on that. In the Bill as it stands all employees have the right to complain if they think that they are unfairly dismissed.
Secondly, all employees, if they are shown to be unfairly dismissed, have the right to the remedies. This Amendment is trying to provide that those who are employed in small firms shall have

515
the right to complain but shall not have remedies. This proposal is ridiculous and it goes right through the Amendment! Let me deal with the last point; that is, redundancies. All that a small firm has to do is simply to inform the trade union. There is no other obligation from which exemption is sought. Exemption is sought from simply informing the trade union of the redundancy.
I suggest that when analysed in detail this Amendment is seen to be absurd. Our position is quite clear. We are proceeding with this type of legislation be cause we want to bring this country—in terms of labour legislation—into line with the EEC. To the best of our know ledge, and looking at all the evidence available to us, we know of no case in the EEC where there are these kind of exemptions for small firms. Such exemptions would put us out of line with the EEC, and would put us in difficulties when there is a Directive seeking uniformity.
Our position on this matter was very well stated by Mr. Carr when he was Minister of Employment. On 18th October 1971 he was introducing the Code of Industrial Relations Practice under the 1971 Act, and what he said is reported in Volume 823 at column 391 in the Official Report. In accordance with the practice of your Lordships' House I shall not quote his words, but rather paraphrase what he said. Mr. Carr said that he had received strong representations from small firms, and while he appreciated their difficulties he felt that one fundamental feature of the Code was the universal applicability, and that must be retained. That is what we feel in regard to this Bill: the universal applicability is a fundamental feature.
Mr. Carr went on to say that to depart would weaken the influence of the Code and the incentive to good industrial relations. He further said that it would make a too easy gateway of excuse for those people who were not prepared to go ahead with better industrial relations. That is exactly what we feel in regard to this Bill. By creating this small gateway to let out a small firm we would be giving the excuse for those who are not prepared to face up to the fact of proper employment protection.
516
We feel rather strongly on this Amendment, as noble Lords might gather. An exclusion of the kind proposed in the Amendment raises issues of principle. The Government find it quite unacceptable that employees in small firms should receive a lower standard of protection than those in larger firms. We cannot accept that an individual employee should be excluded from the important rights provided by the Bill simply because his place of work happens to be a small undertaking rather than a large one. I feel so strongly about this that if the Committee carry the Amendment I should regard it as a travesty of justice.
5.37 p.m.
Lord SANDYS: The noble Lord, Lord Jacques, has set before your Lordships the Government's case with a degree of knowledge and, if I may say so, a degree of passion which indicates that we must tread warily in this field. The situation is quite clear. The small firm and the small business, not only in this country, but in Europe and in many parts of the world, feel many of the same currents of competition and problems, which are universal. In Canada, and I understand in various other territories, this situation is treated by having a Minister within the Government concerned, who is responsible for the affairs of small firms and small businesses; and this does not apply to one territory alone.
The noble Lord, Lord Jacques, referred to the situation within the EEC. This is very important, because every day we increase our contact and our communication in regard to administration in Europe. It is our view on this side of the Committee that some new channel of communication, some Ministerial responsibility for small firms, could be beneficial in this regard; and many of our partners in Europe believe the same thing.
It is probably not appropriate to quote chapter and verse at the moment, and indeed I do not have the information regarding the regulations before me. But with regard to the remarks of the noble Lord, Lord Collison, I hope that he will acquit me and my noble friend Lord Middleton of anything which we said—and I am sure that we did not say it—with regard to the position of agricultural workers. It has never been, and

517
is not now, our intention to produce circumstances in which agricultural workers are any less favourably placed than any other workers. Indeed it is absurd to make this suggestion. I am sure that the noble Lord did not mean it, and I hope that he will acquit me of making that assertion.
The noble Lord—as indeed did the noble Lord, Lord Jacques—referred to the position regarding reasons for dismissal et cetera. We are on common ground on many points. We put down this Amendment as a probing Amendment, and it would be for the benefit of your Lordships, and certainly for the benefit of good administration in this field, if I were to withdraw the Amendment, reserving my absolute right to return to this matter with Amendments at a later stage in the Bill.
Lord COLLISON: I would never accuse the noble Lord opposite of seeking to create a situation in which agricultural workers were inferior. This is not a personal matter at all. But the fact remains that over the years agricultural workers have always found themselves treated less well than work people in the other great industries. The case is there to be seen. When social security was introduced initially farm workers were left out.
When we get into the field of industrial negotiations on things like hours, overtime and holidays agricultural workers always brought up in the rear, and indeed they still do. I know that this is not the place to debate other issues, but in terms of what they can take home, again they are way behind the take-home pay of other work people.
I am saying all this simply to make it clear that I should be horrified if I thought myself capable of making a personal accusation of the type which the noble Lord opposite thought perhaps might be inferred. It certainly was not. But I stand by my statement that agricultural workers feel themselves treated as second-class citizens and this is another example of the type of action which makes them feel just that.
Amendment, by leave, withdrawn.
5.41 p.m.
The Earl of GOWRIE The Earl of GOWRIE moved Amendment No. 99A:
Page 89, line 14, leave out ("16") and insert ("21").
The noble Earl said: With the leave of the Committee, I should like to speak at this time to my Amendments to Schedule 15 and I would remind your Lordships that those are Nos. 142A to 142J. All these Amendments are concerned with the definition of part-time employment. They should all be taken together as the same principle applies to them. The definition is based on the provisions of paragraphs 3 and 4 of Schedule 1 to the Contracts of Employment Act 1972 which paragraph 13 of Schedule 15 to this Bill seeks to amend. The emphasis must therefore be placed on the above Amendments to Schedule 15. The Amendments to Clause 107 are virtually consequential. Paragraph 3 of Schedule I to the Contracts of Employment Act lays down that:
"Any week in which an employee is employed for twenty-one hours or more shall count in computing a period of employment."
Paragraph 4 goes on to say:
"Any week … governed by a contract of employment … for twenty-one hours or more weekly …"
shall similarly count.
The rights provided under the Act are subject to employees completing certain specified periods of employment so that anyone who works for less than 21 hours a week does not qualify for them. Similarly, under the Redundancy Payments Act, employees who work for less than 21 hours a week do not qualify for redundancy payments. This delineation follows the accepted definition of full-time and part-time work in industry. Employees who work 21 hours or more are regarded as full-time workers and those who work less than 21 hours are regarded as part-time workers. The length of the normal working week for manual workers in this country is generally taken as 40 hours; some work more, of course, and some less. White-collar workers generally have a shorter working week, but on the other hand the average week actually worked by full-time adult manual workers is normally about 44 to 45 hours. It is significant that the EEC recommendation on the application of the 40-hour week and four weeks' annual

519
holiday lays down that member countries should aim at implementing the 40-hour week by the end of 1978. It is perhaps even more significant that the Government's temporary employment subsidy scheme excludes anyone working on average less than 21 hours a week.
On this basis it is clearly logical and reasonable that anyone who works only half the normal working week; that is to say less than 20 hours, should be classed as a part-timer. He is not fully committed in hours to his employment and since one full-timer can do the work of two or more part-timers, part-timers have traditionally been entitled to less privileges than full-timers. That would only seem to be equitable.
The effect of certain of the provisions of this Bill would be to change the definition of a part-timer from a person who works less than 21 hours a week to one who works less than 16 hours. Further, the Bill also provides that a person who has been employed for only eight hours a week for five years should be treated as full-time. Clause 107(8) to (11) then goes on to provide that only employees who work less than 16 hours a week or who have worked between eight and 16 hours a week for less than five years, shall not be entitled to time off under Clauses 49, 50 and 51 and not entitled to itemised pay statements. Our Amendments seek to retain the present definition of a part-timer as a man who works less than 21 hours a week and as a compromise to allow a man who has worked for 16 hours a week for five years to be regarded as a full-timer. I beg to move.
Lord JACQUES: Although at first sight it would appear that these are a complicated set of Amendments, their objective is quite simple. The Amendments seek to maintain the existing limit of 21 hours a week for the exclusion of part-time employees from statutory rights based on their employment. The only concession made to progress would be to enable employees whose weekly hours of work are reduced below 21 but not below 16 to retain their eligibility for 26 weeks and to enable employees who normally work for between 16 and 21 hours to qualify for certain rights after they have completed five years' continuous service with an employer.
520
The Bill as it stands would exclude 9 per cent. of working women from the protection of the Bill—the 9 per cent. work less than 16 hours. The Amendment would exclude not 9 per cent. but 20 per cent. who work less than 21 hours. In the past, the exclusion of part-timers from rights to employment has been justified largely on the basis that people who take a part-time job are working only for pin-money. But this conception of part-time employment is just not valid. The findings of the Finer Report have demonstrated the vital importance of part-time employment to many single parents. There is plenty of evidence to show that part-time employment of working mothers contributes an essential part of the income of the lower income families. In our view, employees whose working hours are restricted by unavoidable domestic commitments should not be deprived of rights that are available to other employees who are free from those commitments.
We accept that there comes a point where a part-time employee's relationship with his employer is so tenuous that his employer should not be expected to grant him the sort of rights conferred by this Bill. However, we take the view that where an employee works for the equivalent of two full days a week for his employer he should not be excluded from the protection afforded to employees who are free to work longer hours. With this explanation, I ask the Committee to reject this Amendment.
The Earl of GOWRIE: It seems to me curious that the noble Lord, Lord Jacques cited the question of women who work part time in connection with my Amendment. Surely the noble Lord is not suggesting that a woman who works part-time—for pin-money as he put it—should be entitled to redundancy payment if her employer can no longer afford to keep her after five years. He said that my conception of part-time employment would not hold. I cannot accept that his does. Of course those of us who, with the Finer Committee, care for the problems of single parent families, for women on their own bringing up children and who can work only at certain hours of the day, surely cannot accept this provision.
I think the noble Lord also skirts over the cost to industry of the exention of the provision of benefits under this Part of the

521
Bill to employees generally. I suggest that this is not a good time for adding to industry's costs. I should think—and I will not press the Amendment for this reason—that working people themselves will in time pressure the Government to reform this Part of the Bill. This is because the increase in costs under these provisions will mean rather less jobs being given on a part-time basis. Even now it is cheaper to employ one 40-hour week worker than two 20-hour workers. If the part-timers later become still more expensive, as we contend they will, the result will be fewer jobs for them. I contend that this would hit particularly hard the married woman and those other classes of workers cited by the noble Lord; Lord Jacques, who find it essential to work but cannot work full time because of family commitments. I think that in their own interest the Government should look at this again. If they do not, there will be considerable pressure from working people, from single-parent families and the like to amend it. I beg leave to withdraw my Amendment.
Lord HAWKE: I wonder whether the noble Lord, Lord Jacques, is in a position to reply to the queries that I made when speaking on Amendment No. 99; or would he like me to repeat my speech?
Lord JACQUES: The period of 12 weeks was fixed in consultation with the Agricultural Departments and we are advised that this would cover the vast majority of seasonal workers in all industries.
Amendment, by leave, withdrawn.
Clause 107 agreed to.
Clause 108 agreed to.
Clause 109 [Application to Crown]:
5.52 p.m.
Lord JACQUES: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 94, line 22, at end insert—
("(e) the reference in section 18(1)(e) above to the employer's undertaking shall be construed as a reference to the national interest; and
(f) any other reference to an undertaking shall be construed, in relation to a Minister of the Crown, as a reference to his functions or (as the context may require) to the department of which he is in charge and, in relation to a government department, officer or
522
body, shall be construed as a reference to the functions of the department, officer or body or (as the context may require) to the department, officer or body.").—(Lord Jacques.)
On Question, Amendment agreed to.
Clause 109, as amended, agreed to.
Clause 110 agreed to.
Clause 111 [Financial provisions]:
Lord MELCHETT: I spoke to this Amendment when advising the Committee to leave out Clause 34. I beg to move.
Amendment moved—
Page 95, line 28, at end insert ("except sums which are expressly required to be paid into the Redundancy Fund or the National Insurance Fund.
(5) As respects any increase attributable to the provisions of this Act in the expenses which under section 135(3)(a) of the Social Security Act 1975 are to be paid out of moneys provided by Parliament, subsection (1)(b) above is without prejudice to the provision made by subsection (5) of that section for reimbursement out of the National Insurance Fund.")— (Lord Melellett.)
On Question, Amendment agreed to.
Clause 111, as amended, agreed to.
Clause 112 agreed to.
Clause 113 [Interpretation]:
Lord JACQUES: This is a drafting Amendment simply to bring the clause into line with a similar provision in Section 29 of the Trade Union and Labour Relations Act 1974. I beg to move.
Amendment moved—
Page 96, line 13, after ("to") insert ("or connected with").—(Lord Jacques.)
On Question, Amendment agreed to.
Clause 113, as amended, agreed to.
Clause 114 agreed to.
Clause 115 [Northern Ireland]:
Lord JACQUES: This is purely a drafting Amendent to tidy up some rather loose wording. I beg to move.
Amendment moved—
Page 99, line 34, leave out from ("and") to end of line 35 and insert ("the Northern Ireland Redundancy Fund.").—(Lord Jacques.)
On Question, Amendment agreed to.
Clause 115, as amended, agreed to.
Clause 116 agreed to.
Schedule 1 [Advisory, Conciliation and Arbitration Service]:
Lord SHEPHERD Lord SHEPHERD moved Amendment No. 104:
Page 102, line 44, at end insert ("such an appointment shall not be made without the consent as to terms and conditions of service of the Secretary of State, and such consent shall not be given without the approval of the Minister for the Civil Service.")
The noble Lord said: In moving Amendment No. 104, with permission I will speak to Amendment No. 106. Amendment No. 104 remedies an omission in Schedule 1, paragraph 6. As drafted, it lacks any provision for terms and conditions of service for the Secretary of State when he is appointed under that paragraph. The Secretary of State's consent to the terms and conditions is to be required; also the approval of the Minister for the Civil Service is required. This is the usual formula which appears elsewhere in the Schedule.
Amendment No. 106 has the effect of removing paragraph 30, which is no longer necessary when the amendment to paragraph 6 has been made, taken in conjunction with paragraph 7, which provides terms and conditions for other officers and servants of the Service. I beg to move.
On Question, Amendment agreed to.
Lord SHEPHERD: I beg to move Amendment No. 106 formally.
Amendment moved—
Page 106, line 32, leave out paragraph 30.—(Lord Shepherd.)
On Question, Amendent agreed to.
Schedule 1, as amended, agreed to.
Schedules 2 to 10 agreed to.
Schedule 11 [Extension of terms of conditions]:
6.0 p.m.
The Earl of GOWRIE The Earl of GOWRIE moved Amendment No. 125A:
Page 141, line 11 after ("conditions") insert ("substantially less favourable than").
The noble Earl said: We now come to the second of our debates on the extensions of the terms and conditions of
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employment—our first debate having taken place on Clause 4 on the first day of the Committee stage last Monday. No part of the Employment Protection Bill has been the subject of more misunderstanding and controversy than Schedule 11, which repeals Section 8 of the Terms and Conditions of Employment Act 1959 and seeks to establish a new system for raising substandard pay and conditions combining features both of Section 8 and of the Fair Wages Resolution. Clause 89 of the Employment Protection Bill provides for the repeal of Section 8, as I have said.
Part I of Schedule 11 provides that an employers' association or an independent trade union having members in a relevant trade, industry or section in a district, may make a claim to the Central Arbitration Committee of ACAS that an employer is applying to his employees terms and conditions less favourable than the recognised terms and conditions (this term includes national minimum rates established by industry agreement). If the Central Arbitration Committee find the claim to be well-founded, it may order the employer to observe the recognised terms and conditions, accordingly. Where there are no recognised terms and conditions, the same procedure may be used to claim that the terms and conditions being applied by an employer are less favourable than the general level. The Schedule goes on to define the general level as those terms and conditions observed for comparable workers by employers in the same trade, industry or section, in the same district, whose circumstances are similar.
The first limb of this provision, dealing with the situation where recognised terms and conditions exist, is virtually the same as Section 8 of the 1959 Act. It is not expected to give rise to any new problems, and we are not contesting the principle here. The second limb, which provides for comparisons with the general level, is new in that it applies to the whole of industry a provision for the Fair Wages Resolution, which at present applies only to Government contractors. It is this second limb which, in our view, is likely to prove dangerous in terms of industrial relations, and, in terms of the national economy, highly inflationary. The difficulty arises from the imprecise nature of the term "the

525
general level of terms and conditions", and the consequences that are likely to flow from giving all employees who are employed on less favourable terms the right to be brought up to the general level.
We understand from various Government statements that the purpose of these provisions is to deal with small pockets of low paid workers. In Standing Committee in another place the Minister of State for Employment provided an example of how he envisaged these provisions would work. He suggested that where there are ten companies, of which two are high payers, seven pay about the same and one is a low payer, these provisions could be used to claim that the one low payer should be brought up to the level of the seven, though he did not say which one of the seven. Unfortunately, the Minister of State's example is not, in our contention, typical of the situation in industry. In reality, even in a geographical district, there will be a broad spread of wage rates which may vary by as much as 50 per cent. or 100 per cent. from top to bottom. In simple language, some employers are better off than others. A fairly usual spread, if illustrated in the form of a graph, will produce a bell-shaped curve, with a small number paid at the top rates, a growing number in the middle ranges, and fewer at the lower rates. It is not uncommon, however, in some districts, to find a completely haphazard spread.
How then are we to interpret these provisions in this kind of case? In Standing Committee, one Labour Member of Parliament suggested a simple solution: in his view it meant that everyone below the average for the district should be brought up to the district average. He apparently saw nothing wrong in suggesting that comparable wages should be paid for comparable work, but a moment's thought will surely demonstrate the highly inflationary and dangerous procedure that this would introduce. It is a simple statistical exercise to show that the theoretical effect of raising to the average all those who fall below it, is eventually to raise everyone to the highest. In practice, of course, long before this happens the highest paid will have sought to restore the differentials, leading to a mad chase for higher
526
wages and the inflationary consequences with which we are so familiar.
Besides its potential for wage escalation, the term, "the general level of terms and conditions", poses another very real danger. If it means anything like the average district rate, it will almost certainly be higher than the rates laid down in the majority of industry-level agreements, all except one of which lay down rates which individual employers may, and generally do, exceed. If this procedure is used to any great extent, it will provide a very strong incentive to trade unions to abrogate their national agreements. National agreements, even when they lay down minimum rates, are a strong stabilising factor. Their abandonment would be a retrograde step and could add impetus to the inflationary wage chase. It could also lead to the withering away of the national bodies, such as the Joint Industrial Councils, through which such agreements are negotiated. This, too, would be highly undesirable.
Our Amendment is designed to assist the Government to achieve what the Minister claims to be its objective—to deal with "pockets of low pay". In order to do this, one must first identify who such people are. In our view a pocket of low pay must be a group of workers paid significantly less than the normal range of other workers in their trade or industry; something which sticks out like a "sore thumb" below the normal range of rates paid in the district. This is what our Amendment is designed to achieve. In ordinary language, it will have the effect of saying: "Where there are no recognised terms and conditions, or nationally agreed minimum terms and conditions, a union can bring a claim that some workers are being paid substantially less than the broad average in the district". The word "substantial" is, incidentally, I understand, a recognised legal term.
My last point is this. On the first day of the Committee stage in our debate on Clause 4, I argued that Schedule 11 was totally at odds with the Government's counter-inflationary policy—the £6 a week limit—and that this confusion would put ACAS in an intolerable difficulty in discharging its obligation to advise employers. What would happen, I argued then, if this bombshell in Schedule 11—

527
which our Amendment seeks to defuse—the doctrine of comparability, were used to drive a coach and horses through the present £6 limit or, indeed, through any future statutory or voluntary incomes policy. There was no satisfactory answer from the Government. I contend that there will still be no satisfactory answer. The Government designed this Bill, as I then said, under Social Contract Mark I, which failed. They must in my view accept our Amendment so that Social Contract Mark II will have a chance of success. I seek to help the Government, and that is why I beg to move the Amendment.
6.10 p.m.
Lord SHEPHERD: I have listened to the noble Earl with considerable care, and since it is an important point I hope the Committee will forgive me if I speak a little longer than is usual on Commit tee stage and at this hour. The noble Earl is quite correct in saying that the primary purpose of Schedule11 is to help isolated pockets of low pay in industry to be dealt with and it is certainly not intended to increase pay levels generally. This has been done by re-enacting one provision; that is, Section 8 of the Terms and Conditions of Employment Act 1959, which was passed by a Conservative Government and about which we have not as yet heard any complaint of its inflationary effects. Secondly, we are extending to everybody the rights which were given in the Fair Wages Resolution only to workers in establishments holding Government contracts. I suggest this is not such a radical step as the noble Earl might wish to think, for although we do not know what proportion of the workforce is at present covered by the Fair Wages Resolution, it must be substantial. It is worth stressing that it is not just workers engaged on Government contracts who are covered by the Fair Wages Resolution but all those working in any establishment in which any work is being done on a Government contract.
The Government have so far received no complaint over the years that where the Fair Wages Resolution has been in force it has increased the rate of inflation. The provisions of Schedule 1, allowing claims to be made on the basis of the general level of terms and conditions, have been attacked in another place and
528
it has now been criticised by the noble Earl. I think there is some misunderstanding about the difference between the general level and the average. The general level is not the same as the average. The concept of the general level of terms and conditions is taken from the Fair Wages Resolution, and those who have been interpreting that Resolution over the years have not held that the general level means the average. On the other hand, some have put forward a different argument, accepting that the general level and the average are not the same thing. It has been argued that the effect of Schedule 11 will be to bring the low paid in an industry up to the general level prevailing, thereby creating a new and higher average level of pay among similar employees in the district. That is the point made by the noble Earl. This in turn will encourage the pace-setting employers to raise their wages, thereby creating a new general level for the low paid to reach for, and so on, ad infinitum. The result would be that the lower paid would never achieve any real, relative or permanent advance and all that would happen would be that wage levels generally would be pushed up faster.
Such an argument, in my view, is too simplistic for several reasons. The labour market is, of course, a dynamic market which is constantly adjusting to changes in the demand for labour and prevailing rates of pay. The most important force in the market must be the supply of, and demand for, labour of a particular kind, though institutional arrangements can also have a marked effect on the way in which wage rates respond to changes in supply and demand. What is being suggested by the noble Earl and critics of Schedule 11 is that the effect of Schedule 11 is to speedup significantly the rate of change of average levels in some industries, perhaps many industries. I suggest that the validity of this conclusion will depend on many factors: the extent to which unions seek to pursue claims for improvements under Schedule11, the number of people covered by these claims, the rate of success of the claims made, the impact of any wage level adjustments made as a result of the claims and whether they are important enough to trigger off significant market adjustments.
Our experience of the Fair Wages Resolution—and in its present form it

529
is almost 30 years old—provides no grounds for believing that the cases brought under Schedule 11 will be very numerous. In general, we do not expect unions to bring claims against employers who already recognise them or negotiate with them. We would expect, rather, that the impact of this legislation will be felt mainly in the unorganised sector of industry, among employers whose wage levels have a limited impact upon the labour market. We should also bear in mind that where there is a national or district agreement setting minimum standards in an industry, unions will not be able to base claims on the general level of terms and conditions but only on those recognised terms and conditions arrived at by the collective agreement. In a very substantial part of British industry, therefore, unions will be able to pursue claims only under these provisions of Schedule 11 which replace Section 8 of the 1959 Terms and Conditions of Employment Act.
It has been argued by the noble Earl that if we dropped Clause 89 and Schedule 11 we would avoid prejudicing the Government's measures to bring about a decrease in the rate of inflation. We do not accept that Schedule 11 will give any significant boost to inflation. In so far as inflation has been due to excessive wage settlements, those settlements have concerned in the main, but not entirely, highly organised sections of industry where unions have considerable bargaining power and have no need to rely on the provisions of the Schedule. By comparison, therefore, the elimination of pockets of low pay as a result of claims lodged under Schedule 11 is unlikely to have more than a marginal effect on the total labour costs or on the claims and settlements made in industry generally.
The noble Earl has moved his Amendment. He spoke of the reasons why he introduced it and I think he was trying to be helpful. But I have to tell him, of course, as other Ministers of different political complexions have done in the past, that the word "substantial" always raises very considerable difficulties in legislation when it comes to interpretation by the courts. Therefore I would not advise the Committee to believe that this Amendment would in any way help to meet the case that the noble Earl has himself put forward.
530
In speaking to this Amendment, I have sought to assure the noble Earl that the provisions of Schedule 11 in our view, are not inflationary. They deal with pockets of low pay, which I am sure it is in the interests of everyone to deal with, and all the experience we have had of the Fair Wages Resolution leads us to believe that there is a fair understanding of the basis on which claims are considered and dealt with. I hope the noble Earl, with this explanation, will agree to withdraw his Amendment.
The Earl of GOWRIE: The noble Lord the Leader of the House suggested that my arguments about what in shorthand could be called the "leapfrogging effect" of pay claims under Schedule 11 were too simplistic. Certainly I would accept from him that they were pretty condensed, and that we could perhaps toss the ball back and forth for some considerable time but this would not he appropriate. He also accepted from me that I was trying to be helpful and that was not just a rhetorical or mischievous phrase. I am concerned about the genuinely inflationary effects, as we see them, of the Government's provisions. But that side of his argument was the philosophic disagreement between us, if I may put it that way.
The substantive part of his argument, if I read him aright, was that the experience of the Fair Wages Resolution—which he pointed out had been in force for many years—gave no evidence that it was inflationary or that it could be used to raise the average so that those above the average would then seek to re-establish their differential position to the average.
But the fact that the fair wages resolution contained a similar formula with out producing such a result is, in my view, little to the point because it applied only to Government contractors, whereas the noble Lord and this legislation are seeking to apply it to everyone.
I also think I can give some concrete evidence that the fair wages resolution is starting to be inflationary in its effect, because under the last Government's counter-inflationary policy some unions in the white collar field were showing their interest in exploiting the fair wages resolution in order to improve their position. I do not criticise unions for seeking to exploit loopholes to improve their

531
position; that is exactly what they are there to do. But we in Parliament must try to see that such loopholes are kept to a minimum, particularly during an inflationary crisis.
The noble Lord also suggested that trade unions do not like using arbitral bodies for this kind of purpose. But I find this guesswork. If the unions find the procedure under Schedule 11 useful, surely it is their job to use it. It will be of particular significance in any period of incomes policy, voluntary or compulsory. Right across the Committee we have different views about the wisdom of statutory or voluntary incomes policies, but all of us, I think, whatever our position, are agreed that one version or another is here to stay at the present
Resolved in the affirmative and Amendent agreed to accordingly.
time. With respect, the noble Lord the Leader of the House did not answer my question, any more than he answered it satisfactorily in our debate on Clause 4. In conclusion, it seems to me really remarkable that a Government which recognise the inflationary dangers involved, as their pamphlet to every household in the country can demonstrate, are apparently prepared to take these risks. In our view, the Government are undercutting their own policy; it is foolhardy to do so, and with this in view I feel I must divide the Committee.
6.23 p.m.
On Question, Whether the said Amendment (No. 125A) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 43.

CONTENTS

Aberdare, L.

Gainford, L.

Redesdale, L.

Alexander of Tunis, E.

Goschen, V.

Ridley, V.

Amherst of Hackney, L.

Gowrie, E.

Rockley, L.

Armstrong, L.

Gridley, L.

St. Aldwyn, E.

Balerno, L.

Hailsham of Saint Marylebone, L.

Sandford, L.

Barnby, L.

Sandys, L.

Belstead, L.

Hanworthy, V.

Savile, L.

Berkeley, B.

Harmar-Nicholls, L.

Skelmersdale, L.

Brookeborough, V.

Hawke, L.

Somers, L.

Campbell of Croy, L.

Ironside, L.

Strathclyde, L.

Cathcart, E.

Killearn, L.

Strathcona and Mount Royal, L.

Cottesloe, L.

Lauderdale, E.

Cowley, E.

Long, V.

Suffield, L.

Craigavon, V.

Loudoun, C.

Terrington, L.

Daventry, V.

Merrivale, L.

Thurlow, L.

Davidson, V.

Middleton, L.

Trefgarne, L.

De L'Isle, V.

Monck, V.

Tweedsmuir, L.

Denham, L. [Teller.]

Mowbray and Stourton, L. [Teller.]

Vernon, L.

Digby, L.

Vickers, B.

Dundee, E.

Moyola, L.

Vivian, L.

Ellenborough, L.

Newall, L.

Ward of North Tyneside, B.

Emmet of Amberley, B.

Northchurch, B.

Wise, L.

Falkland, V.

Penrhyn, L.

Young, B.

Gage, V.

Reading, M.

NOT-CONTENTS

Balogh, L.

Jacques, L.

Phillips, B.

Birk, B.

Janner, L.

Pitt of Hampstead, L.

Brockway, L.

Kirkhill, L.

Platt, L.

Collison, L.

Kissin, L.

Ritchie-Calder, L.

Cooper of Stockton Heath, L.

Leatherland, L.

St. Davids, V.

Crook, L.

Llewelyn-Davies of Hastoe, B.

Segal, L.

Crowther-Hunt, L.

Lloyd of Kilgerran, L.

Shepherd, L. (L. Privy Seal)

Donaldson of Kingsbridge, L.

Lovell-Davis, L. [Teller.]

Southwark, L. Bp.

Douglass of Cleveland, L.

Melchett, L.

Stedman, B.

Feather, L.

Meston, L.

Stewart of Alvechurch, B.

Gaitskell, B.

Morris of Borth-y-Gest, L.

Wallace of Coslany, L.

Gardiner, L.

Paget of Northampton, L.

Wigg, L.

Hale, L.

Pannell, L.

Wigoder, L.

Henderson, L.

Peddie, L.

Winterbottom, L. [Teller.]

Henley, L.

Lord SHEPHERD Lord SHEPHERD moved Amendment No. 126:
Page 141, line 15, leave out from ("conditions") to ("of") in line 16.
The noble Lord said: In moving this Amendment, with permission I shall speak to Amendment No. 127. It has always been the Government's intention that claims based on the general level of terms and conditions should not succeed if there is a relevant agreement laying down minimum terms and conditions, as in the case of the engineering industry, for example. During the Committee stage in the Commons the Government accepted an Opposition Amendment which was thought to clarify this point. We have, however, been told that this Amendment, by inserting the phrase "where appropriate" in line 15, makes the position less rather than more clear. These Amendments, we hope, will make the position absolutely clear. I beg to move.
The Earl of GOWRIE: Without going over the arguments, may I point out to the Committee that the Government's Amendment in no way affects our previous Amendment. We are happy to acknowledge it.
On Question, Amendment agreed to.
Lord SHEPHERD: I beg to move Amendment No. 127.
Amendment moved—
Page 141, line 34, at end insert ("and for the purposes of sub-paragraph (a) above the reference to terms and conditions, in a case where minimum terms and conditions have been settled as mentioned in that paragraph, is a reference to those minimum terms and conditions.").—(Lord Shepherd.)
On Question, Amendment agreed to.
6.32 p.m.
Lord SHEPHERD Lord SHEPHERD moved Amendment No. 128:
Page 142, line 2, leave out from beginning to first ("shall") in line 11 and insert (", where, or so far as, the claim is founded upon recognised terms and conditions, by an employers' association or an independent trade union being one of the parties mentioned in paragraph 2(a) above.
4A.—(1) A claim may be reported under paragraph 1 above, where, or so far as, the claim is founded upon general level of terms and conditions, by—

(a) an employers' association having members engaged in the trade, industry or section, in the district to which the claim relates; or

534

(b) subject to sub-paragraph (2) below, a trade union of which any worker concerned is a member.

(2) Where any such worker is of a description in respect of which an employer recognises one or more independent trade unions, such a claim may be reported by a trade union only if it is that recognised union or, as the case may be, one of those recognised unions.
4B. A claim under paragraph 1 above").
The noble Lord said: I beg to move this Amendment. Having considered the present form of Schedule 10, the Government feel that the present wording might have the undesirable effect of promoting inter-union differences, particularly in situations where unions are trying to become established. The present wording allows any union with members in the same district and in the same trade or industry, to make a claim against an employer based on the general level of terms and conditions. The union need not have any members in the group on whose behalf the claim is being made; indeed, the union need not have any members in the firm or establishment in question. The workers on whose behalf the claim is made could all be members of another independent trade union which was recognised by the employer.
This is not a situation likely to promote industrial harmony. On reflection, we think it reasonable to require that a union making a claim based on the general level of terms and conditions should have a member or members among the workers concerned. As well as avoiding inter-union conflict, this may also act as a spur to recruitment in areas where unions are not yet established. For if a union can recruit a small number of members among a particular group and then prosecute on their behalf a successful claim based on the general level of terms and conditions, this should stimulate unionisation among the workers who had not until then joined the union. I hope that this Amendment will commend itself to the Committee.
The Government have recognised that there is a danger in a situation where a union is weak—as they often are where pay is low in just the kind of situation that Schedule 11 is designed to help—that an employer might seek to invalidate a claim by dismissing any union members between the date when the claim is made

535
and the hearing before the Central Arbitration Committee. That is why we have provided that a union must have a member or members among the group to whom the claim relates on the date the claim is made. I beg to move.
The Earl of GOWRIE: I do not know whether the noble Lord's Amendment will, in his ringing words, stimulate unionisation but if it does we are very happy to accept it.
On Question, Amendment agreed to.
Schedule 11, as amended, agreed to.
Lord MELCHETT: I spoke to Amendment No. 129 with Amendment No. 95. I beg to move.
Amendment moved—
After Schedule 11, insert the following new Schedule:

SCHEDULE
  DEATH OF EMPLOYEE OR EMPLOYER

    PART I
    GENERAL
    Introductory
    1. In this Schedule "the relevant provisions" means the provisions of this Act (including this Schedule) conferring rights on employees, or connected therewith, and so much of the 1974 Act as relates to unfair dismissal.
    Institution or continuance of tribunal proceedings
    2. Where an employee or employer has died tribunal proceedings arising under any of the relevant provisions may be instituted or continued by a personal representative of the deceased employee or, as the case may be, defended by a personal representative of the deceased employer.
    3.—(1) If there is no personal representative of a deceased employee, tribunal proceedings arising under any of the relevant provisions may he instituted or continued by such other person as the industrial tribunal may appoint being either—

    (a) a person authorised by the employee to act in connection with the proceedings before the employee's death; or

    (b) the employee's next of kin, and references in this Schedule to a personal representative shall be construed as including such a person.

    (2) In such a case any award made by the industrial tribunal shall be in such terms and shall be enforceable in such manner as may be provided by regulations made by the Secretary of State.
    4—(1) Subject to any specific provision of this Schedule to the contrary, in relation to an employee or employer who has died—

    (a) any reference in the relevant provisions to the doing of anything by or in relation to an employee or employer shall be construed as including a reference to the doing of that thing by or in relation to any personal representative of the deceased employee or employer; and

    (b) any reference in the said provisions to a thing required or authorised to be done by or in relation to an employee or employer shall be construed as including a reference to any thing which, in accordance with any such provision as modified by this Schedule (including sub-paragraph (a) above), is required or authorised to be done by or in relation to any personal representative of the deceased employee or employer.

    (2) Nothing in this paragraph shall prevent references in the relevant provisions to a successor of an employer from including a personal representative of a deceased employer.
    Rights accruing after death
    5. Any right arising under any of the relevant provisions as modified by this Schedule shall if it had not accrued before the death of the employee in question nevertheless devolve as if it had so accrued.
    6. Where by virtue of any of the relevant provisions as modified by this Schedule a personal representative of a deceased employer is liable to pay any amount and that liability had not accrued before the death of the employer it shall be treated for all purposes as if it were a liability of the deceased employer which had accrued immediately before the death.
    Death during protected period
    7. Where an industrial tribunal makes a protective award under section 92 above and an employee of a description to which the award relates dies during the protected period, the award shall be treated in his case as if it specified a protected period of such length as to end on the date of his death.

    PART II
    UNFAIR DISMISSAL
    8. In this Part of this Schedule "the unfair dismissal provisions" means so much of this Act (including this Schedule) and the 1974 Act as relates to unfair dismissal.
    Death during notice period
    9. Where an employer has given notice to an employee to terminate his contract of employment and before that termination the employee or the employer dies, the unfair dismissal provisions shall apply as if the contract had been duly terminated by the employer by notice expiring on the date of the death.
    10. Where the employee's contract of employment has been terminated by the employer and by virtue of paragraph 5(6) of Schedule 1 to the 1974 Act a date later than

    537
    the effective date of termination as defined by sub-paragraph (5) of that paragraph is to be treated as the effective date of termination for the purposes of certain of the unfair dismissal provisions, and before that later date the employee or the employer dies, the said sub-paragraph (6) shall have effect as if the notice referred to in that sub-paragraph as required to be given by the employer would have expired on the death.
    Remedies for unfair dismissal
    11. Where an employee has died, then, unless an order for reinstatement or re-engagement has already been made, the unfair dismissal provisions relating to reinstatement and re-engagement shall not apply; and accordingly if the industrial tribunal finds that the grounds of the complaint are well-founded the case shall be treated as falling within section 64(5) above as a case in which no order is made under section 63 above.
    12. If an order for reinstatement or re-engagement has been made and the employee dies before the order is complied with—

    (a) if the employer has before the death refused to reinstate or re-engage the employee in accordance with the order, section 64(2) and (3) above shall apply and an award shall be made under section 64(2)(b) above unless the employer satisfies the tribunal that it was not practicable at the time of the refusal to comply with the order;

    (b) if there has been no such refusal, section 64(1) above shall apply if the employer fails to comply with any ancillary terms of the order which remain capable of fulfilment after the employee's death as it would apply to such a failure to comply fully with the terms of an order where the employee had been reinstated or re-engaged.')'—(Lord Melchett.)

    On Question, Amendment agreed to.
    Schedules 12 and 13 agreed to.
    Schedule 14 [Amendments of Health and Safety at Work etc. Act 1974]:
    Lord SANDYS: I spoke to Amendment No. 130 when I spoke to Amendment No. 98. I beg to move.
    Amendment moved—
    Page 148, line 15, leave out paragraph 1.—(Lord Sandys.)
    On Question, Amendment agreed to.
    The Earl of GOWRIE: The Committee dealt with Amendment No. 130A with Amendment No. 97A. I beg to move.
    Amendment moved—
    Page 148, line 17, leave out paragraph 2.—(The Earl of Gowrie.)
    On Question, Amendment agreed to.
    Lord SANDYS: I spoke to Amendment No. 131 and associated with it Amendments Nos. 132 and 133 when I dealt with Amendment No. 98. I beg to move.
    Amendment moved—
    Page 148, line 20, leave out paragraphs 3 to 7.—(Lord Sandys.)
    On Question, Amendment agreed to.
    Lord SANDYS: Amendment No. 132 is consequential. I beg to move.
    Amendment moved—
    Page 149, line 1, leave out paragraphs 9 to 20.—(Lord Sandys.)
    On Question, Amendment agreed to.
    Lord SANDYS: I beg to move Amendment No. 133.
    Amendment moved—
    Page 150, line 27, at end insert—
    (". It shall be the duty of the Commission to submit to the Secretary of State and to Agriculture Ministers at such times and in such manner as may be prescribed, reports as to the operation of the Act in its application to the relevant agricultural purposes, having regard to the general purposes of Part I; and the Minister of Agriculture, Fisheries and Food and the Secretary of State concerned with agriculture in Scotland shall cause any such report to he included in the next respective reports to Parliament under Section 29.").—(Lord Sandys.)
    On Question, Amendment agreed to.
    Schedule 14, as amended, agreed to.
    Schedule 15 [Minor and consequential Amendments]:
    Lord JACQUES: It would be for the convenience of the Committee if I spoke to Amendments Nos. 134 to 142 inclusive and Amendment No. 154; that is, 10 Amendments altogether. Four of these Amendments—134, 135, 137 and 138—are purely drafting and clarifying Amendments. The remaining six—136, 139, 140, 141, 142 and 154—are consequential. I beg to move Amendment No. 134.
    Amendment moved—
    Page 150, line 41, after ("contract") insert ("of employment").—(Lord Jacques.)
    On Question, Amendment agreed to.
    6.40 p.m.
    Lord JACQUES: I beg to move Amendments Nos. 135 to 142 en bloc.
    Amendments moved—
    Page 151, line 21, after ("differ") insert ("(wholly or in part)")
    Page 151, line 33, leave out ("or") and insert ("and")
    Page 152, line 21, leave out ("subsection (8)") and insert ("subsections (5) to (8)")
    Page 153, line 29, after ("he") insert ("was then dismissed or")
    Page 157, leave out line 29 and 30 and insert.—
    "10.—(1) In section 22(1) at the end insert the following words "and in particular the provisions of section 3 of this Act shall apply accordingly.".
    (2) For section 22(2) substitute the following subsection.—
    "(2) Where the preceding subsection applies, and the employee's contract of employment is not renewed, and he is not re-engaged under a new contract of employment, so as to be treated, by virtue of section 3(3) of this Act as not having been dismissed, he shall, without prejudice to section 3(8) of this Act, be taken for the purposes of this Act to be dismissed by reason of redundancy if the circumstances in which his contract is not so renewed and he is not so re-engaged are wholly or mainly attributable to one or other of the facts specified in paragraphs (a) and (b) of section 1(2) of this Act.".
    Page 160, line 6, at end insert.—
    "19A. For paragraphs 3 and 4 of Schedule 4 (renewal of employment by personal representative of deceased employer) substitute the following paragraphs.—
    "3. Where by virtue of subsection (1) of section 22 of this Act the death of the deceased employer is to be treated for the purposes of this Act as a termination by him of the contract of employment, section 3 of this Act shall have effect subject to the following modifications: —
    for subsection (3) there shall be substituted the following subsection—
    "(3) If an employee's contract of employment is renewed, or he is re-engaged under a new contract of employment, by a personal representative of the deceased employer and the renewal or re-engagement takes effect not later than eight weeks after the death of the deceased employer, then, subject to subsections (5) and (8) of this section, the employee shall not be regarded as having been dismissed by reason of the ending of his employment under the previous contract.".
    (b) in subsection (4) paragraph (a) shall be omitted and in paragraph (1) for the words "four weeks" there shall be substituted the words "eight weeks";
    (c) in subsections (7) and (8) references to the employer shall be construed as references to the personal representative of the deceased employer.
    4. Where by reason of the death of the deceased employer the employee is treated for the purposes of this Act as having been dismissed by him, section 2 of this Act shall have effect subject to the following modifications—
    (a) for subsection (3) there shall be substituted the following subsection—
    "(3) If a personal representative of the deceased employer makes an employee an offer (whether in writing or not) to renew his contract of employment, or to re-engage him under a new contract of employment, so that the renewal or re-engagement would take effect not later than eight weeks after the death of the deceased employer the provisions of subsections (5) and (6) of this section shall have effect.";
    (b) in subsection (4) paragraph (a) shall be omitted and in paragraph (b) for the words "four weeks" there shall be substituted the words "eight week";
    (c)in subsection (5) the reference to the employer shall be construed as a reference to the personal representative of the deceased employer.
    19B. In paragraph 5 of Schedule 4 at the end insert "or, as the case may be, whether the employee acted reasonably in terminating the renewed, or new, employment during the trial period referred to in section 3 of this Act".
    19C. Paragraph 6 of Schedule 4 is hereby repealed.
    19D. In paragraph 7 of Schedule 4 for the words from "as mentioned" to "Schedule" substitute the words "by a personal representative of the deceased employer".
    19E. Paragraph 12 of Schedule 4 is hereby repealed."
    Page 160, line 11, leave out ("without notice").
    Page 160, line 18, at end insert—
    "21. Renumber paragraph 17 of Schedule 4 (death of employee after offer of alternative employment) as sub-paragraph (1) of that paragraph.
    22. In that sub-paragraph for the words from "subsection (3)" to the end substitute the words "subsection (5) of section 2 of this Act shall apply as if for the words "the employee unreasonably refuses" there were substituted the words "it would have been unreasonable on the part of the employee to refuse.".
    23. After that sub-paragraph insert the following sub-paragraph:—
    "(2) Where an employee's contract of employment has been renewed, or he has been re-engaged under a new contract of employment, and during the trial period the employee dies without having terminated or having given notice to terminate the contract, subsection (6) of that section shall apply as if for the words from "and during the trial period" to "terminated" there were substituted the words "and it would have been unreasonable for the employee, during the trial period referred to in section 3 of

    541
    this Act, to terminate or give notice to terminate the contract".
    24. After paragraph 17 of Schedule 4, insert the following paragraph:—
    "17A. Where an employee's contract of employment has been renewed, or he has been re-engaged under a new contract of employment, and during the trial period he gives notice to terminate the contract but dies before the expiry of that notice sections 2(6) and 3 (8)(a) shall have effect as if that notice had expired and the contract had thereby been terminated on the date sof the employee's death.".
    25. Renumber paragraph 20 of Schedule 4 as sub-paragraph (1) of that paragraph and—

    (a) in that sub-paragraph after the words "relevant date" insert the words "sub section (1) of"; and

    (b) after that sub-paragraph insert the following sub-paragraph—

    "(2) In relation to the making of a claim by a personal representative of a deceased employee who dies after the end of the period of six months beginning with the relevant date and before the end of the following period of six months, subsection (2) of section 21 of this Act shall apply with the substitution, for the words "six months", of the words "one year"." —(Lord Jacques.)
    On Question, Amendments agreed to.
    Lord JACQUES: The effect of this Amendment is to provide a definition of "officer" in relation to an employers' association. It is therefore in the form of a drafting Amendment. I beg to move Amendment No. 143.
    Amendment moved—
    Page 166, line 25, after ("union") insert ("or an employers' association").—(Lord Jacques.)
    On Question, Amendment agreed to.
    Lord JACQUES: I beg to move Amendments Nos. 144 and 145 together.
    Amendments moved—
    Page 166, line 26, after ("union") insert ("or association").
    Page 166, line 27, after ("union") insert ("or association").—(Lord Jacques.)
    On Question, Amendments agreed to.
    Lord MELCHETT: I believe my noble friend Lord Jacques spoke to this Amendment when he dealt with Amendment No. 28. I beg to move Amendment No. 146.
    Amendment moved—
    Page 167, line 8, at end insert—
    542
    "10A. After paragraph 6(5) of Schedule 1 (dismissal in closed shop situation), insert the following paragraph:—
    "(5A) For the purposes of sub-paragraph (5) above a union shall be treated as specified (in a case where it would not otherwise be so treated) if—

    (a) the Service has made a recommendation for recognition covering the employee in question which is operative within the meaning of section 15 of the Employment Protection Act 1975; or

    (b) the union has referred a recognition issue (within the meaning of that Act) covering that employee to the Advisory, Conciliation and Arbitration Service under section 11 of that Act and it has not with drawn the reference, or from the reference, and the issue has not been settled or re ported on under section 12 of that Act"."—(Lord Melchett.)

    On Question, Amendment agreed to.
    Lord MELCHETT: I spoke to this when dealing with Amendment No. 44. I beg to move Amendment No. 147.
    Amendment moved—
    Page 168, leave out lines 17 to 37 and insert—
    "15. For paragraph 20 substitute the fool lowing paragraph:—
    "20.—(1) The amount of compensation awarded to a person under section 64(1) of the Employment Protection Act 1975 or of a compensatory award to a person calculated in accordance with section 68 of that Act shall not exceed £5,200.
    (2) The Secretary of State may by order increase the said limit of £5,200 or that limit as from time to time increased under this sub-paragraph, but no such order shall be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament.
    (3) It is hereby declared for the avoidance of doubt that the limit imposed by this paragraph applies to the amount which the industrial tribunal would, apart from this paragraph, otherwise award in respect of the subject matter of the complaint after taking into account any payment made by the respondent to the complainant in respect of that matter and any reduction in the amount of the award required by any enactment or rule of law.
    (4) Section 110 of the Employment Protection Act 1975 shall apply to this paragraph as if it were a provision of that Act.""—(Lord Melchett.)
    On Question, Amendment agreed to.
    Lord JACQUES: This is a drafting Amendment which is being made to bring this provision into line with the similar but rather differently worded provision which appears in Clause 18(1)(e). I beg to move Amendment No. 148.
    Amendment moved—
    Page 169, line 37, at end insert—
    ("21A. In paragraph 21(5) of Schedule 1, in paragraph (c) for the words "be seriously prejudicial to the interests of" substitute the words "cause serious injury to".").—(Lord Jacques.)
    On Question, Amendment agreed to.
    Lord JACQUES Lord JACQUES moved Amendment No. 149:
    Page 170, line 46, at end insert—
    ("28A. In paragraph 31(1)(b) of Schedule 1 (nominations by members of trade unions) for the words "£500"substitute the words "£1,500".
    28B. In paragraph 31 of Schedule 1, for sub-paragraphs (4) and (5) there shall be substituted the following sub-paragraph: —
    "(4) Sub-paragraph (1)(b) above shall be included among the provisions with respect to which the Treasury may make an order under section 6(1) of the Administration of Estates (Small Payments) Act 1965, substituting for references to the amount for the time being provided for references to such higher amount as may be specified in the order.".")
    The noble Lord said: This Amendment has two purposes and it deals with the question of payment of a deceased member's funds without letters of administration, probate of a will or confirmation. Earlier this year both Houses of Parliament agreed to increase the limit so far as general legislation is concerned—that is affecting such things as the National Savings Bank—from £500 to £1,500. The first part of this Amendment is designed to make a similar increase from £500 to £1,500in respect of payments from trade union funds.
    The second part of this Amendment is to provide that the Treasury can increase this amount by Order, which they can do so far as the general legislation is concerned, so that this second part of the Amendment would make changes automatically and more easily in the future and bring trade union legislation into line with general legislation, with a consequent saving of Parliamentary time. I beg to move.
    On Question, Amendment agreed to.
    Lord JACQUES: This is a drafting Amendment. I beg to move Amendment No. 150.
    Amendment moved—
    Page 171, line 6, at end insert:
    ("30. After paragraph 33(4) of Schedule 1, insert the following sub-paragraph:
    544
    "(4A) For the purposes of the application of the provisions of this Act in relation to employment by any such body as is referred to in sub-paragraph (4)(a) above, any reference to redundancy shall be construed as a reference to the existence of such circumstances as, in accordance with any arrangements for the time being in force as mentioned in section 41(3) of the Redundancy Payments Act 1965, are treated as equivalent to redundancy in relation to such employment.".").—(Lord Jacques.)
    On Question, Amendment agreed to.
    Lord JACQUES: This is a technical Amendment merely to take account of a change of name. I beg to move Amendment No. 151.
    Amendment moved—
    Page 174, line 26, leave out from ("words") to end of line 29 and insert ("'Industrial Arbitration Board' (being words substituted by Part I of Schedule 1 to the Sex Discrimination Act 1975), wherever they occur, substitute the words Central Arbitration Committee'.
    (2A) In sections 4, 5 and 10 for the word Board' (being a word so substituted), wherever it occurs except in the expression 'Agricultural Wages Board', substitute the word 'Committee'.").—(Lord Jacques.)
    On Question, Amendment agreed to.
    Lord JACQUES Lord JACQUES moved Amendment No. 152:
    Page 176, line 31, at end insert:
    ("Social Security Pensions Act 1975 (c. 60)
    . After section 31(8) of the Social Security Pensions Act 1975 there shall be inserted the following subsection: —
    "(9) A trade union shall be treated as recognised for the purpose of this section not only if it is recognised for the purpose of collective bargaining but also if the Advisory Conciliation and Arbitration Service has made a recommendation for recognition under the Employment Protection Act 1975 and that recommendation is operative within the meaning of section 15 of that Act.".")
    The noble Lord said: Section 31 of the Social Security Pensions Act 1975 enables the Secretary of State for Social Services to make regulations requiring an employer to disclose information to, and consult, an independent trade union which he recognises for the purpose of collective bargaining, when he intends to elect (or abstain from electing) to contract-out an occupational pensions scheme from the State scheme. The Amendment will require an employer to treat a trade union which has been recommended for recognition by ACAS (where the

    545
    recommendation has become operative) in the same way as an independent trade union which he recognises, even if he does not implement the recommendation. This is necessary because the recognition provisions of the Bill do not in the ultimate require an employer to implement a recommendation by ACAS as to recognition of a trade union, although they do exert pressure on him to do so. Clearly it would be wrong to allow an employer who refuses to comply with a recognition recommendation to escape from obligations imposed on him in respect of a recognised union. I beg to move.
    On Question, Amendment agreed to.
    Lord JACQUES: Amendment No. 153 is a drafting Amendment. I beg to move.
    Amendment moved—
    Page 176, line 31, at end insert—
    "The Sex Discrimination Act 1975 (1975 c.)
    .—(1) The Sex Discrimination Act 1975 shall be amended in accordance with the following provisions of this paragraph.
    (2) In section 65(2), for the words 'amount for the time being specified in paragraph 20(1)(b)' substitute the words limit for the time being imposed by paragraph 20'.
    (3) In the Equal Pay Act 1970 as set out in Part II of Schedule 1 to the Sex Discrimination Act 1975 there shall be made the same amendments as are made to the former Act by paragraph 12 of this Part of this Schedule." —[Lord Jacques.]
    On Question, Amendment agreed to.
    Schedule 15, as amended, agreed to.
    Schedule 16 agreed to.
    Schedule 17 [Enactments repealed]:
    Lord JACQUES: I spoke to Amendment No. 154 when speaking to Amendment No. 134.
    Amendment moved—
    Page 182, line 9, at end insert ("In Schedule 4, paragraphs 6 and 12").—[Lord Jacques.]
    On Question, Amendment agreed to.
    Lord MELCHETT Lord MELCHETT moved Amendment No. 155:
    Page 184, line 37, leave out ("3, 9(2)") and insert ("9").
    The noble Lord said: This is a technical Amendment. It is necessary to preserve paragraph 3 of Schedule 3 to the 1974 Act, since it is that provision which is responsible for the words "Industrial Arbitration Board" which
    546
    now appear in the Industrial Courts Act 1919 in place of "Industrial Court". Secondly, it is necessary to preserve sub-paragraph 9(2) of the Schedule. I am advised that this is a question of preserving the chronology of the law. I beg to move.
    On Question, Amendment agreed to.
    Schedule 17, as amended, agreed to.
    Lord JACQUES: May I thank the noble Earl, Lord Gowrie, and his colleagues for the help they have given us in getting this Bill through the House. Its passage has been smooth, having regard to all the difficulties and in spite of the differences of opinion. We are exceedingly grateful for the assistance that the noble Earl and his colleagues have given us.
    The Earl of GOWRIE: I am happy to accept on behalf of the Opposition the kind remarks of the noble Lord, Lord Jacques. It has been a singularly well-tempered Committee, even if, from time to time, we on this side found it an ill-tempered Bill. I am grateful to the noble Lord for what he has said.
    House resumed: Bill reported with the Amendments.

    PETROLEUM AND SUBMARINE PIPE-LINES BILL
    6.54 p.m.
    Lord JACQUES: My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
    Moved, That the House do again resolve itself into Committee.—(Lord Jacques.)
    On Question, Motion agreed to.
    House in Committee accordingly.
    [The Earl CATHCART in the Chair.]
    Clause 19 [Provisions supplementary to s. 18]
    Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 14.
    Page 15, line 29, at end insert:
    ("( ) Where a licence is revoked on the grounds of any act or omission occurring after the licence was altered by virtue of the preceding section which act or omission would not have provided grounds for revocation of the licence had it occurred before the date of such

    547
    alteration, and it is shown that the holder of the licence

    (i) has incurred expenditure in carrying out work which is rendered abortive by revocation, or

    (ii) has otherwise sustained loss or damage which is directly attributable to the revocation

    the Secretary of State shall pay to him full and prompt compensation in respect of that expenditure, loss or damage. If any dispute, difference or question shall arise between the Secretary of State and the holder of a licence issued before the coming into force of section 18 of this Act, either as to the entitlement of such holder to compensation under the provisions of this sub-clause or as to the amount of such compensation, the Secretary of State shall, if the holder of such licence so requests, refer such dispute, different or question to arbitration by the International Centre for Settlement of Investment Disputes. In such arbitration a licensee who is controlled by a company incorporated outside the United Kingdom shall be treated as a national of the State in which that company was incorporated and subsections (2) and (4) to (6) of section 302 of the Income and Corporation Taxes Act 1970 shall apply, for the purpose of determining whether for the purposes of this section, a licensee is controlled by another company.").
    The noble Lord said: I beg to move Amendment No. 14. We regard this as a very important Amendment because it makes provision for payment of compensation to licensees if their licences are revoked solely on grounds which are introduced by this Bill. I would draw attention to the fact that the Amendment applies only where an existing licence is revoked, and where the grounds on which it was revoked were introduced by this Bill and were not part of the terms agreed originally by the licensee. It provides also for compensation to be payable to the licensee for expenditure made by him before revocation, and for any other loss or damage suffered by him as a result of revocation. There is also provided a procedure for international arbitration to deal with any dispute either on entitlement to compensation, or on the amount.
    The effect of Clauses 18 and 19 of the Bill is to vary the terms of existing licences by introducing new model clauses. These new clauses contain wide discretionary powers. At the same time, the Secretary of State is to be able to wield the sanction of revoking licences. The new clauses are considerably different from the terms of existing licences. The Bill is therefore taking away from licensees some of their existing contractual
    548
    rights and is imposing new obligations on them.
    The main effect of the introduction of changes to the terms of existing licences is to create opportunities for the Government to force licensees to give up rights, generally areas of the sea bed. New sanctions could be forced upon them to compel them to do things contrary to their commercial interests, simply in order to preserve their previous investment in a licensed area. There can be the sanction to make them carry out operations against their own commercial judgment because of the threat of losing the licence. It is one thing for the Government to have the right to revoke a licence for a licensee not complying with the agreed terms on which it was granted, but it is quite another thing for the right of revocation to be exercised by reference to new terms which have been imposed unilaterally on licensees after substantial investments have already been made. We believe this is coming close to indirect expropriation. Past British Governments have resolutely defended, both domestically and externally, the principle that the taking away of vested rights by exercise of sovereign power involves an obligation to pay full compensation. I would point out that the present Amendment, considering the domestic aspect of that, is based on Section 46 of the Water Resources Act 1963, which provided in almost the same terms as this Amendment for compensation to be paid where the rights granted by a licence under that Act were varied or revoked, and a similar provision is to be found in the Mines (Working Facilities and Support) Act 1966 to cover the situation where the right to mine is restricted. Parliament clearly recognised in those cases that the taking away of rights in those cases required payment of compensation. Those are examples in the domestic sphere.
    No other Western European country has introduced changes to existing licence terms. Let us consider the case of Norway; it is often compared with us because we share the North Sea. When the Norwegians revised their regulations and these revised regulations were introduced in December 1972, they did not have the effect of abrogating existing rights. The terms of this Bill are in direct conflict with the principles upheld

    549
    by previous United Kingdom Governments as part of international law. The first danger inherent in this is the destruction of confidence. People will feel that the terms of licences and other contracts may not be respected by British Governments in the future.
    Secondly, it could encourage action of a similar kind against British investments abroad. Although we have been having difficulties with our visible trade and balance of payments, the noble Lord, Lord Balogh, will recognise more than anybody that we are dependent, and have continually been able to improve our position, on invisible exports. This is because in Britain we are still an international centre in banking, insurance and in the management of international trade. A lot of this is based upon that assurance for which this country, and the City in particular, stand, the assurance, "My word is my bond". We surrender that reputation at our peril.
    So far as international law is concerned, I will briefly point out that it has long been accepted that agreements such as North Sea licences give rise to rights in favour of the concessionaires which are eligible for diplomatic protection. The British Government have strongly advocated this principle on a number of occasions in the past. For example, in their Memorial to the International Court of Justice in the Anglo-Iranian Oil Company case the Government stated:
    "The Government of the United Kingdom does not consider it necessary to elaborate the proposition that rights acquired by foreign nationals by virtue of concessionary contracts are property rights and that as such they are entitled to the same protection as international law grants to the property rights of foreigners. This proposition is generally recognised and to the knowledge of the Government of the United Kingdom has never been seriously challenged."
    I remember very well the British Government's attitude at the time of the crisis in 1951, because I happened to be a member of the British Security Council delegation at that time and sat behind the noble Lord, Lord Gladwyn, in the Security Council meetings. Moreover, because the Press officer happened to be ill at that time, it also fell upon me as an additional duty to brief the world's Press at the United Nations about the British point of view. So it is
    550
    something that is still very much in my recollection.
    Briefly, the general principle is that international law affords protection against any use of sovereign power which has the effect of taking away, in whole or in part, vested rights, or of preventing their exercise in accordance with the terms on which they were granted. The philosophy underlying this principle is that the concessionaire, in making investments in the host country, ought to be able to rely not only on the law of that country but also on the covenants and undertakings of the contracting State.
    The point of our Amendment is this. The Government have decided to go about changing the situation, in the way I have indicated, which is in the Bill, changing the terms unilaterally of these licences. The Government should accept that this course carries with it an obligation to provide compensation in certain circumstances, only when a licence is revoked and only when the reason is a new one, not in the original terms of the licence. They should accept this in order to preserve confidence and to avoid retaliation. If they simply sweep this obligation under the carpet, not only will confidence seep away in the offshore oil operations, but also in other activities in which the British Government are involved. In addition, there could be retaliation against our interests abroad by Governments who might consider that they were then entitled to act in a similar way. Of course, it is arguable whether changes of this magnitude are needed in the national interest. It has not been proved that this is necessary for a depletion policy in the 1980s.
    The noble Lord, Lord Balogh, knows that we on these Benches have recognised that in the 1980s we need a depletion policy, but a great deal less control than is to be given under the terms of the Bill as it stands would be necessary in order to achieve that. If the Government had set about this task differently, such changes could well have been obtained by agreement, as I pointed out on Second Reading. Indeed, the time could have been spent more usefully on negotiating with the oil companies, the licensees,

    551
    on that matter rather than on the 51 per cent. participation, the subject of discussions now going on. But having decided on unilateral abrogation of rights, the Government should provide for the possible consequences, in accordance with accepted practice at home and abroad. This Amendment would enable them to do that, and I therefore commend it to your Lordships.
    7.5 p.m.
    The MINISTER of STATE, DEPARTMENT of ENERGY (Lord Balogh): Amendment No. 14 would provide for compensation to be paid where a licence is revoked on a ground which would not have occasioned revocation under the terms on which the licence was granted, and further provides for disputes to be settled by the International Centre for Settlement of Investment Disputes. There has been considerable debate on this question of compensation at previous stages of the Bill. I shall recapitulate these arguments and, I hope, demonstrate to noble Lords that what we are doing is not an irresponsible act of piracy but the reasonable minimum which is necessary to ensure that, having been endowed with a major oil province, the nation is in a position to see that it is exploited in a way which is not counter to the nation's interests.
    Before I do that, however, I should like to call the attention of noble Lords to the fact that the Amendment is not in order; it seems to impose a further charge on public funds which is not covered by the Money Resolution. However, I leave this aside, and I shall seek to explain the Government's position without that particular point.
    First, the unilateral alteration of licences is very regrettable, but the need for it arises because of the gross inadequacy of the existing terms, especially for the Fourth Round, in that no public sector participation was provided. Despite the growing knowledge of the magnitude of the endowment in oil, the same inadequate terms were prescribed which had been prescribed first by the Conservative and later by the Labour Government when they did not know the magnitude of the fields. The Government would be failing in their duty to the nation if they allowed licences representing a subs-
    552
    stanital proportion of our oil reserves to continue for another 40 years without adequate provision for depletion control, additional exploration, control over dealings in licensee companies, et cetera.
    Nor can the Opposition wriggle out of their responsibilities here. I drew to the attention of noble Lords on Second Reading, and I draw to their attention again, the Press notice issued on 1st December 1971 of a speech by Sir John Eden in Aberdeen. I shall not labour that point because I referred to it yesterday. Secondly, the Bill does not introduce retrospection in the accepted international sense of the word; it does not make illegal something which when done was legal. It is not retrospection. The new terms govern future actions only, not past actions. Licensees will clearly, no less than before, know on what grounds their licences might be revoked, and should take orderly measures to avoid this very unwelcome course. The changes are therefore comparable with the sort of changes which Governments regularly introduce, which affect the profit or remuneration of a particular section of the community, in the national interest, and for which no compensation is given. It is exactly the same as tax changes, exchange control measures, legislation governing safety or advertising standards, but perhaps it might be argued that noble Lords opposite wish to protect all these interests against the national one.
    Lord CAMPBELL of CROY: I gave the noble Lord similar examples in our legislation; for mines, for instance.
    Lord BALOGH: They were very minor examples, and they had absolutely no relevance to the magnitude of the problem and the magnitude of the change which has occurred between 1970 and 1975 in the situation of oil. A particular example of such legislation in the energy field was the Conservative Fuel and Electricity (Control) Act 1973, to which we assented, which gave the Government power to make bigger impact on licensees than this Bill does.
    Let me now say a word about the Amendments of the noble Lord, Lord Lloyd of Kilgerran, Nos. 17A and 25A. They raise two points—compensation, and the question of whether where the licensee is in breach of depletion control requirements he should lose his whole

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    benefit. I have dealt with the first point. The second point is a separate issue, and it is raised later on Amendment No. 17 which stands in the name of the noble Lord, Lord Strathcona and Mount Royal. If the noble Lord, Lord Lloyd of Kilgerran, agrees, I shall deal later with that part of his Amendment along with Amendment No. 17. For the present, in regard to Amendment No. 14 and the issue of compensation, I must ask the Committee to reject these proposals.
    7.12 p.m.
    The Earl of LAUDERDALE: I was wondering whether my noble and learned friend or the noble Lord, Lord Lloyd of Kilgerran, were going to speak, but since at present both seem a little bashful perhaps I may just say that I am afraid that the bonhomie after dinner last night has evaporated a little and my old friend the noble Lord, Lord Balogh, is back in his most familiar form. I am afraid that this may have the danger of eliciting familiar form from myself as well. He has said in reply to my noble friend Lord Campbell of Croy that the examples cited with regard to the Water Resources Act and the Mines (Working Facilities and Support) Act were irrelevant because of the scale of the oil problem as related to the scale of the water and the mines problem.
    Lord BALOGH: I did not say that. I said it was because of the magnitude of the change in the oil situation which necessitated action to remedy the absolutely intolerable situation into which we drifted with the fourth round.
    The Earl of LAUDERDALE: I apologise if I misquoted or misrepresented what the noble Lord said. I do not think what he said really alters the point I was going to make. However great the change—and we all agree that the oil situation has brought an enormous change in the economy of the whole of Western Europe, and so on—the principle surely is not altered. Or is the noble Lord going to say that a big robbery is all right, a little robbery does not matter? He may say that the oil companies are robbing us, and it does matter put the other way round. But whether it is great or small, the principle of fairness and of arbitration comes in either way. It seems to me to come ill from noble Lords on the other side of
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    the Committee, whose integrity we respect, whose perspicacity we have learned to respect as well, who we personally like, the great preachers and prophets of justice, to say that justice is one thing in a little case, it is quite different in a big case.
    In thinking about this Amendment, I was interested this afternoon to find a quotation from the Secretary of State. He said in the other place on the 28th July, 1975 at col. 1443 of Hansard on the Report stage of this Bill:
    "There is nothing whatever in the taking of these powers that could conceivably be argued as a move towards expropriation or a breach of international law."
    Then there is a parenthesis, and then we have the conclusion of that sentence, and listen to this:
    "until the powers were exercised."
    He said, and I will read it again:
    "There is nothing whatever in the taking of these powers that could conceivably be argued as a move towards expropriation or a breach of international law … until the powers were exercised."
    That is the quotation. It is from Hansard of another place. It happens to us all—it has happened to me many times, and it has occasionally happened to my noble friends opposite—that there are slips of the tongue.
    What alarms me is that at the start of this evening's proceedings we are told in effect that principle does not matter where it is a question of size. This bodes ill for our proceedings, and for the harmonious conduct of these proceedings in which we tried yesterday at any rate to put reasonable arguments in the hope that noble Lords opposite would listen. We were instructed yesterday more than once by the noble Lord, Lord Lovell-Davis, to give our minds to a book by Anthony Sampson called The Seven Sisters. I likened that book to a new Little Red Book, which did not altogether appeal to those on the other side. But may I say to noble Lords opposite, Chairman Mao he say, "Close mouth; open mind". I hope that noble Lords opposite will listen.
    We have been trying to be co-operative. We have had little thanks for our pains. We find noble Lords opposite complacent; complacent apparently in the belief that we on this side will forever play like gentlemen. There is indeed a danger to the whole Bill if noble Lords

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    opposite are not as co-operative as is traditional in this House. Something crossed my mind today when I was reflecting on this, and I made one or two inquiries in support of it. Supposing something were to happen to show this Bill to be a hybrid. I say suppose. Suppose that were to happen, there would be all sorts of consequences, and it is not—I repeat, it is not—too late for that to happen. Usually, of course, a Bill is declared a hybrid after the First Reading in whichever House it begins its career and before the Second Reading, but it can happen in another way. I want, in the nicest possible way, to draw the attention of noble Lords opposite to it. In case I raise their blood pressure too much I have taken the precaution of providing myself with a small box of aspirin so as to help them deal with any rise of blood pressure that may result from what I am going to say.
    The fact is that it could, in theory, perfectly well happen that this Bill could be converted into a hybrid. It could perfectly well happen later in Committee stage; it could perfectly well happen on Report; it could perfectly well happen on Third Reading. It could happen by an Amendment of which formal notice would normally be given on the Order Paper, but it could also happen quite differently. It could happen quite suddenly by a manuscript Amendment. Although manuscript Amendments are not highly thought of in your Lordships' House—they are regarded as offensive to our usual procedures and to the decorum of our affairs—we are here faced on this Bill with a Government Front Bench which is stone-walling. I see the noble Lord, Lord Balogh, pouring himself a glass of water. I have the aspirins here if he cares to take some. We are faced with a Government Front Bench which is indifferent to arguments about equity and justice, which is deaf to argument, blind to reason and which is making nonsense, it would seem, of this Chamber's function as a revising Chamber. Thus, it could well happen that a frustrated Opposition, or perhaps Back-Benchers—I do not speak for my Front Bench on this; I am putting forward my own ideas, although they are the result of some research—might table an Amendment clarifying the latent hybrid potentiality of the Bill and that Amendment might be
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    carried. That could happen from now on in the later stages of the Bill.
    The effect would be instantaneous and explosive. The Bill would need to be referred to Examiners, and that could not happen in a day; nor would it go through "on the nod". Complex procedures would be necessary, and if the Examiners found that it were a hybrid, petitions could be expected. They would need to be heard and examined and a Select Committee would then need to report. From the Government's point of view, time is short. We all know this and we are trying to co-operate because we know the Government's time is short; but if the Government will not co-operate with us, there is no real reason why we at any rate on the Back-Benches, should go on being gentlemen for ever. Two more weeks of Recess remain and then there is the spill-over, and that might not be anything like long enough.
    I am not making an appeal, though I notice that the Front Bench opposite have been quick to consult their advisers. I too, have been advised and I assure noble Lords opposite that this is not an appeal, still less is it a threat; it is a reminder. I am reminded of the clergyman who was short of money and kept writing to his bishop for money. The bishop replied, "I'll have no more letters of appeal from you," so the next time the clergyman wrote, he said: "This is not an appeal, it is just a report; my breeches are worn out."
    7.22 p.m.
    Lord AVEBURY: The noble Lord, Lord Balogh, said that one of the major reasons for refusing this Amendment was the deficiency particularly in the fourth round of the licensing. We discussed that matter on several occasions, on Second Reading and in the debate the week before that. Nobody has argued, looking back with the benefit of our present-day knowledge, that much stricter terms should not have been extracted in the licences. I thought that that had been universally agreed and that it would not have been necessary for the noble Lord to reiterate it.
    Lord BALOGH: I really must beg the noble Lord, Lord Avebury, not to use over and over again arguments which have been controverted before. There is no hindsight; there was foresight in 1970

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    and one of the Ministers responsible made an estimate which has not since been changed.
    Lord AVEBURY: I remember that on the previous occasion the noble Lord, Lord Balogh, reminded me of the statement made by Sir John Eden, and I accepted that at the time we should have been able to foresee that we had a major oil province on our hands in the North Sea. This is not my argument, if I may say that with respect to the noble Lord. I am saying that we have now accepted that there is a major oil province there and that there were deficiences in the terms of the licences then awarded.
    If I can start by taking the noble Lord that far with me, then I can go on to make the essential point that a deficiency in contractual arrangements entered into by Her Majesty's Government at the time is not a reason for altering those terms now without compensation. This is not a principle which Her Majesty's Government have ever put forward in the past when we have been at the other end of the argument. When we have been in dispute with some of the Arab oil producing countries about the terms on which we have been able to obtain oil from them, it has not been acceptable to the British Government to say that unduly harsh terms had been imposed on Saudi Arabia or Iran, for example, by the British companies when they had greater bargaining power than they possess today and that, for this reason, no compensation whatever should have been paid by Iran or Saudi Arabia when they altered the terms which those companies, some of which were British owned, had previously enjoyed in the exploitation of oil in Saudi Arabia or Iran, as the case may be. I therefore do not understand how the noble Lord can seriously advance this as an argument which should be accepted by the Committee now, for no British Government have ever in history accepted the principle when we have been on the other side of the fence.
    The noble Lord said, and quite rightly, that we had to take adequate powers for depletion control. I agree with him. I am one of those who believes that we will face a serious situation in the latter part of this century, when oil supplies from the North Sea will not be sufficient to meet demand and we will have to
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    begin importing again. I am, therefore, with the noble Lord and the Government in saying that strong powers have to be taken to adjust the rate of depletion to fit in with the national interest where it does not already coincide with that of the companies involved. However, I say that in those circumstances there is an obligation on the Government to pay fair compensation to the companies which are deprived of their rights, particularly when, as envisaged in this Amendment, those rights are revoked entirely.
    The noble Lord said that we are not here dealing with revocation in the accepted international sense. I should be interested to know his authority for that statement. Can he quote any precedents in the whole sphere of international law to justify this expropriation of rights previously granted? I will quote just one example on the opposite side to illustrate what I mean. I refer to a case which the United Kingdom brought against Iran, involving the Anglo-Iranian Oil Company, when the United Kingdom claimed, with a Labour Government in Office, in 1950:
    "The Iranian Oil Nationalization Act of 1st May, 1950, in as much as it purports to effect a unilateral annulment or alteration of terms of the Convention concluded on 29th April, 1933, between the Imperial Government of Persia and the Anglo-Persian Oil Company, is an act contrary to international law."
    So, in 1950, with a Labour Government in Office, we were claiming against the Iranian Government that an alteration in the terms which the Anglo-Iranian Oil Company then enjoyed was contrary to international law, yet the noble Lord now says that when we do precisely the same thing it is not contrary to international law and is not retrospection in the international sense.
    The noble Lord provided us with a definition of "retrospection" by saying that we are not in this Bill making illegal something that was legal when it was done. I do not accept this narrow definition of retrospection, and although I am not a lawyer I believe that most of your Lordships, looking at this from a common sense point of view, will agree with me that retroactivity goes much wider than that. Certainly retrospective laws which make illegal something that was legal when it was done are the most harsh, unconscionable and unacceptable

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    to Parliament, as for example the Immigration Act, 1971. As noble Lords may know, I was among those who argued most strongly against that Act.
    However, this is not the only kind of retrospection with which this House and the other place has had to deal. I will quote the dictum of Mr. Justice Storey which I think will provide a more acceptable definition to your Lordships. He said:
    "Upon principle, every Statute which takes away or impairs vested rights acquired under existing law, or creates a new obligation, imposes a new duty or attaches a new disability in respect to transactions or considerations already past, must be deemed retrospective."
    That definition certainly covers what the Government are attempting to do in the Bill.
    Finally, I must endorse what the noble Lord, Lord Campbell of Croy, said in moving the Amendment. I believe we are on very dangerous ground here in that the United Kingdom, as a nation which depends so much on exports and on investments overseas which bring us in substantial invisible earnings, cannot afford to encourage those countries in which we have such investments and to which we send such exports to undertake the unilateral retrospective legislation we see in the present Bill. I believe that if we give this encouragement it will cost the United Kingdom far more than any amount we shall have by declining to accept the proposition advanced by the noble Lord, Lord Campbell of Croy, that we should pay full and fair compensation where rights are taken away.
    7.32 p.m.
    Lord HAILSHAM of SAINT MARYLEBONE: My noble friend asked me to add a word on this Amendment, partly, I support, because, as is now apparent, there are important legal questions involved. However, I do not want to stress the technical nature of these questions, even to the rather modest extent to which they have just been explored by the noble Lord, Lord Avebury. The truth is that, having listened to the noble Lord, Lord Balogh, I am absolutely convinced that he has failed to see the point. He began by saying—and I believe I have it right—that the Government's act was not an irresponsible act of piracy. That was his language, not ours, and, so far as I
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    know, no one has suggested that it was such an act.
    Lord BALOGH: Only handy robbery.
    Lord HAILSHAM of SAINT MARYLEBONE: I am afraid that my noble friend behind me was to some extent goaded into a moment of pique by the rather extravagant language used by the noble Lord. I do not propose to be goaded by the noble Lord because I want to try to make him understand something which he evidently does not understand. What we say is that there is an important principle involved. I shall try to explain to the noble Lord what it is. He was very keen on the national interest. I suppose we all are, but I should myself have thought that there is no national interest more important to this country in this lawless time—though there may me others as important—than the rule of law, viewed both internally as a matter of internal policy, and internationally as affecting the relations of nations and foreign nationals. It is because we think that the rule of law is in jeopardy here that we are putting it to the noble Lord that the national interest requires that he should think again. That is what we are trying to say to him. I am sure that it is only a want of understanding as to what the point is which prevents him from agreeing.
    The point is this: when people are given concessions of this kind, they acquire something in the nature of a proprietary right on contractual terms. That is a form of property. Nobody nowadays denies—I am not sure that I say this with relish, but I say it none the less—that a sovereign nation can of course expropriate any species of property. For the purposes of this argument. I assume—and even if I did not assume it I am quite unqualified to deny—that the Government are perfectly right in seeking to expropriate the property of the consessionaires by imposing more onerous conditions on them than were originally imposed by the original concession. I am perfectly prepared to accept from the noble Lord, for the purposes of the argument, that he is quite right in making this demand on Parliament. But that does not end the question it only begins it. If one is to expropriate a proprietary right or unilaterally to derogate from a

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    contractual right—which is what is pro posed—then one must pay compensation for damage that is done.
    It was for that very reason that, even before my noble friend spoke, I had, though I am not sure that I was going to say so, ever since I became aware of this point, always had considerable doubt as to whether the Bill ought not to have been made a Hybrid Bill from the start, because there are only seven or so individuals who are affected and it is basically a fundamental principle of our Parliamentary procedure that, when one expropriates particular pieces of property, as distinct from a general piece of property—for instance, when one expropriates all the mines in the country—one can only do it by the hybrid procedure. But I was not prepared to take this point because it is a highly technical one; it is rather late in the Bill to start talking in terms of hybridity and I do not want to be diverted into a very boring technical argument when I have a very simple point to make.
    However, supposing the Government are entitled to view the Bill as what it purports to be—an ordinary public general Bill—they must still recognise the rule of law in it, and that is what the Amendment asks them to do. If it is out of order in the form in which it is proposed, it is up to the Government to propose another form of words or another way to do it, and to recognise the principle of our internal rule of law which will give effect to it.
    Far more important that that, however, is the point about international law because a number of these companies are foreign companies. It follows, therefore, that the sovoreign States of which they are, in effect, notional nationals may be able to haul this country in front of an international tribunal for breaking the law if they propose to expropriate without proper compensation. This is really not in the national interest. We should be put in the dock; and would that not be rather a nasty thing to happen to us? These are real dangers and what worries me is that they are dangers the nature of which is apparently unknown to the noble Lord opposite, since he has not dealt with the point because he manifestly did not understand it. If one expropriates proprietary or contractual rights without compensation one is committing a breach
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    that there are international tribunals to which this country is amenable.
    All we are asking is that the Government should recognise the rule of law for this purpose. We are not asking them in one way or another to alter their policy. We assume, for the purposes of this point, that the policy is justified and that the demands made on the companies are right. What we do want them to recognise unequivocally is that if one expropriates proprietary or contractual rights unilaterally one is bound to pay for that privilege. I am quite prepared to accept for the purposes of this argument that the original licences ought not to have been made when they were made if they gave rise to that kind of right.
    There is only one other thing I want to say to the noble Lord. It is to reiterate the point already made by my noble friend Lord Campbell of Croy and the noble Lord, Lord Avebury. It is not necessarily to our interest, even if we are not amenable to an international tribunal, that we should be seen to break the law. I say this because now, after 40 years—or certainly since the war—I have watched the progress of this country, nationalising and expropriating as it went along. They have never gone, I think, as far as this in principle, because they have always paid compensation. But every time we have done it other people have done it to us.
    Quite apart from the purely juristic point as to whether we are amenable to international tribunals, your Lordships can bet your bottom dollar that somebody will take a leaf out of our book the moment it is known what we have done. We are much more vulnerable than any other country in the world to that sort of behaviour. It is for that reason, and because we believe that the national interest, as well as the national honour demands it, that we implore the noble Lord, Lord Balogh, and his colleagues to apply their minds to the right point. The noble Lord has himself very formidable powers of intellect. If he would only try to understand this matter I believe that he could help his colleagues a little further along the way, and he would be doing a great service to his country in doing so.
    Lord LLOYD of KILGERRAN: May I presume to make a few observations?

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    I am not proposing to take any juristic point of view on this matter at all, but I hope to bring plain common sense into my argument. I say at once that I admire the noble Lord, Lord Balogh, for his courage and his persistence in saying that he would be failing in his duty if he did not take strong action in the national interest in relation to matters like depletion, exploration and such. But it seems to me that the noble Lord may have forgotten that, whatever may have been the terms of those contracts that were concluded with large oil companies in the past, the fact is that the oil industry has made very great investments in that territory; indeed, the industry has made enormous investments.
    Therefore, as the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, by those contracts the companies have certain rights of property. The Government have decided in the national interest that there shall be amendment, or repudiation—or whatever one likes to call it. They have decided that there must be some alteration in relation to those contracts. But no doubt the noble Lord knows very well—in view of the representations made to him—that the industry insist that changes which repudiate rights acquired by contract, under which enormous investments have already been made, raise separate legal issues which are not analogous to increasing taxation, or taxes arising out of environmental conditions. People in the industry raise the simple question that the Government have to alter those contracts in which they, the industry, have certain rights of property; I am not trying to define those rights. Therefore the industry says, quite simply, that it is entitled to compensation.
    It has been said to the Committee that no similar situation has arisen in the past. But I should like to remind the noble Lord that during the war large numbers of companies in this country had made great inventions and the Government of the time, for the purposes of war, decided that all commercial contracts in relation to the inventions, and the patents, and the know-how should not be carried out, but that the Government should step in and take over all those rights. In certain instances the Government took over rights in relation
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    to inventions where there were no legal juristic property rights, like patents, or trademarks or copyright; it was general know-how. This raised the feeling in industry, not only in this country but abroad, that the Government had to take such powers in view of it being wartime, but industry felt that some compensation should be paid.
    What did the Government do? They endeavoured—mainly through their Patent Department, the Admiralty, the Air Ministry and the War Office to settle these disputes where companies were making large claims against the Crown arising from what had happened to certain contractual rights. What the Government did was not to accept that compensation was payable, but rather to accept the fairness and justice that these people, who felt that their proprietary rights have been interfered with, should have the right to go to a tribunal to have those rights considered. The Attlee Government set up a Royal Commission on awards to inventors, under the chairmanship of a late very distinguished Law Lord and Member of this House, Lord Cohen of Walmer, who sat for a period of seven or eight years. I, then as a junior barrister at the Patent Bar, had the privilege of working with him on that' Commission. It heard evidence from the Government. It also heard evidence from the businesses and from the men concerned about the interference in their proprietary rights, and that the Government had used their property for the war effort. I entirely agree that at that time the war effort was the purpose for which the Government had interfered with the rights.
    But here again at the present time it is the national interest, the future economy of this country, that depends so much on this North Sea oil. It may be that that future economy depends a great deal on the powers which the noble Lord, Lord Balogh, insists should be introduced. Nevertheless, behind all that there surely loom the rights of individuals who have made investments; individuals whose rights have now been affected. They should have the opportunity of stating their case to an independent tribunal. The International Centre for Settlement of Investment Disputes may not be the right tribunal. But certainly the industrial concerns which have made great

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    investment in the North Sea should be enabled to put their case to some type of independent tribunal to see whether compensation is payable, and, if so, what amount should be paid.
    A number of firms and men came before the Royal Commission on awards to investors to claim compensation when they had no right whatsoever to compensation under the law of this country. But under the terms of reference of the Royal Commission it was possible for the Commission to make ex gratia payments to those individuals. Possibly by my reminding your Lordships of that Royal Commission on awards to investors there may be an opportunity for the Government to think again about this matter of arranging for at least a court or a tribunal where a claim for compensation can be put,
    Lord BALOGH: I shall follow the noble and learned Lord in trying to master my temper, and I shall speak in the softest possible tone, although I must tell your Lordships in advance that I cannot give way on this point. We have been told that proprietary rights have been established which will be violated. If people invested in this country and surtax was increased, would that be compensable? What is the difference between that and this?
    Lord HAILSHAM of SAINT MARYLEBONE: I beg the noble Lord—I want to say this to him very gently—not to talk what is really legal nonsense. The right not to be taxed is not a proprietary right. A concession given by the Government is a contractual right and is a proprietary right. A proprietary right is not expropriated by taxing people at a different rate, but it is expropriated if the terms of a concession which the Government have given are altered; that is to say, if they are altered unilaterally. I beg the noble Lord to understand the difference.
    Lord BALOGH: Even that lucid explanation has not convinced me at all. The noble Lord, Lord Campbell of Croy, said that at least we ought to have tried to negotiate with these firms, but there are so many licences that this would have been impracticable. Not only would it have been impracticable, but of course the whole question is very hypothetical.
    The Earl of LAUDERDALE: Would the noble Lord—
    Lord BALOGH: I am not giving way at the moment; later on certainly. We are trying to introduce reasonable conditions for the exploitation of the field. These are reasonable rules based on the best mining standards which ought to have been put in anyway. They have not been put in. I do not believe that any sort of compensation will arise in this case, but even if it did it seems to me—and I have some reason to believe that this is so—that this would not in any way violate international law. I would draw the Intention of the Committee to the Restatement of the Foreign Relations Law of the United States prepared by the American Law Institute and published in 1965. Paragraph 195 of the Restatement states in traditional terms the limitations upon a State's right to terminate its contractual obligations to aliens. One of the comments on this paragraph is headed. "Change of State Law", and it develops the proposition that a State may not relieve itself of responsibility for breach of contract by the simple device of enacting a law designed to make performance illegal.
    It then goes on to give illustrations. In one of these it contemplates a situation where a State grants a concession to a foreign corporation and subsequently enacts legislation,
    "providing for regulation of production in all its territory for the express purpose of preventing waste of natural resources".
    It concludes:
    "Enforcement of such regulations against Y (the concessionaire) is not wrongful under international law and does not impose a duty on the State to pay compensation, even though it reduces the profits of Y."
    I do not say that this is a statement of international law. There is no absolute international law, and we know it very well. Neither am I qualified to interpret American law. I am not qualified to interpret any kind of law; that is a different profession from mine.
    On the other hand, I can give some illustrations that this sort of regulation which was necessary from a national point of view has been introduced without any murmur of protest in Alberta and other Canadian Provinces; by the New Zealand Government and the Federal Government of Canada—and not a

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    peep was heard. Everybody accepted that this was a reasonable protection of absolutely essential national interests and I beg noble Lords opposite from time to time to think of Britain—I do not want to say of England, but Britain. During this debate I have heard very many arguments, but the one argument that it is absolutely essential for us to regulate our own great new national resource, I have not heard.
    7.54 p.m.
    Lord AVEBURY: I am afraid that the noble Lord has not been listening very carefully. I made the point that no one is arguing about the right of the Government to regulate production, to deal with off-take, and particularly I mentioned the depletion provisions which in my view were wholly necessary in the national interest and would clearly be seen to be so as we approach the end of the 1980s and the prospect looms upon us of Britain no longer being self-sufficient in oil. I thought I had developed that part of my case fairly clearly. I am afraid the noble Lord must have been distracted while I was speaking. I apologise to the Committee if I failed to declare an interest when I spoke just now. I am a small shareholder in the Shell Oil Company.
    A Noble Lord: We all are.
    Lord AVEBURY: I should like to refer to the examples from the United States which the noble Lord has given us. He has brought to bear only one on the argument. If he is to maintain, as he has done all the way through this debate and on previous occasions, and as Ministers in another place have done, that what they are doing is not contrary to international law, they must produce authorities. I quoted two myself, and if the noble Lord can show that this kind of expropriation is permissible under international law—even though it is not enshrined in a Statute there are judgments which can be quoted—then we ought to hear them from the Government before we come to a decision on this matter.
    It appeared to me that the United States example which the noble Lord quoted to the Committee was not on all fours with the discussion we are having. First, he said that the State may not
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    relieve itself of contractual obligations by legislative Acts—which is what the Government are doing in this Bill—but at the same time it was permissible for the State to pass general laws limiting or preventing waste of natural resources. This might well have the effect of reducing the profits of companies engaged in the exploitation of those resources—it might be oil companies or companies engaged in mining coal or any other mineral. If we were to translate this into British terms, the Government, as a result of the oil crisis in1973, passed laws which were intended to prevent waste of natural resources. For example, there was the 50 mph speed limit on the roads and the reduction of temperature in offices which might have had the effect of limiting or reducing the profits of companies which were engaged in selling oil or any other fuel for these purposes. No one argued that that is not a perfectly legitimate State power. It has nothing to do with contractual rights which have been agreed between the companies concerned and the Government.
    I wish the noble Lord would address himself carefully to this point and try to see the distinction which has been made on numerous occasions, for example in the case of correspondence between the Director-General of the CBI and the Secretary of State, where I think the Secretary of State used almost precisely the same language as we heard from the noble Lord, Lord Balogh, this evening; that is, that new taxation, exchange control, safety or other requirements may also modify a company's profits, but it is everywhere accepted that these measures do not necessitate the payment of compensation. Cannot, or will not, the noble Lord see that that is not what we are arguing about. In none of these cases or in the advertising standards which he mentioned are we dealing with a contractual obligation between the Government and a company or a group of companies. We are dealing with the general law, which the noble Lord must realise we are quite prepared to accept may sometimes involve a loss of profits or even companies being affected by or put in serious financial difficulties as sometimes may happen, not because of the intention of the Government, but because of the effect of the tax changes or exchange control or other requirements which the Government have

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    mentioned. I think this is a fairly obvious distinction, and that the noble Lord might address himself to it and see whether he cannot understand it before we finish the debate.
    Finally, the noble Lord mentioned the similar legislation that has been passed in Alberta and New Zealand, which he said had been passed without a murmur of opposition in those countries. I may be wrong, but I am under the impression that legislation giving those Governments power similar to those which the Government are taking in this Bill was passed before the licences were awarded. To get the analagous situation in this country we should have to be discussing a Bill of this sort prior to the fourth round of licensing which the noble Lord said was so defective. If we had been discussing this Bill in 1969 before those extremely generous terms were awarded, we should not be having this argument at all. We should have allowed the Government Clauses 15 and 16 in the model clauses and there would have been no necessity for the noble Lord, Lord Campbell of Croy, to put down the Amendment.
    The Earl of LAUDERDALE: Since the noble Lord was good enough to indicate that he might perhaps give way a little later, I want to take up one or two points that he made. He referred to the Albertan case. I will agree straight away that that is complicated and I do not myself pretend to understand it. But he did also quote the New Zealand case. He is sitting back ready with an answer I am sure; but, according to my understanding, the New Zealand case is not on all fours with this at all. There was no retroactive revision of an existing contractual right. What about Australia? There there was no revision of existing contractual rights. What about the Netherlands? There was no revision of an existing contractual right. What about Eire? There was no revision of an existing contractual right. What about Spain? There was no revision of an existing contractual right. What about Denmark? There was no revision of an existing contractual right. What about Norway?—no revision of an existing contractual right.
    I would merely try to persuade the noble Lord—I am not asking him to say that he will look at this. I am not asking him to say that he will consider it, because
    570
    I have thought of a new variant which perhaps he might care to try out as a via medius, a sort of compromise. It is because I know that his heart is in the right place although sometimes I think that his mind is in the wrong one. Would he perhaps not agree to discuss this with his colleagues. I will put it that way. There is just one other point that he made which I found difficult to comprehend. As I understood him, on the matter of compensation, he said that there were too many cases to discuss; but apparently there are not too many cases for the negotiation of participation.
    Lord CAMPBELL of CROY: The noble Lord, Lord Balogh, in his two replies to this debate brought up two or three points which I will deal with very briefly. First, he raised a technical objection to this Amendment on the basis that it was outside the Money Resolution. I would point out that if the Government accept this Amendment or the principle behind it, then, of course, they would have no difficulty in broadening the Money Resolution.
    Then the noble Lord read out, I think, a piece about retrospection. It was certainly not answering anything that I said; because I did not use the word "retrospective" or "retroactive" in any part of my moving of this Amendment. What I was referring to was the abrogation of rights forced by one party on the other after a contract has been freely made on the original terms. My noble and learned friend Lord Hailsham has put, as clearly as I believe anybody could put it, what the point is, and he put it succinctly and, if I may say so, agreeably lucidly for laymen; but the noble Lord, Lord Balogh, has not given us a reply in the least convincing. He spoke about international law, which naturally came up in this debate, and pointed out that there are different views. But, again, that is not the point we are making. The point we are making is that on this subject British Governments up to date have upheld a principle. It has been a British interest to uphold what is regarded as international law by the majority on this point; and it is therefore a British interest, we believe, to continue to uphold that point.
    In particular, the noble Lord has failed to perceive the dangers to this country of flagging confidence in investment in

    571
    the United Kingdom and of similar treatment being meted out to British interests by other countries. My noble friends and noble Lords on the Liberal Benches who have spoken on this have pointed this out.
    There is no more that I need add to his debate but to say that when the noble Lord implied from that side of the Committee that we were not considering the interests of Britain, that showed that he really has totally misunderstood our case; for it is because we are thinking of Britain and of what Britain could lose if we are not to continue to uphold this point that we have been arguing this Amendment. I ask my noble friends and other noble Lords to support me in the Division Lobby.

    CONTENTS

    Aberdare, L.

    Gainford, L.

    Orr-Ewing, L.

    Amherst of Hackney, L.

    Gowrie, E.

    Pender, L.

    Amulree, L.

    Hailsham of Saint Marylebone, L.

    Penrhyn, L.

    Armstrong, L.

    Rankeillour, L.

    Avebury, L.

    Hanworth, V.

    Ridley, V.

    Balemo, L.

    Hawke, L.

    St. Aldwyn, E.

    Belstead, L.

    Tronside, L.

    Sandford, L.

    Berkeley, B.

    Lauderdale, E.

    Sandys, L. [Teller.]

    Brookeborough, V.

    Lindsey and Abingdon, E.

    Savile, L.

    Brougham and Vaux, L.

    Lloyd of Kilgerran, L.

    Skelmersdale, L.

    Campbell of Croy, L.

    Long, V.

    Strange, L.

    Cathcart, E.

    Merrivale, L.

    Strathclyde, L.

    Daventry, V.

    Monck, V.

    Strathcona and Mount Royal, L.

    Davidson, V.

    Mowbray and Stourton, L. [Teller.]

    de Clifford, L.

    Vernon, L.

    Denham, L.

    Moyola, L.

    Vickers, B.

    Dundee, E.

    Newall, L.

    Vivian, L.

    Ellenborough, L.

    Northchurch, B.

    Ward of North Tyneside, B.

    Falkland, V.

    O'Neill of the Maine, L.

    NOT-CONTENTS

    Balogh, L.

    Hall, V.

    Melchett, L. [Teller.]

    Brockway, L.

    Henderson, L.

    Peddie, L.

    Collison, L.

    Houghton of Sowerby, L.

    Phillips, B.

    Crowther-Hunt, L.

    Hughes, L.

    Platt, L.

    Donaldson of Kingsbridge, L.

    Jacques, L.

    Ritchie-Calder, L.

    Douglass of Cleveland, L.

    Janner, L.

    Shepherd, L. (L. Privy Seal.)

    Evans of Hungershall, L.

    Kirkhill, L.

    Stewart of Alvechurch, B.

    Gardiner, L.

    Llewelyn-Davies of Hastoe, B.

    Strabolgi, L.

    Goronwy-Roberts, L.

    Lovell-Davis, L.

    Winterbottom, L. [Teller.]

    Hale, L.

    Resolved in the affirmative, and Amendment agreed to accordingly.
    Clause 19, as amended, agreed to.
    Schedule 2 [Production licences for sea-ward areas]:
    8.14 p.m.
    Lord BALOGH: May I suggest, for the convenience of the Committee, that
    Lord BALOGH: I would acknowledge that the questions raised in this Amendment are of great importance. It is right that your Lordships should be able to make known your views and I have listened with great interest to the discussion we have had so far. I have explained the Government's position as fully as I can; but I would ask noble Lords to consider the point I have made about the Money Resolution and the privilege of another place before deciding whether they wish to invite the Committee to insert these Amendments in the Bill.
    8.7 p.m.
    On Question, Whether the said Amendment (No. 14) shall be agreed to?
    Their Lordships divided: Contents 53; Non-Contents, 28
    we take Amendments Nos. 14A, 22A, 14B and 22B together.
    Lord LLOYD of KILGERRAN Lord LLOYD of KILGERRAN had given Notice of his intention to move Amendment No. 14A:
    Page 50, line 11, at end insert ("being the notional cost thereof to the Licensee assuming that the said conveyance and treatment had been negotiated and effected on arms length terms by a person other than the Licensee").
    The noble Lord said: The purpose of this Amendment is to clarify what is the meaning of "cost" in relation to the cost of conveyance and treatment of petroleum. My Amendment is in almost idendical terms to Amendment No. 14B. In these circumstances, with the leave of the Committee, I do not propose to move the Amendment in my name.
    Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 14B:
    Page 50, line 11, at end insert ("representing the notional cost thereof to the Licensee on the assumption that the conveyance treatment had been effected on arms length terms by a person other than the Licensee.").
    The noble Lord said: I am very content that the Amendments referred to by the noble Lord, Lord Balogh, which are the consequentials of No. 14B, should be considered with this Amendment. In the form in which this Bill is presented to us, an Amendment like this has to have a counterpart in another section of the Bill.
    This is a somewhat technical point and I will try to put it concisely. Under Model Clause 9, royalties are chargeable at the rate of 12½ per cent. of the value of petroleum won and saved at the well-head. The detailed provisions contained in the Oil Taxation Act, which passed through your Lordships' House earlier this year, for determining the market value of petroleum have now been adopted as the basis for the calculation of royalties under the licence.
    The market value of petroleum for the purposes of petroleum revenue tax is broadly the price receivable in arm's length transactions for petroleum which has been landed in the United Kingdom and undergone initial treatment rendering it in a saleable condition. To arrive at a wellhead price it is necessary to deduct from the value as computed for petroleum revenue tax, the cost of conveying the petroleum from the field to the shore, and also the costs of initial treatment. Paragraph 5(d) of the model clause makes provision for such deduction.
    The purpose of this Amendment is to clarify the meaning of the reference to cost, and to ensure that the deduction is arrived at on a commercial basis. The possibility exists that the Secretary of State, who has the power of determining the deduction, may narrowly define the cost to mean only the out-of-pocket expenses incurred by the Licensee in the
    574
    conveyance and treatment. If this resulted in excluding any element of overhead expenditure, such as interest on money borrowed for the construction of a pipeline, it would be unfair and it would give rise to inconsistencies between one Licensee and another.
    We assume that it is the Government's intention that the same basis should apply in every case, and this Amendment is therefore designed to ensure that this basis should be as realistic as possible. The Government may point out that this is partly met by the arbitration provision as it now occurs in paragraph (c) near the top of page 73. Certainly this allows arbitration on figures, but not on the methods of arriving at a deduction. I hope therefore the Government will consider adding this to the Bill. I beg to move.
    8.19 p.m.
    Lord BALOGH: These Amendments seek to ensure that in all cases the costs of conveying be allowed as an offset against royalties will be at arm's length costs. There was a considerable debate on this in Committee in another place and the Under-Secretary explained why it was better to leave the flexibility which the Bill as drafted contains. The whole question of conveying costs and their calculation is very complex and noble Lords will not, I am sure, wish me to go into all or even many of the complexities. The experience of the Southern Basins Gas fields demonstrated amply the difficulties, and that is why we have taken power in this Bill for the Secretary of State to determine the method of calculation. But he may determine only in consultation with the representatives of the licensees, and such is the complexity of the latter that we feel it best to allow complete flexibility. Depreciation, interest, apportionment of assets, for example, platforms between conveying and production costs, are examples of the types of costs which will be covered in these discussions.
    But no options are closed. We shall listen to the views of the industry and discuss with them any proposals they care to make. Let me say that the whole concept of arms-length sales in this context is extremely fluid and uncertain. There are, in this field, no arms-length transactions: there can be none, because of the

    575
    uniqueness of the various fields and pipe-lines. Therefore I hope the noble Lord will not press this Amendment.
    Lord CAMPBELL of CROY: I am grateful to the noble Lord for his explanation of the Government's attitude on this, If I understood him correctly, he said that the Government were prepared to consider proposals on how the costs should be computed which were put to them by those who are likely to be concerned with this part of the Bill. Having given that assurance, I hope that the Government will have an open mind on the proposals put to them, on the lines indicated by my Amendment.
    I did not intend to press the Amendment: It was an indication of what we thought could well be in the Bill, to make this clear. The noble Lord has indicated I think, that there will be many difficulties but he has also given an assurance that he will listen to proposals about this complicated subject which are made by the people who are likely to be involved. In view of that, I beg leave to withdraw my Amendment.
    Amendment, by leave, withdrawn.
    8.22 p.m.
    Lord LOVELL-DAVIS Lord LOVELL-DAVIS moved Amendment No. 15:
    Page 56, line 29, at end insert ("and where it is determined in consequence of any reference to arbitration in pursuance of sub-paragraph (a) of this paragraph that the programme in question does not satisfy the relevant requirements the Licensee shall submit to the Minister, as soon as possible after the date of the determination, a further programme which satisfies the relevant requirements.").
    The noble Lord said: I suggest that it will be for the convenience of the Committee to take with Amendment No. 15 Amendment No. 23, which is the corresponding Amendment in Part II of Schedule 2, and Amendments Nos. 31 and 34, which are the corresponding Amendments in Parts I and II of Schedule 3. These are Government Amendments and represent a simple, commonsense tidying up, over which I shall not detain your Lordships for very long.
    The Bill, as drafted, provides for a dispute as to whether additional exploration programmes submitted to the Secretary of State satisfy the relevant requirements, as set out in the model clause at
    576
    lines 36 to 45 on page 78, to be settled by arbitration. If the arbitration body decides in favour of the Licensee, that is to say decides that the programme does satisfy the requirements of the model clause, there is no problem. This Licensee then carries out the programme. But if the arbitration body rules that the programme does not satisfy the relevant requirements, then clearly we should want the Licensee to revise his programme so as to meet the relevant requirements. That he should do so is probably the commonsense way to interpret the clause. The clause is not explicit and we felt it should be; hence the Amendment. I beg to move.
    Lord STRATHCONA and MOUNT ROYAL: I think we have to accept that this is a fairly logical piece of tidying up, but in fact it raises issues which we shall discuss in greater detail in a moment, perhaps, regarding Amendment 16. It is an Amendment towards which the Opposition feel fairly lukewarm, in the sense that it is strengthening the underlying principle which goes through all these several model clauses—that is, the forced investment aspect of the modifications to the licences which are taking place. I daresay this is not the right moment for me to go into the whole question of the undesirability of these rather onerous provisions being pushed upon the companies, and therefore I will only say that we from this side will not oppose this Amendment and leave it at that for the time being.
    8.25 p.m.
    Lord STRATHCONA and MOUNT ROYAL Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 16:
    Page 60, line 12, at end insert—
    ("(8A) Notwithstanding anything contained in this clause, the Licensee shall not be obliged to carry out any programme or part of a programme unless it is one which a person who, if he—

    (a) were entitled to exploit the rights granted by this licence; and

    (b) had the competence and resources needed to exploit those rights to the best commercial advantage; and

    (c)were seeking to exploit those rights to the best commercial advantage,

    could reasonably be expected to carry out having regard to all relevant considerations.")
    The noble Lord said: Here again, I think it would be for the convenience of

    577
    the Committee if we were to consider Amendment No. 24 with this Amendment. In a sense, this Amendment links back to the long discussion we had on Amendment No. 14 and it also links forward to Amendment No. 17.
    In the case of Amendments Nos. 16 and 17, we are moving into an area where the Government have conceded the principle of these Amendments, as I understand it, when we are concerned with exploration. It is a little difficult to distinguish in our minds perhaps, but we are quite clearly distinguishing between an exploration-type situation and a production-type situation. It might be useful, in view of the somewhat acrimonious argument which inevitably we had on Amendment No. 14, if I say at the outset that I think it is common ground between us that what we are trying to do is to create the kind of environment on the Continental Shelf around this country within which the companies can have confidence to deploy their full and very considerable energies and resources towards the most rapid development of the hydrocarbons which lie beneath these oceans. It is probably true to say that the noble Lord, Lord Avebury, does not necessarily agree completely with this, but he is in a fairly small minority in not wanting to see these resources developed as rapidly as possible.
    The disagreement lies in the kind of conditions that we want to create, and this Amendment addresses itself to the fact that here the Government are introducing a number of new clauses which alter the basis on which the licences were granted. The purpose of this Amendment is to seek to introduce the concept of avoiding putting the Government in the position where they are compelling a company to do something which is not, in that company's best commercial judgment, a sensible thing. We have all accepted, and have said many times, that here we are in an area of new technology, where there is a very rapidly changing technical environment. One has to be careful in the choice of words. I was going to say that in addition there is a very fluid situation as regards the financial environment surrounding the whole question. The price to be received for the product is, to put it mildly, an unknown quantity, certainly when one looks a few years ahead. It is natural,
    578
    I think, that any company which is going to invest enormous sums of money is bound to look askance at the possibility of its being asked to do things which are manifestly uncommercial; and unless we accept an Amendment of this kind, they are liable to find themselves compelled to spend money on something which they do not think is going to yield a return
    Amendment No. 17, to which we shall come in a moment, discusses the draconian sanctions which may be imposed on companies if they decline to do the things that the Government want. I think we would start by saying that a Licensee who commits capital and takes a risk should, in principle, be allowed to choose his own time for his development activity, according to a commercial judgment.
    If we deviate from this principle, one of the problems into which we are going to run is that it exacerbates the difficulty of raising finance for the field.
    I do not know that I need to develop this point very far, but certainly, again taking this with the following Amendment, the kind of situation which can arise is that a company can invest large sums of money—one is speaking about hundreds of millions, not just tens of millions—in developing a commercial field. Its licence may cover more than one field. One of those fields may not be in the company's view a commercial field. For reasons which can be totally understood, the Government are going to say: "We want to see that field developed. You are to develop that field, whether you like it or not. If you decline to develop that field, not only do you lose your licence to that field but you lose your licence to the productive field, the commercially attractive, paying field, which you have already developed." This I should have thought was a manifestly inequitable situation.
    We have to look at the commercial implications. As I said earlier, one of the worries is that if potentially penal financial sanctions are imposed upon a company it is made that much more difficult for the company to raise money. The banker says: "Yes, I accepted that you have a commercial field at site A and I am quite prepared"—although, incidentally, the position here is not by any means very easy at the present time—"to help you raise the money for that.

    579
    But the trouble is that, although we like the look of that prospect, how do we know that all the profit that is going to be made over there will not be abstracted from you over here where the Government are going to force you to undertake a development which you would not wish to do?"
    We could even reach the situation where the Government say to a company: "You are to develop there," and the company is simply unable to raise the finance to do something which both the company and the banks know perfectly well is a nonsensical commercial proposition. I would suggest that this is basically rather a ridiculous situation for the Government to try to get themselves into. I beg to move.
    8.33 p.m.
    The Earl of LAUDERDALE: Perhaps I might add a word or two here in my usual non-controversial and pacificatory style. Our critical aims are surely quite clear in this connection. Sometimes it is necessary to restate matters in the simplest possible language to make quite sure that they are understood. There is the question of making sure that development programmes that are imposed on Licensees are in fact commercially viable; that is one purpose. The second is that we want to make quite sure that in cases of dispute the Minister cannot just bulldoze Licensees by the threat of revocation. There are many points in this Bill where the Minister's powers are unusual, and there are points which I think arise on future Amendments where it would seem that the Minister himself is to be, as it were, the arbitrator. Of course, to be judge in one's own cause is always agreeable to Ministers and Government Departments; it is less acceptable to those who are exposed to the judgment. At any rate, these are our two concerns. They are quite simple. I state them only because, as this evening has gone on, it has become apparent that sometimes one's language is not simple enough. We want to make quite sure that imposed development programmes are viable commercially, and secondly, that in the case of dispute the Minister does not just bulldoze his own way by the threat of revocation.
    580
    The situation we have to picture was indeed admirably described in one of our debates we had before we rose for the Recess—I think it was the debate in July when we took note of the Government's proposal to set up the British National Oil Corporation. The noble Lord opposite made it clear that from the word "go" BNOC would necessarily be a learner. Indeed, one of the reasons for establishing BNOC was to provide a vehicle where know-how could be acquired by the Government and put to the national advantage. So we know that in the earlier stages, at any rate—let us say in the first five or seven years—the BNOC will be in the position of a learner. In its participation agreements with the exploration companies it will have, of course, a 51 per cent. say; that, is if they concede participation. We are assured that negotiation will be voluntary and therefore they have a right to say, "No"; but on the assumption that the negotiations from the Government's point of view are successful BNOC will have its 51 per cent. stake and will be in the business to learn. But obviously it will not graduate straight away. The noble Lord, Lord Balogh, graduated in record time through successive universities, and if we had his brains perhaps we could have done the same, but BNOC generally is not going to graduate to the standing and status in terms of knowledge and experience of any one of the major oil companies in five years—probably not in ten years.
    The real question is how far the Secretary of State, operating through BNOC, drawing on its growing knowledge—during its first-year programme, its early degree course acquisition of knowledge—will be competent to give directions and to impose programmes. I ask the question: how soon will the Secretary of State start giving directions, and how soon in his capacity of learner will he be in a position to give prudent directions? It is because for some time, at least, there must be doubt about his capacity to give prudent directions, because on the Government's admission he will be a learner, that we are naturally very concerned that the kind of directions that are given will be sound. That is why we want to be absolutely certain that they are commercially viable.

    581
    Of course, the difficulty about the Secretary of State's giving directions in this matter is that his own considerations must in the nature of his business be non-commercial. He is a political animal. He is looking at the nation's physical requirements in terms of oil reserves and the like, irrespective of price. The Secretary of State will have in mind all sorts of considerations which are very far from commercial. I will not say they are anti-commercial; I will not say they are hostile to profitability; but profitability will not be, in the nature of things, his first concern. For example, one can very well picture a situation in which the Secretary of State might want a company to develop a marginal field when that company, having put enormous investment into the discovery of several fields, wants to concentrate its resources, and has indeed decided to concentrate its resources, on the most productive, the most profitable field, the field which will give the most immediate return.
    In days when cash-flow is such a serious consideration, and cash-flow problems are magnified many times by inflation, it is natural that the operating company or group will want to concentrate on what for them is going to give the best return and probably the quickest return on their mammoth investment. As I say, the Secretary of State may very well want such a company, or group or operator at the same time to divert resources to a marginal field. It may be that the marginal field is one which would otherwise escape development for some years. It may be that it is a marginal field which, left out of consideration, certainly would not merit a pipe-line and might, according to later sections of this Bill, be cajoled into the market through apipe-line extension.
    The Secretary of State may very well have perfectly legitimate political or overall reasons of policy for wanting to press an operating company into developing a marginal field against that company's commercial judgment. It is that very situation which has arisen more than once that has generated the system known as farm-outs—large companies, having found several fields, plonking all their resources into the best bet and doing a deal with a smaller company to exploit a marginal field nearby on the basis of a farm-out. It is perfectly true
    582
    that the smaller companies, a number of Which may be British, will relish that opportunity and welcome the support and pressure that the Secretary of State could give by means of the development programme direction. The point is that there are very delicate and difficult decisions and judgments to be made. There will be the judgments to be made on a broad political front but there will also be judgments to be made in terms of the investment of capital and the return on capital. This is the difficulty that we foresee.
    A further difficulty is that this is not a simple discussion between a patron and his client. This is a discussion between the Government, on the one hand, and the Licencee on the other who, if he does not play ball, is exposed to the revocation of his licence. If he is exposed to such revocation he is out of business without compensation. If the intentions of the Government are allowed to go through as they are, he will already have had his licence terms very seriously compromised without compensation. But now he may be exposed to a direction about his development programme which is contrary to his best judgment and to the responsibility which he owes to those who have financed the undertaking and he will have to face these pressures on the basis of a relatively small organisation.
    Even if he is one of the Seven Sisters, they do not own the world. He will be fighting the Government and will be unable to resist the pressure which revocation requires. In the course of yesterday's debate we were told more than once that the major companies can look after themselves and special reading has been recommended to us. Two or three times yesterday the noble Lord, Lord Lovell-Davis, advised us to read Anthony Sampson's book The Seven Sisters. Obviously the noble Lord has done Mr. Sampson a good turn because today I have seen copies of that book all over the building and a number of us have been obeying his injunction and dipping into it. I do not wish unduly to weary the noble Lord or the Committee with this matter, but since he was a journalist by profession until quite recently and since I have been a journalist by profession—I am sorry; I gather that the noble Lord was not a journalist and I take it all back. I thought that there was

    583
    a basis of understanding between the noble Lord and myself of the same kind as I have been happy to develop with his noble colleague. At any rate, as to that book it is worth saying that it was paraded yesterday as the Bible that we should all study. With great respect to the Chairman of the Committee tonight, it reminds me of a statement that was once made by the late Lady Horsbrugh to a young aspirant to Parliament who was a woman. She said, "My dear, in politics a woman is either too young or too old".
    Several Noble Lords: Shame!
    The Earl of LAUDERDALE: The theme of The Seven Sisters is that oil is either too cheap, in which case it is knocking the competitor, or it is too dear, in which case it is exploiting the consumer. I will not further weary the House with this. The Government seem to think that oil companies of whatever size can defend themselves willy-nilly, but this is by no means clear to me. Without trying to rouse the hackles of noble Lords opposite and without questioning in any way their good intentions, may I plead with them to listen again to this aspect of the commercial interest which is necessary to a proper judgment of development programmes. As we are nearing the hour of nine o'clock and old men like myself should go to bed, I hope that I can prevail upon the Government to give a fair wind to my words.
    8.45 p.m.
    Lord LOVELL-DAVIS: As the noble Lord, Lord Strathcona and Mount Royal, has pointed out, the effect of these two Amendments—Amendments Nos. 16 and 24—would be to insert in the model clauses dealing with development and production programmes the same safeguarding criteria for the licensee as we inserted into the model clauses dealing with exploration programmes; namely, that development programmes should be only those which a conscientious Licensee with adequate resources would in any case carry out in his own best commercial interests.
    In moving this Amendment the noble Lord is seeking to ensure that Licensees will not be required to submit and carry out development programmes for fields which they regard as at best only marginally commercial and might not undertake
    584
    of their own volition. I understand the concern of Licensees about the possibility of forced development and I hope that in this debate I can give them some reassurance. However, this Amendment would, I fear, restrict too much the powers of the Secretary of State in this vital area.
    We must distinguish the new provisions in the Bill on exploration oblieations from those on development and production control. On exploration it was never the Government's intention to ask for more than the conscientious Licensee would do of his own accord and the Amendment moved in another place merely gave statutory form to this intention. With development and production control the considerations are rather different. This is the area in which, above all, it is essential for the Secretary of State to have wide-ranging powers to ensure that the nation's oil resources are developed and depleted in the way which, taking account of all relevant factors—which include the need to ensure an adequate return to Licensees—best serves the national interest. It is not appropriate therefore that the sole or dominant criterion should be the Licensee's commercial interest. For example, a field may offer the prospect of a perfectly adequate return, but the Licensee may prefer to defer development because he anticipates a very rapid rise in the price of oil, or for some other reason. We on the other hand may wish him to go ahead and develop and in the last resort we should retain the power to require him to do so.
    I said advisedly "the last resort" because in general the interests of the Licensee and of the Government are unlikely to diverge. Certainly they do not at present where we each want to get as much oil as possible flowing as soon as possible. But divergencies could occur and we must not leave ourselves with inadequate powers to safeguard the nation's interest if and when they do.
    The noble Lord referred to the British National Oil Corporation. The BNOC will need to learn its craft. The control of development programmes will be administered by the Secretary of State. The Department's officials already see and examine the development programmes and have done so for some time. The Bill merely puts existing practice on to a statutory footing. The programmes

    585
    themselves would begin to be approved when these provisions come into effect. Having said all this, I can assure noble Lords that there will be no question of the Secretary of State requiring the development of hopelessly uncommercial fields. This should go without saying but I recognise the strong desire of Licensees to have some further earnest of the Government's intentions.
    For the reasons I have explained, I do not think we could go as far as the Amendment wishes us to go. Nevertheless, we are willing to consider whether or not we could insert into the Bill a provision to emphasise the right of Licensees to make representations on commercial matters and the duty of the Secretary of State to consider such representations.
    It has been said that we on this side of the Committee have been stonewalling, but perhaps to make the interventions of the noble Earl, Lord Lauderdale, even more uncontroversial—and perhaps less lengthy—I should point out that this is the fourth concession or undertaking that we have given during the Committee stage so far in your Lordships' House. I hope therefore that with this undertaking the noble Lord will not wish to press his Amendment.
    The Earl of KINNOULL: I am sure my noble friend is grateful for some assurance on this Amendment. I have listened most carefully to the noble Lord who has given the Government's reply, and I wonder if he would consider whether this form of licence and the removal of it could be done in the form that is used under planning laws. The noble Lord will recall that when someone applies for planning permission one of the fears the planners have is the very same fear that the noble Lord has just expressed, that in fact the development will not take place. In that case, the planning consent is subject to the development starting within a certain period of time. This would seem to cover the very point that my noble friend is so anxious about for the private sector and to maintain that confidence in the investment in this great work.
    Can the noble Lord comment now on whether, for instance, when he is considering this matter, the period of time—say two to three years—could be considered, in order to decide whether or not that licence would be revoked, but
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    not for other purposes. I think perhaps this is material.
    Lord LOVELL-DAVIS: I have already given an undertaking. May I now simply say that I have noted the comments made by the noble Earl, Lord Kinnoull, and will certainly consider them while the other matter is being considered.
    Lord STRATHCONA and MOUNT ROYAL: Of course we are very grateful for the noble Lord's generous undertaking to have another look at this point and to recognise the worries that lie behind this Amendment. I can quite see that here the Government are involved in reconciling two slightly contradictory elements. We feel gratified that they appreciate the reservations that any company is bound to have with this kind of sword of Damocles hovering over them.
    I should like to add one or two things. If I may say so, I did not think that the example given by the noble Lord of a field which I think he said was giving an adequate return but was a less attractive proposition than some other field, was a very good example, because my understanding of the intention of our Amendment is that this would not be a case in point. If it was yielding a reasonable return one could justify it by saying that this was a reasonable commercial proposition, and I cannot see that the company would have a great deal to complain about if this was demonstrably the case.
    It is worth mentioning—and I say this only to call the noble Lord's attention to it—that there are two areas of argument as between a potential company and the Minister. As I said at the beginning, we are dealing here with an area which is customarily referred to as the edge of technology, and it is worth bearing in mind the amount of argument that takes place between the various companies about the technically right way to do a job, and indeed about the commercial return they are liable to earn from it. It is probably just as well that this happens. It is a fact, of course, that there are small companies who have stuck their necks out rather too far where the big companies are unwilling to tread.
    There is a further complication to which I did not refer at the beginning but which

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    underlies this, and that is the part that BNOC might be taking in this, bearing in mind, as we have said, that BNOC will not be subject to petroleum revenue tax. One can contemplate the kind of situation where their desires might be somewhat different from the desires of their partners and the Government would have the power to impose upon the company partner something that suited the BNOC but did not suit the company.
    There are a number of worries of this nature, but I shall not elaborate them at great length because obviously we shall have another chance to return to this issue at a later date, and I do not want to be thought to be carping at the Government's wish to meet the case that we have put forward. But I think it would be quite wrong if I did not try to emphasise to the Government the number of potential problems which one can see, bearing in mind that it is going to be some years before the oil companies are likely to have total confidence in the judgment of the Minister's advisers, whom we all agree are learning the job, both technically and commercially. In welcoming the noble Lord's undertaking, I beg leave to withdraw the Amendment.
    Amendment, by leave, withdrawn.
    8.57 p.m.
    Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 17:
    Page 60, line 12, at end insert—
    "(8B) Where in consequence of any breach or non-observance by the Licensee of any requirement imposed upon him by the provisions of this clause the Minister has power by virtue of paragraph (1) of Clause 33 of this licence to revoke this licence he shall exercise that power only in relation to that part of the licensed area in respect of which the breach or non-observance has occurred and over which the programme extends; and where he does so the rights granted by this licence shall cease in respect of that area without prejudice to any obligation or liability imposed upon the Licensee or incurred by him under the terms of this licence."
    The noble Lord said: With this Amendment I think it would be convenient if the Committee were to discuss Amendment No. 25, which is the counterpart in another part of the Bill and also standing in the name of my noble friend Lord Strathcona and Mount Royal and myself. As I understand the timing for this evening, in the short time I have
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    before me I can only try to help the Government by giving an indication of what it is that is of concern to us. We believe that this Amendment is a very important one, because it draws attention to a sanction which the Minister will be able to wield, in that if some condition is not carried out by a Licensee the Minister will be able to revoke the licence, not only for the area where the condition has not been carried out but the licence covering other oil fields, in cases where licences cover several blocks, for example. This seems to be a weapon which is quite unnecessary and which could be a daunting one to those who are operating in the North Sea and who will be operating in other parts of our Continental Shelf.
    This debate follows on the one that we have just had on Amendment No. 16. My noble friend Lord Strathcona and Mount Royal has described the way in which, by incorporation of new and amended clauses existing licences are being changed, and in particular that a Licensee cannot develop a field except with the consent in writing of the Minister or in accordance with a programme which the Minister has approved or served on the Licensee. Also, a Licensee must prepare and submit a development programme in such form and by such time and in respect of such periods or in the term of the licence as the Minister may direct. That is a new requirement. What we are now drawing attention to is the sanction which is to be available to the Minister, and that it goes much further than could possibly be necessary in covering the whole of a licence and all the areas in which a company or a consortium under that licence may be operating.
    I can give an illustration of this. There could be a situation where massive investment was being carried out by a consortium or a company in two oil fields which had commercial prospects. They might also be deciding not to develop another field which they judged to be non-commercial because it was uneconomic and also because it would involve too great a risk financially for the company or consortium to undertake.
    In those circumstances there might be a case for revocation of the licence in respect of the field which the company said they decided they would not

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    develop; but that the Secretary of State should be in a position to revoke the licence covering the other blocks and fields as well, we believe goes much further than is appropriate or, indeed, fair in this part of the Bill. This threat will deter the effort needed to win the oil in the quantities which we in Britain require. This is one of the threats which we believe have been deterring companies from embarking on offshore operations in recent months.
    Also it has been difficult to raise finance. We will be talking about that later in the Bill. The noble Lord, Lord Balogh, shakes his head, but I shall have quotations for him later from what observers, the Press and others, have been reporting, and also financial commentators, about the willingness of banks to provide finance. I can only make this short introduction if I am not to interrupt the arrangements for this evening. So at this stage, I will simply move this Amendment.
    9.2 p.m.
    Lord BALOGH: This Amendment would permit the Secretary of State to revoke a licence for a breach of the provisions of a development programme only in respect of that portion of the licensed area which was the subject of the programme in respect of which the breach occurred. This would be a further protection for the Licensee, but, like Amendment No. 16, I feel it goes too far in weakening the Secretary of State's power over a vital, perhaps the most vital, part of the licence conditions. It is true it would protect the Licensee who had a commercial field already developed from losing that field because he failed to carry out a development programme in respect of another field in the same licensed area which was hopelessly uncommercial, and which he therefore did not want to develop; that is to say, it would protect the Licensee against unreasonable demands by the Secretary of State. But by the same token it would ensure that a Licensee, similarly placed with a developed commercial field, did not lose that field even if his refusal to develop a further part of the licensed area was unreasonable and unjustifiable in the national interest. This is a risk which we cannot take, and for that reason I cannot recommend acceptance of the Amendment.
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    There is another reason why I cannot advise the Committee to accept the Amendment. It has been a fundamental feature of licence regulations issued by the Governments of both Parties that the licence should be regarded as a single unit, with all its rights and obligations to be considered as a whole. We should be embarking on a very slippery slope indeed if we abandoned that principle, as the Amendment would do, by ensuring that if a Licensee was in breach of one of his obligations, he would lose only that part of the licensed area in which the breach was committed. Noble Lords should hesitate, I suggest, before departing from this principle.
    But I think I can go some way towards meeting the noble Lord. In new model clause 14, on additional exploration programmes, we have provided that the Secretary of State should have the option of revoking only in part. He can thus do so where circumstances are appropriate, but does not lose the power of total revocation which it is necessary to retain as a weapon of last resort. I think we can reasonably introduce the same provision into model clause 15,and if the noble Lord will agree not to press his Amendment, I can undertake to move this modified version of it on Report.
    Lord CAMPBELL of CROY: Obviously there has been a misunderstanding, because in moving this Amendment I understood there was an arrangement that we should stop at nine o'clock for the next Business. Therefore, I moved the Amendment in rather shorter terms than otherwise I would have done, because I imagined that would be helpful. The noble Lord, Lord Balogh, has made a first reaction to my speech which was exceedingly interesting, and which I am sure noble Lords would wish to discuss. But at this stage I should like to know whether indeed it was the intention that we should stop at nine o'clock, which was why I made a brief opening speech, or whether I am mistaken in that belief.
    Lord BALOGH: If it is convenient to noble Lords, we can postpone the matter.
    Lord STRABOLGI: I beg to move that the House do now resume.
    House resumed.

  NORTHERN IRELAND SECURITY
  9.6 p.m.
  Viscount BROOKEBOROUGH Viscount BROOKEBOROUGH rose to ask Her Majesty's Government whether they will make a Statement on their secturity policy in Northern Ireland. The noble Viscount said: My Lords, I beg to move the Unstarred Question standing in my name on the Order Paper. I must first apologise to the noble Lord, Lord Donaldson of Kingsbridge, for the inconvenience which I inadvertently caused him, and also to my noble friend Lord Belstead. Both of them know that the choosing of this particular day to have this debate was not of my making. I apologise to the House as a whole for taking up time when the House is working overtime on important business, and when I feel the day-to-day business was not necessarily an affair of this House. But in spite of all that, the situation in Northern Ireland is so serious with regard to the future of the United Kingdom as a whole that it is appropriate that we should discuss it tonight.
  My Lords, I say at the outset that it must be very difficult indeed for anyone who is not in daily contact with the situation in Northern Ireland, in daily touch with the agony that the whole population of Northern Ireland is going through, to realise just exactly how much things have changed. In the last 12 months there has been a dramatic change, because for the very first time in the whole of this Emergency it is now quite literally true to say that there is a total and absolute lack of confidence in the reliability of statements emanating from the Government. This is now shared, and has been freely expressed, by leaders of every single representative Party in Northern Ireland, whether they are Roman Catholic or Protestant, whether they are hard line or soft line. We are all demanding, every one, strong and equal security throughout the whole Province. I do not believe that the Government have realised—certainly they have not given any indication of having realised—that there is total unanimity among the democratically elected people in Northern Ireland in asking for a firm law and order policy throughout the whole Province applying to everybody. This is an oppor-
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  tunity which has not been given to any Government since the Emergency started, and in my view the Government are missing an opportunity. It is for that reason that I have raised this matter now.
  I have to say, in criticism of people in the Northern Ireland Government—and the noble Lord, Lord Donaldson, will not like me paying him a compliment and then criticising the rest—that they, the Government operating from Stormont Castle, get into an enclave surrounded by barbed wire and troops from which they will not get out. To the noble Lord, Lord Donaldson, that does not apply. Nobody has gone about more in Northern Ireland and made more personal friends than the noble Lord, Lord Donaldson. I know I am paying him an embarrassing compliment, but it is totally genuine; it is felt by many people, and especially by the farming community throughout Northern Ireland. I am afraid that this does not apply to his colleagues. It is a sad thing. It is not because they would not be liked and would not be welcomed if they in fact broke out of the barbed wire.
  I am not arguing tonight as to whether or not my comment about the lack of belief in the content of Government statements is true. I am merely recording it as being a terrible and dangerous fact with which the Government simply must deal. To me it is a very painful fact, because the whole of my life has been built up on the ideal of the union of the United Kingdom, and nobody has fought harder for it, though there may be many people who have fought as hard as I have. Added to this is the next question. Throughout Northern Ireland there is a lack of confidence which is quite simply based on the questioning of the existence of the will to win. Whether it be the IRA, who have dealt with the so-called ceasefire, or whether it be us normal citizens in Northern Ireland, we really are worried about whether democracy, in the face of an attack by a determined terrorist organisation such as the IRA, has got the will to beat the terrorist. It is these two elements to which I should like to direct your Lordships' attention tonight.
  To take the first, which concerns the credibility of the Government's utterances, it really surrounds, unfortunately, the contacts with the IRA in the so-called

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  truce. I am absolutely certain, in what I believe is the correct word, that in juristic terms there is between Her Majesty's Government and the IRA no agreement, for indeed how could a binding agreement exist between what is an illegal and criminal organisation and Her Majesty's Government? But, of course, the problem is that under a revolutionary attack the population is not juristic in its judgment. The Government have declared their intention to react to the IRA, and they have in fact accepted that they will take on a low profile, order their forces to take on a low profile over security, provided that the IRA reduces its level of violence.
  One might almost say that we are entering a new era of criminal law, in that some bonus exists if you do not commit too many murders. The Government fully admit that they have explained to the IRA British policy with regard to that; that is all absolutely agreed. The incident centres have been set up to provide regular channels of communication. But these incident centres—and I do not think the importance of them as centres should be exaggerated—have become the symbol of authority within the Roman Catholic controlled areas, because they provide an access to power and to Government over a wide range of human life which is denied to the elected representatives. I think that the noble Lord mouthed the word which I thought I read, but he cannot deny that my right honourable friend Mr. Whitelaw's ceasefire broke down over a matter of housing. He cannot deny that this access to Government is in fact a symbol of authority. Whether or not from his point of view, or the Government's point of view, it provide nothing, is irrelevant, because to the Roman Catholic people in that area it does, and the SDLP, who are the elected members, are quite satisfied that their position is being undermined.
  I do not know the whole truth about the document found with O'Connell or, indeed, whether there was a document found with O'Connell, but I think that everybody agrees that there are various documents that have been flying around. I and the whole of the Ulster people who I know (I do not presume to know the whole lot, but I know all of the elected members) believe that it is a genuine version of the contents, or we can call it
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  an agenda, of the various conversations or meetings which have gone on between Her Majesty's Government—that is to say, the civil servants who, after all, are conducting these with the authority, or the power of attorney, of Her Majesty's Ministers—and Sinn Fein. I gather that they have said today that it was direct with the Army Council, but I do not give credence to them because I have always thought that it was the men of violence anyway.
  I believe also that in Stormont Castle there is a similar document in the same order, recording in exactly the same way the items which were discussed between the civil servants and the IRA. Our experience in Northern Ireland, having been under revolution for so many years, is that this is so. If the civil servants who are negotiating with the IRA, say to the IRA, "If you do this, we will do that" and if that occurs, then we in the North of Ireland, having seen and heard of these documents, feel that the resulting understanding is negotiation. No matter how much the Government may deny it, they constitute the equivalent of negotiations, agreements, or what have you. Quite honestly, to say anything else is nothing but sheer hypocrisy, and I think that the position should be cleared. Whether or not the noble Lord agrees with me, I am absolutely certain that I am speaking not for 99 per cent. but for 100 per cent. of the people of Northern Ireland. because the IRA believe that the denials of a negotiation are a hypocrisy because they believe that negotiations have existed. One of the first things we must do is to stop the doubletalk and the apologia.
  Any doubts we might have had on the reality of these understandings has been removed by our actual experience on the ground. May I look for a moment at the provisions within that particular document? The first referred to the withdrawal of troops to barracks and the reduction of troop levels. The Government would be quite right to explain—and the Government have never denied it —that this is what they did. They explained that if the level of violence goes down, the number of troops will go down. That is obvious and there is no distagreement on that. Secondly, there was the end of widespread arrest, screening, and immunity of people to arrest. Nobody

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  would deny that the screening stopped and that the widespread arrests stopped.
  For the immunity of certain people, the classic case is that of Twomey. In case your Lordships forget, intelligence reports show that for some time he was moving about freely and observed by the troops. It is well known that Twomey is the top IRA man still at large, and he was on the wanted list until after the ceasefire. I find it difficult to understand exactly why, if it was not related to the ceasefire, he suddenly came off the wanted list. The Secretary of State has said that anybody who can be prosecuted, will be prosecuted. I should like to ask the Government whether we are to assume that we cannot attach a prosecution to Twomey for being a member of the IRA. The noble Lord will remember that when we passed the Emergency Provisions Act I queried whether, if we passed all these things, the Government would use their powers. What is the point of passing powers if they are not used?
  Even if they were not going to use their power, are the authorities not aware that Twomey is a violent escaped criminal, a convict, who escaped from Portlaoise, from the Irish Republic? Would it not have ben a courtesy, would it not have been an encouragement, to the Dublin Government to have arrested him and to have encouraged them to ask for the extradition of this man? I have criticised the Dublin Government on many occasions for their failure to extradite known criminals—and there are plenty of them at the moment in the South of Ireland—to our jurisdiction that they may be tried to meet justice.
  I contrast this treatment with what happened to O'Docherty yesterday, when he was charged in Northern Ireland and then the Director of Public Prosecutions withdrew all evidence and he was taken to London and arraigned before the court here. I have no doubt about the justice of this, but to my mind the whole of the British Isles, the civilised world, should deal with people on an equal basis. Within the British Isles we should surely all co-operate in this particular way and I feel that the question of Twomey weakens our case in dealing with the Dublin Government. My contention is that nearly all points of that document, that so-called agreement, have been met
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  and I say quite clearly that the IRA can never be negotiated with because they have one point on which they have never negotiated and which they have maintained throughout the campaign. They wish Britain to withdraw from Northern Ireland. That is something on which they will not negotiate and I believe that they entered into this ceasefire because the British Government—I should say those who were negotiating or who had contact; I must be careful because the noble Lord will deny the word "negotiation"—or those who spoke for the British Government blurred the issue and denied that it was their absolute determination to maintain union within the United Kingdom as expressed under the Border Poll, which in my view it was their duty so to do.
  In dealing with the question of the will to win I shall confine my remarks to the area of South Armagh because while the principle of what I am about to say applies to larger areas of Northern Ireland, one can only deal in this debate with a certain amount, and I see from the clock that I have already been speaking for 14 minutes. When I last spoke about these matters, about the subject of South Armagh, in August, the hour was late and the noble Lord did not appear to be paying very much attention to what I was saying, but I felt then that the situation within South Armagh was developing to be very dangerous. I said then that the only military presence was in the form of posts which were supplied by helicopter. The Forces were ordered to cease vehicular patrolling—that is, actual presence on the ground—in any area of South Armagh, south of Gridline 26, and if noble Lords look on the map they will see that that means that quite a large area of South Armagh became unavailable to ordinary Regular Army operations. That does not mean that the Army could not get in there, and the noble Lord and all his Ministers can always say that there is no part of Northern Ireland that is not available to the Forces.
  But the facts of the matter are that law and order can be properly enforced only by the police, and if the Army is not regularly patrolling in that area of Armagh then the police cannot go in and enforce law and order. The effect of this has really been to nullify one of the factors which the Secretary of State and

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  his Ministers have kept on saying; they keep on saying in a way that is like personal critcism of those who were involved in the original internment that the way to deal with this particular problem is through the courts. I was there, in South Armagh, on Tuesday and I assure your Lordships that there are, or were, no police in that area and that there was a whole range of population who used to co-operate—and they are not necessarily Unionists; in fact they are the opposite—with the forces of law and order. The troops stopped patrolling there and these people have been left bare to the extortion and the rule of the IRA. They have been abandoned.
  I shall give two instances of what has happened, one of which I am sure the noble Lord will know a great deal about because it is in his Department. Sometime during the summer there was afire in the forestry area. It raged for two days. The forestry service fought the fire and they were protected by armed men. Those armed men were IRA. That is the extent of the difference in what has happened during the last 12 months. Secondly, I should like to refer to the tragic case of Mr. Meaklim, who was a small grocer who had a grocer's van—a mobile shop—and who operated throughout the whole of that area. He was kidnapped and for two days he was tortured. I am told that the tortures were absolutely horrific. The locals asked for a rescue operation to be mounted. It was not mounted because the low profile meant that to mount a rescue operation would be to put the ceasefire at risk. I ask my noble friends in the Conservative Party—my own Party—is that bipartisan policy? I do not think so.
  The Government appear to me to welcome the change to sectarian violence as opposed to the violence against the forces of law and order, hut, to me, this is similar to what would have happened in wartime if the Admiralty had ordered naval escort vessels away from a convoy and had claimed that casualties to the Navy had been much reduced while the convoy was sunk. Further to that and, in my view, much worse, I believe that this is recognising and aiding the IRA to a major victory. The first aim of a terrorist—and I have said this many times—is to make life unbearable so that retaliation occurs and so that one section of the population
  598
  takes action against the other. In this case it is done so that the IRA can go back to claiming that they are the protectors of the Roman Catholic community and vice versa. In the other place the Prime Minister revealed this matter when he revealed the plans found in the Malone Road.
  I have gone on—as I know the noble Lord will agree—too long already, but I must draw your Lordships' attention to the political effect of this because he has told me many times that politics and security are inextricably mixed and I agree with him. However, what has been happening since December is that the Government have demonstrated that the way to the top is to be a paramilitary. The men of violence—I am not referring only to the IRA—have been rejected time and again by the electorate, yet the IRA have access to the Government and to power through the incident centres and, as the noble Lord will know, the paramilitaries on the Protestant side have had access to Ministers. If I mention one thing about the inconsistency of the whole matter, I would say this: my friend Mrs. Dickson, who has been a local councillor for many years and who is an elected Member of the Convention, was asked by a tenants' association to see a Minister and when that Minister saw that she was on the list to see him he said that the deputation could not be seen because she was a Member of the Convention.
  So far as the paramilitary is concerned, there is an elected Member called Mr. Glen Barr. He was one of a deputation to see the noble Lord's colleague. When the Minister saw that Mr. Glen Barr was a member of the deputation he said: "I cannot see him". So Mr. Glen Barr said: "But I am coming to see you as a paramilitary"; so he was seen by that Minister. I am sure that your Lordships will agree that this is the elevation of the men of violence and the degradation of those who have gone to the polls in the exercise of democracy.
  The noble Lord will know that his Secretary of State has lectured to us, as elected Members of the Convention, that we were not elected to govern. I agree with that. It is totally correct, and it could be stood over if it were not for the fact—of which I have told your Lordships—that the men of violence have,

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  in fact, affected Government in many, many ways, because the first duty of Government is to provide law and order. They have altered the course of law and order, although we who were elected are not given access to Ministers.
  I am afraid that I feel that the past actions of the Government and the actions which the Government took prior to the withdrawal from Aden are so similar that there is no coincidence. Unless the Government take strong action now to bolster democracy and to support those who are elected in the future, the outlook for the Province of Northern Ireland and the future for the United Kingdom—and I believe in the unity of the United Kingdom—is not very good. I am sure that nobody in Northern Ireland will deny the Government total support in an evenhanded security policy throughout the whole country.
  But at the same time it must be remembered—and it is no use anybody denying it here because I know that the noble Lord, Lord Dunleath, and my noble friend Lord Moyola will support me—that there is not a sinner in Northern Ireland (and we are all sinners) who does not agree that there is no confidence at present in what occurs in speeches and statements from the Government of Northern Ireland, and there is not confidence that the Government have the will to win. We must build up democracy, demonstrate our will to win and, for goodness sake, stop being hypocritical. I await the reply from the noble Lord.
  9.33 p.m.
  Lord BROCKWAY: My Lords, the noble Viscount, Lord Brookeborough, will not expect me to agree with much of what he said. Nevertheless, I welcome the fact that he has delivered his speech tonight. I welcome it because if we are to approach any contribution to a solution in Northern Ireland we must understand the point of view of the two communities. The noble Viscount has spoken for the majority community. We must seek to understand it. He has spoken with intense sincerity, and his attitude, and the attitude of those for whom he speaks, must be appreciated if we are to approach any solution in Northern Ireland. My only regret is that there is not someone in your Lordships' House who can speak for the
  600
  minority community and for the SDLP, because we must understand the attitude of the minority as well as the attitude of the majority and seek some conciliation between them.
  The tragedy and the complexity of the problem in Northern Ireland is such that none of us today can speak with dogmatism about how we should proceed. All we can do is to make suggestions—but tentatively, with reservations because of having no solution. It would be a very bold and arrogant man who today said that he could find any solution to this problem. I want to say at once that I do not think there is any Member of the Government for whom I have more sympathy than Mr. Merlyn Rees. He has difficulties which are inestimable, and if any of us are to speak on this problem it must be to try to contribute some suggestions for consideration even though they may not be finally acceptable.
  I want to endorse the view which Mr. Merlyn Rees has so often expressed, that the solution to this problem must be found by the people in Northern Ireland itself. It was for that reason that I welcomed the suggestion of the constitutional Convention. By accident I was the first in both Houses of Parliament to propose the idea that a Convention of this character should be established. I admit that as it proceeded I became fearful as to whether it would make a recommendation which would be a contribution to the solution of the problems of Ireland, because now we have the confrontation of the Loyalist majority who say, "No power-sharing in the Cabinet", and of the SDLP minority who are insisting upon it.
  I regret very much that in the final report from the Loyalist majority the paragraph has been deleted which suggested that in an emergency situation there should be a Coalition Government. I pay tribute to Mr. Craig in his advocacy of that proposal. But in this situation, when the Loyalist majority is saying, "No power-sharing", and the SDLP is saying, "We are not prepared to accept any proposal which keeps us out from the Cabinet", I want to urge that we should still be seeking some proposals for an agreement between the two sides before the situation reaches a point of emergency where there will be no reconciliation.

  601
  I am not asking Her Majesty's Government to accept tonight a proposal which I am now making after some discussion with others, which I hope may be a ground for an agreement between the Loyalist majority and the minority in the Convention. It is this: that while the Cabinet in Northern Ireland should be composed of Members of the majority Party, there should be attached to it an authoritative Commission, with a status greater than Departmental committees, with the duty of establishing security and containing violence and that this Commission should be representative of both the Loyalist Party and the SDLP for the period of the emergency.
  My Lords, I do not ask for an acceptance of this proposal tonight. I do ask the Government to consider whether on these lines, even at this late moment, there might not be a basis of agreement between the Loyalist majority and the SDLP minority. This proposal would meet the Loyalist demand for a Cabinet composed only of Loyalist Members; but it would give the SDLP the effective coalition for dealing with the confrontation between tilt two communities and its terrible consequences. I ask the Government to look quite seriously at this proposal which might possibly bring agreement.
  My Lords, having said that one recognises that power-sharing in the effective control of Northern Ireland is desirable now, desirable particularly during the period of negotiation, power-sharing should not be regarded as a permanent solution. In this country we reject Coalition Governments and similarly in Northern Ireland Coalition Governments will be no solution of its problems. Underlying the conflict between the two communities there are social and economic conditions and discrimination which contribute to that conflict. It is difficult to conceive of any power-sharing by Loyalist Members—the leaders of whom, though not the democratic members of the Workers' Council, represent big business interests—with the SDLP which has many sincere Socialists resulting in a long-term agreement about the solution of its social and economic problems. Therefore while we may look forward to power-sharing in one form or another in the Cabinet—or in effective commissions which control the problems of security and containing of violence—as desirable, power-sharing
  602
  is not the permanent solution to the problems of Northern Ireland.
  My Lords, for 50 years the Government at Stormont suppressed the minority community and practised in its administration discrimination against the minority. What is supremely required today is, whatever Government are in power, that there should be basic civil rights without discrimination. I have twice introduced in this House a Bill of civil rights for Northern Ireland. I suggest that the immediate necessity in Northern Ireland is a charter of civil rights with statutory powers which will secure for the Catholic minority the rights against any discrimination. Much has been done already in housing; little has been done in employment. But if in Northern Ireland there could be a basis of civil rights for all without discrimination, then whatever Government were in power, there would be a feeling among the minority community that their rights had been established.
  Such a Bill of civil rights in Northern Ireland would demand a human rights commission, to which appeals could be made if that charter was disobeyed. We have a human rights commission in Europe. Its inadequacy is the long time before any decisions are reached. But I urge very strongly that the basis, whatever Government are in power in Northern Ireland, should be a charter of that kind, where reasonably rapid decisions could be made when any appeal was put forward against its denial. That is the basis of ultimate Government in Northern Ireland.
  I should like to see the issue of partition in Northern Ireland put on one side. It is now agreed that the question of any agreement of Northern Ireland to unite with Southern Ireland should be a matter of the consent of the majority of its people. If that is true, then should not the period meanwhile be used by the coming together of the Catholics and Protestants to concentrate on the problems of Northern Ireland itself—the problems of unemployment, the problems of housing, the problems of the poverty of its people? There could be unity between the workers in the Protestant and Catholic community in uniting for their common aims against their social and economic injustices. That example of Catholic and Protestant unity in dealing

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  with the problems of Northern Ireland itself, and for a time forgetting the issues of the partition, would be the best preparation for any unity between the Catholics and Protestants throughout all Ireland. I make these suggestions not because I believe they will solve all these problems, but that they represent the kind of approach which is necessary if we are to find an ultimate solution.
  9.50 p.m.
  Lord MOYOLA: My Lords, I should like to start by saying how grateful I am to the noble Lord, Lord Donaldson of Kingsbridge, for being here tonight, because I know he is here at some considerable personal inconvenience. Then I should like to say that I have not come here to criticise the integrity of the Secretary of State, nor to impugn his motives, which I am quite certain are genuine enough. What I have come here to do is to criticise his security policy, which seems to be hung around this ludicrous ceasefire, which is nothing more now than an exercise into Alice in Wonderland.
  We are faced with the situation when we are told we have a ceasefire, yet people are killed in the Hilton. We are told we have a ceasefire, yet 18 bombs can go off in Northern Ireland, as they did last Monday. Several others have gone off since, and we are still told we have a ceasefire. We are told, "You can have a ceasefire by degree", but the Royal Ulster Constabulary are exempted by the IRA from the ceasefire. They may be targets and at the same time, because of the low profile approach to which the noble Viscount, Lord Brookeborough, has referred, the Army are in the difficult situation where, if they do too much in an effort to help the Royal Ulster Constabulary, they are in danger of breaking this farcical ceasefire.
  It is the low profile approach of which we in Northern Ireland are complaining. It has already allowed months of what I can only call semi-peaceful penetration by the IRA. The media assured me over the last few days—and indeed I have seen a certain amount of activity and can confirm from personal knowledge what they say—that the level of activity by the Army has greatly increased. But what we need in Northern Ireland is an assurance
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  that this level of activity is going to continue and, if possible, that it is going to increase. The plain fact of the matter is that the IRA can turn the violence off whenever the fancy takes them; and if that is the case then we need the assurance that the Army will be allowed—and I emphasise the word "allowed"—to pursue the terrorists relentlessly, regardless of the ceasefire and whatever its purpose may be.
  To return to the ceasefire, we have had all this violence, and yet this pretence still continues. Why is it continued? What is the purpose of it, and what is it achieving? What is its importance now? Nobody can possibly pretend it is saving lives. Over the months since the ceasefire came into existence an enormous number of lives have been lost. I do not know the exact figures, but I am sure that the noble Lord, Lord Donaldson of Kingsbridge, can tell us. I am not suggesting for a moment that they have all occurred as a result of the ceasefire, but certainly some of them have.
  What the ceasefire undoubtedly seems to have done is to allow the IRA to re-group, to re-equip, to reorganise and to collect more money. Above all, as the noble Viscount, Lord Brookeborough said, it has removed all confidence in the Government's will to win. It is no exaggeration to say that there is now quite often a feeling among reasonable people which I can only describe as akin to despair, because there seems to be no progress at all.
  Of course, this lack of confidence simply encourages people to take the law into their own hands. Their attitude is that they say to themselves, "If the Security Forces are prevented from defending us, then we will defend ourselves." This in its turn is breeding private armies, paramilitarism, whatever one likes to call it. It follows from that that the power is being removed from the politicians, and if we believe in democracy it is with them that the power in fact should lie. Further than this, because this violence can be turned on and oft the prospects of peace get further and further away. Indeed, my Lords, the only credit I can see—and some people would not concede it as a credit at all, but I would—is that it has allowed the Secretary of State to release a number of

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  internees. I do not believe that this farcical ceasefire was needed to do that.
  It may be that the ceasefire has been encourged and efforts have been made to keep it going with a view to keeping things cool while the Convention was meeting. I have said before in your Lordships' House and I would say again, that it is the priorities that we have wrong. Political solutions will come much more easily when violence is at an end. The pressures that violence produces are such that one is never going to obtain any reasonable answer. The proof of that is that the Convention, I will not say has collapsed but is now in grave difficulty. It got into grave difficulty just after the worst of the sectarian violence a few days ago.
  I hope I have said enough to make it absolutely plain that there is a total lack of confidence in the security policy—I say here, not in the Security Forces but in the policy. There is also now a situation where people are becoming thoroughly frightened. This was not so until a few weeks ago, but the situation has now changed. If an unexpected knock at the door comes at night people now begin to wonder whether, if they open it, they are going to be alive in two minutes' time. It is because people are frightened—and they are indeed frightened—that everyone, it does not matter what is their creed or what are their politics, everyone except the terrorists, wants to see this situation stopped. I am absolutely certain in my own mind that people would put up with any measures, however inconvenient, if they could see a prospect of peace returning. But on the present policy no one can see peace for eternity.
  I am not going to be an armchair tactician. I have complete confidence that the Army can devise the necessary measures for dealing with the problem provided that it is allowed to. The only point I want to make in this connection concerns the Royal Ulster Constabulary who are not covered by the ceasefire to which we still seem to be clinging. Everyone knows that the Royal Ulster Constabulary needs a massive increase in strength. What we have basically is a law and order problem, and in the end it is the Royal Ulster Constabulary who will have to deal with it. This extraordinary situation whereby they are not covered by the ceasefire cannot be anything but
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  very lowering for their morale, and it certainly can be no help to encouraging further recruiting. I was very glad to see what the Secretary of State said, I think, last night. But the Royal Ulster Constabulary will need a lot more than statements; they will need massive support.
  I think back to the decision which my Government took years ago to disarm the Royal Ulster Constabulary. We did it because there was an undertaking that by putting the Royal Ulster Constabulary on the same footing as the other police forces in Britain we would get a change of personnel and would be able to ask for reinforcements to deal with particular occasions. These promises have never been fulfilled. I mention this simply because I want to make it plain that the RUC has had a rough deal all the way and that this bogus cease-fire and their exemption from it must not be added to their burdens.
  All I want to do tonight is to make plain that the policy of worrying about this non-existent cease-fire is leading absolutely nowhere. It will not bring peace. I for one cannot find any justification whatsoever for it, unless it is preparing the ground for an unitimate surrender and I shudder to think what the consequences of that might be. All that we want in Northern Ireland is a new policy that leads to the restoration of law and order. I believe that because people are frightened this is the moment that it can be restored and the nettle grasped. I believe absolutely that people would put up with any measure, however inconvenient it might be, if they believed that it was working towards the restoration of law and order.
  10.2 p.m.
  Lord DUNLEATH: My Lords, I have listened with great interest to the three noble Lords who have already spoken. All three have said things that I was going to say. I will just mention that having heard the speech of my noble friend Viscount Brookeborough, the noble Lord, Lord Brockway, said what a pity it was that there was nobody in your Lordships' House this evening who was able to speak for the minority. Why does the noble Lord think that I cannot speak for the minority? The answer is that I am a nonentity; I am insignificant, and I understand that. However, the minority vote for me. I work for the

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  minority and I speak for both the majority and the minority. I do not believe there is any conflict whatever. I think that the noble Lord is trying to rise to his feet and I am wondering whether he wishes me to give way?
  Lord BROCKWAY: My Lords, I simply want to apologise immediately. If my noble friend is speaking for the minority I welcome that fact. I regret that I did not realise that this was so.
  Lord DUNLEATH: My Lords, I am grateful to the noble Lord for his generous remarks. Perhaps I overstated it but I was trying to point out that it is possible to speak for both the minority and the majority in Northern Ireland. difficult though it may be at times. The noble Lord, Lord Brockway, mentioned also the question of human rights. I agree with him entirely that this is some thing for which we have been pressing and for which we shall continue to press in a tireless manner.
  So far as security is concerned, the Alliance Party which I represent has deliberately avoided what one might call race-bashing. We have tried to avoid destructive criticism of the Secretary of State because we do not believe that it does any good, nor do we believe that it does any good to make unrealistic suggestions such as, "Let us have martial law; let us have a Province-wide curfew; let us have minefields right along the Border; let us seal off the Border." I think this does not do much good. We respect the Secretary of State as being a sincere man who is doing an unenviable and thankless task to the best of his ability, and I do not know of anyone who could do it better. I think people who jump on the "Rees must go" band-wagon are people who are unrealistic or hypocritical. Right enough, he may have made errors—we all do—but I would say that Mr. Rees has rendered a service to Northern Ireland and I would say "thank you" to Mr. Rees and "thank you" to those, including my noble friend Lord Donaldson of Kingsbridge, who work with him.
  I am sorry to say, however, my Lords, that the public impression is much as has been described by my noble friends Lord Brookeborough and Lord Moyola; there
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  is a feeling that Government policy is undermining democracy in Northern Ireland. There is a feeling that the contacts which have been made, not just with the Provisional IRA through the incident centres but also with some representatives of the so-called Loyalist paramilitaries, indicate that there is a greater measure of contact between these non-elected people than there is between the Secretary of State and the elected representatives. There is also the feeling that Her Majesty's Government are being held to ransom, that any time the Provisional IRA feel like it they can break the so-called ceasefire, and immediately there is a flurry while senior civil servants get on the telephone to see whether they can reach some accommodation. I am not saying this is the case, but I am afraid it is the impression that exists. This impression has been reinforced by the recent spate of bombings that has been referred to, and I think particularly the sectarian assassinations that have taken place, which really have caused much more fear in the community than even the bombings. When you live in a remote farmhouse in South Armagh or mid-Tyrone and you hear that one of your neighbours has been assassinated and perhaps his wife and family injured as well, you wonder whether it is going to be you the next night. This really strikes fear into the community, and as other noble Lords have said there is a greater lack of confidence and a greater sense of fear in the community than has been the case even at the height of the bombing campaign.
  I am afraid the elected representatives are made to look irrelevant in certain ways; the contacts, as I have said, with the non-elected representatives of the paramilitaries; also the fact that Mr. Rees—and in a way I can understand his motive here—has not felt it possible to give unlimited access. At times he has not found it possible to give access at all to elected representatives, but I am afraid this gives the impression, not just to the public but to Convention Members as well, that whereas they have the mandate and they were democratically elected they are not accorded the same respect, they are not taken into the same confidence as representatives of the IRA and the UVF who have not been elected. Indeed, at any time the IRA would not

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  face it. They opted out and recommended the boycott of the last election, and the UVF had a go. They put up a pathetic performance, and they lost their deposits. So I think it is a question of the ballot box or the bullet. I am afraid that in Northern Ireland there is this feeling that perhaps Her Majesty's Government are paying more attention to those who wield the bullet than those who have been democratically elected and have a mandate from the electorate through the ballot box.
  My Lords, having said that, I think it is the responsibility of the elected representatives to try to make constructive and realistic suggestions. In the Party which I represent we have a Security Committee, of which I am the chairman. We meet regularly to discuss the security situation, and recently we met the Secretary of State and made a number of proposals to him. Having gone through all the various proposals that have been made, such as curfew, martial law, "sieving "the Border, putting minefields at the Border, and so on—having gone through all those, we have come to the conclusion that there are no such things as instant solutions. There is no easy answer, otherwise someone who has access to far more intelligence than we have would have come up with it before now.
  My Lords, contrary to what was said not very long ago by the noble Viscount, Lord Brookeborough, we cannot agree that there is any such thing as a straight military solution. If all the terrorists, whether IRA or UVF, spoke with a thick German accent or wore uniform all the time, it would make things much easier. But they are not as accommodating as that; they are not so thoughtful as to do that. We do not believe there is any such thing as a straight military solution. The role of the Army is to try to create a climate in which a political solution can be brought about. It is regrettable that it has not yet been possible to create that climate. I am afraid the progress that was being made towards creating that climate earlier this year has receded, and the outlook is not so optimistic.
  However, our Security Committee made a number of suggestions to the Secretary of State. One of those suggestions was that the law should be strengthened. In accordance with the
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  recommendations that we made to the Committee chaired by the noble and learned Lord, Lord Gardiner, we suggested that it should be incumbent upon defendants to be accountable for their movements, and that they should have no right of silence in court. In other words, if they declined to give an account of their movements, declined to recognise the court, it would be taken for granted and assumed that they were not contesting the prosecution evidence proffered against them. We put this proposal to the Gardiner Committee.
  My Lords, another proposal we put to the Gardiner Committee, and which they actually accepted, was that there should be an independent complaints procedure for the police. This we feel should also cover the Army, the UDR, and all arms of the Security Force, in the interests of the Security Forces themselves, and with a view to making them more universally acceptable so that smears could not be directed against them. The Gardiner Committee suggested that this should be set up in Northern Ireland without necessarily waiting for an equivalent procedure to be set up in England. We regret that Her Majesty's Government have not yet been able to see their way to doing this, because we think it would do much to enhance the acceptability of all the Security Forces in Northern Ireland.
  Another thing that we put to the Secretary of State was this. I personally welcomed the cessation of the proscription of the UVF, as indeed was the case at the same time with Provisional Sinn Fein, because I hoped that they might move in a political direction and become politically involved. I am afraid we have come to the conclusion that that has not been the case, and therefore I think Her Majesty's Government should perhaps look carefully once again at proscribing the UVF, who, after all, quite openly admit to murder and violence. Can Her Majesty's Government sit back and say, "This is a perfectly legal organisation; there is nothing wrong with being a member of that"?
  Another moredetailed suggestion I made followed the rather frightening incident, which your Lordships may perhaps remember, when a phoney UDR patrol stopped a show band in the South, I think in County Down, and assassinated a number of them. I know from my

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  own experience how difficult it is in the headlights of your car, which you are asked to turn off at night, clearly to identify the nature of a vehicle checkpoint. It is quite easy to "doll up" a Land Rover so that at night it looks like a Security Forces Land Rover. Ideally, if here were enough Saracens to go round, and if there could be a Saracen at each vehicle checkpoint, they are not nearly so easy to simulate. But in the absence of that assistance, we suggested to the Secretary of State that there is an electronic device which gives a limited range sonic tone of high frequency, which would not be all that easy to simulate. If the public could be made aware of that, and if such a device could be circulated around the UDR and the Army, I think it would create greater public confidence.
  I must say that perhaps we in the Alliance Party are rather like Macnamara's Band—we may be few in number but we are the best in all the land. We and other Parties, such as that represented by my noble old friend-cum-adversary, Lord Brookeborough, perhaps have the benefit from time to time of the advice of various categories of public convenience technicians. We in our Party have access to some very consider able expertise. A professor who runs a department of computer technology has told me that there would be a very much greater scope for usage of computers, not just in listing stolen vehicles or suspect vehicles, but also in compiling and recording case histories of all personnel.
  I realise this is contrary to what people regard as being the normal civil right of citizens in the United Kingdom, that there should be a file on every person. In normal circumstances I would completely agree; I should not like to think that, lurking away somewhere in its circuits, a computer had details of my own murky history. But my computer expert tells me that it would be very much easier for Security Forces, when they stopped someone on the road, to ensure that they could confirm that he was who he said he was, and that he was doing what he said he was doing, if they could ask a few simple questions of a computer. This, entirely as an emergency measure during an emergency situation, indeed would,
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  I think, be very much more effective than identity cards, which can more easily be forged.
  Further, are we really deploying our Security Forces to the best advantage? From information I have received from members of the Ulster Defence Regiment and the Royal Ulster Constabulary Reserve—those who have made the sacrifice of joining up and causing inconvenience to themselves and their families—they soon find that they are doing rather boring routine duties. They are necessary duties perhaps, but are their duties as important as getting a grip on the situation in South Armagh where all these assassinations have taken place, or in the murder triangle in North Belfast. I suggest that it would be a tremendous service to the wretched people living in these areas, and would do a great deal to boost the morale of the volunteer security forces, the part-timers, if they could be put in and made to feel that they were really getting their teeth into the problem that needed to be solved, because at the end of the day it will have to be Ulster men who solve the problem in Northern Ireland. We cannot do without the Army yet, but one of these days it will be our own people who will have to solve this problem, and this is an appropriate time for our Ulster volunteer security personnel to show that they really could do it.
  The noble Lord, Lord Brockway, mentioned an overriding security committee. For something like two years we have suggested and proposed that there be an all-Party security committee in Northern Ireland or something, but unfortunately other Parties would not agree to it. I am very glad that the noble Lord, with his wide experience, has added his support to this, and I sincerely hope that an all-Party approach to security can be taken in the not too distant future.
  To conclude, my Lords, it cannot be said often enough that the vast majority in Northern Ireland want peace, democracy and normality. The fact that they want democracy is indicated by the last Election, the Convention Election, where the percentage polled was higher than it was in the October 1974 General Election, despite a boycott because the IRA knew that they could not face it. They had not the nerve to face an election. They advocated a boycott, but even so there was a reasonably high poll by any

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  standards, and higher than the previous election.
  The vast majority are tired of the minute minority who have no mandate from the electorate but who try to bulldoze their point of view out of the barrel of a gun. The vast majority want nothing to do with them at all, and the vast majority want the support of Her Majesty's Government. I must say that the vast majority are also sickened and disgusted with small-minded politicians, short-sighted men, who are politically ambitious and who are prepared to make a political football of the tragic situation and of the personal tragedy of people in Northern Ireland. There is a great sense of disillusionment in politicians of all shades in Northern Ireland. I wish that a leader would arise and cut through all this nonsense of filibustering Press statements, and zig-zagging, and political sorting about. I can tell your Lordships that the people of Northern Ireland would respond to it. I wish we could get away from the small men with the small minds, relegate them, leave them behind. Let us move on to something more honourable, and with a more realistic future to it.
  If such leadership were to arise it might galvanise the people because it is time for the people to unite in the face of a common enemy, and the common enemy is the violent minority. They are not confined to Northern Ireland; they are not uniquely Ulster people by any means. As a matter of interest, I was speaking this morning to an authoritative person who told me about the way in which the civil rights movement was infiltrated by outside elements who were not remotely interested in civil rights but who wanted to manipulate that organisation for their own anarchistic purposes.
  The resistance we must show in Northern Ireland to anarchy and the forces of evil and violence should apply to the rest of Great Britain, for it will not necessarily be confined to Northern Ireland. The two islands are not very far apart and, as Karl Marx once said, the best way to get into Western Europe is through Ireland, and there might still be truth in that. I therefore appeal to Her Majesty's Government to keep the Convention going—depressing though it may seem at the lack of progress there has been—because there are a lot of deep-seated
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  difficulties to overcome and a lot of history to cover and overcome in what the Convention is trying to do. Of one thing I am sure: if stalemate is reached, a referendum of the people of the country could well reveal a very different result from what the politicians would give one to understand. I hope, therefore, that Her Majesty's Government will not lose patience but will be determined to keep the Convention going and give it every opportunity to reach a conclusion.
  10.27 p.m.
  Lord O'NEILL of the MAINE: My Lords, as we are discussing Northern Ireland tonight I should like to make a very few remarks. I doubt very much whether anything your Lordships say tonight will have the slightest effect on the situation in Northern Ireland as it exists today. We heard on the Northern Ireland Radio on Monday morning that your Lordships' House would be having a full debate on Northern Ireland, yet there are only 15 people in your Lordships' House tonight. This may or may not be an example of the interest which the British people have in Northern Ireland affairs.
  I fear that most British people would like to sweep Northern Ireland under the carpet if they could because it is an embarrassing and incomprehensible problem for them to consider. Unfortunately there are some eternal truths in the Irish situation. To begin with, the extremists have a vested interest in the continuation of violence. If peace were to break out tomorrow the extremists, be they politicians or men of violence, would cease to have any relevance, and for people to cease to have relevance to a situation is a very serious thing for them. Therefore, I think your Lordships can take it that violence will continue, otherwise the extremists will come to an end. Extremists—who are not men of moderation—will not be willing to bring about their own demise.
  Secondly, I should like to repeat what I have so often said in your Lordships' House: in Irish history the extremists have always won. In 1916, as I have often told your Lordships, the vast majority of the population of Dublin were entirely hostile to the rising which took place at that time, but, once the Right Wing of the British Cabinet had ensured that those who took part in the rising

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  should be executed, the whole Irish situation became insoluble. So, wherever these extremists are living, be it London, Belfast or Dublin, they will ensure that the situation will be impossible and that the extremists will always win.
  I fully agree and find myself in total sympathy with very much of what the noble Lord, Lord Dunleath, has just said. No one in the Secretary of State's position can possibly please both sections of the community, but I would at the same time plead with the noble Lord, Lord Donaldson, that he should pay attention to what my noble and learned friend Lord Hailsham said the other day because, to me, one of the most important things from the British point of view and from that of Northern Ireland is that the bipartisan policy should continue. It seems to me to be absolutely essential that this should be the case. There can be no profit whatsoever for the Protestants in Northern Ireland that their case should be taken up by the Conservative Party in opposition to the Labour Party. If people do not believe me, they should read Lord Carson's last speech in this noble House, in which he said that he realised years later that he had been used by the Conservative Party, but that they had never really supported his views.
  The bipartisan policy must be continued and that is why I should like to repeat to the noble Lord, Lord Donaldson, that if it be the case—and I believe that perhaps it is—that Mr. Rees, whose appointment I welcomed in this House, is not keeping the Conservative Party fully abreast of his thinking, he should make every effort to do so. I feel that this is a very important point indeed, Speaking entirely personally, I always found that the Conservative Secretary of State was very keen to talk to all and sundry. He made mistakes; everybody makes mistakes in Ireland. It is impossible to win in Ireland. I hope that Mr. Rees will take heed of what my noble and learned friend Lord Hailsham said the other day. I believe that it is most important that this bipartisan policy should continue.
  The Press and all the media have been fascinated during the last three weeks by the position which Mr. Craig has suddenly taken up. Of course I have known
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  Bill Craig for the last 20 to 25 years. He used to be a great personal friend of mine. He is a brilliant and, at the same time, perhaps a slightly unbalanced personality. I hope to God that he will win through. But I still remember, a year ago, the noble Earl, Lord Longford, speaking from the Benches opposite, saying what a very high regard he had for Mr. Murray, the leader of the Protestant strike last summer, whom he had met at the Oxford conference. After that debate I told the noble Earl, Lord Longford, "If you have a high regard for Mr. Murray let me assure you that Mr. Murray will be disowned tomorrow"; and, sure enough, he was. He was kicked out!
  Going on precedents, I fear that if Mr. Craig wants to survive he will have to go back on the statements he has made during the past three weeks. I hope to God that I am wrong in saying that. I hope to God that he will survive, and I hope to God that his policies will survive. But if we go on precedents it will be very difficult for him to survive.
  Once again following in the footsteps of the noble Lord, Lord Dunleath, I myself, who proscribed the UVF, was slightly shocked—although I did not say anything at the time—when Mr. Rees legalised them. I am not sure that history will show that he was correct. I shall not dwell on that subject any further, but I have some doubts, as expressed by the noble Lord, Lord Dunleath, that this policy will turn out to be correct.
  I do not want to delay your Lordships any more. I very much doubt whether this debate will achieve anything whatsoever, because it is the extremists who count in Northern Ireland. I wish the noble Lord, Lord Donaldson of Kingsbridge, well, and I hope that he will pass on some of my remarks to the Secretary of State, bearing in mind that, so far as Britain is concerned—as apart from Northern Ireland—the important thing is that the bipartisan policy should continue.
  Baroness LLEWELYN-DAVIES of HASTOE: My Lords, before the noble Lord sits down I am sure that he would not wish the remarks with which he opened his speech to be interpreted wrongly—bearing in mind that at this very late hour, at the end of an extremely grueling week, there are not very many

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  of us here. This does not in any way represent a lack of interest on the part of your Lordships in the Northern Irish question. We have debated this question often and often, and in great depth. I should not like anything that the noble Lord has said to be interpreted, especially in Northern Ireland, as showing any lack of interest on the part of your Lordships, and indeed Parliament in general, in the tragic events that are taking place there. I am sure that the noble Lord himself—although he need not say so—will agree with what I say.
  Lord O'NEILL of the MAINE: My Lords, while I accept what the noble Baroness says, I should point out to her that when I said that very little notice would be taken of the debate, the noble Lord who deals with Northern Ireland agreed with me.
  10.38 p.m.
  Lord BELSTEAD: My Lords, listening to the speeches this evening, it is clear that from each of the three noble Lords who speak with detailed knowledge from living in Northern Ireland there has come a fundamental questioning of current security policy. I am bound to say that I did not really detect that the noble Lord, Lord O'Neill of the Maine, exactly radiated a message of hope this evening. However, I am sure that we would agree that the Unstarred Question from my noble friend Lord Brookeborough this evening is being put to the Government at a crucial moment for Ulster; after all, the Convention is still in Session.
  The opportunity for political agreement, at least on some essentials, has not yet slipped away, but the political and security problems are closely entwined, as noble Lords have made clear. As the Convention is concluding its work, it is the fact that the security situation has deteriorated quite considerably. Perhaps the first question that anyone who longs for peace in Northern Ireland would naturally ask is: are terrorists being pursued as energetically as possible? I am well aware of the contents of the Secretary of State's Statement which was made in this House on Monday evening, and my question is in no way related to that.
  I wish to know, for instance, whether arrests of wanted men are being achieved as successfully in recent months as they were before; whether the recovery of
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  arms, ammunition and explosives has recently increased or decreased; whether there are areas where it has been agreed that the Army will not penetrate at all—a question which the noble Lord, Lord Carrington, put the other day in an exchange on the last Statement. In putting that question, I am not referring only to urban areas; I bear in mind what my noble friend Lord Brooke-borough said about South Armagh.
  I think also that law-abiding people need to be re-assured that the security policy on detention rests on a success rate in bringing those who are arrested before the courts. From this side of the House we have previously pointed to the danger of releasing large numbers of detainees at a time when violence is increasing. Although I confess that I do not agree with the Secretary of State's timing in this matter, I understand and respect the reasons which he has for persisting with the release of detainees. But, at the very least, that policy must be backed by having a high proportion of those arrested then charged with scheduled offences. I note from the newspapers today that the Secretary of State has reported the figure of 42 persons charged this week with terrorist offences. That is interesting; but what I am asking is whether the success rate of persons arrested, then charged during the period of the ceasefire is at a satisfactory rate.
  I should be interested to know what estimate the Government make of what I call general lawlessness: the stealing of cars, the omission to license vehicles, the withholding of rent and rates, and armed robbery. I think that these things take their toll of public confidence and undoubtedly they assist the terrorist to escape. He may drive a car which cannot be traced, live in a house whose owner is unknown to the authorities, finance his activities through armed robbery. All these things have been going on for some time. I make no political point here. It is far easier for the terrorist to merge imperceptibly into the background of general lawlessness and evade capture. Those are questions which long suffering members of the public in Northern Ireland are bound to ask and to draw their conclusions from the answers. I accept that the response to such questions needs to be interpreted with understanding of the prevailing security situation; but, in

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  general, I think it is those sort of issues which at least gives us some yardstick of the prevailing security success.
  But, my Lords, the events of the last six weeks, and particularly of this week, pose, I think, a deeper and more fundamental question. Has the motive for the Provisional IRA ceasefire been merely to buy time and to mislead, or was there a real hope that it might lead to a more lasting peace?
  When, nine months ago, Parliament reassembled for the New Year, the Secretary of State, reporting in another place on January 14th, on what he had stated following the Christmas ceasefire, repeated:
  "… the actions of the Security Forces in Northern Ireland would be related to the level of any activity which might occur." —[Official Report, Commons, 14/1/75, col. 201.]
  At that time this was the only reasonable response which a Secretary of State could make; and in both Houses from these Benches we shared the Government's hopes for the ceasefire and promised our support provided that there were no secret negotiations with the TRA and provided the Secretary of State would undertake to hold himself ready to respond if the Security Forces warned that the ceasefire was a pretext for the IRA to re-group and to re-form. During the year the Secretary of State has done everything in his power to trust the intentions of the IRA. But that trust has been betrayed and it is now a contradiction in terms to refer any longer to a ceasefire. I do not suggest that, for instance, the incident centres should be disbanded, or the hope of further reduction of violence should be abandoned.
  What I suggest is that the events of this week must surely leave the Secretary of State free to take the measures which the security situation demands, and certainly I would accept that the Government have responded to this week's sudden escalation of violence. The reply of the noble Lord the Leader of the House to the Private Notice Question of my noble and learned friend Lord Hailsham of Saint Marylebone on Tuesday made that abundantly clear. My worry is this. In that reply, the noble Lord, Lord Shepherd, repeated once again those familiar words: the Security Forces will respond to the level of
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  violence which occurs. I must put it to the Government that it seems this has now become a policy of reacting to events instead of attempting to shape them. A policy of military repression against the wishes of the majority is a tragedy for any free country.
  But this is not the situation in Northern Ireland. The IRA are a cruel minority relying, as the noble Lord, Lord Dunleath, said in his speech, solely on the power of the gun for persuasion. The principal sufferers from terrorism are the majority of the ordinary people who look to the Government for protection. The elected representatives of all shades of opinion have made clear that they need strong security if their political decisions are not to be usurped by paramilitary organisations. This was perhaps the most valuable point which my noble friend Lord Brookeborough made in his opening speech.
  Also my noble friend asked whether on these Benches we can support a bipartisan policy which failed to retaliate against a particularly brutal murder which he mentioned. Apart from the fact that my noble friend does not need to be reminded that this year sectarian murders have been perpetrated by both sectarian extremes, perhaps I could reply by saying quite openly that I do not think anyone can seriously claim that a consistently determined policy against terrorism, not a policy of response, would be other than a reflection of the will of the people of Northern Ireland at the present time.
  It is clear that the processes of searching and screening always draw accusations of harassment. But one can be forgiven the conjecture that such protests usually come from those who have something to hide. It is significant that harassment has been given by the IRA from Dublin as at least one reason for this week's appalling violence. So far as I know, there has been no protest from Northern Ireland politicians about increased activities of the Security Forces and, indeed, at the beginning of the week both the official Unionists and the STLP were issuing statements condemning the IRA, and also voicing their suspicions which were answered in full by the Secretary of State's Statement which was made on Monday.
  This leads me to one further point which was raised by my noble friend on

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  Tuesday, and was also referred to by my noble friend Lord Brookeborough in his speech. Since the start of the Convention, apparently it has been the policy of the Secretary of State not to meet Members of the Convention on deputations. I realise this policy stems from a desire to see Northern Ireland representatives work out a political future for the Province without interference. But in consequence, Northern Ireland politicians have obviously come to feel isolated, unable to warn, advise or seek assurance. Equally, the Secretary of State has in a sense become isolated from first-hand views of grass roots opinion. I would ask the Government seriously to consider some dialogue between the Secretary of State and the elected Members of the Convention.
  I believe it is essential that the Government should be certain and be able to report to Parliament that they are certain—that all participants in the Convention fully grasp the serious consequences of a complete political impasse in Ulster. I also think it would be informative for the Secretary of State to take views about the continuing contact with the Sinn Fein if there is to be no contact with Convention Members. I think he would discover quite a considerable depth of feeling on this subject; and surely it would be wise to have some two-way discussions on the part the Convention might usefully play while its report was being considered by the Parliament at Westminster. That could be a period of very considerable strain, during which it might be highly desirable to have some political life going on in Northern Ireland.
  This debate does not signal a break in what has been called the bipartisan policy, but I believe that the resurgence of IRA violence releases the Secretary of State from the undertaking concerning a policy of response, which he has kept faithfully since the ceasefire began. It would be naive to assert that a political solution to centuries of conflict is going to fall into place provided a consistent security policy is followed; but upon some form of agreement between politicians is going to rest the acceptance in Ulster of institutional authority—Government Department, the RUC and the UDI—and clearly it is asking a great deal of the Convention and of public opinion to reach political solutions while the
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  IRA operate within the bogus alibi of a ceasefire.
  As all your Lordships know, the Army have done a job in Northern Ireland which no other soldiers could have equalled, and the RUC have a remarkable record of crime detection; but the Security Forces cannot do everything. Only upon their work can be built a political solution. If this debate does nothing else, I hope that your Lordships' speeches will once again have impressed upon the Government that there is a crisis of confidence; and this evening I believe the Government can help to dispel this crisis by informing the House as openly as possible of the immediate prospects at this critical moment for Northern Ireland.
  10.53 p.m.
  The PARLIAMENTARY UNDER-SECRETARY of STATE, NORTHERN IRELAND OFFICE (Lord Donaldson of Kingsbridge): My Lords, this has been a sombre debate about a particularly awkward and serious situation, and I can assure your Lordships that there is nobody, from the top to the bottom of the Northern Ireland Office, who is not fully aware of it. It was to be expected that as the Convention got near to its final word, whether constructive or unconstructive, things were liable to go wrong. This was no surprise to anybody: it is beginning to happen.
  I shall make a reasoned statement of the Secretary of State's general position in a minute, but before doing so I will deal with one or two of the many points that have been raised by speakers this evening. The noble Lord, Lord Belstead, said that the Secretary of State should feel free to take the measures necessary to deal with the situation. I think these were the Secretary of State's actual words: he had always felt free to do this. There is no inhibition of any kind. I could not make this point more forcefully or clearly. The Secretary of State is a free man.
  I cannot say anything about the Convention itself, but I should like to say a word or two on a point which has worried several Members and which was raised by the noble and learned Lord the other day about the lack of support which it has been alleged the Secretary of State has given to Convention Members. We must bear two points in mind. First, the

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  Convention is not a legislature and is not part of the apparatus of the Government of Northern Ireland. It has the much more fundamental and much narrower task of considering what the future apparatus of Government should be. Secondly, those who are currently the elected representatives of the people of Northern Ireland for the purposes of the Convention should of course receive the recognition which is properly due to them as individuals. These are two points, one on either side.
  The Government have consistently maintained that, whatever the technical position of Members of the Convention, it is clearly right that the Government and Ministers should do all they can to help deal by normal correspondence with cases which Convention Members put forward on behalf of individuals. That is happening every day. Beyond that it is not easy to go. Although Convention Members naturally have strong views on matters of current interest such as security, their membership of the Convention gives them no formal role on such matters. I think this must be so. I do not think there is any way round it.
  Viscount BROOKEBOROUGH: My Lords, will the noble Lord give way? The fundamental problem is not that we have been denied access and ability to make known our views on these subjects. That would have been perfectly all right if at the same time access had not been granted to men of violence whose position within the community had been rejected by vote after vote. It is the interaction of these two matters which has made the position of the Convention so irrelevant. Like my noble friend Lord Dunleath, I know in this matter that I am speaking for every single elected Member. This is the problem which I do not feel the Government have appreciated. We have tried to tell them that it is not a simple matter; it is a matter of recognition and the influence that the men of violence have had and the lack of influence of the men who have been elected. We do not claim that we are elected to governor to take part in the Government. But we do reckon that the men of violence were rejected, not elected.
  Lord DONALDSON of KINGS-BRIDGE: It is a negative rather than a
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  positive view, my Lords, that the noble Viscount is putting forward.
  Lord HAILSHAM of SAINT MARYLEBONE: My Lords, I do not want to prolong this debate, but the noble Lord is putting forward a legalistic case, which I understand. What I tried to put to the noble Lord the Leader of the House the other day and what I now try to put to the noble Lord is that the legalism of this case will not do. The feeling on the part of all Members of this elected body is building up to a point at which it is interfering with the discharge by the Secretary of State of his proper duties. It is that that I want the noble Lord to convey to his colleague.
  Lord DONALDSON of KINGS-BRIDGE: My Lords, that I will do. I think the noble and learned Lord exaggerates. A certain amount is going on about this. There have been a number of interviews with the Chairman. The Secretary of State has made it clear that lawful and responsible political Parties in Northern Ireland have a genuine and important role to play and can be seen by him or his Ministers in the ordinary way. But the point will of course be relayed to the Secretary of State. He is aware that there is some resentment about this. He has made a decision on very careful grounds which he thinks to be right. He has eased away from it a little. Whether what the noble Viscount says will persuade him to ease away any further, we shall see. So much for that.
  I am very grateful that the noble Lord, Lord O'Neill of the Maine, supported the bipartisan policy and I shall say something about that in a minute or two. I was a little unhappy with the speech of the noble Viscount, Lord Brookeborough. He seemed not to begin, as the noble Lord, Lord Moyola, and the noble Lord, Lord Dunleath, did by saying they had faith in the honesty of the Secretary of State. I should have preferred it if he had said so.
  Viscount BROOKEBOROUGH: My Lords, will the noble Lord give way again? I certainly have complete faith in his integrity. I am afraid that I have no faith in the policy that is being pursued at the moment—because it is being expressed by 100 per cent. of the people of Northern Ireland.
  Lord DONALDSON of KINGS-BRIDGE: My Lords, I am very glad to hear it.
  One of the points the noble Viscount raised was that one could not negotiate on the IRA's demand for a withdrawal of British troops. Well, of course one could not. Nobody has ever thought of it. I am astonished that the noble Viscount should even suggest such a thing in this House.
  A number of small points were made, but I shall not go into all of them. My noble friend Lord Brockway is always optimistic. I am afraid that he is rather too optimistic, but it is marvellous to find anybody who is at all optimistic. If the kind of thing he wants could be brought about there is not a single person who would not be delighted, but I do not see it coming about very quickly. On the question of basic civil rights, my noble friend probably knows that the committee of the noble Lord, Lord Feather, is dealing with this matter—and dealing with it quite fast. I would rather leave out any reference to a united Ireland. My noble friend spoke about this but I do not believe that it would be of any help at this time.
  The noble Lord, Lord Moyola, raised a point which is of the greatest worry to everybody—the alleged exclusion now of the RUC from the ceasefire. The ceasefire means very little at the moment, but if it excludes one half of the Security Forces it means even less. This is a very difficult situation and I do not know what is the right reaction to it. However, I can assure your Lordships that it is not a matter which has been overlooked in any way.
  I shall speak about the ceasefire in a short while. One other point I should make is that the noble Lord, Lord Moyola, did not give any credit for what has been achieved in the way of saving life during the ceasefire. Nobody thinks it has been a miracle; it has been a very half-baked thing from beginning to end. However, over the five year period the average number of casualties among the police, Army and civilians was 200 a year. Last year the figure was 172. It is not an enormous drop but the ceasefire was, of course, in operation for only half of the year. In the same way, the shootings averaged 4,500 a year against 1,334 last year. These figures are not
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  very convincing but there was a very real reduction. As those of your Lordships who live in Northern Ireland know, for six months the behaviour of the ordinary citizens of Belfast was quite remarkable. They went about the town as if they owned it.
  Lord HAILSHAM of SAINT MARYLEBONE: They do!
  Lord DONALDSON of KINGS-BRIDGE: Which indeed they do! The noble Lord, Lord Dunleath, raised a number of interesting points in relation to the Gardiner Committee. He has put them to the Secretary of State and they are being considered. The right of silence is one which interests me. It is one which the noble and learned Lord opposed very bitterly when it was applied on this side of the water, but we shall have to wait and see what happens over there. Those are the general points with which I wanted to deal, but I feel I should make a fairly short but reasoned defence of our general position in relation to the security situation.
  On the 22nd September, 20 bombings and other acts of criminal violence were committed in various parts of Northern Ireland. The targets were in the main commercial premises, although in two of the incidents the intention was clearly to kill or maim members of the RUC. Since then there have been 29 further explosions and 18 shootings; 7 bombs have been neutralised. This spate of bombings does not fit into the pattern of violence which can be traced back to the start of the Provisional IRA ceasefire, but it would be premature to work on the assumption that there has been another fundamental change in the security situation in Northern Ireland as a result of these out rages. There has, however, been a definite change in the nature of violence since the beginning of the ceasefire on 10th February. Over that period there have been many fewer bombings and shooting incidents. Attacks on the Security Forces have diminished, although the number of deaths and injuries of civilians is still serious, mainly as a result of sectarian and interfactional attacks, coming more or less equally from both sides. The ceasefire has brought into sharp relief undisciplined gangsterism and lawlessness, exhibited by individuals acting independently or under the auspices of small paramilitary groups.

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  Firm measures have been taken to deal with sectarian violence from wherever it comes and there will certainly be no let up. The measures taken include the intensive patrolling of likely trouble spots, especially sectarian interfaces; the use of observation posts, vehicle checkpoints and quick reaction patrols to deal with incidents. The A-squad, an interdivisional RUC team, has been set up solely to deal with assassinations and there has been a reinforcement of detective teams particularly in Belfast, Dungannon and South Armagh.
  The Government fully back the Security Forces who are taking these measures to prevent loss of life and the further destruction of property. As a result of the violence at the beginning of this past week, the RUC and the Army have stepped up their activities and a number of people, in the current euphemism, are helping the Security Forces with their inquiries into the events of last Monday.
  My Lords, in view of continued speculation, which we have heard again tonight, I should like to make it clear that the Provisional IRA unilaterally declared a ceasefire. The response of the Government was publicly stated in another place on 14th January and in subsequent Statements by my right honourable friend the Secretary of State and communicated to Provisional Sinn Fein. The Government's hope was that this would encourage progress through political processes in which all legitimate political Parties are free to take part. The Government have played their part. Large numbers of detainees have been progressively released. The level of Army activity—that is to say, screening, searching and that kind of interference with private life—was closely related to the change in the security situation. The lowering of the level of violence as the result of the ceasefire brought about a different situation and for the last six months the citizens of Belfast have benefited from it and have gone out at night to dances and cinemas in a way they feared to do before.
  Following their recent acts of violence, the Provisional IRA have made a number of wild accusations. These allegations of harassment and torture are not only false
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  but are fabricated deliberately to mislead people who live in areas in which the IRA seek to recruit support and sympathy. Their claim today that the Security Forces have broken a truce agreed with them is untrue—the ceasefire is unilateral. The Government from the beginning have made it clear that they will act appropriately in relation to the level of violence, whether it is up or down. The Provos' statement is clearly designed to justify murder, bombs and intimidation.
  The noble Lords, Lord Belstead and Lord Moyola, both suggested that the Secretary of State should now feel himself uninhibited by the unilateral truce. I referred to this earlier. I must make it absolutely clear that he has never been so inhibited from the beginning, and he has related the actions of the Security Forces—with their full agreement—to the reality of the situation. Not only you, my Lords, but the whole community will make its own judgment as to the credibility of these people. Let there be no doubt that those who indulge in criminal acts of any kind will be relentlessly pursued. As I explained to your Lordships' House on Monday, the Government's policy has been fully set out at all times in the House of Commons: the Secretary of State will continue to follow this practice; and he will not be influenced by threats, distortions or lies.
  As I have just said, the action of the Security Forces is related to the level of terrorist activity. I said this on Monday. Events this week have demonstrated the point. I must, however, deal with allegations that have been made that the Secretary of State is in some way "holding back" the Army. Frequent regular meetings are held between the Secretary of State and his security advisers, the chief constable and the GOC. There is complete agreement between them that the policy adopted during the ceasefire is the right one, and agreement as to each change of that policy which is introduced.
  The balance between defeating violence with force and defusing or de-escalating the situation is a delicate one and our response must be, and is, flexible. I must add, however, to make sure that there is no doubt on the point, that the Security Forces are not restrained in any way whatsoever by political constraints from dealing with acts of violence from

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  whichever part of the community they might emanate. On the first occasion on which I spoke on Northern Ireland in this House, some 18 months ago, I was asked the same question—the answer is unchanged. Indeed, I am greatly encouraged by the Royal Ulster Constabulary's successes in bringing terrorists before the courts.
  In this context I must say that I found it sad when a highly respected friend and colleague of a few months ago turns and rends the Secretary of State, as Mr. Paddy Devlin did two nights ago on the television screen. As to his general attack I will not comment, beyond saying that it seemed to me singularly divorced from reality. In one respect, at least, in which he was seriously misinformed, he needs correction. He said, "The level of conviction is extremely low at the present time". In fact this is the opposite of the truth. So far this year, up to 23rd September, 821 people have been charged with serious terrorist-type offences, including 92 with murder, 67 with attempted murder, 321 with firearms offences and 60 with explosives offences. In the same period, the number of convicted criminals in custody has gone up by some 500. With the help of the community in providing information I am confident that the Security Forces will maintain and improve upon this impressive record. It is a most impressive record when one considers the difficulties that the Royal Ulster Constabulary are up against. The Government and the Security Forces are well prepared to meet any renewed threat of organised violence, from whatever organisation it might come. They will not shrink from it, nor is there any question of holding back.
  In conclusion, my Lords, I should like to take up a point raised by the noble and learned Lord, Lord Hailsham, in your Lordships'House on Tuesday. He implied that the Government were being less than open with the Opposition on events and policy in Northern Ireland. The facts do not bear this out. Only the day before, the Secretary of State had held a lengthy and cordial meeting with the Opposition spokesman on Northern Ireland—this meeting was the latest in a lengthy series between Mr. Neave and Northern Ireland Office Ministers. Less than two weeks previously the Prime Minister and the Secretary of State had met Mrs. Thatcher
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  and Mr. Airey Neave for discussions on Northern Ireland. Earlier in the summer, at the request of the Shadow Cabinet spokesman on Northern Ireland, the Secretary of State met a representative group of Conservative Members of Parliament to brief them on the Northern Ireland situation. I know that he would be more than happy to meet them again in the near future. On none of those occasions has mention been made by the Opposition that they are not being kept fully in formed.
  My Lords, I hope that what I have said will satisfy the noble and learned Lord. The Secretary of State is totally loyal to the bipartisan policy and regards it, as I do, as a vital factor in our policy towards the never-ending problems of Northern Ireland. If we are to quarrel among ourselves as to the right course of action we shall add enormously to difficulties which are formidable enough already.
  My Lords, the hour is late, and the subject is sombre. In spite of some criticisms, I am grateful to my old friend and protagonist Lord Brookeborough for raising this matter, and to those noble Lords who have spoken. It has been a useful debate, and will be noted extremely carefully. The views of your Lordships will be passed on to the Secretary of State and the relevant people.

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